trust character by statute section tion creditor, yet it appears clear 5531, it could not be attached in his that neither section 5482 nor sechands: Dawson vs Holcomb, Sher- tion 5531 authorizes the Sheriff in iff, O., 275.

Since the enactment of section 5531, the Sheriff may be garnished: Locke vs Butler, 19 O. S., 587.

This money was received by the Sheriff from Renner, and has been retained by him, charged with such duty as trustee. under the law, by virtue of the execution.

that regard, and that he must be held to have received not only the $150, but also the $129.19, upon the execution herein, and that it is his official duty to pay it over under section 5396, to pay it over to Burke or upon his order.

The motion to amend the return herein is accordingly granted, and Having the duty to make the so much of the motion as calls for money on the execution, the Sher- amercement (the good faith of the iff, to receive it in any other capa- Sheriff being apparent and Burke city, wouid make breach of his duty not now suffering any loss) is overunder that writ, and if he cannot ruled.

make it on the execution, he must

not receive it.

Wm. Disney for plaintiff.

Jacob H. Bromwell and M. Rusk

SUPERIOR COURT OF CINCIN-
NATI-SPECIAL TERM.

Slander-Statute of Limitations Run From the
Time the alleged slander is uttered.

47515-Pearl vs Koch.

The law requires that the Sheriff in, contra. shall satisfy the writs of execution in the order as to priority in which they may be delivered to him, section 5382, and where he is unable to find any property on which to levy, he cannot agree with one claiming under a second execution, that if he will point out property to levy upon, the proceeds thereof shall be first applied to satisfy that writ, and if he do so, it is a breach of his trust duty: Weber vs King, (Ham. Dist. C..) 7 Bull., 148.

SYLLABUS.

that action for slander shall be commenced within one year.

Section 4983 of the Revised Statutes requires

In a court of law this statute must receive a strict construction, and no exception

can be introduced not authorized by the Legislat to run from the time the alleged slanderous words are spoken, and not from the time the

ure. The statute of limitations will commence

plaintiff first had knowledge of the fact that they

been spoken,

HUNT, J.

While it would probably aid in This is an action for slander. the administration of justice and be The amended petition alleges that within constitutional domain to so the defendant maliciously spoke modify by statute the relation and of and concerning the plaintiff, cerduty of the Sheriff, as that he might tain false and malicious representaapply money made by him on ex- tions concerning the character, inecution in favor of an execution tegrity and business qualifications creditor to satisfy in whole or part of the plaintiff. The slanderous on another execution then in his words were spoken, as the plaintiff hands against the property of such is informed and believes, in the person who therein is the execu- month of September, 1892, but were

not known to the plaintiff, nor did

the plaintiff hear of the alleged slan-actly this case, for there the issue derous language until within three depended upon the issue of another months of the filing of the petition.

The case is before the court on a demurrer to the amended petition on the ground that the cause is barred by the statute of limitations.

suit, and could not be assured by a jury until the final result of that suit was definitely known. Yet it held that the plaintiff should have instituted his action and was barred for not doing so. In Howell vs Young, 5 B. and C., 254, the same doctrine is affirmed, and the statute

Section 4979 of the Revised Statutes provides that civil actions other than for the recovery of real pro- held to run from the time of the perty can only be brought within injury, that being the cause of the the following periods, after the action, and not from the time of damages of discovery of the injury.

cause of the action accrues.

Section 4983, within one year. An action for libel, slander, assault, battery, malicious prosecution, or false imprisonment.

The question raised by the demurrer is whether the cause of action occurred at the time they were spoken, or whether the statute of limitations commenced to run only when the plaintiff first heard of the slander.

In Kerns vs Schoomaker, 4 O., it was expressly held by the court that the statute of limitations com

In Fee's Administrator, vs Fee, 100 R., 470 it was held that a fraudulent concealment by which the plaintiff has been delayed will not enlarge the time for bringing an ac

tion under the statute of limitations. The defendant plead that the action did not accrue within six years, and the defendant replied that the defendants, in the lifetime of the intestate, received the money without the knowledge of the intestate and until his death fraudulently

that the intestate did not know of

action. To this replication there

menced to run so soon as the inju- concealed the same from him, and rious act complained of is perpetrated, although the actual injury the receipt of the money, nor did is subsequent and could .ot imme- the plaintiff, as his administrator, know of it until within six years diately operate. This vas an acbefore the commencement of his tion on the case to recover damages of the defendant for negligence and omission of duty as Justice of the was a demurrer. Peace. The defendant pleaded the The court laid down the rule in statute of limitations. The plaint- this case that the cause of action aciff replied that his action was crued on the receipt of the money. brought within one year after his It is not sufficient in order to avoid rights were discerned. To this re- the effect of the statute to aver that ply there was a general demurrer, the party was ignorant of the fact and the demurrer was sustained. that he had a cause of action. The The court says that of Baltley vs plea of the statute goes to the exis

tence of the cause of action, and not law, the statute must necessarily reto knowledge of it. It must be re-ceive a strict construction. The membered that at the time this case court cannot introduce an exception was decided the statute contained to the statute which the Legislature no exception when facts were con- has not authorized. In Evans vs cealed from the party injured by Bichnell 6 Ves., 174, Lord Eldon, the fraud. In this case the plain- in noticing the position of some of tiff claimed that the statute did not the common law judges in Paisley run, as the facts were fraudulently vs Freeman, 3 T. R., 51, that if concealed. The court uses this there was relief in equity, that there language; "The most luminous and ought to be relief at law, observes best considered case to be found in that it was a proposition excessiveall the books is undoubtedly that or ly questionable, and that it could Troup vs Smith, 20 Johns, 53. It only have been made from advertwas there held in an action of as- ing to the constitution and doctrine sumpsit for negligence and unfaith- of a court of chancery. * * * fulness in the performance of work, The law of Ohio, like that of New that the plaintiff, in answer to a York, contains a saving in favor of plea of the statute, can not reply a infants, femme-coverts, non-residefraudulent concealment of the bad-nts and persons non compos, but it ness of the work, in consequence of does not make fraud one of the exwhich the plaintiff did not discover ceptions. The true inquiry, therethe fraud until within six years. fore, at law is when did the cause The distinction between courts of of action arise, and not when did chancery and courts of law was stated and unanswerably enforced.

"The reason why," continues the court, "a party may avail himself of

the fraud in the former courts is well explained by Lord Redesdale in 2 Sch. and Lef., 634. Aithough the statute, he says, does not in terms apply to suits in equity, it has there been adopted in anology to this rule of law. And the reason which he gives why, if the fraud has been concealed by the one party until it was discovered by the other, it shall not operate as a bar, is, that the statute ought not in conscience to run the conscience of the party being so affected that he ought not to be allowed to avail himself of the length of time (?) But, in a court of

knowledge of that fact come to the plaintiff, or by what circumstances was he prevented from obtaining the information. There are questions which may be properly addressed to a court of chancery, but of which a court of law is bound to have no knowledge."

We have thus seen that in an action at law under the act of February. 13, 1831 (3 Chase, 1768, and under the code before the amendments of April 13, 1867, 64 O. L., page 145), fraudulent concealment of the cause of action did not prevent the running of the statute. Kern vs Schoomaker, 40, 331; Fee vs Fee, 100, 469; Lathrop vs Snelbaker, 6 O. S., 276; Howe vs Minnick, 19 O. S., 462. A similar rul

wer.

ing has been made by the court of says: "That the view we have Exchequer in England. The as to the meaning of the provision perial Gas Light & Coke Company of the statute in question, is in acvs The London Gas Light Com cordance with the legislative underpany, 26 Eng. Law and Eq., 425 standing is apparent. * * * In Hunter as Gibbons, I Harl and the amended section, all of the Nor., 479. The last case was an ac-original section is preserved, and a tion of trespass or trespass on the new provision added, declaring case, but, the plaintiff was not al- that in an action for the wrongful lowed to reply as an equitable ans-taking of personal property, the Under section 85 of the com- cause of action shall not be deemed mon law proceedure act of 1854 to to have accrued until the discovery a plea of the statute of limitations, of the wrong doer. that the trespass was under ground, The decision of the court was to and had been fraudulently concealed the effect, that prior to the act of from the plaintiff till within the April 13. 1867. an action for the period of limitation before suit, Pol- wrongful taking by force of perlock, C. B., said, "if a man could sonal property was barred in four reply to a plea of the statute that his years; and that the fact that the debtor had prevented him from su- taking was under circumstances ing by the fraud. the equitable repli- constituting larceny, and that the cation would be as common as the defendant concealed his guilt from promises of payment which people the plaintiff, did not prevent the used to prove before Lord Tenter-running of the statute.

den's Act."

In Douglass vs Corry, 46 O. S., The Supreme Court in Howe vs 349, it was held that when an atMinnick, 190 S., 462, in giving con- torney collects money for his client. structions to the act of April 13, and uses no fraud or falsehood to 1867, says that the terms, "relief him in regard to its receipt. the on the ground of fraud," are de- statute of limitations begins to run rived from courts of equity, and from the time of its collection. In while we do not say that the clause that action the court sustained a of the statute in question, under demurrer to the petition on the the remedial system of the code is ground that the' aetion was barred to be confined to cases which were by the statute of limitations, when formerly of exclusive cognizance in it appeared on the face of the courts of equity, yet it can be ex- petition that the collection was tended to no case in which fraud is made by an attorney, for a client, not the ground or gist of the action. The gist of the action is not fraud, more than six years prior to the but the taking of property by force, commencement of the action and in respect to which, as constituting in the absence of any averrment of a cause of action, the intent with any misrepresentation or concealwhich the act is done is not mate- ment of its collection by the attorrial. ney. It is true that the decision in

The Supreme Court continuing

Fee's Administrator vs Fee, 10 O., was attached. Afterwards Mr. 470, was rendered at the December Beverstock presented a motion beTerm, 1841, but the reasoning of fore the Justice of the Peace for an the court is good so far as the case order discharging the attachment at bar is concerned. While there on the ground that the statements may have been amendments to the in the affidavit for the attachment act of April 13, 1867, now section were untrue, as well as on the 4982 of the Revised Statutes relat- ground that said affidavit was ining to the discovery of fraud, yet sufficient. The creditor sought and section 4983 declares in express obtained leave from the Justice to terms that an action for libel or file an amended affidavit for atslander shall be commenced in one tachment, and filed such amended year. In a court of law the statute affidavit. The motion coming on must receive a strict construction, for hearing still upon the applicaand an exception can not be intro- tion to discharge the attachment, duced which the Legislature has evidence was introduced both by not authorized. way of affidavit and by way of oral examination of witnesses under oath by both parties. The Justice upon the final hearing of that motion refused to discharge the attachment; a bill of exceptions showing the evidence was allowed, and a petition. in error being filed in the Court of Common Pleas; that court found, upon the facts shown in the bill of exceptions, that the conclusion of

The demurrer to the amended petition will be sustained and the petition dismissed.

Brown & Hoftheimer for the demurrer; Heintz contra.-Court In dex-Cin.

Sixth Judicial Circuit.

ATTACHMENT.

Proceedings Before a Justice. Facts Examined the Justice was erroneous; that the

by the Circuit Court.

attachment should have been dis

(Wood County Circuit Court-April Term 180+ charged, and ruled accordingiy.

Present: Hons. C. S. Bentley, P. J; Chas. II.
Scribner, James II. Day, J. J).

This action is brought here in

James S. Hoyman vs john V Bever- the Circuit Court to reverse the stock, et al. judgment of the Court of Common Pleas, and the same bill of exceptions is before us.

(Attachment is an extreme remedy and the at

taching creditor must bring his case within the

letter of the law to secure such remedy or take

the property of the debtor from his possession before judgment.

The Circuit Court has power and will look into a bill of exceptions in such a case for the purpose

It is held in a case found in the

of ascertaining whether the order of a Justice of First Ohio Circuit Court report on

the Peace was sustained by sufficient evidence or not.-ED. LEGAL NEWS).

BENTLEY, J.

On June 16, 1893, Mr. Hoyman began an action to obtain a personal judgment against the defendant, Mr. Beverstock, and obtained an attach ment upon which certain property

page 78 in the case of the U. Rolling Mill Co. vs Packard, et al., that an attachment is an extreme remedy and the attaching creditor must bring his case within the letter of the law to get "the strong arm of the court" to take the property of