State v. Board of Ed. elect a treasurer, and in the face of specific statutory provision made by Rev. Stat. 3968 (Lan. 6440), 97 O. L. 351, allowing the board of education to provide a depository by public letting for "all moneys coming into the hands of the treasurer of the board," I think the conclusion is irresistible that this sinking fund must remain with the treasurer of the board of education until paid out upon the order of its president and clerk to the person entitled thereto upon requisition therefor made by said commission, stating the amount and purpose, thereof in each case. It may be said that this is not the way it is done by the city sinking fund commission, and this may be true, but the statute in that case is much different from the one here under consideration. Why it should be is not a judicial question. It is the duty of the courts in construing statutes to ascertain as near as possible from the statute in question and those having some relation to it, what is the legislative intent and to declare accordingly. This I have tried to do in this case. It must therefore follow from what I have said that the demurrer should be sustained. ATTORNEY AND CLIENT-CHATTEL MORTGAGES. 1. ATTORNEY CANNOT BIND CLIENT BY CONTRACT UNLESS SPECIFICALLY AUTHORIZED. The relation of attorney and client is an agency limited to the action or question in controversy, and there is ordinarily no power implied to do anything more than relates to the proper conduct of the suit; the attorney cannot, therefore, unless specifically authorized, bind his client by contract, nor enter into agreements with reference to his client's property. 2. EXECUTION WILL NOT ISSUE FOR BALANCE DUE UNTIL SALE ORDERED IN FORECLOSURE PROCEEDINGS EXHAUSTS THE PROPERTY, A decree of foreclosure having been entered finding the amount due and ordering property so'd in satisfaction of a debt, an execution thereon will have no legal validity until such property has been exhausted by public sale, and a new action has been brought for the balance due. 3. PRESUMPTION THAT MORTGAGED CHATTELS SATISFY MORTGAGE DEBT, IF CREDITOR CONVERTS THEM PENDING DECREE OF SALE. It will be presumed that property covered by a chattel mortgage was of sufficient value to satisfy the mortgage debt, if, pending a decree for its sale, a judgment creditor takes actual possession of the same and destroys its identity. [Syllabus approved by the court.] INJUNCTION. B. C. Fox and J. T. Harrison, for plaintiff. Superior Court of Cincinnati. Validity of the levy: Garrett v. Hanshue, 53 Ohio St. 482 [42 N. E. Rep. 256; 35 L. R. A. 321]; Anderson v. Fowler, 8 Ark. 388; Camden v. Hays, 37 W. Va. 475 [16 S. E. Rep. 561]; Harris v. Evans, 81 Ill. 419; McCabe v. Goodwine, 65 Ind. 288; Harmon v. State, 82 Ind. 197; Kenrick v. Huff, 71 Mo. 570; Dawson, In re, 20 Abb. N. C. (N. Y.) 188. W. G. Kirkbride, for defendant. HOSEA, J. Suit is to enjoin the sheriff of Hamilton county from levying an execution for a balance of $238 upon a judgment rendered by the common pleas court of Hancock county, Ohio. It appears that upon suit filed in that court October 27, 1899, by Joseph A. Kirkbride v. J. T. Harrison, W. L. Perkins and the Karg Oil & Gas Company, to foreclose a mechanic's lien upon a certain oil lease of lands in said county, and an "oil well rig" erected thereon, said court at its April term, 1900, found the sum of $314 due from defendants and decreed, in default of payment within three days, a sale of the property by the sheriff of said county in satisfaction of the debt, as upon execution. The defendant, Kirkbride, by answer, claims that by agreement of Harrison, Perkins and the Karg Oil & Gas Company, with himself, the oil well rig was sold by said parties for $135, which was paid into the Hancock common pleas court to be credited upon his said judgment; that said sale was private and agreed to by this plaintiff, who waived his rights therein; and he admits that said sale did not include the leasehold; and he denies that the judgment is satisfied, and prays dissolution of the temporary injunction heretofore entered in this case. The testimony taken by Kirkbride tends to prove a verbal agreement between his counsel and the counsel of Mr. Harrison, Mr. Perkins and the oil company, subsequent to the decree, authorizing him (Kirkbride's counsel, Mr. Doty) to sell the rig for $135, which he did. No other testimony on this point was offered by Kirkbride; but Mr. McConica, counsel for Harrison and the oil company, testifies denying such authorization and declaring that the talk was tentative merely as a proposal to obtain the consent of the clients to such course. There is also testimony showing that the value of the rig was very much less when sold to be removed-as was the case here-although the purchaser (a brother of Kirkbride) resold shortly afterward at $166, for use nearby; and that the rig was worth $300 to $350, in place in connection with the lease. Kirkbride also offered proof to show that the lease was of no value, which proof was not convincing. It is manifest upon this state of fact: 1. That the defense of authority to sell the oil well rig is not maintained. Proof of a contract of this nature made with attorneys Harrison v. Kirkbride. as such, with nothing more, does not tend to prove-much less provethe agreement alleged in the answer. It is well established that the relation of attorney and client is one of limited agency with respect to the suit or matter in hand; and ordinarily there is no implied power to do more than relates to the proper conduct of the suit. He cannot, without specific authority, bind his client by contract, nor enter into agreements respecting his client's property. Hagerman v. Bates, 5 Colo. App. 391 [38 Pac. Rep. 1100]; Brooks v. Kearns, 86 Ill. 547; Stuck v. Reese, 15 Iowa 122; Johnstown & F. Ry, v. Egbert, 152 Pa. St. 53 [25 Atl. Rep. 151]; Garrett v. Hanshue, 53 Ohio St. 482 [42 N. E. Rep. 256; 35 L. R. A. 321]. In Beard v. Westerman, 32 Ohio St. 29, the point decided is substantially identical. I quote from the opinion, page 32: "One Lovell, an attorney of Westerman (plaintiff below), was offered to prove that by agreement between himself, as such attorney, and Beard, the latter was to take possession of, and sell, the (mortgaged) property. "This testimony was ruled out, and properly so. There is nothing to show that Lovell, as attorney of Westerman, was authorized to make such an agreement. He appears to have been employed to bring suit and collect the notes, but this does not authorize him to make the contract proposed to be proved," citing Wilson v. Jennings, 3 Ohio St. 528; Card v. Walbridge, 18 Ohio 411. With this point disposed of, the case stands upon the voluntary taking and conversion of the mortgaged property by the judgment creditor, pending a decree in foreclosure; and it is clear as matter of law that the execution under consideration here has no legal validity. It does not appear whether the original petition in the foreclosure suit asked also for a personal judgment or not; but this is not material because the court entered merely the ordinary decree in foreclosure finding an amount due and decreeing sale of the property in satisfaction of the debt. This is not a personal judgment and execution cannot issue upon it except for a balance remaining after exhaustion of the mortgaged property by public sale under the decree, and upon a new suit based on such finding. Conn v. Rhodes, 26 Ohio St. 644; Doyle v. West, 60 Ohio St. 438, 443, 444 [54 N. E. Rep. 469]. As the testimony shows that there has been no attempt to enforce the decree, it is obvious that there can be no valid execution against other property of the judgment debtor. 3. But this is not all. In this case the property was brought in custodia legis by the formal lien and the suit upon it. This point I had occasion to decide in the Pike's Opera House case, which was sub Superior Court of Cincinnati. sequently affirmed by the general term. Union Sav. Bank & Tr. Co. v. Building Co. 14 Dec. 401. The decree finding the lien valid and ordering a sale by the sheriff had in equity an analogous effect to the levy of an execution in an action at law, and brings into operation a rule thus stated, Dawson, In re, 20 Abb. New Cas. 188: "The judgment is satisfied when the execution has been so used as to change the title or in some other way deprive the debtor of his property. "When the property is lost to the debtor in consequence of the legal measures which the creditor has pursued, the debt is gone although the creditor may not have been paid. The sale does not depend on satisfaction of the debt. It is, that the debtor's property has been actually lost to him in consequence of the legal measures which the creditor has pursued.' A further statement of the rule will be found in Harris v. Evans, 81 Ill. 419, 420, as follows: "The levy of an execution upon personal property, subject to execution, of value sufficient to satisfy the debt, is of itself a satisfaction of the execution. No other levy could lawfully be made by virtue of that execution until the property levied upon had been sold in the regular course prescribed, and had failed to pay the debt. * If the officer, instead of pursuing the regular mode of sale prescribed, wastes the property or experiments with modes of sale not recognized by the law, the debt is discharged and the remedy is against the officer. If the plaintiff is a party to the irregular proceedings, his remedy is gone and the judgment is satisfied." The principle set forth in these cases would govern the case in hand, even if a personal judgment had been rendered and execution issued. A fortiori it applies where a formal lien is acquired by the creditor, which is brought into court and a decree is rendered establishing its validity and ordering sale, pending which the judgment creditor takes manual possession and destroys the identity of the property, thereby rendering the further action of the court impossible. All presumptions arising upon these facts must be availed of for the protection of the judgment debtor; and among them is the presumption that the property was of sufficient value to satisfy the debt in the condition in which it stood under the lien and in the foreclosure proceedings. It is clear that by the irregular proceedings of the judgment creditor, the debtor's property has been lost to him. It would be strange law that would authorize a judgment creditor, after obtaining a decree in foreclosure, to take and convert the thing pledged, allow such sum as he might choose as credit upon the debt sued upon, and Harrison v. Kirkbride. then, after ignoring the functions of the court thus far, obtain its aid in enforcing collection of such balance as he might then claim to be due. The statement of such a proposition carries its own refutation. The injunction heretofore granted must be made perpetual, and it is so ordered. Judgment for plaintiff with costs; perpetual injunction ordered. ASSAULTS-MUNICIPAL CORPORATION-TORTS. [Licking Common Pleas, April Term, 1905.] WILLIAM E. BLOOM V. NEWARK (CITY). 1. MUNICIPALITY IS NOT LIABLE FOR AGENT'S TORTS AS TO GOVERNMENTAL MATTERS -Contra, as to Corporate FUNCTIONS. In the exercise of a public or governmental function, a municipal corporation cannot be held liable for the torts of its servants; where, however, a tort is committed by the agent of a municipality in the exercise of a corporate, rather than a governmental, function, the liability of the municipality will be governed by the same rules as in the case of an individual. 2. ESTABLISHMENT AND MAINTENANCE OF PARKS BY MUNICIPALITY IS GOVERNMENTAL FUNCTION. NOT The statutory authority of municipal corporations to lay out and maintain public parks is permissive only, and the state has no interest in the power exercised by the city; such power is, therefore, the exercise of one of the corporate functions of the municipality rather than a governmental function on behalf of the state. 3. MUNICIPALITY IS LIABLE for Tort of PARK CUSTODIAN, IF ACTING WITHIN SCOPE OF EMPLOYMENT. A municipal corporation will be liable for a malicious assault committed by the care-taker or custodian of a public park if he be acting within the scope of his employment. [Syllabus approved by the court.] Jones & Jones, J. H. Jones and Wayne Collier, for plaintiff. SEWARD, J. (Orally.) The case of William E. Bloom v. City of Newark is submitted to the court upon a general demurrer to the petition. The petition alleges that the city of Newark is a municipal corporation; that it maintains and owns a certain park known as the Court House Park; that around this court house park is a pavement, and that on the inside of the pavement are certain iron seats used by the public for rest and repose on certain occasions; that it had in its employ John P. Lederer as a custodian and care-taker of said park and grounds; that his duties were to keep the park clean, the pavement clean and free from objectionable articles; that Bloom was sitting on one of these seats on the |