author: Birchard, J.

text:
    Rowland Ellis and another vs. Nicholas Bervellier.
    An indorser of a Bill of Exchange, whose interest is equally balanced, is a competent wiiness to prove a prior indorsement, claimed to have been forged.
    The interest is so balanced, where the recovery by the Plaintiff or Defendant will £ subject him to the suit of the one or the other, in an action where the recovery, by either, must be for the same amount.
    This is a Writ or Error directed to the Court of Common Pleas of Hamilton County.
    The' original action was trover, by Nicholas Bervellier, against the plaintiffs’ in error, Ellis & Vallette, to recover the value of a bill of exchange, which, it was alledged, belonged to Bervellier, and in which he recovered the sum of $668 damages, and the costs of suit.

      In Bank.
    Dec. Term, 1846.
    During the progress of the trial, a bill of exceptions was taken, from which it appears that the draft in controversy was dated at Metz, Nov. 3, 1841, drawn by Dorr & Brothers upon Rogers & Co., in New York, for $544, payable to the order of Bervellier at two days sight.
    The bill of exceptions further shows, that Ellis & Vallette are brokers, and purchased this draft, in the usual course of business, of one Jesse Justice. It was proved, that a Mr. Maltitz and the plaintiff below, Bervellier, as the witness believed, came to his father, Jesse Justice’s office; that Maltitz acted as interpreter for the plaintiff, who was a German, and proposed selling the draft in question to Jesse Justice. The latter said be had no correspondents in New York, but he would see if he could sell it for him; that his father, Jesse Justice, went out, and came back and told the parties that Ellis would take the draft and pay $200 down and the balance as soon as he could get advice of its payment in New York; that he had received the $200 of Ellis, and told Maltitz the plaintiff, Bervellier, must indorse the draft; that, after conversation between Maltitz and the said Bervellier, in a language which the witness could not understand, Maltitz signed Bervellier’s name on the draft, the plaintiff being then standing close by the said Maltitz. After the name was signed, Jesse Justice asked if it was all right, to which the plaintiff nodded assent, and the money was counted out to the plaintiff, but whether he or Maltitz took the money out of the office, he could not tell. He says Jesse Justice was not to charge any thing for his services in the business.
    The defendants below, now plaintiffs’ Jm error, then offered Jesse Justice as a witness to prove that he sold the draft in question to Ellis for the plaintiff, and at his request, and as his agent; that he did not and was not to charge any thing for his services, but merely did it as a friendly act.
    The introduction of Jesse Justice was objected to, because he had put his own name on the draft and was, therefore, liable' to Ellis as indorser. The witness was rejected by the Court, although Ellis & Vallette executed a release to Justice from all liability to them for costs incurred or to be incurred by the suit.
    The error assigned is, that the Court of Common Pleas erred an rejecting the testimony of the witness.

      Charles Fox, for Plaintiffs’ in Error.
    I maintain that Justice stood perfectly indifferent in this case. Having indorsed the draft to Ellis, he would, it is said, be liable to Ellis, on his indorsement, as a warrantor in case the suit went against him; but, if Bervellier lost the suit, he would have had the right to recover against Justice, so that the latter stood perfectly indifferent as to the result of the suit. He could neither gain nor lose by the event. The record, in this case, could not be used for or against Justice in a suit by Bervellier v. Justice; and there can be no doubt but what Bervellier could maintain a suit against Justice and against all parties who converted the draft, if he could maintain it against Ellis & Vallette — so that, according to my apprehension, Justice stood perfectly indifferent, as to interest, and this, I take it, is the test as to the competency of a witness. The case of Canal Bank v. Bank of Albany, 1 Hill’s Rep. 289, cited by Messrs. Brough & Zinn, establishes the principle for which I contend.
    As to the liability of Justice, as an indorser merely, the Court perceive Justice is not even liable at all in that capacity, because the bill was paid. He could only be made liable indirectly, by a protest and notice. The only interest, therefore, which he could possibly have in the matter, is on account of the implied warranty of title.
    In 9 Pick. Rep. 182, it is held, a party is not incompetent on the ground of his liability as a warrantor, if he would be liable to others, to the same extent, notwithstanding the result of the suit.

      In 5 Pick. Rep. 447, in an action against an- attorney for money collected, the debtor was admitted as a witness to prove he had paid the debt to defendant, because he was liable to the plaintiff whether he succeeded in that suit or not.
    In the case of Larbalestier v. Clark, 1 B. Adol. 899; 20 Com. Law. Rep. 899, a witness, who had sold the wine to the defendant, was excluded on the supposed ground of his liability as warrantor, but afterwards a new trial was granted because of the error of the Court in excluding the witness. The argument was, that, if the plaintiff recovered, the witness would be liable to pay not only the value of the goods, but, also, the cost of the action; but the Court said, he would not be liable for costs unless he had been guilty of fraud, and they say such has been the law since Jones v. Brooke, 4 Taunton Rep. 460 ; cited, also, in Greenleaf’s Ev. note to 444.
    Now, the Court will perceive the reason why a warrantor, like a surety, is rendered incompetent, is because he is liable, not only to the value of the article sold, but, also, to the costs of the suit. Hence, if this liability is removed by a release for the costs, he stands perfectly indifferent; for he is as much liable to the real owner as he is to the person to whom he has. warranted, and where the interest is balanced, the witness is competent. Greenleaf s Ev. 445, sec. 399.
    Where the witness was liable for costs, but said he was indemnified for the costs and considered he had ample security, he was held competent; so where he has funds to indemnify him. Greenleaf’s Ev. sec. 420; 7 Cow. Rep. 358.
    Now, in this case, all right to recover any costs for which ■ Justice could bo liable in this case, was released by Ellis & Yallette, so that he was as much liable to the plaintiff as to the defendants, and the witness stood as liable to one party as to’ the other, and was, therefore, disinterested.
    In Cutter v. Rathbun, 3 Hill, 577, a person had bought goods, representing himself to be the agent for Bonnet, and made a noté in Bennet’s name without authority. In an action of replevin for the goods, Bennet was held a competent witness. to show he gave no authority, because the record could not be «sed by him as a bar, or used in a suit against the witness on the note.
    So, in 4 Taunton, 18, a witness was held competent to prove that he received the property from the plaintiff, as security for money due, and that, according to an agreement with the. plaintiff, he sold the property to the defendant, because the verdict could not be used for or against him. This is a case directly in point. 4 Barn. & Aid. 410.
    So, in this case, Justice was a mere agent for the plaintiff. He sold the bill for the plaintiff, and as his agent, without any compensation, or expectation of any; and the plaintiff confirmed the sale by receiving the money, or part of it. This was the fact offered to be proved.
    The Court also erred in supposing Justice was liable as indorser. There was not, and could not be any liability as indorser, because the draft was paid. The liability as indorser, •originally, was contingent, depending on the fact whether the draft was paid. In this case the draft was paid, and this was the ground of the action, that Ellis & Valleite had obtained the money for the draft, which was the conversion complained of. He could not be liable as indorser, because to be liable in that capacity the draft must have been protested, and he notified of the fact.
    But even admitting that Justice was liable on the draft, and this had been an action , on the draft by the holder, and there had been affirmative proof that he had been made liable by notice, still, I maintain, the mere fact of his being liable as indorser would not have prevented him from being a competent witness. This doctrine is now well settled, both in England and America. This doctrine is reviewed and settled, in The Farmers’ and Mechanics’ Bank of Michigan v. Griffith, 5 Hill, 476. The Court say: “ Perhaps it might be doubted 1 whether the witness ought to be excluded, even if his liability * as indorser had been shown, for, by fixing the debt upon the * defendant, he does not discharge himself. If he is liable, the
      ‘ plaintiff may prosecute him, as well as the defendant, and £ prefer to take execution against him; or the maker may be £ insolvent, so that his interest would be contingent.” 5 Wendell, 181; 19 Com. Law Rep.- 256; 3 Hill, 577.
    Again : Is it certain that an indorser of a draft does, in fact, warrant all the previous indorsements not to be forgeries ? I know it is held that the indorser does, in fact, guaranty the bill shall be paid by the acceptor. But is there any guaranty operating after the bill is, in fact, paid ? I know it is in general laid down, in the elementary books, that the indorser guaranties the genuineness of the previous indorsements; and yet, I believe, this question is not so well settled as is sometimes supposed. On the contrary, in the East India Co. v. Tritton, 3 Barn. & Cress. 280; 10 Com. Law Rep. 82, the Court held that an indorser does not warrant the genuineness of the previous indorsements; and, in this case, they decided there could be no recovery, by the acceptor, against the party who had indorsed the bills and received the money, as they only acted as agents of their principal, although their name was, in fact, on the back of the bill. The bills had been paid in that, as in the present case. If this decision is a correct exposition of the law, there could be no recovery at all against Justice, by Ellis & Yallette, and of course he was a competent witness.

      Brough Zinn, for Defendant in Error.
    In the language of the bill of exceptions, the witness was offered to prove ££ that he sold the bill in question to the de- £ fendant Ellis, for the plaintiff, and at his request, and as his £ agent.” We submit that he was clearly incompetent' for this purpose; for that,
    First: The indorsement of the witness being unconditional — the fact of agency no where appearing upon the paper— and there being no ambiguity, parol testimony is inadmissible to vary the legal import of the instrument. Stackpole v. Arnold, 11 Mass. Rep. 27; Shmkland v. Corporation of

      Washington, 5 Peters’ Rep. 390, 394; Stone v. Vance et al., 6 Ohio Rep. 246.
    Second: That a party to a negotiable instrument, though he may be called to prove facts subsequent to the indorsement, and which destroys the title of the holder, is not competent to prove any circumstance preceding or concurrent with the indorsement, in order to work such a result. Stone v. Vance et al., 6 Ohio Rep. 246.
    Third : That the witness was incompetent from interest.
    He is an unconditional indorser of a bill of exchange; and, therefore, a new drawer — a warrantor of title in himself, and impliedly so of the genuineness of all preceding indorsements. Chitty on Bills, 636; Story on same, 247, sec. 225.
    It is scarcely necessary to multiply authorities to a point so well settled, and to shake which the counsel for plaintiff has cited but a single case, The East India Co. v. Tritton, 3 Barn. & Cress. 280; 10 E. C. L. Rep. 82. And this case, the Court will observe, is widely different from the one at bar. It was an action of assumpsit, by the acceptors, to recover of the party to whom money was paid, upon the ground that the indorsement to the payee was not regularly made. That indorsement had been made by virtue of a power of attorney, which was subse quently adjudged insufficient for the purpose. In deciding a case where money was paid under a mistake of law, a doubt is expressed as to the liability of preceding indorsers, and nothing more. This will scarcely suffice to unsettle the general principle, which the plaintiffs’ counsel admits runs through all the elementary books.
    It is claimed, however, that if such liability exists, it is terminated by the payment of the bill, and that such payment, in this case, has been made. It is true that Rogers & Co. paid the bill, and to that extent, as between Justice and Ellis & Vallette, the undertaking of the former is performed. But his warranty of title, and of the genuineness of Bervellier’s indorsement, is not thereby released. The counsel for plaintiff appears to overlook the fact, that the bill has been paid on a forged indorsement; that it is therefore not a legal payment] and that, instead of releasing the indorser upon his implied warranty; it - is the very thing that goes to fix it upon him." The books hold but ■ one language on this, subject; Chitty oh Bills, 286, and cases cited ; 32 E. C. Law Rep. 94'; 1 Hill, 287,'
    If the' principle for which counsel contends be true, as between Ellis & Vallette, it is equally so between the latter and Bervellier; and, in that event, the plaintiff below had no right to maintain his action against the defendants. The argument-requires only,to be-stated to demonstrate its absurdity. . ■
    If, then,. the witness was.liable to the defendants below, in the event of á recovery against them, was he incompétent, from ■ interest, to testify in their behalf? • , . 1
    We adopt the general, and well settled principle, that the-true .test of- the interest of the witness is, that he will either lose or gain by the direct legal operation or effect of the judgment', or that the same will-be legal evidence for or against him in any other action. 1 .Greenleaf’s Ev. 434, and cases cited; 5 Ohio Rép. 283.' ' ' ' . ' ,
    It is not proposed to review at. length the cases, cited by plaintiffs’ counsel. They are all .cases in' contract; and this being an action of tort, they are not applicable to it. .In this case the witness occupies a very different position from any that is put in the authorities quoted — one that excludes him, as well from interest as upon.sound principles of legal policy.
    The' servant is not a witness for his master, in a case for damages caused by the negligence or misconduct of the former. 4 Mass. Rep. 349; 12 Ibid, 163. ( ■
    The pilot cannot be called for the captain, who is sued for-running down a vessel. 3 Car. & Payne, 305. -
    The guard of a coach is incompetent, in a like charge, against the proprietors. 4 Car. & Payne, 383.
    A broker cannot be called by his principal, in an action for misconduct, in the purchase of goods made through the broker;
    6 Esp. 71 ¿- -See, also, the general rule, and cases cited in- 1 Greenleaf’s Ev, 439, sec. 394,

      ,The action here proceeds:upon the ground,'that defendants below committed a tort to the plaintiff. They reply not guilty, If they be guilty, Justice is liable to them,;, and the record in this case, if it went no farther, would be, evidence io' fix the amount of that liability, and for that reason,- by the .whole current of authority, he is excluded.
    But further: The liability of Justice to Ellis & Vallette is to be determined by a recovery against them in this action, and that rests upon the fact, whether the' signature, of the .'plaintiff below, which Justice has impliedly, warranted, is forged or. genuine. If the former, his liability is fixed; if the-latter, it is removed: and, to determine this point, he is called as a witness. ' • ' . ' .
    . In Herrick v, Whitney, 15 Johns..Rep; 244, the payee of a promissory note was held incompetent in an action against the maker, although he had transferred it without recourse, and' for the reason’,- as the Conrt'say, that he wás liable upon his warranty'that the note was not forged. '“.He has-.a’direct interest in .establishing the fact which he is called to prove.” '5 Wend. Rep. 184; 6 Cow. Rep. 471.; .Ibid.,484; 16'Johns. Rep. 201; and 3 Cow. Rep. 252, are cited. •
    Equally so has-Justice a “direct interest--” in this case to prove that the signature of Bervellier is genuine, pr.attached in such manner as to be binding upon him.
    It is claimed, however, that the witness being released, as to costs, has' a balanced interest; that he stands perfectly indifferent between the parties, which,- if it is the fact,-renders him .competent, and the plaintiffs’ counsel goes into an'elaborate examination of authorities to sustain this position. The gen eral principle is not controverted, but the assumption that the witness is within it, is denied. “ Justice having indorsed the • c draft to Ellis,” says the counsel for plaintiffs, “would, it is' ‘ said, be liable to Ellis on his indorsement as a warrantor; but 1 if Bervellier lost the suit, he would have the right to recover ‘ against Justice.” Not so. If Bervellier recover against 'Ellis and Vallette, he may, aliso, have his action and recover against Justice; but he can have but one satisfaction. But if he fail in this action, his right to recover of Justice fails with it.
    The action is trover, and the defendants below put in issue the title of the plaintiff to the bill of exchange, claiming that he was legally divested of it, and that it was in themselves. A verdict for the defendant, upon the pleadings and the testimony, must find this fact if it find any thing. It must find that the indorsement of Bervellier, if not made by himself, was put there in his presence, and with his knowledge and consent, in such a manner as legally to pass his title, to the property; for this is the fact in issue.
    What then would be the effect of the record in this case, in a subsequent action by Bervellier against Justice, as a prior indorser of the same bill ? Would it not, either pleaded or offered in evidence, effectually estop the plaintiff?
    “ If the title to the property was set up by the defendant in ‘ the first action, and it was found for him, it is clearly a bar to c a second action for the same chattel, even though brought ‘ against one not a party to the former suit, but an accomplice c in the original undertaking.” 1 Greenleaf’s Ev. 571, sec. 533, and cases cited.
    “ It is not necessary t.o the conclusiveness of the former ‘ judgment, that issue should have been taken upon the precise ‘ point which is controverted in the second trial; it is sufficient ‘ if that point was essential to the finding of the former verdict.” 1 Greenleaf’s Ev. 572, sec. 534; See, also, same authority, page 568, note 1, and authorities cited.
   Birchard, J.

Our first inquiry is, was the interest of Jesse Justice such as to render him an incompetent witness for the plaintiff? To solve this, it is necessary to consider whether he could derive any advantage from a determination of the suit in favor of Ellis & Vallette. As he was an indorser.of the obligation to them, the most that can be claimed on behalf of defendant is, that he might be made liable in the event of a recovery against Ellis & Vallette, for the amount of the bill of exchange, and for no more. The release which was executed and delivered to him, would exhonerate and discharge him from any claim for costs by the plaintiff in error.

How stands the interest in the event of a recovery by them ? If Jhe position assumed on behalf of Bervellier be correct, (and he was not at liberty to deny its correctness,) his failure to recover of Ellis & Vallette would not defeat his right to recover the amount of the bill against Justice. He was the indorser, had negotiated the paper, and if the name of Bervellier was a forgery, the act of Justice was an unlawful conversion, for which trover against him could be maintained, and the recovery would still be the amount of the bill. This state of the case so placed him, that he could neither gain or lose by the event of the suit, and shows that his interest was equally balanced, and that he ought to have been permitted to testify, unless there shall be found some other obstacle. What, then, are the remaining reasons offered to sustain the ruling of the Court of Common Pleas ? The first, in point of importance, is, that the indorsement by Justice being, on its face, unconditional and unambiguous, parol evidence is inadmissible to vary or contradict -the legal import of the instrument. In answer to this, it is sufficient to say that his testimony was not offered to vary or alter the effect of his indorsement. The object was not to change the contract made and supposed to subsist between him and Ellis & Vallette. A like answer may be given to another position, which counsel insist upon, that he could not give evidence to destroy the title of the holder, by proving facts or circumstances preceding or concurrent with the indorsement. We reply, that he was not offered to establish a fact inconsistent with his indorsement, and which tended to destroy its force. On the contrary, the evidence sought from him was perfectly consistent with and tended to sustain it.

Another argument is, that in a suit by Bervellier against the witness, the record in this case, showing a recovery against Bervellier, would be a bar. It would be strange, indeed, if one having á good cause of action in trover against A, should lose it entirely by attempting and failing .to recovér of B, against whom he had no right of action. The only authority cited' in support of this singular doctrine, is from Greenleaf’s Evidence, which., is misapplied, and by no, means 'sustains it,-as. will be seen by recurring to and carefully examining the reported cases referred to by- that author. • ,

Judgment reversed and cause-remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Dorson Edwards vs. George Owen.
    A special action on the case‘may be sustained against a debtor, for fraudulently ,. representing himSelf insolvent, and thereby inducing, his creditor to discharge a promissory note for less than, its value. • • • ’ , ,
    Proof of general representations, made at the same tinte- to -others, by- which they were defrauded, may.be given' in evidence to show-the intention of the debtor in making the íalse’rc'pfeséntations. complained iOf. .

    But it is error’to instruct a jury that proof of false and fraudulent declarations, thus made, to othei creditors, would sustain a'declaration, counting'upon representations made directly to the plaintiff. 1 - - ■ • ,
    . This is a Writ of Error to the Court, of Common Pleas' of Montgomery County.
    " The original action was .case. ' The declaration averred,- in substance, that Owen held a note against Edwards for $278,' .due November 5, 1841. That on the 17th of June, 1841, ■Edwards fraudulently, &c., represented himself to Owen as insolvent and unable to pay his debts, and thereby induced him to give up said note and receive, in satisfaction of it, certain property worth hot over $75, by which he was defrauded out of and lost $203, when in-fact said,Edwards was solvent.
    To this declaration there was -a general demurrer, which was overruled. The.plea of the'general issue was then filed, upon-' which was a trial by. jury and verdict'for plaintiff.

      In Bank.
    Dec. Term, 1846.
    • Motions for new-trial, and in arrest.of judgment, were made and overruled; and, finally, judgment’was' 'entered--Upon--the verdict. ' ' - ■ ■ ■ ' -' .’ ■ .
    During the progress of the trial, five bills of exceptions were taken and made part of the record. . '
    Several errors are .assigned, which will be. noticed in the opinion of the Court. ’

      Crane &f Davies, for Plaintiff in Error.'
    First: ■ The declaration was bad, and the Court below erred in overruling .the- demurrer. . It is subject, to the following objections -‘ ‘ (
    1. It contains n.o direct averment of the solvency of the defendant below at the time of the composition. The averment may relate to the time of the composition,' or to the -subsequent period when the note fell due.

      2. It is repugnant and contradictory, in its averment, as to the time when the composition was made.
    ' 3. It is not alledged that plaintiff was ignorant-of the quality and value of the articles taken by him in satisfaction of his note, or that any fraud or deceit was practiced on him in such' sale.- '' '.
    4. If it be urged that the- ground of action is not fraud in the sale, but the delusion produced on the mind of the plaih.tiff by the misrepresentations of the defendant', as to his circumstances, by which the plaintiff was induced to incur a certain and known loss to avoid a greater, then no such gravamen is set out in the declaration, or fairly inferable from the facts there stated. , . .
    5; If such cause of action had been fully set forth in the declaration, still'thé action for deceit could not be sustained, the sale itself being uninfected by. fraud or concealment. ' Butler v. Kent, 19'Johns. Rep. 225 ; Patton v.- Gurney, 17 Mass. Rep. 182; Vicars v. Wilcocks, -8 East Rep. 3; 1 Chit. PI. 387; Bdgley v. Morrell, CrO. Jas. 632;- Vernon v. Keys, 12 ■ Rast Rep. 632; Dawes v. King, 1 Stark. Rep. 61; Davis v. Meeker, 5 Johns. Rep. 354; 2 Steph. N. P. 1283.
    if it is urged that, according to our view of the law, fraud and misrepresentation would go unpunished, and the deceived unredressed — we answer, that if this transaction was so fraudulent as to vitiate it, the appropriate remedy is by assumpsit on the note, treating the composition as a nullity. 'Forsythe on Comp, with Cr. 27, in 1 Lib. of Law and Eq.; Belden v. Davies, 2 Hall’s Rep. 448; Stafford v. Bacon, 1 Hill’s Rep. 532; Cooling v. Noyes, 6 Term Rep. 262; 1 Com. Dig. 362; Lamb v. Stone, 11 Pick. Rep. 527.
    Second: But the Court erred in admitting evidence of the general reputation of defendant’s insolvency, in the spring of 1841. The declaration charges representations made by the defendant to the plaintiff. This averment is not sustained by proof of representations made to others, still less by proof of compositions, made with other creditors, without the knowledge of plaintiff. Peake’s N. P. 226; Allen v. Addington, 7 Wend. Rep. 10; Snell v. Moses, 1 Johns. Rep. 96; Perry v. Aaron, Ibid. 129; Beach v. Gatlin, 4 Day’s Rep. 284; Smith v. Blake, 1 Conn. Rep. 262.
    Third: The Court should have charged the jury as requested, that no representations were admissible under the declaration, unless made by the defendant to the plaintiff, or to the agent of the plaintiff, and communicated by him to his principal. Allen v. Addington, 11 Wend. Rep. 375, and cases above cited.

      P. P. Lowe and W. J. McKinney, for Defendant.
   Birchard, J.

The first assignment of error goes to the sufficiency of the declaration which it is said cannot be maintained, mainly, because, if the note in question was given up by reason of the fraudulent inducement, without full payment, there is a plain remedy, by action of assumpsit upon the note, and that, in such a case, no special action upon the case can be resorted to. Of this opinion are two of the members of this Court, while the other members hold that, notwithstanding the action of' assumpsit might be maintained, the special action upon the case will also lie; that the defrauded party may cbunt directly upon the fraud and avoid any notice of offset; that he may have his action for the deceit in this case, without returning the property, as well as he might have an action for the note after an offer to return that for which he gave it up; and this upon general principles. The Court being equally divided in opinion, the objection to the declaration fails, and the decisions of the Court of Common Pleas, in overruling the demurrer and disallowing the motion in arrest of judgment, are sustained.

By the first bill of exceptions, it appears an objection was taken to the admission of the testimony of D. A. Wareham, and an error is assigned, upon this exception. The witness stated, that he was at Edwards’ store, on the 17th of June, endeavoring to collect a debt of $600, in goods, when Edwards told him he was as poor as a church mouse; that Owen was there on the same day making his arrangement to receive, out of the store, goods on the note set forth in the declaration; that he did not communicate the conversation to him, that on the same day, and before he received his goods of Edwards, the clerk of Edwards then being in the store and in the hearing of Edwards, told him he had better take goods, &c., for it was the only chance ■— that if he waited till after court he would not give fifty cents for the claim,' &c.

The next bill of exceptions on which errors are assigned, presents no principle distinguishable from the above, and both may be considered together. It is proper to remark, that they do not set forth what particular ground of objection was taken to the evidence, and we are, therefore, under the necessity of considering whether, in any aspect of the case, such evidence was competent for any purpose. Several things were necessary to sustain the plaintiff’s right of action, and whatever tended to prove any one of those several matters, was competent for that purpose. ■ It is clear,-that what was said to others, wheth- ' er'communicated to Owen or not," was incompetent to prove :the -fraudulent misrepresentations alledged to have, been made directly to him. But upon the hypothesis. thatthose-'charges of the, declaration-were specifically proved by,other evidence, might not ...proof of this description tend to throw some light, upon the question, whether they were;made in good faith' or' with "a .fraudulent design, .and:.-with, the intention that, they -.-should deceiv.e ?. It was as important .for Owen to satisfy the •jury of,'the existence of a fraudulent purpose in.-making the false'representations, as of their falsity,-or that he.was thereby defrauded. ' What passes i'n men’s minds can, in general;' only be gathered from their acts, and the attending’ circumstances, from what they were, doing, causing and requiring to be done.. As to’what was said by the clerk, we know not that it was objected to. ■ But is it to -be supposed that a clerk in a store, his .employer af home and'daily supervising and directing him, will represent his principal as insolvent and in .a few days likely to be unable to pay fifty cents on a .$600 note,, without instruction to do so — and that his principal will retain him after such representation, make.similar ones in his presence, profit by them'at the expense of his creditor, and all with honest and fair intentions ? The necessary and legal inference from' such conduct is, that the,' servant, thus acting in concert with the principal, but obeys the behests of .the master, an.d that the latter intends and sanctions the commission of -the -imposition which so profits him.

Again — in this case,-, that part qí the' evidence which went to show that goods were received out of the store, was competent, for it was incumbent upon Owen to satisfy the jury that he. received on' that day the goods, as averred in the pleadings. We are not prepared to- say this evidence was- incorrectly admitted.

The third bill of exceptions was taken to the admission of the testimony of R, C. -Schenck and another, and the fourth to the admission of sundry other witnesses, and errors are assigned upon these. The specific ground of objection is not stated in either of these bills of exception, and, as has been said in remarking upon their predecessors, if the proof objected to tended to support the issue in any respect, it was not error to admit it. Mr. Schenck testified to sundry conversations of Edwards with him, as the agent of sundry of his creditors — that he said they must take what he offered them or they would get nothing. The witness narrates the manner of his compromising, the value of his property, and the price at which he induced creditors to take it. The other witness proved, that about that time Edwards was generally representing himself insolvent, and that he became generally so reputed about Dayton, and that the report, contrary to the truth, was believed to be well founded. Now, all this proof, connected with the fact that he made, compromises of his debts greatly below their amount, admitting that he was then able to pay the full amount of each claim, would seem to furnish some evidence that he knew the falsity of the representations made by him to Owen, and which Owen says deceived him. Admitting that there was proof that those representations were made, and falsely made, one would hardly need more to bring his mind to the conclusion that the design was fraudulent. If it tended to support that part of the issue, it was proper to suffer it to go to the jury, whether, by itself and unaided, it was sufficient or not.

Upon the fifth bill of exceptions, two errors are assigned—

First: In refusing to charge the jury, as requested.

Second: In the instructions given.

The Court were asked to instruct the jury that, to entitle Owen to recover, they must be satisfied that Edwards represented to him that he was insolvent, and unable to pay him and his other creditors, with intent to deceive and defraud him; that the representations were false and fraudulent, that they were relied on by him, and were the means by which he had been deceived and had sustained the damage complained of; and that representations made to others, and by them communicated to Owen, would not sustain the action.

We think that this instruction should have been given. It is what the law'required, and, to us, seems to have been all that the case required. The residue of the instructions requested, present questions that could not legitimately arise in the case, because they were foreign to the issue. It was not, therefore, error to refuse them.

In the instructions given we find no fault, save in the last clause, in these words: “Proof that Edwards made the false 4 and fraudulent representations imputed to him, to other cred-4 itors, with intent to defraud his creditors generally, by indu- ‘ cing them to compound their claims at less than their value, £ and that the false representations so made to others came to the 4 knowledge of Owen and induced him to compound his debt 4 at less than its value, will sustain the declaration,” and Edwards would be liable to make good the difference between the value of the note and the property given in its discharge, alt ho’ hé did not warrant the property and made no false representation as to its quality. To this there are objections. Proof that false representations were made to Owen’s neighbors does not sustain an averment that they were made to himself. Parties ■must recover according to their allegata and probata. Both ■must correspond. Owen could not alledge that Edwards had deceived him, by a misstatement made to him, and in which he had placed confidence, when none was made to him. The falsehoods imposed upon his neighbors was not a matter of his. He made no case of that kind in his declaration, and he could not be justified in relying upon what was said to them. Indeed, all that was thus said had nothing to do with this case, except so far as it tended tó show with what intent Edwards made false statements to him. directly, and' upon which he did, and had a right to rely. The Court erred in this, and the judgment must be reversed.


author: Birchard, L

text:
    In Bank.
    Dec. Term, 1846.
    The State of Ohio, for the use of Rosett & Bicking, vs. Caleb Boring and others.
    The penalty of an official bond cannot be inserted by a third person after the execution by the obligor, in his absence, "without an express authority under bis hand and seal.
    This is an Action of Debt reserved in the County of Inciting.
    The action is brought against a sheriff and the sureties upon his official bond. The plea of ñon est factum has been filed, and, by the sureties, an affidavit of the truth of the plea is appended. The case is submitted for the consideration of this Court, upon the following agreed statement of facts:
    In this case, the following facts are agreed: That the said Caleb Boring was elected sheriff for said county of Licking at the October election, in the year 1840; that the said Caleb Boring, after his election, on the 30th day of October, 1840, applied to the other defendants, John Yontz, Samuel Parr, Lewis Boring and James Hazelton to become his securities in his official bond, as sheriff, and, thereupon, a paper writing was signed and sealed by said Caleb Boring and the said John Yontz, Samuel Parr, Lewis Boring and James Hazelton, of which, when so executed, the following is an exact copy, viz:
    “ Know all men by these presents, that Caleb Boring-,
    are held and firmly bound unto the State of Ohio, in the penal sum of dollars, for payment of which well and truly to be made, we bind ourselves, our heirs executors and administrators jointly and severally, firmly, by these presents. Sealed with our seals, and dated this day of October, in the year of our Lord one thousand eight hundred and forty-
    “The condition of this obligation is such, that whereas, the above bounden Caleb Boring has been, by the qualified electors of Licking county, in the State of Ohio, duly elected Sheriff of said county; Now, therefore, if the said Caleb Boring shall well and truly perform all the duties of the said office of Sheriff, and faithfully pay over all moneys that may Come into his hands, as such Sheriff, then this obligation to he void and of no effect otherwise to remain in full virtue, both iii law and equity.
    “CALEB BORING, [seal]
    “ JNO. YONTZ, [seal.]
    « SAMUEL PARR, [seal.]
    “ LEWIS BORING, [seal.]
    “JAMES BAZELTQN, [seal.]
    “■Signed, sealed and delivered in the presence of
    “ J. JoHifaoK,
    “ W. B. Morris,
    “ Jabíes Orb.”
    That the paper writing, being so executed, was left in the hands of said Caleb Boring, who, subsequently, on the 6th of November, 1840, presented the same to the Court of Common Pleas for said Licking county, for, their approval; that, thereupon, the Court directed the clerk to fill the first blank with the names of said sureties, and the second blank with the words, “ fifteen thousand,” and the third blank with the word, “ thirtieth,” and, threupon, ordered said bond to be filed ; and the same was, by the Court, accepted and approved as the official bond of said sheriff.
    If the Court shall be of opinion that the plaintiff is entitled to recover, and that the said paper writing is the bond of the defendants, it is agreed that judgment be rendered, as of the first day of this term, for the penalty, with an award of execution for the sum of $ 1,013..87, the amount due inequity ; but if the Court should be of opinion, with the défendants, that the said paper writing is not the bond of the defendants, then a judgment shall be rendered for the defendants, upon that finding.
    It is further claimed by the plaintiffs, that at the time the paper writing was executed by the sureties, one of them asked, in the presence of the others, “ what the penalty would be.” to which some one present replied, that “It would probably be the same as the penalty in a former bond ” given by the same Boring at a former election; and that still another person also said, it would make no difference, as Boring (the sheriff,) would do his duty at any rate ; and the plaintiffs also claim, that the penalty of said former bond was $15,000. The matter so claimed is not admitted by the defendants; but it is agreed, that if the Court should consider it material, the case is to be sent back for trial.

      II. II. Hunter and S. D. King, for Plaintiff.
    The naked question presented in this case, is whether, in the absence of all fraud, and when the intention of the parties has actually been complied with, the bond shall be held as absolutely void; whether the law has a higher regard for unmeaning technicality than it has for the great and important ends of justice.
    The sureties knew for what object the bond was given, and that the law had fixed the limits of the penalty to, be named by the Court. Hence, when they signed their names, and delivered the paper in blank to the sheriff, to be used as his official bond, they, by implication, authorized the sheriff to fill the blank with the sum named by the Court.
    If the blank had been filled in the presence of the sureties, and by their direction, or with their assent, it will not be pretended but that they would be bound. What is the difference, in principle, whether the signing was done in their presence, or elsewhere by their direction and consent? Is it not equally their act, if done'in their absence, pursuant to authority given by them?
    The essential inquiry is, whether authority was given to do the act. This is always a question of fact, and may be proved in any way by which a fact may usually be proved, according to the rules of law.
    It may be, therefore, proved by written evidence, sealed or ¡not sealed, or by parol testimony, direct or circumstantial.
    In this case the evidence is circumstantial. Certain facts are admitted, from which the inference of authority given, or intent on the part of the sureties to have the blanks filled, is inevitable.
    For instance, it is a part of the agreed case, that the bond was delivered to the sheriff, to be used as his official bond.
    Now, that could not be done without filling the blanks according to the order of the Court as to the penalty, and according to the truth as to the names and date.
    It may be argued that good policy would forbid the sustaining of this case as a precedent. I see no difficulty about it. Here the facts are clear and certain; and, for one, I think it much more politic, as well as by far the more just in the particular case, to hold these parties, by a bond fairly entered into, according to their actual intent, than to declare the bond void. No injustice can be done on the one hand, whilst immeasurable mischief may be the consequence on the otherl Who can tell how many bonds, official bonds, in the State of Ohio, have been executed in a similar way? I believe it has been pretty generally customary. Indeed, it seems to be almost necessary, in all those cases of official bonds, the amount of the penalty in which is to be fixed by the Court. Either all of the sureties who may reside in remote parts of the county, must come up to the county seat when the bond is offered for acceptance, or the Court would have to convene twice ; once to fix the amount of the penalty, and again to approve of the sureties and accept the bond. Now, there is no good sense in requiring any thing more than that the Court should be assured of the fact that the parties purporting to have executed the bond, did so in. fact, understanding the object. Such has been the custom of the country, known to most business men.
    Such bonds have been received and relied upon as the official bonds of the officers; and it would be a hardship indeed if they were not holden obligatory.
    There are cogent reasons why a bond like this, an official bond, should not stand on the same footing with private bonds, in regard to their validity, for the reason or on account of which the validity of the bond is questioned in this case.

      It is this: These official bonds are not, like private bonds, delivered to the obligee, or party whose interests are to be protected by them, but are delivered to, accepted, and approved, by some public officer charged with that duty. In the case of private bonds, the obligee may, at the time of delivery to him, by inquiring into the facts, see that the execution has been regular; and if he do not, it is his own negligence.
    But in the case of official bonds, the parties whose rights are intended to be protected by them, have it not in their power to take care of their rights, in regard to the due execution of the bond.
    The official bond is received; upon its face it appears regular enough; it has been accepted and approved by the Court; the officer has been admitted into the exercise of his office, and the interests of strangers are intrusted to his hands. All this, it is fair to presume, has been done with a knowledge of its progress, by the persons whose names appear to the bond as sureties. Now, if either must suffer, the sureties or the stranger, which should it be ?
    One further suggestion, and I will close.
    This is a joint action against the sheriff, whose execution of the bond is not denied, and the other defendants as his sureties.
    I ask, how can judgment be rendered against the plaintiff? Would not such a judgment be a bar to any action against the sheriff, alone, on the bond ?
    This is, I believe, the exact question, in principle, on which the case of Farrington v. Myers and others, — Ohio Rep. —, was grounded.
    It is true, in that case, the ground on which the surety sought to be acquitted was different, being for matter arising subsequent to the making of the note. But this does not vary the reason.
    Upon the main question, I beg leave to refer the Court to the authorities collected in the 1st vol. of Smith’s Leading Cases, (Phila. ed. 1844,) pages 595-6-7-8-9, at the top. The whole doctrine is examined, and the authorities brought together in that place.
    The attention of the Court is also invited to the following cases: Ayres v. Harness, 1 Ohio Rep. 173; Bank of St. Clairsville v. Smith, 5 Ohio Rep. 137, and Smith v. Crooker, 5 Mass. Rep. 538.

      Henry Stanbery (Attorney General) and James R. Stanbery, for Defendants.
    The plaintiffs ask the Court to say, that the mere signing and sealing of a paper purporting to be a sheriff’s bond, and leaving it in the hands of the sheriff, is authority of itself, to the sheriff or the Court, to make it a valid bond, by inserting a sum, wholly unknown and unascertained, when. the paper was executed.
    There is no .case, English or American, which goes that length.
    I will first call the attention of the Court to the decisions in our own State.

      Ayres v. Harness, 1 Ohio Rep. 368, is the first in order. Harness, being indebted to Ayres in a sum not then ascertained, wrote his name and affixed his seal to a blank, and delivered it to Ayres, with express authority to write over it a note for the amount which should be found to be due. This was accordingly done by Ayres. The Court held the bond void.

      Bank of St. Clairsville v. Smith, 5 Ohio Rep. 222. This was the case of a mere money bond, which, when executed by Smith, was in blank for the amount, and so left in the hands of a coobligor, who was to fill the blank with a sum not over $200. The coobligor did, however, fill the blank with $700; and, after that, it was discounted by the bank, without any knowledge of the facts. At the trial on the circuit, the Court, relying on the case of Peroling et al. v. The United States, 4 Cranch, 219, held the bond void in the hands of the bona fide holder. The Court, on the motion for a new trial, held as follows :
    “In that case (Peroling v. The U. States) the bond was 4 not complete when signed by a part of the obligors; on its 4 face it contained evidence that it was to be signed by others, 4 who had not signed it. Besides, it was not a bond direct for 4 the payment of money, but for the performance of a collateral 4 condition. The case turns now upon the question, whether 4 notes under seal, made for the payment of money, in Ohio, 4 are to be assimilated to commercial paper, or to common law 4 bonds. If the former, then it is well settled that- he who re-4 poses the first confidence must bear the ultimate loss; and we 4 believe it ought to be so. When notes under seal, for the 4 payment of money at a day yet to come, complete upon their 4 face, are negotiated in good faith, they should be treated as 4 commercial paper, and all the incidents of such paper should 4 attach to them. The statutes of the State give them a nego4 tiable character, and we but follow their indication in so re-4 garding such notes.”
    It is clear that this- case proceeds upon the distinction between .bonds for money, having all the characteristics of' commercial paper, and bonds for , the performance of collateral conditions, and only sustains the filling a material blank in such money bond, in favor of a bona fide holder, who takes it after the alteration, when it is complete upon its face. Ayres v. Harness was a money bond, belonging to the class of commercial paper, but ,was not overruled, by Bank of St. Clairsville v. Smith, for the reason that it was not complete on its face when Ayres took it.

      Spencer v. Buchanan, Wright’s Rep. 583, was an action on a bail bond, in which was a blank as follows: 44 Three hundred and fifty-.” The declaration set it out with an inuendo, 44 thereby meaning three hundred and fifty dollars.” On demurrer, the Court was against the plaintiff. This case shows the materiality of a blank for the amount, and that no recovery can be had by any averment as to the words which were intended or omitted by the blank.

      The foregoing are all the cases which have been before this ^'ourt having any bearing on the question in this case.
    I will now proceed to examine the cases relied upon by the plaintiff’s counsel, and these are Smith v. Croher, 5 Mass. Rep. 538, and the cases collected in 1 Smith’s Leading Cases, 597.

      Smith v. Croher was debt on the bond of a collector for taxes, with a blank for the name of the surety, who had signed and sealed the bond. Parsons, C. J., in delivering the opinion of the Court, holds the bond to be good, and assigns two reason : First, that the surety must be taken to have assented that the blank should be filled with his name, as he had signed it as a coobligor; and secondly, that the alteration or addition was no way material, as the surety would have been just as fully bound if the blank had not been filled up.
    It is clear this case in Massachusetts can only be held to be an authority for the filling of an immaterial blank; and what is said as to filling the blank in the absence of the obligor, must be understood in reference to such an addition.
    The next case relied upon is Hunt v. Adams, 6 Mass. Rep. 519. That was a money bond, and the blank filled was wholly immaterial, and such an one as the Court said the law would have supplied.

      Sigfricd v. Levan, 6 Serg. and Rawle 308, was a money bond, which was complete when it came to the hand of the payee.

      Stuhl v. Berger, 10 Serg. and Rawle 170, was also a money bond, with a blank for the name of the payee, and authority given to coobligor to fill it up.
    Now it is quite clear that none of these cases furnish a ground for sustaining the bond in the case at bar; for the alteration was most material, and the obligation was not of a commercial character, but for the performance of collateral conditions. So that even if express consent to make this addition could be made out, it would not, according to the doctrine above referred to, sustain the bond. However that may be, there is no pretence of any express consent in this case.

      The agreed facts do not make it necessary to consider how this case would stand on proof of express consent to fill tills blank, or express ratification afterwards. There is no pretence of such express consent here; nor is it even claimed that the plaintiff can prove such assent or ratification. What is said at the close of the agreed facts, as to the proof the plaintiff’s claim they can make, if it amount to any thing, would only tend to show an implied consent.
    The case, then, stands upon the following point: Whether the filling of a material blank, in an obligation for the performance of collateral conditions, in the absence of the obligors, and without evidence of express consent, and, we might add, of implied consent, or of subsequent ratification, would be binding on mere sureties.
    There is no case that comés up to the affirmative of that proposition ; and the furthest that courts have gone, even with regard to mere money bonds, is to establish material additions upon proof of express consent. 1 Smith’s Leading Cases, 597.
    I will only refer to one more authority, and that is of recent date, Graham v. Holt, 3 Iredell 300. The book is not to be found here, but I extract the note of the decision as it is given in the American Law Magazine, for April, 1844, No. 5, p. 176. “Yerbal authority to fill a blank in a bond for the sum is not £ good. A paper writing, purporting to be a bond, signed and £ sealed by a party, in which a blank is left for the sum to be £ afterwards inserted, which blank is afterwards filled up and £ the paper delivered, not in the presence of the party signing, ‘ nor by any person having authority from him under seal, is £ not the bond of the party so signing and sealing.”
    But it is argued, on the other side, that this bond, so altered, ought to be held binding on these sureties, because, in executing it they must have intended to be bound. That is a strange doctrine; for it would authorize any alteration or addition, to make a good bond for a party who had failed to make a good one for himself.

      When this bond left the hands of these securities, it was imperfect and created no liability. The Court, in their absence, and without their sanction, ordered the sum of $15,000 to be added to it, and then approved it as a sheriff’s bond. The bond so approved was not the bond of these defendants, and the Court had no authority to make a bond for them. The function of the Court was to approve an existing obligation, not to create a new one.
   Birchard, L

The agreed statement presents the naked question whether, after the execution of a sealed instrument, a material blank can be filled by a third person, in the absence of the obligor, and without his express authority, under hand and seal. An immaterial blank, as of the date, or the name of the obligor, may be inserted. Such interlineations do not affect the obligation. It is valid without them. But, without the sum is inserted, the bond is of no validity. In the case at bar, the obvious intention of all the defendants was, that this bond should be filled up by some one, and that it should be used for the purposes to which it was applied. This state of facts presents strong reasons why the instrument should be sustained. It makes a case of great hardship if it cannot be sustained. Looking very much like adhering to form, at the expense of justice. What originated the distinction between sealed and unsealed instruments in this respect, ■ is a question that is not useful now to inquire into. There are many rules of established law for which, at this day, it would be difficult to assign a good reason, were the question presented for the first time whether they should be adopted or not, and yet, because they have been rules for centuries, have become known, and have been acted upon in all the varied transactions of business, no prudent jurist would be willing to see their authority shaken for light causes. Where the law is uncertain, no man knoweth when he is safe. And it is, therefore, generally better to adhere to well settled, long established and well understood rules of Saw, though some small inconvenience arise from them, until the supreme power of the State sees proper to change them. A legislative enactment may make any change in the common law that even convenience requires, and it is to be presumed that the change will be made whenever the Legislature become satisfied that a rule of the common law works public inconvenience. Courts of justice can scarcely ever anticipate the full effect of a change made by them. In the case before them, they may possibly be able to say, the departure from the law subserves the ends of justice. They may prove that it will operate well in future transactions, but how it may affect past transactions, what may be the extent of the mischief of its retrospective operation, is often more than would be even imagined. For these reasons, we-look to the law for a solution of this question — and we find the course of decision uniform, in this Court, in the Courts of our sister States, of the United States, and Great Britain. They all concur in holding that such a blank could not be filled as this was filled. There is not a case to be found that supports this bond. The researches of counsel have superseded the necessity of any quotation on our part for authority to condemn the practice.

Judgment fan' Defendant.


author: Read, J. Birchard, X.,-

text:
    Levi Benjamin vs. William Le Baron’s Administrator.
    An administrator cannot maintain an action of trover to recover goods, &c., transferred by his intestate to defraud his creditors.
    The remedy, if there be any, is in Chancery.
    This is a Writ or Error directed to the Court of Common Pleas of Belmont County.
    The original action was trover, in which the now defendant obtained a vérdíct and had judgment for $13,379. The.facts of the case, as gathered from the bill of exceptions, are, in substance, these: .
    In Bank.
    Dec. Term, 1846.

    On the 7th of September, 1837, Le Baron was possessed of a large real and personal estate, and, also, a contract with one Zane to build a bridge over the Ohio river at Wheeling. He was largely in debt and unable to meet his liabilities, and for the purpose of saving his property from sacrifice, he executed two deeds — one bearing date the 7th of September, 1S37, the other the 25th of September, 1837 — ; conveying all his property, of every description, to Benjamin, the interest in the bridge contract included. Le Baron died, and Benjamin claimed all the property, under the deeds aforesaid. Lathrop was appointed administrator, and commenced this action for all of the personal property above stated, and for the bridge contract, and, as was contended by defendant, for fixtures; also, to deprive Benjamin of the property thus held and appropriate it to the payment of Le Baron’s debts.
    Various errors are assigned, among which are these: That the Court erred in charging the jury that an administrator can maintain trover for goods fraudulently transferred by his intestate, and in charging that trover would lie for the bridge contract.
    C. C. Carroll, for Plaintiff in Error.
    Can the administrator of a fraudulent grantor, in an action of trover against the fraudulent grantee, recover for the conversion of the goods thus fraudulently transferred ?
    No lawyer of any considerable reputation, I apprehend, would hesitate for a moment as to the proper answer to be given to this question. These are familiar and well settled principles : A man is estopped by his own deed, his own act of transfer; he cannot take advantage of his own wrong, nor avoid his deed because of his own fraud; that deeds executed to defraud creditors are valid, as between the parties thereto. But despite these, as we vainly thought, impregnable axioms and well established principles, a Court has decided that this action can be maintained; not, perhaps, by the grantor himself, but by his administrator. We must revise our law upon this subject, and see if there be, verily, just ground for that decision.,
    Le Baron himself, the fraudulent grantor, could not maintain this suit.
    “ A deed made to defraud creditors is void only as against creditors.” * * * * “ Such fraudulent conveyances are valid, as between the parties;” Burgett v. Burgett, 1 Ohio Rep. 469; Douglas v. Dunlap, 10 Ohio Rep. 162. He who parts with property to defraud creditors, cannot bring trover to recover it. Stewart v. Kearney, 6 Watts’ Rep. 453.
    Le Baron could hardly succeed with the indorsement upon the writ, that he was suing for goods which he had fraudulently transferred.
    If Le Baron could not succeed in maintaining this action, can his administrator succeed ?
    What is an administrator ?
    By the statute 31 Edward in, “ It is accorded and assented, ‘ that in a case where a man dieth intestate, the ordinaries shall c depute the next and most lawful friends of the dead person ‘ intestate, to administer his goods, which deputies shall have e an action to demand and recover, as executors,” &c. Roberts on Persona] Succession, 28.
    In the Ohio Reports, the administrator is spoken of as the personal representative of the deceased, in whom the personal estate is vested, as a trustee for those who are ultimately to receive the benefit of the personal estate, (8 Ohio Rep. 370; 5 Ibid. 503,) as agent of the intestate’s estate, and of all the creditors also. 9 Ohio Rep. 18.
    Deputy, representative, trustee, agent! Rightly considered, the administrator is, perhaps, none of these. In some respects, he is a trustee for the creditors, or heirs, or both, as administering a fund, not his own, for their benefit, but he does not represent them. As agent or trustee, he derives no authority from them. His admissions are prima facie evidence of the indebtedness of the intestate, (8 Ohio Rep. 249,) but they are of no efficiency, as against the creditors. The law deputes the administrator, adjusts his position, and then the legal life of the intestate flows into him ; and, so far as assets go, he succeeds to all his legal rights, and is amenable to all his legal obligations ; and, in all things concerning the estate, is estopped where his intestate was or would be estopped, bound where his intestate would be bound.
    I think it is easy to see, that the administrator is something more than agent, trustee, or even representative. A man dead is dead in law, and the legal existence of the administrator is substituted for his. The administrator is invested with the personal estate. He succeeds to the legal rights and the legal individuality of the intestate, and is regarded as enforcing his rights, impelled by his own instincts of selfishness, and as resisting the demands of others from the same impulse.
    From whence, then, does the administrator derive his authority to avoid the fraudulent deed of the intestate ? Not from the creditors; he is not their constituted agent or appointed trustee. To them, he is antagonistical. Not from the intestate, for the intestate did not himself possess that power. Not from the common law, for the common law confers no power or right upon the administrator which was not possessed by his intestate. Not, certainly, from the statutes of Ohio.
    Thus, if I have rightly apprehended and correctly drawn the character and attributes of an administrator, it is easily seen that as Le Baron could not, his administrator cannot maintain this suit.
    But what is the law, as ascertained by judicial decision ?
    “ Persons making voluntary, or fraudulent, or covenous con- ‘ veyances, and all those claiming under them, are as much £ bound by such conveyances as if these statutes (13 and 27 ‘ Eliz.) had not been made4 Cruise Dig. 470. “ Nor will ‘ courts of equity assist the party making a voluntary convey- ‘ anee, or his representative, claiming as such, by setting them £ aside;” Spencer, Ch. J. in Jackson v. Qarnsey, 16 Johns. Rep.' 192; and see 4 Cow. Rep. 216. In both these cases the representative was the heir. .“ A conveyance to defraud credi- ‘ tors is good against the grantor and his heirs, and is. void only 'as' to creditors.” ’ Parsons, J., .in Drinkwater v.. Drinkwater, 4 Mass. Rep. 356. ■ ■ , .
    “ A deed made to defraud creditors, is void only as against creditors;” Burgett v. Burgett, and Douglas v. Dunlap, ubi. sup. “ The statute only makes the sale Void, as against creditors, and not assto the vendor or his personal representatives ;”■ Babcock v. Booth, 2 Hill’s Rtep. 185. A voluntary deed is void, as to creditors, if made to their injury, but is binding on the donor, her executors, administrators and assigns, and all claiming under them, bpth at common law.and- under the act of assembly., The executor is-estopped to,alle'dge that the deed is in fraud of creditors. Dorsey v. Smithson, 6 Hay: & Johns. 61. ■ , • ■
    “ The bill of sale, though fraudulent as to creditors, is good ‘ betwéen the parties, their heirs, executors, &c.; so that these ‘ effects could never be assets in the hands- of the. rightful ex- ‘ ecutor.” Foster et al. v Newlin, 4 Missouri Rep. 18.
    The cáse of Howland et al. v. Davis, Charlton’s Rep. 383, was a case of a creditor against a grantee, as executor-de son tort. The Court say4 “ The principle is, that the fraudulent * bill of sale, as to the 'creditors, is-void; and that any inter- ‘ ference with the goods conveyed .after, the death'of the ven- ‘ dor, will make the vendee chargeable. In these cases, .there ‘ can be no remedy in favor of the rightful executor or admin- ‘ istrator, because the conveyance is good against the grantor. * It is.the creditor only who can charge the vendor.” ■.
    In the cáse of Osborne y. Moss, 7 Johns. Rep. 161, it is decided that -a judgment, fraudulent and covinous as, against the creditors of the- judgment debtor, is, -nevertheless, binding upon the-judgment debtor and his administrator; and a sale of-chattels to the fraudulent, judgment'creditor, upon execution issued upon said judgment, was held valid as against the-., administrator. The decision is made upon the authority of the-case of Hawes v. Leader, Cro. Jas. 270; Telv, 196. The .Court say ;- “In that case, the intestate made a grant of his ‘ goods to B, 'by- fraud between him and B, to cheat the cred-' ‘ itors, and he'kept possession of the, goods and died. B then ‘ sued the 'administrator for the goods, and he pleaded this ‘ covin and fraud, and the statute of 13 Elizabeth, which de- ‘ dares all such gifts and grants void as against creditors; but, • ‘ on deifturrer-, thé plea 'was held- bad, and judgment was ren- ‘ dered for the plaintiff, on- the ground, among others, that the ‘ deed .was void' only as against creditors; but that it Remained ‘ good as against the party himself, and his executors and ad- ‘ ministrators.” In the case in Johnson, as in the ..case now under consideration,- the administrator was also creditor. - The ' case, it seems to me,-is very rftiich in-point. '
    .Thus, I think it .is proved l?y abundant authority, that the fraudulent conveyances ■ in this case are good and-. valid, as against Le .Baron and his personal, representativés. This -point being made good, the case of the defendant-in error fails,, and . the judgment of the Court below must be reversed. •

      Daniel Peók, for'Defendant in Error.
    Cart an administrator maintain an action under the circumstances discloseddn the bill of.exceptions¡? . ’ .
    Here is' the case of a man, who is indebted to a much greater amount than the value'of all his property for the purpose of defrauding his creditors'. conveys all of' his property to' his brother-ihrlaw, without consideration, and dies, After his death. the fraudulent grantee, by virtue of those conveyances, takes the possession óf, and claims the property. Ave .the creditors of the fraudulent, grantor without any remedy in such a case-;' and if-not, what is-their remedy ? .Can the ..administrator recover, this property for the purpose of paying the debts ?. ■
    It has.always beén held by this court, and, is no doubt good law, that there can be nó executor de son tort in Ohio. If the ■ administrator cannot sue for and recoven this property; as assets of the éstate, in what manner can the creditor come at his debt? By our law this property is assets.to"pay debts, and should be distributed pro rata amongst the creditors, for undoubtedly the creditors are’entitled to'it. ' The creditors have nd judgment, and cannot file a bill; no one but the creditor will administer, and is he remediless
    , Originally; in England, it is probable that the administrator 'succeeded to the rights and liabilities of.his intestate, and might not have been able to maintain any suit, his'intestate could not have sustained. Le Baron, if living, could not set .aside those fraudulent conveyances,, or recover back the property, from Benjamin, if it had been delivered; but if it had not been delivered,. Benjamin could not have enforced the .¿delivery of the property-under, such a fraudulent- contract. If Le Barón was alive, his creditors could' recover judgment-against'him, and,-.by bill in chancery, subject any of his property, in the hands of Benjamin, to. the satisfaction of their judgments. ' But Le Barón, is'dead ; his creditors have no -judgments; nope-but the principal cred-' itor will administer, and he is forced,.to do it to secure his debt. In what other way can-he proceed but'the way he'has chosen? The property has been so wasted or so converted by Benjamin, 'that it cannot be found; it seems to me that this is the only way that it can be reached.- ’ '
    In Ohio, I apprehend that the administrator represents-both the intestate and ' his creditors, and that he' can dp,' himself, every thing in relation to .the assets of the estate that creditor's could .do by bill in chancery, or otherwise. He surely ought to be able to administer every thing that can, in any sense, of the Word, be - considered as assets, for the payment of the 'debts.
    He is the proper person' to make the distribution. If this was not the case, one creditor. might realize the whole of his debt, and the others be entirely cut off. "
    Ca.n there be any doubt but that this property, pr its value, if récovered, is assets to pay the debts, and that the administrator is the proper person to distribute the same in the payment of the debts of .the estate ? ' '

      . The Legislature has, expressly made lands, fraudulently conveyed by the intestate, assets to pay 'the debt? in- the hands of the’administrator, and has pointed out the manner of obtaining the possession of such lands.
    'In a similar case in .England,- and in most of the States, the creditor could have sued Benjamin as executor de son tort: Campbell V. Toucy, Ex. of Booth, 7 Cowen Rep. 64.' .
    But, as ■ before, observed, the creditor who could proceed in that manner would get the whole of the assets. Now, the spirit of, every administration law-we have been governed by, has had equality of the distribution of the effects for its basis; that is one reason why our-laws.and courts have been so uniformly opposed to any law' which' will ■ admit of executors de son tort. .
    The c.ase of Babcock v. Booth', was decided in New York, in 1842; 2 Hill's. Rep. 181. In pronouncing'the opinión of the Court, the Judge says: “ Where a fraudulent grantee takes ‘.possession of the goods in the lifetime, of the vendor, who ‘ afterwards dies, leaving debts unpaid, it seems, that the goods ‘ will, as to, creditors,- be decreed to be assets- in the personal ‘ representative of the deceased; and if so, the executor or ‘ administrator must, '.'of- course, have ,an action against the *' fraudulent vendee tó recover the property.” Rob. on Frauds, and Cro'. Eliz. 810, are cited.. . - ’ ■
    , “ The only question, then, to be considered, is, whether the ‘ personal representative of a fraudulent grantor, who remained ‘ in the possession of the property, can, for the benefit of ‘ creditors, set up the fraud, and thus'avoid the salé, i think ‘ he.-can, and that-the Court below erred in hqlding the con- ‘ trary doctrine. , All the books agree' that thé sale, though hot ‘ void as to the parties to it, is utterly void as to creditors, and ‘ the Only’difficulty is as to the-mode in which they shall-come ‘ at their rights.”

      “In Bethel v. Starnhope, Cro. Eliz. 810, tlie fraudulent donor ‘ died in the possession of the goods;, and it was said, that ‘ when the donor -afterwards took them, it is a trespass against 4 the administrator, for which he hath his remedy, and they are 4 always assets in his hands.”
    Lately, in New York, the Legislature passed an act, declaring that no one shall be charged as executor de son tort in thqt State.
    In Doe v. Barkenstose;, 12 Wend. 145, the Court says: 44 Executors and administrators have a new character, and stand 4 in a different relation, from what they formerly did, to the 4 creditors of the deceased person, with whose estates they are 4 intrusted. They are not now the mere representatives of 4 their testator or intestate; they are constituted trustees, and 4 the property in their hands is a fund to be disposed of in the 4 best manner for the benefit of the creditors.”
    In Shield v. Anderson, 3 Leigh Rep. 729, the same doctrine is held by the Court of Appeals of Virginia. So it is held in Massachusetts, if the estate is insolvent. 4 Mass. Rep. 356.
    I do not doubt but that executors and administrators have always, in Ohio, represented both the deceased and the creditors, and were always the trustee of the creditors, and never the mere representative.
    It will be claimed, however, by the counsel for the plaintiff in error, that the administrator is a mere representative of the deceased, a substitute for him, and that he could have been sued, and can yet be sued as executor de son tort, and therefore there can be no necessity for such an action as this. It will be insisted that the decisions of this Court in relation to this subject are not law, and ought to be disregarded.
    However ingenious an argument to prove that executors de son tort ought to be tolerated, under our peculiar system, may be, it fails to convince me that such is or ought to be the law of Ohio; and that, if no precedent for such a case can be found, it is high time for this Court to make one on this occasion. .
    The Court is not put to the necessity of deciding the question that would arise, if Benjamin had taken possession of the property in the lifetime of Le Baron, because the testimony fully proves.that he did not convert this-property until after the of Le Baron., I do not yield-.the point, that;if it had converted in the lifetime of -Le'Baron, his administrator' could not sustain this action, for. I see it quité, clear that he. could ; but ever since the time of Queen'Elizabeth', it has been held,, that if the fraudulent donor die in possession of the goods, the fraudulent donee cannot take them from the administrator.
    I conclude, then, that the plaintiff in ;the suit Below, could . sustain his suit for such á cause of,action.
   Read, J.

The record in this case is excéedingly. yolumin,ous. ■ To follow through all .the motions, exceptions,' demurrers and.alledged mistakes, interposed, by the ingenuity of counsel; would, lead' to' unnecessary prolixity, arid throw no light upon the- case. Some eighteen error's are assigned, but they-dwindle -down to. two. *' .

• First-: - Can .an'.administrator maintain trdvef to .recover property 'assigned and' transferred, by his intestate, to hinder^ delay and 'defraud creditors ? and, .

■ Second-; If„ so,'.would 'trover' lie .for the- bridge cohtract, as .above stated? ' ■ , .

...The first proposition the Court intend to decide, and that only;

We hold that the'administrator .can only maintain suoh action' as the' intestate.might, if living. He represents the .intestate ; hé steps into-no other right. As -between, the fraudulent vendor and vendee; thé transfer is good. Such conveyances are •••void -only as to' creditors. This is’ the well settled doctrine in • Ohio. Hence, as batwéeri the vendor and vendee in this case, the vendor had no rights^ and of course'his adriainistrator could-have none, -But it is said that, unless we sustain a suit of this sort, on- the part of -the. administrator, .creditors will have no remedy. , This does not follow. • • When a bill shall' be filed for that purpose, it will be timé to consider'of it.

As;.to the second proposition, whether trover would lie Tor the bridge cohtra’ct, it is unnecessary to decide, as it is disposed of by the/ determination of the first proposition. .-Yet'in'my. own opinion,although not authorized to say so,by. the Court, I should not deem trover the suitable remedy, to hunt down the results of a contract of that sort, 'as has been argued. ' It has been claimed that an executor de son tort may exist in Ohio, and that .we .might, to review our decisions upon that point. We aré content to let that matter rest as it. is.' We are -not disposed to introduce .or sanction a principle which would draw a fund'Wholly tb, one creditor,' instead of a fair distribution, as would result in.case of añ éx'ec.ntidn de son tort. -.' -.

Judgment Reversed.

Birchard, X.,-

dissenting. It has been held that there is .nó such tiling in Ohio aS an executor de. soil tort., In.the case at ■ bar, had lie Baron lived, Lathrbp, as creditor, plight have sued . out his writ, prosecuted his action to judgment and execution-, and finally made his money-out of the property fraudulently conveyed to this plaintiff. It was, as to creditors, a void transfer. When the estate of one is. thus made insolvent, the heirs, can have no interest in sefeing to its settlement. ■ They-will riot administer, but will leave the' burden of administration to those who have some interest in the matter, that is, to the' creditors. Now, what I consider erroneous in the opinion of the Court, is. this: • It misconceives the office and duties of an administrator under the laws of this State, and defeats the policy of our statute. It applies principles which had their origin in another country, and under laws, in this respect, dissimilar to our. own. The act of March 23, 1840,- entitled “an act to provide for the settlement'of the estates of deceased persons,” (Swan’s. Stat. 339,) provides that all-the.personal estate shall first be applied to the payment of the debts due by the estate, and, if found insufficient; that .the lands sháll next be appropriated, by a sale, on petition' to the Court of Common Pleas of the county where it lies. The I21st section declares that the land, which shall then be sold, shall include all that the deceased may have conveyed, with intent to defraud his creditors: ■ The 122d section gives the administrator a right to maintain the action of ejectment, or a bill in chancery to avoid such sale.

Under this statute, the administrator represents the creditors of the deceased person, making a fraudulent conveyance, and is bound to pursue the property, for the benefit of creditors, which they might have reached if the intestate had lived. He is bound to deal fairly with all the creditors; is authorized expressly to pursue his legal action, to obtain possession of lands fraudulently conveyed, and a fortiori he may sue for and recover the personal property so conveyed. By other provisions of the statute, personalty must be first resorted to for the payment of debts. The creditor cannot look to lands, in any case, for the satisfaction of his debts, until all the personal estate within his reach has been exhausted.'

The facts disclosed by the bill of exceptions, show that the administrator of Le Baron does not, in point of fact, represent the interests of his heirs to the amount of a cent. The estate is deeply involved. The judgment of $ 13,000, recovered against the fraudulent assignee, should be suffered to stand for the benefit of the creditors of the estate, among whom the law distributes it upon equitable principles. I maintain that the action was well brought; that the creditors are the parties in interest, and duly represented under the provisions of the statute; that the fraudulent transfer of goods or lands by the intestate, destroyed no claim which creditors have upon them, or their proceeds, and that, if the estate is insolvent, such, lands, goods, and their proceeds, are assets for the payment of the debts due and owing by the estate. Who can administer assets of a decedent, in Ohio, but the administrator ? The answer is, to me, plain; no one. Then, does not the above decision make a case of wrong without a remedy ? It is said that the • remedy is in chancery. Admitting that it is j but, for this decision, it would not follow that it is there, because there was not a plain and adequate remedy at law. For, it is palpable that trover is a form of action less complex than a bill in equity; it requires but two parties, and affords the very best tribunal for exposing a fraud, to wit, a jury trial.. While, upon a proceeding in chancery, every one of the creditors must come in and be made a party, or he cannot get his distributive share; and the administrators and heirs must also be brought in, if for no other purpose than to deny that there are other assets.

But I have said enough. I leave the subject, with a request that those who may think me in error, will take the trouble to examine the question in connection with the past decisions of the .Court, the legislation of the State, and the authorities cited by counsel.