ecuted to her by J. S. Trout, September 23, 1893, to secure the payment of a promissory note of that date, for $1,872; and she denied the validity of the judgments in favor of the plaintiff in error, because they were rendered without jurisdiction of the person of J. S. Trout. The only evidence offered upon the trial was the complete records of the causes in which the two judgments of June 15, 1893, were rendered. From the records it appears that the judgments were rendered upon confession by an attorney acting upon warrants attached to the notes, the following being a copy of the notes and warrants:

"$200.00. Findlay, O., June 11, 1892. One year after date, for value received, I promise to pay, to the order of Will E. Heck, two hundred dollars, with interest at the rate of eight per centum per annum at and hereby authorize any attorney at law to appear in any court of record in the United States after the above obligation becomes due, and waive the issuing and service of process and confess a judgment against

in favor of the holder hereof, for the amount then appearing due, together with costs of suit, and thereupon to release all errors and waive all right of appeal. I. N. Smith. J. S. Trout.

"Waiving demand and notice. Will E. Heck."

Upon this evidence the circuit court found that the judgments were not valid liens upon the premises, and ordered distribution of the proceeds of sale to the mortgagee.

J. A. & E. V. Bope, for plaintiff in error. John Poe, for defendants in error.

SHAUCK, J. (after stating the facts). Upon the question presented, no consideration is due the suggestion of counsel for the mortgagee that judgment notes are dangerous instruments. Their use in this state is inveterate, and it is not to be discontinued by violence to the rules of interpretation. Does the language used in these instruments show that the makers intended to authorize an attorney to appear for them, waive summons. and confess judgment against them, and in favor of the holder of the note? That the power was to be exercised in favor of the holder of the note could not have been made clearer.

Notwithstanding the use of the singular pronoun in the obligatory part of the instrument, it is settled that it is the promise of both makers, their obligation being several as well as joint. Wallace v. Jewell, 21 Ohio St. 163. No reason appears why the use of that number should limit the authority conferred by the warrant any more than the obligation to pay. Nor does any substantial defect in the warrant result from the omission to fill the blanks. By the terms of the instrument, the makers of the note are the donors of the power which is

conferred. Their relation to the instrument and the use of the copulative conjunction sufficiently indicated the persons against whom judgment should be rendered. The instruments as executed express elliptically what would have been expressed more fully if the blanks had been filled. The language actually employed in the power suggests "we" and "us"" as the only words which could, with propriety, be inserted in the blanks. Sweesey v. Kitchen, 80 Pa. St. 160; Packer v. Roberts, 140 Ill. 9, 29 N. E. 668. Judgment of the circuit court reversed, and judgment for plaintiff in error.

(58 Ohio St. 430)

MARKLEY v. VILLAGE OF MINERAL CITY.

(Supreme Court of Ohio. May 10, 1898.) MUNICIPAL CORPORATION-ACQUISITION OF LAND -DONATION FOR MANUFACTURING PLANTVALIDITY OF GIFT.

1. A municipal corporation is without capacity to acquire land by purchase for the purpose of donating the same to a corporation or person as an inducement to build and operate manufacturing plants within the municipality.

2. Corporate funds paid out in the attempted purchase of land for such purpose are unlawfully expended, and a deed purporting to convey such land is without legal effect.

3. And where, for the purpose stated, a village has undertaken to purchase and acquire title to land, and to convey it to a person on consideration that he will build and operate manufactories within the village, and afterwards brings its action against such person to set aside the conveyance and obtain a reconveyance of the property, with possession thereof, a court of equity will not lend its aid to either party, but will leave them where they have placed themselves.

(Syllabus by the Court.)

Error to circuit court, Tuscarawas county. Suit by the village of Mineral City against George J. Markley. A decree for defendant was reversed, and defendant brings error. Reversed.

The cause of the village of Mineral City against George J. Markley was tried in the circuit court of Tuscarawas county, on appeal from the common pleas; and it is to the judgment of the circuit court that error is prosecuted here by Markley. The purpose of the suit was to obtain a decree setting aside a deed of three acres of land, which had been made by the village to Markley; to require him to reconvey the premises to the village; and for possession of the property. In its petition the village alleged, in substance: That on the 1st day of March, 1893, it was seised of the land in question. That on that day the council attempted to pass a resolution to convey the real estate to Markley. That on that day the village mayor and the clerk executed and delivered a deed for the premises to him, which was then delivered to the county recorder, and recorded. The resolution was not properly passed. The defendant paid no consideration for the land, but it was attempted to be

conveyed to him as a donation to procure him to construct and operate manufacturing plants, in accordance with an agreement to that effect of that date, a copy of which is attached to the petition. That the defendant has violated his contract, in this: that he has not constructed and operated such plants as agreed, and has thus forfeited any rights that he otherwise might have had. The mayor and the clerk were never legally authorized to convey the land. No ordinance was passed giving such authority, nor were any of the necessary legal steps taken to make such attempted conveyance effective. The agreement and alleged deed are illegal and void, and of no effect, and plaintiff is entitled to a reconveyance. Markley's answer contained four defenses: The first admitted the passage of the resolution, and execution, delivery, and recording of the deed; admitted the purpose of the deed; admitted the making of the agreement set up in the petition; but denied every other allegation. The second averred actual possession of the land in defendant on and ever since March 1, 1893; denied that the village was ever seised of the land, or the owner of it; averred that it took from the heirs of one George Lechner, deceased, who were seised in fee simple, a deed of the land, and purchased the same for the sole purpose and with the sole intent of donating the same to some person, corporation, or association, to induce them to construct and operate manufacturing plants within the village, and not for the legitimate use of the village, all of which was in violation of the constitution and laws of Ohio, and was ultra vires, and the deed to the village is void and of no effect. The third averred, in terms, a compliance with his contract, and alleged that before the commencement of the suit, with full knowledge and acquiescence of the village, he had expended other large sums (in all, $38,000) in manufacturing plants, and was then operating them within the village, and that plaintiff should be barred and estopped of its action. The fourth set up that since the commencement of the action the heirs of George Lechner, deceased (naming them), being the same persons from whom the village obtained its supposed title to the land, have conveyed to the defendant, by their duly-executed quitclaim deeds, all their right, title, interest, and estate, legal and equitable, in and to the real estate, and that by virtue of said deeds defendant is the owner in fee of the real estate, and is still in the occupancy and possession thereof.

To the second, third, and fourth defenses, respectively, a demurrer was interposed and sustained. The cause was then tried on the issues made by the petition and first defense, which resulted in a finding and judgment as follows: "And the court, being fully advised in the premises, and on consideration whereof, finds its conclusions of fact, separate from its conclusions of law, to be

as follows: That prior to the 1st day of March, A. D. 1893, and before and at the date of the deed to the defendant for the real estate described in the plaintiff's petition, the plaintiff had purchased, and then held, said real estate, from the heirs of one George Lechner, deceased, who conveyed the same to the plaintiff, in fee simple, by their deed duly executed and delivered; that said conveyance to the plaintiff was for a valuable consideration; and that said purchase and conveyance by and to the plaintiff from the said Lechner's heirs were made for the sole purpose and with the sole intent, on the part of the plaintiff, to donate said real estate to some person, corporation, or association of persons, to induce the same to build and operate certain manufactories within said village. And the court further find that said premises are described as follows, to wit: [Here follows description of premises.] And the court further find that the plaintiff is a municipal corporation duly organized under the laws of Ohio. And the court further find that on said 1st day of March, 1893, said village of Mineral City, without authority of law thereto, executed and delivered to the defendant an alleged deed of conveyance for the aforesaid premises, and that said conveyance was without lawful consideration. And, as conclusions of law, it is considered by the court that the said pretended deed of conveyance, in the petition described, from the said the incorporated village of Mineral City to said George J. Markley, be, and the same is hereby, set aside, vacated, and declared to be of no force and effect, in law, to effect or convey the title of said premises to the defendant, and that the title of the said plaintiff to said premises be, and the same is hereby, confirmed; and it is ordered that a writ issue to the sheriff of Tuscarawas county to put the plaintiff in possession of said premises. And the court further consider that the plaintiff recover of the defendant its costs herein expended. To all and to each of which conclusions of law, orders, judgments, and decrees, the defendant excepts."

A. W. Patrick and Neeley & Patrick, for plaintiff in error. E. S. Souers, for defendant in error.

SPEAR, C. J. (after stating the facts). The pleadings and findings of fact present this question: Had the village power, by deed of purchase, to legally acquire title to and hold real estate, for the sole purpose and with the sole intent of donating the same to procure the construction and operation of manufacturing plants within its limits? Two sections of the constitution seem to bear upon the subject. One (section 6 of article 13) makes it the duty of the general assembly, in providing for the organization of municipalities, to restrict their power of

contracting debts and loaning their credit, so as to prevent the abuse of such power. The other (section 6 of article 8) expressly denies to the assembly power to authorize any such corporation to become a stockholder in any joint-stock company, corporation, or association whatever, or to raise money for, or loan its credit to or in aid of, any such company, corporation, or association. And that this interdict applies as well to the case of an individual as to the aggregations named, is without question. It is intended to prevent the union of public and private capital in any enterprise what

ever.

In considering the attitude of the village in this controversy, we must look at the entire scheme that was proposed to be accomplished. The first step was to pay out money of the municipality in the purchase of land. The next was a donation of the land so acquired to some one willing to contract, and that person, in turn, to construct and operate the manufacturing plants for the supposed benefit of the people. The village was not to share as a partner in the enterprise, nor to loan its credit for that purpose, nor did it do so; but it did propose, by the wrongful use of corporate funds, to make a purchase, intending thereafter to make a gift of the property so to be acquired, both of which things it undertook to do. It cannot be doubted that the scheme, taken as a whole, was clearly violative of the spirit of the sections of the constitution cited. And, notwithstanding this, the proposition of the village is that a court of equity should aid it in recovering that which it has undertaken to acquire by a scheme forbidden by law, and has parted with in compliance with a contract which it had no power to make. It is to be borne in mind that we are dealing with the status and capacity, not of a natural person, but of a corporate one; a mere creature of the law; an artificial entity, which, having no natural rights or powers, exists and operates only by virtue of the law of its creation. And we suppose it to be settled that our municipalities have such capacities and powers, and such only, as are expressly granted, and such as may be implied as essential to carry into effect those which are expressly granted, and that doubtful claims to power are resolved against the corporation. Cooley, Const. Lim. 231, 232; Minturn v. Larue, 23 How. 435; City of St. Louis v. Bell Tel. Co., 96 Mo. 623, 10 S. W. 197; 1 Dill. Mun. Corp. $$ 89, 457; 2 Dill. Mun. Corp. 936; Ravenna v. Pennsylvania Co., 45 Ohio St. 118, 12 N. E. 445. So that, the question resolves itself into this: Has the power been clearly granted to villages to accept title to land for the express purpose of donating it for the encouragement of local improvements? If not, is such power to be implied, as essential to carry into effect other clearly-granted powers? The right of a municipality to acquire property, is given by

串

paragraph 34 of section 1692, Rev. St., in these words: "To acquire by purchase, or otherwise, and to hold real estate, or any interest therein, * for the use of the corporation, and to sell or lease the same." Here is specific mention of the purpose for which land may be acquired. The controlling idea is that the property must be for the use of the corporation. This idea of use implies power to hold. It implies, beyond this, a jus disponendi,-a power to deal with the property. If such power does not exist, then its attempted acquisition would be an idle performance. The two ideas are inseparable. If the municipality is without power to hold and dispose of the property, then, by the same token, it is without power to acquire. And we are necessarily confined, in treating of the purpose of acquisition, to the express purpose, viz. "the use of the corporation"; for, applying the maxim, "Expressio unius est exclusio alterius," all other purposes are excluded. It would follow, therefore, that if the land be for the use of the municipality, for some legitimate corporate purpose, then power is given, by the clause quoted, to acquire it, and necessarily power to hold and dispose of it. But, if it be not for the use of the corporation (that is, for a use to which the corporation may lawfully devote it), then this clause gives no capacity to receive, or power to hold. Another paragraph of the same section gives power to accept bequests, but that is not involved here, and, so far as we are aware, there is no general power given to acquire real estate, except by the paragraph quoted. Not only, therefore, is there no clear expression of a purpose to give power to acquire and hold real estate for speculative purposes, but the provisions upon the subject, statutory and constitutional, clearly establish that no such power is intended. The chief function of a municipality being to regulate local governmental affairs, because they may be dealt with better by the people interested than by a distant central power, we cannot assume a purpose to invest such corporation with the powers or capacities of individuals, or of private corporations, for objects not pertaining to municipal rule, since that would be to pervert the institution from its legitimate ends, and to require of it duties which it is not adapted satisfactorily to execute, and which are not necessary to enable it to discharge the appropriate functions and duties of local administration. It follows that no such power is to be implied, as essential to carry into effect the power which is in terms given.

If we are right in these conclusions, then it results that the attempted purchase by the village from the Lechner heirs gave to the municipality no title to the land, either legal or equitable. This being the situation, how does it leave the parties? Markley is in possession. The attempted deed of the vil

lage gave him no title, but, on the other hand, the village has no title to be restored. It cannot prevail except through the medium and with the aid of the illegal transaction to which it was a party, and hence it can have no standing in a court of equity, because it asks affirmative relief under circumstances showing that it is itself in the wrong. The defendant is equally in pari delicto. The court will therefore refuse aid to either, but leave them where by their illegal acts they have placed themselves. Thomas v. Cronise, 16 Ohio, 54; State v. Buttles, 3 Ohio St. 309; Commissioners v. Andrews, 18 Ohio St. 49; Board of Education v. Thompson, 33 Ohio St. 321; Kahn v. Walton, 46 Ohio St. 195, 20 N. E. 203.

It is insisted that Markley, having taken a deed from the village, is estopped to deny the title of his grantor. But Markley does not attempt to stand on that title. He distinctly repudiates it. But, if he did, the contract which the plaintiff itself pleads, and the finding of the circuit court, disclose fully the illegal character of the transaction.

Attention is called to section 21, Rev. St., and the proposition is advanced that the attempt of the village to convey to Markley may be treated as an illegal loan or deposit of the property of the village, which, by this section, it is authorized to recover back. The section cannot apply. We have already found that the land in question was not the property of the village. The spirit, if not the letter, of this statute, was violated by the act of the municipal officers in unlawfully paying the money of the village to the Lechner heirs, not in their futile attempt to convey what the village did not own. The case of the village seems to rest upon the proposition that the municipality, while it is not bound by the illegal acts of its officers, nevertheless may affirm in part what they did, and thus reap whatever benefit may result from their acts. The proposition is not tenable. Its weakness lies in the unfounded assumption that the illegality of the transaction consists wholly in the unauthorized acts of the agents.

ble. Of course, however, we do not undertake to decide these questions. They are not involved in this controversy, nor are the proper parties before us. Judgment of the circuit court reversed, and petition below dismissed. Reversed.

(58 Ohio St. 517)

CHASE v. BRUNDAGE. (Supreme Court of Ohio. June 21, 1898.) PARTNERSHIP LIABILITY-DISSOLUTION OF BANKING CO-PARTNERSHIP-CERTIFICATE OF DEPOSIT-RENEWAL-PAYMENT OF FORMER FIRM DEBT-PROOF OF AGREEMENT-NOTICE OF DISSOLUTION.

1. A time certificate of deposit, issued, after the dissolution of a banking co-partnership, by a member who had become the owner and was carrying on the business of the bank, in the place of a like certificate of the firm, is not a payment of the firm debt, unless the creditor agrees to so receive it.

2. The agreement need not be express, but may be implied from the circumstances of the transaction and conduct of the parties, and no higher degree or greater certainty of proof is necessary to establish the agreement than is ordinarily required to prove any other fact in civil cases. A preponderance of the evidence is sufficient.

3. The surrender of the firm certificate when that of the partner is received, with knowledge that the firm had been dissolved, and that payment of its liabilities had been assumed by the partner, is evidence from which an agreement to receive it in satisfaction of the firm liability may be inferred, but is not conclusive.

4. It is the province of the jury, and not of the court, to determine whether there was such agreement, which must be done from all the evidence; but error in the failure to submit that question to the jury by the general charge of the court, or refusal to charge, is cured where it is submitted, at the request of a party, by interrogatories calling for a special finding of the fact, and is determined by such special finding, returned by the jury, consistent with the general verdict.

(Syllabus by the Court.)

Error to circuit court, Morrow county.

Action by William Brundage against Reuben F. Chase and another. A verdict for defendant Chase was reversed by the circuit Reverscourt, and defendant brings error.

Action against a banking firm for money left on deposit. Defense by one partner that he withdrew from the firm under an agreement that his co-partner should retain the assets and pay the liabilities, and that thereafter the plaintiff, with notice of the dissolution and agreement, accepted, in satisfaction of his claim against the firm, a time certificate of deposit, at interest, from the copartner. The original action was brought by William Brundage against William G. Beatty and Reuben F. Chase, late partners under the firm name of the Cardington Banking Company. The petition contains three causes of action, which are as follows: "The plaintiff, for his first cause of action, says that the defendants at the dates hereinafter stated were partners in the banking business in the village of Cardington, Morrow county,

Ohio, by name and style of Cardington Banking Company, with whom, while they were so engaged in the said banking business by said firm name, he had made deposits with, and done business with, as such partners, prior to the dates hereinafter mentioned. On or about the 12th day of February, 1890, at the request of the said defendants, he deposited and delivered to the said defendants, as such partners, at their said banking | house, the sum of one thousand dollars in cash; and he also says that the same has not been paid, nor any part thereof, except the interest thereon to the 12th day of February, 1893, and that there is now due to him from the said defendants on account thereof the sum of one thousand dollars, with interest thereon from the 12th day of February, 1893. And, for a further and second cause of action, plaintiff says that on or about the 12th day of August, 1890, he delivered to and deposited with the said defendants, as such partners, and as such bankers, at their said banking house in the said village of Cardington, the further sum of four hundred and seventy-five dollars in cash; that the same has not been paid, nor any part thereof, except the interest thereon to the 12th of February, 1893, and that there is now due to him from the said defendants on account thereof the sum of four hundred and seventy-five dollars, with interest thereon from the 12th day of February, 1893. And plaintiff, for a further and third cause of action, says that on the 2d day of June, 1893, he delivered to and deposited with the said defendants, as such partners, and at their said banking house in the said village of Cardington, the further sum of one hundred dollars in cash; that the same has not been paid, nor any part thereof; and that there is now due to him from the said defendants on account thereof the sum of one hundred dollars, with interest thereon from the 2d day of June, 1893. Plaintiff therefore asks judgment against the said defendants for one thousand five hundred and seventy-five dollars, with interest on one thousand four hundred and seventy-five dollars from the 12th day of February, 1893, and on one hundred dollars from the 3d day of June, 1893, and for costs." Beatty made no defense. Chase answered, in substance, that his connection with the firm ceased on the 1st day of September, 1892, when he transferred his interest to Beatty, who assumed the payment of the liabilities of the firm; that the business was thereafter carried on by Beatty in his own behalf; and that the plaintiff, with knowledge of these facts, on the 12th day of February, 1893, received and accepted in satisfaction of his claims against the firm, which are set up in his first and second causes of action, certificates of deposit issued by Beatty, payable in six months, and bearing interest until maturity. And, as to the money claimed in the third cause of action, he avers that was originally deposited after

Beatty became the sole owner of the bank, and with notice that Chase was not then a member of the firm. A verdict was returned in Chase's favor on a trial of the issues joined by a denial of the allegations of his answer. Judgment rendered on the verdict was reversed in the circuit court for error in the charge to the jury, in refusing instructions requested by the plaintiff, and in not requiring more specific answers to interrogatories submitted to the jury. The case is brought here to obtain a reversal of the circuit court, and an affirmance of the common pleas. A further statement of the facts and of the alleged errors will be found in the opinion.

Theodore S. White and Jabez Dickey, for plaintiff in error. Olds & Olds, for defendant in error.

WILLIAMS, J. (after stating the facts). It is not contended here that there is any ground upon which Chase can be held liable for the money deposited by the plaintiff on the 2d day of June, 1893. The errors for which the judgment of the trial court was reversed concern his liability upon the first and second causes of action, for the money deposited while he was a partner in the bank. It appears from the record that the banking co-partnership between Beatty and Chase was formed in 1888, and continued until September 1, 1892. when it was dissolved by agreement, under which Beatty took its assets, and assumed the pay..ent of its liabilities. Beatty thereafter continued the business in the name of the Cardington Bank until August 16, 1893, when he failed. The plaintiff left on deposit with the firm on the 12th day of February, 1890, the sum of $1,000, and on the 12th day of August, 1890, the further sum of $475; and upon these two deposits his first and second causes of action are founded. For each of these sums the firm issued to the plaintiff, at the time the money was left with it, a certificate of deposit payable six months thereafter, with a special rate of interest for that period only. These certificates were surrendered by the plaintiff at maturity, when the interest was paid, and new ones issued to him, in like form, for another period of six months; and thereafter renewals were made in the same way every six months so long as the firm continued to exist. Each of the certificates bore the names, "R. F. Chase, President," and "Wm. G. Beatty, Cashier," printed at the top, and was signed, "F. A. Bayer, a Cashier." On the 27th day of October, 1892,being in the month following the dissolution of the firm, the plaintiff made a new deposit in the bank, of $125, and then received a certificate of deposit for the amount, in the same form as those which had been previously issued by the firm, except that the name of "Chase, President," was erased by lines of red ink drawn over it. After that, on the 12th day of February, 1893, the plaintiff surrendered to the bank the last renewal certificates is