Tappan v. Tappan. not provide for the filing of a petition in any case; it is the tenth section which authorizes a petition to be filed for alimony alone. The whole act recognizes and provides for but three classes of cases: 1. Petitions for divorce, and, as incident thereto, alimony, where the husband is the aggressor; 2. Petitions for alimony alone; 3. Petitions which seek to enjoin the husband from wasting his wife's property. Authority to file a petition in cases of the first class is given by the third section; in cases of the second class, by the tenth section; and in cases of the third class, by the fourteenth section. The provisions of the fifteenth section were manifestly intended to apply to all these classes of cases. And while the seventeenth section was designed to permit either party to appeal from the final judgment or order of the court of common pleas in the third class of cases, the sixteenth section expressly declares, as to cases of the first or second class, "no appeal shall be allowed to the district court." This construction renders the whole act sensible, and its several parts consistent; and the sixteenth section is thus left to mean precisely what its language imports. Indeed, such has ever been the legislation of this state; for the act of 1843, which first gave to the common pleas concurrent jurisdiction with the Supreme Court, declares, "That in all cases" (whether of divorce and alimony, or of alimony alone) "commenced in the court of common pleas, no appeal shall be obtained from the decree, but the same shall be final and conclusive." 41 Ohio L. 64. With full knowledge of the decisions of the Supreme Court denying the power of review, the general assembly of 1853 re-enacts the provision prohibiting appeal, and provides no other mode of revision. We think the inference *fair, that such revision was [70 not contemplated. Nor do we find in the code of civil procedure any thing to repel this inference. That clause of the 602d section which declares that "the provisions of this code shall apply after a judgment, order, or decree, heretofore or hereafter rendered, to the proceedings to enforce, vacate, modify or reverse it," etc., would seem, from its very language, to be limited in its application to such judgments, orders, and decrees, as might, independently of the code, have been vacated, modified, or reversed, by proceedings previously authorized. The form of the remedy, the mode of asserting rights previously exist 53 Tappan v. Tappan. ing, is changed; but where no right of review previously existed. we think this section does not confer it. But an examination of section 604, which declares that "until the legislature shall otherwise provide, this code shall not effect proceedings under statutes relating to dower, divorce, and alimony," etc., together with the consideration that the statute specially regulating proceedings for divorce and alimony bears the same date with the code, will justify the conclusion that the whole subject-matter was intended to be excluded from the operation of the code. Besides, we find nothing in the "act concerning divorce and alimony," nor yet in the code of civil procedure, discriminating, as to the right of review, between the decree for divorce and the decree for alimony. The right, if conferred at all, is conferred by general terms, which include the one as well as the other; and yet we do not understand it to be claimed that that portion of the decree which annuls the marriage contract can be reversed. Whether such discrimination might not properly be made, and a review of that part of the decree which relates to alimony and the custody of children, be permitted on terms which would secure the 71] rights of both parties, *may be a proper subject of legislative consideration. But we can not believe that a proper construction of existing laws would justify us in regarding the husband as forever released from the obligations and duties growing out of the marriage contract, by a decree which his own aggression has demanded, while the injured wife is left, without means, to contest, in protracted litigation, her right to a maintenance. We are, therefore, of opinion that the district court of Jefferson county had no jurisdiction to review the decree or proceedings in the case between these parties in the common pleas, and the judgment of the district court must therefore be reversed. BARTLEY, C. J., and SWAN, BRINKERHOFF, and BOWEN, JJ., concurred. 54 Leavitt and Lee, Ex'rs, v. Morrow. HUMPHREY H. LEAVITT AND THOMAS LEE, EXECUTORS OF THE LAST WILL AND TESTAMENT OF HANS WILSON, DECEASED, v. DAVID MORROW. An accord and satisfaction, moving from a stranger or person having no pecuniary interest in the subject-matter, if accepted in discharge of the debt, constitutes a good defense to an action to enforce the liability against the debtor. PETITION in error, to reverse the judgment of the district court of Jefferson county. The original action was assumpsit instituted by the defendant in error against the plaintiffs in error, in the court of common pleas of Jefferson county, in November, 1852. The declaration contained simply the common counts. The executors, besides the plea of non-assumpsit, with the usual notice of set-off, filed the following special plea in bar: "And for further plea, the said defendants say that, after the *making of said supposed promises in the declaration men- [72 tioned, and after the decease of said Wilson, viz., on the 2d day of June, 1852, Jane Wilson, the widow of said Hans Wilson, deceased, and a devisee and legatee under his last will and testament, at the special instance and request of the said plaintiff, and as an accord and satisfaction of his supposed claim against the estate of said Wilson deceased, at said county, caused and procured to be conveyed by William Kelly and Maria his wife, a part of the south half of section 11, township 7, and range 2, in Jefferson county, to one Benjamin McFarland, a trustee selected by the said David Morrow, to have and to hold the same in trust for the use of the said David Morrow and Rebecca his wife, during their joint lives and the life of the survivor, and at the death of the survivor of the said David and Rebecca, to convey the estate to the heirs at law of said David Morrow, being the persons who would have taken the same by descent, in the case that said Morrow had died seized and intestate. And the said David Morrow then and there accepted the conveyance in trust, in full accord, satisfaction, and discharge of his said supposed claim against the estate of the said Hans Wilson, deceased; and this they are ready to verify. Wherefore they pray judgment," etc. Leavitt and Lee, Ex'rs, v. Morrow. At the May term, 1853, a demurrer was filed to the special plea, assigning as causes: 1. That the facts as stated do not amount to an award and satisfaction. 2. That the said Jane Wilson had no interest in the subjectmatter. 3. That the said plea is in other respects informal and insufficient in law. At the same term the demurrer was argued and overruled. "And said David Morrow says that, by reason of anything 73] *by the defendants in their plea secondly above pleaded, he ought not to be barred from having his action against the aforesaid defendants, because he says that he did not accept or receive the said conveyance in trust, as in said plea set forth, in full satisfaction and discharge of the said several promises, or either of them, or of the damages sustained by him by reason of the non-performance thereof, in manner and form as the said defendants alleged; and this he prays may be inquired of by the country," etc. Upon this issue the case was tried in the common pleas, and verdict and judgment being for the defendants, Morrow, the plaintiff, appealed. In the district court, at the August term, the cause was again tried, and the verdict and judgment was for the plaintiff, for $897.75, and costs of suit; to reverse which this writ of error is brought. It appears by the bill of exceptions taken on the trial, that in the fall of 1848, Wilson, the testator, inquired of Morrow whether he had got a place to suit him. He answered he had not, and Wilson then said: "You had better give me the money; I will put it out at interest, and whenever you call or get a place to suit you, you shall have the money." It was $700. Wilson said not to be in a hurry; there would soon be plenty of places. The plaintiff, thereupon, rested. The defendants then gave in evidence the will of Hans Wilson, and the record of the election of Jane Wilson, the widow, to take the provision made for her in lieu of dower. The defendants also gave in evidence a deed from Kelly and wife to McFarland, as trustee of said tract of land in the plea described, and upon the trusts in the special plea mentioned; and it was admitted by the plaintiff as in evidence, that the money to pro Leavitt and Lee, Ex'rs, v. Morrow. cure the aforesaid deed was advanced and paid by Jane Wilson, widow of Hans Wilson, and that McFarland, the trustee named therein, was selected by the plaintiff below, for that purpose. *The defendants thereupon called Samuel Wilson, a witness, [74 who testified that in May or June, 1852, after the death of Hans Wilson, he saw the plaintiff, and said he understood he had got some money from Mrs. Wilson. He replied, that he had got some money from her, which was in lieu of $700 he had got from Mr. Wilson, and which Mr. Wilson had got back. He said he had bought land with the money-land on Island creek-from a man by the name of Kelly. And no further evidence having been given, the court charged the jury as follows: "That if they found, from the testimony, that Wilson received money from the plaintiff, which Wilson had previously given to him, absolutely, the law implies a promise to repay it; but, if the money was given by Wilson to the plaintiff, to be invested by him in any particular way, and that investment failing to be made, and the money returned by the plaintiff to Wilson, then the law raises no promises on his part to repay it. "If the jury find that Wilson had received the money of the plaintiff, the plaintiff was entitled to recover, unless the defense set up had been established. "They will then inquire whether Jane Wilson, the widow of Hans Wilson, agreed with the plaintiff to accept money or land, in satisfaction of his claims against the estate of the said Hans Wilson, and whether the money or land was actually given by her and received by him, in satisfaction of said claim. "And, if they so find, they will then proceed to inquire whether the said Jane Wilson had a pecuniary interest in making said arrangement and satisfaction, and that it was for the benefit of her own estate, that the claim against the estate of Hans Wilson should be satisfied and discharged: then the plaintiff would not be entitled to recover. *But if they should find the agreement between Jane Wilson [75 and the plaintiff to give, and the actual giving by her and acceptance by him of money or land in satisfaction of the plaintiff's claim against the estate of Hans Wilson, it would not bar the right of the plaintiff to recover in this action, unless she had such pecuniary interest to make such arrangement for the settlement of the claim |