author: ■Birchard, J.

text:
    John Williamson’s Administrator vs. The Administrator of David Rees and others.
    The co-signcrs of a note, joint and several in its terms, which fell due in 1807, and on which a suit was severally instituted in 1811, against another co-obligor, and judgment recovered, and afterwards suffered to lie dormant sixteen years, and then revived, and finally paid, thirty-eight years after it became payable, cannot be compelled to contribute.
    In such case, lapse oí time would be a bar to a recovery by the holder, and an indirect liability does not exist where the relation of co-sureties has ceased to exist.
    This is a Bill in Chancery, reserved in the County of Fairfield.
    The prayer of the bill is, that defendants may contribute their equitable proportions of $5,661.48, upon the following state of facts, gathered from the bill, answers, proofs and exhibits :

      In Bank.
    Dec. Term, 1846.
    On the 7th October, 1807, Elijah Friend, Jonathan Lynch, Charles Friend, James Hampson, David Rees, John Williamson and John Neil executed a joint and several note payable to Samuel Kratzer or his order, for $2,000, at the store of Benjamin Ives Oilman, in Marietta, and negotiable at the Bank of Marietta.
    This note was soon after negotiated by Kratzer to David Putnam, cashier of the bank, was discounted and the proceeds paid upon Kratzer’s check. The object of the parties was to enable Kratzer to make a loan of this sum, and the makers were his sureties.
    Upon this note, Putnam brought a several action, on the 1st October, 1810, in the Fairfield Common Pleas, against William son, upon which he obtained a judgment in the Supreme Court for $2,781 and costs of suit, on the 18th of July, 1814.
    On the 28th of January, 1817, Williamson paid $1,000, and on the 10th of April, in the same year, $200, upon this judgment.
    In November, 1836, Putnam revived the judgment against the complainants, who paid, on the 6th of September, 1845, the said sum of $5,664.48, in part satisfaction of the same.
    All the parties to the note were dead at the filing of the bill. Neil, Hampson, Lynch, Kratzer and Elijah Friend died insolvent. David Rees died solvent. Charles Friend died, leaving one hundred and twenty acres of land, which descended to his eleven children, who, in person or by their representatives, are made defendants, and was sold on proceedings in partition, and the proceeds, amounting to $2,244.21, equally divided between them, in August, 1831, which sum, added to the moneys received of the administrator on the final settlement of the estate, in 1831, makes the sum received by each of the eleven heirs to his estate amount to $204.42.
    The estates of all the other signers to the note were settled long prior to the filing of this bill, and were insufficient to pay' the claims presented against them. ■ No claim for contribution was ever presented to any of the obligors while living, nor ever made against their estates prior to 1845, about the time this suit was commenced.

      John T. Brazee, for Complainants.
    Assuming that Williamson and the six other signers of the note were accommodation makers for Kratzer, the payee, it cannot be seriously contended that he, being the principal, would, under existing circumstances, be protected by the statute of limitations or presumption of payment. Whenever a surety pays money for his principal, it is money paid for his use, and the surety has an immediate and present cause of action against his principal. Rodman v. Hedden, 10 Wend. Rep. 502.
    The principal, therefore, could not avail himself of the statute of limitations or presumption of payment, as against his surety.
    As to these co-contractors, the debt ought to be regarded as an entire thing, wholly indivisible, and if subsisting as to one, as to all, so that the compulsory payment by one would entitle him to contribution against the others. It has been long established as the law in England and the United States, thal where there are a plurality of contractors, sureties or principals, joint or several, that the act of one of the debtors, in acknowledging the validity of the debt, or in promising to pay the debt, or in making partial payments upon it, takes it out of the statute of limitations as to all the other parties to the liability. Coit v. Tracy, 8 Conn. Rep. 276 ; Wyatt v. Hudson, 8 Ring. Rep. 399; Whitcomb v. Whiting, Doug. Rep. 652 ; Jackson v. Fairbank, 2 Blk. Rep. 340; White v. Hale, 3 Pick. Rep. 291 ; Frye v. Barker, 4 Pick. Rep. 384; Sigourney v. Drury, 14 Pick. Rep. 387; Hunt v. Bridgernan, 2 Pick. Rep. 581; Johnson v. Beardslee, 15 Johns. Rep. 3; Smith v. Ludlow, 6 Johns. Rep. 267; 4 Conn. Rep. 236 ; 1 McCord’s Rep. 541; 2 Bing. Rep. 306; 7 Greenleaf’s Rep. 26; Dowl. & Ry. Rep. 7.

      In this case the debt, as against Williamson, was kept alive by operation of law, and, surely, this is as cogent in protecting the debt against the statute of limitations as any act of Williamson, or any other of the contracting parties could have been.
    But the statute of limitations would not apply, as against Putnam, under any circumstances. The cause of action accrued while the statute of 1804 was in force, and, under that statute, there was no limitation to the action of debt on simple contract. Tapper’s Ex’rs v. Tapper’s Ex’rs, 3 Ohio Rep. 387; Bigelow’s Ex’rs v. Bigelow’s Adm’rs, 6 Ohio Rep. 98; Hazlett et ad. v. Critchjield, 7 Ohio Rep. part II, 153.
    But, even on the ground that, as between Putnam and these defendants, the debt would be barred, it does not follow that the suit will not lie, at the instance of a co-surety who has been compelled to pay the money. As to him, the cause of action accrued when he paid the money, in 1845.' The liability of the others to contribute is founded in equity, and not upon contract. Story’s Eq. 471; Craythorne v. Sioinburne, 14 Yes. Rep. 160; Burleigh v. Stoll, 2 Man. &, Ry. Rep. 93 ; Theob. Pr. & Sur. 271.'

      II. Stanbery, (Attorney General,) T. Ewing, P. Van Trump and N. II. Swayne, submitted arguments for the various defendants, and contended —
    That, whether the action of debt could have been sustained by Putnam on this note, notwithstanding the statute of limitations, or not, was immaterial, inasmuch as chancery would, as well as courts of law, regard the statute as of binding force, and apply it to paper of this description after the lapse of fifteen years. This not being an action of debt, but a bill in. chancery, the defendants might protect themselves by the statute.
    They denied that the law was settled, that the voluntary acknowledgment, either with or without a proviso to pay, by one joint contractor, interrupted the running of the statute as to the other co-contractors, and referred -to the following authorities Kirby’s Rep. 2Ó3; I'.Root’s Rep. 502; 10 Johns. Rep. 216; Kirby’s Rep. 174; 8 Pick.,Rep. 122-; 10 Serg.- & Rawle’s Rep. 75, 81; 3 McCord’s. Rep. 340; 5 Har. .& Johns. Rep. 1; 6 Conn..Rep. 17.Ó, 174N>-; - 5 Har.. &.. Johns.'Rep. 51; 3 Cowen’s Rep. 623 ; 1 Esp. N.’ P., C,135; 3 Johns. Rep. 536; 10 Johns. Rep. 66; 3 Wénd. Rep. 397; 2 Wash. C.. C. Rep. 388; 16'.Serg. & Rawle’s Rep. 120 ; 6 Pick. Rep. 464; Poth. ón Obi. 257. ■" ■ ' '
    But, independent of the statute of limitations', the law, after such a lapse of time,, yvill presume payment.' 6. Munf. 532; 3 Day’s Rep. 289; 1 McCord’s Rep. 145; 8 Conn. Rep. 168;. 1 Bailey, 172; 5 Vér. Rep. 236; .3 McCord’s Rep. 340.
    ‘ And these defendants being thus discharged, from all liability as't,d -the-payee of’.the note, by operation, of law, that liability cannot be restored, by the' act of Williams'on, in paying the note. This presumption of. payment is a. presumption óf.law, and. . stands ever as a perfect barrier between the person seeking to enforce the remedy and him against whom it is sought to be enforced; in this case, as well against Williamson .as it would against "Putnam himself. ' It would be absurd to hold' them bound to pay a, debt indirectly, which' -they did not owe directly.. . " • ’ ; ’ .
    ■ Whatever discharges the''principal, will discharge the contingent collateral liability of the surety. When Kratzer/the principal, ceased to be liable, by operation of the statute, or presumption of payment ipso facto, his sureties were discharged, .and- that-discharge is as. binding, and operative upon all cdncerned-as though they had been discharged by the direct act of .the creditor himself; • Theob. on Pr.'& Surety,- 204'; 3 Dana’s Rep. 160.- ■'
   ■Birchard, J.

Several questions, growing out of the facts of this case, have been argued with much skill by counsel. ■ ■ In disposing of the' subject, we shall -notice only those which seenv . tb be conclusive of the merits of the case.' And, first, can .this bill be sustained on the ground that complainant has paid money for the use of the defendants, as co-surety, or otherwise ? This depends upon the’ question whether, at the time of payment, any claim for a portion, or the whole of the sum due,' could have been enforced by Putnam against either of them. For where there is no direct, there can be no indirect liability. It seems that Putnam, in 1842, made the attempt to collect of Rees and Hampson, and went so far as to ascertain that the plea of the statute of limitations, passed in 1804, Was not a bar, and, by a division of'this C.ourt,-that .the subsequent-statutes were not operative 'upon the claim; 12 Ohio Rep. 21. The cases progressed no further.

It remains for us to consider whether, ■ upon the facts now in proof, any recovery could have, been obtained, legally, against ány. of thé parties. ” The obligátion was due .the 7 th. of’ December, 1807, more’ than thirty-eight years ago.- .Putnam treated it as a sévéral contract, in 1810. .. The election .he then made was conclusive:-upo¡n him:. As to hind, and all claiming under him from that- time- forward, the' right which' he had against each signer, :.w’as .the'same .as-if .the name-of, each had been affixed to a separate note for the .same amount. It. was out of his power, having thus elected to treat-'the .contract as -several, to come into.-Court at any time thereafter and sue upon it as a joint -obligation. ' Without ■ the aid of any statute; it- seems to us . that either Rees, Rriend or Hampson,-.. might have, relied successfully upon"the great .lapse¡of:time,"a.S raising-the presumption that their obligation had been in some way discharged. At law,'twenty years was sufficient’ to raise the. presumption of payment.. These presumptions are of such' a-character as naturally to increase in force, in -proportion as the, years increase during which they have run. And in this case it would, without the aid of evidence sufficient to rebut it, have been a complete bar eighteen years ago.’ • Now, what is relied upon to do away the- force of the legal presumptions that- have, been thus long,increasing in strength? The fact, that Williamson alone was- sued,'and judgment recovered, in-1814,, and that this j.udgment against him was not .paid off till 1845? Besides-this there is substantially nothing. But he had paid $1200, in 1817, and, after that,' more than twenty years elapsed before any of these parties were called -on for payment. What caused such a delay ? Why was the claim left sleeping till all those who, when living, knew the whole and true history of the transaction were in their graves ? The papers furnish no satisfactory answer, and, for want of that, a court of law should have said, “ Let the claim sleep on forever;” that “ the inference is, that £ if it had been prosecuted in due time, some of its cotempora- £ ries would have been able to furnish evidence showing that it £ had been paid, discharged, released, or in some way arranged £ between the parties.”

It may be that Williamson, for a good consideration, assumed the payment of the entire debt prior to 1810. If so, it could not be expected that the administrators or heirs of his deceased coobligors, after thirty-six years, would be able to make it appear. It is contrary to all human experience to expect any proof from them, or to imagine that they could by any vigilance establish the fact. Yet the parties, while living, acted as we might expect them to act if such were the case. In this connection let us see how conclusive against the presumption, arising from lapse of time, would be the fact that the separate suit had been prosecuted against Williamson. From 1817, the time of the last payment by him, no movement was made towards a further collection. Had a separate suit been instituted as early as 1828, the judgment and proceedings upon it would not have tended to weaken the legal presumption of payment. On the contrary it would, in our opinion, have added to its strength, by showing a sufficient reason why Putnam suffered the residue of that judgment to become dormant. He permitted to happen precisely what would have happened on payment of the residue of the note by one of the other makers.

We hold, then, that in 1845, when the $5661 was paid to Putnam, it was not paid on the account of the co-sureties, or on a then subsisting joint obligation ; that all such relations between the parties had long before become extinct and ceased to exist; that the money paid was in discharge of complainant’s sole liability, and gave him no right to call upon respondents for contribution.

Bill dismissed, toith costs.


source: Caselaw Access Project

author: Read, J.'■ Birchard, J.,

license: Public Domain

text:
    David A. Powell vs. The State of Ohio.
    During the term of the Court of Common Pleas, a single Judge of that Court has not power to let to hail a person in custody charged with a criminal offence. A recognizance thus taken is void.
    This is a Writ of Error to the Court of Common Pleas of Hamilton County.
    The action below was debt upon a recognizance, conditioned that one John K. Trombo should appear and answer to an indictment pending against him in that Court for passing counterfeit money. The penalty in the recognizance was $1000, and it was alledged in the declaration that it was taken before Robert Moore, one of the Associate Judges of that Court.
    The defendant below interposed four pleas. The second plea averred that when the recognizance was taken the Court of Common Pleas was in session, and had jurisdiction to admit persons to bail — wherefore said Moore, as one of the Judges of said Court, had no authority to take the recognizance.
    To this plea the plaintiff demurred, but the Court of Common Pleas overruléd the demurrer and gave judgment for the plaintiff, to reverse which this writ of error is prosecuted.

      Charles Fox, for Plaintiff in Error.

      il. Stanbery, (Attorney General,) for the State. .

      In Bank.
    Dec. Term, 1846
   Read, J.'■

The .power to bail persons in custody charged with crime, is an original inherent power in the Court of Common Pleas. The right to have this power exerte'd in all cases, unless for capital offences, where the proof is evident or the presumption great, is secured to all persons, by the constitution. The power to bail does not belong to a single judge, unless conferred by express statute.- ’ •

The power to dischai-ge persons in custody charged with crime, is (expressly conferred upon single judges, within the limits of their respective jurisdiction, by the 20th section of the act directing the mode of trial in criminal cases.

The Court of Common Pleas. has ■ original jurisdiction over all crimes and offences. All persons in custody for trial before said Court, have the right to demand to be let to baib

The power to let to bail belongs to the Court of Common Pleas, and has also been conferred' upon single judges by statute. Was it the intention of the Legislature to limit, impair, or in any sense to interfere with the power to let to bail vested' in the Court?' If not, it is .our duty so to construé the statute conferring the power to bail upon single judges, as-not íó producé, or, under any circumstances, -to admit’ such result. If we should hold, that a single judge could let to bail, when the-Court, had. fixed, the amount. of, the'-recognizance and passed upon, the sufficiency of the sureties, in a less sum and with -other sureties, it would be interfering with.the power-of the Court. Indeed .it would be depriving the Court of the right to exercise the .power, in the particular instance,, by withdrawing from its control the object of the power. Such construction would induce this strange result, that the, éntire Court having Mixed the terms of'-bail,-a single judge.-of the. same Court could step down from the bench and discharge, upon'different terms. ' The-,truth is,:'the' Legislature could never -have intended any such thing. The well'recognized and necessary, principle is, that during term tithe,’ the power of-the Court ex-,, fiausts that of each separate Judge,, over all-máttérs proper for the determination of'the whole’. Court. :The Legislature did' not intend bo disturb this principle. The sole object was to secure bb all, at all times, the right to apply.-for bail; and, therefore, it is simply provided that, in the exercise of the power to bail, there shall be no vacation — that when the term of the Court ends, the power shall pass into single judges, to be exercised during vacation. ' -

The Associate Judge, then, taking this recognizance, had no authority to take it. . It is therefore void. It may be said, that although not a statutory recognizance, it may take effect' as a common law bond.

In matters of criminal procedure, the law tolerates no- mongrel of this sort; The construing a matter to be another thing, because it is not what it purports to. be, to give it effect, and at all events tó keep it alive,’leads to the. production of a kind of judicial hybrid, which has no name or place among the clear, well known, and -well defined principles, of the law, and introduces confusion arid: doubt .as to. what the law really is. True, the law will not permit lack of form, or failure to accomplish an. intent, to .work a fraud. But- that class of cases has nothing to do with this. The object of the State is not-money, but to secure-the punishment of crimes,-and to-release the accused from unnecessary rigor of confinement. How .this is to be done is prescribed. It cannot be done by’the act of the party himself, or in any mode but the one pointed out by statute. If not ...done rightly, and the person is-'discharged,, it may be treated as an escape; and the person be re-imprisoned. If the recognizance taken is not a recognizance, it is nothing at all; it binds nobody, and' secures to nobody any, new 'right. Hence it is without consideration or power in any sense, and-would have nothing .to give it effect even, at common law.

The Court of Common Pleas erred in giving judgihent upon this recognizance.- ' . .

Judgment Reversed.'

Birchard, J.,

dissenting. There is.nothing more-difficult than the construction of statutes; particularly those of this State. Owing to imperfection of language and inconsistent provisions found sometimes to exist, great ambiguity and doubt attends them, and the true meaning is, often, not easily comprehended. Difficulty of construction, however, does not justify a departure from the obvious letter of the statute, nor will it warrant the introduction of an exception directly against its express provisions. Instances may, and frequently do occur, where the letter of a statute must be departed from in order to preserve its spirit and prevent an absurdity.

A departure from the plain words of the law should never be indulged in, save in those cases where it is required to give effect to the manifest intentions of the Legislature, and to make the whole law accord with reason and sound discretion. It is also admitted, that statutes relating to the same subject should be construed together, so that all the parts may form a consistent whole. The recognizance in this case was taken by a single judge, under a supposition that power was given to him for that purpose by the act of 1831, sec. 20, which is-in these words:

“When any person charged with the commission of any c bailable offence shall be confined in jail, whether committed c by warrant under the hand and seal of any judge or justice of the peace, or by the sheriff or coroner under any capias upon ‘ indictment found, it may be lawful for any Judge of the Su- preme Court or President Judge of the Court of Common ' Pleas within his circuit, or Associate Judge within his county, ' to admit such person to bail, by recognizing such person in ‘ such sum and with such securities as to him shall seem proper, '■ conditioned for his or her appearance before the proper court, ‘ to answer the offence wherewith he or she may be charged; c and for taking such bail, the judge may, by his special ware rant, under his hand and seal, require the sheriff or jailor c to bring such accused person before him, at the court house of c the proper county, at such time as in said warrant the judge ‘ may direct.”

Upon this section, standing alone, there could be no doubt of the right to exercise the power claimed in this case on the part of the State. But, owing to other provisions of the law and for reasons given by my brethren, they read this section of the statute as if it contained a clause restraining the direct and plain import of its words, to this effect: Provided, that during term time of the Court of Common Pleas no Judge of the Supreme Court, nor any other judge, shall, in any of the before enumerated cases, let to bail any such.person or persons. This may be the mere construction of a statute. It seems to me that it is amending the law, not declaring what it is. The power to let to bail is vested in the Court of Common Pleas. This was so settled in The State v. Dawson, 6 Ohio Rep. 251, This power, which is inherent, is not exclusive, nor can it be exercised except in term time and by a full court, of at least three judges, when in actual session. During the actual session no single judge can let to bail without the concurrence of a majority of the Court; not because the letter of the statute forbids, but because, in that place, he is a component part of the Court, and therefore, cannot be known officially in any other manner than as such, and through its records.

The first and second sections of the act provides for calling together an examining Court, in a specified case, to be held by the associate judges, authorizing them to let to bail, and if security cannot be procured, to commit to prison. By the third section in such case they are required to fix the amount in which bail may be taken, and any Judge of the Supreme Court or Court of Common Pleas may thereafter discharge on the giving of such bail. Now, it seems to me that all these laws should be construed together. They constitute parts of one system, are framed to secure individuals against useless hardships, are in favor of liberty, and should receive a liberal construction, to the end that the beneficent objects of the Legislature may be promoted.

I hold that they may all well stand together, and that there are objects of frequent occurrence in practice upon which each may' operate beneficially. All the Courts of the State are in the practice of holding two sessions a day, with intervening adjournments. Nothing is more common than adjournments during term time from.' day to day, or from a day .certain to .a daY certain.. This .may happen from necessity,.as in case of sickness. It may occur.from a variety of causes, convenience of parties or the public. Still, by a fiction of law, all the proceedings of the Court are the doings of one day. The judgments are all of the day of the commencement of the term. The recognizances of the same day, arid‘in contemplation of law there- is but one session at each term. Take then a case where, during term time, the Common Pleas adjourns over for a week-,- or- for four weeks, to give place to. a term of the Supe-' rich- Court — a case of not uncommon occurrence in Hamilton county — must a man lie in jail during this period for the want of a Jüdge'to let him to bail ? The united profession will answer in the negative; I answer ho, and' assert that the 20th section- meets such a case, and. was doubtless intended to provide for it. Without that section there-is no remedy. With it, as modified by judicial1 construction, there is .rione that I can discover. ’ The constitution gives none to a single Judge, or to any Court, and the statutes being silent, a numerous class of cases, süch as I have supposed, will frequently occur to mark by their harshness, and an- imprisonment not contemplated by the constitution, either a' gross neglect of .duty on the part-of .the Legislature or an error of. this portion of the jhdiciary of the State.

The argument that, under a different construction, a single Judge'may Corruptly defeat the action of the Court in session, by doing severally .out. of Court what in -full bench had been refused, has sortie .plausibility, but is not sound and should'have no force except with the Legislature. I know not that anything has ever occurred in Ohio to require at their hands legislation to guard specially against such an-enormity. Ample provision is now made ,to meet and punish the conduct óf a. corrupt Judge, and let the harshest penalty of the law follow whenever and as often.as corrupt judicial action may occur. I am-sure .that the evil is not-so likely to happen as to require judicial legislation to prevent it. The case made by' the pleadings is not of that description. Any one of several reasons may have existed, consistently with the averments of the special plea which rendered it proper, as it was lawful for the single Judge to take this recognizance during term time of the Court of Common Pleas, and on a day in which that Court held a session. For instance : two of the other Judges may have borne some relation to the accused which prevented them from acting. They may have been counsel, connected by blood, or may have been prevented from acting by sudden illness. After the amount of bail was fixed by the Court it may have adjourned over for the day, before the prisoner could get his bail in Court. It may have adjourned for a week, or four weeks, early in the day, and still the plea may be true in its averment that the recognizance was taken in term time, and that the Court held a session on the 17th, the day it bears date.

The judgment of the Court of Common Pleas, in my opinion, was not erroneous. That Court interpreted the statutes Well.


author: Birchard, J. Reíd, J.

text:
    Canal Boat Etna vs. William Treat.
    Under the act of February 26,1810, providing for proceedings against Steamboats and ' other water craft, by name, where a person has engaged to build and deliver a Boat at a future day, at a specific price, and has delivered the Boat in pursuance of such agreement, he cannot afterwards proceed against it, in the possession of a third person, to' recover for “ materials, supplies and labor,” expended in building the same.
    This is a Writ of Error, directed tq the Supreme Court for the County of Summit, returnable in Bank. .
    The original action was assumpsit, under the act authorizing proceedings against water craft, by name. The declaration contains the common counts, to which the defendant plead the general issue. The cause came on for trial at the September term, 1846, of the Supreme Court for Summit county — was submitted to a jury, who found a verdict for the plaintiff of $510, upon which the Court rendered judgment.
    In Bank.
    Dec. Term, 1846.
    During the progress of the trial the following bill of exceptions was taken:
    “ Be it remembered that, at the term aforesaid, this cause c came on for trial to the jury, upon the pleadings on file. It £ appeared in evidence that, in the fall of the year 1840, Stan- £ dart, Griffith & Co., commission merchants of Cleveland, Ohio, £ contracted with the plaintiff, William Treat, who was a boat ‘ builder at Euclid, in Cuyahoga county, Ohio, for two canal £ boats, one to be called the Etna, and the other the Hope, to £ be delivered to them (the said Standart, Griffith & Co.) at £ Cleveland, at and for the price of ten hundred and seventy- ‘ five dollars each. Under said contract the said boat, Etna, £ was delivered on the 24th day. of April, 1841, and the boat, £ Hope, on the 4th day of May, 1841. It further appeared £ from the admissions of the plaintiff, as proved by the oath of £ one witness, that the contract was, that Standart, Griffith & £ Co. should furnish whatever materials the plaintiff should £ want from their hardware store, and pay him $500, on the £ delivery of the boats. The balance was to be paid by Griffith, £ Standart & Co., as the boats earned it, and that the plaintiff £ did not expect the whole of his pay that year; that they paid £ him, however, only $25 on the delivery of the boat, Etna, £ and $75 on the delivery of the boat, Hope, and that there £ was still due, on both boats, more than $800 ; that Standart, £ Griffith & Co. did furnish the materials out of the hardware £ store, as per agreement; that soon after the delivery of the £ boat, Etna, as aforesaid, Standart, Griffith &• Co. sold and £ transferred her to the firm of Standart, Chamberlin & Co., £ who were millers at Akron, Ohio, and received their pay for £ the same, on the 31st of July, 1841, at $1075, by charging £ that sum in account — Chamberlin being informed that the £ boat was not paid for. Standart and Griffith, of Cleveland, £ were also partners in the Akron firm, of Standart, Chamberlin £ & Co., composed of Standart, Griffith, P. Chamberlin and S. 4 A. Wheeler. It further appeared that Standart, Griffith & 4 Co.,'from the delivery of the boats,'as aforesaid, continued to ,e make payments to the, plaintiff until-March 6, 1843, when 4 said payments amounted to !$ 1391.25. 'About this time the 4 firm of Standart, Griffith & Co. failed, and, on the 8th day of 4 June, 1843, the plaintiff instituted the present suit. It further 4 appeared that, on the 6th day of June, 1842, the firm of 4 Standart, Chamberlin & Co.-, being then indebted to one J. 4 D. Cummins, in' a large amount, for .cash advanced for the 4 purchase of wheat, executed a mortgage of said boat, Etna, 4 then in their possession, to secure to said J.- D. Cummins the 4 paypient of $1500. Afterwards, and on the 24th day of 4 May, i’843, the said J. D. Cummins commenced his suit at 4 law, in the Court of Common Pleas of Summit county, against 4 said Standart, Chamberlin & Co., upon said claim — obtained 4 judgment at the Septembér term, A. D. 1843, on which he 4 caused execution to be issued and levied upon said boat, Etna, 4 and purchased the same at sheriff’s sale, on the 20th day of -4 April, 1844'. Upon this testimony, it was claimed by counsel 4 for defendant that the plaintiff, was not entitled to recover, as 4 no liability attached, to the boat, Etna, under the act entitled 4 4 an act providing for tÜé collection of claims against steam™ 4 boats and other water craft, and authorizing proceedings 4 against the same by name,’ and requested the Court to charge 4 the jury accordingly. But the Court instructed the jury that, 4 if they found, from the evidence, that the plaintiff built the 4 boat, by contract, for Standart, Griffith & Co., at a specific 4 price, and delivered her under that contract, a liability attach-4 ed to the boat, in favor of the plaintiff, under the act aforesaid, 4 and the plaintiff was entitled to recover in this suit.”
    To this opinion and instruction of the Court, the counsel for defendant excepted; and now assigns for error the ruling of the Court, as stated in the bill of exceptions.

      R. P. Spalding, for Plaintiff-in Error, insisted —
    That the case did not come within the provisions of the statute ; that Treat himself was the owner of the boat, till delivered, and during the process of' building, and the labor performed by him was, in fact, done for himself; and that he no more had a lien' or claim upon her than exists in all cases'of the sale of a boat. He referred to 6 Wend. Rep. 510.

      S. J. Andrews and R. Hitchcock, for Defendant, contended — ^
    That this was one of the very cases intended to be reached' by the statute, which was founded in principles of public policy, adapted to the wants and progress of a commercial state, and was designed to encourage ship-building, by furnishing for the builder ample security for his debt, and an efficient remedy for its collection, when due; thereby enabling him to give, and his employer to obtain, a more liberal credit than would otherwise have been admissible; and that the word “ owner ” should be construed to mean, as between the contracting parties, him who, on the completion of the vessel, was to be the owner. They denied that the case from Wendell was analagous to the case at bar.
   Birchard, J.

To understand the proper application of the act of February 26, 1840, under which this action arises, it is necessary to take it as an entire thing, to construe .its several provisions together, and, also, to have regard to the reason and objects of the law. In itself, it is a beneficial statute, deserving a liberal construction for the purpose of advancing those objects. But while considerations of this nature are borne in mind, it is equally the duty of the Court to so far restrain their desire to promote its beneficial objects as to stop short of a construction so free as to lead to manifest absurdities. The claim «of the defendant in error was for a debt due for “ materials, supplies and labor,” expended in building the canal boat Etna. The statute-' makes the boat liable for such debts, when contracted by the owner on account of the boat. These are the words:

“That steamboats and other water crafts navigating the 4 waters within or bordering upon this State, shall be liable ‘ for debts contracted on account thereof, by the master, owner, 4 steward, consignee or other agent, for materials, supplies or la-4 bor in the building, .repairing, furnishing or equipping the ‘ same,” &c.

Upon the trial the Court instructed the jury, that “if they 4 found, from the evidence, that the plaintiff (Treat,) built the 4 boat by contract for Standart, Griffith & Co. at a specific 4 price and delivered her under that contract, a liability attach-4 ed to the boat in favor of said plaintiff, under the act of Feb-4 ruary 26, 1840, entitled (an act providing for the collection ‘ of claims against steamboats, and other water crafts, and au4 thorizing proceedings against the same by name,5 and the 4 plaintiff was entitled to recover in this suit.”

To test the accuracy of this charge, let us consider who was the owner of the Etna up to the time of. the delivery. Treat had contracted to build her and deliver her at a particular time. Before the delivery she was, undoubtedly, his property. He was the owner and had the absolute control of her. He might have broken her up at any moment, and a sale and transfer by . him to any stranger would have vested in that stranger a valid legal title. If transferred without notice of the contract between him and Standart, Griffith & Co., the purchasers would have had a perfect title to the boat, one that nothing could have affected save the debts which Treat himself .had contracted as owner, for supplies, &c., furnished in building the Etna. For those debts the boat was liable, and a transfer by Treat to any person, or under any cirumstances, without notice of those debts or the assent expressly or tacitly given by them, would not have prevented Standart, Griffith & Co., or the hands that labored upon the boat, in assisting to build her, from attaching and selling her under the statute, to satisfy their claims. The object of the act was to provide a remedy for those vy’ho otherwise might be defrauded, hindered or delayed in collecting their just claims, and to save them the inconvenience of " seeking out the owners and subjecting them to the payment of the debts contracted by their authority.' Looking to this'object and to the facts of the case, and all'difficulty about the law or its application vanishes'. Treat'could not recover. His. claim was not -for á debt contracted for labor, supplies or materials in the building of the. boat.' A.debt cannot exist without a debtor and a creditor. It is something whiclj grows out of a contract, and to every contract there must be two parties; the contractor who is ■ to be bound by it and- the' contractee to whom he is bound. . Treat could not contract with himself .to fnrnish himself materials for his own boat, any more-than he could sue himself for breaking such a contract'. Both ideas are absurd; one not more so than the other. His claim',, then, is simply a claim for the price due upon the sale arid delivery of the boat, and does not come within the letter or spirit of .the statute. Here I should-stop, but.for-the fact that different opinions, at times, have been held by other members of this Court. As that difference fnay still exist, and tend to throw doubts upon the law, a further examination, on my part, may subserve the public good. . .

The ' statute presupposes that the person having a demand for work, labor and materials against a boat, has a right of action at the same time, and co.-extensive therewith, against some third party, as owner. It provides that such party, on the seizure of the boat, by giving bond, may release the boat, and, that after trial and sale of the boat, if its proceeds are insufficient to satisfy the judgment, -the balance shall remain, to be collected on execution as on other judgments.” Swan’s Stat. 210, secs. 5 and 6.

In this case let us 'suppose, that, after the completion • of the boat Etna, Treat had held her as his own from the fall of the year until the opening of navigation in the ensuing May, and then made the delivery to Staudart, Griffith & Co. Where would .have been the liability of the boat for his labor and materials in the mean time ? It attached, if 'at all, the moment the labor was performed and the materials were furnished. If it attached then, the delivery or non-delivery could have had no effect upon it. Treat was then the owner, and he contracted the liability, if it existed, with himself, as owner. He could not contract with himself. The boat could not contract with him; it had no faculty that would enable it to do so. Not intimating that the notion I am combating is an absurdity too palpable to find advocates, let us suppose that, before the delivery of the boat, in the case I have supposed, Treat had attached it for the labor by him performed in building it, and proceeded, in the forms prescribed by the statute, to a condemnation and sale, and that the Etna had passed into the hands of a purchaser from the sheriff for $10, leaving the residue of the judgment unsatisfied. Against whom would the balance of that judgment have remained to be collected on execution ?” Not against Standart, Griffith & Co. They were not to be liable for ariy thing until the boat was delivered to them; and in the supposed case there was no delivery. The plain meaning of the statute is, that the balance shall be a good judgment against the one who was, in fact, the debtor at the making of the contract for the labor and materials, that is, Wm. Treat, the owner of the boat. So, that, upon the theory of Mr. Treat’s counsel, he would be both plaintiff in execution arid defendant in execution to the same identical execution. A construction of the statute that works such results will derive but slight support from the members of the profession, and, I should hope, but little countenance any where.

The charge of the Court was, therefore, erroneous, and the judgment must be reversed: The claim was not for expenses incurred in building; it was for the balance of the contract price, and does not differ, in substance, from any balance that might be due from any purchaser to the vendor on an ordinary sale and delivery of a boat. Such vendor can always secure himself before the delivery of the boat.

Hitchcock, J., having been of counsel with Treat, took no part in this decision.

Reíd, J.

dissenting. I dissent in this case. The construction given to the statute by two Judges of the Court, in effect, destroys the main object of the statute. The largest interest intended to be secured under the statute, is that of builders. But under the construction now given, a builder can never hold the boat liable; because it is said the boat is his up to the delivery, and the statute furnishes no remedy against himself. It is said, the boat is the property of the builder, if built under a contract; and hence the builder can have no claim upon ^the boat under this act. Now, the result is, that as against the person for whom the boat is built, no remedy for building, for materials furnished, or for labor, exists. If the right exists at all, it is against the builder. A builder can never, in this view, have the remedy given by this act. To give him this remedy, the person for whom the boat is built must be treated in fact as the builder; and the mechanic or builder must be treated as a mere laborer, and as such he may claim the remedy of the statute.

Now, undér this view, all the builders of steamboats and canal boats, upon the rivers, lakes, and canals in our State, have no claim upon the boat under this act. Such never was the intention of the Legislature. The Legislature designed that the moment a claim sprung up against the person for whom the boat was built, materials furnished, or labor performed, the boat itself might be pursued under the act. The construction now given not only violates the plain object and intent of the act, but its very words; for the act makes the boat liable to the builder, while under the- construction given by two of the Judges, a builder never can have any remedy under it. It is surprising that any one ever should have supposed that small claims, arising on account of the boat, are carefully secured by this act, when the more meritorious and larger claims, for tually building the boat, are not embraced.

Such a construction does violence to the main object and intent of the act, and also to its express letter.


author: Read, J.

text:
    The State of Ohio vs. Nathan Guilford and others.
    If co-trustees authorize one of their number to receive and control the trust fund, and are negligent in taking security and looking after the fund, and it ik lost by the defalcation of the trustee having such control, all the trustees are responsible.
    This is a Bill in Chancery, from Hamilton County.
    The bill is filed against Guilford, George Torrence, and William Greene, who, with one Jacob Williams, now deceased, were trustees of the “ Hughes’ fund,” so called, being a fund appropriated for educational purposes, by the donor, in Cincinnati, a portion of which has been lost through the defalcation of Williams, the trustee having possession of the fund.
    The facts of the case, so far as necessary to an understanding of the question involved, will be found in the opinion of the Court.

      C. Brough, for the Complainant.

      N. Guilford, for the Defendants.
    No arguments were furnished to the Reporter.
   Read, J.

The facts in this case are not disputed. The respondents, Guilford, Torren.ce, and Greene, were co-trustees with Jacob Williams. The respondents, in 1835, appointed Williams treasurer, and authorized him to collect the rents arising from the trust property, and paid no further attention to the matter. ■. From 1835 to 1840, Williams .collected of the trust fund over '$jj 6,000. He applied this monéy to his own use, became insolvent, and. it was lost. The co-trustees demanded no security of Williams, kept no account, and had no settlement with him during this period of time. They regarded Williams as- an honest and responsible man, and committed the whole matter to his charge and control. It is admitted that the respondents were guilty of no willful misconduct ór wrong. The question under these circumstances is, are they responsible for the misconduct-and defalcation of Williams ?

In Bank.

Dec. Term, 1846.

The rule of responsibility of trustees is laid down in Story’s Equity, 517. “ A trustee is to act, in relation to the trust pro-c -perty, with reasonable-, diligence, and, in cases.of joint trust, with due caution and vigilance, in respect to the approbation c of, and acquiescence in, the. acts of co-trustees; for if he. c should deliver over the whole management to the others, and ‘ betray supine indifference or gross negligence in regard to the c interests of the céstui que trust, he will be _ held responsible.” In Oliver v. Court, 8 Price Rep. 127, the rule of responsibility is stated thus: ££ Where several trustees leave the entire per- £ formance of the duties of the trust to one, all áre equally £ responsible for the faithful and diligent discharge of their joint and several duties by that one to whom they have dele- ‘ gated it.”

The authorities cited by respondents’ counsel state the same rule. But it is insisted that mere passiveness in not withdrawing money from the hands of a co-trustee,'will not make him responsible for the loss by the misapplication of the fund.

The distinction running through the books, is,,in cases where one gets possession of the trust fund' without the aid or authority of his co-trustee, and where he gets possession by their assistance and authority.

In the first instance, the bare neglect to withdraw the funds, would not, in a case of loss, make the co-trustees liable, unless the negligence was - so gross as to amount to. a willful default. But where he acts by the authority of the co-trustees, the rule is more strict, and- the courts are disposed to treat the act of the one, for the purpose of responsibility, as the act .of all.

The care which should be exercised by a trustee is that of a prudent man over his own affairs.

The application of these principles to the facts in this case,make the defendants responsible. Jacob Williams was authorized by them to collect and receive the rents. He acted for them."' They were negligent in looking to the state of the account,. for so long a period, and seeing that the funds were secure and properly invested. In one sense, the case is a hard one upon the respondents, but it is equally hard upon the bene'ficiáries of the trust. Let no man assume a trust, unless he is willing to exert due care and diligence. The Court could not refuse a decree in this case, without violating a well established principle, -which would jeopardize all charities.

Decree for Complainant.

Note. — A re-hearing wag granted in this case, the defendants claiming that they had a good defence; that they had not been guilty of negligence in the matter of the possession of tile fund by Williams, but bn the contrary had endeavored to. withdraw it from him; and that they had been put off their guard, and did not make their full defence, in consequence of an agreement With complainant’s counsel to continue the case,-which they relied upon,-but which agreement the Court did not receive till after the opinion was delivered.


text:
    The State of Ohio vs. Don R. Clark and others.
    A recognizance to let to bail on tlie allowance of a writ of error, after conviction, is not authorized by the a'ct allowing writs of error in criminal cases, and is therefore void.
    This is a Writ of Error to the Court of Common Pleas of Summit County.
    The original action was debt, upon a criminal recognizance. The facts were as follows :
    At the May term, 1843, of the Court of Common Pleas of Summit county, Don It. Clark was convicted of grand larceny. and sentenced to the Penitentiary for the term of three years. Application was made for the allowance of a writ of error, under the act allowing writs of error in criminal cases. The writ was allowed, made returnable .forthwith, the judgment of the Court ordered to be suspended, and Clark to be let to bail in the sum of one thousand dollars, and discharged from custody. The condition of the recognizance was, that said Clark should prosecute his writ of error to effect, or surrender himself to the sheriff if said judgment should not be reversed. The judg-' ment of the Common Pleas was affirmed, and Clark fled the country. The other defendants were Clark’s sureties in the recognizance.
    In Bank.
    Dec. Term, 1846.
    To the declaration filed in the cáuse the defendants demurred, and the Court of Common Pleas' sustained the demurrer and gave judgment against the State for costs.
    To reverse this judgment this writ was sued out; the errors assigned being, first, that the Court erred in sustaining the demurrer, and second, in rendering judgment against the State for costs.

      W. S. C. Otis, for the State.
    I maintain that the Judge allowing the writ of error had power to make the order which he did in the premises, and that the bond executed in accordance with the order was good and valid in law.
    The policy of our government and laws is to secure the liberty of every citizen, unless his restraint be imposed as a punishment, or to secure his appearance to answer to a criminal charge. Hence the provision in the constitution, “ that all per- '■ sons shall be bailable by sufficient sureties, unless for capital e offences,” &c.
    The right to admit to bail is a common law right, and the constitutional provision confers no new right. The court of King’s Bench, having a supervision over all other courts, has always exercised the power of admitting to bail, as well after
      as before conviction, in their discretion. 1 Hale’s P. C. 108; 2 Hawk. Rep. 443 ; 3 Hill’s Rep. 676.
    The Supreme Court of any of the States of the Union, or any one of the Judges thereof, having a like supervisioh over other courts, have the same power in relation to bail in criminal cases as the King’s Bench in England, unless restrained by the constitution or by statute. 5 Cow. Rep. 39; 1 Gall. Rep., 488; 1 Story on Con. 140; 2 Ibid. 264, 268.
    The question whether bail shall be taken or not is, in all cases-of felony, purely judicial. The statutes, in giving power to bail, create no new ministerial duty. 3 Hill’s Rep. 673; 10 Wend. Rep. 464.
    . The constitution and laws of Ohio, it is conceded, do restrain Courts from receiving bail in capital cases, but leave the • matter in all other cases as at common law, subject to' judicial discretion. ' .
    As far as it regards the powers and principles involved in this case, the case of Morris v.. Marcy and others, 4 Ohio Rep. 83, is almost, if not altogether in point.

      R. P. Spalding, for the Defendants.
    Waiving the discussion of the question whether, at common law, the power to let to bail, as well after as before conviction, is inherent in the office of a Judge of the Supreme Court, it-is sufficient to reply, that that implied power is, in this State,, controlled by express legislative enactment. The statute has made provision for letting to bail in certain eases, and pointed out the mode of -proceeding, and prohibited it in others, and no where is the power conferred to let to bail after conviction.
    If, then, the power to let to bail and take a recognizance after conviction is not conferred by statute, the recognizance is void, either as a statutory or common law obligation. 11 Mass. Rep. 337; 7 Pick. Rep. 231.
   Read, J.

The whole question in this case is, whether the ^edge, allowing the writ of error and directing a suspension of the execution, had authority to discharge upon bail. This had been done in several instances, after the passage of the act allowing writs of error in criminal cases. If the Judge directing the recognizance had no power to let to bail, it is void. We have decided this point at this term, in the case of Powell v. The State of Ohio. If the recognizance is not good as a statutory bond, it is not good at common law.

It is contended that, the 12th section of the eighth article of the constitution, which declares that all persons shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident, or the presumption; great, confers the power to let to bail, as exercised in this instance; and that the habeas, corpus act recognizes the same principle.

It is claimed that, at common law, all felonies were bailable until limited by .statute, and that the Court of King’s Bench exercised this power as well after as before conviction. For the power to bail, and its mode of exercise, we look to our own constitution and laws. Although the jurisdiction and power of the Court is conferred by the constitution, it is to be exercised in the mode pointed out by the statute. It is true that the constitution confers sufficient power to authorize the Legislature, by statute, to permit bail, as well after as before conviction. This power has been both exercised and prohibited, in the very act under consideration, according to the grade of offence ; forbidding, upon the well known rules of construing statutes, to discharge upon bail in capital or penitentiary cases, and directing that bail in all other cases may be taken, until judgment be reversed or affirmed. Prior to this act, writs of error were not allowed in criminal cases, and a suspension of execution could only result from executive pardon or respite, or a continuance by the courts. The act allowing writs of error in criminal cases, directs a suspension of execution in capital and penitentiary cases,, until the writ of error shall be finally .disposed of;'but-in all other cases makes the suspension of execution to depend upon entering into a recognizance, conditioned to proseohte his writ of error to effect, and to surrender himself to the sheriff of the county'in which conviction was had, .unless the judgment be reversed or a new trial ordered.,- The-Statute,, then,'has rected the mode and incidents of .the application and allowance, of a writ of error in criminal cases., ,-Th'e' person convicted, is ■in á ¡better, condition- than before this statute was enacted.' If-it had not been enacted the-judgment-'could have been át once carried into execution. The constitution did not'forbid that, or authorize bail. Why, then,-after conviction, if-the Legislature -see proper to suspend sentence, for the benefit of the prisoner, should the constitution step in and direct bail ? If, after conviction, there is '• power to order' immediate' execution, why should a more merciful and - favorable exercise of power, in behalf of the prisoner, create an additional right to bail? 'We can perceive n.o solid 'reason for any such construction-. Before conviction, all persons, as -limited by the constitution, are bailable. After- conviction, it depends upon the ‘statute whether they shall be -let to bail or not. In this case,' the act not authorizing bail, the Judge .had, no; povver.to direct'the recognizance, and it is therefore void.

The demurrer .to the declaration was -well taken, and the judgment of the Court of-Common Pleas is affirmed, except as to judgment for- costs against the State, and,' as to that, reversed. • • ". ■• •


author: Hitchcock, J.

text:
    In Bank.
    Dec. Term, 1846.
    Charles W. Christmas and others vs. Cyrus Spink and others.
    A Court of Chancery will not set aside a conveyance upon allegations of fraud, unless the charges are clearly and satisfactorily sustained by the proof.
    This is a Bill in Chancery, reserved in the County of Wayne.
    The bill is filed by the legatees of John Christmas, deceased, against his administrator, and against the heirs and executors of William Christmas and others, and was submitted to the Court upon bill, answers, exhibits and testimony. The papers are very voluminous, and the decision of the'case depending alone upon questions of fact, it is not deemed necessary to make any other statement than what appears in-the Opinion of the Court.

      Stuart, Spalding and Ewing, for Complainants.

      Hams &f Cox, for Defendants.
   Hitchcock, J.

On the 16th day of June, 1832, John Christmas, then of Wooster, in the county of Wayne, made his last will and testament, in which he devised all his estate, both real and personal, after the payment of debts, to his seven children, or their representatives, share and share alike; providing, in the same will, that advances which he had made to each child should be deducted from such child’s share, and charging his son William with debts to the amount of ten thousand dollars or more, to be deducted from his share. On the 1st of August, 1835, he made a codicil to said will, and republished the same. He died on the 22d of November, 1835; and the executors, named in the will, refusing to act as such, the will was proved, and Samuel Quinby, one of the defendants, appointed administrator with the will annexed.

A portion of the property of which the said John was possessed, at the time of the execution of the will, consisted of a farm, adjoining the town of Wooster, containing one hundred and fifty-seven acres of land, on which he resided at the time of his death.

On the 6th of February, 1835, he conveyed this farm to Thomas Fassitt, of Philadelphia, reserving to himsalf a life estate, for the enjoyment of which he was to pay the taxes. The consideration of this deed was $6,000. About $4,800 was applied in satisfaction of a debt due from John Christmas to Fassitt, and which had been due and accumulating since 1816. The residue of the consideration, amounting to about $1,200, was to be paid by Fassitt in money, and was paid to William Christmas upon the order of John Christmas.

On the 15 th of September, 1835, Thomas Fassitt, by written agreement, contracted to convey the same land to William Christmas for the same sum allowed and paid by Fassitt for it, with the interest thereon at 7¿ per cent.

On the 15th of December, 1835, William Christmas contracted to sell one-fourth of said farm to Cyrus Spink, who was his brother-in-law, for $2,500, payment to be made in five years.

William Christmas died in September, 1836, and his executors, Hiram Griswold and Isaac Harter, are made defendants.

The bill was filed in 1840. Although very prolix, the substance of the charges are, that in February, 1835, and for years before that time, John Christmas was old and infirm, very much enfeebled both in body and mind, and was, in fact, incapable of transacting business ; that he had great confidence in his son William, who had a controlling influence over him ; that William, having learned the nature of his father’s will, and with a view to defraud the complainants, who are legatees under that will, combined with Fassitt, and so exerted his influence over his father as to induce him to convey the land in controversy to Fassitt, at a price much under its actual value, with an understanding between him, William, and Fassitt, that Fassitt should reconvey the land to him, William; that, in order to induee the said John to make said conveyance, he represented him that the consideration of the deed was eight thousand dollars, and so read the deed to him; that, in order to carry out the combination, Fassitt soon afterwards contracted to convey said land to said William, and that the same was conveyed to him; that at the time the contract was made with Spink, by which he became interested in the land, or before the same was paid for and deed made, Spink had full notice of the fraudulent conduct of William; that since the death of William, his executors, in connection with Spink, have caused a part of said farm to be laid out in town lots, have sold a part of the same, and have realized more than sufficient money to pay the whole amount of consideration named in the deed from John Christmas to Fassitt.

The prayer of the bill is, that the heirs at law and executors of William Christmas, and the said Spink, may be compelled to account for the rents and profits of said estate, and for all the moneys by them realized or received, or yet due or to become due for the sale of lots upon said premises, that may be found due over and above the amount of the debt to said Fassitt, and that said Spink and others may be declared to hold in trust for, and decreed to convey to the complainants their several shares of the premises yet unsold.

There is a further prayer for general relief.

Cyrus Spink, Samuel Qninby, administrator with the will annexed of John Christmas, Griswold and Harter, executors of the last will'and testament of William Christmas, have severally answered. It is unnecessary to say any thing further with respect to these answers, than that all knowledge or belief of any fraudulent acts, as charged in the bill, is denied.

To make a full abstract of the depositions and exhibits would take more time than is ordinarily appropriated to a term of the court. They are very voluminous, and we have examined them with care, more especially those introduced by complainants.

The charges in the bill are of a grave and serious nature, as they affect the character of the deceased, William Christmas. He is charged with falsehood towards his father, that he might cheat his brothers and sisters out of the legacies left to them by that father. It is no ordinary fraud that is imputed to him. It is a charge which ought not to have been made, unless sustained by conclusive evidence. How far it is sustained, depends upon the testimony.

The first charge is, that John Christmas was old and weak in body and mind. The testimony fully sustains this charge, but it does not show that his mental faculties were so far impaired that a conveyance made by him could be avoided on this account. In fact, the will itself, under which the complainants claim, was executed after his mental faculties had measurably failed, and the codicil was executed months after the deed to Fassitt.

The next charge is, that he put great confidence in his son, William, and that William exercised a controlling influence over him. That he put great trust and confidence in William, is abundantly proved. That William had influence over him, is also proved. But, that he had any controlling influence, does not appear.

It is next charged that William obtained knowledge of his father’s will, before the sale of the land to Fassitt. Of this there is no proof; nor is there any thing proved from which it can be inferred that he knew any thing of the contents of the will, until after his father’s death.

It is next charged that, with a view to defraud the complainants of their legacies, he exerted his influence with his father to induce him to make the conveyance to Fassitt. Of this there is no proof. There is no testimony that he ever solicited or even advised his father to make that conveyance. It is not improbable that he did so advise; but it is mere presumption.

It is then charged that the consideration paid by Fassitt, for the land, was not its full value. Upon this point, the testimony is conflicting; but the decided weight of that testimony is, that six thousand dollars was a great and full price for the land at the time it was sold, although it afterwards increased in value; and the evidence shows that this increasé in value was caused by the anticipation that a canal would be eventually constructed across or over it.

It is next charged that all this was done in pursuance of an understanding, between William and Fassitt, that when the latter had got a conveyance of the land he should convey it to the former. Here there is an entire absence of proof. So far as the facts can be ascertained from the evidence, at the time this conveyance was made, William did not expect to become the owner. Some six or seven months afterwards, however, he did enter into a contract with Fassitt, by which he got the control of the property.

Another charge is, that William represented to his father that the consideration he was to receive was eight thousand dollars, and that he so read the deed to him. This charge is measurably sustained by the testimony of Susannah Yarnal, the housekeeper of John Christmas; and, perhaps, if there was no other evidence bearing upon the point, it might be considered as proved. But the testimony of this witness is not supported by the other proofs in the case. That there was talk about eight thousand dollars, as the value of the property, and of six thousand, there can be no doubt. But the most obvious explanation of the whole matter is this: John Christmas had previously offered to convey the property to Fassitt for eight thousand dollars, and was anxious he should take it. This was more than the land was worth; and the final arrangement was, that Fassitt should have it at six thousand, allowing John Christmas a life estate in it. This life estate was taken 'into the estimate to make up the eight thousand dollars which was talked about, and of which this witness heard. She says, that a few weeks after the deed was executed, the old gentleman became discontented about it, and wrote to William; that William returned an answer, saying, “ all was right,” with which his father was entirely satisfied. A letter is produced from William to his father, found among his father’s papers, answering, in point of time, to the letter spoken of by the witness. In this letter he informs his father that he has had returns from Fassitt, and ascertained the amount of the debt. He then goes on to state an account, charging Fassitt with $6,000, as the consideration for the land, and crediting him with the amount of the debt. He next strikes the balance, and finds due to his father more than $1,200. There is nothing like concealment or deception in the letter; nothing said about $8,000 and all being “ right.” Every thing is plain, frank, and open. At the close, he congratulates his father that the “ national debt ” is paid, and there is still due to him $1,200. This letter, of itself, is sufficient to show, that the witness must have been mistaken in supposing that, when the deed was read, the consideration named was eight thousand dollars. But it does not stand alone. Lizer, one of the witnesses to, and Schucker, the justice who took the acknowledgment of the deed, both understood the actual consideration to be six thousand dollars, although there was talk about eight thousand.

Such are the charges of fraud in this transaction as made in the bill, and they are entirely unsustained by the evidence. The real and true stale of the matter was-this; John Christmas had been long indebted to Fassitt. The debt had been running on for nineteen or twenty years.. Fassitt thought it was time it was paid, and Christmas was anxious to pay it. He offered the farm in payment, long before the arrangement was finally made. At length William, who was acquainted with Fassitt, and possessed his confidence, engaged in the business. He procured the land to be appraised, and after the appraisal his father executed the deed. He wrote to Fassitt, informing him what had been done, and stating to him that if he was satisfied with the arrangement, he would cause the deed to be recorded. Fassitt, in reply, expressed, his approbation, and the deed was recorded. From the whole evidence in the case, it is apparent that the arrangement was, under the then existing circumstances, a beneficial one for John Christmas. Nor do we believe, that had Fassitt pressed the collection of bis debt in due course of law, that that debt would have been satisfied by the sale of the farm.

Although William Christmas possessed the confidence of his father, there is nothing to excite a suspicion that he abused that confidence. On the contrary, it is apparent that he ever manifested an anxious solicitude to protect and promote the interests of that father; and further, that he always treated him ■ with filial kindness, affection, and respect.

There being no fraud as between William Christmas, Thos. Fassitt, and John Christmas, in the original transaction, the complainants do not make out a case, and their bill must be dismissed with costs.