text:
    *Return H. Peters v. John M. Elkins.
    The action <^f assumpsit for use and occupation will not lie at the suit of a purchaser of mortgaged premises, sold under a decree in chancery, against a tenant in possession, under the mortgagor.
    This is an action of assumpsit, reserved in the county of Perry, upon the following agreed statement of facts:

      In this case, it is urged by counsel, that the premises described in the declaration, to wit, lot No. 24, in Thornville, Perry county, Ohio, were owned in fee by Peter Cool, and by him mortgaged to one Debolt, on January 3, 1840, to secure a note for upward of $400, due in February following, which mortgage was recorded in the same month of January. That, on October 15, 1841, Debolt assigned and delivered the note and mortgage to the plaintiff; that on April 1, 1842, Cool, being in possession, leased the premises to the defendant, by written lease, not under seal, for the term of one year from that date, for the rent of $125, which was paid by defendant to Cool at the date of the lease. \
    That, at the April term, 1842, no part of said mortgage being paid, the plaintiff filed his bill for foreclosure and sale; and service of subpoena was made on Cool, April 19, 1842.
    That, at the June term of 1842, a decree was had for sale, and sale made to plaintiff on September 10,1842; sale confirmed at the October term, 1842, and deed ordered; deed made on January 3, 1843.
    Defendant occupied the premises until April 1, 1843. That the value of possession of the premises was at the rate of $125 per year.
    It is agreed that, if the plaintiff is entitled to recover for the entire year, there shall bo a judgment on the verdict.
    If the court find him entitled to recover for any fraction of *the year, less than the whole, the verdict shall be so amended, in the proportion of $125 for the whole year, with interest.
    If the court shall be of opinion that the plaintiff is not entitled to recover at all, the verdict shall be set aside, and a nonsuit ordered.
    H'erry Stanbery, for plaintiff.
    J. Manley Palmer and James Parker, for defendant.
    At common law, the action for use and occupation would not lie, unless the relation of landlord and tenant actually existed; but, by the statute, 11 Geo. 2, the remedy has been somewhat extended, and the action will now lie, in England, whore a promise to pay rent can be fairly inferred. 1 Tenn. 378; 1 Esp. N. P. 20.
    Such is the law, at this time, in all the states in the Union. 6 Johns. 46; 13 Johns. 240, 489, 17 Mass. 299; 3 Dall. 503; 2 Serg. & Rawle, 500.
    The same doctrine has been recognized in Ohio, to wit, that, tc lay the foundation of the action, the relation, actual or implied, of landlord and tenant, must exist. Butler v. Cowles. 4 Ohio, 205.
   Read, J.

The question is, will use and occupation lie on the part of a purchaser of mortgaged premises, under a decree of foreclosure against a tenant of the mortgagor, the letting being had after condition broken, either for entire occupancy, from the date of the lease, or for the occupancy after the day of sale ? It is conceded by counsel that, if use and occupation will lie, the recovery can be only for the occupancy after the - day of sale. The action for use and occupation will lie only between persons holding the relation of landlord and tenant. 6 Ohio, 371; 4 Ohio, 205. It sounds in contract, *and spring's from the mutual assent of owner and occupant; that the latter holds by permission of the former. If the occupant enter, and hold without permission or right, he is a trespasser; nor can the owner waive the trespass and make him his tenant without his consent. The assent to establish a tenancy may be applied from acts, as payment and acceptance of rent; but to support the action for use and occupation, there must be sufficient legal proof that a tenancy subsists.

As respects chattels, when the entire thing is converted, the trespass may be waived, and its value recovered under the form of contract. But not so, when the main possession or enjoyment has been wrongfully interrupted or disturbed; because the doctrine of waiver proceeds upon the principle that waiving the tort is a parting with the property to the wrong-doer, and the law holds him for its price. Hence, if the waiving the.tort will not invest the wrong-doer with a legal right, there is nothing from which the law can imply an assumpsit; and the remedy must conform to the wrong. It applies only to those things which may pass by delivery, and of which possession is evidence of ownership; and therefore it applies not to injuries to possession of land. To waive a trespass of land, confers no right upon the wrongdoer. Hence, the remedy must follow the nature of the original act. To accept any other theory, would be to destroy that certainty and precision respecting the wrong and the remedy necessary to work out justice, under the forms of judicial procedure.

To support the action of use and occupation, a tenancy must subsist, which involves a liability for rent. Eor want of a more definite phrase, the law denominates certain persons tenants at will, in reference to the possession of the land merely; but not to their liability to account for the rents and property.

Thus a mortgagor, after condition broken, is denominated a tenant at will. This means merely that the mortgagor permits him to hold possession at will, as he may at any time recover the possession of the land under the mortgage. A mortgagor is not bound to account for the rents and profits of the land *mortgaged, which is in possession. This grows out of the nature of the mortgage itself — being a mere security.

Now suppose the mortgagee proceeds to foreclosure, and buys in the mortgaged premises, and takes a deed; in what relation do they stand? The mortgagor, by virtue of the purchase and deed, under the decree, becomes the absolute owner of the mortgaged premises. If the mortgagee holds the premises after sale, he does so in violation of the right of the real owner. He is a trespasser. If the- purchaser be compelled to eject him, he has his action of trespass for mesne profits. The action for use and occupation will not lie, because there was no contract to pay rent, and the law will not imply such contract; because the nature of the injury sounds not in contract, but tort; and the waiver of the tort would confer no new right out of which the law would imply a contract which would.give a new form of action; but at best would be merely changing the nature of a wrong already done, for the purpose of authorizing a Dew form of action, which the law will not permit. Now the tenant stands precisely upon the ground of the mortgagor, so far as the remedy of the purchaser, under the decree, is concerned. He is in under the mortgagor, and holds not by the consent of the purchaser or the mortgagee. He has not contracted to pay rent to the mortgagee or purchaser. Not being protected by his lease in the possession, if he hold, over, after purchase, he is a wrong-doer, and, therefore, use and occupation will not lie.

It is urged that the possession of the tenant is not adverse. Every person in our state who holds possession in his own right or his wrong, not acknowledging that he holds by permission, holds adversely; and the statute of limitation would run in his favor. In many states, the holding, to be adverse, must be under color of title. With us, mere holding is sufficient. In no view of this case can we support the action.

Wood, C. J., being indisposed, did not sit in this case.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    *Robert McComb v. William F. Kittridge.
    If the payee of a note past due, enter into a contract with the principal, without the knowledge of the sureties, to forbear suit for a given time, in consideration of the payment of a specified sum of money, or the execution of a note for such sum of money, it is a valid agreement, and discharges the sureties.
    This case comes before this court on motion for a new trial, reserved in Huron county.'
    The cause was tried at the August term of the Supreme Court, 1845, and a verdict found for the defendant, under the charge of court. The facts, and law of the case, were reserved for consideration at court in bank, upon a written agreement as to what papers and depositions should be in evidence.
    The note upon which suit is brought, was given by Moses Kim-ball, John Miller, Picket Latimer, and the defendant Kittridge, to James Gilruth, for $2,000, dated September 1, 1836, payable November 26, 1836, indorsed by said Gilruth to Hamlin and Ward, aDd by them to plaintiff.
    The defense set up and relied upon in the special plea is, that Kittridge executed this note, as surety lor Kimball, which fact was known to Gilruth at the execution and delivery of said note; that Gilruth, after the same fell due, to wit, on February 9, 1837, contracted to give further time, and delay the payment of the same until the 1st of May thereafter, in consideration of said Kimball executing to him a note for $34.44, payable on said 1st of May; that said note for $34.44 was executed, and a greater part thereof paid; that the time specified was actually given, and that said agreement was entered into without the knowledge or consent of the defendant.
    The replication denies the making of any such agreement.
    *0. J. Shuman, for the plaintiff:.
    The consideration of this note for $34.44 is illegal. It was given for usurious interest, and is therefore uncollectible. Illegal interest unpaid, whether sued for in an original, a renewed, or separate note or bond, can not be recovered. 13 Ohio, 115.
    Hence, there was no consideration for the agreement to forbear to sue; and, there being no consideration, the agreement was void, and the plaintiff had a right at any time to institute proceedings on the notice; and if the creditor’s hands were not tied up, the security is not discharged.
    Forbearance granted to a principal by the creditor, without binding himself by any valid contract to forbear, will not discharge the surety. 3 J. J. Marsh. 527.
    An agreement to pay illegal interest, is no consideration for forbearance. 4 Barb. Eq. Dig. 653; 1 B. Mon. 324; Western Law Jour, for 1844.
    The agreement to be binding must be valid at the time of making the contract; if not then valid, no subsequent action of the parties can make it so. Bank of Canton v. Reynolds, 13 Ohio, 84; Jenkins v. Clarkson, 7 Ohio, 75; 12 Wheat. 554.
    Boalt & Worcester, for defendant:
    The note for $34.44 was given for a good and sufficient consideration, and therefore was collectible. At all events, suit having been forborne in accordance with the agreement, it is now too late to allege a want of consideration. This can no more be done than could a suit be sustained to recover back extra interest when once paid. And the law is settled, that in such eases a suit will not lie, except in those states in which the whole contract, where any part of it is tainted with usury, is, by the usury laws, made utterly void. Shelton v. Gill, 11 Ohio, 413; Spalding v. Bank of Muskingum, 12 Ohio, 544; De Wolf v. Johnson, 10 Wheat. 167; Bingham v. Marion, 7 Pick. 40.
    *The consideration, then, being a valid one, and .the contract binding the payee of the note from suing the principal, the sureties are discharged. Bank of Steubenville v. Carroll, 5 Ohio, 215; Lawther v. Lawrence, Wright, 186; Jenkins v. Clarkson, 7 Ohio, 72; Boston Hat Man. Co. v. Messenger, 2 Pick. 235.
    And it is immaterial whether the surety sustain any injury by a change of the contract, or whether it may have been for his benefit, if without his knowledge. Miller v. Stewart, 9 Wheat. 680.
    So it matters not whether the change is for the benefit, or to the prejudice of the creditor. 3 Pot. Cond. 306, in notes.
    Though the agreement to' give time was invalid for want of consideration, yet, if it has been executed, and the time given, the surety is discharged. Bever v. Butler, Wright, 267; Monroe v. Perkins, 9 Pick. 293; Robertson v. Gardiner, 11 Pick. 150; Ratcliff v. Pemberton, 1 Esp. 35.
   Read, J.

The pleadings admit, and. the proof shows, beyond doubt, that Kittridge was surety. Gilruth swears that the note was given for money loaned ; that the whole negotiation was with Kimball, with whom he always dealt in relation to the demand ; that the note continued his property until September 18, 1837. This was long after it was due, about ten months.

The part of Gilruth’s testimony upon which the defense mainly relies, is as follows: On February 9, 1837, the witness was at Norwalk when the note was given, and called upon Kimball for pay, who excused himself, and wanted delay; and it was proposed to pay him ten per cent, as a consideration for it. The witness says: “I have consented to take the proposed interest, it being expressly agreed that the notes should remain just as they were, instead of being renewed. I agreed to wait until the 1st of May following. Kimball then alculated the extra four per cent, interest on the $2,000 *till the 1st day of May, and gave me his note for it, part of which was traded out in his store the 3d of August following.” He further says, that the note of $34.44, of February 9, 1837, and due May 12, 1837, upon which he received from Kimball, August 3, 1837, $24.63, he afterward sold with the payments credited, to Latimer.

Now, the question arising upon the above state of facts, is, was here such an agreement to give further time upon a valid and binding consideration as will discharge the surety? It is an undoubted principle of law, that, if the creditor, by agreement with the principal debtor, or by any other act, precludes himself at law from proceeding against the principal debtor, the surety is discharged. It is not questioned but that a binding agreement upon a valid consideration to give further time to the principal debtor, will discharge the surety. But it is considered in this case, that there was no valid consideration for the agreement to extend the time of payment of this note from February 9, 1837, to the 1st of May following; because the $34.44 note, the consideration of such agreement, was for a rate of interest larger than our statute allows to be collected. It is just as competent for the principals to a note to extend the time of payment for a specified period, as it was to fix the time of payment originally. If the lender of money, secured by a note, after the same becomes due, contracts with the borrower that the time of paying the same shall be extended for one year, or for any other period, upon consideration that the borrower shall pay the legal or less rate of interest, why is not that a binding contract? The lender, by this contract, secures to himself the interest on his money for the year; and the borrower precludes himself from getting rid of the payment of the interest, by discharging the principal. It is a valuable right to have money placed at interest, and it is a valuable right to have the privilege, .at any time, of getting-rid of the payment of interest, by discharging the principal. By this contract, the right to interest is secured for a given period, and the right to pay off the ^principal, and get rid of paying the interest, is also relinquished for such period. Here, then, are all the elements of a binding contract. But it is said there is no consideration for the extension of time, becauso the law gives six per cent, after the note is due. But the law does not secure the payment of this interest for any given period, or prevent the discharge of the principal at any moment. There is precisely the same consideration for the extension of the time as there was for the original loan. The consideration of the loan, on the part of the borrower, is the payment of interest. If there was no law limiting the amount of interest, the parties might contract for any rate they pleased. A contract to forbear the collection of a debt for a specified period, in consideration of the payment of a rate of interest beyond what the law allows, is founded upon a valid consideration. This would never have been doubted at all, if the law had not fixed the rate for which collection could be had. But, by limiting the rate of interest, the law does not declare that such rate is not a valuable consideration, but, on the contrary, declares that such rate is so fully valuable, that it will not permit a higher rate for the use of money or forbearance. The law would permit any amount to be paid for forbearance, if it were not for the fact that this would break down the whole policy of the law limiting the rate of interest; and that forbearance amounts to nothing more than a mere loan. The only doubt which has arisen from the fact in this case is, that, in countries where the law declares usurious contracts void, a contract to pay usurious interest is void; and hence, such a contract to pay, would form no consideration for an agreement to give time, or forbear the collection of a debt for a specified period. Such a contract with us is not wholly void, but the statute steps in and pares it down to the legal rate, and permits that to be collected. Hence, this $34.44 note is a good and valid contract for the payment of six per cent, interest — and hence, a good consideration to support the agreement to extend the time of payment of the $2,000, to the time contracted for; and the original parties, ^without the knowledge of the surety, having, by valid agreement, extended the time, the surety is discharged.

This view carries out the spirit of the statute respecting interest, secures it from the opportunity bf violation, harmonizes with the decisions had under it, and rests, in our opinion, upon a solid foundation.

Hitohoock, J., having been of counsel for one of the parties, did not sit in the case.


author: Birchard, J.

text:
    John T. Stewart and others v. The Little Miami Railroad Company.
    The original act of incorporation authorized the company to change the location of the road, when the cheaper route, or obstacles to its continuation on the route first adopted, were found.
    The proceedings, in obtaining a loan of state credit, were such as would have enabled the state to restrain the company from varying the route of a road, approved by the board of public works.
    The amendatory act, giving the assent of the state to a change of route, conferred no new right upon the company; and, therefore, the board of directors could exercise the powers conferred by the original charter, without procuring the assent of the private stockholders.
    This is an application for an injunction, filed in the Supreme Court of Clark county; and having been heard in that county, and again in Erie county, was reserved for decision in bank.
    The .bill sets forth that defendant is an incorporated company, with powef to construct and maintain a railway from Springfield, through Xenia, and by the valley of the Little *Miami river, to Cincinnati, referring to and reciting portions of the act of incorporation.
    That, under said act, the requisite amount of stock having been subscribed, etc., the directors proceeded to have surveyed and examined, by a competent engineer, the routes from Springfield to Xenia; one by way of Olifton, one by Yellow Springs, and one by tbe valley of Clark’s run. That, by resolution, on April 24, 1837, they adopted tho route by Clifton, and also passed a resolution to apply, and subsequently did apply, to the board of public works, for a loan of tho state credit, filing a plan, etc., of the survey, which was approved by the board; upon which a loan was made by the state. That, on February 19, 1840, an act was passed granting the defendant certain privileges, on the express condition that no change should be made on the route established by tho way of Clifton.
    That on March 11, 1843, an act passed changing the loan of tho state into tho capital stock of tho company, which tho state now holds to tho amount of $125,000.
    That from Cincinnati to Xenia the road is nearly completed. From Xenia to Springfield, not under contract. That at the last general assembly, the president of the board of directors, by order of the board, presented without public notice, and without the direction of the stockholders, a petition praying authority to locate such road on such ground as might be deemed practicable; and on March 4, 1845, authority was granted by special act to relocate between Xenia and Springfield. That the directors, without authority ffom tho stockholders at any meeting, regular or otherwise, trader this act, have assumed to alter, and have abandoned tho established route by Clifton, and have laid out and put under contract another and different route by the Yellow Springs, and are about to use and expend the moans of the company in constructing it. That the stock of the company amounts to $600,000, of which complainants own and have paid sixty shares, amounting to $3,000. That part of complainants subscribed before *any survey, part after the route by Clifton was established, with assurances that the money would not be wanted till that route was put under contract. That they and others, stockholders, own land on the route, and are greatly interested in having it remain as first established. That the new route is expensive, etc.
    The prayer of the bill is for an injunction, etc.
    Tho respondent, by Frederick Morrow, president of the company, has answered, admitting substantially the allegations of the bill; but claiming that, under the act of March 4, 1845, tho company was authorized to relocate the road whenever a better or cheaper route, and one having less obstacles, could be found, and claiming that such is the route established.
    Odlin & Schenck, for complainants:
    The defendant is a private corporation, and when it located the road, its power in that behalf was exhausted. After the adoption of the Olifton route, the legislature had no power to authorize the directors to change it, without the assent of the stockholders, which assent has never been given. Marlborough Manufacturing Co. v. Smith, 2 Conn. 579; 6 Serg. & Rawle, 498; 7 Serg. & Rawle, 517; 10 Mass. 384; 8 Mass. 268.
    Fox & Lincoln, for defendant:
    The directors were the proper persons to apply to the legislature for power to relocate, and to make the relocation. They are t'he agents of the company, and the only agents recognized by the charter.[356 Angell & Ames, 212, 213; Angell on Corp. 167; 12 Wheat. 113; 6 Serg. & Rawle, *508; Delaware Canal Co. New York and Erie Railroad Co., 9 Paige, 328.
    The granting an injunction is a matter of discretion, and will not be granted to restrain a great public work, unless the complainant is in great danger of sustaining an irremediable injury. 8 Ohio, 39 ; 6 Paige, 563 ; 5 Paige, 516.
   Birchard, J.

The powers of the respondent are those conferred by the act of incorporation and the acts amendatory thereto. Section 1 of the original law authorized the construction of a road between the given termini. Section 10 empowered the directors to cause such examination and surveys of the road as might enable them to select the most advantageous line, and required them, “ as soon thereafter as practicable, to select the route on whieh said road shall be constructed.”

Section 12 gives to the “ corporation,” after having thus selected a route, authority to vary the route and change the location, whenever a better and cheaper route could be had, or any obstacle to continue said location was found, either by difficulty of construction or procuring right of way at a reasonable cost.

Under the original powers conferred by the charter, the authority of the board of directors to do the act complained of, would be ample. The answer shows that a better and cheaper route than by the way of Clifton can be had, and that there are difficulties in procuring the right of way by that route, whieh do not ex-:st in reference to the one recently selected by way of Yellow Springs.

These original powers were, however, impaired by the act of the company in obtaining the loan of state credit, at least so far as the rights of the state were concerned.

Preliminary to receiving that loan, the company was required to locate, survey, and estimate the costs of the road, etc., and submit the same to the approval of the board of public *works, without which approval, the loan could not have been obtained,, Swan’s Stat. 559.

All these proceedings were had pursuant to the statutes; and in virtue of them, a credit of $200,000 was procured from the state.

It would be unconscionable to permit this company, after the receipt of that loan, without the consent and against the will of the state, to change the location then made and acted upon; and, at the instance of the state, they would be estopped from exercising any such power. But the alteration complained of, is not against the will of the state. It is with her consent. The amendatory act, of March 4, 1845, provides, “ That the Little Miami Railroad Company be, and they are hereby authorized to survey and locate the line of said road between the town of Xenia, etc., and Springfield, upon such ground as may bo most suitable and practicable : Provided, that all subscriptions, etc., upon condition that the road should be made upon the route heretofore surveyed and adopted, and all stock subscribed after said route was located and reported to the board of public works, by persons residing thereon,” ete., “shall be abandoned, and the money, with interest, paid on demand.” The effect of this statute is at least to reinvest the company, or rather to restore to them the rights and powers conferred by the original act of incorporation. It destroys the power which the state would otherwise possess, of setting up an act of the company to prevent the exercise of one of the privileges conferred by the original charter. It is a release of the right of the state to interpose acts which would estop the company from making a better location than the Clifton route.

The complainants treat this act as a grant of new powers, and Insist that the directors, without the assent of the stockholders, can not accept of any alteration in the fundamental law of the company. Without controverting their conclusion, in case their premises were correct, we avoid it by refusing to admit their premises. As above stated, the original charter conferred authority to make the alteration complained *of. That charter has not been repealed nor impaired by any act of the legislature, save the declaratory restriction in the proviso to section 3 of the act of February 19, 1840, “that said company substantially adhere to the line originally located in accordance with the original surveys, as established and reported to the board of public works.” There is no act of the legislature bearing upon the subject. This proviso does not affect to repeal the charter — such was not its object or intention. It may manifest the intention of the state not to relinquish the right she had acquired, by the proceedings in reference to the loan of credit, to restrict the company in the exercise of those'powers granted in the act of incorporation which might otherwise be used in a way to deprive her of the benefit intended to be secured from the approval of the plan, etc., by the board of public works. This proviso is now repealed.

There is another ground upon which, as we think, the injunction should be refused. The complainants appear before us as stockholders of the company, seeking to protect their interest, as such, from injury. Their interest, as landholders, upon the route, is the main interest. Now we can not shut our eyes to the fact that, were it not for the incident, the injury to the principal, i. e. the stock, would not be a cause of complaint. The power to grant writs of injunction, is one of the extraordinary powers of a court of chancery, and should only be exercised, in cases like this, where a great and important public work is to be restrained and suspended, to prevent injuries that would otherwise be irreparable, or when the magnitude of the injury to be dreaded is so great and the risk so imminent that no prudent person would think of incurring it. Then the complainant’s right is doubtful; or an action at law or in chancery, prosecuted in the ordinary mode, will afford adequate redress. 'The provisional injunction should be refused. Injunction refused.


text:
    *David Jones and Daniel Bushman, Administrators with the will annexed of Ann Donley, v. Thomas L. Shields, Guardian of Nancy A. Donley and others.
    An action of assumpsit -will not lie at the suit of an administrator appointed under the laws of this state, to recover moneys, the proceeds of lands of the intestate lying in Pennsylvania, and sold hy the guardian as the property of the wards, under authority of the orphans’ court of that state.
    The record of a judgment against the administrator, and the return of nulla hona hy the sheriff to an execution issued thereon, is not sufficient evidence, in an action against the heir, to subject his real estate to the payment of the ancestor’s debts, to show the want of assets.
    Where land is bequeathed hy a husband to his wife, to use during life, with power to devise the same on her death to whom she pleases, and the wife devises the same, her devisee takes the estate disincumbered hy her debts.
    This is an action of assumpsit, reserved in the county of Clermont.
    The first and second counts in the declaration aver, in substance, a recovery, in the common pleas of Clermont county, of a judgment by Daniel Bushman against plaintiffs, as administrators, for $728, the issue of an execution thereon, and a return by the sheriff ,of no goods or chattels, lands or tenements, etc., and that there were no assets in the hands of plaintiffs at the time. That, by her last will, testatrix devised certain lands lying in Pennsylvania to her son, James Don-ley, since deceased, and that said lands descended to defendant’s wards,; that, by virtue'of proceedings in, and authority granted by, the proper courts of Pennsylvania, defendant, .as guardian of said minors, has made sale of said lands, and has the proceeds now in his hands, amounting to .$5,000,. .That he had notice of the judgments, etc.; and, in consideration, etc., assumed and promised, etc.
    The declaration contains also the common counts.
    A plea of non assumpsit was interposed, and the case submitted to the court, and the testimony for the plaintiff being ^closed, the defendant moved the court to overrule the same, and direct a nonsuit; which motion was reserved for a decision by the court in bank.

      The testimony offered by the plaintiff is as follows :
    1. The record of certain proceedings in the orphans’ court of Washington county, Pennsylvania, relative to the appointment, qualification, and proceedings,of Thomas L. Shields, as guardian of Nancy Ann Donley, Martha E. Donley, and John B. Donley, had before said court.
    2. The record of a deed from the recorder’s office in Washington county, Pennsylvania, from Thomas L. Shields, as guardian of said minors, to John Miller, for certain real estate situated in said county of Washington.
    3. Letters of administration, with the will annexed, to David Jones and Daniel Bushman, on the estate of Ann Donley, deceased, late of Clermont county, Ohio.
    4. An exemplification of the record of the will, and probate there, of John Donley, deceased, from the register’s office at Washington county, Pennsylvania.
    5. The record of the office of the clerk of the court of common pleas of Clermont county, showing a judgment recorded in said court by David Bushman against David Jones and Daniel Bushman, as administrators of Ann Donley, deceased.
    6. The deposition of Martha Clarke.
    7. The counsel for the plaintiffs then offered evidence tending' to prove that Thomas L. Shields, guardian as aforesaid, had money in his hands belonging to his wards, the proceeds of lands sold by him as guardian as aforesaid, situated in said county of Washington, and State of Pennsylvania; which said evidence was as follows, to wit: Joseph Wyatt, a witness for plaintiffs, testified that he had heard said Shields say, speaking in reference to said land in Washington county, that he had sold it, as guardian, for between $1,100 and $1,200; that he had heard said Shields say ho had paid out $300 or $400 to Hancock for said minors ; that said ^Shields had also paid to him (witness) who was the administrator of James Donley, deceased, by order of the court, thirty dollars out of said fund.
    John Joliffe, for plaintiffs :
    That a bill in chancery would be entertained in a pase like this, is settled by the case of Pedan v. Adm’r of Robb, 8 Ohio, 227. And, as the action of assumpsit is an equitable action, aiming at abstract justice, it will also lie. Claflin v. Godfrey, 21 Pick. 6.
    To sustain the action, privity of contract, in fact, ip not needed.;'
      Privity in law is sufficient. Harris v. Clark et al., 10 Ohio, 7; 5 Watts, 134.
    See also Allen v. McKein, 1 Sumn. 317; Arnold v. Lyman, 17 Mass. 400 ; Garland v. Salem Bank, 9 Mass. 408; Denny v. Lincoln, 4 Mass. 388; Armstrong v. Garrow, 6 Cow. 365.
    James L. Shields, in person:
    By the will of John Donley, the husband of Ann Donley, she only acquired the right to receive the rent and profits of the land devised from the executors, coupled with tho power of disposing of tho same by her will. Lessee of Boyd et al. v. Talbert, 12 Ohio, 212; Jackson v. Bull, 10 Johns. 148; Jackson v. Harris, 8 Johns. 142. And her appointee, James Donley, takes the land unincumbered with any debt of hers. 4 Kent’s Com. 320-340; Whitman v. Norton, 6 Binn. 395; Tucker v. Hasanclever, 3 Yeates, 294; S. C., in Court of Errors, 2 Binn. 252.
    By the law of Pennsylvania, as well as upon general principle, tho action, if maintained at all, can only be brought in Pennsylvania, where the land lies. 362] Austin v. Gage, 9 Mass. 395; Pav. Logan’s Adm’r, 4 Bibb, 402. And, ^though the money has boon brought into this state, it does not thereby become assets.' Peck v. Mead, 2 Wend. 470.
    But, if this fund were chargeable with the debts of Ann Donley, it must be reached through a court of chancery. 2 Fonbl., 2d ed. 378, in note; 1 Brown’s Ch. 6; Boston’v. Lindergreen, 2 Brown’s. Ch. 94; Shepard v. Lutwidge, 8 Ves. Jr. 26; Toller’s Law of Ex’rs, 414; Rutledge v. Rutledge’s Creditors, 1 McCord’s Ch. 469.
   Birchard, J.

The proof offered by the plaintiff shows that all tho right which Ann Donley, the testatrix, had in the lands, the proceeds of which are sought to be recovered by this suit, was conferred upon her by the last will and testament of heríate husband, John Donley. To that, then, we must look. The clauses of the will relating to this case read thus : “ I give and bequeath unto my beloved wife, Ann Donley, all my real and personal property except such as shall hereafter be described” (and, after describing certain property which is specifically.disposed of to other legatees, the will proceeds), “ All the remainder I allow my wife to have during her life, for her comfort and accommodation; and, at her death, I bequeath unto William Donley, son of Matthew Donley, 'deceased, $150; and, if my beloved wife should decease before ho comes to the ago of twenty-one years, I allow my executors to put the money at interest until he comes of age; and I allow my executors to rent the place and give all the profits of it to her as she needs it; and, at her death, she is to bequeath it to whom she pleases.” To sustain their action, the plaintiffs assume that this will vested in Ann Donley the entire estate in the land, or at least such an interest that it is chargeable with her debts. The assumption is not warranted. The intention of the testator was to give her the use of the land during her life, with the power to dispose of it by will, at her death, to whom she might see proper. She did not take such an estate as would be liable for her debts, and the wards of the defendant *who acquired title by descent as heirs of their father, the devisee or appointees, by the will of Ann Donley, inherited that title free of any claim against it on her account. The position is too plain to need illustration or the support of the authorities. It shows that there is no evidence sufficient to entitle the plaintiff to recover.

Were it admitted, however, that the land in Pennsylvania was held by the heirs of John Donley, subject to the payment of the debts of Ann Donley, the proof would be insufficient to entitle plaintiff to a judgment. It is not competent evidence of the want of assets; and the averment that all her other property had been disposed of, must be sustained by evidence, to entitle the administrators to sell that which descended to the heirs. The proof to sustain this averment is the judgment and execution, with the sheriff’s return indorsed thereon. These were matters with which the heirs had nothing to do, and by which they should not be bound They are entitled to be heard in opposition to that judgment, and have still a right to controvert it, and to prove that it is not a just claim against the estate of their ancestor.

Still clearer is their right to contest the truth of the sheriff’s return, by showing that other assets remain in the hands of the' plaintiffs. It would never do to suffer the real estate of minor heirs to be taken from them upon proof that the administrator of the estate of their ancestor had suffered a return to an execution, of nulla bona, to be made. Supposing the execution to have been1 issued on a bona fide judgment, the return would follow as a mat-ter of course. The administrators could not suffer the assets to' bo levied on and sold; for that would defeat the statutes providing for the settlement of estates. The return, therefore, was no evidenee of want of assets, and is not inconsistent with the supposition that these plaintiffs had an abundance of cash assets then in their hands.

The defendants were not bound to prove a negative, i. e., a want of assets in tho hands of the administrators. Before a final or partial settlement, or a report to the court of the amount *of assets and liabilities, made by these plaintiffs, the heirs could not well bo supposed capable of showing tho condition of the estate. The averment of a want of assets was an affirmative averment, which the administrators who managed the estate of Ann Donley, and knew how it had been disposed of, were better able to maintain than any one else, and which they ought to bo held to prove, by something better and more conclusive than the return of the sheriff.

Suppose the judgment had been rendered by collusion of plaintiffs, on a groundless claim, one that was barred by the statute of limitations, or on a contract founded on an illegal consideration— and it is clear that the heirs ought not to be concluded by it— they should not, in such a case, be compelled to suffer their land to be sold to satisfy it; and this shows tho propriety of requiring better proof. Considerations like these ought not to be overlooked.

Again, the lands of which the proceeds are sought, were situate in tho State of Pennsylvania. The guardian, under the authority conferred upon him by the laws of that state, and the orphans’ court, converted it into money. To that court, and within tho jurisdiction of that state, are he and his sureties responsible for the faithful administration of his trust. Itis'obvious that tho plaintiff could not have reached these lands, in order to subject them to the payment of the debts of tho testatrix, without tho aid of the laws and the probate courts of the state. What has been done, has changed the form of tho property; but it is still, to a great extent, substantially within that jurisdiction. In the hands of the guardian, who is responsible to the orphans’ court, and liable to be called on to account to that tribunal, we doubt seriously whether the law will raise an implied power against him, in favor of plaintiffs, upon which assumpsit can bo maintained. Were the fund needed, tho proper way to reach it, if to be reached at all through the aid of the courts of this state, would seem to be by bill in chancery, bringing into court all the deviseos, legatees, and heirs, so that a fair and just contribution of tho burden might be made amóng *them, and so that the legacies might be subjected according to the equities subsisting between tho parties.

Judgment for defendant.

Wood, C. J., was prevented from sitting in this case, by indisposition.


text:
    Ira B. Cary v. Ezekiel Folsom and others.
    When mortgaged premises are sold in parts to different purchasers, the mortgagee, on foreclosure, will be compelled to first exhaust the part last sold, and thus, in the inverse order of sale, till the mortgage be satisfied.
    Where different persons hold parts of the same mortgaged premises, some under judicial sales, and some by private sale, the same rule applies.
    That a purchaser at judicial sale will overreach a purchaser of the mortgagor, who made his purchase pending an appeal from tho court of common pleas to the Supreme Court — judgment in the common pleas having been against the mortgagor.
    This is a bill in chancery to foreclose a mortgage, reserved in Cuyahoga county.
    The bill alleges that Folsom, on September 7, 1835, was seized in fee of tho lands in question.
    That, to secure the payment of certain bills of exchange which it was contracted should be drawn upon tho complainant and other persons, a penal bond, in the sum of $20,000, was entered into; and, to secure the performance of the condition of said bond, Folsom and wife, on the said 7th of September, executed the mortgage set forth in the bill; that, on January 1, 1838, there was found to be duo complainant, under said arrangement, the sum of $462.50.
    *The president, directors, and company of the bank of Wooster, the Commercial Bank of Lake Erie, John W. Allen, assignee in bankruptcy of said Folsom, Walter W. Webb, and Horatio Averill, are made parties.
    The following agreed statement of facts is admitted as the answer of the defendants, by consent:

      1. On October 11, 1837, said Webb and Averill recovered a judgment against the defendant, Ezekiel Folsom, lor the sum of $387.73 and costs of suit, and from which said judgment said Folsom took an appeal to the Supreme Court; and on August 8, 1838, said Webb and Averill recovered a judgment in the Supreme Court for the sum of $437.92 and costs of suit; that said judgment was remanded to the court of common pleas for execution, on November 20, 1838 ; that on October 29, 1839, an alias ft. fa. was issued on this judgment, and on October 30, 1839, the east half of the premises mortgaged to the complainant was levied on, and this levy is still in force, no sale having been made.
    2. On'said October 11, 1837, said president, directors, and company of the Bank of Wooster recovered a judgment in the court of common pleas of said county against said Folsom and some other parties, defendants (said Folsom being principal debtor), for the sum of $7,402.20 and costs of suit; that on July 16, 1838, execution was issued; and on October 17, 1838, the west half of the premises mortgaged to said complainant were levied on under this execution.; and, under this levy, the said west half has been sold and conveyed to the president and directors and company of the Bank of Wooster.
    3. That on April 13, 1838, said Folsom and.wife conveyed the east half of said mortgaged premises to the Commercial Bank of Lake Erie by a warranty deed, the consideration of which is not questioned.
    *Tho question submitted to the court is, upon which portion of the mortgaged premises the money due complainant shall be chai-ged.
    Allen & Stetson, for complainant.
    C. Stetson, for the Bank of Wooster.
    Payne & Wilson, for Webb and Averill, and the Commercial Bank of Lake Erie.
    The case was submitted without argument.
   Read, J.

The question is, out of what part of the premises shall the complainant be compelled first to resort for the satisfaction of his mortgage?

It is admitted the mortgage is the oldest and preferable lien, and covers the whole premises.

On October 11, 1837. Webb and Averill recovered a judgment against Folsom for $387.73. The lien upon the land is kept alive.

On said 11th day of October, the president, directors, and company of the Bank of Wooster, recovered a judgment for the sum of $7,402.20, and the west half of said premises were sold on execution on October 7/1838, and convoyed to the president, directors, and company of the Bank of Wooster.

There is no controversy between these judgments.

On April 13, 1838, Folsom and wife conveyed the east half of the mortgaged promises to the Commercial Bank of Lake Erie, by a warranty deed. »

It is a well-established principle that where one person has a lien upon entire premises, and other subsequent liens or interests have been acquired on different parts of the same promises, the lien upon the whole premises shall be enforced against the *last-acquired interest first, and thus prevail to subject each successive junior right first, until the whole lien be satisfied.

In accordance with this principle, the east half of said premises will be first subjected to satisfy the mortgage, and if that be not infficiont, then the west half.

Decree may be taken accordingly.


author: Wood, C. J.

text:
    Benjamin S. Blanchard, Jonathan Coolidge, and others v. Charles Gregory.
    In trespass de bonis, etc., and judgment against all the defendants, one being an infant, the judgment being an entirety, is erroneous.
    A plea of release of error by the infant, after judgment, and after he comes of age, is bad. . •
    This is a writ of error to the Supreme Court of Geauga county.
    *The error assigned is an error in fact. It appears from the record that, at the August term, 1843, of the Supreme Court in Geauga county, Gregory obtained a judgment, in an action of trespass de bonis, etc., against Blanchard, Coolidge, and others, for $2,475.
    The error assigned is, that Blanchard, one of the defendants, at the time of the date of process issued against him, was a minor ; that process was never personally served upon him; that he had no guardian ad litem appointed to defend for him ; that he never appeared and defended by himself or attorney, but made default; and that judgment was rendered against him by default.
    To this, the defendant in error interposed a plea that, after the rendition of the judgment in the Supreme Court, and after suing out the writ of error, Blanchard, in consideration of fifty dollars, received of Gregory, released all error in the prosecution of the original suit, and in the rendition 'of the judgment.
    To this plea the plaintiffs in error demurred, and the question of the sufficiency of this plea was reserved for decision in this court.
    Perkins & Osborn, for the plaintiffs:
    Believing the questions involved in this case to have been settled by many very respectable authorities, wo only adduce them, and will not trouble the court with a formal argument.
    If several defendants appear by attorney, and one is an infant, it is an error, and the judgment shall be reversed against all. Com. Dig., tit. Plead. 262; 2 Croke, 287; 1 Ral. 776; 2 Croke, 303; Al. 74; 1 Lov. 294; 5 Mad. 209; Easton v. Calendar, 11 Wend. 90; Richard et al. v. Walton, 12 Johns. 434.
    There are three analogous cases in our own reports, deciding that, where all are obliged to join in a suit, the privilege of one extends to all. 3 Ohio, 49; 10 Ohio, 17; 12 Ohio, 359.
    *If these authorities are evidence of what the law is, it follows that the release of one can not affect the rights or remedies of others, and so are the English authorities. “A release by one of the defendants is no plea against the others.” Com. Dig., title Pleader, 3 B. 19; 3 Mod. 109, 135; 6 Coke, 256; Cro. Eliz. 648, 649; S. C., Cro. Jas. 116, 117; 2 Saund. 191, u., v.
    The only case we have found in opposition to these authorities is in Kirby’s reports, and in that it is admitted that all the English authorities are the other way. It is worthy of note, too, that the opinion of the court is given by the reporter.
    E. Wade, and Hitchcock & Wilder, for the defendant:
    We contend, first, that there is no error in the judgment and proceedings, and second, that if there be, the release of errors is a bar to the further maintenance of the writ of error.
    1. The errors assigned are not valid, and the question of the sufficiency of the assignment can be well raised under this demurrer. The assignment of errors is in the nature of the declaration, and on demurrer to the plea, the court will pass upon the sufficiency of all the pleadings. 2 Tidd’s Pr. 1107, 1116, 1117, 1720 ; Graham’s Pr. 787-789; 2 Paine & Durr’s Pr. 472, 478; 3 Bac. Abr. 216, 225; 24 Eng. Com. L. 30-33; 2 Sol. Pr. 384, 385; 3 Thos. Coke Lit., 1 Amer. ed. 457, at top; Coke Lit. 288 C ; 5 Com. Dig., title Pleader, (5 Amer.) 721; 1 Salk. 268; Arch. Pr. 256.
    2. The assignment alleges that there was no appearance by Blanchard the minor. This contradicts the record, and the plaint-' iff in error can not assign for error matters contrary to the record. 2 Sel. Pr. 382-385; Cro. Jac. 459, ed. 4; 9 Mass. 532; Yelv. 33 ; 2 Bac. Abr. Error K, 3; Cro. Car. 53; 2 Ld. Raym’d, 1415.
    By our practice, under our statute, the defendant is in court, and his appearance perfected, when the sheriff returns “ levied,” ^though we admit, at common law, it was different. 2 Sel. P. 91; Steph. Pl. Appendix, 22, n. 13; 3 Black. Com. 281, 291. Such return was made in this case.
    See also, as to -the rights and disabilities of infants, and the mode of practice when they aro parties to a suit. 3 Bac. Abr., Infancy and Age, K. 147-149; Cro. Jac. 464; Cro. Car. 307; 1 Mass. 475 ; 3 Thos. Coke Lit., 1 Amer. ed., 605, 606; Vaughn’s case, 5 Coke, 476; Moor, 665; Palmer, 229; Cro. Jac. 580; 1 Bulst., 24; 1 Wend. 165.
    This assignment of error is also bad, because it does not allege that the disability existed at the time the judgment was rendered. Cro. Jac. 303; Cro. Eliz. 569; 4 Barn. & Adol. 490; 24 Eng. Com. L. 30; Arch. Forms, 340: 1 Mass. 479; 3 Saund. 332.
    But, 3, this is an error, if it be one, which can be waived by an infant, on arriving at majority, as well as in other cases. We claim that Blanchard has done so, and infancy being a personal privilege, that irregularity being waived in him, his co-parties can not take advantage of it. Ketsey’s case, Cro. Jac. 320; 1 Thos. Coke Lit. 205, top paging, Amer. ed. 1; Coke Lit. 51, C; 2 Johns. 279; 14 Ib. 417; 1 Pick. 500.
    II. On the second point we contend that, if the court shall be of the opinion that the matters assigned for error are sufficient to reverse the judgment, still the release of Blanchard is a bar to the further maintenance of this suit. The error was committed against him, and he alone is prejudiced. Wilford et al. v. Grant, Kirby, 114.
    All the English cases on this subject, which decide that when the judgment is void as to one, it is void as to all the defendants, and that one can not release the errors as to the other, proceed upon the ground that “ it is not reason that the act of one should prejudice his companions.” But here it was no prejudice to the others that judgment was rendered against Blanchard. 11 Blackf. 139; '7 Ohio, 122, pt. 2; 5 Ohio, 169.
    *But, should the court be against us on all these points, it will reverse the judgment, but will proceed to render such judgment as the court below should have rendered. That is, it will render judgment against the residue of the defendants below. This would be doing justice, and we think in accordance with law and correct practice. 5 Port. 166; 11 Mass. 262, 266 ; Graham’s Prac. 793; 11 Johns. 241; 4 Wend. 95.
   Wood, C. J.

This is a writ of error to the Supreme Court of Geauga county. The error assigned is, in fact, infancy of Blanchard, one of the defendants. To this assignment, the plea of a release of error, since the judgment, by Blanchard, and since he became of age. To this plea the plaintiff in error demurred, and the principal question in the case is upon the sufficiency of this plea. The action was in trespass for personal goods and chattels, and against several defendants now plaintiffs in error.

We hold that the judgment being an entirety, if it was erroneous as to Blanchard, it was likewise erroneous as to all the other defendants against whom judgment was rendered; and that the release of Blanchard is inoperative to bar the writ of error. The demurrer is therefore sustained, and the judgment reversed, and the case remanded;

Hitchcock, J., having been of counsel for the plaintiffs, did not sit in this case.


text:
    *John Fisher v. John Patterson.
    Portions of a publication containing distinct libels, not declared upon by the plaintiff, and it not appearing that they were offered in proof for any purpose, by the plaintiff, can not bo, found true by the jury to mitigate damages.
    Distinct or separate libels, not declared upon, can not bo introduced in evidence and relied upon, either by plaintiff or defendant, to show malice, or to aggravate or mitigate damages.
    The oourt will not interfere to grant a new trial in actions of libel, on the ground of excessive damages, unless they are so gross as to convince the court that the jury acted from corruption, mistake, undue bias, or some improper influence.
    The court will not grant a new trial on the ground of repugnancy in the verdict; the alleged repugnancy being that the jury found for the defendant on the first count, and all the issues for the plaintiff on the second count; and that, by finding for the defendant on the first count, they found that he did not falsely publish ; and that, by the finding on the second count, they found that he did falsely publish, etc.
    Not contradicting by testimony a part of-the publication not in proof, containing a chartjo of crime, is not an admission by plaintiff of its truth, and should not he considered by the jury in mitigation of damages.
    Reputation of having committed particular wrongful acts or crimes, and having been convicted of such crimes, is not proof to mitigate damages— the general character of the plaintiff only being in issue.
    This is a writ of error, directed to the Supreme Court of Adams-county.
    The record shows that on November 3, 1837, Patterson brought an action for a libel against Fisher in the court of common pleas of Adams county. The declaration contains two counts. In the-first count, it is averred that Fisher, on September 14, 1837, pub lished of and concerning Patterson, the following:

      “To John Patterson, Esq. — Sir: A year or two since, a handbill was printed and circulated in this county, signed ‘ One of the-People,’ stating- in substance that you, when a journeyman silversmith at Pittsburg, decamped suddenly from your employer, minus a large amount of plate, consisting of silver spoons and other articles manufactured of that metal, and that your employer advertised you as a runaway thief, offering a handsome ^reward for your apprehension. This charge has again been preferred .against you, in the Free Press, no longer ago than last month, in .a paper, too, published within a few rods of your own house. Now, the writer of these articles, signed ‘One of the People,’ is well known in this county to bo John Fisher, with whom some of ¡us have been acquainted for more than twenty years ; and, from •our knowledge of him, we must say, Whig as he is, we are loth to •question his veracity, and we know that he is made of stuff that will [bear] him out in whatever be may state. We have voted for you more than once, and will again, if you clear your character from these foul charges, or prosecute ‘ One of the People,’ alias John Fisher, for his attempt to lessen our Democratic leader in the estimation of his followers. Respectfully, Thomas Baird, Wm. P. Truitt, John Pool.”
    In the second count, it is averred that said Fisher, on October •6, 1837, published, among other things, of the plaintiff, the following :
    “ It is hard to believe a liar even if he tell the truth. I will state to you, fellow-citizens, what I had heard eight or ten years •since. A gentleman said to be from Pittsburg, stated, in the town ■of West Union, that, when Patterson first left that place, in his hurry to move westward, be forgot to leave sundry articles of •value belonging to a citizen of Pittsburg, and that citizen referred ■to, published the transaction in a paper in that city. I inquired •enough about the matter to satisfy myself, at the time — I became satisfied. I have not, from that day to this, spoke of John Patterson. Now I never call such an act stealing, yet I do n’t insist on my opinion being the correct one, for all such transactions are moonshine, compared with the violation of the constitution. In justice to J. Patterson, I understand the matter was afterward compromised. It may bo, for anything I know to the contrary, that it. was to make that compromise that Lackey & Buchanan indorsed for John Patterson for $500, in the Bank of West Union ; but of this I neither know nor care. I should as soon think of wreaking ^vengeance on a stuffed toad as J. Patterson. I believe there is not a worse citizen in Adams county than J. Patrterson. I am no friend to the devil, the father of lies, nor of any ■of his aids, when I know them. Respectfully, your fellow-citizen, .but humble servant to no one, John Fisher.” ■
    At the March term, 1844, of the Supreme Court in Adams county, the cause was tried by a jury, upon the plea of the general issue, and two special pleas of justification, who found the defendant below not guilty as to the first count, and guilty as to the second -count; and as to the issue joined under the second and third pleas, .they found the defendant below published the matter in said pleas mentioned of his own wrong, and assigned the plaintiff’s damages at 8750.
    During the trial, a bill of exceptions was taken, which is as follows :

      “ Be it remembered that, on trial of this cause in the Supreme Court, sitting in this county of Adams, at the March term thereof, A. D. 1844, after the plaintiff had closed his testimony, and among other things had given in evidence the whole of a publication, parts of which were mentioned and set forth in the second count of the declaration, the defendant offered to prove, in mitigation of damages, the truth of certain other portions of said publication, not declared upon, which proof was objected to by the plaintiff, and overruled by the court. The evidence on both sides being closed, the defendant moved the court to instruct the jury that they might take into consideration, in estimating the damages, that, in the publication charged as libelous in said second count of the declaration, the said plaintiff is charged with forgery, antedating a receipt, with intent to defraud Richard Collins and Samuel Brush out of a just claim; and that, having declared upon that portion of said publication, and the plaintiff not having attempted to clear himself of said charge, but had tacitly admitted its truth; which instruction to the jury, the court refused to give. And the jury, having returned into court their verdict in favor of the defendant, upon the first count and in favor of plaintiff, upon *all the issues made upon the second count of the declaration, thereupon the defendant moved the court to set aside the verdict, and grant him a new trial, for the reasons following : 1. The court erred in refusing “to say to the jury that they might take into consideration that, in the publication charged as libelous, in the second cognt, said plaintiff is charged with forgery by antedating a receipt, with intent to defraud Brush and Collins, and has not attempted to clear himself of said •charges, but tacitly admitted its truth.”
    2. The jury have manifestly erred in finding agaiast the truth of that portion of the defense which rested on the record, admitted in evidence.
    3. The jury find the defendant not guilty on the first count, and yet find untrue that portion of the defense which rested on said plaintiff’s having falsely accused said defendant of publishing the handbill in said first count mentioned.
    4. The damages assessed by the jury are excessive in amount.
    5. The court erred in not permitting the defendant to prove the plaintiff’s general reputation of swindling his deputies, when he was marshal of the district of Ohio, and of his having been indicted and convicted of such swindling.
    6. The court erred in refusing to permit defendant to prove the truth of certain portions of the publication in said second count mentioned, when the whole of said publication was in evidence, although portions, the truth of which said defendant offered to prove, were not declared upon; which motion was reserved for decision at Brown county, at March term of said court of Brown county, and which said motion for a new trial was overruled by the court; and, on the overruling of said motion for a now trial, the said defendant excepted, for the reasons aforesaid, and because the finding of the jury, upon the issue made by the defendant’s first special plea, is manifestly against evidence, the defendant having given no evidence of the record of the judgment and proceedings of the suit of Daniel P. Wilkins against said plaintiff, mentioned in *said second plea, and prayed that the bill of exceptions in that behalf might be allowed, which is accordingly done. Upon this bill of exceptions the following errors wore assigned:
    1. The court erred in refusing to permit and allow the said John Fisher, at the trial of sa.id cause, to prove, in mitigation of damages, the truth of the portions of the publication not declared upon in the second count of the declaration, parts of said publication being in said second count declared upon, and the whole thereof being given in evidence by the said plaintiff, to sustain said second count of his said declaration.
    2. The court erred in refusing to permit and allow the said defendant, John Fisher, on the trial aforesaid, to prove in mitigation of damages the said plaintiff’s (John Patterson’s) general reputation of having, when marshal of the district of Ohio, swindled his deputies, and also his general reputation of having been indicted and convicted of such swindling.

      3. The court erred in refusing the said defendant, John Fisher, on the trial aforesaid, permission to prove in mitigation of damages any facts tending to show that the plaintiff, John Patterson, was a dishonest man, and of disparaged fame, if said facts did not amount to a justification.
    '4. The court erred in refusing to instruct the jury that, in estimating the damages, they might take into consideration that, in the publication charged as libelous in the second count of the declaration, the said plaintiff, John Patterson, is charged with forgery, by antedating a receipt, with intent to cheat and defraud Richard Collins and Samuel Brush out of their just claim'; and that the said plaintiff, not having declared on that portion of said publication, and not having attempted to clear himself of said charge, has tacitly admitted its truth.
    5. The court erred in refusing to set aside the verdict and grant a new trial upon the said defendant’s motion, for the reasons stated by him, and which 'are fully stated in the foregoing record.
    *6. The court erred in refusing to grant a new trial, because the damages assessed by the jury were excessive.
    7. The court erred in refusing to grant a new trial, because of the inconsistency and contradiction of the verdict of the jury. The verdict is against the defendant, the plaintiff in error, of the publication of the libelous matter charged in the first count of the declaration, and finds all the issues on the second count of the declaration in favor of the said plaintiff, the defendant in error; one of which issues, to wit, the one made by the first special plea of the said defendant, the plaintiff in error, is and was that the plaintiff had falsely charged the defendants with having published the libelous words and matter charged in the said first count of said declaration.
    8. Because the verdict of the jury is and was manifestly wrong and improper, in finding against the truth of the defense that' rested on the record admitted in evidence.
    9. Because the court and jury erred in other matters and in other respects, in the proceedings aforesaid, as appears by the re* .«cord aforesaid.
    Collins & Barreré, for plaintiff in error.
    Hamer, & Debore, for defendant in error.
   Read, J.

As to the first error assigned, the bill of exceptions shows, among other things, that the plaintiff, having given in-evidence the whole of a publication, parts of which were material and set forth in the second count, the defendant offered to-prove, in mitigation of damages, the truth of certain other portions-of said publication not declared upon, which proof was objected to by the plaintiff, and overruled by the court.

In construing bills of exceptions, it is not to be taken for granted that the court erred ; but reasonable inferences are to be drawn in favor of the judgment. What, then, must be the ^conclusion, if we adhere to this well-established and familiar rule ? Simply that the parts of the publication now declared upon, were not relied upon for any puteóse whatever by the plaintiff. If we looked to the bill of exceptions merely, it might fairly be presumed that the matters in the publication not counted upon, were wholly immaterial, and not competent evidence either to aggravate or mitigate damages. But, admit that the parts of the publication not counted upon, contained distinct and separate libels, the bill of exceptions does not show that they were offered in evidence to prove malice or for any other purpose. Distinct and separate libels can not be given in evidence to aggravate damages, because they are the subject of distinct actions. Nor can the truth of distinct libelous matter be given in evidence to mitigate damages; because no such issue is made by the pleadings. But, if it be designed that their truth should affect character, it is not competent, because the general character of the plaintiff only is in issue, and can not be attacked by proof of particular acts. There is no instance in the books of permitting distinct libels, not declared upon, to be admitted as evidence by the plaintiff, except in some case* where the intent is doubtful, and then to show malice. And, when admitted for this purpose, it is expressly laid down that the jury shall not take such libels into consideration, in their estimate of damages. . But, if the intent be manifest (such libels only being admissible to show the quo animo, when the intent is doubtful),, they are not admissible as evidence at all. 3 Starkie on Ev. 870. But in no instance have such libels been admitted to be proven true to mitigate damages. Matters not capable of supporting an action or constituting a justification, may be given in evidence in aggravation or mitigation of damages, as there is no other mode of bringing it before the court and jury. Now it can not bo presumed that the court violated any of these well-known principles of law, unless the bill of exceptions expressly disclose the fact-In the case before us, the nature of the libel forbids any doubt as to the quo animo, and hence the court would be compelled to exclude distinct *and separate libels as proof for any purpose, The fact that all the parts of a publication must come before the court, because certain portions are declared upon as libelous, does not show that the parts not counted upon, were resorted to for any purpose; and, if not competent proof, they were, we are bound to presume, rejected by the court. They certainly were, in this instance, rejected, so far as the defendant was concerned ; and there is no more doubt but they wore rejected as to the plaintiff.

As to the second error assigned:

That the court erred in refusing to permit the defendant to prove, in mitigation of damages, the plaintiff's general reputation of having, when marshal of the United States for the district of Ohio, swindled his deputies ; and also his general reputation of having been indicted and convicted for such swindling.

Such evidence is admissible upon no rule of law. G-eneral reputation of a particular act is not general repute cion. It would be strange, if the truth of the act could not be admitted in evidence to mitigate, that the reputation could; that you should exclude the substance and admit the shadow. The general character of the plaintiff, and not the reputation of particular acts, is only admissible. Particular acts of dishonesty aro not admissible.

This disposes, also, of the third error assigned.

As to the fourth error assigned:

That the court erred in refusing to charge the jury that, in estimating the damages, they might take into consideration the fact, that, in the publication, parts of which were declared upon, there was a charge of forgery against said Patterson ; and that, not having attempted, by evidence, to clear himself of said charge, he had tacitly admitted its truth.

This is a marvelous assignment of error! How could the court charge the jury that the plaintiff had tacitly admitted himself to be guilty of forgery, because he had not introduced proof to exculpate himself from the charge, when that matter ’I'vvas not before the court and jury for consideration, and the state of proceedings and the law forbid any such proof?

The fifth error assigned is, that the court erred in not granting a now trial, upon the ground of misdirection and improperly ruling against evidence, as above stated. This has been considered.

The sixth error assigned is, that the court erred in refusing to grant á new trial on the ground of excessive damages.

In cases where the damages are to be determined by the sound discretion of the jury, in view of all the evidence, the court will not interfere to grant a new trial on the ground of excess, unless the damages are so outrageously gross as to convince the court that the jury must have acted from corruption, or bias, or mistake, or some other improper influence, instead of a sound and enlightened judgment. If men will print scandalous and defamatory matter concerning others, it is the province of a jury to make compensation and correct the evil by their verdict; and it is neither the disposition nor duty of the court to interfere. 'The press should be the pure and enlightened organ of public instruction. To claim that a man may write and publish what he pleases, however scandalous and defamatory, is upon the samo principle that the highwayman desires the privilege to plunder and rob. The constitution has wisely observed this distinction ; and, whilst it secures the liberty of the press, it holds every man responsible for his abuse, and declares that every person, for an injury done him in his reputation, shall have remedy by due course of law, and right and justice administered without denial or delay. It is the sworn duty of the jury to secure this remedy by rendering a verdict of damages in such amount as right and justice demand. Reputation is the sacred right of every person, and a gross and defamatory attack upon that, causes more pain and shocks more rudely all the feelings which spring from the tender and holy relations of life, than an injury to person or property. When defamation shall become so common that men cease to be sensitive of character, it will be evidence of that insensibility which precodes the disolution of the social tie. *The heat and strife of party forms no excuse, and juries should rightly regard such, abuse of the press as endangering our free institutions. If it comes to this, that men, because they happen to entertain different political opinions, shall be permitted to blacken and defame each other’s characters, instead of regarding the fair fame .of all as the best and dearest property of the whole community, it will cast a dark shade over the blessed principle of self-government, which we hope, by our example, to make the common property of the world. The matter before the court had its origin, no ,doubt, in that sort of vulgar and low abuse which has become too common, and which some men regard as a proper exercise of political rights, but which all honorable and honest men should despise.

We are not disposed to withdraw such men from the legitimate action of a verdict of a jury, or in any sense to weaken the example.

The seventh error assigned is in the following words: “The court erred in refusing to grant a new trial, because of the inconsistency and contradiction of the verdict of thq jury. The verdict acquits the defendant (the plaintiff in error) of the publication of the libelous matter charged in the first count of the declaration, and finds all the issues made on the second count in the declaration in favor of the said plaintiff (the defendant in error), one of which issues, to wit, the one made by the first special plea of the said defendant (the plaintiff in error), is and was that the plaintiff had falsely charged the defendant with having published the libelous words and matter charged in the said first count of said declaration.” We may not exactly comprehend this objection, nor have we been enlightened by counsel, nor do we obtain a clue to the matter by looking through this long, tangled, and confused record. If we comprehend the objection, it is this : The declaration contains two counts. The jury find the defendant not guilty on the first count, thereby finding that the defendant had not falsely charged the plaintiff, etc., and find, on an issue joined *under the second, that the defendant did publish the false and defamatory libel named in the first count. How the special plea could be an answer to the second count, by denying the libel mentioned' in the first, is not perceptible, unless the same libel be declared upon in both counts. And how finding the defendant not guilty on the first count, could be injurious to him, is more than we can per-1 coive. The finding may show that the plaintiff should have been found guilty on both counts. But counsel very well know that each count in a declaration, in theory, contains a distinct charge, and that the finding on one cottnt, in no sense involves a finding on the other count.

The eighth and ninth errors assigned, charge errors in all things,' special and general.

We have not been able to find any error in this record.

Judgment affirmed.


author: *Read, J.

text:
    *Henry C. Weidler and Gabriel Carpenter, Survivors of Gabriel Carpenter, deceased, late Partners under the firm of Weidler, Carpenter & Co. v. George Kauffman.
    A memorandum of settlement among partners for the completion of a canal section, ascertaining the amount due to one partner at the date of such settlement, with a promise to pay the amount to him or order on final estimate of the section, is not a negotiable instrument.
    This is a writ of error, directed to the court of common pleas of Fairfield county.
    The record of the original action presents the following state of facts:
    The action was assumpsit, by defendant in error, against the plaintiffs in error.
    The declaration avers, that prior to November, 1838, the laws of Ohio authorized the construction of the Hocking Valley canal, and provided for the payment of the cost of construction, when the different sections thereof should be completed, and the final estimate made by the engineer.
    That prior to November, 1838, section No. 10 of said canal had been contracted to be constructed, and was in course of construction on the 9th day of the said month.
    That before that time Gabriel Carpenter, the deceased, had been a merchant, and prior to the 19th November, the firm of “ Weidler, Carpenter & Co.” had become indebted to said G. C., deceased, for goods, etc., advanced to and for said firm.
    That on November 19, 1838, the defendant, Weidler, for and on behalf of the firm, settled with G. C., deceased, respecting said indebtedness of the firm, on which settlement there was found due and owing from the firm to G. C., deceased, $1,748, and in consideration of said indebtedness, *the defendants and G. C., deceased, in the name and style of “Weidler, Carpenter & Co., by H. C. Weidler,” made their promissory note, and delivered the same to G. C., deceased, and thereby promised to pay said G.'c., now deceased, or order, $1,748, when the final estimate upon section 10 of the Socking Valley canal should-be made. And the said G* C., deceased, then and there indorsed said note to the plaintiff, whereof the defendants then and there had notice.

      That said section No. 10 was completed, and the final estimate thereon made on July 1, 1840.
    In consideration whereof the defendants, on July 1,1840, promised to pay the amount of said note to the plaintiff according to the tenor and effect thereof. Breach, non-payment, etc.
    Plea by Henry C. Weidler — non assumpsit

    1. Plea by Gabriel Carpenter: That the supposed promissory note, if any such there be, was made and given without his knowledge or consent, and without his knowledge and consent indorsed by G. C., deceased, to the plaintiff, for and on account of a private individual debt of him, the said G. C., deceased, before that time, and still due and owing from the said G. C., deceased, and for no other consideration whatever,
    2. Plea by same — non assumpsit.

    To the first plea of the defendant, G. Carpenter, the plaintiff filed a general demurrer.
    At a subsequent term the defendant, G. Carpenter, filed a third plea, “ that the written paper referred to in the plaintiff’s declaration, was given by said Weidler and the said G. Carpenter, deceased, without the knowledge or consent of the defendant, G. Carpenter, as a memorandum of a balance then supposed to be due by the said firm to the said G. C., deceased, and was assigned to the said plaintiff in payment of a pre-existing debt of the said G. C., deceased, and that at the time of the said assignment the plaintiff well knew the same was given as a memorandum of a balance, etc., as aforesaid, and for no other purpose; and at the time of the ^completion of said section 10, and the final estimate thereon, the said firm was not indebted to the said G. C., now deceased, in the amount stated in said note or written memorandum, nor in any other sum.”
    Said defendant at the same time .filed a fourth plea, “ that said written paper was given by the'said Weidler to said G. C., deceased,‘without the knowledge or consent of the defendant, G. C., as a memorandum of a debt then supposed to be duo by the said firm to the said G. C., deceased, on settlement of the accounts of the said firm relating to section ten — and that the same was assigned by G. C., deceased, as collateral security for a pre-existingdebt of him, the said G. C., deceased; that at the time of the assignment the plaintiff well knew that the same was given to G. C., deceased, as a memorandum of a supposed balance, etc., as aloresaid, and for no other purpose; and that at the time of the completion of and final estimate on said section ten, and upon the settlement of the partnership accounts, the said firm was not indebted to said G-. C., deceased, etc.”
    ' To the third and fourth pleas the plaintiff also put in general demurrers.
    The record shows that the cause was heard by the court below at the September term, 1845, on the demurrers of the plaintiff to the three special pleas of the defendant, Gr. Carpenter, and that the said demurrers were severally sustained.
    Also, that at the same term the case was submitted to the court below for trial on the general issue pleas, and judgment rendered in favor of the plaintiff for $2,297.07, damages and costs.
    Also, that on the trial a bill of exceptions was signed and sealed by the court, at the instance of the defendant, which bill of exceptions is, in substance, “that the defendant admitted, on the trial, that said section ten was under contract for construction on November 19, 1838; that the defendants and G-. C., deceased, by the name and firm of Weidler, Carpenter, etc., were the contractors, and that the contract *was completed July 1, 1840 ; whereupon the plaintiff produced an instrument in writing, as follows :
    “ Due G-. Carpenter, on settlement of canal operations on section ten, Hocking canal, $1,748, which we promise to pay him or order •on final estimate of said section.
    “ Weidler, Carpenter & Co.

      “Per PL. G. Weidler:

      “November 19, 1838.”
    The signature of Henry C. Weidler thereto, and the indorsement of G-. C., deceased, to the plaintiff thereon, being admitted by the defendants, the plaintiff offered said instrument in evidence as the note declared on, which was objected to by the defendant G-. O-., and also by the defendant Weidler; which objection was ■overruled by the court, and the paper admitted in evidence.
    To reverse this judgment the writ of error was sued out, and the errors assigned are:
    1. That the court erred in sustaining the demurrer to the first, third, and fourth pleas of the. defendant, G-. Carpenter.
    2. That the court erred in receiving in evidence the note specisfied in the bill of exceptions:
    3. That the court erred in rendering judgment for the plaintiff.

      Henry Stanbery and H. H. Hunter, for plaintiffs in error:
    The paper counted upon and offered in evidence was a mere memorandum, not negotiable, and therefore passed no title to the plaintiff below, by indorsement. The'pavment depended upon a future contingency, and though the event is now reduced to a certainty, that circumstance can not affect the character of the instrument. Its character was stamped upon it at the time of its execution ; if void then, no subsequent event can give it vitality. Carlos v. Fancourt, 5 Term, 482; Kingston v. Long, 4 Doug. 9; Chit. on Bills, 134, n. y; 137, n. e; Ib. n. z.

    *The English cases referred to by counsel for the defendant are not analogous. For instance, a note payable on the death, of A. B. is good, because in the course of nature, he must die. So, too, it has been held that paying off of government ships is amorally certain event, and a note made payable on such an event would be good; but these decisions have been questioned. See note z, Chitty on Bills, 137, before cited. But what certainty was there that the work on this section would ever be done, on which a final estimate could be made?
    But again, this paper is invalid as a note, because made under such circumstances that the sum to be paid is totally uncertain. Smith v. Lusher, 5 Cow. 706, 708.
    John T. Brazee, for defendant in error:
    The event, upon the happening of which this was to be paid, was sufficiently certain. The legislature of Ohio (see Local L. for 1836, p. 311) made the Hocking Valley canal a public work, and the payment of estimates for work done on the canal as certain as any of the operations or promises of the government.
    An event depending ujoon an act which a state is bound to perform, and which, if she redeems her promises, she will perform, is sufficiently certain to impart negotiability to the instrument of writing made payable on the happening of such an event. Andrews v. Franklin, 1 Strange, 24; Evans v. Underwood, 1 Wilson, 262; 1 Selw. N. P. 282.
    A note payable on the death of a certain person, is a good note; the event being certain to happen, though the time is uncertain. Collehan v. Cook, Willes, 393, 398.
    The objection has been made, and may be again, that the instrument is invalid, because one of the makers and the payee are the same person. The point is not well taken. 1 Caine, 191; Harrison v. Jackson, 7 Term, 99; Smith v. Lusher, 5 Cow. 688.
   *Read, J.

The present action is founded upon the following writing:

“ Due G-. Carpenter, on settlement of canal operations on section No. 10, Hocking Canal, $1,748, which we promise to pay him or order on final estimate of said section.

(Signed,) “ Weidler, Carpenter & Co.

H. C. Weidler.

“November 19,1838.”

Kauffman has sued upon this writing in his own name as a negotiable note.

To constitute a negotiable note, it must be payable at all events. The event must be one which must happen in due course of the laws of nature. The only exception to be found in the books is in England — where it has been held that a note payable, in the event of the government paying off the public ships, is negotiable. The paying off the government ships is there regarded as an event which must happen. The prosperity, glory, and pride of England consist in her navy; and they arc not willing to tolerate the idea that government will not discharge its duty in this respect. But this exception has justly been doubted as law. But admitting it to be a correct principle — that an event depending upon the government performing its duty is sufficiently certain — ■ it will not help this case.

The event upon which this note was made payable, was the happening of final estimate on the completion of section No. 10. This is an event which must transpire neither by the laws of nature, nor by the performance of its duty by the government; but upon the contingency of Weidler & Co. completing the job of said section No. 10. This paper, then, is not a negotiable note, but just what it purports to be — a memorandum of settlement between two members of a firm, finding an amount due one at that time, not binding upon the third, unless he assented, to be paid and adjusted according to the state of the account on final settlement of the partnership concerns, and completion of section No. 10, for which the ^partnership was formed, and on final estimate of what was due from the state.

This view disposes of the whole case.

The court, therefore, erred in sustaining the demurrer to the special pleas. The declaration showing no cause of action, and a ■demurrer looking back to the first error, judgment should have been given for the defendant. Judgment reversed, and judgment for defendants.


text:
    John Treon v. Wilson N. Brown and Aaron Fuller, Partners, ETC.
    A party to a negotiable paper can not be a witness to invalidate it, by showing that it was founded on an illegal consideration.
    A bill of exchange and the protest are admissible in evidence, and may go to the jury, although they may not, of themselves, show a sufficient demand and notice to entitle the party offering them .to recover. Objections to them go to the effect of the evidence, not to its admissibility.
    This is a writ of error directed to the Supreme Court of Montgomery county.
    Brown and Fuller, in the court below, sued Treon upon two drafts of $500 each, drawn upon M. T. Miller, of Philadelphia, signed by Edward L. Jones, as cashier of an unauthorized ^banking association, called the Washington Bank, charging Treon as a stockholder in said bank.
    At the May term, 1844, of the Supreme Court in Montgomery county, the cause was submitted to the court, without the intervention of a jury, and judgment rendered for the plaintiffs for $1,227.80, together with the damages and costs of suit.
    During the trial, a bill of exceptions was taken, from which it appears that, to sustain their action, the plaintiffs offered in evidence the bills of exchange or drafts declared upon, and also the protests of the notary public who protested the same, and that the “ defendant objected to both said protests, as not showing sufficient demand and notice; but the same were received in evidence, and tho plaintiffs then closed.”
    It also appears, from said bill of exceptions, that the defendant offered Joseph Watson, one of the indorsers appearing upon said bills of exchange, to prove that the same were issued by an unauthorized banking association, and were therefore void; and also to prove the handwriting of the plaintiffs to various letters, accounts current, and papers, showing the connection of said plaintiffs with said illegal bank, for the purpose of showing said drafts illegal- in their inception, and prior to and at the time they were indorsed by said Watson, the witness, fraudulent and void, and not obligatory upon the defendant; that the testimony was objected to by the plaintiff, because of the incompotency of tho witness, and the testimony excluded by tho court.
    The defendant below, now plaintiff, assigns for error in these decisions of the court:
    1. That the court admitted the drafts and protests offered in evidence to go to tho jury as evidence, when the same ought to have been excluded.
    2. That the court overruled and excluded the testimony of tho witness, Joseph Watson, which would have proved that the plaintiffs were particeps criminis with the defendant, in dealing with and putting in circulation tho paper of an unauthorized ^banking institution, when the same was competent and pertinent, and should have been admitted.
    3. That the court overruled all the other testimony that was offered by the evidence of said witness, whereas the same was competent and pertinent, and should have been admitted.
    Odlin & Schenck, for plaintiffs in error :
    Tho question arising in this case is of importance, and is now to be settled for the first time in bank ; and that is, how far an indorser of a negotiable instrument may be received to impeach it. Upon this question, we refer to G-reonleaf on Evidence, 429.
    Tho leading case upon this subject in England is the case of Walton v. Shelley, 1 Term, 296, deciding against his admission, overruled by the case of Jordaine v. Lashbrooke, 7 Term, 599; the , rule, in England, now being that he is a competent witness to prove any fact to which any other witness would bo competent to testify. In the United States, the decisions are conflicting, and are found collected in a note to Greenleaf on Evidence, 429; United States Bank v. Dunn, 6 Pet. 51, 57. The indorser to negotiable security, negotiated before due, not admissible to impeach it in the hands of an innocent holder. In New York, the decisions admit the indorser. 5 Cow. 23, 153; 3 Wend. Same in Virginia, 3 Rand. 316. Same in Connecticut, 1 Conn. 260. Same in South Carolina, 3 McCord; and in Tennessee, 2 Merger, 35.
    In Stone v. Vance, 6 Ohio, 246, the indorser was admitted to prove subsequent facts.

    The leaning of the courts of late has been to let all questions of interest go to the credibility of the witness, and we submit whether the English rule, sustained as it is by the decisions of some of the ablest courts in the state, is not more *in accordance with the present policy of admitting a witness in all cases where he is not directly interested in the event of the suit. Truth should not be excluded in any case, if it comes from a reliable source.
    Whatever may be the opinion of the court as to the competency of an endorser to impeach a negotiable security in the hands of an innocent holder, yet this is not in the hands of an innocent holder ; he was offered to prove, not a fact between the original makers of the note, rendering it void in the hands of a subsequent innocent holder; but to prove, in the language of the exceptions, “that the bill was drawn by E. L. Jones, as cashier of the Washington Social Library, doing business as a bank, under the stylo of the Washington Bank, being an unauthorized institution; that Wilson N. Brown & Co. were brokers, doing business at Lho city of Cinnati, Ohio, under an arrangement with said bank, at, before, and subsequent to the making of their drafts; receiving, redeeming, and circulating, at Cincinnati, the notes of said illegal institution ; that the drafts wore made at Miamisburg, fully indorsed there by all the parties, and given to Wilson N. Brown & Co. to adjust and settle a balance duo them as brokers, in sustaining and circulating the paper of said institution at Cincinnati, and to induce them to make further advances for said purposes.” And also to prove the handwriting of "W. N. Brown & Co. to letters, accounts current, etc., establishing those illegal transactions.
    We contend, therefore, that if the court should ever establish the rule that an indorser shall not be permitted to impeach negotiable paper in the hands of an innocent holder, yet the policy even of that rule can not embrace this case.
    Stoddard & Haynes, for defendant in error:
    The only question we propose to discuss is stated by counsel for the plaintiff, and some of the authorities on each side %eforred to. Is a party to a negotiable instrument, admissible to impeach it, for facts occurring before or at the time ho became a party? There is a diversity in the decisions upon this point; but we think the court, in rejecting the testimony of the indorser, was right, and is fully sustained by the weight of authority. The admissibility of the witness does not depend upon the fact of the instrument being in the hands of an innocent holder, or of one having knowledge of the transaction which would avoid it. There is no reason for such distinction. The decision of Lord Mansfield, in Walton v. Shelley, and similar decisions which have followed this, are based upon the maxim of the Roman law, “ Nemo allegans suam turpitudinem est audiendus,” which applies equally in either case. In the application of the rule, in a suit upon these bills, there can be no such distinction. If they are void for the facts which the witness was offered to prove, they are so by positive enactment, as claimed by plaintiff’s counsel, or necessary implication of this statute ; and are therefore void, oven in the hands of an innocent holder, without notice. Story on Bills, sec. 189, and authorities there referred to. The law makes no distinction as to the right to recover. Why, then, should it, as to admissibility of witnesses, to prove facts to defeat a recovery? Such a distinction would defeat the policy of the law itself. The cases cited by plaintiff’s counsel make no such distinction. In Walton V. Shelley, the plaintiffs, we suppose, were assigned in bankruptcy of the obligee, and stood in the same position. In the Bank of the United States v. Dunn, the plaintiffs, it was claimed, were, by their officers, parties to the contract. In Churchill v. Suter, 4 Mass. 449, the usurious 'contract was with the plaintiff himself. So in Widgery v. Monroe, 6 Mass. 449; and in Mann v. Swan, 14 Johns. 270.
    The weight of authority we think decidedly against the admissibility of the indorser, Watson, to prove the facts set forth in tho bill of exceptions. The decision in Walton v. Shelley, is approved by Lord Kenyon, in Charrington v. Milner, Peake’s N. P. 6; Humphrey v. Moxon, Ib. 52; Phetheon v. *Whitmore, Ib. 4; and when he had changed his opinion, and admitted a party to the instrument as a witness, on the trial, at nisi prius, of Adams v. Langard, Ib. 117, tho court granted a new trial. In Hart v. McIntosh, 1 Esp. 298, the common pleas sustained the decision in Walton v. Shelley. In Jordaine v. Lashbrooke, one of the justices dissented, and two others urged, as a reason for their decision, tho necessity of enforcing the revenue laws. The earlier decisions of the court of New York; the authority of the court of Massachusetts; the numerous decisions of the courts of other states; and finally, the authority of tho Supreme Court of tho United States, we think have settled the rule in this country.
    The Supreme Court of the United States has'recently reaffirmed the decision, in the United States Bank v. Dunn, in Henderson v. Anderson, 3 Howard, 73. But we do not admit that the effect of the proof sought to be made by Watson would have been to defeat the action.
   Birchard, J.

One question only is presented by the second and third assignments.

Can a party who has aided the circulation of negotiable paper, by giving currency to it as indorser, be admitted as a witness to impeach it, for facts accruing before or at the time he becamo a party ?

This question has been decided differently by-the courts of the different states of this Union, and in the courts of king’s bench. Grecnl. Ev. 453, 454. So far as is known, the'rule, as established in Walton v. Shelley, 1 Term, 296, has been uniformly followed in this state. It is, as we conceive, a rule of sound policy, tending to secure confidence in commercial transactions, and one that should not, for slight causes, be departed from. Rules governing commercial transactions should remain settled and uniform among a people so much inclined and so often compelled to engage in traffic and to deal in bills of exchange as are the people of the 488] United States. ^Notwithstanding tho old rule of Lord Mansfield has been disregarded in some of the state courts, and shaken by more recent English decisions, it has been steadily adhered to by the Supreme Court of the United States (Henderson v. Anderson, 3 Howard, 81), and reaffirmed upon full argument within the last year. It is a rule of commercial law, is incorporated into the system, and affects alike all parts of the Union Had the course of decision in this court been heretofore uniformly in conformity to the more recent English decisions, we should not hesitate to change our course upon the authority of the Supreme Court of the United States. The necessity of uniformity in matters of this nature would be a sufficient justification. It would certainly present a case very much to the discredit of the law were a citizen of a sister state to sue one party to a bill, and recover, in the circuit court, because the learned judge who presides there ruled out the evidence of an indorser; and a citizen of Ohio, suing upon the same bill in this court, should fail because the testimony of the indorser was let in ; yet badly as this supposed case might appear, it would frequently occur in substance. Should this rule of evidence be changed, the doctrine established by the United States court should be binding throughout the Union upon such a question. The state courts ought to follow it, because it is founded in reason, and for the sake of uniformity.

The remaining error assigned is, that the court permitted the drafts and protest to be received in evidence, when they ought to have been excluded.

It is not sufficient cause for rejecting evidence that, of itself, unsupported by other evidence, it fails to sustain the cause of action. If it tends to prove th.e issue, it must be admitted. The bill and protest certainly looked that way.

Under this assignment, the question of its sufficiency has been argued; but it is not presented, and therefore need not be further noticed. Judgment affirmed.