support? There are many duties in life which in the absence of a contract the law will not enforce specifically nor will it give compensation in damages for the breach thereof. Had the plaintiff sought redress within his church, his rights would have been determined by the laws of the church. When, however, he seeks the aid of the civil courts he is to be treated precisely as any other citizen and his rights determined by the same standard. He has brought an action of assumpsit, and to sustain it he must show a contract express or implied. Has he shown such contract? If so, when, where, and with whom was it made, and what were its precise terms? It certainly was not made with Bishop Tuigg, for the reason that when he was consecrated bishop in 1876, the plaintiff was without a congregation and had been absent for .several years. Was it made with Bishop Domenec, the predecessor of the defendant in his office of Bishop of Pittsburgh? There is no such evidence, and there is no such finding by the court below. All that can be and was claimed is that the church is bound by its own organic law to provide a decent support for its priests. That it is the duty of a religious denomination to provide a support for its teachers is a fact that is recognized with a few exceptions all over christendom. It is said, however, to be especially binding upon the Catholic church for the reasons that its priests are debarred by its canons, and by their ordinaticn vows from engaging in any secular employment, and that from this vow not even the bishop can absolve them. However binding such a duty may be in foro conscientiæ, when it comes to its enforcement in a court of law the plaintiff must show a contract. With all the ingenuity and learning that have been exhibited in this case no contract relation has been established. The duty of the church to support its priests bears some analogy to the obligation recognized by several religious denominations to support their own poor. Yet it has never been supposed that this duty involved a contract relation which would sustain an action at law for its non-performance.

plaintiff can lay down his office and its duties at pleasure. For doing so he could only be visited with ecclesiastical censure, and such punishment, if any, as the canons of the church present. The bishop would have no remedy in the court of law. It will thus be seen that there is no mutuality.

If we assume a contract relation between the bishop and the plaintiff it must be either that of principal and agent or hirer and hired. This involves the right of either party to end the contract. As before said, the plaintiff may end it at pleasure and the bishop could have no remedy in damages. The plaintiff can have no higher right.

The duty of the church to support its priests must have some qualification even in foro conscientiæ. The right to support may depend upon the manner in which the priest performs his official duties, and the nature of his walk and conversation in life. He may in many ways render himself unfit for his holy calling and yet avoid a conviction for crime, or perhaps removal from office. The usefulness of a priest may be destroyed, and yet he may truly say I have violated no law of the land or of the church. There must be a discretion left somewhere to decide such questions, and we see no authority competent to do so but the bishop. To throw such a question into the jury box in a common law proceeding would be as novel as it would be unsafe. The bishop exercised his discretion in this instance, and the court below set his judgment aside. upon the finding of facts by the learned judge the bishop was fully justified. If a priest by reason of his equivocal conduct becomes unfitted to perform his priestly functions it is difficult to see by what rule of ecclesiastical or civil law he is entitled to a salary or support.

Yet

The plaintiff alleges that the law of his church creates a duty from which springs an implied contract on the part of the bishop to support him so long as he remained a priest of the Diocese, and was not convicted of any offense, or suspended from his priestly functions. Is this position sound? The obvious test is to reverse the position and treat this as a suit by the bishop to recover damages from the plaintiff for a failure to perform his priestly functions or any duty prescribed by his ordination vows. No one will contend that such a suit could be maintained. The

subject it was said: "The profession of a priest or minister of any denomination is held subject to its laws, the priest acquired it by compact, and is not exempt from the proper discipline and authority of his church; he has no property in his profession that shields him from the consequences of his broken vows and compacts:" Stack v. O'Hara, O'Hara, 28 Pittsburgh Legal Journal 65. To the same effect is Cheney v. Protestant Episcopal Bishop of Illinois, 58 Ill. Rep. 509. The recent case of Rose v. Vertin, 46 Mich. 457, closely resembles the one in hand. It was there held that the priest could not recover his salary from the bishop; that the latter was merely his superior officer in the church, clothed with the appointing power, and that the exercise of such power in assigning the priest a congregation did not make the bishop fiable. It was said by Graves, J.: "The main facts in the case are undisputed and the only question is concerning their effect, and in my opinion they show distinctly that the relation between Bishop Morack and the priest was never that of hirer and hired in any sense, implying an obligation on the bishop to pay the priest. The bishop was the priest's superior, and according to the established order of things in the economy of church government regulating the degrees of subordination and the methods of administration, it was the province of the bishop to designate the place for the priest to exercise his functions and to prescribe under certain limitations the rules of his guidance and control."

We are of opinion that there was no such contract relation between these parties as will sustain this action. This renders any further discussion of the case unnecessary. The judgment is reversed.

Ohio Supreme Court.

NEIL v. NEIL. January 16, 1883.

1. JURISDICTION OF COURT IN DIVORCE CASE IS CONTINUING WITH RESPECT TO CUSTODY Of Children.2. FINAL ORDER-WHAT IS IN SUCH CASES.-3. DISCRETION OF SUPREME COURT UPON REVERSAL OF DISTRICT COURT JUDGMENT.

1. The jurisdiction exercised in a divorce suit with respect to the custody of children is continuing: the order in that respect may be modified at any time during the minority of the children, when their interests may require such modification; and the reservation of such power in the original order is not essential.

2. An order dismissing a petition in a proceeding to modify a final order with respect to the custody of children in a divorce suit, may be reviewed on error. 3. Where the district court dismisses a proceeding in error on the erroneous ground that the judgment complained of is not reviewable, the supreme court is vested with discretion, on reversal of such erroneous order, to remand the cause to the district court for

further proceedings, or render such judgment as that court should have rendered.

Error to the District Court of Franklin County.

In 1870, a divorce with custody of children was awarded to the defendant in error, in the Court of Common Pleas of Franklin County, and in 1879, the plaintiff in error filed in that court a petition for a modification of the decree so far as it relates to the children. An answer, a reply thereto, and a demurrer to the reply were filed, and the court finding the petition and reply to be insufficient, sustained the demurrer to the reply and dismissed the petition. The district court dismissed a petition in error to reverse the order, on the ground that it was not reviewable, and this petition in error was filed to obtain a reversal of the order of the district court.

G. L. Converse and C. N. Olds for plaintiff in error.

ror.

Harrison, Olds & Marsh for defendant in er

OKEY, C. J.

1. The jurisdiction exercised in divorce cases with respect to children, is continuing, and the power to modify the order in that respect may be exercised, during the minority of the children, whenever their welfare requires such modification. A reservation in the decree of authority to so modify is not essential to the exercise of such power; nor has the statute of limitations any application to such a case. Hoffman v. Hoffman, 15 Ohio St. 427; and see 2 Bishop's M. & D. § 530.

2. In dismissing the proceeding in error for want of jurisdiction, the district court erred. Formerly such orders were not reviewable on error (Tappan v. Tappan, 6 Ohio St. 64), but the rule has been changed. King v. King, ante, 370; and see Cox v. Cox, 19 Ohio St. 502. Of course, this power does not extend to an order granting a divorce, for according to the settled policy in this state, such orders are not reviewable. Rev. Stats. § 5706; Parish v. Parish, 9 Ohio St. 534; and see 2 Bishop's M. & D. § 260.

3. We are vested with discretion, on reversing the order of dismissal, to render such judgment as the district court should have rendered, or remand the cause to that court for further proceedings. Rev. Stats. § 6726, note; 29 Ohio St. 326. Where the evidence is set forth and a reversal is sought, upon the ground that it does not support the verdict or judgment, and it appears from the record that the district court, for any cause, failed to determine that question, we have, in case of reversal on other grounds, uniformly remanded the cause to the district court for further proceedings, without determining as to the weight

or effect of such evidence. In view of the peculiar nature of this proceeding and the fact that the district court has pronounced no judgment as to the sufficiency of the plead ings, we will remand the cause to the district court, without expressing any opinion as to the sufficiency of the grounds of reversal, except as here indicated. Judgment reversed.

[To appear in 38 Ohio St.]

THE STATE EX. REL. v. CASEY. Jan. 16, 1883. 1. CORPORATION-BY WHAT LAW GOVERNED.-2. ToBACCO INSPECTOR MAY BE APPOINTED BY CORPORATION.

1. The Association of the Tobacco Trade of Cincinnati, a corporation formed under the act of April 3, 1866 (S. & S. 182), since the repeal of said act, is, under 3232 of the Revised Statutes, required to be governed by the provisions of Title 2 of said statutes.

2. Under Title 2, 3827, the association is authorized to appoint an inspector of leaf tobacco, whose duties are to be prescribed by the by-laws and rules of the association; and the performance of his duties by such inspector, at the instance of members of the association, is not a usurpation of the duties required of the inspectors appointed under Ch. 6 Title 5, of the Revised Statutes, as amended April 20, 1881. 78 O. L. 242. The tobacco which the inspectors last named are required to inspect, is limited to such tobacco as they may be "called on to view, weigh and inspect." Sec. 4340.

Error to the District Court of Hamilton County.

The original action was in quo warranto in the District Court of Hamilton County. The petition contains two causes of action, the first alleging that defendant in error, Casey, on the first day of January, 1882, and thereafter continuously, intruded into, and unlawfully held and exercised, the office of Inspector of Leaf Tobacco in the city of Cincinnati; the second charging that said Casey, on the first day of January, 1882, and continuously thereafter, did intrude into and unlawfully usurp, hold and exercise an office in a corporation incorporated by the authority of the State of Ohio, to-wit: the office of Inspector of "The Association of the Tobacco Trade of Cincinnati," not being a citizen or resident of the state of Ohio, and said corporation not having the lawful power or authority to appoint or elect said Casey to said office.

Defendant in error filed his answer, admitting that he was not a citizen of the state of Ohio, denying that he intruded himself into the office of Inspector of Leaf Tobacco in the city of Cincinnati, or that he exercised the functions of said office, or that he ever claimed to hold the same; admitting that he was the duly appointed inspector of leaf tobacco of the Association of the Tobacco Trade of Cincinnati, a private corporation, averring that said association had full and

complete power and authority to appoint him

as such.

The evidence introduced upon the trial of the cause, upon the issues thus made up, proved that there were six tobacco commission warehouses in the city of Cincinnati, connected with each of which was an inspector of leaf tobacco, duly appointed in accordance with the provisions of the statute, (78 O. L. 243), but that all the tobacco sold at auction at such warehouses was inspected at the request of the proprietors thereof by said defendant as inspector of the Association of the Tobacco Trade of Cincinnati and in accordance with the rules of said association.

It was further shown that defendant in error never claimed, nor held himself out to be, an inspector of leaf tobacco, save as an appointee of said association.

On this state of facts the judgment of the district court was for the defendant in error, and the present petition in error is prosecuted to reverse that judgment.

G. Barnbach, for relator.

Ramsey & Matthews, and Hoadly, Johnston & Colston, for respondent. WHITE, J.

The question in this case is, whether the corporation known as "The Association of the Tobacco Trade of Cincinnati," is authorized to appoint as one of its corporate officers an inspector of leaf tobacco. The defendant, Casey, was appointed to such office, and claims the right to exercise its functions under the rules and regulations of the corporation. The association became incorporated under the act of April 3, 1866, "To authorize the incorporation of Boards of Trade and Chambers of Commerce." S, & S. 182. The objects of the association were, "to secure the better regulation of the tobacco trade of Cincinnati, to promote its interest and influence, and to collect and disseminate information concerning it." Section eight of the act under which the association was incorporated provides that the board of directors shall control, manage and conduct the financial and business concerns of the association, and "appoint such inspectors, guagers, weighers, measurers and other officers and employes as the by-laws may require, or as they may deem expedient and necessary."

By section seventy-four hundred and thirtyseven of the Revised Statutes, paragraph five hundred, the act of April 3, 1866, was repealed; and by section thirty-two hundred and thirtytwo, the corporation now in question was to be thereafter governed and controlled by the provisions of title two of the Revised Statutes.

Section thirty-eight hundred and twenty

seven is found in title two, and provides that "The officers of an incorporated board of trade or chamber of commerce shall consist of president, two vice-presidents, first and second, and ten directors, all of whom shall be members of the association, and be in business at, or residents of the city or town where it is established;" * * * "and all other officers, agents, or committees deemed necessary for the interests of the association, shall be appointed in such manner, and with such powers as may be provided by the bylaws and rules of the association."

. Section thirty-eight hundred and twentynine provides that such corporations may require from their officers bonds to secure the faithful discharge of their duties. Section thirty-eight hundred and thirty is as follows: "Every inspector, gauger, weigher or measurer appointed by such association shall be recognized as a legally appointed officer, for the duties pertaining to his position, in the city and county wherein the association is located, and shall be subject to all the provisions and penalties of the laws relating to such officers; and the certificate of such appointee as to his official acts shall be evidence, and binding upon the persons intrusted."

Under this legislation the association is authorized to appoint an inspector to perform such duties as may promote the objects for which the association was incorporated.

It is, however, claimed on behalf of the relator, that the right to inspect tobacco in the several warehouses of the members of the association, is vested exclusively in the inspectors appointed under chapter six, title five of the Revised Statutes, as amended April 20, 1881. 78 O. L. 242. We do not think so. The tobacco which such inspectors are required to inspect is limited to such tobacco as they may be called on to view, weigh and inspect, at such warehouse, or any other public warehouse." Section 4340.

The sale of tobacco at the warehouse or elsewhere, unlike the sale of spirituous liquors, is not forbidden until subjected to inspection by the statutory inspector. With the consent of the seller and the buyer, tobacco may be sold without any inspection, or upon the inspection of any person they may agree upon.

The defendant does not claim the right to inspect tobacco except at the instance of the warehouseman having it in charge; and, in the absence of any showing to the contrary, the warehouseman must be presumed to represent the owner from whom he received the tobacco for sale.

We find no error in the judgment of the district court.

It is claimed on behalf of the defendant that the mode of appointing inspectors pre

scribed in Sec. 4334, (73 O. L. 242), is in conflict with the constitution; but the view we take of the case renders the consideration of that question unnecessary. Judgment affirmed.

[To appear in 38 Ohio St.]

MARTIN v. LAPHAM. January, 16, 1883.

WILLS LEGACY-WHEN LEGATEE ENTITLED TO PRINCIPAL OF FUND WITHOUT SECURITY.

In one clause of a will testator bequeathed to M. L., a married woman living with her husband, a specified sum of money. In a subsequent clause he provided that if M. L. should die, leaving no child of her own, then the money should be equally divided. among the the testator's living children, the issue of his own body. Upon final settlement of the estate the executor had sufficient funds to pay all the legacies. In an action brought by the children of testator to enjoin the payment by the executor to M. L. of the amount of her legacy, for which she had recovered judgment against him, unless she should give security for the re-payment thereof to the then living children of testator in the event that she should die leaving no child of her own.

Held: 1. That under the will M. L. is entitled to the possession of the legacy, without giving security for the re-payment thereof, in the absence of facts showing that she is about to waste or squander the legacy. 2. Such inference will not arise from the mere fact that, she and her husband are residents of another state and are pecuniarily irresponsible. (Lapham v. Martin, 33 Ohio St. 99, followed and approved.)

Error to the District Court of Marion county.

Robert Martin died in 1868, leaving a will, which contained the following bequest, to-wit:

"I give and bequeath to Mary L. Lapham, wife of Orson Lapham and daughter of Lavina Williams, formerly Lavina Green, the sum of six hundred dollars ($600.00). The said Mary L. Lapham was raised in my family, has always been dutiful and kind to me, and I hereby recognize her as a grand daughter.

*

"It is my will that if Mary L. Lapham shall die leaving no child of her own, then and in that case, the sum of six hundred dollars ($600.00) bequeathed to her herein, shall be equally divided between my living children, the issue of my own body.

All debts and other claims against the estate having been paid in full, Mary L. Lapham, brought suit against the executor, to recover her legacy. It was claimed by the defendant in that action that the bequest was not absolute, but conditional, and that the condition had not transpired; that the plaintiff was not entitled to receive the principal sum of $600, but only the interest thereon during her life. It was finally decided in that cause by the Supreme Court Commission, that, as the bequest over was upon certain contingencies which might never happen, viz: the death of Mary L. Lapham leaving no child of her own, with living children of the testator surving her, the children of the testator, if they

took at all, did so by way of executory bequest, and not as legatees in remainder; that Mary took her legacy absolutely and was entitled to the payment asked, and that no estate of any kind vested in the children, or testator until the happening of the contingencies mentioned; and, lastly, that, if the limitation over was valid, the children, and not the executor, in the absence of a trust reposed in him, were the proper parties to a suit to protect their contingent interest, if any necessity for such action should arise. Lapham v. Martin, 33 Ohio St. 99.

Thereupon the present action was begun by the children against Mary Lapham, in which they sought to enjoin the payment by the executor to her of the judgment recovered in the former suit, among other things for the reason that Mrs. Lapham and her husband were insolvent and unable to respond for the re-payment of the legacy in case of the happening of the contingencies named, and that they were residents of the state of Illinois. They prayed that she be required to give security for the re-payment of the legacy, and, in default thereof, that a trustee be appointed to hold, invest and manage the said sum, and to pay her the income only during life.

A demurrer to the petition was sustained, and the plaintiffs not asking to plead further, judgment was rendered for the defendant, and, upon proceedings in error in the district court, was affirmed. This latter judgement is now before us for review.

W. Z. Davis, for plaintiff in error.
H. T. Van Fleet, for defendant in error.
LONGWORTH, J.

v.

With the decision of the commission in the former case of Lapham v. Martin, we are entirely satisfied. It has long been settled law in Ohio that limitations over of personal property, by way of executory bequest, are valid and have like effect and operation, as in the case of executory devises of realty, and since the decision in Niles v. Gray, 12 Ohio St. 320, followed and affirmed in Piatt Sinton, 37 Ohio St. 353, it cannot be doubted but that a devise or legacy, with such limitations as are contained in the will before us, operates to pass to the devisee or legatee an absolute estate in fee, determinable only upon the happening of the contingencies provided for. It results from this, that Mrs. Lapham owns her legacy of $600, and is entitled to the possession of it. To give her the interst only upon that sum, or the sum itself only upon conditions not made by the testator, would be to refuse effect to his expressed intention in the will.

These plaintiffs have no vested interest whatever in this legacy, nor is it by any

means certain that they ever will acquire such interest; possibly there may occur a contingency under which they may become entitled to the legacy, in the future, but such contingency is, after all, only a possibility imposed upon a possibility.

We do not deny that equity will protect this right, shadowy though it be, and will not permit the legatee to be guilty of waste, or other acts which might operate to defraud the plaintiffs. But no such thing is alleged against her here. against her here. It surely does not follow, from the fact, that she is insolvent, and a resident of another state, that, therefore, she is about to waste, or squander her legacy,

Perhaps in the case of a man, or unmarried woman, the fact of insolvency might lead to the inference, that a receipt of such a legacy, would be but a gift of it to creditors; but here the charge of insolvency, against Mrs. Lapham, can mean nothing more than that she is pecuniarily irresponsible. Insolvency properly means inability to pay debts. It would be absurd to charge this against

a

married woman, who cannot contract debts which she is unable to pay; seeing that it is only to the extent that she owns separate property, that claims against her can be of any validity.

I may be permitted to suggest that possibly the true construction of this will, is that Mrs. Lapham should take her legacy absolutely, unless in the event that she should die childless before the time of final distribution in which case only, should the children of testator receive it. I confess that I should myself be inclined to regard this construction as extremely plausible, were it not for the language of Lapham v. Martin, above cited. The view, however, which we have all taken of this case, renders the discusssion of this unnecessary. Judgement affirmed..

[To appear in 38 Ohio St.]

The plantiff held the notes of B, secured by a mortgage on his land. B conveyed the land to a married woman, by deed of general warranty, in consideration of a sum of money paid, and of her accepting a deed in which "said grantee assumes part of the purchase money," said mortgage debt. This was the only separate property she possessed. She conveyed the land to F, and he conveyed to defendants by like deeds, each containing a stipulation in favor of their grantors that the grantees assumed and agreed to pay the mortgage debt as part of the purchase money. Upon foreclosure and sale, the proceeds were insufficient to pay the mortgage debt. Held That, aside from the disability of coverture,