author: Hitchcock, C. J.

text:
    Peter Voorhees v. The Receivers of the Bank of Circleville.
    In a proceeding by the receivers of a bank against the stockholders, to compel them to pay up their stock, the defendants will not be permitted to defend, upon the ground that they were guilty of a violation of law, in assuming to do business under the act of incorporation, in pursuance of which their organization was effected, or intended to be effected.
    This is a bill of review reserved in Pickaway county.
    The original bill was filed by the receivers of the Bank of Circleville, against Peter Yoorhees and others, charging them as stockholders, and that they were' indebted upon stock subscriptions, and praying for a decree for the amount of their indebtedness, respectively.
    The fourth section of the act incorporating the bank is as follows :
    “ That so soon as fifteen per centum on three thousand shares of the capital stock of said bank is actually paid in, it shall be the duty of the directors to give notice, to the governor of the state, that the said bank is ready to commence its full operations; and the governor, on the receipt of such notice, shall forthwith appoint some suitable person, not being a stockholder in said bank, to examine its books and vaults, and if, on examination, it .shall appear to the satisfaction of the'governor that the provisions of the third section of this act have been complied with, it shall be the duty of the governor to give public notice that said Bank of Circleville has complied with the provisions of this section,, and is thereby authorized to go into operation, and it is hereby authorized accordingly; but in case said bank shall commence issuing bills or notes, without having first complied with the provisions of this section, the charter hereby granted, and the privileges given, shall cease, determine, and be of no effect, and the stockholders of said bank shall be liable for the debts contracted, as though this act had never been passed.”
    The stockholders, having paid in fifteen per cent, on the capital stock of the institution, made application to the governor for an examination of its books and vaults; an examination was had and report made to the governor that the requisite amount of specie had been paid in, but he refused to give the notice required by the charter, that the provisions of the law had been complied with. But the bank, notwithstanding, put its paper into circulation, and transacted ordinary banking business. •
    One of the points insisted on by the complainant in review, in argument, was, that this act of the governor was a condition precedent, and that the issuing of notes by the directors without it, destroyed the act of incorporation; that if the stockholders were liable a-t all, it was only as unauthorized bankers.
    The authorities cited by the respective counsel are given below. The statement of the case, so far as relates to the facts upon the question whether the complainant was or was not a stockholder, will be found in the opinion of the court.

      Henry Stanbery, (attorney general,) and' George E. Pugh, for complainant, cited the following authorities:

      Johnson v. Bentley, 16 Ohio Rep. 97; Lewis v. McElvain, Ib. 356; 5 Taunt. Rep. 792; Broughton v. Salford Water Works, 3 Barn. & Ald. Rep. 1; Att'y General v. Life and Fire Ins. Co., 9 Paige’s Rep. 470; Shep. Touch. 129, 139, 153 ; 2 Black. Com. 153-5 ; The People v. Manhattan Co., 9 Wend. Rep. 35 ; Bank of Niagara v. Johnson, 8 Wend. Rep. 645; Boyd v. Talbert, 12 Ohio Rep. 214; Com. Landl. and Tenant 327-8, 330; 2 Greenl. Ev. 139, 264; Cockshott v. Bennett, 2 Term Rep. 763; Receivers v. Renick, 15 Ohio Rep. 322 ; The State v. Moffit, 5 Ohio Rep. 358 ; Marbury v. Madison, 1 Cranch. 137; Kendall v. U. S., 12 Peters 524; Decatur v. Paulding, 14 Peters 497 ; Crane, ex parte, 5 Pet. 190 ; Brown v. Crippin, 4 Hen. & Munf. 173; Lewis v. Bank

      of Kentucky, 12 Ohio Rep. 182; 11 Ohio Rep. 68; Raguet v. Roll, 4 Ohio Rep. 400 ; Same v. Same, 7 Ohio Rep. (part 1st) 76; Ib. (part 2d) 70; Cowles v. Raguet, 14 Ohio Rep. 38; Story’s Eq. (3d ed.) 85.

      H. H. Hunter, and Swan & Andrews, for defendants, cited the following:

      Bank of St. Charles v. Barnales, 1 Car. & Payne 569; Utica Ins. Co. v. Tillman, 1 Wend. 555; Utica Ins. Co.v. Badger, 3 Wend. 296; Bank of Michigan v. Williams, 5 Wend. 478; Williams v. Bank of Michigan, 7 Wend. 549; Chester Glass Co. v. Dewey, 16 Mass. Rep. 101; Commonwealth v. Union Ins. Co., 5 Mass. Rep. 230; Centre Road Co. v. McConoly, 16 Serg. & Rawle 144; Hughes v. Bank of Somerset, 5 Littell 46.
   Hitchcock, C. J.

In January, 1818, an act was passed, by the general assembly of Ohio, “ to incorporate the stockholders of the Bank of Circleville f’ but no bank was put in operation under this act until 1839 or 40, when certain individuals, professing to act under the charter, effected an organization, issued notes for circulation, and engaged in banking business.

In April, 1842, Julius L. Wyman filed his petition, in the Pickaway county common pleas, against the-Bank of Circleville, praying that receivers .of its assets might be appointed. This proceeding was under the law of February, 1842, for the appointment of bank commissioners, and for other purposes, (40 Ohio L. 13.) In due time receivers were appointed.

The receivers, so appointed, filed their bill in chancery, supplemental- to Wyman’s petition, on the 10th of June, 1842, against Fanus Crouse, Willi-am Alkire, Peter Yoorhees, the complainant in review, and others, charging them as stockholders in said bank, praying that they should be compelled to pay their subscriptions of stock, or so much -thereof as might be necessary to pay the debts of the institution.

To this bill Yoorhees filed an answer, on the 12th of August, 1842, denying, positively, that he was ever a stockholder. Thi3 answer was under oath, as called for in the bill.

On the 30th April, 1844, the bill of the receivers was amended, so as to stand as an original bill.

Testimony was taken in the case, and at the June term of the court, 1846, of the court of common pleas of Pickaway county, the bill was dismissed and an appeal taken, by the receivers, to the supreme court.

At the November term, 1847, of the supreme court in Pick-away county,' the case, after full argument, was submitted to the court, and after full consideration, a decree was entered against the then defendants. In this decree the court found, that Yoorhees and the other defendants were stockholders in the bank, at. the time of filing the bill and of the rendition of the decree, and that they were and are indebted for stock, by them severally holden, in the respective amounts specified in the decree. Peter Yoorhees was found to be the owner and holder of seven hundred shares of capital stock, and that he owed, on said stock, the sum of twenty-nine thousand seven hundred and fifty dollars. The court further found, that the said president,' directors and company of the Bank of Circle - ville, at the time of filing the petition of Julius L. Wyman, had transacted the business of banking, at the town of Circleville, in Pickaway county, Ohio, under and by virtue of the act of the general assembly of the State of Ohio, entitled “ an act to incorporate the stockholders of the Bank of Circleville,” passed January 14, 1818, and that the complainants named in the bill were duly constituted and appointed receivers, etc.

On the 13th December, 1847, on petition of Peter Voorhees, the complainant in this bill of review, to one of the judges who pronounced the decree, a rehearing was allowed so far as the said Yorhees w-as concerned.

Further testimony was taken, and the case was again ar gued and submitted to the court, at the November term, 1848.

On this latter hearing, the court again found the equity of the case to be with the complainants, as to the said Peter Voorhees. In the decree at this term rendered, reference is had to the decree of the previous term, and the court again find “ that the said Peter Voorhees was and is the holder of seven hundred shares of the capital stock of the said Bank of Circleville, named and referred to in said bill of complaint, for, and on account whereof, he, the said Peter Voorhees, doth owe, and is indebted to said bank in the sum of twenty-nine thousand seven hundred and fifty dollars, and that it is equitable that the said Peter Voorhees be required to pay to said receivers of said bank, so much of his said indebtedness as may be necessary, with the amounts which shall be collected from the said other defendants according to said former decree, to enable said receivers to discharge the debts and liabilities of said bank,” etc. Other facts are found in said decree which it is unnecessary now to refer to, and the court go on then, after finding the facts, to order and decree tha-t payment be made, etc.

It may be proper here to remark, tha-t the examination and consideration of the case, which resulted in these decrees, have been bad by three of the four judges, then constituting the supreme court.

For the purpose of reviewing this latter decree, the bill of review, now under consideration, is filed.

The first error assigned is, that

“ The court decided that the said Bank of Circleville was a banking institution, within the meaning of the apt passed the twenty-fifth day of February, one thousand eight hundred and thirty-nine, entitled ‘ an act providing for the appointment of a board of bank commissioners, and for the regulation of banks within the State of Ohio, and the several acts amendatory thereof,’ (especially the one passed the eighteenth of February, in the year eighteen hundred and forty-two,) and that the complainants had title, under the said several acts, as receivers of the said bank of Circleville, to file their original, supplemental, and amended bill.”

This assignment presents the' question, whether the facts in the case are sufficient to show that the stockholders of this bank had so organized, as to be legally acting under the act of 1818, by which the “ Bank of Circleville ” was incorporated. This question, it is true, must have been acted upon and determined by the court of common pleas, on the application of Wyman, in pursuance of which these receivers were appointed; but possibly this may not be conclusive of the question.

The third section of the act of incorporation is as follows: “ So soon as three thousand shares of said bank are subscribed for, and fifteen per cent, paid on each share, said commissioners shall immedately give four weeks’ notice of the time and place of electing directors, in the manner provided for giving notice of the payment of installments, by the eighth section of the act -to incorporate banks therein named, and to extend the charters of existing incorporated banks; and the persons who shall then be chosen, shall, forthwith, commence the operation of said bank, so far as may be necessary, in the appointment of other officers of the bank, and to direct such further installment or installments to be paid in, as the interest and advancement of the bank may require ; and all. payment on shares previous to said bank’s going into operation, shall be made, the one-half in gold and silver, and the other half in bills of the Bank of the United States, or some of its branches, or in specie, at the option of the stockholders.”

The fourth section is as follows: “ That so soon as fifteen •per centum on three thousand shares of the stock of said bank is actually paid in, it shall be the duty of the directors to give notice, to the governor of the state, that the said bank is ready to commence its full operations; and the governor, on the receipt of such notice, shall forthwith .appoint some suitable person, not a stockholder in said bank, to examine its books and vaults, and if, on examination,, it shall appear to the satisfaction of the governor, that the provisions of the third section of this act have been complied with, it shall be the duty of the governor to give public notice that said Bank of Circleville has complied with the provisions of this section, and is thereby authorized to go into operation, and it is hereby authorized accordingly; but in case said bank shall commence issuing bills or notes, without having first complied with the provisions of this section, the charter thereby granted, and the privileges given, shall cease, determine, and be of no effect, and the stockholders of said bank shall be liable for the debts contracted, as though this act has never been passed.”

The evidence in the case shows that before the bank went into operation, fifteen per cent., or twenty-three thousand dollars in gold and silver, was paid into the bank by the stockholders, and the governor was notified that the bank was ready to go into full operation. The governor, however, refused, or failed to “ appoint a suitable person ” to examine the books and vaults, and to give the notice required under the fourth section. If I understand the case correctly, the stockholders had done all that was required of them by the third and . fourth sections, to give them the right to issue paper. That is, the three thousand shares were subscribed and the fifteen per centum paid in, in gold and silver. The governor was notified; — now if that officer neglected to perform the duty enforced upon him by the law, it will 'admit- of a question, whether the stockholders can thereby be deprived of a right or privilege conferred upon them by this act of incorporation.

The questions raised by this assignment were before this court, in the case of these same Receivers v. Seymour G. Renick, (16 Ohio Rep. 822,) and the court held, that “ the Bank of Circleville, having done all the law required, previous to the appointment of a commissioner by the governor to. examine its vaults, which the governor neglected to do, a person who has done business with it as a bank, and admitted its existence, by the receipt of its funds, cannot, in a suit against himself, by the receivers of the bank, question the legality of its organization.” If one who had done business with the Bank of Circleville, as a bank, and admitted its existence, by the' receipt of its funds, could not, in,a suit against himself, question the legality of its organization, much less can one of its officers or stockholders, who has assumed to do business under the act of incorporation, question the legality of the organization.

If this bank were now in existence, and doing business, and were this an action against a stranger, in no way connected with the association, we, should probably differ as to the legality of the organization. But we all agree in this, that the stockholders of the institution cannot, in a suit like the present, against themselves, defend upon the ground, that in assuming to act under the charter of incorporation, and to do a banking business, flooding the country with worthless paper, they have acted in violation of, and without authority, of law. They cannot thus shield themselves from responsibility.

The second error assigned, is — “ The court decided that, although the testimony did not prove an acceptance by complainant of the stock so transferred as aforesaid, to him, it proves a subsequent ratification of the said transfer, with full knowledge of all the circumstances attending the same, and of the illegal and fraudulent character of said bank.”

The third assignment is in the following words: — “ The court also decided, that,-as against the complainants, your orator could not show the stock to be valueless at the time of the said transfer to him.”

The fourth assignment is as follows: — “ The court also decided, that, as against the complainants, your orators could not give in evidence the declarations of the said Larimore, previous and subsequent to the date of the said supposed transfer.”

And the fifth assignment is in these words: — “ The court also decided, that, as against the complainants, your orator could not show the fraud and deception practiced upon him by the said Larimore, in the said transfer, nor the illegal and fraud ulent character of said bank.”

So far as these four several assignments-are concerned, I do not find, upon examination of the record, that any of these points were directly decided by the court. They might have been, but- if they were, it must be shown by something other than the mere allegation of counsel, in framing the bill of review. That bill refers to the original bill, answers, evidence, and decrees in the original case, and they are made part of the bill of review. These points may have been raised in argument, and counsel may have supposed that the court could not have come to the conclusion it arrived at, without ruling as in the assignments stated. But this can be nothing. more than mere conjecture of counsel. As there is nothing in the record to show that these points were actually made, as alleged in the assignment, it is unnecessary further to consider them.

The last error assigned, is — “ That said decree was rendered in favor of complainants, when it should have been a decree dismissing the bill, as to your orator.”

This assignment, general in its terms, presents the question, whether, upon the whole case as made, the decree is in accordance with the principles of law and equity.

I presume that it will not be insisted, that, if the facts found in the decree are sustained by the evidence in the case, the decree itself is erroneous; so that, in truth, the real controversy is, whether the proofs in the case were sufficient to justify the finding of the court.

At this point of the case, a question was raised in the argument, which it becomes necessary to consider. It is insist ed by counsel for the defendants in review, that where the facts are found- by the court, in a decree, or as the basis of a decree, that upon bill of review, the court cannot go behind the decree, but must take the facts therein found as true, and if those facts justify the decree entered, then the bill of review must be dismissed. The finding of the court in chancery, is assimilated to the verdict of a jury in a court of law, and as the latter cannot be reversed on error, neithei can the former upon bill of review. On the other handj it is insisted that, according to the practice in this state, by bill of review, the whole case sought to be reviewed, both as to matters of law and of fact, is opened for examination. In support of this position, the act of February 24th, 1848, entitled “ an act to dispense with the necessity of copying the papei’S in bills of review, and for other purposes,” is referred to. This act, which is found in the 46th volume of our statutes, at the 90th page, in its first section, authorizes any party to a decree, who shall seek to review that decree, to file in the clerk’s office, “ a short petition, setting forth the names of the parties to such suit, the substance of the decree or order sought to be reviewed,, and an assignment of the errrors relied upon to reverse or set aside said decree or order, and the prayer for such reversal; and errors in law and in fact may be assigned at the same time.”

The third section provides, that all the original papers and evidence in the original case, and entries made, shall be used on the hearing of said bill of review; and it shall not be necessary for the party to procure a copy of the record or proceedings, in the original cause, nor shall it be necessary to recite, in the bill of review, any of the facts set forth in the pleadings in the original cause.”

Now I do not suppose that it was the intention of the general assembly, by this legislation, to change any 'well known rule in chancery practice. The real object was, to place bills of review in chancery and writs of error at law to some extent, upon the same footing. It had been previously enacted, that in cases in erro!, the original pleadings and files should be returned to the appellate court; a full copy of the reoord was dispensed with; and by this act of 1848, 'the same course is prescribed in case of "review. The design, in reference to both classes of cases, was to save cost and labor. So far as the saving of labor is concerned, these provisions have, unquestionably, been very beneficial to' the bar, but they have been, fruitful sources of additional labor to the court.

The question of the propriety of going behind the decree to ascertain the facts of a case, has been frequently consid ered in this court. It was before the court, in the case of Ludlow’s Heirs v. Kidd’s Executors et al. (2 Ohio Rep. 372), and in that case the court held, that, in bill of review, the original bill, answers, exhibits, and depositions are open for examination, where the decree contains no statement of facts found, or principles decided. This rule has never been departed from, in cases similarly situated. In that case there was a general finding, that the equity of the case was with the defendant, and upon such finding t-fie decree was based. This form of decree was very general ih the state for many years, and is, perhaps, now more usual than.any other. The court, in the case referred to, very properly say — “ When- the facts proved, and principles decided, are not inserted in the decree, a bill of review, for errors in law, would be useless, if this course was not pursued.” Such is the course pursued and accepted in that case.-

But although the usual forms of decrees were formerly as before stated, and although the same forms are still adhered to in many eases, yet there are decrees, where the facts found are embodied in the decree, and the question is, whether, in such case, the facts thus embodied in the decree, shall, by the reviewing court, be taken as the facts in the ease, or whether those facts shall be ascertained from the proofs on file.

In the case of Mitchell v. Gazzam et al., the judge, who-delivered the opinion of the court, after enumerating the errors assigned, says: — “ These are errors in fact, and we-feel compelled, to acknowledge the impropriety of the practice in this state, of converting bills-of review into mere rehearings. Bills of review should be confined to the correction of errors in. law, apparent upon the face of the record, except in cases of leave, upon newly-discovered evidence.” (12 Ohio Rep. 334.)

In the case of Stevens v. Hey et al. (15 Ohio Rep. 313), the court again had this matter under consideration, and expressly decided, that when the facts are stated in the de cree, the court will only inquire, on review, whether the facts so found are a sufficient basis for the decree; but where the facts are not stated or found in the decree, the depositions and exhibits are open for examination.

In the case of Sea v. Carpenter et al. (15 Ohio Rep. 412), at the December term of the court, 1847, the same principle was again decided. In that case, the facts found were embodied in the decree, and the court refused to inquire whether those facts were correctly found or not, but confined itself to the inquiry, whether, upon the facts found, the decree was in accordance with the principles of law and equity. In neither of these, cases does there appear to have been any difference of opinion in the court.

To the' rule of practice which seems to have been reorganized and established by the two cases last referred to, there is a very serious objection, and one which is entitled to great consideration. It grows out of the practice prevailing, of permitting the solicitor of the successful party to draw up the decree; and in so doing, it is supposed that he may introduce such facts as may be necessary to sustain the decree, although the evidence may not be of that conclusive character to establish the facts found, as would be desirable. The decree so drawn is, or may be, handed to the court for inspection; but 'in the ordinary course of business, the court can have but little time to examine. Were the-rule to be adhered to, it would be necessary, unquestionably, to establish some further rules to regulate the matter, either by reference to a master or otherwise. I should still be disposed to adhere to the decisions made in the cases before referred to, which would preclude us from an examination of the depositions and exhibits in the case under consideration. But as, upon this question, the court is divided in opinion, it follows that we must consider the depositions and exhibits, as well as the pleadings and decree, open for examination.

The principal objection which I have, individually, to this course is, that it in a great measure destroys the distinction between reviews and rehearings. In the case before us, the case was first heard in 1847, and a decree pronounced, the facts upon which the decree was based being embodied in the decree ; a petition for rehearing was allowed, and the case again heard upon the former evidence, with some additional depositions. After careful and critical examination, the court arrived at the same conclusión as before, and in substance affirmed the former decree. This bill of review was then filed, and we are called upon for the third time to investigate these same facts.

The questions of fact controverted in this case are, whether Voorhees was a stockholder in the Circleville bank; and if so, what was the amount of his stock ? These questions must be decided by the evidence. The receivers of the bank charge that Voorhees was a stockholder, and this he denies under bath. In 1847, in company with the then chief judge of the court (Judge Birchard), while holding the court in Pickaway county, I examined with much care the evidence in the case; and although perhaps too much predisposed to exonerate Voorhees from the charge, the conclusion forced itself irresistibly upon my mind, that he was in fact a stockholder of the bank, holding the amount of stock specified in the decree then rendered. The same result followed the examination the next succeeding year. And now, upon another and further examination, this court can come to no different conclusion.

The testimony in the case is voluminous and somewhat conflicting. The whole has been commented on by counsel, with much ingenuity and force. Taking this testimony in different parts of it, there may appear to be some discrepancy, and doubts might arise with respect to its effect; still, when the whole is taken together, it- would seem that no candid inquirer could come to a different conclusion than that heretofore arrived at by the court upon the circuit.

' Such is the mass of testimony, that it will be impossible to recapitulate it in this opinion, and I shall content myself with referring to a few items of evidence, that to my mind are par-, tieularly important.

This-fact is undisputed, that upon the books of the bank, Voorhees appeared to be a stockholder of the bank, and the holder of stock to the amount of seven hundred .shares. These shares were transferred to him by Larimore, early in August, 1841. About this there is no controversy. And it is further apparent, that this was the only stock he had in the bai-.K.

Previous to this time it does not appear that Voorhees had any connection with the institution. But on the 25th July, 1841, he gave to Timothy G. Bates a paper, of which the following is a copy:

“ Dayton, July 25, 1841.
“ I hereby authorize T. G. Bates to draw for any amount, not. exceeding five thousand dollars, upon me, at Dayton (not in bank), as payment of any arrangement the said Bates may make with the Bank of Circleville, for my benefit; said-arrangement being understood to be the purchase of stock in said bank, of a loan uf not less than fifteen thousand dollars, t'o' be placed, subject to my check, in said institution ; and in the event of the purchase of stock, I hereby authorize the said Bates to represent me in voting, and this power shall exist twenty days and no longer.
“Peter Voorhees.”

This instrument shows that Voorhees had some disposition, at least, to become a stockholder in the Bank of Circleville; and the evidence shows, that in pursuance of an arrangement between Larimore, and Bates, acting for himself and for Voorhees, the transfer of stock was made upon the books of the bank by Larimore to Voorhees, or at least, if such is not the direct import of the testimony, it- is difficult to draw any other inference. With this power of attorney; Bates visited Columbus in the latter part of July, and negotiations were entered upon between Robert Larimore, Seymour G. Renick, and Bates, acting for himself and Voorhees. During the pendency of these negotiations, the transfer above alluded to was made. These negotiations resulted, on the 7 th of August, in an agreement signed by Larimore, Renick, Bates, and Voorhees, by his attorney, Bates.

This agreement it is unnecessary to recite. It relates to the Bank of Circleville, of which the signers professed to be the owners, and to the manner in which the business of the institution should be conducted. The system of' banking provided for is somewhat novel. It would seem to indicate that the parties were more anxious to borrow money than to lend.

Although Bates signed this agreement for Voorhees, and as his attorney, yet it seems that, at this -time, he stated to his associates, tha-t Voorhees was not to be bound until he had been informed of what had been done, and assented thereto. And it is insisted by counsel, that Voorhees never did assent; in fact, that he was never acquainted with the arrangement; that he neither knew of the transfer of the stock, nor ever accepted of it. Upon this point there is no very direct testimony. But it would be somewhat singular that Bates, the friend and attorney of Voorhees, should neve^have informed him of his action in. the premises. Although there may be no direct evidence of the acceptance of the stock by Voorhees, yet it seems to the court, that- upon any other hypothesis "than that he did accept, his subsequent conduct is unwarrantable.

Early in November, 1841, the bank suspendéd payment, a-nd McCulloch, the cashier, wrote to Voorhees upon the subject.

To this letter, Voorhees returned-the following answer :

“ Dayton, Nov. 8, 1841.
“Dear. Sir: Yours, of the third instant, is at hand, in which you speak of resuscitating the bank at Circleville, of which I approve. I will be in Columbus at the time you speak of, and will, if others concerned think best, give my aid in that way. I cannot see any good reason of the bank stopping, if proper exertions had been made. I have on hand, of the 3,500 dollars received of Larimore, about eleven hundred and fifty dollars.
(Signed)
“ P. Voorhees.

Surely the cashier of the bank would not have written to Yoorheeg about its resuscitation unless he had supposed him to be a stockholder, and none but a stockholder would have replied as did Yoorhees. Does he disclaim any interest in the answer? Not at all. But, he says, “if others concerned” think, best, I will give my aid in that way. That is, in the way of resuscitating the bank. There can be no mistake in the meaning of the language used in this letter, and it is such language as no man would have used, unless he at least supposed he had an interest in the concern about which he was writing.

It would seem that, in the letter of the cashier, something was said about a meeting for the purpose of an attempted resuscitation, and that a day was specified. In reply, Voorhees says, “ I.will be,in Columbus at the time you speak of.”

On the 17th day of November, two days after the’ letter last referred to was written, .there was a meeting at Columbus, and an agreement entered into, which commences as follows: We, the undersigned, who are the stockholders of the Circle-ville bank, chartered in 1818, agree to pay into said institution the respective sums affixed to our names,” etc.

There are other matters in the agreement, which I do not deem it necessary to repeat.

The agreement is signed by Peter Yoorhees, S. J. Renick, Robert Larimore,. for himself, and as attorney for T. Gr. Bates, and by John S. Iglehart. Here is an explicit acknowledgment 'by Voorhees that he was a stockholder. This arrangement, which was entered into with a view to resuscitate the bankj was noi^ carried into effect. If Yoorhees was a stockholder, and he here admits in direct and positive terms that he was, he became such in consequence of the transfer of stock by Larimore.

Among the papers in the case, is a letter, without date, directed to John S. Iglehart, and is as follows :

" “ Dear Sir : I shall be in Columbus, on Friday or Saturday next, when I hope your affairs will permit you to be there also. I have no objection to paying immediately my stock in the new Oircleville bank, provided it can be new modeled so as to be at once profitable and safe to the community, and if you will come up and take charge of it until it gets fairly under way, the matter can be arranged at once. Be so good, as 'to-come, for I have no doubt you can be of advantage. Mr. Yoorhees will give you his opinion.
“ Yours, in haste,
“ T. G. Bates.”
“ P. S. Mr. Bates and niysdlf had a conversation on the subject, and agreed you were the only man of the concern that could make it go in the right way. I hope you will not fail to.go up.
“ P, Yoorhees.”

Bates, in his testimony, states that he thinks this letter was written the latter part of November.

On the 16th November, 1841, the following instrument is executed:

“Thisis to certify, that we will take up the circulation of the present Bank of Oircleville (chartered in 1818), provided the Messrs. Doddridge & Oo. will take up the obligation and contract with said bank, to the satisfaction of Messrs. Marfield •and McOolloch ;” which is signed by S. Renick, John S. Iglehart, P. Yoorhees, for himself, and T. G. Bates, Robert Larimore, and on the 23d December, by N. P. Iglehart.

On the 19th December, 1841, the following instrument was executed:

To the officers of the Bank of Oircleville:
“ This is to authorize N. P. Iglehart to vote all my stock in the Bank of Oircleville, and, generally, to do in the premises all that I could do if personally present.
(Signed). “ P. Yoorhees.”

Previous to this, on the 13th of December, Iglehart and Voorhees had been elected directors of the bank. Iglehart took the necessary oath ; but counsel say, that of this election Voorhees had no notice, nor is there any evidence to prove that ha was notified.

On the 16th January, 1842, Yoorhees wrote to Bates as follows : “ Mr. Reniek holds my receipt for thirty-five hundred dollars. I wish you to let him have the stock 1 have in the Cirdeville lank, and pay him the remainder in the paper I sent by you,” etc.

On the 18th February, 1842, he wrote to Larimore, and among other things says, “ If Mr. Renick will take my stock I will pay him five hundred dollars,” etc.

Such are some of the items of -testimony in the case, and it does seem -to us, no sane man could have used the language, could have-pursued the course of conduct which Yoorhees did, unless he had an interest — unless he was a stockholder in this bank.

It is attempted to explain away, to destroy the force of this evidence by other testimony, as well as by the most ingenious arguments, but it will not do. Yoorhees was a stockholder in the Cirdeville bank. To him it has proved an unprofitable speculation. But law and justice require that he should pay, in proportion to his stock, an amount sufficient to redeem the paper put in circulation by the institution, which is hitherto unredeemed. It is possible he may have been duped by others, as his counsel seem to suppose, but we very much doubt whether, in ordinary cases, he would be willing to admit that such a thing could be easily done.

The bill of review is dismissed with costs.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Mors v. McCloud.
    Declaration upon a common promissory note in the same form Specialty is sufficient. as upon a
    This case came before Judges Pease and Burnet, by writ of error, at the April Term, 1825, in Gallia county.
    The declaration was in these words, “Norman McCloud was summoned to answer unto James Mors, who sues, etc., of a plea of the case, for this, to wit: That the said Norman, on May 18, 1819, at Green township, in the county aforesaid, by his certain note of that date, duly executed, promised to pay the said J. Mors, or order, one hundred dollars, by the first day of October next succeeding said date, as by the said note to the court here shown appears. Yet the said Norman, although often requested, hath not paid the amount of said note, or any part thereof; but the same to pay he hath wholly refused, and still doth refuse, to the plaintiff’s damage of three hundred dollars. Therefore he sues,” etc.
    J'The defendant demurred generally. The court below sustained the demurrer, and gave judgment for the defendant.
    The error assigned is, that judgment was rendered for the said Norman, when it ought to have been rendered for the said James.
    Douglass, for the plaintiff in error, contended:
    That the note was sufficiently set out in the declaration — that the defendant was fully apprised of the plaintiff’s claim — that the declaration gave him all the notice necessary to prepare his defense — that the special averments of indebtedness, liability, assumption, and request of payment, found in the old precedents, were useless, and increased the cost bill unnecessarily. He 'referred to Kid and Ohitty, and a case decided in Massachusetts, in support of his declaration. He also referred to a case decided in Jackson county, by the Supreme Court, in which a declaration, .taken from the same precedent,, had been sustained.
    King, for the defendant, contended:
    That the practice of Massachusetts was no guide for the courts ■of this state — that the doctrine in Kid and Chitty could not be ■sustained — that the mode of declaring on promissory notes, as on specialties, was condemned by the rules and principles of special pleading, and was contrary to the most approved precedents — that :the only plea in its favor was indolence — that it would destroy distinctions useful and supported by immemorial usage — and that he knew of no case in which the question had been settled in the •Supreme Court.
   By the Court :

If this question were now presented for the first time, we should at least hesitate. The objections to this laconic mode of declaring, are not without their weight, but we consider the point as settled by our predecessors, and do not feel at liberty to disturb it. The judgment, therefore, must be reversed, and the cause remanded for further proceedings-

      Sote by the Editor. — Beaffirmed, iii. 368.


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    *Thomas Lacy v. The Administrators of Garrard.

      Chancery-

    Penal bond obtained' from a person intoxicated, by procurement of the obligee, may be avoided at law. líquity can not interfere upon the ground of fraud alone, but only where the party shows good reason why defense was not made at law.
    This case came before Judges Pease and Burnet, at the May-Term, 1825, in Hamilton county.
    The bill states, that the complainant was fraudulently induced to sign a ponal bond, as security for one Daniel Lacy. That his signature was obtained while he was intoxicated, by the procurement of Garrard. That having signed the bond as principal, he could not show, at law, that it was intended to be as security. That judgment was entered against him as a principal, and that he believes that Daniel Lacy, the real principal, on whom process was not served, has a good defense at law, consisting of several payments, of which complainant could not avail himself in the suit at law, and prays for a perpetual injunction.
    The answer denies all the material averments in the bill.
   By the Court :

If the facts set out in the bill were admitted to be true, they would not entitle the complainant to the relief he asks for, as he might have taken advantage of them in the action at law. Had this signature been procured in the manner charged, the obligation would have been voidable at least. The facts might have been reduced to the form of a plea, and would have been a good bar to the action on the bond, or, if the payment had been made, as is alleged, they might have been pleaded or proved under a notice to the general issue. No reason is assigned why the complainant could not have taken advantage of them, much less is it pretended that he was prevented from doing so, by the fraud or procurement of the defendant. But independent of these considerations, the material facts are all denied, and the evidence is not sufficient to overthrow thd answer. The testimony is vague and contradictory. It does not show that the complainant was intoxicated by the procurement of the defendant; nor is it pretended that an ^unsuccessful attempt was made to discriminate between the principal and the surety, in entering the judgment. This allegation seems to be an after thought, seized upon as a pretext to delay the collection of the debt. A part of the payments proved by the complainant, were deducted from the debt before the obligation was given; and it is proved that there were other dealings between the parties, to which the residue of those payments might have related, which is rendered probable by the absence of all proof tending to show that they were made with reference to the debt in question. The defendant’s witnesses testify, that the bond was given for a part of the price of a tract of land, and that the residue of the price was paid bythe delivery of the same bind of property that is spoben of by the complainant’s witnesses. They also testify that the complainant and Thomas Lacy acknowledged that they both signed the instrument, so that the testimony taken together, rather confirms than contradicts the answer.

Injunction dissolved, and bill dismissed.

      Note by the Editor. — Eor late decisions in reference to remedy in chancery by the maker of a fraudulently procured contract, see xviii. 548, and cases cited. As to avoiding such contracts at law, see xvi. 504. As to defense of drunkenness in criminal cases, see xiv. 565.


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    Hastings v. Stevenson.

      Chancery.

    Construction of entry.
    A survey did not so appropriate lands as to render a subsequent entry void, in cases that occurred before the passage of the act of Congress of 1807.
    Land can not be appropriated without an entry, and where survey and patent include lands which the entry does not include, such land is subject to' entry as vacant land, and the patentee, or those claiming under him, shall in equity be decreed to convey to .the subsequent location.
    Construction of entry.
    This cause was heard at the May Term, 1825, in the county of Adams, before Judges Pease and Burnet.

      The bill states that on August 3, 1787, an entry was made in the following words; “No. 459. Captain Churchill Jones enters one thousand acres of land, part of a military warrant 2,311, on the northwest side of the Ohio, beginning at the mouth of Brush or Eighteen Mile creek, running up the river fifty poles, thence from the beginning down the river five hundred poles when reduced to a straight line, thence at right angles from the general course of the river for quantity.” That on March 17,1792, the following entry was made: “No. 2,023. Thomas McClanahan enters two hundred acres of land, on a military warrant, No. 1,863, on the lower side of Brush creek, beginning at a poplar tree, marked J. B. 1791, on a branch one and a half miles from the mouth of Brush creek, running south thirty, *east two hundred poles, and from the beginning north thirty, west forty poles, thence southwardly at right angles for quantity, of which entry, one hundred acres were surveyed on August 19, 1809, for which a patent was granted to William Eussell, assignee of J. Beasley, assignee of the said McClanahan, on November 23, 1818. That Eussell sold and conveyed the said one hundred acres to the complainant, on March 4,1819. That a survey purporting to be made on the aforesaid entry of Churchill Jones, but variant therefrom, was fraudulently made, including apart of the land owned by the complainant. That a certain N. Grimes acquired an assignment from Jones of the aforesaid one thousand acre entry, and fraudulently procured a patent therefor, prior in date to the patent of the complainant, but junior to the entry on which he claims. That John Stevenson, the defendant, having obtained a title from Grimes, for so much of the land as interferes with the prior equitable claim of the complainant, commenced an action of ejectment and recovered a judgment therefor.
    The bill prays for a decree that the defendant withdraw, or relinquish to the complainant, and for an injunction.
    The answer admits the entry in the name of 0. Jones — avers that the same was legally surveyed on November 17, 1787 — that the survey was recorded on March 17, 1788, that on October 28, 1799, a patent issued to Grimes — that the defendant has obtained a legal title to a part of said land, for which ho recovered a judgment at law in an ejectment — that N. Grimes sold and conveyed that part of the land which the defendant claims to Thomas Grimes, who sold and conveyed the same to the defendant. The defendant admits the entry for two hundred acres in the name of McClanahan ; but does not know whether it was special or legal, and that a part of it was withdrawn.
    Several witnesses were examined, but their testimony did not cast much light on the subject, pics.
    Thompson, for the complainant, contended:
    That an entry is notice to the world — that a survey is not — that if the survey varied from the entry, the land 'not covered by *the entry was vacant until a patent issued, and that a survey does not prevent an entry.
    Brush, for the defendant, contended :
    That after a survey an entry can not be made — that Jones’ entry is to be construed as calling for a base line of five hundred poles, including the fifty poles above the creek — that their survey is an amendment of their entry — that enfades may be amended, and that the finding of the jury in the ejectment established the corners by which they have surveyed.
   By the Court :

The evidence in this ease is not sufficient to enable us to make a final decree. The preliminary questions, however, on which the final decree must principally depend may now be stated:

1. It appears from the evidence, and the points conceded by the parties, that the entry of McClanahan, under which’ the complainant claims, was made agreeably to law ; neither the sufficiency nor the notoriety of its calls has been disputed. Brush creek was generally known. The poplar marked J. B., 1791, called for as a beginning, is well described. The side of the creek on which it stands, its distance from the mouth of the creek, and its situation on a run being given, a subsequent locator, by reasonable diligence might find it. And the surveyor testifies that in tracing the survey he found all the corners as described in the complainant’s deed, which appears to be a transcript from the patent.

2'. As this entry was made in 1792, and the entry of Churchill Jones was not carried into grant till 1799, it is the opinion of the court that it covered and appropriated all the land embraced in its calls, not included in the calls of Jones entry. The fact that the survey of Jones was made before the entry of McClanahan, does not affect the ease, as the entry was made long before the passing of the statute that prohibits locations on lands previously patented or surveyed. We admit that entries may be amended, but not that a survey is necessarily such an amendment of an entry as will appropriate land clearly without the calls of that entry, in opposition to a subsequent location. Were *this the case lands might be appropriated by a survey without a previous entry, notwithstanding the express requirement of the statute of 1779. It has, however, been settled by the Supreme Court of the United States in the case of Wilson v. Mason, that a survey not founded on an entry is a void act, and constitutes no title whatever; and that consequently the land so surveyed remains vacant and liable to be appropriated by any person holding a land warrant. The principle here decided seems to settle this question; for if an entry must precede a survey, the entry must cover the land surveyed, and every part of it, or a portion of it, would be appropriated without an entry. If any portion of the land, however small, may be legally appropriated without an entry, wo see no reason why an entire tract may not *be taken up in the same way. If the holder of a warrant may enter one thousand acres, and in surveying vary so far from his entry as to include one hundred acres not covered by it, he might, on the same principle, take one acre within and nine hundred and ninety-nine acres without its calls, or, as was the case in Wilson v. Mason, enter on one watercourse and survey on another. >

The terms used in the entry of Churchill Jones are somewhat ambiguous ; but we believe the true construction of it will give a base on the Ohio of five hundred poles, including the fifty poles above the creek. The mouth of the creek appears to be adopted merely as an object from which to ascertain the beginning corner, which is a point fifty polos above the mouth.

The words of the entry are : “ Beginning at the mouth of Brush, or Eighteen Mile creek, running up the river fifty poles; thence from the beginning down the river five hundred poles, when reduced to a straight line.” The word “thence” must refer to the termination of the fifty poles, and consequently the five hundred poles called for must commence at that point. The most natural construction of the language is, running up the river fifty poles, and from thence, as a beginning, down the river fUe hundred poles, etc. The same result will be had by a simple transposition of the words thence and from.

On the whole, we are of opinion that the true construction of Jones’ entry requires it to be surveyed by beginning *at a point on the bank of the Ohio fifty poles on a straight line above the mouth of the creek, and by running from that point, as a beginning corner, down the river with its meanders, to a point on the bank of the Ohio five hundred poles on a straight line from the beginning course, and from those points at right angles from the base line so far as to include the quantity of one thousand acres, the opposite lines being equal and parallel.

It is contended by the complainant that the survey heretofore made on this entry, extends further back from the river than the calls, as now construed, justify, and that it has been run so as to include a part of the land contained in his entry. On this point it is the opinion of the court that so much, if any, of the land included within the calls of McOlanahan’s entry and survey as has been covered by the survey and patent of Jones, but not included within the calls of his entry as now expounded, has been fraudulently recovered from the complainant, and that in equity and good conscience the defendant ought to release the legal title he has acquired to it by obtaining the elder patent. But as no survey has been made of Jones’ entry, on the principles here laid down, whereby the interference, if any, can be ascertained, it is ordered that the surveyor of Adams county execute a survey of that entry agreeably to the directions herein given, and return the same to the clerk of this court.


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    *Duckwall and Wire v. William Weaver.

      Error.

    When a subscribing witness to a writing denies bis signature, other witnesses may be called to prove the execution of the writing.
    A note partly destroyed may be declared on as entire, and proof received of the destroyed part.
    This ease came before Judges Pease and Burnet in Clermont county, at May Term, 1825.

      The facts are these : Weaver instituted a suit against Duckwall and wife, on a note purporting to have been executed by the wife when sole. The defendant filed the following affidavit: “David Duckwall, being sworn, saith that the promissory note on which the above action was brought was not subscribed by the wife of the defendant, when sole, as he verily believes.” No plea was filed in the cause at the trial, a part of the note set out in the declaration containing the name of the subscribing witness was offered in evidence, accompanied with proof that the note had been torn, and a part of it lost by accident. John Carrel, whose name appeared on the note, as a subscribing witness, was also called, who denied the signature to be his. The plaintiff then offered witnesses to prove that the name of John Carrel, on the paper offered, was the proper handwriting of the said John Carrel. The defendants objected to the whole of the evidence offered; the objection was overruled, and a bill of exceptions taken. A verdict was found for the plaintiff. Judgment entered, and a writ of error taken.
    The errors assigned were: 1. “ The court erred in admitting testimony to prove the handwriting of the subscribing witness.”
    2. “ The court erred in permitting apart of the note to be given in evidence, when the same was not so declared on.”
   By the Court :

It is a general rule that the best evidence the nature of the case admits of, and that is in the power of the party, shall bo produced. Deeds and other instruments of writing are therefore ordinarily to be proved by the subscribing witnesses.

The rule, however, admits of exceptions, as where the witness is dead, absent, incapacitated, or can not be had. In these eases inferior testimony is received, from necessity, *to prevent a failure of justice. In Lee v. Ballard Hill, 1790, M. S., it was ruled by Lord Kenyon, that where there could be no direct proof of the execution of the bond, by the subscribing witness, collateral evidence was admissible. In Abbot v. Plumbe, Doug. 216, Lord Mansfiold observed that it had been doubted formerly, whether if the subscribing witness denies the deed you can call other witnesses to prove it, but that it had been determined by Sir Joseph Jekyl, in a case which came before him at Chester, that in such case other witnesses might bo examined, and that it had often been done since. The same doctrine will be found in Peake’s Evidence, 101, 102.

The admission of such testimony can not be considered as inter- ■ fering with the rule, which prohibits a party from impeaching the credit of his own witnesses, for the witnesses subsequently called do not directly discredit the first witness. They do not testify as to his character, and the impeachment of his credit, if any ensues, is indirect and consequential. The witnesses who were objected to in this case, and admitted by the court, were called to prove a fact that was important in the cause, and although the first witness had proved that fact contrary to the expectation oi the plaintiff, that circumstance could not prevent him from pawing how the fact really was by other witnesses; and if the feelings or character of the first witness were in any way affected, it was the unavoidable consequence of the exercise of a legal right by the plaintiff. The scope of the rule just referred to seems to be to protect a witness from any direct attempt that may be made by the party who called him, to destroy his credit by general evidence; and one reason for the rule is that such a license would put it in the power of suitors either to sustain or destroy their witnesses, as their testimony might operate for or against them.

If the plaintiff in error be correct in the position he has taken, there must, in many cases, be a total failure of justice. Persons who sign their names to instruments as witnesses, frequently lose all recollection of the fact, and sometimes their handwriting changes so much, as to induce them to doubt or even deny their own signature, when examined *after a lapse of years; and it sometimes happens that a witness from corrupt motives will knowingly falsify the truth, by denying his signature. To say, in cases like these, that a party shall be concluded, would be a sacrifice of substance to form. The rule we conceive does not require such a rigid construction. If the subscribing witness can be had, he must bo produced. If when produced, he can prove the execution of the instrument, his evidence is that which the law requires, as it is the best in the power of the party, but if he can not identify his signature, he is, as to the party producing him, as though he was absent, or dead. The fact to which he is called remains unproved, and the party may resort to secondary evidence. We believe this to bo the common sense of the rule, and the settled construction of it.

The second assignment is that the declaration does not describo the note as mutilated and partly lost. This objection seems to have a reference to the rule laid down for declaring on deeds, of which the defendant has a right to oyer, and of which the plaintiff is therefore required to make profert. In these cases, when the deed can not be produced, the plaintiff may excuse himself from making a profert, by averring that the deed has been lost, by time and accident. In the case before us, it appears that a part of the note had been destroyed, and the objection was, that that fact had not been set out in the declaration. There is no analogy between this case, and those in which that averment is required. In an action on a promissory note, the defendant not being entitled to oyer, a profert is not necessary, nor is it necessary to set out the note in the declaration — it may be given in evidence on the general counts — its mutilated state, therefore, need not be described in the pleadings. It is time enough to disclose that fact, and to account for it, when the paper is offered in evidence.

      NoTE by the Editor — Bemedy on lost negotiable instruments, see xv. 242, and cases cited. As to proofs by subscribing witnesses, see ii. 56; iii. 42; vii. 116, part 1.


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    *John Robbins v. William Budd.

      Trespass on the Case.

    A person fined before one justice for profane swearing, and arrested and brought before another justice for the same offense, can only prove the former conviction by a transcript from the docket of the justice who assessed the fine.
    This cause came before Judges Burnet and Sherman, at the August Term, 1825, in the county of Delaware.
    The declaration contained three counts. The first stated, in substance, that William Robbins was a son and servant of the plaintiff in his employ; that the defendant, being a justice of the peace issued his warrant against the said William, caused him to bo unlawfully arrested, fined him in the sum of three dollars, and imprisoned him, whereby he lost the benefit of his labor. The second count charged the arrest to have been made with force and arms, The third count charged the defendant with having caused the said William to be illegally arrested on a charge of swearing several finable oaths — that the said William, had before that time been legally fined for swearing the same oaths — that the defendant knowing the premises caused him to be fined a second time, and to be imprisoned for the same offense, by which he lost, etc.
    Plea, general issue and notice.
    In support of the declaration the plaintiff gave in evidence a certified transcript from the docket of the defendant, from which it appeared that William Bobbins had been charged on oath before the defendant, as a justice of the peace, with having sworn two finable oaths, on which charge the said William was arrested, brought before the defendant, fined one dollar and cost of suit, and for non-payment of the fine was committed to prison.
    B. Cook testified that he was a justice of the peace, that on the evening of the third of July, William Bobbins, son of the plaintiff, swore two finable oaths in his presence, that he informed him at the time that he should take notice of it. That in the course of the evening he made an entry on his docket that said William was fined fifty cents for swearing the said oaths.
    On cross-examination he stated that no process had issued and that no cost had been taxed. That after he had fined the said William, the constable came and took him on a ^warrant from Justice Budd, and that he requested the constable to tell Esquire Budd what he had done.
    J. Cook testified, that he hoard William Bobbins swear, and heard B. Cook tell him he would take notice of it. He saw the constable arrest young Bobbins on the warrant from Budd; that he was called as a witness before Budd — that he proved the swearing of the oaths, and that he informed Budd, that B. Cook had fined Bobbins before, for the same oaths. On cross-examination, he stated that no transcript was produced from the docket of B. Cook, and that the defendant Budd had no knowledge of the fine imposed by Cook, but the verbal information given by the witness.
    On this evidence the plaintiff rested, and the defendant moved for a nonsuit.
   By the Court :

The declaration charges that the defendant was a justice of the peace — that as such he issued a warrant against William Bobbins, son of the plaintiff, for an alleged violation of the act for the prevention of certain immoral practices. That the said William had been previously fined for the same offense — that the defendant with a knowledge of that fact unlawfully fined him a second time, and caused him to be imprisoned, whereby the plaintiff lost the benefit of his labor. In support of the motion it is contended, that these facts have not been proved. The only averment tending to subject the defendant to his action is his knowledge that the party accused had been previously fined for the same offense. The declaration does not state the manner in which the defendant acquired that knowledge, but it appears from the testimony, that it was by a verbal message, sent by Justice Cook, which message the defendant "very properly refused to receive as evidence. It was the duty of the accused, if he wished to avail himself of that defense, to do it by a certified transcript from the docket of the justice who had imposed his fine. Parol evidence of the fact was inadmissible. If the suit had been brought in a court of record, and the defendant had plead a former conviction in bar, he could not have sustained that plea by parol testimony, but must have produced the record of the conviction. *Although the pleadings before the justice are ore terms, the rules of evidence are the same as in courts of record, and the defendant, acting as a judicial officer, was bound to require the best evidence in the power of the party, and to reject that which was inferior. The plaintiff not having shown that such evidence was produced, has failed to prove the only fact on which he could hope to sustain his action — we therefore advise him to submit to a nonsuit.

Judgment of nonsuit.

      Note BY THE Editor. — Justices’ Records, see ii, 180; y. 545; ix. 131-xiv. 91. ’


text:
    Townsend v. Alexander.

      Chancery.

    Where party seeking specific performance of a contract insist upon obtaining unconscionable advantage, court will dismiss Ms bill.
    This case came from before Judges Pease and Burnet, at June Term, 1825, in Warren county.

      The facts are these: The defendant contracted to sell to the complainant a house and lot in the town of Springhorough, on the complainant’s paying for the same two hundred and forty dollars in the following manner: Twenty dollars to he paid on a day named ; one hundred dollars to be paid on a subsequent day ; one hundred dollars to be paid by assigning notes on good men ; and in discharge of the residue the complainant was to convoy five unimproved lots in Springborough. The first and second installments, amounting to hundred and twenty dollars, were paid. In discharge of the third installment the complainant offered to assign promissory notes on different individuals to the amount of one hundred dollars. The defendant objected to the sufficiency of a part of the notes, amounting to seventy-one dollars and forty cents, but was willing to receive the residue, amounting to twenty-three dollars and sixty cents. Complainant refused to assign a part without the whole. Defendant then instituted a suit before a justice of the peace, for the whole amount of the third installment. The justice, mistaking the extent of his power, gave judgment that the defendant in the suit before him, should pay *the plaintiff the sum of seventy-one dollars and forty cents, being the amount of notes objected to, and ordered him to assign to the plaintiff the residue of the notes, to which no objection had been made, amounting to twenty-three dollars and sixty cents. The complainant refused to assign the notes, but offered to pay tho seventy-one dollars and forty cents, and to execute a deed for the five lots in Springborough. The prayer of the bill is that the defendant may be decreed to convey the house and lot.
    On the part of the complainant it was contended that the recovery before the justice was a judicial detei-mination of the amount due on the contract. That the order relating to the assignment of the notes was a nullity, and not obligatory; but if otherwise, that the defendant had his remedy. That this court can not overhaul the merits of that judgment, which was rendered in a suit, in which the entire claim of the defendant was exhibited.
   By the Court :

The facts in this case are not disputed. The contract is admitted, and the performance by the complainant as far as it is alleged in the bill. The only point of controversy is whether the defendant shall lose twenty-three dollars and sixty cents, part of the third installment, in consequence of the erroneous opinion of the magistrate, as to the kind of judgment or decree he was authorized to enter. It is evident, and in substance admitted by the complainant, that the third installment of one hundred dollars, was wholly unpaid when suit was commenced before the justice, and that judgment was rendered for a less sum than was due, in consequence of a belief that the justice had power to compel an assignment of a part of the notes. Although it is not in the power of this court to interfere with the judgment of the magistrate, yet it is in their power to require the complainant to do equity, as the only condition on which they will render him their aid. We can not shut our eyes on the fact, that the complainant is seeking an unjust advantage of the defendant, and that if the prayer of his bill should be granted, he will obtain the property at a less sum than he stipulated to pay. He may claim the ^advantage he has gained at law by refusing to assign the notes, or to pay more than the amount of the magistrate’s judgment, but while he does so we will leave him to his remedy at law. Before he has a right to ask equity he must do equity. He must come with clean hands, if he expects to obtain the aid of this court. As the case now stands, we are called on to decree him a title under such circumstances as must forever prevent the defendant from obtaining a part of the consideration. The complainant does not pretend that the sum for which the magistrate directed notes to be assigned has been paid, and he still persists in his refusal to pay it. We have no alternative, therefore, but to dismiss his bill.

      Note bx the Editor. — When chancery will enforce specific performance, see i. 124; ii. 221, 341; iii. 335; v. 204, 425; vi. 383; vii. 84, part 2; viii. 198; x. 215; xii. 355; xvii. 27. "When not, i. 14, 429; ii. 383; vi. 528; vii. 73, part 2, 90, part 2; viii. 198; ix. 189; x. 305, 382; xi. 109; xii. 1, 193; xiii, 552'; xiv. 547.


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    Benjamin M’Carty v. Charles Burrows.

      Chancery.

    Where a matter of fact, properly a subject of defense at law, is not litigated at law, equity does not relieve by an examination into that fact.
    This cause was heard before Judges Pease and Burnet at the June Term, 1825, in the county of Warren.
    The bill states, that defendant being about to go to New Orleans, and having a sum. of money on hand in current bank notes, for which he had no immediate use, proposed to lend them to complainant, to be refunded on his return from New Orleans. That the complainant took the bank notes, and gave his own promissory note for the amount — that after the defendant had returned, the complainant called on him and told him that the notes did not answer his purpose — that he could not pay his debts with them, and offered to return them — that the defendant agreed to take them back, and give up the promissory note which he held — that complainant then gave him the bank notes, on which the defendant promised- to destroy the promissory note, which was not at that time present — that relying on the integrity of the defendant he took no receipt, and had no witnesses by whom he could prove the payment — that the defendant, instead of destroying the note, Commenced an action on it, recovered judgment and had sued out execution.
    *The prayer of the bill is for a perpetual injunction. The answer admits the loan of the money — the promissory note — the judgment and execution;-but denies the repayment, and avers that the debt is just and that it is wholly unpaid.
    Two witnesses were examined on the part of the complainant. The first testified that he heard the defendant say he had received the bank notes from complainant, and had promised to destroy the promissory note. The second testified that he was present at a conversation between the parties, when the defendant made the same admission. On the part of defendant testimony was offered as to the general character of the first witness, and the cause was submitted.
   By the Court :

There is no ground on which this bill can be sustained. The credibility of the first witness is entirely destroyed. Independent of the proof as to his general character, he has equivocated, and told different stories at different times. His evidence, therefore, is entitled to no weight. The second witness contradicts one of the allegations of the bill, that complainant had no witness by whom he could prove the payment of the money.

The material averments of the bill are positively denied by the answer, which is responsive, and is not impeached.

The remedy of the complainant, admitting the truth of his allegations, was at law. The whole contest between the parties is a matter of fact, relating to the payment of a sum of money, of which the complainant might have availed himself in the action on the promissory note, and if the second witness testified truly, of which there is great doubt, McCarty knew by whom he could prove the confession of the payment. But be this as it may, the case is not within the jurisdiction of this court. Putting the answer out of the question, the complainant has not presented a case that can be sustained. It might have been necessary for him to file a bill of discovery, pending the' suit at law, but having submitted to a judgment in a case depending wholly on a contested fact, he can not review the merits of that judgment in a court of chancery.

The injunction must be dissolved, and the bill dismissed.

      NoTE by the Editor. — The doctrine of this case is recognized in ii. 22, 23; iii. 278; viii. 43; xiii. 107.


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    *Wood and Beckelheymer, Adm’rs, v. Chapman Archer.
    Chancery.
    Case not relievable in equity.
    This cause was heard at the May Term, 1825, in the county of Clermont, before Judges Pease and Burnet.

      The bill states that after the complainants had taken out letters of administration, an allowance of one hundred and ninety-five dollars was made for the support of the widow and children of the intestate for one year, agreeably to the statute. That a contract was afterward entered into, between the complainants and the widow, that she should receive thirty-nine dollars for her own support, and that they should receive the residue and support the children, which was done. That the defendant was appointed their guardian, and in that character commenced a suit against the complainants, before a justice of the peace, for the money received by them under the agreement aforesaid, and recovered a judgment; that the complainants then gave notice of an appeal, after which an agreement was entered into, that the complainants should relinquish their appeal, and the defendant should amicably and honestly settle the matter; but that after the time for presenting the appeal had expired, the defendant refused to settle.
    The answer denies the material averments of the bill.
    . The cause having been submitted on bill and answer, the following points were decided by the court:
    1. The claim of the complainants was a proper defense to the suit at law.
    2. The promise to settle or relinquish the appeal was made on a :good consideration, and may be investigated in an action at law.
    3. The bill does not present a case that could be sustained in ■equity, if the facts were all admitted; but as they are principally •denied, and no evidence is offered, the injunction must be dissolved .and the bill dismissed.


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    *Duckwall and Wife v. Zimmerman.

      Chancery.

    Case not relievable in equity.
    This cause was heard before Judges Pease and Burnet, at the May Term, 1825, in the county of Clermont.
    The bill stated that suit was commenced against the complainants on an instrument, purporting to be a note executed by Kitty Ann, now the wife of the complainant Duckwall, while a feme sole. That the defendants in the suit at law, believing that the plaintiffs must prove the execution of the note, did not attend, and that judgment was entered against them. They deny the execution of the note, and pray for a perpetual injunction.
    The defendant demurred. The cause was sumitted without argument.
   By the Court :

There is no ground on which this bill can be sustained. It does not contain one feature of a case proper for, or relievable in this court.

The injunction must be dissolved and the bill dismissed.


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    J. Wood v. Pratt and Davis.

      Chancery.

    Case not relievahle in equity.
    This cause was heard at the May Term, 1825, in Clermont county, before Judges Pease and Burnet.
    The bill states that the defendant, Davis, being a justice of the peace, entered a judgment on his docket against the complainant in favor of S. Pratt, for upward of eighty dollars; that he was not served with process, and had no knowledge of the suit till after judgment had been rendered and execution issued, and prays for a perpetual injunction.
    The answer admits the judgment and execution, and avers that complainant' had notice of the suit before the justice — that he appeared at the trial and admitted the debt to be just, .on which judgment was entered against him.
    -‘'■-The cause was submitted on bill and answer.
   By the Court :

Let the injunction be dissolved and the bill dismissed.


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    N. Numlin, Adm’r of Jane Scott, who sues for the use of R. Workman, v. Samuel Westlake.

      Error.

    Where a suit is.brought in the name of a plaintiff for the use of a third person named, it is not necessary to show an assignment of the subject of the action to such third person.
    This cause came before Judges Pease aud Burnet, at the April Term, 1825, in the county of Gallia.
    It appeared, from the record, that a certiorari had issued from the common pleas of Gallia to John Kerr, a justice of the peace, who returned the same with a transcript annexed, from which it appeared that a summons issued in the name of Jane Scott for the use of Workman, against Samuel Westlake, which was returned served. That defendant appeared and confessed judgment for twenty-one dollars and cost. That sundry executions had been issued by the justice, on which no property was found. That the proceedings before the justice had been stayed by an injunction which was afterward dissolved. That’the justice then issued a summons on the injunction bond, in the name of Sc.ott, for the use of Workman, against the defendants, Samuel Westlake and his securities. That the defendants appeared, made no defense, and that judgment was entered by the justice for the penalty, of the bond, to be released on the payment of twenty-eight dollars and forty-seven cents.
    After the return of this transcript diminution was suggested, and a further return obtained, setting out the original note, on which the suit was brought. It did not appear from the note that it had been assigned to Workman. Pending the certiorari, Jane Scott died, and N, Numlin, administrator, was made party. The following reasons were assigned on the certiorari:

    1. “ The suit was brought in the name of Jane Scott, and the judgment was rendered in the name of Jane Scott, for the use of Workman.”
    *2. “ It does not appear that Workman had any interest in the note on which suit was brought, as there was no assignment or order by Jane Seott to Workman for the payment of the same to him.”
    3. “ The judgment does not agree with the writ.”
    On these reasons the court of common pleas set aside the judgment of the justice, and rendered judgment against the defendant in certiorari for cost, to reverse which this writ of error was taken.
    The error relied on is, that the court of common pleas set aside the judgment of the justice, and rendered judgment in favor of plaintiff in certiorari.

   By the Court :

The assignment in this case renders it necessary to examine the reasons filed in the court below.

The first and third reasons are not true in point of fact. The. transcript shows that the original summons issued in the name of Jane Seott, for the use of Workman, and that there is no disagree' ment between the writ and judgment.

The second reason does not seem to be very material. As the note was not assigned, the suit was properly brought in the name of the payee. The additional words, for the use of Workman, were intended to show that he had a right to receive the money when it should be collected. The want of an assignment, or an order on the back of the note, does not disprove that right. It might have been created by a separate instrument, or a parol agreement, the validity of which could only be questioned by the payee. It is a matter of no interest to the defendant to whom the money' belongs; it is enough for him to know, that the title to the note is in the plaintiff, in whose name the suit was brought, and that a second action can not be sustained against him for the same demand.

It is a common practice in the courts of this state to designate in this way the person for whose benefit a suit was brought, when it is necessary to commence it in the name of the original obligee or payee, and it has been considered a sufficient authority from the nominal plaintiff to justify the officer in paying the proceeds of the judgment *to the person designated, where no objection is made. It has been treated as an acknowledgment, by the plaintiff, that he was a trustee, suing for the use of another, and it appears unnecessary to inquire in what way the trust was created, as long as the trustee is disposed to acknowledge it, and the interest of third persons is not affected by it.

On these grounds we are of opinion that the court of common pleas erred in setting aside the judgment of the justice.

Judgment reversed, and cause remanded for further proceedings.


author: By the Court:

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    Whitmore Knaggs v. Horatio Conant.

      Chancery.

    Where a cause is certified to the Supreme Court from the court of common pleas, upon account of the interest of the judges, the facts upon which the interest arises must he set out in the certificate.
    This cause came before Judges Burnet and Sherman, at the August Term, 1825, in the county of Wood.
    It was certified to this court from the court of common pleas on the ground that there was not a constitutional quorum of disinterested judges to try it. The certificate accompanying the record was in these words : “ Whereupon this cause being called 'by the honorable court in chancery, E. Lane, Esq., solicitor for the defendant, suggests that there is not a quorum of judges qualified to try this cause on account of interest, and this appearing, the clerk of our said court, according to the statute in such case made and provided, certifies the pleadings to the Supreme Court.”
    The court, having inspected the record, refused to take cognizance of the cause for want of jurisdiction, and ordered the transcript to be sent back to the common pleas of Wood county.
   By the Court:

The statute provides, that if any suit or action in the court of common pleas, it shall so happen that there is not a sufficient number of disinterested judges of such court to sit on the trial, it shall be the duty of such court, on the application of either party, to cause the facts to be entered on the minutes of the court, and also to order an authenticated copy thereof, with all the proceedings in such suit or action to be forthwith certified to the next Supreme Court *of the county, which Supreme Court shall thereupon take cognizance thereof, in like manner as if it had been originally commenced in that court, and shall proceed to hear and determine the same accordingly. The jurisdiction of this court, therefore, depends on the existence of an interest in the court below, which must be ascertained by the record. The law requires the facts, from which this interest is inferred, to be entered on the minutes and certified to the Supreme Court with a transcript of the proceedings. We are not to rely on the opinion of the court of common pleas, or of counsel in the ease, that there -is not a constitutional quorum of disinterested judges. We must be furnished with record evidence of the facts from which that conclusion is drawn. Judges and lawyers frequently differ as to what amounts to evidence of an interest, and, as our jurisdiction depends on the reality of such an interest, we must bo furnished with the facts, and form an opinion for ourselves. In this case it does Rot appear what the facts were, or that the common pleas directed any entry or certificate to be made. It is merely stated that, on the suggestion.of counsel, the clerk certifies, etc. On such a certificate as this we can not venture to proceed, as it does not furnish us with evidence from which we can ascertain that we have jurisdiction. The letter and spirit of the statute requires that the courts below should ascertain the truth of the facts, from which the interest of the judges is inferred, and that they order those facts to be entered on their minutes, and certified, with a copy of all the proceedings, to this court.


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    Hartshorn v. Wilson.

      Error.

    Attachment before a justice of the peace may be set aside on certiorari, upon proof that the defendant was not a non-resident at the time it issued.
    This cause came before Judges Burnet and Sherman, at the August Term, 1825, in Sandusky county.
    The facts were these : Hartshorn having made affidavit of a debt due from Wilson, and that he absconded to the injury of his oreditors, sued out an attachment before a justice of the peace, by virtue of which the constable to whom it was directed attached a yoke of oxen. Judgment was afterward entered in favor of plaintiff, and execution issued. *Wilson removed the proceedings to the common pleas by certiorari, and assigned for error that before and at the time of suing out the writ of attachment, he was living and residing in the said county of Sandusky, and that from the day of the suing out of the writ until the rendition of the judgment he was constantly within the county at his usual residence, pursuing his ordinary business.
    The defendant demurred. The court below sustained the assignment and set aside the judgment of the justice, to reverse which the writ of error was brought. The error assigned was that the court of common pleas erred in setting aside the proceedings and judgment of the justice.
    The cause was submitted without argument.
   By the Court :

The question presented in this case is, whether the plaintiff in certiorari, against whom judgment has been entered, on a writ of attachment, issued by a migistrate can assign for error the fact that he was a resident of the county where the writ issued, and had not absconded, as was averred in the affidavit on which the attachment issued. The writ of attachment is given by statute, and can be issued only against absconding debtors, or such as do not reside within the county; for convenience, or from the necessity of the vjase, the justice is authorized to receive the affidavit of the creditor, that his debtor absconds, or is a non-resident, and on that evidence to issue the writ, but the legality of the process depends on the fact, and not on the affidavit, which is received as evidence of the fact. The process against a resident must be a summons or capias on which personal service is required — ho must have a day to answer before judgment — he is entitled to a stay of execution, and his property is not liable to be taken in the first instance as in case of an attachment. The statute makes this distinction, and it is not in the power of a creditor, by perjury or mistake, to do away its legal obligation, or the right of the debtor to insist on it. Process may issue by mistake, and proceedings on it be sustained until the mistake is judicially ascertained ; but whenever that is done, the party injured is entitled to relief. Individuals áre not at liberty to change *the law, or by fraud, or mistake to create a jurisdiction, not known to the law; and when such an attempt is made, the proceeding can not be sustained after the truth is judicially known. An attachment founded on an affidavit taken in conformity with the statute, must be considered prima facie as legal, and will sustain the writ and the proceedings had on it; but as this mode of proceedings is not authorized against a resident who does not abscond, whenever it is ascertained that the defendant is a resident of the county and has not absconded, proceedings must be stayed. The remedy by attachment being founded on the alleged absence of the defendant, personal notice is not required; the proceedings are ex parte — the defendant has no day in court; judgment may be obtained and his property sold without his knowledge and before it is in his power to take advantage of the error. It seems necessary, therefore, to prevent abuses of legal process in cases like this, that the party injured should be permitted to assign the fact for error, on a writ of certiorari; and we do not discover anything in the practice, inconsistent with the principles which govern proceedings in the nature of appeals in other cases. On a writ of error, the plaintiff may assign for error matter of fact not apparent on the record, and put the defendant to take an issue, either on the fact or on the law, which seems to be the course pursued in this case.

      NoTE by the Editor. — As to the absence of all the debtors in attachment cases, see also iv. 132, 149. Certiorari in attachment cases, see also ii. 202.


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    Hammer v. McConnel.
    Process against two, one not served, declaration against one. Appearance and plea "by one, verdict against both and judgment, may be amended at a subsequent term by striking out the name of defendant not served with process.
    This case came before the court upon three separate motions, made in the Supreme Court for Tuscarawas county, and. adjourned for decision to this court.
    The case was this: Hammer brought an action for goods sold and delivered to John and Alexander McConnel, as partners in trade — process issued against both, but as to John McConnel, was returned not found. The declaration was filed under the statute suggesting the return of non est as to John — Alexander appeared and pleaded to the action separately, and in the court of common pleas a verdict passed in his favor. The plaintiff appealed to the Supreme Court, where a verdict was found for the plaintiff. The verdict was returned as against both John and Alexander, and a joint judgment was rendered against both. At a subsequent term, the plaintiff moved for leave to amend the judgment by striking out the name of John McConnel. The defendant moved to set aside the verdict and judgment, as irregular, and award a venire facias de novo — and also, in the event this motion should be overruled, he moved for a writ of error coram nobis.

    *Wright, for the plaintiff, insisted :
    That the verdict and judgment being joint, was a mere clerical error, which might bo amended upon motion. He denied the power of the court to set aside a verdict and judgment, at a subsequent term, and award a venire facias cíe novo. He also argued that the Supreme Court, not being specially authorized by statute to award a writ of error coram nobis, could not legally issue a process of that character.
    Tappan, for the defendant, maintained:
    That the verdict of the jury being against both defendants, it was not a clerical error, and could not be amended as such. In support of the power of the court, at any time to set aside irregular proceedings, he cited the language of Justice Ashurst, in Rex v. Holt, 5 Term, 444, and Rex v. Teas, 11 East, 307.
   By the Court :

The verdict in this case is a substantial finding for the plaintiff. The issue was between the plaintiff and Alexander McConnel, and upon that issue alone the jury could decide. There is no difficulty in understanding how John McConnel was connected with the case, and it is perfectly easy to see how it happened that his name was included in the verdict. It was a mere formal error. When the clerk receives the verdict, it is always upon the terms, that the court may correct matter of form, not touching matter of substance.

The verdict against a party to the contract, but not a party to the suit, was an informality and nothing more. It was the duty of the clerk to record the verdict according to the parties at issue, and to have entered the judgment in the same way.

Had the mistake in the verdict been discovered as soon as the jury left the box, can there be any doubt but that the court would have corrected it, and directed a judgment conformable to such correction ? We think there can be none. As a mere clerical error, it is still amendable. Leave is accordingly given to make the amendment. This decision concludes the other two motions; they must of course be overruled.

      NoTE by the Editor. — Amendments of verdicts and judgments. See also iii. 486; v. 227, 514; vi. 274; i. 375; ii. 246; viii. 405; ix. 131.