text:
    John S. Robinson v. George Kious and Wilson Rowe.
    Section 92 of the justices’ code (Swan’s Stat. 514) does not make the payment of the jury fee a condition precedent to the rendition of judgment. If it be not paid, the justice may make an order that the successful party pay it. and enforce such order by an attachment; but he can not omit to give judgment because it is not paid.
    Section 107 of the justices’ code provides that, “upon a verdict, the justice must immediately render judgment accordingly.” This provision may not make a judgment rendered upon a subsequent day absolutely void, but it makes it irregular; and for such irregularity, when not waived, it is reversible.
    The common pleas, upon the reversal of such a judgment, must retain the cause for trial and final judgment.
    In Error to the court of common pleas of Madison, county.
    The facts sufficiently appear in the opinion of the court.

      * R.A. Harrison, for plaintiff in error, made the following points:
    That the judgment of the justice, reversed by the common pleas, was the only one he could have rendered in the case, inasmuch as he had no power to render judgment against the plaintiff as if in default, though payment of the jury fees was delayed.
    That after paying the jury fee, the successful party could, of right,, insist that the verdict should be entered and judgment rendered accordingly.
    That though section 107 of the justices’ code, directs the justice to render judgment immediately after the verdict, it does not provide that he shall not do it afterward; and section 92 expressly provides, that he shall not do it until after the jury fee is paid. The provision as to time, of section 107, is therefore merely directory to' the justice, and not a limitation upon his power.
    That “where statute directs a public officer to do an official act, regarding the rights and duties of others, in a certain time, without any negative words restraining him from doing it afterward, the naming of the time will be considered as directory to him, and not as a limitation upon his authority.” Pond v. Negur, 6 Mass. 230; People v. Allen, 6 Wend. 486; Hooker v. Young, 5 Cowen, 269; Stevens v. Breatheven, Wright, 733; Pugh v. Corwine, 10 West. Law Jour. 79, Smith on Stat. and Cons. Law, sec. 670.
    That the provision of section 107, was intended as a protection to the party obtaining the verdict; that the statute is remedial and ought to be liberally construed; and that, if the construction put upon the statute by the common pleas should stand, a mandamus could not issue to a justice who neglected his duty, as an allegation that the time had elapsed in which he was authorized by statute to render judgment would be a good answer for him.

      Wilcox & Fislier, for defendant in error, advanced these propositions :
    That where there is a verdict of a jury, the judgment shall be ^entered immediately; because all matters of fact are settled by the jury, and the justice has no need for time to consider.
    If it is the fault of the justice that the judgment is not rendered within the proper time, he is liable to an action.
    If it is the fault of the party, as in this case, by not paying the jury fees, he must pay the costs and begin again, de novo.

    In New York, a justice adjourned a case until 2 o'clock on a certain day; at 9 o’clock on the day the parties were called, but the defendant made default, and the justice held the case over till the next day, when he gave judgment. This was adjudged to be a discontinuance. 2 Johns. 192.
   Thurman, C. J.

Robinson sued Kious and Rowe before a justice of the peace.

July 1,1854, a trial by jury was had, and a verdict rendered in favor of the plaintiff. The jury fee not being paid, the justice withheld judgment until July 5, 1854, when the plaintiff paid it, and the justice gave judgment upon the verdict.

The common pleas reversed the judgment, because it was rendered too late, -and retained the cause for trial.

To reverse this judgment of reversal, the present petition was filed.

The decision of the case depends upon the effect of the following sections of the justices’ code (Swan’s new Stat. 514, 516):

“ Sec. .92. Upon the verdict being delivered to the justice, and before judgment being rendered thereon, each juror shall be entitled to receive fifty cents at the hands of the successful ■which shall be taxed in the costs against his adversary. When the jury shall be unable to agree upon a verdict, the same compensation shall be paid them by the party calling the jury, and the same shall be taxed in the cost-bill against the losing party.”

“ Sec. 107. Upon a verdict, the justice must immediately render judgment accordingly. When a trial is by the justice, judgment must be entered immediately after the close of the trial, *if the defendant has been arrested or his property attached; in other cases, it must be entered either at the close of the trial, or if the justice then desire further time to consider, on ór by the fourth day thereafter, both days inclusive.”

The latter of these sections plainly required the justice, in this case, to render judgment, according to the verdict, immediately upon its return; the former as plainly required the plaintiff to pay the jury fee before the entry of judgment. He failed to do so, and thereby, say the counsel for the defendant in error, discontinued his suit.

But let us look at both sides. Suppose a verdict be for a defendant, and he fail to pay the jury, what then is to be done? It is obvious that the suit can not be discontinued by any act or omission of the defendant, and it is equally clear that judgment can not be given against him while the verdict stands in lps favor. Shall, then, the justice set aside or treat the verdict as a nullity, and order a new trial ? If so, all that a defendant has to do who is dissatisfied with his verdict, or wishes to prevent or delay an appeal by the plaintiff, is to refuse to pay the jury fee, and a new trial follows of course. This will not do; nor will it do to withhold judgment until the defendant pay the fee and then render it, for he may never pay it, in order to prevent the plaintiff from appealing, since there can be no appeal until after judgment.

On the other hand, suppose the verdict to be for the plaintiff; if his failure to pay the jury operates as a discontinuance, then all the trouble the defendant may have been subject to in order to reduce the plaintiff’s claim, or to establish a counter-claim or set-off, however successful before the jury, goes for nothing; and he may be harassed with as many successive suits, for the same cause of action, as the plaintiff may see fit to bring, each one being discontinued in the same way. For the New York doctrine, that the verdict of a justice’s jury, without a judgment upon it, operates as a bar, could have no application; and this for the reason, that that doctrine rests upon the fact that a justice *in that state-has no power to award a new trial; and hence a judgment follows a verdict there as a matter of course, and may, for the purpose of an estoppel, be considered as rendered, though not formally entered. Felter v. Mulliner, 2 Johns. 181. But in this state a justice may, upon a certain showing, grant a new trial (Justices’ Code, sec. 87); and surely no judgment could be considered as constructively rendered in a suit discontinued for want of a necessary prerequisite to a judgment.

To us it seems that the legislative intention is plain enough, audit is one that obviates all the difficulties to which I have referred. There is nothing in section 92 that makes the payment of the jury fee a condition precedent to the rendition of judgment, nor was it intended that it should be. Its.object is simply to fix the amount to which the jurors shall be entitled, and prescribe the time when and party by whom it shall be paid. It is to be paid, in the-first instance, when a verdict is rendered, by the successful party; and if he fail to do so, the justice may enter an order that he pay it, and enforce compliance with it by an attachment. Stevens v. Breatheven, Wright, 733, 735.

But judgment must be entered, and that immediately, in compliance with section 107, whether thfe jury fee be paid or not. The justice has no discretion to postpone judgment upon a verdict to a future day, and if he do so, his judgment, although it may not be void, will be erroneous, and reversible for irregularity and noncompliance with the statute.

The court of common pleas was, therefore, right in reversing the judgment in question, and it properly retained the cause, as required by section 532 of the civil code.

Judgment affirmed.


source: Caselaw Access Project

author: Thurman, C. J.

license: Public Domain

text:
    *Joseph Hale, Executor, v. William Wetmore et al.
    From Summit county.
    This was a bill of review, the object of which was to reverse a decree pronounced by the late Supreme Court, in Summit county, in a suit brought by William Wetmore against Joseph Hale, executor, and others. The papers having been returned to the county shortly after the rendition of the decree of reversal, hereinafter mentioned, the opinion of the court could not be drawn up at length. For the same reason, the Reporter is unable to make a statement of the facts. These circumstances, however, are not very material, as the points decided are fully given below; and a statement of the facts is not necessary in order to comprehend them;

      Otis & Wolcott, for complainant in review.

      B. F. Spalding, and Karris & Son, for defendants.
   Thurman, C. J.

A surety against whom judgment has been rendered, may, without making payment himself, proceed, in equity, against his principal, to subject the estate of the latter to the payment of the debt. Stump v. Rogers, 1 Ohio, 533; Horsey v. Heath et al., 5 Ib. 355; McConnel v. Scott, 15 Ib. 401; Wright v Simpson, 6 Ves. 734; Tankersly v. Anderson, 4 Dess. 47; Swan’s Stat. (old ed.) 878, sec. 5.

In a suit thus brought, by a surety against the manager and members of a firm, for whom he had become bound as surety for a partnership debt, which suit was defended upon the ground that the manager had contracted the debt upon his own account alone, and not for the firm, and that the firm was not bound therefor; the manager, prior to the acts to improve the law of evidence (2 *Curw. 1522, 1597), was not a competent witness for the complainant to establish the liability of the firm. It was his interest to charge the firm with the debt, and thereby procure a decree that the firm should pay it and save him harmless. And such a decree could be rendered in such suit, and would be conclusive as between the manager and the firm. Marshall v. Thrailkill’s Adm’r, 12 Ohio, 275; Dougherty v. Walters, 1 Ohio St. 201.

Eor the same reasons, one of the partners, after the dissolution of the firm, was not a competent witness for the complainant in such suit, to establish the liability of a copartner who had assumed the partnership debts, as he thereby, as between himsolf and co-partner, shifted the entire responsibility upon the latter, or, at least, brought him in to share it.

It was an error, therefore, to admit the testimony of such witnesses, taken before the passage of said acts; and the other testimony not being sufficient to sustain the decree, it must be reversed, notwithstanding such witnesses are now competent in this case, under the provisions of said acts.

The provisions of the code do not apply to suits pending when it took effect, nor to proceedings to reverse decrees in chancery. They are to be prosecuted and defended as if the code had not been adopted (sees. 533, 602). It follows, that the acts aforesaid, though repealed as to other suits, are yet in force as to suits pending when the code took effect, and to bills of review. And where a decree was rendered before the code took effect, but reversed afterward, and the original cause reinstated for further proceedings, it is to be deemed a suit pending when the code took effect, within the meaning of the above provisions.

Decree reversed and cause remanded for further proceedings.


author: Ranney, J.

text:
    *Harkrader, Crane et al. v. Leiby et al.
    L-,an insolvent debtor, and in contemplation of suck insolvency, made a conveyance by mortgage to three persons, conditioned to be void if he should save them harmless upon certain indorsements made by them for his benefit “ to divers persons; ” and should, also pay to certain others of his creditors named the several sums of money owing by him to them. Held:

    1. That such conveyance is, in substance and legal effect, an assignment within the purview of the act of 1838, relating to assignments by insolvent debtors to trustees with the design to prefer one or more creditors to the exclusion of others; and by force of that act, is made to inure to the benefit of all the creditors, in proportion to their respective demands.
    2. The act does not affect the mortgage given by an insolvent debtor to secure the debt of one of his creditors, or to indemnify him against a liability by indorsement or otherwise, assumed for the benefit of the debtor; although it may have the effect to prefer such creditor and deprive others of the ability to obtain satisfaction of their claims.
    3. To bring a case within the operation of the law, there must be a transfer or conveyance of property, or some valuable interest belonging to the insolvent debtor, in view of his insolvency, to be held by the person taking it for the benefit of some one or more of the creditors of the debtor, other than himself.
    4. An assignment by way of mortgage may effect such transfer; and in such case, the mortgagee becomes a trustee for such creditor or creditors, and liable to account to him, or them, for the interest so received.
    5. Where such interest is received by any species of conveyance, binding the recipient, either expressly or by necessary implication, to account in chancery to any creditor of the assignor, the statute enlarges the trust and makes it inure to the benefit of all liis creditors, and distributes the fund to all, in proportion to their respective demands.
    6. If the assignee, in such case, is made by the terms of the instrument, or by necessary implication, a trustee for any one or more of the creditors, he becomes of necessity, by force of the statute, a trustee for all, and in respect to all the property transferred by it.

      1. As therefore, the mortgagees in this case were made trustees for the other creditors named, the law has made them trustees for all the creditors of the mortgagor.
    8. Whether the description of the debts and liabilities referred to in this condition of the mortgage is not too vague and uncertain to sustain it as a valid lien, if no other objection existed — Queere?
    *Bill of review; reserved in the district court of Butler county.

      The original bill was filed by the complainants, in the court of ■common pleas of Butler county, in 1853. It prayed that a certain mortgage, executed by Daniel Leiby to Joseph, Jacob, and George Leiby, on certain real estate at Middletown, Butler county, might be postponed or set aside, and the property so mortgaged sold for the payment of judgment liens and the general benefit of creditors. The petition represented that the complainants recovered said judgments in the years 1848-9, against Daniel Leiby and BE. P. Clough ; that BL. P. Clough had no property out of which the judgments could be made, and that levies had been made upon the property in Butler county, and also upon certain real estate owned by Daniel Leiby, in the city of Cincinnati; that the Cincinnati property was mortgaged by Leiby to Gardner Phipps, one of the defendants, on the 20th of October, 1847, to secure the payment of three promissory notes, each for the sum of $2,387.49 ; that Phipps had instituted a suit in Hamilton county and obtained a decree, by virtue of which the said property had been sold at a great sacrifice to said Phipps; and that the proceeds of said sale were applied, first, to discharge the amount found due to Phipps by the decree, and the residue directed to be paid to George Leiby, Joseph Leiby, and Jacob Leiby, upon a certain pretended mortgage given by Daniel Leiby to them, dated June 3, 1848; that complainants were not made parties defendants to the proceedings in Hamilton county, although most of them had a subsisting levy upon the said'premises; that they knew nothing of the said proceeding until after the sale, and that they claim not to be prejudiced thereby ; that the mortgage given to George, Joseph, and Jacob Leiby, was without consideration, and for the purpose of defrauding complainants and other creditors of Daniel Leiby; and that the mortgage did ■*not sufficiently describe the said premises, and was not legal notice to the creditors who levied upon the said premises.
    The complainants further stated, that on the 3d day of June, 1848, Daniel Leiby executed a certain other mortgage to George, Jacob, and Joseph Leiby, by which, in consideration of several thousand dollars pretended to be paid, he conveyed to them some pretended interest in certain real estate, by the following desorption : “All that certain.real estate, to wit — all the real estate owned and held by the said Daniel Leiby, in the town of Middletown, in the county of Butler, and State of Ohio, and being the same conveyed by Abner Enoch to said Daniel Leiby, and by George Leiby to said Daniel Leiby; also all the real estate owned and held by said Daniel Leiby, in common with other persons, being the interest of said Daniel therein, in said town of Middletown, and all the equitable title of said Daniel Leiby, in his mill property at Middletown aforesaid, held by said Leiby under contract.” The bill then states that, by virtue of the said mortgage, George, Jacob, and Joseph Leiby pretend to have a prior lien upon the property levied upon by complainants, in the county of Butler; and complainants claim that said mortgage is void lor uncertainty and indefiniteness of description, and deny that it constituted.any'notice to them of its being a lien on said property levied on, or that they had notice otherwise of that fact. They also claimed that the •mortgage was void for the uncertainty of its condition, inasmuch as it recited that George, Jacob, and Joseph Leiby were indorsers and security for Daniel Leiby, in divers sums of money and debts, due and to become due, but did not state the amount for which the mortgagees were security; nor to whom the same, or any part, was due ; nor the nature of the security; nor any other fact by which a creditor of Daniel Leiby’s could ascertain the validity of the mortgage lien. They further insisted that, if held valid, the mortgage must be, in equity, construed to be an assignment in trust for the benefit of all the creditors of said Daniel Leiby.
    *In the answer, the respondents, George, Jacob, and Joseph Leiby, deny that they received any surplus under the foreclosure made by Phipps, on the property in Cincinnati; and they also deny that the mortgage made to them by Daniel upon said property, was without consideration, and for the purpose of defrauding and delaying creditors.
    Respondents set forth, that the consideration for the mortgages was the liability of the said George, Jacob, and Joseph Leiby for the sum of $8,188, besides interest, incurred by them as indorsers and securities for Daniel Leiby. Gardner Phipps, in his separate answer, stated that the mortgage given to him by Daniel Leiby, upon the property in Cincinnati, was to secure the payment of $7,162.47, money before the date of the mortgage loaned by him to the mortgagor; that the premises were then incumbered by a mortgage to the Ohio Life and Trust Company, which respondent was compelled to redeem; that complainants were made parties and duly served with process, and that when the property was sold under the decree, it was purchased by him for $6,196 — out of which tho Trust Company’s lien of $1,105 was paid, together with the costs of suit, and the residue applied upon the mortgage of the purchaser; and that no part of the balance remaining due on the mortgage has since been paid.
    At the term of the Butler county common pleas, April, 1852, the-cause was heard. The court found that the lien of Gardner Phipps upon the premises in Cincinnati was the prior lien; that the proceeds of the sale of said premises had all been distributed, and could not be reached. And they further found, that the mortgage given-to George, Jacob, and Joseph Leiby, covered all the real estate held by Daniel Leiby in Butler county; and that it was an assignment by said Daniel, in trust, in contemplation of insolvency, and with a design to cover George, Jacob, and Joseph Leiby, John Shafer; Isaac Gardner, Gustavus W. Wampler, Samuel Lucas, and Aaron Russell,, creditors of the said Daniel Leiby; and that it ought, in equity, to inure to the benefit of all the ^creditors of Daniel Leiby, according to the amount of their claims, respectively.
    The cause was carried to the district court, which found that the mortgage upon tho property in Butler county was made in good faith, and valid; and that it gaye a prior lien upon the premises to-George, Jacob, and Joseph Leiby, John Shafer,.etc. The complainants then prefered this bill of review, which was reserved in the district court.

      Thos. Milliken, for complainants, made the following points:
    I. That the mortgage is an assignment in contemplation of insolvency, with the design to prefer certain creditors to the exclusion of others. George, Joseph, and Jacob Leiby are the only grantees; and, after condition broken, Wampler, Shafer, Lucas, Gardner, and Russell, intended to be secured, could not have maintained an ejectment, nor have filed a bill to foreclose the mortgage. Their only remedy would be to file a bill in chancery to compel the grantees in the mortgage to execute the trust — to require them to foreclose the mortgage. Mitchell v. Gazzam and others, 12 Ohio, 335; Doremus and others v. O’Harra and others, 1 Ohio St. 45; Atkinson v. Tomlinson and others, 1 Ib. 241.
    II. That Daniel Leiby did not convey his property to his brothers for the sole purpose of securing their debts; but went further,, and interposed his brothers as trustees, to prefer creditors. Pas-sett & Co. v. Traber, 20 Ohio, 545; Brown et al. v. Webb, 20 Ib. 389.

      Morris, Tilden, Rairden & Curwen, submitted tbe following propositions, and cited the following cases:
    I. A mortgage is not an assignment; a mortgage creates a lien ■only in favor of the mortgagee *. Bates v. Coe, 10 Conn. 294; Henshaw v. Sumner, 23 Pick. 446; Low v. Wyman, 6 N. H. 536;
    Barker v. Hall, 13 Ib. 289; Atkinson v. Tomlinson, 1 Ohio St. 237; Fassett v. Traber, 20 Ohio, 540.
    II. There must be an absolute, unconditional, irredeemable conveyance of the legal title; a parting by the debtor of all his interest, legal and equitable, in, and of all his power of control over, the •specific property; a creation of a fund set apart by his act, and appropriated specifically by him to the payment- of his debts, and untrammeled by any conditions that would delay that appropriation, or secure any advantages to the assignor. There must be an ■assignment.

    III. The assignment must be coupled with a trust to pay creditors other than the assignee. A conveyance to a creditor, in payment of a debt, is not forbidden by the statute. This trust must be created in express terms, as in Mitchell v. Gazzam, to pay “such ■other debts of the assignor as Mitchell might prefer;” or it must be necessarily implied as matter of law, from the circumstances; .as, where the conveyance must be treated either as a trust, or as a fraud, as in Doremus v. O’Harra, where the grantee held a judgment in his own name, in which he had no real interest, and took an assignment of notes and accounts, to be applied to the payment of that judgment.
    IY. The assignment must be in trust to pay some of the assign- •or’s creditors, and made at a time when he contemplates impending insolvency.
   Ranney, J.

It is claimed, on the part of the complainants, that ■the mortgage made by Daniel Leiby to George, Jacob, and Joseph Leiby. brings the case within the provisions of section 3 of the act of March 14, 1838 (Swan’s Stat. 717), relating to assignments of property by insolvent debtors, in trust, with the design of preferring some creditors to the exclusion of others; and that, in accordance with its provisions, the avails of the mortgaged property should be divided, pro rata, among all the creditors of Daniel Leiby. The statute provides that “ all Assignments of property in trust, which shall be made by debtors to trustees, in contemplation of insolvency, with the design to prefer one or more creditors to-the exclusion of others, shall be held to inure to the benefit of all the creditors, in proportion to their respective demands.”

The condition of this mortgage is as follows:

“ Provided, nevertheless, and this deed is on this condition, to-wit: Whereas, the said George Leiby, Jacob Leiby, and Joseph Leiby are indorsers and security for the said Daniel Leiby, in divers sums of money and debts, due and to become due from said Daniel Leiby to divers persons. Now, if the said Daniel Leiby, his heirs or assigns, shall well and truly pay, or cause to be paid, the said debts and sums of money as aforesaid, amounting to about the sum of seven thousand dollars, and shall also pay to Dr. Wampler, John Shafer, Samuel Lucas, Isaac Gardner, and Aaron Eussell, all of Butler county, Ohio, the several sums of money owing by the said Daniel Leiby to them; then these presents shall be void and of no effect; otherwise, to be and remain in full force and virtue in law and equity.”

That Daniel Leiby was insolvent at the time of its execution,, and that it was designed to give the persons named in the condition a preferred lien upon nearly all the property he held, are not controverted facts. But it is very confidently claimed that a mortgage is not an assignment within the meaning of this act, and is in no way governed or affected by it; that a mortgage creates a mere lien upon the property mortgaged, and not a conveyance of it, and that the mortgagee is, in no just sense, a trustee, even for-other creditors whose debts are secured by it. In support of these positions, the following cases are relied upon: Bates v. Coe, 10 Conn. 294; Henshaw v. Sumner, 23 Pick. 446; Low v. Wyman, 8 N. H. 536; Barker v. Hall, 13 Ib. 298.

It is evident the case depends upon the solution of two questions : Was the mortgage, in substance and legal effect, an Assignment, within the purview of this act; and if so, did it invest the mortgagees with a valuable interest to be held for the benefit of a part only of the insolvent debtor’s creditors? It is now well settled that the statute does not absolutely disable the insolvent debtor from using his property for the purpose of paying or securing individual creditors, while he leaves others unprovided for. This was so hold in the early case of Hull v. Jeffrey, 8 Ohio, 390; and although some doubt was thrown over the subject by the ■case of Mitchell v. Gazzam, 12 Ohio, 315, it has been entirely removed by the subsequent cases. In these cases it has been determined that the statute does not affect a mortgage, given by an insolvent debtor, to secure the debt of one of his creditoi's, or to indemnify him against a liability, by indorsement or otherwise, assumed for the benefit of the debtor; although it may have the effect-to prefer such creditor, and deprive others of the ability to ■obtain satisfaction of their claims. Fassett v. Traber, 20 Ohio, 540; Doremus v. O’Harra, 1 Ohio St. 45; Atkinson v. Tomlinson, 1 Ib. 237.

This statute was not designed to supply the place of a bankrupt ■or insolvent law, by compelling an equal distribution of the property of an insolvent debtor among his creditors ; and the attempt to do so, by preventing him from using it in the payment or security of particular creditors, would have been little less than absurd, while it was confessedly within their power to obtain the ■same preference, by liens or levies, upon judgments confessed by him. Such a construction of the statute finds no warrant in its ■language, or the objects and purposes for which it was enacted.

To bring a case within the operation -of the law, there must be a transfer or conveyance of property, or some valuable interest belonging to the insolvent debtor, in view of his insolvency, to be held by the person taking it, for the benefit of some one or more of the creditors of the debtor other than himself.

But we are clearly of opinion that an assignment, by way of mortgage, may affect such transfer; and in such case the mort*gagee becomes a trustee for such creditor or creditors, and liable to account to him or them for the interest so received. In no one of the' cases decided in this state has this been doubted. On the contrary, it has been taken for granted; and where mortgages have been supported, instead of the short and conclusive answer being given that the instrument employed was not within the statute, the court hasamiformly rested its judgment upon the solid reason that the mortgagee was not made a trustee for any other creditor. In exact propriety of language, it is very true a mortgage is not an assignment; nor when the same strictness is applied is an absolute conveyance of real property an assignment. But we are not construing a penal statute. This statute is of the most beneficial character, and the uniform language of the court has been, that it ought to receive a most liberal construction. It promotes justice and equity, by compelling an equal distribution of the effects of an insolvent debtor among those equally entitled. It permits every creditor of such a debtor to reap the rewards of his diligence, where he does no more than to secure himself, but denies him the right to stand between the insolvent and some of his ■other creditors, and secure them a preference to the injury of those not provided for. It allows the debtor to use his property for the payment or security of any of his debts; but the moment he attempts to create a trust, with a preference for any of his creditors, ■by surrendering any of his property in any form, the statute steps in and declares it a trust for all. As soon as he puts any portion of his property beyond his power for such a purpose, the law deprives him of all ability to direct or control its ultimate destination. It deprived him of this power because it was found to be mischievous and unjust; and as the statute was passed to furnish the remedy, it should be so construed as to make it effectual. This can only be done by looking at its spirit and purpose, and holding cases falling within the mischief, intended to be remedied, .to be within the act.

If, then, the mischief to be suppressed was the power that ^insolvent debtors before had of directing the application of. trust'funds created by them, so as to secure preferences among their creditors, how can it make any difference in what manner the fund is created? That a mortgage is just as effectual as an absolute deed to create such a fund, just as fully disposes of the debtor’s property, and-secures the same inequitable preference to the favored creditors, and works the same wrong to those not preferred, can not be doubted. It could make no possible difference, either to the preferred creditors or those unprovided for, whether the debtor’s property was appropriated in the one way or the other, while the •debtor’s power over the distribution of the' fund, by simply changing the form of the instrument, would remain wholly unimpaired. With such a construction, it is not too much to say the statute is a perfect nullity. To give it such a construction is to suppose the legislature absurdly attempting to suppress a mischief in one form and leaving another, equally convenient and effectual, in which it might, with impunity, be accomplished.

Wo do not deem it necessary to enter into any extended examination of the nature and effect of the mortgage deed, or of the-respective interests of mortgagor'and mortgagee in the property. It is enough that it enables the debtor to create a trust fund, in the hands of the mortgagee, for the benefit of some of his creditors to the exclusion of others, and that this is precisely what the legislature intended to deprive him of the power to do. But it is incorrect to say, that a mortgage does no more than to create a mere lien upon the property. It’operates a conveyance of the estate, by way of pledge or security for the debt, and gives to the mortgagee the benefit of all the doctrines applicable to bona fide purchasers. 3 Kent’s Com. 129. Eor a long time the mortgagee was only known as the owner, in courts of law; the rights of the mortgagor were only recognized in courts of equity. By the gradual adoption however, by the courts of law, of the rational and just principles acted upon in equity, a harmonious *system has been constructed; and a mortgage is now treated, in both courts, as a mere security for the debt, and the mortgagee is permitted to use the legal title only for the purposo of making effectual such security.

It was with this view of the nature and character of a mortgage deed, that the case of Bates v. Coe, was decided. The statute of Connecticut, which, it was claimed, avoided the mortgage, provided that all conveyances and assignments in trust, made by debtors in failing circumstances, should be adjudged fraudulent and void as against their creditors, unless made for the benefit of all of them. The mortgage in quession was made to a single creditor, and to secure a debt due to him. The court said the statute did not prohibit a mortgage, and that the conveyance was not in trust. The last position most clearly justified the judgment; and it may well be that the first is also tenable, in view of a statute that annulled the conveyance, and still have but a very remote bearing upon one like ours, which neither prohibits nor interferes with the transfer, but only acts upon the trust fund created by it; which yields to the debtor the power to make -the transfer, out of which the trust fund is to arise, but simply denies him the right to confine its benefits to a part only- of his creditors, and makes it inure to the benefit of all. The state of facts upon which the case of Heushaw v. Sumner was decided, is in no material respect different from that of Bates v. Coe, and the statute of Massachusetts is substantially the same as that of Connecticut. The court held,, that no trust for creditors was created by the mortgage, taken to-secure the debt of the mortgagee; but it is nowhere intimated,, that a mortgage given to secure the debts of creditors, other than the mortgagee, might not fall within the statute. On the contrary, they carefully guard themselves upon that point by saying, that “ there was no reservation or appropriation of any portion of the mortgaged property, or its proceeds, to the use of any other individual than the mortgagees and mortgagor, or those who might subsequently acquire his *right.” The cases cited from New EAmpshire require no additional reinark.

After a very careful consideration of the subject in all its bearings, we are unanimously of the opinion that our statute requires us to hold that when any valuable interest of the insolvent debtor is transferred by any species of conveyance binding the recipient, either expressly or by necessary implication, to account in chancery to any creditor of the assignor, the statute enlarges the trust and makes it inure to the benefit- of all his creditors, and distributes the-fund to all, in proportion to their respective demands.

As this mortgage was given, and the lien upon the debtor’s property created, not only for the security of the mortgagees, but also-of sundry other creditors of the mortgagor, it unquestionably falls-directly within the principle stated, and subjects the mortgagees, who are invested with the legal title, to the liability of accounting, with the other creditors named, for a portion of the proceeds-arising from a sale of the mortgaged property, whenever it may be made.

But it is claimed that the mortgage should be upheld as a valid security, so far as the mortgagees are concerned, whatever may be its character as to the other creditors named in it. We are of a different opinion. By consenting to become the recipients of this interest for the benefit of other creditors, they have voluntarily taken upon themselves the obligation of trustees for the persons-named by the debtor, and when that is the case, the statute compels them to become trustees for all his creditors. And we are of opinion, that whenever the assignee is made- by the terms of the instrument, or by necessary implication, a trustee for any one or more of the creditors, he becomes of necessity, by force of the statute, a trustee for all, and in respect to all the property transferred by it.

The case of Perry v. Holden, 22 Pick. 269, is most express and decisive upon this point.

*In that case, the persons claiming the property had taken a mortgage, for the security of their own debt, of a part of the debtor’s property; and a few hours later, a general assignment of all his property, for the benefit of all his creditors. The court held that the two instruments must be taken and construed together, as parts of the same transaction, and that both were void as against an attaching creditor; — the assignment, because the mortgage to which it was thus attached, and of which it became a part, created a preference; and the mortgage, because it could not be considered as an independent transaction, but as part of the assignment. If two separate instruments, resting in part upon distinct property, could be thus drawn together, and the fate of the one made to depend upon that of the other, and, indeed the one used to destroy the other, it would seem to be quite impossible to affect a separation, in the legal effect of the same instrument, covering the same identical property,- and designed by the parties to effect one and the same purpose. Neither justice nor public policy require the attempt. If men see fit to lend themselves to enable an insolvent debtor to give a preference to some of his creditors to the certain injury of others, they can not well complain that they are not as well off as though they had not made the attempt to effect the injustice.

The view we have taken of this case makes it unnecessary to •consider another objection taken to the mortgage, that it is void because of the uncertainty as to the amount of the debts referred to in the condition; and we therefore express no opinion upon that •question.

The decree of the district court is reversed, and the cause remanded for further proceedings.


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    *Joseph Bowry & Sons et al. v. Odell & Brother et al.
    A lien on property, subject to levy on execution, Tvas not obtained by filing a bill, under the act of February 25, 1848, amendatory of the chancery practice act of 1831 (46 Ohio L. 96); therefore, such property, when not in the hands of a receiver, might be taken on the executions of third persons, notwithstanding the pendency of such a bill.
    'The pendency of an action at law was indispensable to authorize the filing of such a bill.

      Beserved in the district court of Montgomery county.
    The bill, which was filed November 28, 1848, represents that complainants had, on that day, commenced an action in the court of common pleas against Odell & Brother, on a bill of exchange, and also on an'account for goods sold, etc., and that said suit was then pending; further, that Odell & Brother were about to dispose of their stock of goods, consisting in part of goods bought of complainants, with intent to delay and hinder the collection of their said debt, and that the defendants had no other property, etc. The bill further states the facts upon which their belief is founded, and j>rays that the said Odell & Brother might be enjoined from any disposition of their property, credits, or effects, inconsistent with the security of complainants. The injunction was allowed by the court of common pleas, then in session. The writ was issued on the 29th of November, and served the same day. On the 30th of November, the defendants filed their answers, and moved the court to dissolve the injunction. The answers admitted the indebtedness charged in the bill, but denied that they were about to dispose of their stock of goods to hinder or delay complainants in the collection of their debts; and deny that they have no other property than their stock of goods, and averred that they have and own a bindery, worth §300, and *a wagon and horses, worth at least $400, in addition to their stock of goods, which they valued at about $3,000. On the 16th of December, the motion to dissolve the injunction was overruled. At the same term, the defendants produced, by their attorneys, three warrants of attorney, executed by Odell & Brother, to confess judgments, as follows : one in favor of E. O. Goodman, for $864.56, purporting to have been executed September 20, 1848; one in favor of Parrott & Clegg, for $147.54; and one in favor of James Odell, Sen., for $500. Upon these warrants, judgments were entered against the defendants, and on the 29th of December, the plaintiffs, in said judgments, had execution issued thereon, which were levied upon the stock of goods, bindery,, and wagon and horses aforesaid. These were sold by the sheriff, realizing the sum of $1,386.
    At April term, 1849, complainants obtained a judgment on the-claim mentioned in the bill, in the action which had been commenced thereon, for $271.91. On this execution was issued, and returned by the sheriff, “no goods, chattels, lands, or tenements whereon to levy.” In May, 1849, complainants filed a motion for the distribution of the proceeds of the sale of the effects, levied on by virtue of the former executions, which, after argument, ttw? court overruled. At the August term, 1849, complainants obtained a rule, calling upon the defendants to show cause why an attachment should not issue against them for violating the injunction. Answers having been filed, the rule was discharged. On the 29th of November, 1850, complainants filed a supplemental bill, making E. O. Goodman, Parrott & Clegg, and James Odell, Son., defendants, and praying a decree against them for so much of the proceeds of said sale as will satisfy the judgment and costs recovered against Odell & Brother. The defendants demurred. The demurrer was overruled, and the defendants answered.
    At the term of November, 1852, the court entered a decree in favor of the complainants, against E. O. Goodman, for 5188.26; ^against James Odell, Sen., for 5109.25; and against Parrott & Clegg,for 535.20 — making the sum found to be due to the complainants 5339.91. From this decree the defendants appealed, and the district court reserved the case.

      Lowe & Forsyth, for complainants,
    contended that the injunction was the proper remedy, and the only available one by which complainants might secure their claim; that complainants had, by their bill, acquired an equitable lien upon the goods of the debtor, which was prior to the lien of a subsequent judgment; that the statute authorizes the issuing of an injunction to restrain the defendant in the suit at law from disposing of his property, as well as those having his property in custody. Cited vol. 5 Western Law Jour. 467; Gurney v. Tannenwald, 18 Ohio, 481.

      F. W. Davis, for defendants,
    advanced the following propositions: No suit was pending when the bill was filed, the action at-law not having been commenced until the day after the filing of the bill. The bill is defective, in not sotting forth sufficient, grounds for the injunction. The affidavit is insufficient. The complainants obtained no prior lien by virtue of the original bill.
   Thurman, C. J.

As the goods mentioned in the bill have been sold since it was filed, upon the executions of certain of the defendants, the bill must be dismissed for want of a subject for a decree to operate upon, unless the complainants, by filing their’ bill, obtained a lien preferable to those acquired by the levies of fhe executions. If they did, they had a right to be first paid out ■of the proceeds of the sales, and are entitled to a decree for the sum duo them, against the execution creditors, who received the whole proceeds, the proceeds being sufficient to satisfy the complainants’ claim.

The filing of a creditor’s bill and service of process after a ^judgment at law, under the 16th section of the chancery practice act of 1831 (Swan’s Stat., old ed. 704), gave a lien by the -express terms of that section ; and even without an express provision to that effect, a lien would thereby have been created, pirobably, by the known rules and usages of equity. Hence the existence of such a lien has been frequently recognized by our courts. .Douglas v. Huston et al., 6 Ohio, 156; Miers & Coulson v. Zanesville & Maysville Turnpike Road Co., 13 Ohio, 197.

But it has never been held, so far as we are advised, that a lien upon property subject to sale upon execution', was created by the filing of a bill under the 15th section of the act, or under the amendatory act of 1848. 46 Ohio L. 96.

Nor are we able to perceive any sufficient ground upon which-to claim such a lion. It finds no support in the usages of courts -of chancery, for, independent of statutory provisions, the proceeding is unknown to those courts. A bill to reach propoei'ty not liable to legal process, and subject it to the payment of a judgment, is now a well known equitable remedy, however much it may once have been questioned; but not so a bill to enjoin a disposition of -effects until a judgment can be obtained. The former needs no statute to support it; Bayard v. Hoffman, 4 Johns. Ch. 450; but the latter is the mere creature of the statute. Looking to the .statute, then, we find no provision in it giving a lien in a case like the present. The object seems to have been to restrain a disposition of property until a judgment could be obtained and an execution be levied upon it. It was not intended to dispense with an •execution where the property was subject to that process. It was not intended that a creditor, by filing a bill like that before us, should be able to tie up) all a debtor’s property, so that no other creditor could reach it during the pendency of the bill. Such a provision would be extremely pernicious, and open a wide door to •collusion and fraud.

We are therefore of opinion that the complainants, by filing their bill, obtained no lien upon the goods in question; that they *were well taken upon the defendants’ execution, and the execution creditors are entitled to their proceeds.

It may be well to remark, in order to guard against misapprehension, that we express no opinion upon the question, whether a lien' upon equities, or choses in action not subject to execution at law, might be obtained by filing a bill under section 15 of the act of 1831, or the act of 1848. Upon such a bill a decree might be taken, after judgment recovered, subjecting such equities or choses in action, to its payment, as upon a bill filed under section 16. Gurney v. Tannenwald, 18 Ohio, 486. Consequently, there is much reason, in such a case, for claiming a lien; but as the question is not before ub, we do not decide it.

There is another objection equally fatal to the complainants’ case.. Their bill was filed and injunction obtained before their action at-law "was commenced. But by the express provisions of the statute, the pendency of an action is indispensable to authorize the filing of such a bill. A common-law action can not be said to be pending-before mesne process is issued, and there is nothing in the proofs before us to show that process, in the complainants’ action.at law, was issued before Novemb’er 29, Their bill was filed and injunction allowed November 28.

It being unnecessary to decide the other questions argued by-counsel, we express no opinion upon them.

Bill dismissed.


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    Reuben Perkins v. Margaret A. Mobley.
    "The mother of a bastard child, after the reputed father has been recognized by a justice of the peace, on a complaint instituted by her, under the act for the maintenance and support of illegitimate children, has no power to settle for or release his liability.
    'The liability of the father is created by the statute, and designed for the security of the public against the support of the child, by compelling him to make the necessary provision therefor; and can only be settled by the mother, while the complaint is pending before the justice, and upon giving ^security to the township in which she resides against all liability for such support.
    Jt is not competent to inquire of the general reputation of a witness sought to be impeached; but the inquiry must be confined to the reputation of the witness for truth and veracity.

      Petition in error; reserved in the district court of Belmont county.
    The object of the petition is to reverse a judgment of the court of common pleas of the same county. The original proceedings were under the bastardy act. The defendant was recognized by the justice to the court of common pleas; and after he had filed his plea of not guilty, and the case was continued for trial, in cdnsid•eration of the payment of one hundred dollars, a paper, of which the following is a copy, was executed:
    “State of Ohio. Belmont county, |
    “ Court of Common Pleas. j
    “Margaret Mobley v. Reuben Perkins.
    “Suit pending under the bastardy act. The above case is settled; and I hereby authorize the same to be dismissed at my cost, and that I will not appear and further prosecute the same. This 19th day of September, 1853.
    (Signed,) “Margaret Mobley.”
    It was refused to dismiss the case, in pursuance of this settlement, and a trial insisted upon. The defendant, therefore, filed a plea of puis darrein continuance, setting up the above settlement .and payment of one hundred dollars, in bar of the further prosecution of the case; to which plea the defendant in error demurred, and the court of common pleas sustained the demurrer, for the ■cause that the complainant, under the bastardy act, could not compromise or release the cause of action. This is assigned as the first cause of error.
    The cause was then tried by a jury; and during the progress of the trial, the .plaintiff was examined as a witness, and, as in all such cases, was the principal witness. Samuel A. Talbot was ^called, on the part of the defendant, to impeach the charneter of the plaintiff. He testified that he lived in the plaintiff’s neighborhood, and had known her for several years. The defendant, by his attorney, then asked him the following question: “Are you acquainted with the general reputation of the plaintiff among her neighbors; and if so, what is that reputation?” The counsel for the plaintiff objected to this question, on the ground that it went to general reputation; and the court sustained the objection, and refused the answer to be given. To whieh ruling of the court the defendant and which is as the second cause of error. The jury returned a verdict of guilty; and a motion was made for a new trial, and overruled.
    The defendant filed his petition in error in the district court; assigning for error the causes aforesaid.

      Miller Pennington., for plaintiff in error, made the following points r
    I. The statute clearly makes it competent for the complainant to settle the case, so far as she has any claim. It seems to give a double remedy: 1. Compensation for the injury; 2. Indemnity ta the township against the maintenance of the child. The plaintiff’s settlement, or neglect to bring a suit, or prosecute a suit to-final judgment, does not, of course, prevent the trustees of the township from commencing or prosecuting a suit. She is liable for costs in case of defeat, and receives the benefit of the judgment in ber own right in the event of success. Would it be doubted that,, after judgment, she would have the right to release the defendant from its payment, in whole or in part? Would not her receipt to Mm, in satisfaction of the judgment, be binding?
    II. It is said that the object of the statute is to protect the township against the support of bastard children. If this be so, the power is vested in the trustees, and no act of the complainant •can interfere with it. All that is claimed is, that the plaintiff *herself, after settlement, should not have been allowed to take any further steps in the prosecution of the case.
    III. The defendant may, from motives of policy, although entirely innocent, prefer to settle with the complainant on the best terms he can. It is said the law abhors litigation and favors compromises.
    IY. The court erred in refusing to admit the testimony of Talbot. 1 Greenl. Ev., sec. 461; Bucklin v. State, 20 Ohio, 24, 44; Wike v. Lightner, 11 S. & R. 198 ; Rex v. Bisphan, 4 C. & P. 392 ; Hume v. Scott, 3 Marsh. 260; 3 Phil. 786, Cow. & Hill’s Notes; 1 Hall (N. Y.) C. P. 558. The old rule has always been perplexing, and the form of questions under it has given rise to great confusion in the-mind of almost every witness to whom they were propounded.
    That which affects the credibility of the witness is material to the issue. Will it be said that the jury would place the same estimate upon the testimony of a witness whose general reputation was bad on account of gross immorality, as they would in a witness-who was unassailable ? If they would not, then the testimony is relevant and should be admitted.

      C. C. Carroll, for defendant, made the following points:
    1. At common law, no one was bound for the support of a bastard. The object of the statute is not to give damages to the mother or to punish the father, but to enforce the moral duty of the father to support the child. Natural justice requires him to do it. 13 Ohio, 245; Wright, 565 ; 1 Black. Com. 458; 2 Kent’s Com. 222.
    II. The whole purpose of the bastardy statutes is to furnish maintenance for the child and indemnity for the public against liability for its support. Our own decisions fully support this position. 9 Ohio, 149 ; 13 Ib. 244; Wright, 464, 564.
    III. The money to be paid is not a debt due to the mother, but only a charge for maintenance. Same authorities.
    -qy. It is not, therefore, within the power of the mother to discharge the obligation.
    Y. It would defeat the leading object of the statute and deprive the public of all security if she had such power.
    yi. The question of evidence was properly ruled. 2 Ohio, 18; 5 Ib. 226; 6 Black. 56; 8 Leigh, 542; 7 Black. 84; 1 Greenl. Ev., sec. 461; 13 Johns. 504; Cow. & Hill’s Notes, 767.
   Ranney, J.

A reversal of this judgment is urged upon two grounds: 1. The refusal of the court below to give effect to the accord and satisfaction, interposed by way of plea puis darrein continuance ; and 2. In refusing to admit evidence of the general bad character of the prosecuting witness.

1. A moment’s attention to the object and purposes of the proceeding, authorized by the act for the maintenance and support of illegitimate children, will show that no error was committed in sustaining the demurrer to the plea puis darrein. This plea alleged a settlement with the mother of the bastard child, while the cause was pending in the court of common pleas, and the payment to her of the sum agreed to be received in satisfaction. If the suit could be said to be prosecuted for her benefit, and if the remedy was designed to afford her redress, it would seem clear that she could settle the controversy, and effectually bar herself by receiving such satisfaction as she had agreed to accept. But nothing could be further from the purpose of the statute. The law gives her no remedy against her guilty paramour. It regards them as equally in fault, and is only solicitous to provide for the support of the innocent offspring of their guilt. Without the statute, the father could not be reached; his liability is created by the statute, rests upon the moral obligation ]ie is under to support his child; and the whole object of the proceeding is answered when the paternity of the child is judicially ascertained, and this moral duty is enforced in such manner as *to secure the public against the liability of providing for the support of the child. This great leading purpose of the law must be kept constantly in view; and no power in the mother over the proceeding, inconsistent with the right of the child to this support from the father, and consequent indemnity to the public, can be recognized to exist.

In many of the states, begetting a bastard child is made an offense, ■and punished by indictment; but in this state it is not so. The proceeding, here is not strictly civil or criminal. It neither puniishes a crime, nor gives redress for á civil injury. It is simply a ■statutory remedy to enforce a high moral duty; and the moral duty ds enforced to prevent a burden, which ought to rest upon the father, ¡from falling upon the public. It may be instituted on the complaint ■of the mother, or if she neglects it, or fails to prosecute to effect, by :the proper public authorities. At one point in the proceeding a ■settlement may be made. If, when the accused is brought before the justice, he pays or secures to be paid to the complainant, such ■gum of money or property as she may agree to receive in full satisfaction, and shall further give bond that the child shall not become .-a township charge upon any township in this state, the justice is .authorized to discharge him from custody on his paying the costs. But to prevent all imposition, the agreement must be made or acknowledged by both parties, in the presence of the justice, who is ■required to make a memorandum thereof upon his docket. No ■power whatever is given to the complainant to impair the public ■security in this settlement. It can not be made until the accused has given security that the public shall not be burdened with the support of the child. If such security is not given, he must bo bound over; and when recognized, no further power is given to settle or compromise the controversy. If found guilty, he shall bo ■adjudged the reputed father'of the child, and .shall stand charged with the maintenance thereof, in such sum or sums as the court .shall order and direct, with payment of costs of prosecution ; for which he *must give security, or go into custody. It will be observed that no authority is given to take indemnity by bond, to secure the public against the support of the child, after the prosecution leaves the justice. The only indemnity afforded after that time is the sums awarded to be paid, and the stringent modes provided for their enforcement. To allow the complainant to intervene and prevent the recovery, would be to surrender all protection for the public, and to defeat the leading object of the whole statute. We are therefore of opinion, that she has no such interest in the money, required to bo awarded against the reputed father, as to enable her to release his liability before a recovery, or to discharge him from the sum awarded, after the order is made; that the statute definitely appropriates the money to the support of the child, and that it can not be diverted from that purpose. It is ordinarily, and very properly, ordered to be paid’ over to the mother, as she continues burdened with the custody and support of the child; but even this is within the sound discretion of the court, which should be exercised with a view to the best interests of the child, and the consequent protection of the public from being made chargeable with its support.

This construction of the statute is not only strongly supported, but we think necessarily follows, from the decisions made by the Supreme Court, in the cases of State v. Mitchell, Wright, 464, and Hawes v. Cooksey, 13 Ohio, 242.

2. The question of evidence, made by the second assignment, has, since the reservation of this cáse, been decided by us in accordance with the ruling of the court below. We are still satisfied with that decision, and it is now unnecessary to repeat the reasons upon which it was founded.

Judgment affirmed.