Stark County Appeals. such demand he tenders payment in money or duly accepted order, within three days after such demand, for the excess of his personal earnings above 90 per cent thereof." It would seem that this latter provision of said section was intended to relieve the defendant debtor from the consequences of a contested suit by the creditor. As will be seen said Sec. 10273 provides that not more than one demand by the same creditor shall be made at closer periods than thirty days. Grouping said sections together, then, we find that after written demand is made within the time stated, and in the absence of payment being made or tendered, or an accepted order given for the excess of the debtor's personal earnings above 90 per cent thereof, suit may be brought therefor and a recovery had, together with the further sum of two dollars as costs, provided that no more than one such demand by the same creditor shall be made at closer periods than thirty days. Here we have the question made whether one can make voluntary payments under a demand made for necessaries, in the absence of suit, and thus absolve himself from complying with compulsory process issued by another creditor upon a claim for necessaries furnished to the same defendant debtor while such voluntary payments are being made, at intervals of thirty days, or in other words, can such voluntary payments so made defeat a creditor from enforcing payment of his claim for necessaries furnished in an action commenced by the latter while such voluntary payments are being made? Construing Secs. 10271 and 10272 together it appears that the provisions of said sections were intended to apply to and become effective in cases where action is brought to reach the personal earnings of a debtor for necessaries furnished, and not to cases where voluntary payments are made. Voluntary payments may be made but not so as to defeat the rights of an attaching creditor under the statute, for if it were otherwise the provisions of the statute and what seems to have been the purpose of this legislation would be rendered ineffective and nugatory. It follows that the judgment of the court of common pleas will be affirmed. Varsey v. Varsey. APPEAL-DIVORCE. [Lorain (8th) Court of Appeals, March 20, 1916.] Meals, Grant and Carpenter, JJ. BENJAMIN F. VARSEY V. LILLIAN VARSEY. Order in Divorce Proceedings Affecting Custody of Children Held Appealable. The custody of children is inherently equitable in its nature and within the term "Cases in Chancery" in Art. 4. Sec. 6 of the constitution establishing the court of appeals; hence, notwithstanding Sec. 12002 G. C. denies the right of appeal in divorce with certain exceptions, in which custody of children is not excepted, appeal does lie to an order in a divorce proceeding affecting the custody of minor children. APPEAL. C. G. Washburn, for plaintiff. David Perris and Wm. G. Stuber, for defendant. CARPENTER, J. The defendant has appealed this case to this court so far as the decree of the court of common pleas relates to the custody of Russell Albert Varsey, minor child of plaintiff and defendant. The question before this court arises out of the motion of the plaintiff to dismiss the appeal, for the reason that this court has no jurisdiction to entertain the same, by reason of its not being appealable under the provision of Art. 4, Sec. 6, of the constitution establishing the court of appeals. It is provided therein that courts of appeals have appellate Jurisdiction in the trial of chancery cases. It will be observed that Sec. 12002 G. C. provides that no appeal will be allowed from a judgment or order of the common pleas court in a divorce case, except from an order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony, or where an injunction has been granted under Sec. 12001. 25 O. C. C. Vol. 36 Lorain County Appeals. Section 8033 provides: "Upon hearing the testimony of either or both of such parents, the court shall decide which one of them shall have the care, custody and control of such offspring." Section 8035 provides: "An appeal to a higher court may be had upon appellant giving bond In the case of Bower v. Bower, 90 Ohio St., 172 [106 N. E. Rep. 969], the syllabus reads as follows: "An appeal will lie from a judgment or order of a court for the care, custody and maintenance of minor children regardless of whether such order is made in an action for divorce, divorce and alimony or alimony only, or in proceedings under the provisions of Sec. 8032 G. C. Notwithstanding the court in the foregoing case hases the right of appeal upon statutory grounds, yet it is somewhat suggestive of the legal characterism pertaining to the custody of children by the courts. In the case of Rogers v. Rogers, 51 Ohio St. 1 [36 N. E. Rep. 310], Judge Spear in his opinion speaks of the authority of a court over the matter of custody of children in divorce proceedings as probably being inherent but it is given by the divorce statute. And the court in the memorandum opinion in the Bowers case speaks of jurisdiction in such matters as being "incident to the suit." If this right adhered to the court by reason of being an inherent right, is it not quite suggestive that the statute was a mere codification of that right? It does not follow that where a class of cases is within the jurisdiction of chancery, that jurisdiction in chancery is taken away because courts of law subsequently give a remedy. Cram v. Green, 6 Ohio 429. Accordingly, our Supreme Court has held that notwithstanding partition proceedings are regulated by statute in Ohio, yet they are inherently chancery cases, having been so classed by the courts of England, and are therefore appealable to the courts of appeals. In the case of Sullivan v. Thomas, 3 S. C. 531, the court in its syllabus says: "By the term, cases in chancery, as used in Art. 4, Sec. 4 Varsey v. Varsey. of the constitution, declaring the jurisdiction of the Supreme Court, is meant such cases as were cognizable by the courts of equity of the state existing at the time of the adoption of the constitution." In the opinion the court says: "It must be premised that the jurisdiction of this court, so far as it was ascertained and fixed by the constitution is unaffected by the provision of the code of procedure or any other statutory law. Again, the terms employed to mark out that jurisdiction must be taken in the sense in which they were understood at the time the constitution was adopted. Thus, for instance, the term 'cases in chancery' at the time, meant cases of a class of which the court of chancery could entertain jurisdiction although since that time the court of chancery has been abolished and its jurisdiction conferred upon the court of common pleas. Yet, what was intended to be described as 'cases in chancery' must be determined now, not with reference to the present statute of jurisdiction and forms of procedure, but by the inquiry whether any given case could have been regarded, at the adoption of the constitution, as a 'case of chancery.' When the nature of the right in controversy, or of the relief sought in any case is such that, prior to the code, it would have been appropriately pursued in the court of chancery, it will be regarded as within the expression 'cases of chancery.' The circumstance that forms of proceedings, as it regards law and equity, are assimulated under the code, does not affect the jurisdiction of the court as established under the constitution; but we look to the substantial character of the controversy before us for the purpose of ascertaining the extent of the powers in relation to such case, rather than to the nature of the court from which the case comes or the technical mould in which the case is cast." That divorce and alimony cases were not recognizable in the court of chancery in England, is verified by the following excerpt from the opinion in the case of DeWitt v. DeWitt, 67 Ohio St. 340, 344 [66 N. E. Rep. 136]: "We gather from a somewhat extended examination of Lorain County Appeals. authorities that, in so far as we derive any common law rules respecting divorce and alimony from the mother country, we inherited those administered in the ecclesiastical courts, for, outside of parliament, no other tribunal had or assumed cognizance of such controversies. Such power did not, in England, belong to a court of equity. The ecclesiastical court was not, and never had been, a court of equity. It was a canonical court, and never deviated from the canon law. 'The court for divorce and matrimonial causes owes its jurisdictionin part original and in part derived from ecclesiastical courts-to the act of parliament by which it was created, and the several amending acts by which that jurisdiction has been in various ways altered and amplified.' It may be fairly claimed, from the foregoing, that the courts of Ohio have not general equity jurisdiction in suits for alimony, but that the jurisdiction is such, and such only, as is given by the stat It will be noticed that in the entire opinion no mention is made regarding the custody of children, and it is quite suggestive that the legislature deemed it proper to enact a separate statute, as it were, to avoid confusion in the administration of justice. Having demonstrated by authority that divorce and alimony were not matters in chancery, it yet remains to determine whether the custody of children was in fact recognizable in courts of chancery. That that was so we find in 9 Eng. & Am. Enc. Law 866: "The ecclesiastical courts had no power to determine the custody of the children, as at common law the court of chancery has jurisdiction in such cases. Where jurisdiction to grant divorce is conferred upon a common-law court, such court will have only such powers as to the custody of the children as are conferred by the divorce statute. But where the jurisdiction is conferred upon a chancery court it will have full power to fix the custody of the children, aside from the special provisions of the statute. "On granting a divorce it is the duty of the court to protect the interest of the state by providing for the custody and |