Este v. Wilshire

• Citation: 44 Ohio St. 636,10 N.E. 677
• Parties: ESTE v. WILSHIRE and another.
• Decision Date: 04 February 1887
• Court: Ohio Supreme Court

10 N.E. 677

44 Ohio St. 636

ESTE v. WILSHIRE and another.

Supreme Court of Ohio.

February 4, 1887

Error to district court, Hamilton county.

OWEN, C. J., dissents.

BY THE COURT.

1. The defendants, Wilshire & Thomas, were arrested at the suit of Este, upon an affidavit filed by him stating, in substance, that on July 26, 1882, he directed the said defendants, then acting as his brokers, to sell his stocks, and account to him for the proceeds; that they thereupon at once sold the same, received the money, amounting to $3,281.36 over and above all charges, and embezzled and converted the same to their own use. Held, that thereby the defendants fraudulently incurred an obligation to their principal, the said Este, within the meaning of the fifth clause of section 5492 of the Revised Statutes, and warranted their arrest under the provisions of said section.

2. The defendants filed a motion to vacate the order of arrest, and for that purpose also filed their own affidavits, controverting the statements of the plaintiff's affidavit, and stating facts tending to exonerate themselves from the charge contained therein. Held, that it was then competent for the plaintiff to examine them as to anything relative to the charge, although it might tend to criminate them. A party cannot, in such case, testify in his own behalf, and then refuse to answer questions on the ground that the answer will tend to criminate him.

Judgment reversed and cause remanded.

OWEN, C. J., dissents from the second proposition.