text:
    Bethel W. Hewson v. Saffin and Smith.
    In replevin, where issues are made upon different and inconsistent pleas, a general verdict for the defendants upon all is had. The jury should find, whether they base their verdict on the right of property, or the right of possession.
    Reserved in Hamilton county.
    This action was instituted to recover possession of divers articles of property enumerated in the process and declaration. The defendants pleaded: 1. Non detinet, with notice of special matter,
      2. That at the time of said detention, the goods and chattels were the property of the defendants. 3. That they were the property of James Saffin, one of the defendants. 4. That they were the property of Benjamin *Smith, the other defendant; and 5. ; That they were the property of Samuel D. Flagg. On these several pleas, issue was joined, and the cause submitted to the jury on the last circuit, in Hamilton county, and the following verdict returned: “We, the jury, find for the defendants, and assess the damages at eleven hundred and forty-one dollars and twenty-five 'Cents.”
    The counsel for the plaintiff filed a motion for a new trial: 1. Because the verdict is against the evidence. 2. That the dam•ages are excessive. They have also filed a motion nisi in arrest of judgment for insufficiency in the verdict, and ask that a venire facias de novo may be awarded. These motions were reserved ■for decision in this court.
    Storer and Spencer, for plaintiff:
    Morris and Drake, for defendants.
   Judge Wood

delivered the opinion of the court:

The motion for a new trial must be overruled. We have not the testimony which was submitted to the jury. There was much •of it, both from witnesses called to the stand and contained in -depositions which were read on the trial. This evidence has, in a great measure, faded from our recollection, and leaves us to be guided in our action by what we can call, to mind of our impressions at the time. If we do not err, the plaintiff claimed title to -the property by bill of sale from Samuel D. Flagg, and the defendants by virtue of several executions in favor of Nathan Urner and others, which they, as constables, had levied on the property while in Flagg’s possession. The judges who tried the cause, from the testimony then adduced, were left with the strong belief that the bill of sale from Flagg to the plaintiff was in fraud of creditors, and, as against them, void. If such were the fact, the defendants had the legal title to the property; and its value, with the addition of interest, from the time of the service of the writ, as shown by the evidence, was not too highly estimated by the jury.

We are, in the next place, asked to arrest the judgment for insufficiency in the verdict, and to award a venire facias de nova. Section 7 of the act regulating writs of replevin, 29 Stat. 129; enacts, “that in all cases, upon issue joined, when the jury shall find for the defendant, they shall *find whether the defendant had the right of property in the goods, or the right of possession only, at the commencement of the suit; and if they shall: find either in his favor, they shall assess such damages as they think right and proper.” Und'er this statute, the jury ought most clearly to specify the ground on which the assessment of damages is made; otherwise the court can not determine whether the damages are excessive or not. They might be excessive, if the right of possession, and not excessive, if the right of property, was found in the defendant; for, in one case, he would be divested: of the temporary use, and in the other of the property itself. In the former, he should receive damages for the detention, and, in the latter, for the full value of the property. But can this verdict, on any legal principles, be sustained ? It is a general verdict for the defendants, and finds all the issues in their favor. 1. That they did not wrongfully detain the plaintiff’s property. 2. That the goods and chattels were the property of both the defendants. 3. That they were the property of Saffin, one of the defendants. 4. That they were the property of Smith, the other defendant. 5. That they were the property of Samuel D. Flagg. Here, then, are four special issues — each inconsistent with the others — and the jury find the right of property in both of the defendants, in each and in a stranger.

These issues can not all be truly found for the defendants; such a state of things can not exist in law or ethics. What issues then are truly and what untruly found ? The verdict does not answer the inquiry, and must leave the court in doubt on which to render-judgment, for the plaintiff or defendants. The jury should pass-on all the issues made up between the parties. Their verdict-should be clear and intelligible, so that the court may ascertain* from its terms what judgment to render. 5 Ohio, 238. In Stearns v. Barrett, 1 Mass. 169,170, Judge Story says, “ If there be-a material repugnancy in the verdict, it is not competent for the-court to decide which is the truth of the case; and if it were otherwise, there is no authority to substitute its own opinion for -that of the jury. In such case, the repugnancy will be fatal. A verdict which finds two inconsistent material facts is void, and can not be a foundation for a legal judgment.” This authority is decisive of this ease. The judgment must be arrested, and a venire de novo awarded.


source: Caselaw Access Project

author: Hitchcock, J.,

license: Public Domain

text:
    *Hester West, Adm’x of John West, v. Samuel Pickesimer, otherwise called Samuel B. Hymer.
    In fixing the operation of the statute of limitations, the term “ beyond sea,” means out of the state.
    Reserved in the county of Clermont.
    This is an action of debt commenced on August 6, 1833, and in the declaration it is alleged that the indebtedness accrued on April 10, 1820.
    The defendant pleaded two pleas:
    1. The general issue.
    2. That the cause of action did not accrue at any time within six years before the commencement of the suit.
    Issue is joined upon the first plea, and to the second the plaintiff replied that the cause of action accrued before June 1, 1824, and at the time of the accruing thereof, the said John West was not a. resident of the State of Ohio, but of the State of Yirginia. That the said Hester West took letters of administration in the State-of Yirginia; and that neither the said John West during his life, nor the said Hester West since his death, were at any time withiit the State of Ohio previous to the commencement of this suit.
    To this replication the defendant demurs generally.
    Strait, for plaintiff.
    Fishback, for defendant.
   Hitchcock, J.,

delivered the opinion of the court:

The question submitted is, whether the plaintiff’s replication is-a sufficient answer to the defendant’s special plea in bar. By the-replication, the fact relied upon to avoid the statute of limitations is, that neither the plaintiff nor her intestate were ever within* •this state prior to the commencement of this suit, and it is insisted that she is within the exception of that statute. According to the decision of the court at the present term, in the case of Hazlet et al. v. Critchfield, the limitation act of 1810 must govern this case. By that act there is an exception in favor of those persons who are ■“within the age of'twenty-one years, insane, femes covert, imprisoned, or beyond sea," at the time the cause of action accrues, and they are allowed to sue at any time within the respective period specified after the disability is remov'ed. Chase’s Stat. 655.

It has been repeatedly decided by the Supreme Court of the United States, that the expressions “beyond sea,” “out of the Estate," are analogous. 3 Cranch, 174; 7 Cranch, 525; 3 Wheat. 541; 11 Wheat. 361. In conformity with these authorities, we have uniformly so held upon the circuit, when called upon ■to give a construction to our acts of limitation.

The plaintiff, by her replication, shows herself within the exception or saving clause of the statute, and is entitled to judgment ■on the demurrer.


author: Judge G-rimke

text:
    Barzilla Smith v. Rancil A. Madison.
    Hiee technical objections to an affidavit for hail are to be received with circumspection, and if not made upon the return of the process, they are to he disregarded.
    This cause was adjourned from Hamilton county.
    Fox, for plaintiff.
    Strait, for defendant.
   Judge G-rimke

stated the case, and delivered the opinion of the •court:

This is a writ of error to a judgment in the Hamilton common pleas. The suit was brought by the defendant in error against the plaintiff in error. The capias was returnable August, 1834, •and was accompanied by the following affidavit: “Rancil A. Madison, the above plaintiff, states on oath that the above defendant* B. C. Smith, is justly indebted to him in the sum of sixteen hundred dollars, and that he has sustained damage in the above suit to that amount. R. A. Madison. Sworn and subscribed this July 8, 1834, before me, Isaiah Wing, J. P.” But the writ described the defendant as Brazilla, instead of Barzilla Smith. A motion was made on February 29, 1836, to set aside the capias, on the defendant filing common bail. Did the court below err in refusing this motion ? The practice in the English courts with regard to-the form of the affidavit to hold to bail has been exceedingly fluctuating until within a few years, and this may seem remarkable,, as an act of Parliament has directed the manner in which it shall be made. In Moultley v. Richardson, 2 Burr. 1032, where the affidavit was, that defendant was indebted in such a sum as he computes it, the motion that the defendant might be discharged on ^common bail, was overruled. The court seemed to think that objections of this sort had gone far enough already. In Jennings v. Martin, 3 Burr. 1447, the affidavit was, that the defendant was indebted in such a sum as appears by agreement; it was alleged to be a settled fatal objection. Lord Mansfield said, if it was a settled point, it must be adhered to; but he confessed he was not satisfied with the reason for it. It appears that, notwithstanding the extreme nicety and strictness which had been observed, seemed to be authorized by the express words of an act of Parliament, yet that enlightened judge disapproved of it. And there is no solid reason why we should give our sanction to it. It is also contended that J. P. is not a sufficient designation of the official character of the person who took the affidavit, and that the defendant was described by a wrong Christian name. If there be anything in these objections, and it would, perhaps, not be easy to prove that there is; suffice it to say, at any rate, that the period of time which elapsed from the return of the writ to the time when the motion was made (more than eighteen months), amounts to a-waiver of any such right if it ever existed. Indeed, this is an answer to all the objections which have been made.

There is no error in the refusal of the court to entertain this-motion.


author: Judge Lane

text:
    Lyne Sterling, Jr., for the use of Minor, v. John Kious.
    The holder of a note payable to a payee named in it, or hearer, is held to he the owner prima facie, and he is not called to prove that he purchased.
    This cause was adjourned from the county of Marion upon the motion of the defendant for a new trial.
    Sterling, for plaintiff.
    Kerr, for defendant.
   Judge Lane

stated the case, and delivered the opinion of the court:

The plaintiff complains of the defendant for, that he made his promissory note, and delivered it to J. J. & S. R. Minor, thereby promising to pay to them or bearer three hundred and twenty-one dollars and fifty-six- cents and interest, on or ^before March, 1835, which period has elapsed; that the said J.- J. & S. E. Minor have delivered the same tq the plaintiff, of which the defendant had notice, by which he became liable to pay the same, and in consideration thereof promised, etc.

The case was tried by the jury upon the issue of non assumpsit, and the plaintiff produced the note, without any proof of the consideration upon which it came to his hands. The jury were instructed by the court that the production of the note was sufficient proof of his right to recover, and they rendered a verdict in his favor. The defendant moves for a new trial, because no proof of consideration for the transfer was- offered, and likewise in arrest, because the declaration contains no averment of any such consideration.

The authority to show the necessity of this averment and proof is found in 11 Ohio, 228, where it is said by the court that “ it must be stated by the plaintiff as a part of his title, and proved at the trial that the note was delivered for a valuable consideration, or acquired in the usual course of business.” In our opinion these requisitions are sufficiently satisfied in the case before us. We have examined the precedents of declarations in suits upon notes by the bearer, and find the substantial averments are contained in that before us, 3 Chit. PI. 15, 16, 29; and we hold the plaintiff producing the note is presumed to be the lawful holder, and may recover without further proof, unless it be shown that he acquired it fraudulently, or under suspicious circumstances. It would form an inconvenient and unnecessary restraint upon the negotiations of checks and notes, which are circulated like cash, to require the holder to furnish other proof than the production of the paper to enable him to sustain a suit.

Motion overruled.

Judgment for plaintiff.'


author: Judge Hitchcock

text:
    Elizabeth Cooper v. Wm. D. Cooper.
    A divorce granted in Indiana precludes an application for divorce and alimony in Ohio.
    Petition for divorce, reserved in the county of Clermont.
   Judge Hitchcock

stated the case, and delivered the opinion of the court:

The ground upon which this application for divorce is ^founded is, that the defendant has treated the petitioner with extreme cruelty; that he has willfully absented himself from her for more than three years; that he has been guilty of adultery, and that he has married another wife. The petition also discloses the fact that the defendant, who is a resident of Indiana, has applied to the proper judicial tribunal in that state, and has, by the determination of that tribunal, been divorced from the petitioner. The prayer of the petition is for divorce and alimony.

Case submitted without argument.

The question to which the attention of the court is called in the present case, arises upon the face of the petition. Before this court can proceed to dissolve a marriage contract, there must be proof that there is such a contract subsisting. If it is shown by the petitioner by proof, that there is no such contract’, there is nothing upon which the court can act. In this case, it is stated in the petition that the defendant has been divorced from the petitioner in the State of Indiana, and it is not shown but that the proceedings were perfectly regular and fair. By the statutes of Indiana, it seems that decrees for divorce in favor of one of the-parties operates as a complete dissolution of the contract, and from thenceforth both parties areas completely liberated from the obligation of the same as if it never had been solemnized. The effect of the divorce is the same as in our own state. And if, under our laws, upon the application of the husband, a divorce-should be decreed, it can not be held that a subsequent application by the wife would be sustained. It is apparent that the petitioner in this case is already freed from the obligations of the marriage contract, so far as human laws can release her; of course, there is-no ground upon which this court can interfere, and for this cause-the petition is dismissed.


author: Judge Wood

text:
    *Joseph Turk v. The State of Ohio.
    "Where an indictment contains two counts for the same offense, one good, the other defective, upon a general verdict of guilty, judgment may he given on the valid count.
    If twelve grand jurors agree in finding an indictment, it can not he invalidated hy showing misconduct of one of the fifteen jurors, nor can inquiry he made upon what grounds any one of the twelve jurors concurred in the finding.
    A plea, impeaching the conduct of a grand jury, and alleging facts in contradiction to the journal of records, can not he maintained.
    This cause was adjourned from the county of Montgomery.
    Lowe, for the state.
    Sohenok and Oing, for plaintiff in error.
   Judge Wood

stated the case, and delivered the opinion of the-court:

This is a writ of error to reverse the judgment and proceedings-of the court of .common pleas of the county, of Montgomery.

The plaintiff was indicted for an assault with intent to murder;, ¡and on being arraigned, moved the court to quash the indictment,. which motion was overruled. This decision, although'assigned for error, is abandoned by counsel.

The plaintiff then filed two special pleas in bar: 1. That the indictment was brought into court and presented by only, fourteen grand jurors, one of the panel not being present to concur in or dissent therefrom, but wholly absent from the court and his fellow-jurors.

2. That Geo. Parsons, who was one of the grand jurors by whom the presentment was made, did not examine or hear any witness, nor inquire touching either or any of the several allegations of the indictment, but concurred therein without any proof or inquest whatever.

To these special pleas the counsel for the prosecution demurred. The court of common pleas sustained the demurrer. The plaintiff in error then plead not guilty to the indictment, was tried, and convicted; a motion for a new trial was made and overruled, and the plaintiff sentenced to imprisonment in the penitentiary.

The first assignment for error, not abandoned by counsel, is that the second count in the indictment is defective in this, that it does not state with sufficient certainty on whom the assault was made. The averment reads as follows: “Jos. Turk, etc., on the first day of June, etc., one Robert Moore, in the peace, etc., then and there being, feloniously, maliciously, willfully, and unlawfully, did make an assault.” It is Robert Moore who is here averred to have made the assault, and not upon him that the assault was made. The defect is, without doubt, *a clerical omission, and although the intention of the pleader can not well be misunderstood, it is not expressed, and is, nevertheless, a fatal objection to the count. Criminal prosecutions are conducted on principles siricti juris, and the law requires the indictment or count to be certain to a certain extent, in every particular, and there must be no intendment arising on its face to the contrary. The first count in the indictment is, however, substantially lor the same offense. That count is good, and saves the prosecution ; the rule of the common law being different in criminal from what it is in civil cases, and when there is one good count in an indictment, permitting judgment to be given on that count.

The next and remaining assignment to be considered is, that the court below sustained the demurrers to the special pleas. The questions arising here are more difficult of solution, and we have not been without our doubts as to the opinion at which we have arrived. We think there are no matters pleaded which constitute a legal bar to the prosecution. Pleas in bar, says Jacob, 5 Law Diet. 179, go to the merits of' the indictment, and give a reason why the prisoner ought not to answer it at all, nor put himself upon his trial for the crime alleged. These are of four kinds: A former acquittal, a former conviction, a former attainder, or a pardon ; and the reason why pleas in bar are so limited in diversity of matter in the English courts, in criminal cases, probably arises from the fact that there, as well as here, the general issue opens the door for the introduction of any matter, which, if pleaded, would bar the prosecution. It is believed no precedent can be found in judicial history of pleas similar to these on this record. The first plea is, in substance, like the second, with this exception, that it avers fourteen grand jurors only were at any time present to inquire, find, or present the indictment. This averment is not, however, sustained by the record; the record shows that fifteen grand jurors were sworn, and found •and presented this indictment. If it be said the allegation in the ¡plea is admitted by the demurrer, the answer is, that a demurrer •only admits what is well pleaded: It does not admit that which is expressly proved otherwise by the record.

The second plea states that George Parsons, one of the grand jury, was not present at the finding of the indictment, did not •hear any witness, nor examine nor inquire touching any allegation of the indictment, but concurred without any *proof •or inquest whatever. The oath of a grand juror requires him to ■“ diligently inquire and true presentment make of all su.ch mat" ■tors and things as shall be given” him “in charge, or otherwise come to” his “knowledge, touching his present service,” etc. The grand inquest is not usually composed of men learned in law. 'They are controlled by no technical rules of evidence. They must act according to the dictates of their own judgment and discretion , and whether a fact be proved by a witness, or disclosed by a fellow-juror, or from their own knowledge exists, it is their duty to present it to the court. They ought not to act rashly, nor without sufficient ground to believe, as the accusatory tribunal, in the existence of the fact they present. The grand jury are under the direction of the court, may be instructed by the court, •and advised by the prosecuting attorney on matters of law. Of the facts, they alone must determine. The court neither keeps their consciences nor can control them in finding facts, when intending honestly to discharge their duty. The grand jury, fifteen in number, must all consult, deliberate, and inquire sufficiently to satisfy themselves of the truth of their investigation, but twelve only need concur in finding the bill. Suppose, then, a juror steps out, and on his return to his fellows is informed they have agreed to find a bill, and the testimony is disclosed to him, or he is, perhaps, in his own bosom and his conscience, satisfied, is not every requisition of the law fulfilled? We incline to that opinion. But aside from this, can these matters be reached in this way by plea in bar to the indictment? If so, it might also be alleged in bar that the grand jury had not sufficient testimony, or admitted that which was improper, and our discretion and judgment usurp the place of theirs, when they are a co-ordinate, it is true, but, so far as facts are concerned, an independent branch of the criminal tribunal's of the country.

There is, however, another and still more fatal objection to these pleas. They contradict the record; and it is a principle of law, familiar with all, that a record is proved by itself, and is of such validity that it can not be proved per notiora, and no fact can be averred against it. The record shows a grand jury found the bill of indictment on their oaths. The intendment and legal effect and presumption is, that it was found on proper evidence, with due deliberation, and by the concurrence of twelve of their number. A case might probably be imagined where the court should interfere, and would, on motion, quash *an indictment for the misconduct of the grand jury, and would punish them for a contempt of court and violation of duty. The common pleas refused to sustain a motion under such circumstances; and were the testimony embodied in a bill of exceptions, we might possibly correct such error here. But no such case is presented.

The judgment and proceedings of the common pleas are affirmed with costs.


text:
    James O. Bowles v. The State of Ohio.
    An indictment upon the general provisions of the statute, for an assault with intent to commit a rape, need not specifically characterize the person upon whom the assault was made.
    ' This case came before the court on a writ of error to the court of common pleas in the county of Montgomery, made returnable to tbe Supreme Court of the county of Franklin, and reserved for decision in bank.
    Crane and Sohenck, for plaintiff.
    Lowe, for the state.
   Judge Hitchcock

stated the case, and delivered the opinion of the court:

The record shows that the plaintiff in error, at the August term of the court of common pleas, 1836, was arraigned and tried upon an indictment containing three counts. In the first count he is charged with having committed a rape “in and upon one Eliza Johnson, a child" in the peace being. In the second count he is charged with having assaulted the same person, with intent to commit a rape. In this count the person assaulted is described as “Eliza Johnson, a childand in the third count he is charged merely with having committed an assault upon the said Eliza Johnson.

To this indictment the defendant pleaded not guilty.

The jury found that the defendant was guilty as charged in the second count of the indictment, and not guilty as charged in the first count.

After verdict the defendant moved in arrest of judgment upon the second count, of the indictment, and assigned the following reasons:

1. Because the indictment contains no ^averment negativing the excepting clause of the statute, “them, daughter or sister,” etc.

2. Because the indictment, in describing the person upon whom the offense was committed, doe's not employ the language of the statute, using the word child alone, instead of the descriptive statutory word, female child.

3. Because of general uncertainty.

This motion was overruled, and the defendant adjudged to three years’ confinement in the penitentiary.

To reverse this judgment the writ of error is brought, and the errors-assigned are in substance the same as the reasons in arrest of judgment.

The question, then, to be decided is, whether the second count of this indictment is sufficient in law. That count is in the following words: “And the grand jurors aforesaid, for the county aforesaid, upon their oath aforesaid, do further present and say that the said'James O. Bowles, late of the county aforesaid, on August 21, 1836, with force and arms, at the township of Dayton aforesaid, in the county aforesaid, in and upon the said E. Johnson, a child, in the peace of God and of the State of Ohio, then and there being, an assault did unlawfully make, and her, the said Eliza Johnson, a child, then and there did beat, wound, and ill-treat, with intent her, the said Eliza Johnson, a child aforesaid, violently, forcibly, and against her will, then and there unlawfully and feloniously to ravish and carnally know, to the great damage of her, the said Eliza Johnson, a child, as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”

In this count the offense seems to be specifically set forth, and whatever of uncertainty there is, it is fully supplied by reference to the previous part of the indictment. The principal exception taken is, that the individual upon whom the offense is committed is not described as “a female child." The legislature, in prescribing a punishment for the crime of rape, have divided the offense into two classes, and graduated the punishment accordingly. By section 4 of the act for the punishment of crimes, 29 Stat. 136, it is provided that if any person shall have carnal knowledge of his daughter or sister, forcibly and against her will, the person so offending shall be confined in the penitentiary, and kept at hard labor during *life; and by section 5, that if' any person shall have carnal knowledge of any other woman than his daughter or sister as aforesaid, forcibly and against her will; or if any male person of the age of seventeen years and upward, shall carnally know and abuse any female child under fhe age of' ten years, with or without her consent, every person so offending shall bo punished by imprisonment in the penitentiary at hard labor not more than twenty nor less than seven years. The first count of the indictment in this case is framed under the last preceding clause of the statute, and had the defendant been convicted under that count, there might be some difficulty in the case. If the intention was to indict under the last clause of section 5, it would seem to be proper to describe the person upon whonrthe offense was 'committed, as being a female child under ten years of age, and the offender as being a male person over seventeen years of age. If under the first clause, then, to describe the person upon whom the offense was committed as being other than the daughter or sister of the offender; but whether it would be indispensably necessary, it is unnecessary now to decide. The defendant was found not guilty as to the first count, and our attention is called to the second, under which he was convicted. This is framed under section 17 of the act for the punishment of crimes. 29 Stat. 138. This section enacts that if any person shall assault another with intent to commit a rape upon the person so assaulted, every person so offending shall be held guilty of a misdemeanor, and shall be punished by imprisonment in the penitentiary not more than seven nor less than three years. This is a distinct offense, no way connected with those specified in sections 4 and 5. Whether the person assaulted be the sister, or daughter, or a stranger, is immaterial ; or whether she be an adult or a child, in legal contemplation, the offense is the same. The only question is, whether a child is a person; and of this, I apprehend there can be no doubt. In truth, it was altogether unnecessary to describe the person assaulted as being a child, and this part of the indictment might be regarded as surplusage. It does not, however, vitiate the proceedings.

The judgment of the court of common pleas is affirmed, with costs.


text:
    *Charles A. Repplier and others v. Orrich and Pendleton, Tibbatts, Morris, and Gross.
    An assignment of a debtor’s effects, for the benefit of such creditors as may come in within one year and agree to take a pro rata proportion, is invalid.
    This was a suit in chancery, reserved from Hamilton county.
    Starr and Chester, for plaintiff.
    Morris and Drake, for defendants.
   Judge Lane

stated the caso and delivered the opinion of the court.

Orrich, one of the firm of Orrich & Pendleton, in settling the accounts of the firm, acquired three notes of hand from Gross, indorsed by Tibbatts, which, on May 5, 1834, he assigned to Morris, in trust, to pay the proceeds of one, when collected, in discharge of their debt to the Bank of Pennsylvania, “ and to pay the avails of the other two to such of the creditors of Orrich & Pendleton as within one year from the date of the agreement should become parties thereunto, and consent to take a pro rata assignment." A covenant to this effect was made between Orrich & Morris; no schedule of the names of creditors or of the amount of debts was annexed; but one creditor has become a party to the assignment, and it is not shown at what time.

The plaintiffs having recovered judgment against Orrich & Pendleton at the August term, 1834, bring this bill under section 15 of the act regulating the practice in chancery, charging that no creditor at that time had become a party to the assignment, and claiming it to be fraudulent and void, ask the avails of the notes to be appropriated in satisfaction of their judgments.

The answers assert that the provision in the assignment, that the avails of the notes should be paid to such creditors as should come in within a year and accept a pro rata distribution, was inserted by mistake and released by him as soon as discovered. As this averment does not respond to the bill, and as no proof of its truth is offered, it must bo taken as not true; the case therefore presents the question whether this feature in the assignment, postponing the distribution for a year and withholding the property from the power of creditors for this period, does not impress a fraudulent character upon the transaction.

*It is right for a debtor, in failing circumstances, to provide for the equal distribution of his property among his creditors by assignment to a trustee; and it may be necessary and proper-for the trustee to suspend the distribution for the time required to investigate the extent of debts. But for the,assignee to prescribe a fixed time, longer than is apparently necessary for this purpose, within which no distribution is to be made, and then to direct the payment, not of all his creditors, but such only as make themselves parties to that assignment and consent to accept a pro rata share, enables him to seclude his estate for a limited period from the satisfaction of his debts, and thus hinders or delays his creditors. If he may suspend for a year, he may for a longer time, and it would be difficult to assign limits to such power. Although, in the present case, the parties contemplated nothing but an honest and equal distribution, we can not sustain a transaction so liable to abuse, and so directly against the policy of the law. 5 Ohio, 294.

A question might be raised, whether a creditor instituting proceedings under this section of the statute, acquires a privity, or whether the property is to be distributed among all the creditors. The statute of February, 1835, is designed to secure such equal distribution; but these proceedings were commenced before this statute, and it has been the settled practice on the circuit, to regard bills in chancery, filed under section 15 of the aGt of 1831, as securing a preference to the plaintiff.


text:
    Stevenson et al. v. Agry et al.
    A debtor’s assignment for the benefit of preferred creditors, imposing no . terms, and exacting no delays, is valid
    This cause was adjourned from Hamilton county.
    Morris and Drake, for plaintiff.
    Chase, for defendant.
   Judge Lane

stated the ease, and delivered the opinion of the court:

This is a suit in chancery, by which the plaintiff seeks to set aside an assignment of property made by Agry to his trustee, in trust, for creditors.

*On June 6, 1834, Agry, by an indenture tripartite, conveyed to Greene certain property, consisting of stock in a distillery, enumerated in a schedule, upon the following trusts: 1. To pay the expenses of the assignment, and of the management of the trust. 2. To pay the wages of a workman in the distillery, and certain debts which Greene, the trustee, held against him. 3. To distribute the residue ratably among all the remaining creditors of said Agry, who shall become parties to this indenture, and shall prove their claims to the satisfaction of the assignee or arbitrators. 4. After paying the aforesaid claims, to pay over the residue, if any, to Agry. The remaining provisions of the assignment prescribe the mode of executing the trust, which is to be finally closed in eighteen months.

. The plaintiffs are judgment creditors of Agry, who claim that this trust is fraudulent and void, and seek to distribute it among all.

No actual fraud is admitted or shown, and the case depends upon whether the assignment be constructively fraudulent, as against the policy of the law.

Whenever a debtor seeks, by assignment, to impose terms and conditions upon his creditors while providing the means of payment, or place his property where it can not be applied in payment of debts, or to suspend the legal remedies of his creditors against his property or himself, the law adjudges the conveyance fraudulent. In Jordan v. Ellis, where the benefits of the assignment depended on the release by the creditors of all further claims, it was pronounced an unjust condition, and it was declared void. In Replier v. Orrich, Pendleton et al., decided this term, in which the distribution was to be delayed a year, by the terms of the assignment, to afford time for creditors to come in, it was adjudged that it could not be sustained, because these terms created the delay of a year, during which the property of the debtor was withheld.

But this assignment contains none of these features. It is the act of a creditor who takes his debtor’s property into his hands, to pay his own debt, and hold any residue for those to whore it belongs. It imposes no terms upon which its advantages may be obtained; it delays no legal rights; it suspends the payment of debts no longer than necessary to convert the property; the phrase “becoming a party.to this indenture,” means nothing more, than a readiness of the creditor to accept *the distributive share; and the direction to give the residuum to the debtor infuses no new feature into the trust, beyond what the law would imply without it. It seems, therefore, nothing more than the exercise of the legal right of a debtor to prefer one creditor to another, and the creditor thus preferred, reaps no other harvest than the law secures to the vigilant.

Bill dismissed.


author: Judge Grimke

text:
    James Kuder v. Henry Cronice.
    A party to a wager is not compelled to testify in an action brought by an informer under the statute, to recover the penalty.
    This case was adjourned from the county of Seneca.
    It was a penal action founded on a bet upon the result of an election, and brought in debt under the provisions of the gaming act. The defendant, Oronice, and Eli Dresbaek, made a wager on the presidential election, in 1832, of three hundred dollars. Dresback lost, and paid the money to Oronice, to recover which the plaintiff, as common informer, brought this suit. On the trial, Dresbaek was called as a witness lor the plaintiff; he expressed his unwillingness to testify, and was objected to by the defendant. The court overruled the objections and required him to give evidence. He testified accordingly, and the jury rendered a verdict for the plaiutiff. The defendant’s counsel moved for a new trial, assigning two grounds:
    1. It was error to compel the witness to testify.
    2. That this description of wager is not prohibited by the statute.
    Upon these assignments, the motion was adjourned here for decision.
    Banson and Boalt, for plaintiff.
    Ooeeinbury, for defendant.
   Judge Grimke

delivered the opinion of the court:

Section 12 of the statute declares, that “ if any person, guilty of any of the offenses enumerated, shall be called upon before a grand jury, or in any court of justice, to testify on behalf of the state, the witness shall be compelled *to give all the facts in evidence, and shall not be indictable or punishable for any of the offenses so by him disclosed.” Drcsback was required to testify in neither of these cases, and it is the statute alone, which, invading the general principles of evidence, has created this species of testimony in any case. That no man shall be compelled to testify where that testimony may lay the foundation for a criminal prosecution against himself, is a principle well established and well understood, to which we can admit no exceptions but such as the statute has made. It is evident, then, that the facts disclosed by this witness implicate himself, and that they might be instrumental in procuring a conviction against him. The law declares he shall be a witness for the state alone, and in that case humanely protects him against the consequences of his testimony. It protects him in no other case.

It was, therefore, error to compel him to testify in this case, and for this error a new trial is awarded.


text:
    James Anderson v. State of Ohio.
    An indictment for aiding to pass a forged paper must set forth that the accused knew it to be a forgery.
    This was a writ of error to the court of common pleas of Stark county, made returnable to the court in bank. The case was this :
    Anderson, the plaintiff in error, was indicted in Starke county, for aiding and abetting a person, calling himself George Stevens, to utter and publish, as true and genuine, a certificate of deposit in the following words:
    “ Columbiana,-Bank oe New Lisbon, May 25, 1836.
    “John Mendenhall has this day deposited seven thousand four hundred dollars, for the use, and subject to the order of himself and return of this certificate. R. \Y. Snodgrass, Cashier.”

      Which certificate was fraudulently altered from four hundred dollars to seven thousand four hundred dollars.
    The indictment contained two counts, and the material allegations of both were, in some words, as follows:
    . “And the grand jurors do further find and present tuat *James Anderson, late of the county of Stark aforesaid, on the seventh day oí June, in the year eighteen hundred and thirty-six, at Stark county aforesaid, did aid, abet, and procure the said person, calling himself George Stevens as aforesaid, to utter and publish the altered, false, forged, and counterfeited certificate of deposit, contract, and promise, for the payment of money as aforesaid, the said uttering and publishing as aforesaid, being an offense made criminal by a law of the State of Ohio aforesaid, contrary to the form of the statute,” etc.
    Upon the trial of this indictment, the defendant was found guilty, and sentenced to confinement in the penitentiary; tore-verse which sentence this writ of error was brought..
    The errors assigned are stated in the arguments of counsel.
    Goodenow, for the plaintiff in error:
    There are but throe points embraced in the assignment of errors, in this cause, which I deem it necessary to argue; and to these I shall say but few words.
    1. Can an aider, abettor, or procurer be indicted, tried, convicted, and sentenced, without any proceeding being first had against the principal? If the law or practice is settled in this state on that point, I am as yet unadvised of it. In England, by the common law, aiders and abettors were indictable as principals in the second degree; and they must be proven on trial to be actually present, or constructively present; that is, at hand, so that they could afford aid and assistance to the principal in the execution of the plan of operations. But accessories, before or after the fact, could only be indicted and punished after the conviction of the principal. A procurer is an accessory before the fact.
    Our statute for the punishment of crimes provides, 29 Stat. 142, sec. 34, “that if any person shall aid, abett, or procure any other person to commit any one of the offenses,” etc. Who, then, let me ask, is an “aider, abettor, or procurer,” in the meaning of the act? Shall we resort to the common law for a definition of the crime? Suppose we do, where do we look for the mode or manner in which he shall be tried? He must be indicted, to be sure ; but when indicted ? And what practice is to be adopted in bringing the party to trial, and in the conduction of the trial ? Is he to be indicted in form, in ^manner, in language, the same as a principal? Certainly not; for the legislature have adopted a distinction between the principal and the accessories, and aiders and abettors; and for that distinction and the various steps and modifications which that distinction pursues from the incipient stage of prosecution to conviction, the court have to resort to the common law, because they have no other guide given them. But by that common law, the principal is indicted and prosecuted in one way, and the aider, abettor, and procurer in another; and the latter can, in general, be convicted only after the principal has been convicted; because on the conviction of the former, as the substratum, must the conviction of the latter rest. I am aware that what was thought in England as a defect in the common law has been remedied by the statutes. How far any of the statutes of England, or the common law of the realm, have been adopted, or are considered binding upon this court, as to crimes, or the modes of trial or punishment, I am' ignorant. Perhaps there is a discretion lodged in this court to adopt as much common law or English statute law as may answer the purpose to insure a conviction; I know not and can not say or conjecture. But this, I have ever supposed to be an immutable principle in our jurisprudence, that the court expounded and applied the law as they found it in the code of the state. If that be a sound principle in our system of justice, the court will have to create, import, or borrow some law, before they can affirm as legal, just, and right, the conviction of Anderson on the indictment before them, as an aider, abettor, and procurer.

    2. Is the forging or passing a forged “ certificate of deposit” a crime punishable by the laws of Ohio ?
    “ Penal statutes ought to be read according to the ordinary import of the language, and if a term would equally admit of two constructions, the one attended with the mildest consequences ought to be adopted.” “A check is not, either in common parlance, or in the technical language of the books, called a bill of exchange or promissory note, though it may, in some respects, have the same legal operation.” The People v. Howell, 4 Johns. 301. There is no need to cite authorities on this point; it is to me so palpable, I should do injustice to my own sense of propriety to inflict citations and quotations upon the court. But, I will ask, is a “certificate of deposit-’ (the name of a bank instrument of writing much older than the State of Ohio, and as well known as a bill of ^exchange or bank bill), “ a contract and promise for the payment of money," in the language of the indictment? The first count of the indictment, however, calls it by its true name, adding “for the payment of money,” and “being for the payment of money.”
    The allegations in the indictment, as they of themselves constitute no part of the law, nor of the facts which constitute the crime, can neither extend nor enlarge the words of the statute, nor contract or expand the name or style of the instrument itself, that it may suit the language of the statute. Is a “ certificate of deposit,” bearing its name on its face, and described in the indictment as a “certificate of deposit,” “in common parlance or in technical language,” a contract and jn'ornise for the payment of money; “though it may, in some respects, have the same legal operation.” Is it any more so than a bank bill, bank note, or check? I reckon not; yet the legislature have thought it necessary to enumerate these latter. But, if a bank “certificate of deposit” is, under a penal, and highly penal statute, to be considered a “contract and promise for the payment of money,” because it has, “in some respects,” the legal operation of the contract lor the payment of money, then, indeed, it was needless for the legislature, in the act for the punishment of crimes, to have inserted the words bond, bank bill or note, check, draft, bill of exchange, promissory note, and divers other instruments of writing therein enumerated. It would have been better that they should have loft the field entirely open, that this court might, according to their enlightened discretion, bring everything which might bear the construction of a “contract for the payment ol money,” in for the spirit of the law, under that general clause. However, it must be unnecessary to pursue any further illustrations. “ The court sit here to expound and apply the law, not to make it.”
    Is not an averment of the scienter in an indictment against a person for aiding, abetting, and procuring another to utter and publish a forged and counterfeit certificate of deposit indispensably necessary? It surely can not be necessary to quote authorities or make an argument on this point. The indictment itself contains that averment against the principal, Stevens. And why not, as to Anderson ? He may be as innocent as a “ babe unborn ” for aught that appears in the indictment. He is nowhere charged with a knowledge of the ^counterfeit character of the certificate of deposit; he is therefore charged with no crime. But why need. I argue ? “ This court sit here to expound and apply the law, not to make it.”
    Belden, for the state:
    The first objection to said indictment is, that it is no crime, in the State of Ohio, to utter and publish a false, forged, and altered certificate of deposit, knowing the fact. It is contended by the state that a certificate of deposit is a contract for the payment of money ; that a suit at law could be maintained on such instrument; that it is covered by the time or contract for the payment of money. With the same force, it might be argued that the forging a due bill is no crime, because it is not mentioned in so many words in the statute.
    The second objection is, that the principal had not been indicted. The statute -settles that question. The aiding, abetting, or procuring the commission of crime is made punishable without reference to the conviction of the principal.
    The third objection seems to have more plausibility. The indictment charges James Anderson of aiding, abetting, and procuring one Geo. Stevens, a person unknown, to utter and publish a false, forged, and altered certificate of deposit; but do.es not directly aver the fact that he knew it was a false, forged, and altered certificate.
    The question is asked, if that be not an indispensable averment, the same averment having been made against the principal? The statute answers the inquiry. In ease of principal, the statute makes the scienter a part of the crime, or the crime itself, in direct and positive language; but not so in ease of an abettor and procurer of the commission of a crime. The legislature understood that knowledge was necessarily included in the language, “ shall aid, abet, and procure,” etc. Therefore the scienter was omitted in the section against abettors. This position is fully sustained in the case of The King v. Fuller, 1 Bos. & Pul. 187.
    It would not for a moment be contended that an indictment would be good against an individual for bartering counterfeit bank bills, receiving stolen goods, for harboring a thief, etc., unless there was an averment of knowledge. The statute requires this; but would it not be ridiculous to aver that A. committed an assault and battery, knowing the fact; that he ^persuaded and procured another to commit willful and corrupt perjury, knowing the fact.
   Judge Wood

delivered the opinion of the court:

This case presents a single question for our decision. The act for the punishment of crimes, passed March 7, 1836, provides, among other things, “that if any person shall utter and publish as true and genuine any contract for the payment of money or other property, or any acquittance or receipt for money or goods, with intent to defraud, etc., he shall be deemed guilty of forgery,” etc. Section 36 of the same act provides, “that if any person shall aid, abet, or procure any other person to commit any of the offenses, by this act made criminal, every person so offending shall, upon conviction thereof, be imprisoned in the penitentiary, etc.

The draftsman of this indictment has held it sufficient to pursue, literally, the statutory definition of the offense, and, as it does not, in express terms, make a knowledge of the false character of the paper a constituent part of the crime, it was thought unnecessary to aver that fact in the indictment. Is such averment necessary? Wo are of opinion that it is. The indictment must state every circumstance of knowledge, intention, or action that constitutes the criminal design. It is the intention that gives character to the action, and makes that criminal which would otherwise be exempt from guilt.

There can be no intention without knowledge; hence the necessity of the allegation, that the accused, in this case, knew that the paper he aided to pass off was a forgery. It must be manifest to every one that Anderson might, with entire innocency, have taken an active agency in obtaining cash for the certificate of deposit in question. He might suppose it to be genuine, and all he did be grounded upon that belief. The statute does not attach criminality to one, who, in honesty and good faith, becomes instrumental in passing off a forged paper. This record charges the fact, that the paper was a forgery, and that Anderson aided Stevens to pass it. No knowledge that it was a forgery; no design to defraujl another person, is charged against him; so that, in the terms of indictment, nothing is alleged against him that can be regarded as criminal. Upon the trial of this indictment, no proof of knowledge or intention to defraud could legally be received; for the prosecutor can not be permitted to prove the constituents of crime, *when he has not set them forth and made them part of his

written accusation. The accused is only held to come prepared to meet the specific charge, and when the gist of the offense is knowledge and intention, no proof of either can be received, if there is no averment that they entered into and formed a part of the original transaction.

The judgment js reversed,


author: *Grimke, J.,

text:
    Lessee of Swazey’s Heirs v. Lewis V. Blackman and Wife.
    All last wills and testaments must be established by probate in the court of common pleas, and until a last will and testament is so established by probate, it can not be received as evidence of any title set up under it.
    This case was adjourned from the county of Hamilton, upon a motion in behalf of the defendants for a new trial.
    The lessors of the plaintiffs claim as heirs at law; the defendants as devisees. The question at issue arose upon the alleged will of Hazen Swazey. The paper was produced in court, at the trial of the ejectment, and parol evidence offered of its due execution. It was part of' the proof, that the alleged will had been twice offered for probate, in the court of common pleas of Hamilton •county, and the probate refused. Open parol proof of the will was now objected to, in behalf of the heirs at law, and the objection sustained. There was of course, upon this decision, a verdict for the plaintiff. The defendants moved for a new trial, and the motion was adjourned here for decision.
    Storer and Srenoer, in support of the motion :
    The simple matter presented by the motion is, whether a will executed in Ohio, in 1830, devising lands here situated, not admitted *to probate, but, on the contrary, twice offered for that purpose and expressly rejected, can be proven on the trial, in an action of ejectment, by paról testimony, for the purpose of sustaining the devise.
    By section 7 of the “act relating to wills,” passed in 1824 (Chase’s Stat. 1305), and in force at the time the present will was executed, it was provided, “ that the executor of, or any other person interested in, any last will, etc., may cause it to be brought before the court of common pleas of the proper county, and cause the witness thereto to be examined, etc.; and if it shall appear that such will was duly executed, etc., the court shall cause the will, together with the proof, to be recorded. And every will which shall be proved in manner aforesaid, and shall have a certificate thereof indorsed upon it, with the seal of the said court thereunto annexed, and also a transcript of the record of such will, certified by the clerk under the seal of the court, shall be as effectual, in all cases, as the original will would be if produced and proven.” And by section 17 of the same act, it is provided that “.all original wills shall be recorded and filed in the clerk’s office of the court in which they are respectively proven.”
    We contend, that by”a fair construction of these provisions of the statute, taken in connection with all the previous laws on the same subject, the only legal evidence that can be received of the due execution of a will, whether of real or personal estate, on a trial in which any title is claimed under it, is a certificate of probate under the seal of the court of common pleas, or a transcript of the record of probate properly certified.
    From the earliest organization of the territorial government to the present period, it has been the peculiar object of our system, that wills should be proven before the judges of the common pleas flitting as a court of probate; and so important has the legislature •deemed a probate before this tribunal, that by all the statutes on the subject, from the year 1808 to that of 1824, including three •distinct enactments, have they expressly provided, “that before any written will or codicil can be considered valid in law, it shall be presented for probate, etc., and proven,” etc. See Chase’s Stat. 572, 680, 930. Previous to 1808, the language of all the statutes is “ that all wills and codicils in writing, etc., being proven by two or more credible witnesses, to the satisfaction of the court, etc., shall be good and available for granting and conveying of the lands, goods, or chattels thereby given,” etc. Chase’s Stat. 182, 492. These several statutes are ^founded upon the ordinance of 1787. On reference to which it will be found that the probate of a will is placed upon precisely the same footing as the acknowledgement or proof of a deed; both being necessary to the consummation of a conveyance of lands. In the language of the ordinance, “ estates in the said territory may be devised or bequeathed by wills in writing, signed and' sealed by the devisor, and attested by three witnesses; .and real estates may be conveyed by lease or release, or bargain .and sale, signed, sealed, and delivered by the grantor, and attested •by two witnesses; provided such wills be duly proved, and such conveyances be acknowledged, or the execution thereof duly proved, ¡and be recorded within one year after proper magistrates, courts •and registers shall be appointed for that purpose.” Chase’s Stat •66. These requisitions for the proof of wills and deeds have never been substantially departed from in all the subsequent legislation that has been had upon the subject to the present time. And so far as any alterations have been made therein, they have invariably ■been to limit and restrict, rather than loosen and enlarge the forms and the manner of proof in regard to conveyances of real estate. To warrant the belief that a policy so long and steadily pursued, grown up and established by constant and continued acts of legislation, has been suddenly abandoned for the loose and uncertain system-of the English law, it must be manifested by evidence of the •clearest and most positive intention. No inference, however natural, which is drawn from the mere silence of the legislature, will be sufficient to establish it. In the act before us there is not only no positive evidence of any intention to dispense with the necessity of probate in order to perfect a-conveyance by will, to change the forum before which probate should be made, or to alter the mode and manner of proof; but as far aS inference can go, the plainest indication of a design to adhere to and confirm the long-established policy. Thus the act provides for the examination of witnesses before the judges of the court of common pleas; it provides for the recording and perpetuating of the testimony offered to establish the will; it requires the will to be recorded and the original filed-away in the clerk’s office of the court where probate is made ; and lastly, it declares the effect of probate to be conclusive on all parties interested, unless set aside by bill in chancery, on a direct application for that purpose, made within two years thereafter. The care thus taken over the whole subject to preserve the original will, together with the testimony taken to establish it on the files *and records of the court, to declare the effect of probate, is utterly inconsistent with the idea that it was, notwithstanding the intention of the legislature, to commit the whole policy of probate-to the mere option of a claimant; leaving him at liberty either to prove his devise before the court of probate, or to establish it before another tribunal, where his title under it.was impeached. Why create a tribunal with so much care and solemnity, and require it to proceed with such form and deliberation for the very purpose of probate, if it were not intended to compel a resort to it?
    But again, in the act before us, in that now in force, arid in the previous legislation upon the subject, no distinction whatever is drawn between realty and personalty. Wills of both must be executed \n the same manner; they must be proven and recorded in the same manner; and the same evidence-which is required of the validity of the’one is equally requisite of the other; the same provision which demands probate of the one exacts it of the other. Will it be contended for a moment, that the law, in terms or in spirit, in any one particular, creates a difference between them, or that there is any essential difference in the nature of the subject which requires the application of a different rule to each ? Or will it be contended that a will of personalty would be good without probate? So far as any such difference may be thought to exist, it should seem tobe in favor of extending the more liberal construction to wills of personal estate. Devises of land, unlike those of personalty, were unknown to common law. They are pure creatures of the statute, and should be especially held, in all matters connected with them, to a conformity and compliance with the law which called them into being. Why, then, seek to create a difference between them, when the statute does not require it ? Good policy forbids that the -same will which conveys personal and real estate should be differently adjudged of by different tribunals. As, in the case before us, that it should be held void for the personal estate, and valid for the real — as though the feal estate were of less importance, in contemplation of law, than the personal. The objection here taken to the establishment of separate jurisdictions for the settlement of the same question, is strongly enforced by the chancellor in the case cited by the defendants’ counsel from Vanderheyden v. Reid, 1 Hopk. Ch. 414. “ This result, he says, of an artificial division of jurisdictions can never be proper where it may be avoided. That a will should be adjudged valid because *tho testator who made it was of sound mind, and that the same will should be adjudged -uoii-because the same testator was .insane, is a result "./hick should never take place under one system of laws.” A fortiori should never take place under the same law, creating and applying the same regulations to each without exception or distinction.
    The views above taken render it unnecessary to examine at length "the positions and authorities presented by the defendants’ counsel. However appropriate they might be to a system grown up entirely from the common law, they have no applicability to one which is the mere creature of statutory enactments. By the common law of England, in ISfew York, and some of her sister states where the common law rule has been adopted, a marked distinction has always been drawn between wills of real and those of personal estate — not only in regard to probate and the effect thereof, but in regard to the execution also. In England,from the earliest period, wills of personalty were proven only in the ecclesiastical court before the ordinary, whose decisions allowing or disallowing them were in all cases conclusive. Troller on Ex. 76; Swinburn on Wills, 432, 436. And the only proof which could be, or is required at law of their due execution, is an exemplified record of probate under the seal of the ordinary. Ib. Devises of land, on the other hand, were not allowed at common law. They were first authorized by the statute 32 Hen. 8, c. 1. And as neither that nor any other subsequent statute provided any special jurisdiction for their proof, they were left to abide the ■rules of the common law, in the same manner as other conveyances of real estate, i. e., they were subjected to proof, oh the trial at law, in every case when the devise was contested. And hence, in regard to these, no' court of probate was established. Not so in Ohio — courts of probate always have existed for their proof under precisely the same regulations as were applied to personal estate. Indeed, in every act of legislation on the subject, both matters-have been included in the same section, without any notice whatever of a distinct classification, So far, then, as the English rule-can be applied to this state, it favors the views we have above-taken. For by that, whenever probate is required (as in the case of wills of personal estate), the record thereof furnishes the only legitimate evidence of their due execution.
    The other position of the defendants’ counsel, “that inasmuch as the validity of a will depends upon the proof of facts, which *ought to be submitted to a jury; and inasmuch as the court of common pleas sitting as a court of probate have no authority to impanel a jury to decide upon those facts, a claimant by devise would be deprived of the benefit of a trial by jury if probate of the will were refused,” is much-more specious than solid. In the first place it assumes that which is by no means conceded, that the court of common pleas sitting in probate have no power in a doubtful case to call in the aid of a jury to try the validity of a will. The constitution of Ohio, art. 3, sec. 5, declares that “the court of common pleas in each county shall have jurisdiction of all probate and testamentary matters." But it nowhere points out how that jurisdiction shall be exercised. The statute is equally silent upon the subject. Both, therefore, having conferred a jurisdiction oyer the subject matter, without having prescribed the mode of proceeding in the investigation of it, have left it to the court to adopt its own mode of proceeding, so far as the same is not forbidden by established law. No direct power is given to the court to take the depositions of absent witnesses, except by issuing a commission with the will annexed, to take the deposition of a subscribing witness. And yet we apprehend, it is incident to their jurisdiction that they may issue a like commission to take the - deposition of an absent witness, to prove insanity in the testator, and that, too, if thought proper without annexing the will. For the power to take testimony, whether at home or-abroad, is requisite to the due exercise of their jurisdiction. And there seems to be no good reason why they may not call in the aid of a jury to assist them in determining a doubtful question. In New York, where the court of probate is modeled after the.ecclesiastical court in England, it is held that an issue may be awarded to try the validity of a will; although the statute, creating that court, like ours, is entirely silent on the subject. And the reason assigned is, that the law being silent, has left it to the court to “adopt its own machinery,” in the administration of its powers. 1 Hopk. Ch. 411-413. And there seems to be no law which forbids an English prerogative court from awarding an. issue for the trial of facts. 1 Hopk. Ch. 412, and eases cited.
    But if no such power were supposed to exist, the argument is still without peculiar force. 1. It would be just as applicable to wills of personal as to those of real estate; and in a country becoming highly commercial, the personal estate may be, and ofttimes is, far more important than the real. 2. It is by no *means uncommon to create special tribunals for the decision of matters, sometimes pf the greatest moment, without the intervention of a jury. Of these may be enumerated the exclusive jurisdiction of the judges of the Supreme Court in matters of divorce and alimony, where questions affecting the most important relations in life are determined; so also the jurisdiction conferred upon the commissioners of counties, and the appeal granted therefrom to the court of common pleas in the matter of roads and highways, where interests in land, to a large extent, are constantly involved. 3. It might well have been thought by the legislature, that as wills generally include both real and personal estate, it would be unjust, and perhaps almost uniformly defeat the intention of the testator, to establish one as to real estate, and hold it for naught as to personal. And hence, if on an ex parte application by the devisees, or those claiming under the will, there was not sufficient evidence to establish it as to personalty before the court of probate, it ought not to be taken before a different tribunal to establish it as to the realty.

    The policy of our law requiring the proof of all wills, whether relating to real or personal estate, to be exhibited before the court of probate, is by no means peculiar to Ohio.
    In Massachusetts, whose enactments are not more imperative than our own, it is held that “the exclusive jurisdiction of wills, whether of land or personal estate, belongs to the court of probate; and that the decree of that court can not be inquired into.” 12 Mass. 525; 16 Ib. 433; 1 Pick. 549. In the case from Pickering the court say: “ The experience of us all, on the bench and at the bar, will justify the assertion, that no instance has occurred of a will being attempted to be proved otherwise than by the decree of the probate court; or, if appearing to be so proved, of any attempt to defeat it'by evidence to the jury.” Ib. 549.
    In Maine, the same course of decision has been adopted. Small v. Small, 4 Greenl. 225; Moore v. Smith, 5 Ib. 494. In the first of these cases, it is said, page 225 : “ The question, whether an instrument,' purporting to be a last will and testament, ought to be allowed as such, is one of purely probate jurisdiction.” In the second, page 494, it is said: “ The probate of wills is within the exclusive jurisdiction of the courts of probate.”
    In Connecticut, the probate of a will before the court of probate is conclusive, whether of realty or personalty. Swift’s Rig. 143: 1 Day, 170.
    So also in Virginia. 1 Leigh, 293.
    *In Ohio, it has been determined, by a uniform and constant course of practice, that the proper evidence of a devise is the certificate of probate; and it is believed that no instance has occurred, until the present, of an attempt to establish a devise by any other means.
    But the question, we think, may be regarded as virtually, if not directly decided by this court, in the case of Wilson’s Ex’rs v. Tappan, 6 Ohio, 174. There it was held that under a will made in- another state, the legal title to land devised does not vest in the devisee until the will has been admitted to probate, and recorded in the proper county. And yet the statute (sec. 12 of 1824, sec. 14 of 1831) declares wills duly proven in any other state or territory, relative to property in this, “good and valid in law, in like manner as those made in this state are declared to be” — placing them both in the same situation, so far as the matter of probate and record is concerned.
    Starr, for the plaintiff:
    The decision of the common pleas in rejecting the will did not destroy it; because it may again be presented and established upon luller evidence. 6 Ohio, 148.
    The rejection, says the court in this case, extinguishes no right and binds nobody, for there are no parties before the court to be concluded.
    It appears from a memorandum on the back of the will, in the handwriting of the clerk, that it was presented for probate in 1831, and admitted to the probate and ordered to be recorded, but a new hearing being allowed, it was finally rejected.
    The right of the defendants to set up their title by devise is the same, I conceive, as if there had been no decision of the common pleas in relation to it.
    1. The validity of the will depends upon the proof of facts; and if the defendants can not set up their title by devise, they may lose it without the possibility of having' those facts passed upon by a jury.
    The law has made no provision for a jury to decide upon the validity of a will when presented to the court of common pleas for probate. It is only when a will has been admitted to probate and contested by bill in chancery, as pointed out in section 20 of the act' relating to wills, that it can be submitted to a jury. When thus contested it is made the duty of the *court to award an issue to be tried by a jury, whether the writing be the last will of the testator or not. It is then only that an appeal lies'from the common pleas to the Supreme Court. 29 Ohio L. 246; 6 Ohio, 149.
    2. The title of the devisee is complete when the will is executed according to the requisitions of the statute, and the testator is dead, subject only to the right of the executor to sell for the payment of debts. The statute requires that the will shall be in writing, signed by the testator, and attested and subscribed in his presence by two or more credible witnesses, who saw him subscribe it, or heard him acknowledge the same.
    When thus executed, the estate vests in the devisee on the death of the testator before entry. Co. Lit. 111; 2 Kent Com. 533.
    3. Section 7 of the act authorizes any person interested in a will to cause it to be presented to the common picas for probate, and points out the mode of proving it. It authorizes the proof of such “circumstances as would be proper to prove such will on a trial at law." When could it be proper to prove a will on a trial at law if not in just such a case as the present?
    Section 8 provides that a certified copy of the will and probate under the seal of' the court “shall be as effectual in all cases as the original will would be if produced and proven."

    The law of 1795, adopted for the government of the territory, made the probate of a will essential to the validity of a devise or bequest of personal property. 1 Chase’s Stat. 182.

      The same may be said of the act of 1805. 1 Chase’s Stat. 142.
    Sections 8 of the acts of February, 1808, of February, 1810, and January, 1816, provided “ that no written will should be considered valid in law till presented to the court of common pleas for-probate, and proven by two at least of the subscribing witnesses.” 1 Chase’s Stat. 572, 680; 2 lb. 930.
    In the acts of February, 1824, and February, 1831, this provision is omitted, making an entire change in the law on this-subject.
    4. In England, the probate of wills respects personal property only, and is a subject of ecclesiastical jurisdiction; but a devise or no devise of real estate is a question of common law jurisdiction, and triable in the common law courts, and in every case of a contested devise the execution of the will must be proven. With us, after the will has received probate in the common pleas, it is conclusive as to its validity, in regard both to real and personal Restate, so long as it stands uncontested under section 20 of the act respecting wills; but the rights of the devisee of real estate, and legatee of personal property, are no more the same after probate than before. They are placed under different restrictions, and this results from the nature of the difference between real and personal estate. Until probate of the will the legatee has no-right of which the law takes the least notice. It manifests his-inchoate property; but even then he has no title, for the title to personal property bequeathed by will, even in the case of a specific legacy, both before and after probate, is in the executor. He may maintain trespass against the legatee for taking it away; or if the legatee be in possession of a specific chattel bequeathod to him, he can not retain it in opposition to the executor, though the assets be fully adequate to the payment of debts. The assent of the executor is requisite to perfect the right of the legatee, unless the legacy be chargeable upon real estate, and then ho may recover it out of the real estate before probate. Toll, Law of Executors, 305; 2 Blk. Com. 502; Roberts on Wills, 77; 2 Atk. 361.
    The probate of the will forms no part of the title of the devisee, nor is it essential to it. If the will be executed according to the requisitions of the statute, his title is perfect on the death of the testator. If he have no title till probate, lands devised would be in a strange state of abeyance between the death of the testator’ and probate.
    The constitution o-f the state, article 3, section 5, which declares-that the court of common, pleas in each county shall have jurisdiction of all probate and testamentary matters, has the effect to vest the jurisdiction of the ecclesiastical courts in England, so far1 as wills are concerned, in- the courts of common pleas. But as-that jurisdiction did not extend to devises of real estate, neither the constitution of the state nor the act organizing the judicial courts makes a question of devise or no devise solely triable in-the courts of common pleas as courts of probate. Toll, Law of Executors, 68-75.
    The fact that the court may admit a will to probate and thereby’ make the title of the devisee unquestionable till some one thinks proper to contest it according to the provisions of section 20, does-not invalidate this position.
    5. The law of New York in regard to the execution of wills is similar to the law of Ohio. Every will, whether of real or personal estate, or both, must be signed by the testator in the-presence of two attesting witnesses, who shall sign their names at the 'end of the will, at the request of the testator, with their place of residence. 2 R. L. N. Y. 7.
    In that state a will is admitted to probate by the surrogate of the county, who records the will and the proofs. His certificate-of probate on the original will, or on an exemplification of the-record signed by him and attested by his seal of ofiiee, is admitted in evidence. With regard to the personal property mentioned in the will, it is conclusive of its validity until reversed on appeal or revoked by the surrogate himself. As to the real estate, “it shall bo received in evidence, and shall be as effectual in all cases as theorihinal will would be if produced and proved, and may, in like manner, be repelled by contrary proof.” 2 R. L. N. Y. 3-5.
    The only difference between the law of New York and of Ohio-is, that the law of the latter state makes the probate by the common pleas conclusive for the time being as to both real and personal estate.
    In the case of Bogardus et al. v. Clark et al., 1 Edward’s Ch.266, a hill was filed for the partition of certain real estate of which John Fisher died seized. It was resisted by the defend•ants on the ground that John Fisher had made a will devising the same real estate to them. The will had been presented to the •surrogate of the county and admitted to probate. There was an appeal from his decision to the chancellor, who reversed it on the ground of insanity in the testator.
    The vice-chancellor decided that though the will depended upon the same state of facts and circumstances, the mental capacity of the testator, neither the decision of the surrogate establishing the will, nor the decree of the chancellor reversing it, had any effect whatever in establishing or invalidating the will as respected the lands, and only effected the personal property. 4 Kent, 3d ed, 510, n.; 1 Paige Ch. 171; Hopk. Ch. 408; 3 Wend. 503; 2 Phil. Ev. 190 ; 2 Atk. 370 ; 1 Russ. & Myl. 103; 6 Cowen, 178 ; Adams on Eject. 261-270; 5 Cowen, 719; 1 Stark. Ev. 337; 3 lb. 1682; ‘3 Adam’s Ec. 79; 1 Huggard’s Ec. 311. .
    If the defendants can not set up their title by devise because there has been no probate of the will under which they claim, it must be because they are prohibited by some statute of the state. There is no statute which forbids it in terms. Is it because *the statute provides for the probate of wills of both real and personal estate in the courts of common pleas, and makes it conclusive for the time being? I can not see it. Their right to set pp their title is sustained by every principle of the common law, not that the common law gave the right to devise, but when given by the statute of wills it is sustained or defeated by the principles of the common law. Probate in the ecclesiastical courts was not necessary. It is conceded to be a principle of the common law that “ no testamentary paper of personalty can bo admitted in evidence until it has received probate in the ecclesiastical courts, which have exclusive jurisdiction over wills of personal estate.” In the case of King v. Nethersal, 4 Term, 258, Lord Kenyon said : “We can not receive any other evidence of there being a will in this case than such as would be sufficient in all other cases where titles are derived under a will; and nothing but the probate, or letters of administration with the will annexed, are legal evidence •of the will in all questions respecting personalty.” This is, no doubt, a principle of our law, and probably of all the states in this Union. Whoever would set up a claim to personal property mnder a will must show a probate of that will in the proper tribunal. 9 Cranch, 151; 3 Cond. Rep. 317; 12 Wheat. 169; 6 Pet. Cond. 500; 3 Mason, 508; 1 Wash. C. C. 204, 298.
    But there is no principle of the common law which makes the-probate of a will of both real and personal estate the only legal evidence of the devise. So far from it, it is no evidence at all. Our statute makes the probate of a will in the common pleas-legal evidence in both cases so long as it stands, and this, I conceive, is the only difference in the two systems. The will in this-case can not be rejected but on the ground that the statute in effect provides that there shall be no legal evidence of a devise-of real estate except the probate of the will in the common pleas,, thereby making the principle of the common law, which is applicable to wills of personal estate only, apply to devises of real estate.
    6. A devise of real and a bequest of personal property are, from their nature, subject to different rules. It is clear that were it. not for section 14 of the act .regulating wills, a devise of lands in-Ohio made in any other state according to the laws thereof, would, not pass the lands unless made in accordance with the laws of Ohio. It is equally clear that were that section of the act expunged from the statute book, a will of personal ^property in Ohio made in another state or in a foreign country according to the laws thereof, by one having his domicile there, though not according to the laws of Ohio, would be a good bequest of such personal property. It is also well settled that if the owner of personal property in this state, but having his residence in a. foreign country, should make a will of such personal property according to the laws of Ohio, but not according to the laws of such foreign country, it would not be a valid, bequest of the property here. 1 Bin. 336; Story’s Con. of Laws, 393, 394; 4 McCord, (S. C.) 418.
    These distinctions proceed upon the well-known principle that-movable property is governed by the law of the domicile of the owner; and real estate by the law of the place where it is situated. Story’s Con. of Laws, 358; 2 Ohio, 124.
    It may well be questioned whether section 14 of the act gives to the foreign testator the capacity to make a will of lands'in Ohio unless he be twenty-one years of age, though he have the capacity to devise lands at an earlier age by the laws of the state where ho resides. There is nothing in the case of Wilson’s Ex’rs v. Tappan, 6 Ohio, 174, decisive of this question.

      But with regard to personal property in Ohio, the capacity of the testator to dispose of it by will, living in another state or in a foreign country, could not be made a question, if qualified by the laws of such state or country, even if this section was omitted. With regard to wills of personal estate this section makes no new law. 1 Hugg. 498; Story’s Con. of Laws, 363.
    The same persons to whom lands descend on the death of the owner in Ohio are entitled to distribution of his personal estate. In other words, the law of descents and of distribution is the same. But if the owner of real and personal estate situate in Ohio has his domicile in a foreign country at the time of his death, the descent of his real estate and the distribution of his personal property may be to very different persons. His lands will descend according to the laws of Ohio. His personal property will be distributed according to the law of his domicile. Story’s Con. of Laws, 402, 405-407; 3 Paige Ch. 331, 408; 5 Ves. jr. 785; 3 Ib. 207; 4 Wheat. 1; 4 Cond. R. 371; 21 No. Amer. Jurist, 101; 17 Ib. 75.
   *Grimke, J.,

delivered the opinion of the court:

The question to be decided resolves itself into another of still greater importance; and that is, whether the probate of a will affects the realty; for, if it does have this effect, it will be very difficult to escape the conclusion, that the sentence of the probate •court, whether it be one of acceptance or rejection, is indispensable to give validity to the will, and that it is conclusive upon the matter which it professes to decide. In England, a will of personal property need not be attested by any witness, though it is now proposed, among other changes of judicial reform in that country, to make the attestation of two witnesses necessary to wills cf real and personal property. The ecclesiastical court has exclusive jurisdiction of a will of personalty. It is proved in the common form by the executor, who deposes that it is the last will of the testator. If a mixed will, containing a disposition of both real and personal property,-is there offered for probate, the proof is the same, and the probate only affects the personalty. So far as regards that, the probate, while unrepealed, is conclusive; the validity of the will can not even be tried by a jury; though it is now also proposed in that country to submit the will to be tried on the issue of devastavit vel non, in analogy to a will of land.

In Ohio the law is very different. The statute of 1824, which was in force at the time this will was executed, rendered the attestation of two witnesses necessary to both species of will, and .also required that both should be submitted to probate. .It declares that the executor, etc., may cause the will to be brought before the court of common pleas; and “ may” means “ must,” in all those cases where the public are interested, or where a matter of public policy, and not merely of private right, is involved. Our law, then, declares that where personal or real property is devised, the will must be offered for probate. It does not confine the proof to a will of personalty, as it would have done if it had not intended to depart from the English law, and to introduce a new rule into Ohio. In England the ecclesiastical courts have, from time immemorial, entertained jurisdiction only of personal bequests ; and it is for that reason, that on the trial of an ejectment in that country, a will of land is treated as a deed, and must be proved in the same way. The only exception is, that where the original will is lost, the probate then becomes evidence.

When a will of real property is offered for probate, in Ohio, a sentence of some kind is pronounced upon it; the proof is declared *to be sufficient or insufficient; in the one case it is accepted, in the other rejected. If it is rejected, it may still be re-propounded for probate; and if it is received, it may still, within a prescribed time, be impeached by the verdict of a jury, and a consequent decree in chancery. Can the sentence be questioned collaterally? If it can, it will afford the example of an open inconsistency with the general genius of our jurisprudence. No maxim is better settled than that the judgment, unreversed, of a court of competent jurisdiction, is conclusive. The rule is even stronger in relation to a court of probate than it is to a common law court. In the last, the judgment is binding upon parties and privies only; in the first, it is obligatory upon all the world; a distinction which has been recognized in a great variety of forms, in determinations made in our own country. 6 Ohio, 255 ; 11 S. & R. 428.

By our law, a particular tribunal is appointed to receive probate of a will. It does not signify that it is not by name a court of probate, that it is the court of common pleas, with a-probate side to it. The same court has jurisdiction of both chancery and common law controversies; and yet, this mixture of powers would not avail as an argument to prove that its equity jurisdiction was different in kind from that of the courts of chancery in. England or South Carolina.

I am aware that the decisions in the other states, upon the precise matter which we are now considering, are by no means uniform, a. fact which may be accounted for either from some peculiarity in their statutes, or which is more probable, from the difficulty which the mind has felt of renouncing English adjudications as to the different effect of the probate upon real and personal property, even after the introduction of a new law upon the subject. In Pennsylvania, the probate is prima facie evidence on the trial of an ejectment. 5 S. & R. 212 ; 10 S. & R. 84. In Massachusetts, it. is conclusive. 16 Mass. 433. And I should judge, from comparing the two cases in 14 Johns. 407, and 12 Johns. 192, that the probate in New York was treated as onl j prima facie evidence; for, in the one case, parol evidence was resorted to, and would have been received if it had been sufficient; in the other, the probate-constituted the only evidence.

If the sentence of the court, upon the validity of a will of land, were permitted to be re-examined and controverted on every trial, in which some one of the devises in it constituted a part of the-title, it would produce great confusion and mischief. It would be difficult to say when a will should be considered as established. *The finding of a jury, in a collateral suit, that it was the-will of the testator, after it had been rejected by the appropriate tribunal, would present a case of irreconcilable conflict between two ■opposite determinations, and if a verdict should also (as it necessarily must) have the power of annulling the will, after it has been established, it ought, also, to draw after it the further consequence of declaring the grant of administration illegal; and yet it could not have this effect without confounding every idea of stability in the administration of the law, and permitting one tribunal to usurp the acknowledged authority of another. The will would at one and the same time be a valid and an invalid will, and public confidence in the probate coart would be greatly shaken, if not entirely destroyed. These are mischiefs for which no compensation could be found in the uncertainty and confusion, in which all private rights would be involved.

The case of deeds is very different from that of wills. The law ' has not appointed any judicial tribunal to hear proof of the former, and to establish their validity. The reason is, because-the-former do not draw after them such a train of consequences as the last, the grant of administration, the rights of creditors, etc., all of which it is indispensable to settle immediately on the death of the testator, and which are so indissolubly connected with the fact of the validity of the will, that the sentence of some tribunal appears to be necessary, in the first instance, either to establish orto reject it.

There is a difference between the acts of 1808 and 1824. Tho former contains a clause which is omitted in the latter, and which declares that no written will should be valid till probate was had. But if every alteration in the law were to authorize new views and new rules, there never would be any certainty. It is very common in framing new statutes to omit clauses which were contained in antecedent ones, merely because they were unnecessary and superfluous; and that such was the intention in the act of 1824 is, I think, manifest. Therefore, until this will is established in the probate court, it can not be admitted in evidence.