Russell, Admr., v. Bank.

[Vol. 23 (N.S.)

sacrosanct, so that letters of marque must be granted to them by the courts in matters affecting the competency of testimony, and the paper has no greater or other probative effect than any statement, of farmer Smith, for example, to the effect that he owns farmer Brown's horse, which, however, still remains in the latter's pasture, with no bill of sale or other evidence of a change of title outstanding.

On the score of principle and the manifest reason of the thing, we are quite unable to agree that this, the only tangible defense. to overcome and control the effect of the visible certificate produced, is itself defensible.

As was to have been expected in what we feel bound to regard as so plain a case, authorities are not wanting to support this conclusion of our own.

Many of these, more or less in point, are marshalled and discussed in the briefs of counsel, with commendable industry and ability. We shall not comment upon them more particularly or seriatim, for the reason that we find what they amount to, to our apprehension, summed up in a compact text-book statement to be cited presently.

It certainly is true that under some circumstances and for some purposes, the regular and orderly writings of a corporation may be used in evidence. But they are so competent, it is believed, only as affecting the corporation in its capacity as a body, as a corporate entity; in other words, only qua corporation. They are so competent only in their relations to the internal affairs of the organized body. This limitation, or distinction will appear in the quotation about to be made. It is stated here only to show that it has not been overlooked and that the case at bar does not come within its purview, or the allowed exception to the general rule to the contrary, as is believed.

In Commentaries on the Law of Evidence, sometimes known as the "Blue Book of Evidence," by Mr. Jones, Vol. III, Section 516a, the law appertaining to this question, as we understand it to be, is tersely, but rather informingly stated, as applied to the matter in hand, as follows:

"Thompson, in his monumental work on corporations, clearly announces his conclusions. He says: "The general rule is believed to be that, except for the purpose of proving what the

1915.]

* *

Hamilton County.

corporation did, or what action its corporators took in effecting its organization, its books and records are not evidence as against a stranger, or as against a stockholder holding adversely to it. But where it is sought to use the records of a private corporation, as evidence of the facts which they recite, for the purpose of concluding, or even influencing the rights of third parties who are strangers to the record, then such records are not admissible, on the same principle which operates to exclude the records of legal judgments when offered for a similar purpose, on the principle that they are res inter alios acta, or in plainer language, upon the principle that the rights of A can not be concluded or displaced by the facts that C, D, E and F met together in conclave, in the room of a board of directors of a private corporation, and there adopted a certain resolution, or passed a certain vote, or enacted a certain by-law intended to have that effect. The sound rule, then, is that the records. of a private corporation can not be used in evidence for the purpose of sustaining a claim of the corporation against persons who are not members of it, or to defeat a claim of such a person against the corporation, or to affect strangers anyway. As between members of the corporation, they are evidence of corporation acts therein recorded; but they can not be used in an action against a stranger to connect him with the corporation, unless made so by an act of the Legislature. Nor can they be used in evidence in suits by the corporation against its members, for the purpose of proving, on behalf of the corporation, entries which are in its interest. If the contrary were the rule, a corporation might manufacture evidence in its own favor, and those who were its guilty agents in so doing would not be subject to the penalties of perjury. Nor are such books evidence. to prove private agreements of the stockholders. Upon the same basis of reasoning, the records of a corporation are not evidence. of the truth of the facts therein recited, as between a member of the corporation, and a stranger, or between two strangers.' Wharton says that even in suits by a corporation against its members its books can not be used as evidence in proving in behalf of the corporation self-serving entries. Entries in the books of a corporation of private pecuniary transactions with a stockholder are not admissible against him, especially when it does not appear by whom the entries were made.'”

Cognate following sections may also be read with advantage, but we shall not take the space to quote them. In one of these (517) it is said: "It has frequently been declared that the books can not in general be adduced by the corporation in sup

Russell, Admr., v. Bank.

[Vol. 23 (N.S.)

port of its own claims, against a stranger, or to affect strangers in any way;" citing in support, Commonwealth v. Woelper, 3 Serg. and R., 29; Greenleaf, Ev., Section 493; Wharton, Ev., Section 628. It is to be said that in the transaction now under review the plaintiff is-as his testator was-a stranger-in-law to the bank. Being a stockholder did not make him less so.

The authorities cited to sustain the text do so abundantly, as we think, and this is said only after an attentive examination of many of them. And this is an added reason for a perhaps scant discussion here of those brought forward in the briefs.

Thus,viewing the question, and finding the law so to be, it follows, manifestly, as we must think, that the admission of the entry purporting to recite that the testator parted with his stock holdings in the defendant was error. And as it went to the heart of the controversy and was the only thing that could have resolved the issue adversely to the plaintiff, it was of course prejudicial error and, therefore, reversible error.

As to the other considerations more or less vehemently urged upon us in the argument at the bar, we do not feel called upon to say very much, since obviously and as already intimated the paper which we have found should have been excluded but was admitted, formed the keystone of the entire arch of defense against the certificate in the hands of the plaintiff.

It is said-plausibly enough, to be sure that it is impossible to think that the dead man should have lived in abject and miserable poverty and yet have been, by the ownership of this certificate, potentially a rich man. Perhaps so. But it will not do to push this supposed impossibility too far. It is a trick that misers have to appear to live poor while they are getting ready to die rich. At most, the consideration is but a conjecture, and when a conjecture comes against a very matter-of-fact stock certificate, the presence of which in wrongful hands-if it is wrongful is solely due to the neglect of the sworn duty of the now conjecturer and to its own disobedience of its own lawsin such case, we say, the conjecture is at a disadvantage and must go to the wall. It is, we suspect, small consolation that the patient dies according to the books-that is, in consequence of an infirmity which when it was acquired the sufferer had it within its easy power to prevent-namely, by requiring a surrender of

the certificate before transferring the stock to any one, bank officer or no bank officer.

So also in regard to the statement in argument that the bank must have taken, and doubtless did take, an indemnity, before transferring Russell's stock. Again, perhaps so.

But these are all inferences, suppositions, guesses. One guess is as good as another, and no guess can push the law of evidence from its stool. The hard fact of an unsurrendered certificate of stock is a visible and workable thing, to the confusion of any number of might-have-beens, or even must-have-beens.

In regard to the other defenses alleged in the answer-those of laches and the barring of the action by limitation or lapse of time we desire to say no more than that none of them seems to us to be of merit to control the conclusion otherwise reached here. They are denied.

Because of the error found the judgment complained of is without support in law and for that reason is reversed, and the cause is remanded to the court from whence it came, for such further proceedings there as may be proper.

JURISDICTION TO ENJOIN EXECUTION ON A JUDGMENT. Court of Appeals for Licking County.

ANNA BETZ v. WALTER C. BETZ.

Decided, March Term, 1915.

Alimony-8cle Under Execution to Satisfy Balance Due Under Judg ment for-May be Enjoined, When-Jurisdiction in Equity. Where it is sought by execution to enforce payment of a balance due under a decree for alimony granted by the probate court, the common pleas court has jurisdiction to entertain an action by the defendant to enjoin sale of his property on the ground that the judgment entered against him upon which the execution is based has been fully satisfied; and this is true notwithstanding the right of the complainant to proceed by motion in the court issuing the execution to have satisfaction of the judgment entered and the execution set aside.

Betz v. Betz.

[Vol. 23 (N.S.)

Smythe & Smythe, for plaintiff in error.

Carl Norpel and A. S. Mitchell, contra.

SHIELDS, J.; POWELL, J., and HOUCK. J., concur.

This proceeding in error is prosecuted to reverse the judgment of the court of common pleas of this county.

It appears that a decree for alimony was granted the plaintiff in error against the defendant in error by the Probate Court of Licking County; that afterward the plantiff in error caused an execution to issue out of said probate court upon said decree for alimony to the sheriff of said county, who levied the same upon the property of the defendant in error to satisfy what was claimed to be an unpaid balance due on said decree for alimony, amounting to something like $900; that said sheriff was proceeding to advertise the property of the defendant in error, so levied on, for sale to satisfy said claim of the plaintiff in error, when the defendant in error, in an action commenced by him in the court of common pleas of said county, procured a temporary injunction against said sheriff restraining him from selling said property, on the ground that he had then already paid the full amount of said decree for alimony so awarded against him, and a sum largely in excess of said sum, and that said execution so levied upon his property was therefore wrongful and unjust.

An answer was filed in this proceeding, denying payment of the alimony as alleged by the defendant in error, who afterwards filed a reply thereto, and after a full hearing was had upon the merits of the claims of said parties said common pleas court found that payment of said decree for alimony had been made by the defendant in error, as alleged by him in his petition, and said temporary injunction was thereupon made perpetual.

The plaintiff in error afterward filed a petition in error in this court to reverse said judgment of said common pleas court on the ground that said court had no jurisdiction to hear said. last named cause for the reason that the probate court of said county had first acquired and retained jurisdiction thereof, and that if the defendant in error was seeking any relief his remedy was by motion in said probate court.