Hamilton Common Pleas. 49 In the Roman law these contracts were good apart from special legislation; they were limited as to the amount, though with disapproval, by a constitution in Greek." Greenwood says, page 478, "that any contract to do anything in consideration of the promisee's consent to the marriage of any one, or of his efforts in procuring a marriage for the promisor or a third person, is void." He gives a large number of cases in both the eastern and western states sustaining this view. It is well that such is the law; otherwise, divorces would be even much more numerous than they now are. The court agreed with this view of the law, as claimed by the defendant's counsel, and sustained the demurrer, dismissing the case at plaintiff's costs, and no exception was taken to the decision by plaintiff. -Editorial. 50 NEGLIGENCE IN BOARDING A STREET CAR. 1. A person is guilty of contributory negligence in boarding a rapidly moving car, without signaling it to stop. 2. Such person is guilty of contributory negligence, after getting upon the running board of the car, in not entering at the door nearest him. 3. Such person is not a passenger while upon the running board, and is not entitled to the highest degree of care from the company, to avoid injuring him. The decedent, Maus, permitted a cable train to pass him on the street corner without signaling it to stop. He then ran after the train, and sprang upon the running board of the grip car, but for the moment made no attempt to enter the car. On account of the narrowness of the street, the up and down tracks are very near together at this point. A train was approaching on the up track and within view. As it came nearer, the decedent perceived he would be knocked off if he remained where he was, and he attempted to get inside, but evidently became confused, went to the wrong door, and was knocked off and killed before he could return to the proper door. When the gripmen discovered the decedent's peril they did all in their power to stop, but it was then too late. The jury returned a verdict for the administrator, fixing the damages for the wrongful death at $1,250. The court by Smith, J., held: "First-The decedent was guilty of contributory negligence in boarding a car moving at the rate of ten miles an hour, without signaling the car to stop, and with another car but a short distance away, approaching at the same speed on an adjoining track in an opposite direc tion. "Second-The decedent was guilty of contributory negligence after he came upon the running board, in not entering the door nearest to him which he could easily have entered, and which ordinary prudence would have suggested he should enter. "Third-By reason of the circumstances under which the decedent went upon the car, he was not a passenger within the legal sense of that term while upon the running board in the act of entering the car, and was not therefore entitled to the highest care from the company to avoid 50 Brooks, Adm'r, v. Mt. Auburn Cable Co. injuring him. The company, however, was compelled to so exercise ordinary care after the decedent came upon the running board to avoid injuring him. "Fourth-The evidence, I think, discloses beyond dispute that from the moment the gripmen of the two trains were aware that Maus was not going into the nearest door they did everything that ordinary prudence demanded they should do in order to stop the cars. "Fifth-Perhaps in the exercise of the highest care the cars should have been stopped the moment the decedent was known by the gripmen to be upon the running board, but in the exercise of ordinary prudence upon their part I think that until there was some evidence to the contrary they were justified in supposing that one of the age and actions of the decedent would exercise such discretion as a prudent person in his situation would exercise. Motion for new trial granted. Porter & Rendigs, for the administrator. Smith & Martin, for the motion. JURY TRIAL. [Superior Court of Cincinnati, Special Term, December, 1892.] *ROOT V. MEADER, TRUSTEE. 51 The right to demand a jury does not exist in suits against an assignee to enforce the allowance of a claim. HUNT, J. The right to demand a jury does not exist in a suit to enforce the allowance of a claim against the assignee of an insolvent debtor. This was an action to enforce the allowance of a claim by the assignee of an insolvent debtor corporation, under the provisions of sec. 6352 of the Rev. Stat. The statute provides that creditors shall present their claims within six months after the publication of the notice of such assignment unless further time is allowed by the court, and the assignee or trustee shall indorse his allowance or rejection thereon, and claimants whose claims are rejected shall be required to bring suit aginst the assignee or trustee to enforce such claim within thirty days after the same shall have been rejected, in which, if he recover, the judgment shall be against the assignee or trustee that he allow the same in settlement of his trust with or without the costs, as the court shall think right. The case came up on a motion for a trial by jury. In deciding the case the court say: "Section 5130 provides how issues are to be tried. Issues of law must be tried by the court, unless referred as regulated by the act, while issues of fact arising in actions for the recovery of money only, or of specific real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered. It can not well be claimed that this is an action for the recovery of money only. The judgment could not be enforced by execution. The right to participate in trust funds could be enforced by suits in equity, prior to the adoption of the *This judgment was affirmed by the Circuit Court; opinion 5 Circ. Dec., 61. Superior Court of Cincinnati, 51 code of civil procedure, and it has been held that the civil action of the code is a substitute for all such judicial proceedings as were previously known, either in an action at law or suits in equity. The court, in proceedings of this character, can adjudge only that this claimant is entitled to participate to the extent of his claim in the distribution of the trust estate. The principle has been laid down that an action to enforce the allowance of a claim against the assignee in insolvency, under the statute, is appealable, and that therefore the right to demand a jury did not exist. Gordon v. Walton, 2 Circ. Dec., 245. It cannot be doubted that suits in equity to establish the right to participate in trust funds were well known prior to the adoption of our code of civil procedure, and "the civil action of the code is a substitute for all such judicial proceedings as were previously known either as actions at law or equity." 32 Ohio St., 236. Nor is the contention of counsel for the motion tenable under the 46 Ohio St., p. 27, which is cited. It is true that the right to trial by jury does not depend upon the principles upon which relief is asked, but upon the nature and character of the relief sought. When the relief sought is a money judgment only, and all that is required to afford plaintiff a remedy, it is immaterial whether his right of action is based upon what were formerly regarded as legal principles. The remedy in such cases must be found in the civil action of the code, and in it trial by jury is given on all issues of fact when the relief sought is a money judgment only. The relief here sought is not a judgment for money only. If there be a recovery, it would be against the assignee that he allow the claim in settlement of his trust, with or without the costs, as the court shall think right. Sec. 6352, R. S. "It is the judgment of this court that a suit to enforce the allowance of a claim by the assignee of an insolvent debtor, is a civil action in which the right to demand a jury does not exist. Merchants' National Bank of Dayton v. Little, Assignee, 2 Circ. Dec., 496. [Columbiana Common Pleas, December 12, 1892.] *D. P. CRONin et al. v. POTTERS' Co-Operative Co. et al. 1. Where a corporation organizes under a perpetual charter a preliminary agreement to form a corporation and obtain a charter for ten years only is waived. 2. A by-law unanimously agreed to that the corporation shall be dissolved at the end of ten years, can be changed by the majority of the stockholders, and, hence, is a dead letter, if the majority refuse to carry it out. 8. A court of equity has not the power, in the absence of statutory authority, to dissolve or wind up a corporation at the suit of a stockholder. OPINION on demurrer to petition. *This case was dismissed in the Supreme Court, October 2, 1894, for failure to file a printed record, and motion to reinstate overruled, October 30, 1894. 52 NICHOLS, J. Cronin et al v. Potters' Co-Operative Co. This case is before the court on general demurrer to the petition. The plaintiffs are stockholders, owning a little less than one-third of the capital stock of the Potters' Co-operative Co., a corporation organized under the laws of Ohio, and they bring this action as such stockholders against the corporation and the rest of its stockholders, and ask that the defendants be enjoined from continuing the business of said corporation; that necessary proceedings be taken to wind up the same; that a receiver be appointed to take charge of the assets of the corporation, settle its business, pay its debts, distribute the net assets among the stockholders, and for all other proper relief. As the basis for the relief prayed for, it is alleged in substance, in the petition, that in August, 1872, the plaintiffs and certain other parties named, agreed in writing with each other, to organize a corporation to be called "The Potters' Co-operative Co.," to be located in East Liverpool, this county, for the purpose of engaging in the manufacture of earthenware; that it was agreed in said writing that the capital stock should be $50,000, divided into 500 shares; that said corporation should be formed for ten years only; that the several parties signing this writing should subscribe the several amounts specified therein to the capital stock, and should take and pay for the same at their par value in cash. It is further averred that after the making of this agreement, five of the subscribers of this writing, acting for all of them, and for the purpose of carrying out the agreement, on the twenty-eighth day of August, 1882, executed articles of incorporation, according to law, and such proceedings were had that they became duly incorporated under the laws of this state, by said name. But, it is averred, by oversight and inadvertence in drawing and executing the articles of incorporation, they failed to show that said corporation was only organized for said term of ten years, or to state any period for the continuance of the same. It is alleged that the corporation was duly organized-that all the parties who had signed the original writing took and paid for shares in accordance with the original agreement-that after organization, bylaws were adopted by the unanimous vote of all the stockholders; that one of the by-laws so adopted provided-in accordance with the terms of said original written agreement, that said corporation was organized for the period of ten years only-that this and other by-laws were written out in full in the minute book of the corporation, signed by all the stockholders; that the same has never been changed and is still in full force and effect. It is alleged that the corporation, after its organization, at once engaged in the business provided in the articles of incorporation, and ever since has been and still is engaged in the same; that the stock of the corporation is now owned by the plaintiffs and the individual defendants in certain amounts set forth-that all said parties were parties to said original written agreement or obtained the stock now held by them with full notice of all the before mentioned facts. That no dividends were declared or paid until January of the present year, when a dividend of ten per cent. was declared by the old board of directors, and this against the protest of the president, McNicol, notwithstanding a clear surplus of $15,000 in bank. That the individual defendants having obtained the majority of the capital stock, in January last, at the annual election elected as directors, two of the plaintiffs and five of the defendants, who are now the board of directors. That said board re-elected said defendant Mc Columbiana Common Pleas. 52 Nicol, president and treasurer, and another of said defendants as secretary. That McNicol had always been president and business manager. That said defendants now and for ten months past, openly repudiate the said written agreement and by-law providing that said corporation was only organized for the period of ten years, and insist that said corporation is unlimited in duration, and that, having a majority of stock, they will continue to carry on the business at their pleasure for any period they choose, notwithstanding the aforesaid limitation, and the protests of the plaintiffs. That McNicol openly proclaims that no further dividends will be declared, although the fact is and he admits that there is a large surplus, and the corporation is doing a good business. That said defendant directors are managing matters in their own interest, and especially in the interest of McNicol, whose salary they have recently doubled, making it $3,600 per year, which is charged to be unreasonable and exorbitant. That they utterly disregard the wishes and rights of the plaintiffs as stockholders. That the president and secretary, having custody of the book, mutilated it and tore from it the by-law before mentioned, to enable them to carry out their purpose or repudiate the limitation as to the term for which the corporation was organized, and to destroy the evidence of the same. That the period for which the corporation was formed has expired, and the plaintiffs have notified the defendants that they insist on said agreement and by-law being carried out and the business of said corporation being wound up and terminated, as therein provided; but the defendants wholly refuse to regard said agreement and by-law, or to comply with its said provisions. On the argument of this demurrer, it was said by counsel for plaintiffs, that this action is not brought under any statute to dissolve and wind up the corporation; that its aim is to compel the stockholders to comply with the contract made with each other, in writing, before its organization, by the contract of subscription, and after its organization by the bylaw adopted in conformity with the prior contract, to wind up the corporation at the end of ten years. It is a private suit by stockholders who were parties to the alleged contract, brought against the corporation and the rest of its stockholders, to enforce the agreement which all the stockholders are said to have entered into, as a condition to the subscription of the capital stock. And it was said that, as grounds for a statutory dissolution did not exist, and as plaintiffs own less than a majority of the stock, they are powerless to carry into effect said agreement, as against the defendant stockholders, who are in the majority and who control the corporation and refuse to perform the contract. So the plaintiffs claim they are without remedy, other than such relief as they may be entitled to, on the facts stated, under the general equity powers of the court. If the court correctly understood the points made by counsel for plaintiffs in his very able argument of the questions raised by this demurrer, he contends that a case is made, on the facts stated, which entitles them to the relief demanded, along either of two different lines, and on each line in either of two ways. The first line of action which, it is claimed, is authorized by law on the facts stated, is by means of a degree directly against the corporation itself, either, first, by dissolving it and winding up its affairs, or if a dissolution of the corporate entity is not within the general equity jurisdiction of the court, then by winding up its affairs as a dissolved corporation, |