
    Samuel M. Robinson et al. v. Mary E. Chadwick.
    1. "Whore, in the case of an appeal, the record certified to the appellate court showed that the appeal bond was filed within the time limited by law, and was approved by the clerk, whether, on motion to dismiss the appeal on that ground, it is competent to show, aliunde, that the bond, although received by the clerk, and by him filed within the time limited, was not, in fact, approved by him until after that time had elapsed, quaere? But, held, that, in such case, the appeal is not, on that ground, to be defeated without clear proof, not only that the bond was not approved, but that the appellant had knowledge of that fact.
    2. In an action by a married woman to establish, as against a third party, her title to property which she claimed in her own right, the plaintiff, under section 314 of the code, as amended by the act of February 16, 1866 (8. & S. 588), is a competent witness on her own behalf, hut is not competent to testify concerning communications between herself and husband, made during coverture-
    Error to the District Court of Cuyahoga county.
    The plaintiff in error, Miry E. Chadwick, alleging that she was the wife of Charles J. Chadwick, ami suing by her next friend, brought her actiou, in the C >urt of Common Pleas, against the plaintiffs in error, Samuel M. Robinson and Edith Chadwick, making also the Northern Transportation Company and her husband parties defendant. Sha alleged in her petition that she was the owner of forty shares of the capital stock of said company; that she was induced by the false and fraudulent representations of her husband to place the certificates of the shares held by her in-his hands, uuder a promise, on his part, that he would sell the stock, and return the proceeds to her; that, instead of selling the same, he transferred the certificates, without consideration, to Robinson;’ and she asked that Robinson be required to transfer the shares to her, and compelled to account to her for the dividends he had, in the meantime,, received.
    Robinson and Edith Chadwick answered, denying that the shares belonged to plaintiff, and alleging that they were issued to Charles J. Chadwick; that up to the time of the transfer to Robinson they belonged to him, and tbathe transferred them to Robinson to be held by him in trust for his daughter Edith.
    Upon the trial of the case in the Common Pleas the-petition of plaintiff below was dismissed, and upon her appeal the case came to the District Court. In that court defendants below moved to dismiss the appeal, alleging as cause: 1. That no appeal bond was filed and approved within the time limited by law; 2. That the bond actually given was defective by reason of the fact that the surety thereon was not a resident of the state. Upon the hearing' of this motion, the clerk of the Court of Common Pleas was sworn and examined as a witness, at the instance of plaintiffs in error.
    He testified that the term of the Common Pleas at which 'the judgment in this case was rendered closed July 20,1869;: that the appeal bond, upon which it appears he acted in certifying the case to the District Court, was filed August 10,1869, and by him on that day indorsed as filed; that he-refused, at that time, to approve the same, for the reason that the surety was not a resident of this state; that the-bond remained on file, without approval, until September 11, when he approved thereof, and signed his name as clerk to such approval. It appearing that the surety was not a resident of the state, an amended bond was, on leave of court, thereupon given, and the motion to dismiss the appeal was overruled; to which plaintiffs in error excepted.
    
      Upon tbe trial in the District Court, the petition having been, upon the motion of plaintiff below, dismissed as to defendant, Charles J. Chadwick, the plaintiff was called and sworn as a witness on her own behalf. The plaintiffs in error “objected to her examination as a witness, on the ground that she was the wife of Charles J. Chadwick, under whom,” they alleged, “she claimed title to the stock in controversy.” This objection was overruled, and plaintiffs in error excepted. She testified, without further objection, among other things, that she was the wife of Charles J. Chadwick; that the certificates of the stock in controversy were given to her by her husband, for her own use and benefit, in September, 1864; that they remained in her possession until August, 1865; and gave other testimony tending to sustain the allegations of her petition. Before the close of her case, she was again called as a witness, and, alluding to the testimony she had before given, as to the means used by Chadwick to again obtain possession of the certificates, she testified further: “ That on his return trip, the first after she gave him the certificate, she asked him if he had sold it. He said no; that the company was safe, or better than he had supposed, and he had not sold it. That the last trip, and near the last of November, 1865, he said to me, ‘ Do n’t say anything more about that, woman, and when the boat lays up, I will go to Cleveland and sell the stock, and then we will go to Idaho and live there.’ ” This testimony was objected to by the plaintiffs in error ; their objection was overruled, and they excepted.
    The trial in the District Court resulted in a judgment in favor of the plaintiff below. The defendants filed their motion for a new trial, which was overruled; to which ruling they excepted, and took a bill of exceptions setting out the testimony, and exhibiting the rulings of the court above referred to. All of which they assign for error.
    
      JEstep § Burke, for plaintiff in error :
    1. Section 722 (S. & C. 1169) authorizes a new bond only in cases where an appeal has been taken. No appeal is “ taken ” unless the bond be filed and approved within the thirty days. Hubble v. Renick, 1 Ohio St. 171; Oliver v. Gray, 4 Ohio, 175. No act of the clerk, done after the thirty days, could give effect to what, without that act, was fatally defective.
    2. Mrs. Chadwick was incompetent as a witness. Her husband retained an interest in the stock. He had parted with the legal title to Robinson as a provision for his child. He was legally bound to support the child, and could revoke the trust and resume control of the property. It was not Robinson’s property — he was a trustee. Not Edith’s— because, as a gift, it had not been transferred to her. Chadwick was a necessary party to the suit, and the dismissal of the suit, as to him, did not change the fact that she was testifying against her husband. Her testimony, as to the stock, consisted wholly of communications made by him during coverture, no third person being present.
    3. The evidence did not establish that Mrs. Chadwick was the owner of the stock ; at most it proved a gift unaccompanied by delivery of possession or of the means of obtaining it. Hence, it could not be enforced by action. Hunter v. Hunter, 19 Barb. 631; 2 Kent, 439; 2 Blackstone, 441; Haines v. Clark, 3 Comstock, 100. It was a gift or nothing, and the court will not convert a gift into a trust. Price v. Price, 8 Eng. Law and Eq. 271.
    
      Willey, Cary $ Terrell and W. C. Bunts, for defendant in ■error:
    I. As to the appeal, section 712 (S. & C. 1162) fixes no time for the approval of the bond, nor the manner in which it shall be evidenced. The indorsement of the clerk shows that the bond was filed within the thirty days, and he is estopped to deny that it was then approved. He had no right to file it unless he approved it; hence the filing was, ipso facto, an approval.
    No time for the approval being specified, an approval would be in season at any time before a motion to dismiss, and would relate back to the time of the filing.
    The approval made September 10th is conclusive evidence that the bond was sufficient when tendered. The appellant fulfilled his duty by tendering a sufficient bond. The neglect or omission of the clerk to indorse an approval can not, in such case, defeat the appeal. Hubble v. Renick’s Adm’r, 1 Ohio St. 171.
    The action of the District Court was authorized by section 722, civil code. S. & C. 1169.
    And if that action was not authorized by section 722, the latter clause of section 641 is sufficient warrant. Erwin et al. v. Bank of Bellefontaine, 6 Ohio St. 81.
    II. Mrs. Chadwick was a competent witness. The husband was not a party. The stock, if not the plaintiff’s, belonged to Robinson under an irrevocable trust. If she had been a feme sole she would be plaintiff. The suit pertained to her separate property.
    III. The evidence established her ownership of the stock. The manual transfer of the certificates make the transferee the “ representative ” (as described in the certificate) of the stockholder, entitling him, by the provision itself, to a transfer on the books on presenting the certificate for surrender, which transfer could be enforced in equity, if required. Moreover, as between husband and wife, good-will and affection constitute a good consideration. So likewise gifts as settlements upon the wife, or as a post-nuptial provision for the wife.
   Stone, J.

The motion to dismiss the appeal was properly overruled. The record certified by the clerk of the Common Pleas to the District Court, shows that the bond given by the plaintiff below to perfect her appeal was given within the time limited by law; that it was approved and filed by the clerk, and indorsed by him filed, with the date of filing. The date at which the entry of approval was made, does not, it is true, expressly appear; nor is it essential it should. If the law required such entry to be made as evidence of the fact of approval, nothing appearing in the record to the contrary, the strong, if not the conclusive presumption would be, that it was made when the bond was received and filed by the clerk. The statute, however, does not require the approval to be thus evidenced; and hence the time when such entry was made, or whether made at all or not, can have no controlling importance.

The clerk, in his testimony, evidently refers to the written entry as the fact of approval. That, according to his testimony, he did not make until after the time allowed by law for filing an acceptable bond had elapsed. He had, however, thirty days before, as he admits, and as the record shows, received and filed the bond, and had at the same time indorsed upon it the fact and the date of filing. These were official acts which the law required him to perform in case he approved the surety, but which, without such approval, were done wrongfully, and in violation of his duty. Treating them as properly done, they are carried into the record, and the case is thereupon certified to the District Court as regularly appealed.

If, in this condition of the record, it was competent to show, aliunde, the time when the bond was, in fact, approved, we think the District Court did not err in coming to the conclusion that it was filed and approved within the time limited by law ; and in that case.the authority of the court to permit a new bond to be filed, in case the one first filed was found to be defective, or the surety, for any reason, insufficient, is unquestioned.

2. The questions made in relation to the competency of Mrs. Chadwick as a witness, and to her competency to give the testimony she did, involve a construction of section 311 of the code, as amended by the act of February 16, 1866. 08 Ohio L. 17. So much of this section as pertains to the present inquiry reads as follows :

“ The following persons shall be incompetent to testify: 1. Persons who are of unsound mind at the time of their production for examination. 2. Children under ten years of age. ... 3. Husband and wife, for or against each other or concerning any communications made by one to the other during coverture, whether called as a witness while that relation subsists or afterward, except in actions where the wife, were she a feme sole, would be plaintiff or defendant, in which action the wife may testify, either the husband or wife may testify, but not both.”

This section contains two inhibitions with respect to persons holding the relation of husband and wife: 1. Neither can testify for or against the other. 2. Neither can testify concerning any communications made by one to the other during coverture. Thefirst goes to the competency of persons holding that relation, in certain cases, to be witnesses at all. The second does not preclude them from being witnesses in any case, but renders them incompetent to give testimony upon a particular subject, and with respect to that is of general application.

The exception which immediately follows, relates wholly to the competency of persons thus related to testify and not to the subject matter of their testimony. The effect of this exception, therefore, is to limit the first clause, which prohibits husband and wife from testifying for or against each other, and prevent it from operating in the class of cases therein specified; while it has no relation to, and does not affect the succeeding clause, which prohibits persons thus related from testifying concerning communications made by one to the other during coverture.

This exception, it should be noticed, was first introduced by the amendatory act of February 14, 1859, 56 Ohio Laws, 21; and was retained in the same connection in the act of February 16, 1866, above referred to. The section of the code thus amended, in its original form, precluded husband and wife from testifying in'any case for or against each other; while, at the same time, section 310 provided that no person should be disqualified as a witness in any civil action by reason of his interest in the same, as a party or otherwise.

In this condition of the law in most, if not all actions of the class referred to in the exception, while the opposite party conld be a witness, both the husband and wife were precluded from testifying. To remedy this evil, and place the parties to such actions upon more equal terms, was the evident object of the amendment.

The action in the court below was one of the character mentioned in the exception.

The plaintiff in that court claimed to be the owner of the shares of stock in controversy, and she was prosecuting her suit, by her next friend, to establish her right. The case was one where, had she been a feme sole, she would necessarily have sued alone. She was, therefore, a competent witness in the ease, and the objection taken to her examination as such was properly overruled. But she was not competent to testify to communications between herself and her husband; and nearly all of her testimony was of that character. Most of it was given without objection, hut the part given after she came upon the stand the second time, was objected to, and the objection was overruled. Ve think the testimony then given was material, and that in admitting it, against the objection of defendant below, the court erred; and for this cause the judgment must be reversed.

Judgment reversed, and cause remanded.  