Hamilton Circuit Court.

The facts in brief, pertinent to this question, are as follows;

Callahan and Company brought suit in the court of common pleas on three notes given to them by said ice company, and asked for judg. ment. In addition to the allegations about the note the petition contains a number of other allegations. It is alleged that the company is insolvent. That it is being mismanaged in a number of ways which are specified. That the corporation is not being managed in the interests of the stockholders. That it had mortgaged its property for the purpose of paying antecedent debts to its stockholders, and the court was asked to appoint a receiver to take control and manage the property.

The case came on for hearing and was submitted to the court, on February 3, 1897. On the 4th day of February, the company made an assignment for the benfit of creditors to Tilden R. French, who on said day filed the deed of assignment and took possession of the property.

On the following day the court of common pleas appointed Edmond K. Stallo receiver and on the 6th day of February, the court rendered a judgment, directing the said French who had theretofore been made a party in said action to turn the property over to said receiver and perpetually enjoined the said French from interfering with said receiver. From this judgment the case was brought here on appeal by said French.

The question presented is whether the assignee was rightfully in possession. It is claimed that he was not by reason of the fact that he could get no rights as to the property as a proceeding was pending at the time of the assignment for the appointment of a receiver of the property.

There is a conflict of authorities on the question here presented and owing to a press of business, we shall not enter upon any extended review of the authorities on the question, but will content ourselves with a brief statement of what we think the law is.

There can be no action for the appointment of a receiver. It cannot be the ultimate relief sought. It is merely an ancillary proceeding. It is exercised by a court to preserve to it property upon which its subsequent judgment may operate. It is in the nature of an attachment or execution before judgment.

It cannot be an issuable fact in an action and a party may obtain all the relief sought and yet be denied his prayer for a receiver. So it seems to us that those authorities which hold that where an action is brought in which a receiver is asked for, obtains such a right to the possession of the property as to preclude another court in a proper case from seizing the property, even before a receiver is appointed, is not founded in reason.

That a court once having got jurisdiction of the controversy may proceed to final adjudication without interruption by any other tribunal we do not controvert, but the distinction we think to be drawn is that the appointment of a receiver is not the subject of the controversy in that it is not a cause of action.

There was nothing in the action by Callahan and Company, which prevented the company from making an assignment for the benefit of creditors, and the court not having actuatly seized the property the assignees of the company had a perfect right to take possession of the property under the deed of assignment.

As to the other branch of the case as to whether the court erred in appointing a receiver.

State ex rel. v. Commissioners.

The plaintiffs petition contains but one cause of action in our judgment and that is upon the note for which a judgment is asked, and the answers and cross petitions do not add any additional course of action to it. The petition and the answers and cross petitions are quite lengthy, and contain a great many statements, about the insolvency of the company, and the misconduct of its present board of directors and its officers, both as to past and present and probable future action, but in all this mass of allegation we fail to discover any cause of action. It would be all very good for the appointment of a receiver, if there was a cause of action in which a receiver might be appointed. But if we are right in our judgment that plaintiffs cause of action is on a note for which he asks judgment we do not think it is a case for a receiver before judgment.

To appoint a receiver in an action at law for money, would be in effect granting an attachment, and we think this cannot be done.

If an attachment is desired, the statute provides in terms when this may be obtained—and it makes provision that covers plaintiff's right in this action, but this was not availed of.

It seems to us therefore, that the court was in error in appointing the receiver.

Robt. M. Nevins and G. W. Porter, for Plaintiffs.

Thomas McDougall, Harmon, Colston, Hoadly & Goldsmith and Burch & Johnson, for Defendant.

COSTS.

[Meigs Circuit Court, February Term, 1897.]

Cherington, Russell and Sibley, JJ.

*THE STATE EX REL THE BOARD OF COMMISSIONERS OF GALLIA COUNTY V. THE BOARD OF COMMISSIONERS OF MEIGS COUNTY.

1. RECOVERY OF COSTS IN Any Case Depends Upon STATUTORY PROVISION. At common law, costs were not recoverable, eo nomine, either in civil actions or criminal prosecutions; hence their recovery in any case depends wholly upon statutory provisions therefor.

2. LEGAL SIGNIFICATION of the Word "Costs."

The word "costs" has long had a legal signification, and in Ohio it covers only those expenditures in a suit which by law are taxable, and to be included in the judgment therein.

FEES OF PERSONS SUMMONED AS JURORS IN CRIMINAL Cases.

Under the law of this state, the fees of persons summoned as jurors in criminal cases, whether used on the trial or discharged, are not taxable as costs against a party convicted of an offense.

4. PAYMENT OF COSTS INCURRED BY CHANGE OF VENUE IN CRIMINAL CASES. This term, as used in section 7264 Revised Statutes which provides for a change of venue in criminal trials, and for the reimbursement of the county to which a case is thus sent, for "costs accruing" from such change, must be read as having its usual legal import. Therefore, L. being indicted in M. county for murder, the venue changed to G. county, where the case was tried, and he convicted o manslaughter; Held, that the latter county is not entitled to recover from the former, fees it was compelled to pay to persons summoned as jurors in the case, notwithstanding they were necessarily and properly called for such service.

* For decision of the court of common pleas, affirmed by this decision, see 6 S. & C. P. (17), 240.

SIBLEY, J.

Meigs Circuit Court.

This is a suit in mandamus, begun in the court of common pleas for Meigs county. The petition duly sets out a change of venue from Meigs to Gallia county, in the case of the State against one Lindsay, indicted for murder in the first degree, and that said cause was assigned to be tried in the Gallia common pleas, November 9, 1896. It then alleges the due issuance and service of a venire consisting of 36 names for a special jury in said case; also, of a special venire consisting of 15 names; the trial of said Lindsey by a jury impanelled from the jurors thus summoned, and his conviction of the offense of manslaughter. The payment under protest by Gallia county of the fees of the jurors so called, amounting to $380, is duly averred, as is its proper demand upon the commissioners of Meigs county for reimbursement, and their refusal to grant it. A mandamus to compel the issuance of a voucher for the amount paid as aforesaid, with interest, also is prayed.

To this petition a general demurrer was interposed and sustained; and leave to amend not being asked, the defendant had judgment thereon for its costs. To this action of the court below exceptions were taken, and upon the record so made the case is brought here by a petition in

error.

As thus presented, there is but a single feature of controversy. On the facts alleged, was the defendant legally obligated to repay the plaintiff for the expenditures necessarily incurred in getting a jury to try the case which, by a change of venue, was sent to its county for trial? The determination of this question finally will be found to turn upon the construction to be given the last clause of section 7264, Revised Statutes which is as follows: "The prosecuting attorney of the county in which the indictment was found shall take charge of and try the case; and the court on application may appoint one or more attorneys to assist him in the trial, and allow such compensation as it deems reasonable, and the costs accruing from a change of venue, including the compensation of the attorneys appointed to assist the prosecuting attorney, and the reasonable expenses of the prosecuting attorney incurred in consequence of such change of venue, shall be allowed and paid by the commissioners of the county in which such indictment is found."

It is manifest that if a recovery can be had under this statute, it must be by a reading which will make the term "costs" therein include the fees of jurors, such as here are in dispute. Hence on the import of this word as there used, and the law respecting the taxation of costs in criminal cases, the decision of this case evidently hinges.

Claim is not made that the fees of jurors here in question can be taxed as costs, against one convicted of a crime. The law at this point is embodied in section 6799 Revised Statutes, which provides that in all convictions the "court shall render judgment against the defendant for the costs of prosecution, including a jury fee of six dollars." That this excludes any other charge growing out of the expenses necessary in getting a jury for criminal trials, as costs of a case, is too clear for debate. The one question left, therefore, is as to what the word "costs" in section 7264 includes, as there used.

By the common law, no costs were awarded to either party, eo nomine. If the plaintiff failed to recover, he was amerced pro falso clamore. If he recovered judgment, the defendant was in misericordia for his unjust detention of the plaintiff's debt, and was not, therefore, punished with the expensa litis under that title. But this being considered a great hardship,

State ex rel. v. Commissioners.

the statute of Gloucester, 6 Ed. I., c. 1, was passed, which gave costs in ali cases when the plaintiff recovered damages. This was the origin of costs de incremento. Day v. Woodworth, 13 How., U. S., 372; Bell v. Bates, 3 Ohio, 380. The latter case declares that, "in this state costs, as a general rule, have ever been allowed to the party recovering judgment. The amount to be taxed, however, has been varied from time to time, the whole being regulated by statute." P. 381; Farrier v. Cairns, 5 Ohio, 47. The doctrine thus stated respecting civil cases is equally well established with regard to criminal prosecutions. As stated in a note to Noyes v. State, 32 Am. R.. 715, the United States supreme court, at its October term, 1879, held that "costs in criminal proceedings are a creature of statute and a court has no power to award them unless some statute has conferred it. By the common law the public pays no costs. In England the king does not, and the state stands in place of the king." U. S. ex rel. Phillips v. Gaines; Gim v. W. S. Dist., 57 Pa. St. 433,-98 Am. D., 242; Bennet v. Kroth, 37 Kas., 235-1 Am. St., 248.

So early as 1832 it was held by the supreme court on the circuit, that the "word costs has a legal signification," and also, that "it includes only those expenditures which are, by law taxable, and to be included in the judgment". McDonald v. Page, Wright's R. 121; Ela v. Knox, 46 N. H. 16,- 88 Am. D. 179; Bennet v. Kroth, 37 Kas. 235,-1 Am. St., 248.

We are not aware that, since their first enunciation the principles thus stated have been questioned by any court of our state. When this statute was enacted, therefore, the term "costs" had a settled legal meaning which, by force of a familiar rule of interpretation, will here be given to it, unless the context contains something requiring a different reading. Examination of that, however, only, serves to make clear the intention of the legislature to use the word, in this instance, in its usual legal sense. Expenditures that would not be covered by it, thus understood, are specially provided for, as, for example, the expenses of the prosecuting attorney. Consequently the maxim, expressio unius, est exclusio alterius, applies, and excludes jury fees, not taxable as costs.

Consideration, also of the consequences of a different interpretation conducts to the same conclusion. If the "costs" to which this statute refers are construed to include the fees of jurors that are not taxable against the defendant, what expense of the trial, paid by the county in which it was had, would be excluded? How, in that view, could reimbursement for the hire of a janitor, the pay of bailiffs, and the like, be denied? Yet it cannot be and is not claimed that such expenditures are within the scope of this legislation. No more, as we think, after full consideration, are those for which a recovery is sought in this action. Any hardship or seeming injustice in the operation of the statute under consideration, is for the legislature to remedy, as in other states has been done. Courts are empowered to declare and apply the law as it is, in cases before them, not to make or change it.

We find, then, no error apparent in this record, and the judgment of the common pleas is therefore affirmed.

R. M. Switzer, Pros. Attorney, for Plaintiff.
S. E. Hecox, Pros. Attorney, for Defendant.

7 Dec. 23

Hamilton Circuit Court.

CHARGE OF COURT.

[Hamilton Circuit Court, January Term, 1897.]

Cox, Smith and Swing, JJ.

THE P. C. C. AND ST. L. R. R. Co. v. PATRICK MCLAUGHLIN.

1. ACTION AGAINST A RAILROAD COMPANY FOR EMPLOYING A MINOR WITHOUT THE FATHER'S CONSENT.

In an action brought by the father of a minor son who had been employed as a brakeman by a railroad and who received an injury in the course of his employment, on the ground that the company had acted negligently in employing such minor without the consent of the father: Held, that it was error for the court to refuse to charge the jury in substance that if plaintiff did tell the company's agent not to employ his son as brakeman, without saying anything about his age except that he was a minor, and further that defendant did so employ him while a minor, he, plaintiff, cannot recover if defendant did believe that he was of age when they employed him, and also had good reason to believe that he had obtained his majority from his appearance, conduct and statements.

2. CHARGE AS TO WHETHER THE SON HAD REACHED HIS MAJORITY.

It was also error for the court to refuse to charge the jury, that, "In any aspect of the case, the defendant was not required as matter of law to inquire of plaintiff whether his son had reached his majority.”

3. THE COMPANY IS NOT DEEMED NEGLIGENT IN HIRING SUCH MINOR, When. If the officer of a railroad company, who happens to hire a minor, in good faith believed at the time of hiring and had reasonable ground to believe from the size, appearance, conduct and statements of such minor that he was then of full age, the company cannot be deemed to have been negligent in hiring such minor.

HEARD ON ERROR.

SMITH, J.

On the trial of this case the defendant company asked the court to charge the jury, that, "If you find that the plaintiff did tell Coneys, (who was the officer of the company who employed the son of the plaintiff) in 1891, not to employ his son as brakeman, without saying anything about his age, except that he was a minor, and further that defendant did so employ him while a minor, he, plaintiff, cannot recover, if the defendant did believe that he was of age when it employed him, and also had good reason to believe that he had attained his majority from his appearance, conduct and statements." The court refused to give this charge and the defendant excepted.

The action was brought by the plaintiff, the father of the minor son, who had been employed as a brakeman by the defendant, and who as such had received an injury in the course of his employment, on the ground that the company had acted negligently in employing a minor, without the consent of the father, to transact dangerous business.

There was evidence submitted which tended to show all of the facts assumed in the charge, viz.: That in 1891, the plaintiff had asked the company, to discharge from its employment as a brakeman his said son, as he was a minor, and made no other statements as to his age, and that in April. 1893, the defendant company again employed him as a brakeman, he being still a minor and about 20 years of age, he having for some time before engaged with said company as a freight handler, with