viduals, and they alone have a recognizable interest in them; but the duty to support a child is an obligation owing by the parent to the public or body politic generally, and enforcible by the latter, as witness the statutes punishing a parent's abandonment and neglect of children by fine or workhouse sentence, (Revised Statutes, secs. 20996 and 6984a), and see sec. 3110, specifically stating the duty. It is on this ground the constitution does not prevent a money judgment under the bastardy act being enforcible by imprisonment, not as a penalty or punishment for a crime, but because it is not a debt, but a duty that a man shall save the public from the charge of illegitimate children he has brought into the world, Musser v. Stewart, 21 Ohio St., 353; and such being the law as to illegitimate children, it follows a fortiori that the duty to support legitimate children is at least as sacred and to be enforced by the same sanctions.

Moreover, a debt arises out of a contract or tort, and hence is founded on the promise or act of the parties, but the duty to support children is imposed by the law itself, as a consequence of the relation, as one example of a function that seems to pervade all nature, animate or inanimate, that the mature shall guard the immature-the parent, the offspring.

Again, a debt is the residuum of a past and finished transaction, and of a certain defined amount, but this liability arises out of an unfinished omnipresent responsibility of changeable weight.

A debt can be discharged by a single act or acts, and if not discharged remains in force, even for and against the estates of the respective parties when dead; but the duty to support is not dischargeable, but continues through immaturity, then falls of itself, and moreover does not descend to or against the respective administrators.

For the above reasons, I do not think the allowance for support of the children bears any resemblance whatever to a debt, and the constitution, therefore, does not forbid imprisonment for its neglect.

II. Ought a court-even if it can-enforce the allowance by attachment for contempt?

It seems obvious on a cursory view that contempts are of at least two kinds. 1st, those misbehaviors, which obstruct the court in the administration of its ordinary functions as distinguished from willful refusals to do towards the opposite litigant what the court decrees. The contempt chapter is perhaps confined to acts interfering with the courts' freedom in trying to reach a judgment, aud not with the rights decreed to belong to the opposite side. It is to such matters only that the chief dangers of abuse of discretion above mentioned appertain.

2d. But there is another jurisdiction which perhaps ought not be called contempts at all; under which chancery courts can enforce their own decrees which are final, and therefore not orders but judgments under Rev. Stat. sec. 5310, above cited; the most common of which are injunctions, cancellations, specific performances, rescissions. Yet obedience to these are duties owed to the other litigant parties, and not to the public, and disobedience does not obstruct the courts.

The enforcement of the allowance for children in this case falls under the latter of these classes and hence any restrictive principle arising from the dangers of extending the jurisdiction of contempts proper of the first class do not apply, and no doctrine belonging to contempts, therefore, interferes.

The above argument is greatly re-enforced by the nearly parallel remedy for collecting money judgments by our proceedings in aid of ex

Hamilton Common Pleas.

214

ecution for citing and examining the debtor, in which by statute, Rev. Stat,, sec. 5841, disobedience of the order to pay over is punishable as a contempt; and the right so to punish is admitted, provided constitutional rights are not invaded, in the two cases upon that section, viz. Union Bank of Rochester v. Union Bank of Sandusky, 6 Ohio St., 254, 261, and White v. Gates, 42 Ohio St., 109, and is squarely held by Judge Seney in ex parte Concklin, 3 Circ. Dec., 40.

III. Even if the constitution and the nature of contempt proceedings do not forbid their applying to a case like this, yet if there is a remedy by execution according to the ordinary course, then this use of the contempt process is unnecessary, and not being an ordinary remedy, should not be resorted to. But is it so? The remedy by proceedings in aid would often be as adequate as the one here sought, and perhaps should displace it if possible; but proceedings in aid only obtain after execution is issued and returned unsatisfied, and depend therefore upon whether an execution is an available remedy. But a weekly execution for a small installment of alimony is in view of the time, trouble and advance costs required, no remedy at all. Suppose the alimony is in arrears one week, as it is sure to be, or many weeks, as it often is, the clerk, before issuing execution, would have to hear ex parte evidence, and make a finding as to the amount really then overdue, and thus is required to perform a judicial act, and that too on ex parte proof. Hence, I think, neither execution, nor consequently its sequel, proceedings in aid, are adequate.

Now for the court to call upon the debtor to explain his non-payment of final alimony, is not only no extraordinary stretch of jurisdiction, but is little else than an adaption of the proceedings in aid with a difference in the burden of proof, in that being charged with neglect of a duty owing, as already shown, to the public, the presumption of willfulness requires him to show an affirmative excuse.

The decisions had, for a number of years, been divided and wholly uncertain (other cases cited in text books are simply miscited and do not apply at all) thus: Wightman v. Wightman, 45 Ill., 167, and Andrews v. Andrews, 69 Ill., 609, holding the final allowance not to be a debt, and the failure to pay a contempt within the general chancery powers of courts-contra Coughlin v. Elhert, 39 Mo., 285, holding the final allowance to be a debt, unless for a specific sum in possession. Lyon v. Lyon, 21 Conn., 185, that a lump sum out of the husband's present estate is not a debt, but a specific proportion, to conceal which is a contempt. North v. North, 39 Mich., 67, that if execution can be awarded, no contempt process will lie.

But within the last year or two the drift has set unmistakably in favor of sustaining the process, viz.; Murray v. Murray, 84 Ala., 363, and Lewis v. Lewis, 80 Ga., 706, both emphasizing the public nature of the duty; Ex parte Cottrell, 59 Cal., 417, that a monthly allowance is not a debt, because it is a continuous allotment for support, and the Supreme Court of Vermont within a few months in Andrew v. Andrew, 20 Atl. Rep., 817, that it is within the inherent power of courts to treat willful non-payment of final alimony as a contempt. See also under peculiar statutes Chase v. Ingalls, 97 Mass., 524, and 80 N. Y., 156, (aff'g 18 Hun., 466).

I think, therefore, courts may cite the defendant to show cause why he should not be punished for contempt-not for mere non-payment, as under the bastardy laws above noticed-but for willful non-payment.

Porter & Rendigs, for plaintiff.

Blackburn, Broh & McCoy, for defendant.

Where a person is employed to make sales on commission the employer has a right to reject sales to persons he does not consider financially good, without being liable for commissions.

NICHOLS, J.

Defendant, was a manufacturer of C. C. ware at Wellsville, and the action was brought by piaintiff for commissions on sales made by him. for defendant under a contract.

It appears that certain orders were rejected in which defendant thought the buyer's financial standing not such as to warrant sales on time. Defendant testified that he took the rating from Dun's report, used also by the East Liverpool potters. The court held that the proprietor has a right to reject any he considers not good; that was the course of business, though the contract was silent on the question. The proof tends to show that all were rejected whose credit was somewhat shaken; though some witnesses testified to having sold to these parties since satisfactorily. It was the duty of defendant to fill the orders, provided a reasonable man would have thought it right -acting in good faith, and the court was unable to say that they were unreasonably rejected, though defendant may have been more cautious than others. The court did not think plaintiff is entitled to credit on these items.

Another point was as to orders objected because of the assortment; the class of ware called "Thirds" predominating. "Thirds" is a defective ware of which the proportion in C. C. ware is about ten per cent. of the kiln, inspection not being close in C. C.

The court refused to allow these items also, the preponderance of evidence showing that the custom among manufacturers is to fill orders for thirds, if on hand; if not, the order is thrown aside; that in class C. C. being an accumulation, not a stock, the orders are kept but a short time; if cast aside no advice is sent to the agent.

Plaintiff received judgment for somewhat less than defendant had offered to settle for.

MUNICIPAL CORPORATIONS.

[Columbiana Common Pleas, 1891.]

COPE V. WELLSVILLE (VIL.)

250

1. The statute providing when proceedings to enjoin the carrying out a contract may be instituted by a taxpayer, on behalf of the corporation, does not require written request to be first given to the solicitor, where there is no such officer.

2. Section 2702, Rev. Stat., requiring money to be provided before contract is entered into is not confined to any class of contracts, and hence applies to electric lighting.

Columbiana Common Pleas.

250

NICHOLS, J.

An action was brought to restrain the village from carrying out of a contract with the electric light company. Defendant filed a demurrer claiming that the action was not properly instituted. Section 1777 provides for the city solicitor instituting proceedings. Section 1778 provides when proceedings may be instituted by a taxpayer. Defendant urged that the plaintiff had not made the written request to the solicitor. It appeared that the village of Wellsville at that time had no solicitor and on that point Judge Nichols said: "The statute does not reach villages that have no solicitor-it is as if there were no statutory provision, and provision that request be made does not apply where there is no solicitor. Judge Cox, of the circuit court, had been cited on saying: "The remedy is purely statutory." The error in the case upon which Judge Cox was passing was that suit was brought in behalf of the taxpayer himself, not in behalf of the corporation.

As to the second point in the demurrer that the petition does not set forth a cause of action, Judge Nichols held that he did not know were any court gets authority for the statement that section 2702 applies to one class of contracts only-ordinary, or improvement, or extraordinary expenditures. The petition alleges that the village was entering upon contract for the expenditure of money without the certificate required by sec. 2702, showing that the money was on hand. This the village had no power to do.

Demurrer was not sustained.

250

FRAUDULENT CONVEYANCE.

[Columbiana Common Pleas, 1891.]

M. J. ESTERLY V. J. ESTERLY & Co.

The common pleas, on setting aside a conveyance as in fraud of creditors, can not sell and distribute, but must certify the judgment to the probate court, where an assignee can be appointed.

NICHOLS, J.

This was an action to quiet title to a homestead in Columbiana. The court set aside the conveyance as a clear case of deliberate attempt to defraud creditors. But the court refused to grant the order of sale, distribution, etc., saying: "This court can only set aside the conveyance and certify judgment to the probate court, where an assignee can be appointed under sec. 6344. This section makes a conveyance in fraud of creditors to operate to the benefit of all creditors." Up to 1859 we had no such statute, and many Supreme Court decisions were made under the old regime. Cited, 2 Cincinnati Court Reporter, 443; 21 Ohio St., 295; 42 Ohio Laws, 168.

250

Commercial Gazette Co. v. Dean.

GUARDIAN AND WARD-JUDGMENT-LIBEL.

250

[Superior Court of Cincinnati, General Term, January, 1891.]

COMMERCIAL GAZETTE Co. v EZRA V. Dean.

1. To give jurisdiction to the probate court over a minor, so as to authorize the appointment of a guardian for him, such minor must at the time of the appointment have an actual or a constructive residence within the county.

2. All questions necessarily arising in the case becomes res adjudicata by the final order of appointment, which binds all the world until set aside or reversed by a direct proceeding for that purpose. Schroyer v. Richmond, 16 Ohio St., 455.

3. But the jurisdiction of the court is a matter into which inquiry may be made even in collateral proceedings where the record contains no finding of fact expressly showing jurisdiction. Scobey v. Gano, 35 Ohio St., 550.

4. An inquiry into the truth or falsity of statements made to the court, is not a collateral attack upon the finding of the court, and a decree of court cannot estop a person from asserting that in procuring the decree a false statement was made, or perjury committed, that statement inducing a wrong finding.

MOORE, J.

The plaintiff, in error alleges that at Special Term, a verdict was rendered against it in favor of the defendant in error, in an action wherein the plaintiff at Special Term alleged in his petition, that prior to, March 18, 1888, plaintiff made application under oath for, and had been duly and legally appointed by the probate court of Lawrence county, O., guardian of the person and estate of Leslie McCune, aged about eleven years, minor child of Walter S. McCune, late of Lawrence county, O., deceased; that plaintiff had given bond, taken the statutory oath and entered upon the discharge of his duties as such guardian; that defendant, meaning the Commercial Gazette Company, on the eighteenth day of March, 1888, contriving and intending to injure and defame plaintiff, and to cause it to be believed that plaintiff had been guilty of perjury in his said application for letters of guardianship of said Leslie McCune; that said appointment was procured for the purpose of gaining a few hundred dollars belonging to said child; that plaintiff was an unfit person to be appointed, or to act as such guardian; that he was dishonest, that his family was degraded, and his home an unfit place for said child, and to defame, and to degrade him in other regards, published of and concerning plaintiff said application as guardian, of said Leslie McCune, and of and concerning him as such guardian the false, malicious and defamatory words following, to-wit:

"The sharpness of a woman's pen."

"Leslie McCune's mother writes to the guardian of her child."

Following these headlines is a copy of the letter referred to, which is set out in full in the petition. This letter is charged in the petition as having been published, and plaintiff alleges as its contents among other things the following, to-wit: "By employing the most miserable specimens of humanity you have possessed yourself of Leslie, having previously by infamously false statements procured an appointment as her guardian;" and the following innuendo is attached: Meaning thereby that plaintiff, in his application for appointment as guardian of said Leslie McCune, had sworn falsely and committed the crime of perjury."