455

Wertheimer et al. v. Morse.

testified that he had no knowledge or information as to what allegations were in the petition; that he never at any time made any investigation as to whether the allegations of the petition were true or false; that he filed the answer to avail himself of any defense he might have. He admitted signing the bond, and admitted that he intended to make no defense to any of the allegations of the petition except the one in reference to the bond, and stated that his defense to this would be the signing of the bond without knowledge that it was a bond. The affidavit of the justice was also offered, reciting the facts of the rendering of a judgment at the date and in the amount as alleged in the petition and the execution of the bond in appeal by the defendant in the manner and form prescribed by law.

Stearns & Kelley, for the plaintiff.

1. An answer which is false in fact, filed merely for the purpose of delay and not to prevent final judgment, is a sham pleading and a misuse of the code of civil procedure. It will be stricken from the files on motion. Estee Pleadings, sec. 4472; 1 Sweeney, 525; Nash Pleadings, sec. 249; 18 Cal., 386; 29 Minn., 166; 18 N. Y., 315; 31 Minn., 267; 87 Ind., 503; 8 Abt. Pr. N. S., 343; 18 Ind., 420; 4 Oregon, 92.

2. The codes of New York, Indiana, Wisconsin, Iowa, California, Minnesota, and many other states provide for the striking out of sham pleadings, but the legislature of these states conferred no new power on the courts. The same authority to strike out sham pleadings existed at common law. I Barn and Cress, 286; Boone on Code Pleading, 252; 18 N. Y., 315.

3. This answer raises no issue. Under general denial none of the allegations of this petition can be controverted. Defenses to matters of record and of payment must be specially pleaded. An answer which raises no issue is frivolous and will be stricken off on motion. Bliss on Code Pleading, 421; 8 How. Pr., 273; Larimore v. Wells, 29 Ohio St., 13.

4. General denial for want of information and knowledge is not good pleading where allegations denied are matters of record, or written contract to which defendant is a party, or matters of which defendant might have informed himself by reasonable diligence. Boone on Code Pleading, 62; 8 Bush., 584; 46 Wis., 618; 41 Wis., 436; Bliss on Code Pleading, 326; 2 E. D. Smith Rep., 48; 12 How. Pr., 38.

SOLDERS, J.

The civil code provides that a defendant may file a general or specific denial to each material allegation of the petition controverted by the defendant, or a statement of any new matter constituting a defense. The object of the code is to simplify pleadings and to facilitate the administration of justice. The privileges of the code can only be exercised in good faith, and cannot be used merely to delay the cause. To deny matters alleged in the petition which the defendant knows to be true, or which, by the exercise of ordinary and reasonable diligence could have been known to be true, merely for the purpose of delaying final judgment and putting the plaintiff to his proof, is an abuse of the provisions of the code, and such a pleading is a sham, and an imposition on the courts. The codes of many states have a special provision for striking off on motion sham and frivolous pleadings. But this authority was also exercised at common law, and the legislature extended no new power to the courts by enacting the code provisions. Our code has no provisions

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for striking off sham pleadings, and, so far as I know, the authority has not been exercised by courts in this state; but I do not regard the lack of legislative enactment as any limitation of the power of the court in this respect. The evidence here shows that the defendant filed his answer denying all the allegations of the petition, which are matters of record in judicial proceedings, without any knowledge as to whether the answer was true, and that he made no effort to ascertain whether it was false or true. All the matters denied were either matters clearly within his knowledge, or matters of record in this court, of which he could with reasonable and ordinary care, have informed himself. The hearing of evidence in support of this motion is not a trial of the issues, and in no way an abridgment of the defendant's right to have his trial by jury, but merely a determination of the question of whether there is an issue to go to the jury.

This answer is sham, and should be stricken off the files.

Motion granted.

Mannix v. Purcell et al.

TITLE TO CHURCH PROPERTY-TRUSTS.

(Hamilton District Court, 1883.]

10 B. 337

*JOHN B. MAnnix, Assignee, V. JOHN B. Purcell et al.

1. By the law of Ohio it is competent to establish by parol evidence that a deed absolute on its face, is in fact a trust; but to establish the existence of said trust the evidence must be clear, certain and conclusive.

Where in pursuance of the decrees of the Second Plenary Council of the Roman Catholic Church held in the city of Baltimore in 1866, the title to property in this state purchased by the gifts and contributions of others for special religious and charitable purposes, is given to the bishop of the diocese, his heirs and assigns, the said bishop holds it in trust for the uses for which it was acquired, and said trust is cognizable by the courts of this state.

B. In considering the tenure by which church buildings and other property are held for ecclesiastical purposes by the Roman Catholic church in this state, the cannon law is admissible in evidence and to be entitled to the same consideration as the rules and stipulations of other voluntary associations established for benevolent and charitable purposes.

4. Where real or personal property is conveyed to one, and it is clear that those who gave and caused the property to be thus conveyed intended a trust, and that the grantee should hold the property thus conveyed in trust, the said grantee does not become the beneficial owner of said property, although the objects of said trust are too vague and uncertain to be enforced, or the trust is otherwise invalid.

5. Where the grantee in a deed purporting on its face to be a conveyance in fee simple, knows that the property therein named has been conveyed to him with the intent and expectation that he would hold it for purposes other than for his own benefit, and he accepts the deed without dissent, he holds the said property subject to said trust.

6. The several congregations worshiping in the Roman Catholic churches in this state, according to the course and discipline of said church, are not capable of taking the legal title to said churches as grantees, nor becoming the cestui que trust of a private trust; but where the said churches have been acquired by the contributions and gifts of individuals composing said congregations and others, and the title placed in and held by a competent trust in pursuance of the rules and regulations of said church, said churches will be protected and preserved for the uses for which they were acquired as charities.

7. A charity in a legal sense includes not only gifts for the benefit of the poor, but endowments for the advancement of learning or institutions for the encouragement of science and art, without any particular reference to the poor.

8. The courts of this state have jurisdiction over charitable trusts, independently of and not derived from the statute of 43 Elizabeth.

9. Where a Roman Catholic church in the state of Ohio, and the land on which it stands, have been bought, built and paid for by the contribution and gifts of the members of the congregation worshiping therein and others, and the title conveyed to the bishop of the diocese, his heirs, and assigns, in fee simple in compliance with the rules and regulations of the Roman Catholic church in this state requiring all property for ecclesiastical purposes to be so conveyed and held, the said bishop holds said property in trust for the uses for which it was acquired, and the same can not be sold on execution for the payment of the individual debts of the said bishop, nor does it pass by a general assignment for the benefit of his creditors to his assignee.

The cases pp. 817 to 828, were omitted from the places they occupy in the original volumes.

This judgment in this case was affirmed by the supreme court; opinion 46 O S., 102. The opinion was published in a pamphlet of 86 pages, but as the Supreme Court opinion is exhaustive, is not reproduced herein.

4 LB 5?

Hamilton District Court.

10. But where the said bishop has made advances in buyiny or building, or to aid in buying or building a church, or other ecclesiastical property, which he thus holds in trust for said uses, the amount of said advances is an interest which by a proper proceeding may be subjected to the payment of his individual debt and passes by a general assignee.

11. Where a tract of land has been purchased and paid for by a Roman Catholic Bishop in this state, for the purpose of a cemetery, and the title taken to himself in fee simple, and the said tract has been platted and the larger part con secrated according to the forms of the Roman Catholic church for a cemetery, and the bishop has invited catholics to purchase burial lots therein, and has sold burial lots therin of various sizes, according to the wish of the purchaser, and given certificates of purchase reciting that the purchaser was the owner of said lot in fee simple for the purpose of sepulture only, according to the rules of the Roman Catholic church; and the said bishop has always continue in the possession and had the entire control of said cemetery fixed the price of burial lots, appoinied the sexton and other officers, and received the proceeds arising from the sale of lots and burial permits to his own use, but reserved a narrow strip for the burial of those not entitled to a Catholic burial and furnished graves free for those whose friends were not able to pay, but requiring in all cases a permit from some catholic priest in the diocese before any interment could be made therein; such cemetery has not been dedicated to the public either at common law or by any statute of Ohio, and such part thereof as has not been already sold and appropriated, may be sold for the payment of his debts.

JOHNSON, J., dissents from the last.

10 B. 151 INTER-MARRIAGE OF BLACKS AND WHITES.

[Toledo Police Court.]

STATE OF OHIO V. BAILEY.

Section 6987, Rev. Stat., prescribing punishment for intermarriage or illicit carna intercourse of a person of pure white blood with one who has a visible admixture of African blood is constitutional.

LORENZ, J.

The information recited that the defendant, Bailey, having a visible admixture of African blood, did, at Toledo, O., December 20, 1883. marry Carry Haymier, a person of pure white blood.

The statute on which the charge is based, reads as follows: "Section 6987. A person of pure white blood who intermarries or has illicit carnal intercourse with any negro or person having a distinct and visible admixture of African blood, and any negro, or person having a distinct and visible admixture of African blood, who intermarries or has illicit carnal intercourse with any person of pure white blood, shall be fined not more than $100, or imprisoned not more than three months, or both."

The defense demurred to the information on the grounds that our statute was invalid and that it was obsolete. As to the first point, Judge Lorenz holds the law not to be in conflict with the 14th amendment, because this act applies to whites and negroes alike, referring to 21 0. S., 198; Barber v. Barber, 21 Howard, U. S., 582; Bishop on Mar. & Div., sec. 87, and the decisions of the U. S. Supreme Court on the Civil Rights Cases.

As to the objection that the law is obsolete, the Judge says:

State v. Bailey.

"It was enacted by the General Assembly in 1861, and re-enacted in 1873, in the revision and consolidation of the general statutes of Ohio, and retained in the complete revision of 1880. We, of course, have nothing to do with the validity of the marriage: we know of no law which invalidates it. Shafer v. State, 20 Ohio, 1. We are called upon only to pass upon the offense charged in the information and fully authorized by valid laws. The demurrer will be overruled." [Editorial.

BAIL.

[Hamilton Common Pleas.]

11 B. 154

STATE OF OHIO ex rel. DeVERY V. A. R. VON MARTELS.

In a proper case a mandamus may issue to require a court of interior jurisdiction to take bail. But where the rules of court of common pleas are that attorneys should not be received as bail bond, the court is not warranted in pointing a writ to the judge of the police court requiring him to accept an attorney as 'bail bond.

ROBERTSON, J.

This is an application for a writ of mandamus to issue to the defendant, who is judge of the police court of Cincinnati, requiring him as such judge, to accept T. C. Campbell as bail bond for the relator, John Devery, who, as the petition discloses, on the fourteenth inst. was arrested and brought before the police court on the charge of robbery, and the hearing of the charge having been continued to the nineteenth inst. the accused requested the court to fix the amount of bail for his appearance before the said police court on the nineteenth inst. to answer the charge, and the court having fixed the bail to $2,000, the accused thereupon offered as surety on said bail bond T. C. Campbell, who it is conceded was, and is, the owner of real estate in Hamilton county, worth double the amount of said bond over and above all debts and liabilities, and subject to execution; but the court refused to accept said Campbell as such surety on the sole ground that he was an admitted and practicing attorney at law in Hamilton county, and remanded the accused to jail.

On notice to Judge Van Martels, that the application was about to be made, and on his appearance in court, an alternative writ issued; and a time was fixed for the hearing upon his excuse.

Mandamus is defined by the Ohio Statute to be, "a writ issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station."

It is recognized as a high prerogative writ, and generally can only issue out of the highest course, and it is only within a few years that the jurisdiction has been conferred upon courts of common pleas in Ohio.

The writ is not demandable as matter of right, but it is to be awarded in the discretion of the court; 49 Barb., 259, while, if there be a right, and no other specific remedy, the writ should not be denied. 3 Burr, 1265.

In 12 Peters, 524, it is said to be a proper remedy to compel the performance of a specific act, where the act is ministerial in its character;