the law of descent, takes as heir. And such we think is the legal meaning of the word. Brower v. Hunt, 18 Ohio St. 311.

We readily concur in the proposition laid down in Jones v. Lloyd, supra, that the term heirs, when used in a will, is flexible, and should be so construed as to give effect to the manifest intention of the testator as ascertained by a due consideration of all the provisions of the will. But this proposition in no wise conflicts with the well established rule of construction, that technical words used in a will, should have their strict technical meaning unless it appears, that the testator used them in some other and secondary sense.

By the will in Jones' case, a husband had made provision for the support of his widow, and in lieu of dower, and provided further, that if the widow should assert her right to dower and distribution under the statute, then certain property, which under the provision for her support would have vested in the widow, should be "shared equally among my heirs;" plainly indicating that the person or persons meant by " my heirs," were other than the widow. The widow in that case would have been the heir of the husband, had he died intestate; but the court found, from the context, that the husband in his will had not used the word heirs in its technical sense. and so excluded the widow from the provision of the will made in favor of the heirs of the testator. An equally noticeable instance in which the word heirs has been used in a secondary sense, is found in the 4th proposition in the syllabus of that case, in which the words "my heirs " are construed to mean "my next of kin, or heirs according to the statute of distribution, exclusive of my wife;" plainly showing, by reference to the statute of distribution of personal property, that the word is used in the sense of distributees. In this sense, the widow in this case, would have succeeded as heir to all the personal property if her husband had died intestate and childless, or upon the death of the child, if the husband had died intestate; but in no event could the brother and sisters have succeeded to the personalty under the statute of distribution, save only in case both wife and child had died before the testator,-an event clearly not contemplated.

But there is nothing in this will, or the circumstances surrounding the testator at the time of making the will, that can justify a departure from the ordinary and legal meaning of the word. It is said, indeed, that the phrase, "heirs at law" is used in the plural number, while if the widow alone was intended, it should have been used in the singular. This is not enough. The term used refers to a class, and the class cannot be deprived of

the bounty merely because the number of persons composing the class does not correspond with the number of the noun used in describing it; and as to this property, it is quite clear, that if the testator had died intestate, a condition necessary to the relation of ancestor and heir, his brother and sisters would not have been classified among his heirs.

We think the unmistakable intention of the testator was, that the property, in case of the death of his daughter Mary, without issue her surviving, should take the identical course under the will it would have taken under the statute if he had died childless and intestate. The time when the "heirs at law were to take under the will, was at the death of Mary without issue. The number of persons who might, at that time, stand in the relation of heirs to him in respect to this property, was unknown, to him; hence the number of the noun used in designating the class, does not indicate the testator's intention as to the particular person or persons who should take under this clause in the will. If his widow was then living, she was the beneficiary intended. If she was not living at that time, his brother and sisters were the persons intended; and if they or their legal representatives were not living, his next of kin.

Judgment affirmed.

[To appear in 38 Ohio St.]

Ohio.-Court of Common Pleas,

(CUYAHOGA COUNTY.)

LIMITATIONS OF ACTIONS AGAINST STOCKHOLDERS.
BALDWIN v. Atwater Coal Co. September, 1882.
The opinion states the case.
HAMILTON. J.

The petition in this case is one in equity, brought against the company and its stockholders by these plaintiffs, who obtained a judgment which is still subsisting, the object of the petition being to subject unpaid stock subscriptions and also the individual liability of the stockholders to the payment of he plaintiffs' claim and for an adjustment of amounts due by the company to its several creditors, and for a judgment or decree determining the amount of assets on hand, ordering a distribution of them, subjecting the stockholders' liability upon unpaid subscrip tions and the individual liability to the pay ment of the claims of the plaintiffs and al other creditors who may choose to come in and take advantage of this proceeding, the suit being brought by the plaintiffs themselves as well as all other creditors. One of the defenses as to the second cause of action in this case, which is to embrace the statu

tory liability of the stockholders. is that the administrators of one Hewett who were made parties to this petition in terms, are within the jurisdiction of this court, and have not been served with process, and therefore there is a defect of parties.

Another defense is that the debt sued upon in this case and represented by the plaintiff is upon a judgment that was rendered against the company on the 29th of October, 1873, and he avers that the company at that date and ever since have been wholly insolvent, and that, therefore, the liability to this suit the stockholders' liability to this suit-arose more than six years ago, and it is therefore barred by the statute of limitations.

A demurrer is filed to these defenses by the plaintiffs and also another demurrer by another party who seems to be a creditor, and it is upon the hearing of these demurrers that the case comes before the court.

As to the defense set up in the answer of Ingersoll-that the administrators of Hewett are within the county and they have not been served with process and therefore there is a defect of parties-I think it constitutes no defense to this action; they are made parties and they simply have not yet been served. The demurrer then in that respect will be sustained to that defense.

But the main issue and the main contention before the court is as to whether the statute of limitation has run against this claim; and that question is to be determined mainly, I apprehend, upon the fact of whether or not the obligation of these stockholders which they have come under in reference to their individual liability, is a contract obligation, or a statutory obligation, and if a contract obligation, whether it be one in writing. If it be in writing, then their liability, it is conceded, runs, under our statute, for fifteen years. If it be an implied contract or a statutory liability, then the claim is barred in six years unless there exists something else in this case to take it out of that statute; or, in other words, unless it be true that the statute does not begin to run upon the mere insolvency of the company, but begins to run when that insolvency is ascertained.

The constitutional provision in reference to dues from corporations is as follows: "Dues from corporations shall be secured by such individual liability of the stockholders and other means as may be prescribed by law, but in all such cases each stockholder shall be liable over and above the stock by him or her owned and any amount unpaid thereon, to a further sum at least equal în amount to such stock.'

There is a provision also of the statute, which was passed for the purpose of carrying

out that provision of the Constitution, which reads in substance: "That all stockholders of any railroad, turnpike or plank road, magnetic telegraph or bridge company, or any joint stock company organized under the provisions of this act, shall be deemed and held liable to an amount equal to their stock subscribed in addition to said stock, for the purpose of securing the creditors of such company." It has been suggested that it is possible that it is an obligation that is created by the force of the Constitution itself and therefore not an obligation created by the statute in any sense, and therefore does not fall within the statutory provision in reference to limitations that provide that in all cases the statute shall run against all acts or all causes of action created by the statute, but that it is created by the Constitution itself and falls under the tenth subdivision in reference to the statute of limitations, which provides for a limitation of ten years in reference to all other cases not herein before provided for, being an action for relief. In reference to that subject I am inclined to the opinion, from a reference to all the authorities that have been cited, and they have been very numerous, that the obligation does not grow out of the mere passage or adoption of this clause of the Constitution, nor of the

mere passage of the statute upon the subject, but does arise by force of a contract obligation of some sort; that it is neither in a strict sense a statutory obligation created by the statute nor is it created by the provision of the Constitution itself.

Some question has been made as to whether such a provision in the Constitution is selfexecuting in its nature and could be executed at all or be of any force or validity without the statute; but it is unnecessary to discuss that question in the view that I take of the matter, for in either event it seems to me to be under the uniform decisions on the subject; that it is not the mere granting of the charter the adoption of the Constitution or the enactment of the statute that creates the liability, but that some further act must be done by the stockholder in some way giving his assent and coming under the provision of the law; that his contract thus made was either an implied or an expressed one-that it is, in short, a contract obligation.

The most serious question, as it seems to me, in this whole case is, whether or not this is a contract in writing; it is said, with very much force, that when the statute prescribes that in order to organize the company under the statute there must be a subscription, it provides the method how it shall be done. That stock books shall be opened and subscriptions shall be taken, and that subscription being in writing, our Supreme Court has

said: That the stockholder's liability upon his subscription, so far as it relates to the payment of amounts thus contracted to be paid, covered by the stock, is in writing. Such was the holding in the 20th Ohio State, in the case of Warner against Callender et al; they held that the stock subscription is a contract in writing and that the statute of limitation runs against it fifteen years after the demand and the call has been made for a payment of an assessment upon the stock and a failure when due, by the terms of the call, to pay. It commences to run then, so that it may be that for some portion of the stock subscription, as stock, that the statute of limitations may not run out for many years; it may be a subsisting obligation for twenty, thirty, forty or fifty years even; that it depends on the assessment being made by the directors and the call being made and the refusal to pay; then the statute begins to run against these calls.

It is further said that it is entirely immaterial what may be the form of this subscription. A party writing his name, simply taking upon a subscription book a certain amount of stock, need not write out his contract in full; and in the 15th Ohio State our Supreme Court has signified by an expression of opinion there that the form of the subscription is immaterial and it is immaterial whether it is upon the stock book or not. Indeed they go so far as to say that subscriptions to stock in a stockbook are not at all essential, and not the only means by which companies can issue their stock; I think, therefore, even if all the terms of the contract are not written out over the subscription that the statute steps in and supplies the terms of the contract, to wit: that they shall pay precisely as the statute designates payment, and that shall be implied and added to the stipulations which they have put in writing and becomes a part of the contract, just as fully as though it had been written out in full just what the statute prescribes shall be done; and from this it is also argued that you cannot stop with mere subscriptions and payments in reference to the stock, but that it goes further and should go further and put into that contract other statements provided by statute, to wit: The statement that they will become liable to pay their individual liability as provided by statute and just as fully and completely as though it had been therein written; and there is a good deal of force in that suggestion. In the 11th Ohio State a case known as the boiler case, where certain boilers were ordered to be manufactured for use in a manufacturing estabment, it was held: That the parties making it for a particular use substantially guaranteed and warranted that the boiler should be suitable for the purposes designed, and that any

latent defects even were covered by that warranty, though they may have acted in perfect good faith, and that such being the law of the case, there was a contract, as it is said, a stipulation of the contract added to the express terms of the contract by the law.

It is also stated by McIlvaine, justice, in the 23 Ohio St., in the case of Alexander against Jacoby, where a question arose as to the construction of a bond, who might sue upon it in attachment: That in the construction of that bond we were to take as well the terms of the bond as the law under which it was authorized, and that it was to be construed the same as though the statute itself was incorporated in the bond and was of equal binding force and validity as though it had been incorporated in the bond.

It is also said, in Parsons on Contracts, page 26 or 27 perhaps, that it is entirely unneces sary, when parties are making a contract, to put in what the law itself implies; that it will be presumed that they contracted in reference to the law, and even that if they put it in, that it is entirely unnecessary; that they would have put it in had their attention been called to it, but they must be conclusively presumed to have made their contract with reference to it. The contract is therefore to be interpreted as though it were in and stated'; but all of these questions arise out of the construction that is to be placed upon a bond rather than under any statute of limitations; and they arise in cases where a contract is sought to be made between two parties and it is to supply any deficiency in a contract as therein expressed as between these parties. Here is a case where the stockholders are making a contract with the company in reference to the parties that are then contracting. They must contract and are bound to contract with reference to the statute governing that contract, but it is said that they also in this case are making a contract with the creditors, the future creditors of the corporation. Now is this true? The obligations of the stockholders in reference to their individual liability, grow out of their assent to the coming under the operation of the statute, manifested in some way. To that extent it may be manifested by subscribing in the book. It may be manifested by taking stock without subscribing in the book. It may be manifested in any other way that indicates by their acts an assent to the terms of the statute. But if they manifest their assent, do they also make a contract with other parties than whom they are contracting with? In every case that I have been able to find in the books, there has been some sort of a writing. It is not at all necessary to the validity of stock-or the organization of stock compan

ies, as a general proposition at least independent of the statute that they be compelled to sign a stock-book; but if they manifest their assent to it, in any way become members of the corporation and accept the benefits of it, they are held bound by the provisions of the statute governing it. Now, shall it be said that because they have manifested their as sent in writing, that that makes them assume all the liabilities in writing to other parties than whom they contracted with? In other words, does the written assent become a contract with outside parties? It seems to me to be extending the doctrine further than I have been able to find any case extending it, and it seems to me that the liability grows up out of the assent, and so far as the books indicate upon the subject in any of the authorities that I have seen, it is entirely immaterial how that assent is made; that it cannot be said in my judgment to be a written contract because in the course of the formation and for the purpose of forming the stock company, they have subscribed a stock book. It was not the intention to make a contract with anybody else: they were not professedly there for any such purpose.

Then again: When a creditor has a simple debt, without any writing about it, one way or other, he must sue the company within five years or he cannot recover. Are the stockholders bound absolutely to fifteen years and the company released by a failure to sue? Is it to be interpreted in that way? Are they bound substantially as sureties for the company after the company is released? But if it is an absolute contract and if a contract in writing at the time they sign it, then they are bound unconditionally. Again, it would seem that the obligation of all stockholders must be of the same binding force and effect; yet a transferee of stock never signs anything; he therefore has made no contract in writing; and it is difficult to see how he has in any way come under the obligation of a written contract as such. I have therefore reached the conclusion, and I have done so with a good deal of hesitation, that this contract is not a contract between the creditors and stockholders in writing; that it is immaterial how that assent is expressed, whether they happen to express it by letter to somebody in writing, or by their dealings in any other way; anything that expresses their assent, holds them and holds them by the implied implications of the law, and such seems to be the language in every one of the authorities to which I have been cited. The first, of Comstock, holds that language exactly; that it is an implied obligation. Justice Swayne, in the 92d U. S.,holds the same language-that it is an implied obligation; and so in the Su

preme Court of California they hold the same language that it is an implied obligation; and in Field on Corporations, perhaps section 74 of his work, he says the question directly came before the Supreme Court of California, and they held there that the statute of limitations ran in favor of the stockholders after six years upon a similar contract obligation, and that it run in the same manner as it did against the corporation. Such was the holding in the instance of Comstock-that the statute of limitations ran there in six years; and such was the holding in the 3d of Allen, p.42, also, and in the 92d U. S., where the same doctrine was held.

If I am correct in that, the only question remaining is: When the statute of limitations commences to run in favor of stockholders upon their individual liability, does it commence to run when the company becomes insolvent, or does it commence to run when it is known to be insolvent? The dootrine in the 17th Ohio St. is that stockholders may be sued whenever the company becomes insolvent or whenever the debt cannot be collected against the company by the ordinary processes of law. But it is said: How can we ascertain when that happens? A corporation is private in its character; no one has access to its books; no one knows anything about the facts; how can you ascertain or how can you take knowledge of that fact? and shall they, in their close corporation, be permitted to say that the statute of limitations is running against somebody without their knowledge of the fact that they have any cause of action against the stockholders? On the other hand, it is said: You have six years in which to collect your debt against the company; you have six years in which to ascertain the fact whether you can get it or not by the ordinary processes of law. If you are negligent during that time and do not take any steps to ascertain that fact, you are responsible and no one else; that the liability commences whenever the company is insolv ent in fact.

I believe it to be a principle of the statute of limitations that mere ignorance of the fact that there is a liability, does not prevent the statute of limitations running, unless there is some exception to that effect. Parsons on Contracts, page 372, holds this language: "The statute begins to run whenever the plaintiff, the creditor, could bring his action and not when he knew he could. Thus, it is said, when one promises to pay when able, as soon as he is able, the statute runs although the creditor did not know it." And the note appended to that, cites a great many authorities, and among the rest, the 4th Ohio; and the doctrine is simply and fully stated, it

seems to me, in the case in the 4th Ohio; that it does not depend upon the knowledge of the party one way or other, unless there is some exception to the statute running in the statute itself; and see 13th Alten, page 42. I am, therefore, of the opinion that the supreme court, having determined the fact that the statute of limitations commences to run whether the party knows it or not, and commences to run upon insolvency, that the statute in this case has run, and the demurrer will be overruled.

A. H. Weed and Judge W. W. Boynton, for plaintiffs.

Judge S. E. Williamson, John Hutchins and C. C. Baldwin, for defendants.

Michigan Supreme Court.

NEWSPAPER LIBEL,

MINER V. POST & TRIBUNE Co. October 31, 1882. In an action for newspaper libel the judge instructed the jury that a portion of the article complained of was privileged, but permitted them to consider it with the rest in deciding from the general spirit of the article whether that part which was left to their consideration, was malicious. Held error.

It is matter of privilege to call public attention to the act of a judicial officer in ordering a person into confinement without a charge against him, or in requiring bail in an amount which, considering the prisoner's probable means and position in life, he is unable to pay; these are violations of the most importtant guaranties of constitutional freedom, and are matters of public concern.

COOLEY, J.

The plaintiff is, and was in June, 1881, police justice of the city of Detroit. The defendant is publisher of a daily newspaper in that city. June 23; 1881, defendant published in its paper, concerning the plaintiff, the following article:

"More of Miner. A few days since a complaint was made before Justice Miner, against a Chinaman. Without the assent of the complainant, Miner inserted the name of a second Chinaman, against whom no complaint was made, and whom no one charged with being connected with the offense.

"At the examination afterwards held, Miner. admitted that he inserted the second name on his own motion, and though the evidence of the complainant completely exonerated the second man, and it was shown that he was not present at the commission of the alleged offense, Miner bound him over for trial under heavy bonds. Judge Swift, on the facts coming to his knowledge, released the second man.

"There is no accounting for Miner's action. In this case it was an inexcusable outrage. If he would enforce the law upon the multitude of offenders brought before him, if he would discharge his duty on the complaints

for violating the liquor laws and gambling laws, people would be more lenient in their judgment of him. But he does not and apparently will not. Instead of that he turns upon a helpless Chinaman, who has no political influence to sustain him and much prejudice to combat. It was a contemptible act and a cowardly act. And instead of satisfying the people who are demanding that he shall enforce the laws, it will excite their disgust and invite them to ask why it is that Justice Miner prosecutes and oppresses the weak and permits the strong to go unwhipt of justice."

For this publication suit was brought by plaintiff in the Superior Court of Detroit. The defendant justified the publication as

true.

When the case went to trial the defendant contended that the article related to matters of public interest and importance, and was for that reason privileged The judge of the superior court seems to have assented to this view, so far as the part of the article relating to the liquor law and the law against gambling was concerned, and he ruled that that portion of the article must not be considered by the jury as a ground for recovery. As to the part which relates to the two Chinamen a different conclusion was announced. "That," he said, "is a specific charge. It accuses the plaintiff of direct moral malfeasance, so to speak; accused him of a direct act of oppression and a direct outrage; accused him of an act nearly amounting to a crime. It does not purport to be a report of the trial. It in no sense purports to give the proceedings of it; but it gives such conclusions as are drawn by whoever made the report, either from hearing the trial or from information given. Under these circumstances it appears to me that the defendant stands upon a very different basis from an accusation based upon a report. A general expression of an opinion, that in a certain direction a public officer does not do his duty, is undoubtedly privileged. Comments made upon a report would be privileged, provided the report itself justified those comments. My impression is that there is no report here. There is the opinion of whoever wrote the article, gleaned either from what he heard or what he saw. That is all there is of it. If it was a report, and from the report the paper had come to the conclusion that Miner had acted improperly, I think the paper would have been privileged in saying so. But instead of making a report, there is simply an assertion that the result of everything was in substance that Justice Miner had been guilty of what every person must acknowledge to be a very great outrage, to wit: oppressing a per