author: Judge Wright

text:
    Commissioners of the Canal Fund v. Nathan Perry.
    Undertakings by written subscription to contribute money or other property, in aid of public works, are valid contracts, that may be enforced in courts of justice.
    Upon a promise to pay to the commissioners of the canal fund, suit can not be maintained in the individual names of the commissioners, or by them as a corporation.
    This suit was brought in the name of Ethan Allen Brown, Ebenezer Buckingham, and Simon Perkins, described as commissioners of the canal fund. The declaration was in assumpsit; the plea, the general issue. At the trial in Cuyahoga county, the plaintiffs gave in evidence a contract subscribed by the defendant, with others, in the following words:
    “ We, the undersigned subscribers, do hereby promise to *pay the commissioners of the canal fund of the State of Ohio, for the use of said fund, the sums severally annexed to our names, in three several equal installments, the first on January 1, A. d. 1827; the second, on January 1, a. d. 1828; and the third and last, on January 1, a. d. 1829, upon condition that the canal be located on the east side of the Cuyahoga river, from the lower rapids to the village of Cleveland. Cleveland, December 6, 1825.”
    Tari ous questions arose upon the legal effect and character of this writing, and upon other points, all of which were ruled for the plaintiffs, in favor of whom' a verdict was rendered. The defendant moved for a new trial, and the motion was adjourned here for decision.
    , The case was considered in conjunction with another involving to a certain extent the same' principles. It was that of the Comm’rs of the Canal Fund v. Ex’rs of Thomas Worthington. The contract upon which it was brought was dated December 1, 1825, and the plaintiffs in the suit were Ebenezer Buckingham, Simon Perkins, and Samuel F. McCracken, commissioners, etc. In this case, adjourned from the county .of Ross, a verdict had passed for the plaintiff, and the questions in the cause came up on a motion for a new trial.
    The case was argued by Pease, Willey, Wilcox, King and Allen, in support of the motion for a new trial.
    By Leonard G. Swan and Andrews, against it:
    The counsel for the. defendants contended for a new trial on the following grounds:
    1. That the canal fund commissioners are not authorized to to make or sue upon such a contract. Canal Doc. 1819, 160 52, 176.
    2. That they are not a corporation capable of suing by a corporate name. (Same documents.)
    3. That the paper offered in eyidence is a nude pact, without consideration and executory. On this point, and the preceding one, embraced within it in part, the following ^authorities are cited. 5 Mass. 491; 6 Mass. 253; 3 B. & P. 147; 3 Wash. C. C. 10; 1 Peters C. C. 46; 5 Pick. 250; 6 East, 110; 1 Cow. 26; 1 Term, 418; 4 East, 568; 7 Term, 109; 6 Taunton, 551; 1 Saund 20; 2 Term, 569; 10 Coke, 100; 1 Levinz, 192; 8 Mass. 292; 11 Mass. 113; 3 Term, 653; 1 Com. on Cont. 2, 9, 16; 2 Com. on Cont. 365.
    4. That the plaintiffs named on the record are not the promisees named in the supposed contract.
    The counsel for the plaintiffs contended:
    1. That the subscription paper offered in evidence is a valid, legal contract, founded in a good and valuable consideration. Canal Doc. 52, 165; 20 Johns. 89; 7 Johns. 112.
    2. That the commissioners of the canal fund are a corporation capable óf suing. Sec. 4 of the act to provide for improvement of the state by canals; 2 Johns. Ch. 335; 8 Johns. 424; 18 Johns. 418; 13 Mass. 193; 1 Cowen, 261; Canal Doc. 154, 160.
    3. That the names of the commissioners may be considered surplusage and rejected. 3 Ohio, 227; 2 Ohio, 156. As to the second point, or the argument on it, the following authorities were cited: 10 Rep. 29; 1 Strange, 253; 6 Bar. 388; 6 Vin., tit. Corporation, 265; 7 Cranch, 306; 15 Johns. 358; 14 Johns. 238.
    There were other points embraced in the briefs of counsel, which are not noticed as being particularly applicable to the Ohillicothe case, which remains undecided, as to points arising-therein, differing from the Cuyahoga ease.
   Judge Wright

delivered the opinion of the court:

The first question claiming our attention in this case is, whether the subscription paper, upon which the suit is founded, affords a legal foundation for the action? It has been repeatedly decided in this state and elsewhere, that promises to pay money for the erection of school and court-houses, churches and bridges, would, the work being undertaken or done, sustain the action of assump.sit. A moral obligatiou is sufficient to support an action on an express promise. 6 Mass. *40; 3 Mass. 483. The subscription we are now called to examine does not rest alone upon the general principle, but may invoke to its aid a positive enactment of the legislature. Section 10 of the act to provide for the internal improvement of the State of Ohio by navigable canals, 23 O. L. 57, expressly authorizes the canal commissioners to make application, in behalf of the state, to Congress, to land-holders, through or near which the canals may be proposed to pass, to public and private bodies politic, and to all the citizens or inhabitants of this or any other of the United States, for grants or ■donations, in land or money, for the 'purpose of aiding in the •construction of said canals, according to the direction of the donors, and to take, to the state, such conveyances as may be •competent to vest in the state a good title in the lands so to be granted.

It has not been disputed, nor even suggested, that the legislative competency in Ohio falls short of determining what shall be esteemed a sufficient consideration, upon which a contract or promise may be enforced in our courts of justice. Unless this competency can be questioned, the enactment referred to is conclusive of the legal efficacy of contracts under it. The contract here is not against good policy or good morals, nor against law,, but in conformity with its express provisions. It is urged, liowevei*, that the statute only contemplates grants of land, and donations of personal property, in presentí, and confers no authority to make contracts for either. We are bound to suppose the general assembly intended to confer power, to effect the only object they had in view. They have employed language too plain to admit any great latitude of construction; language addressed to the public spirit, and the interest of individuals. Yarious routes for canals were' contemplated; and in determining the choice, much depended upon the amount of contributions. Individual contributors would give more or less, according as the route adopted, or other circumstances, might be supposed to enhance the value of their property. Provisions looking to such a state of things were inserted in the law, subjecting the donations to the direction and conditions of the donor. Could a person be expected to give money or land, upon condition the canal should take a certain route, before that route *was settled, and trust to circumstances to obtain a return of the gift, or reconveyance of the land, if another route were selected ? We think the common usual method of doing such things was in the contemplation of the law, the obtaining a promise to give or convey, at an agreed time, upon whatever condition the giver chose to impose, and the obtaining written evidence of the undertaking. One proposes to give one thousand dollars in a year, if the canal goes through his land. The construction contended for by the defendant’s counsel, would deprive the state of power to avail itself of aid under such a condition. We are unable to perceive any sound reason against the making a valid contract, under the law, to pay on the happening of the condition.

Have the plaintiffs a right to sue on the contract? The declaration is upon a written promise, dated December 6, 1825, “ to pay to the commissioners of the canal fund of the State of Ohio, for the use of said fund,” the sum claimed, “ upon condition that the canal be located on the east side of the Cuyahoga river.” The suit is in the name of Brown, Buckingham, and Perkins, as commissioners of the canal fund of the State of Ohio, for the use of said fund.” It is averred that the said B., B., and P. were commissioners of the canal fund, when the money became due, and still are commissioners. At the date of the subscriptions, Trimble was commissioner with Brown and Buckingham; Perkins was appointed in the room of Brown, February 7, 1826. The individuals, therefore, named as plaintiffs were not, in fact, parties to the contract — the paper is not negotiable, and no transfer of it is alleged, and could not properly be received in evidence, in their favor. 6 Mass. 253; 10 Mass. 360; 5 Mass. 491. It is claimed that the fund commissioners are a corporation, with power to sue, and that their names may be rejected as surplusage; and, also, that inasmuch as the defendant has pleaded over to to the action, he can not now object to its form, or the right of the plaintiffs to recover, as they have declared.

Is the defendant precluded, by pleading over, from objecting the inability of the plaintiffs to sue ? In the Mayor, etc., of Stafford v. Bolton, 1 Bos. & Pul. 40, the court held the misdescription of a corporation like a mere misnomer of a ^natural person, plead-able only in abatement, while the non-existence of a plaintiff or corporation was matter in bar, of which the defendant might' avail himself, after pleading over. See also 1 Saund. 340, n. 2; Com. Dig. E, 16. The defendant can only plead nulitiel corporation in bar. Bro. Misnomer, 73. Pleading to the merits has been held by the Supreme Court of the United States to be an admission of the capacity of the plaintiff to sue. 1 Pet. 386. The general issue admits the competency of the plaintiffs to sue, in the corporate capacity in which they have declared. 4 Pet. 501. In that suit, the plaintiffs had described themselves “ a corporation, duly established,” and no individuals were named in the writ or declaration. Upon first view, we were inclined to consider this decision conclusive against the defendant, in this stage of the proceedings, but upon closer examination, we think the case eaily reconciled with the others cited. If in this declaration, only the corporate name of the fund commissioners was set out, and it was .averred they Were a corporation, etc., the general issue might be held to admit its truth, but such is not the case. The individuals named have been treated by the officers of the court, .and the counsel on both sides, as the plaintiffs. Shall we now allow them to strike their names from the record, against their own understanding of the law, and deduce from legal fiction ..an admission that it was not them, but the description they gave themselves, and affixed to their names, the defendant was called into court to answer? The complaintis by B., B., and P., as commissioners of the canal fund, upon an indebtedness to them. We feel constrained to look upon this allegation as the plaintiffs themselves seem to have considered it in their proceedings, as deserip.tive of the persons suing, not as a substantive description of a mere corporative plaintiff, and, therefore, that its truth is not admitted by pleading over.

But are the canal fund commissioners a corporation, empowered to sue as such? It is not necessary in this case to determine, whether,for any purpose, this board of commissioners may be held a quasi corporation. An examination of the acts creating it, without aid from legal subtleties, would impress no one with the idea that the legislature intended*to create a corporation. The object was, to create certain public agents, to perform certain duties for the state, a majority of whom should determine its acts. Power was given to the board, thus created, to borrow money on the credit of the state, to receive and manage the canal fund, to pay interest, and finally, to disburse the fund to the canal commissioners, to pay for a state work, and, for its engagements, the means and faith of the state were pledged. Evidently these commissioners were created to transact the business of the state, solely upon its responsibility. Can it be supposed, for one moment, that capitalists were expected to supply these persons, upon their own individual or corporate liability, with several millions of dollars, to be expended upon the works of another corporation ? If the act creating this board of commissioners confers only corporate powers upon the individuals composing it, does, it not follow that only their corporate means would be held for their engagements? We-may ask, in the forcible language of one of the counsel for the defendant, what single feature of a corporation do they possess? They have no name given them as such, no power of perpetuating their succession, no common seal, no power to make any contracts, “ except in the name, and for the state,” or hold any property upon which execution could be levied, in case of a judgment against them. Mere agents of a corporation, the state, with limited and specified power, for a limited purpose, their acts, dono agreeably to the authority delegated to them, are the acts of the State of Ohio, binding upon the state, not upon the commissioners, either as corporators or individuals. The allegation that the suit is for the use of the canal fund, does not impart to the suit any new vigor. The canal fund is neither a natural body nor a body politic. Can a mere ideal thing be a cestui que use ? The contract in question is neither within the express powers conferred upon the fund commissioners, nor the general scope of .their authority. But the leg^ islature has not left the question to conjecture. Section 10 of the act referred to, 23 Ohio L. 57, imposes the duty of soliciting, and the power of receiving donations, upon an entirely different board, the canal commissioners. This jDOwer, so expressly conferred upon other agents, can not be taken, by implication, *as conferred upon the fund commissioners. The case of Hardin v. Trustees of New Haven, 3 Ohio, 227, is confidently relied upon by the plaintiffs. That was a suit brought by F., B., and P., trustees of New Haven township, upon a township liability. The court say, page 229: “ Statutes creating corporations, usually give them corporate names, and authorize them to sue and be sued by the name given.” The act incorporating townships declared them bodies corporate and politic, capable of suing and being sued, but it does not give them corporate means, nor direct by what name suits shall be carried on, for or against them. The act for the relief of the poor gives the charge of paupers to the overseers of the pool’, at the expense of tho township, and the trustees are empowered to prosecute the necessary action against the trustees of any other township,-etc. In this.law the phrases, the township, the overseers of the township. and the trustees of the township,” seem to be promiscuously used as synonymous expressions. The court adjudged that the suit must be against the corporation, and from the whole statute, as the affairs of the township were principally managed by trustees, there was no impropriety in suing the corporation in the name of the trustees of the township, or in rejecting the names of F., B,, and P. as surplusage, it being evidently the intention to sue the township. .Our opinion does not conflict with this decision. There was a corporation expressly vested with power to sue, and the only difficulty was in ascertaining the corporate name. The court held one of those used in the act sufficient, if it showed clearly the suit to be against the corporation. Nor do we interfere with that class of cases where church wardens, school directors, etc., have been holden to possess the right to sue. “ There are many instances in the case of collective bodies of men, coming under one general description, endowed with a corporate capacity, in some particulars expressed, but who have, in no other respect, the capacities incident to a corporation,” and where a public office is instituted by the legislature, an implied authority is conferred on the officer, to bring all suits, as incident to his office, which the proper and faithful discharge of his duties require.” 18 Johns. 418. This implied corporate power *to sue, if it may be so described, arises from necessity, when, without a resort to it, there would be a failure of justice, or an inability to attain the end aimed at, in conferring powers on the agent or officer; and in most, if not all these cases, the body or community, for whom the agent or officer acts, is incapable, in law, of maintaining^ a suit. A majority of the court is of opinion, that the fund commissioners are not a corporation for the purpose of sustaining this suit, and that the objection, under the pleadings in this cause may be made now.

It does not follow from this decision, as counsel seem to fear, that the defendant, and all others contracting with the fund commissioners, or the canal commissioners, are altogether exonerated and discharged from their contracts. This suit fails for want of proper parties. Cases are numerous, and of every day’s occurrence, where public officers and agents of corporations make contracts in their own names, which accrue to the benefit of their principals. The affairs of our banking institutions are managed by boards of directors; yet it would hardly be contended that the board, as directors, could sue, upon a contract made with it to pay money to the cashier, or to themselves; or that the cashier could bring such suit. Such a contract would be held the contract of the bank, who alone could sue upon it. Macbeth v. Hardimand, 1 Term, 172; Unwin v. Wolsely, 1 Term, 674, and Hodgson v. Dexter, 1 Cranch, 345, are strong cases of engagements by public agents, nominally in their own names, held to be public contracts. The last was a suit upon a lease for a house, botjveen the plaintiff and Dexter, secretary of war, in which he covenanted for himself, and his successors, and was executed with his signature and seal. Chief Justice Marshall, in giving the opinion of the court (page 263), says: “It is too clear to be controverted, that when a public agent acts in the line of his duty, and by legal authority, his contracts, made on account of the government, are public, and not personal. They accrue to the benefit of, and are obligatory on the government, not the officer.” “The court is unanimously, and clearly of opinion, that this contract was entered into entirely on behalf of the gov-ernmen’t, by a person pi’operly authorized to *make it, and that its obligation is on the government only.” By the act of assembly referred to, empowering the canal commissioners to receive donations, etc., they are expressly required to be in behalf of the state, or to the state. The promise in the subscription paper was to the same effect as if it were a promise to pay into the state treasury. It is to pay to the Canal fund commissioners, for the use of the fund. This fund they arc intrusted with, as the treasurer is with the general funds of the state. The designation of the fund commissioners is but the designation oí the agent to receive the money. The expression does not seem to have been used to discribe the obligee of the contract. Wo are unanimously of opinion, that suits on this and other like contracts, and on contracts with the canal commissioners, may, and should be brought in the name of the state, in whose behalf, and on whose account they were made. 2 Kent’s Com. 492; 2 Esp. 567; 5 Mass. 491; 10 Mass. 327; 15 Johns. 1; 1 Green, 162.

A new trial must be granted, the costs to abide the event of the suit; but we advise the plaintiff to submit to a nonsuit. A non-suit was entered.

Judge Collet dissented from the court as to the corporate powers of the fund commissioners, and the right of the defendant to object to their want of power, after pleading to the suits.


source: Caselaw Access Project

author: Judge Hitchcock:

license: Public Domain

text:
    Smith Allen and James Young v. Jacob Little.
    Under the statute of Ohio, a married woman can make a will devising real estate held in her own right.
    This cause came before this court, by adjournment from the •county of Licking.
    It was an action of trespass, guare clausum fregit, and was submitted to the court upon an agreed statement of facts. The facts were these: Benjamin Pegg and Catharine Hull were lawfully joined in marriage, in the year 1780, and lived together in Pennsylvania, until they had eight children. *In the year 1800, they separated by articles of agreement, and continued to live separate and apart until the death of the said Catherine. Soon after the separation, the said Catherine removed to the State of Ohio, and purchased the lot upon which the trespass-is alleged to have been committed. In the year 1814 she made her will, devising the same lot to one Mary Ann Pegg, and soon after died. The will of Catherine Pegg was made without the assent of her husband, and he is still living.
    In the year 1830, Mary Ann Pegg devised the same land to a stranger, under whom the plaintiff claims, and died. The agreement concludes as follows: “ And it is agreed, that if the said Catherine, while a feme covert, as aforesaid, could make a valid will of ■said lot, then the plaintiffs are entitled to recover; if she could not, then judgment to be entered for the defendant.” The only question made was, whether under the laws of Ohio, in force in 1814, a feme „covert could make a valid will or devise of land, and the decision •of that question was adjourned here.
    Ewing, Dille and Hunter, for the plaintiffs, contended:
    That whatever may have been the decisions in England, under the statute of wills, or the decisions of the courts of the different states in the Union, under the statutes of those states, the intention of the legislature of Ohio is clearly manifest in the act of February 18, 1808, for “ proving and recording wills,” etc., to empower a feme covert to dispose of her real estate by will. That the same principle has continued to pervade the legislation of the state upon the .same subject, until the present time, and that the court are bound to carry this intention into effect.- They further contended that even should it be doubtful, whether, where the wife was living with the husband, she could make a will, still that it might be done, when she was living separate and apart.
    Searle and Stetson, for defendant, contended:
    That the several statutes of Ohio are not materially variant from the statute 32 Henry VIII., commonly called the ^statute of wills, and that, under that statute, it was held that a married woman could not make a valid will. They cited 1 Powell on Dev. 140; Dyer, 354; 12 Mass. 525; Kirb. 194; 2 Day, 63; 10 Serg. & R. 445.
   Opinion of the court, by

Judge Hitchcock:

At common law, real estate could not pass by will. By the statute 32 Henry VIII., cap. 1, it is enacted, “ that, ail and every person or persons having, or which shall hereafter have, any manors, lands, tenements, or hereditaments, holden in socage, or in the nature of socage tenures, shall have power to give, dispose of, will, and devise the same, by his last will and testament.” This statute contains no clause of restriction as to the person who might devise. It is general in its terms — “ all and every person or persons.” In giving a construction to it, the courts seem to have been inclined to limit the power of devising to those persons who, by the principles of the common law, were enabled to bind themselves by contract. That doubts existed as to the propriety of this construction, is apparent from the fact that at the very next session of Parliament it was deemed necessary to pass an explanatory act. Section 14 of the 34 and 35 Henry VIII., cap. 5, enacts, “that no wills or testaments made of any manors, lands, tenements, or hereditaments, by any-woman covert, or person within the age of twenty-one years, or by idiots, or by any person of non-sane memory, shall be taken to be good'and effectual in law.”

These statutes being the first made in England, upon the subject of devising real estate, all the decisions which have been made by English courts have been made with reference to them. It is not singular that those decisions should be uniform, denying this right to femes covert. The statutes prohibit such persons-from devising, and the courts would not incline to establish a. principle contrary to both the spirit and the letter of the law. English eases can be of no authority here, unless it first be shown-that the statutes under which those cases were first decided are similar to our own. It can not, however, be matter of surprise that, among the profession, the opinion should prevail that even in our state *a feme covert can not'make a will. We get our ideas from reading English law books, and the books of reports published in our sister states; and without stopping to inquire what change has been made by our own local legislation,xwe adopt as sound law the principles there advanced.

Counsel for defendant say it is holden in New York, Massachusetts, and other states that married women can not dispose of real estate by will. We are aware that such is the law in some of the states, although not in all. But before we can receive the cases cited as authority, we must see the statutes by which the courts were governed. If those statutes are similar to our own, then the* cases decided will be entitled to great consideration.

The case of Osgood v. Breed, 12 Mass. 525, is much relied on by the defendant’s counsel. In that case the Supreme Court of Massachusetts decided that the will of a married woman is void. They say, “ The power of devising is given to every person lawfully seized of any lands, etc., in his or her own right. But a married woman is not so seized. She and her husband are jointly seized in her right.” The peculiar phraseology of the statute is-relied upon by the court as the reason why a married woman may not devise. But the phraseology of our statute is materially different. By the act of February 10, 1810, 8 Ohio Stat. 146, the testator is authorized “to devise all the estate, right, title, interest in possession, reversion, or remainder which he or she hath, or at the time of his or her death shall have, in or to lands, tenements, etc.” This was the statute in force at the time Catherine Pegg* made her will, and at the time of' her decease. No one will deny that a married woman hath an interest in her own land. There being then this difference between the statute of Massachusetts and that of Ohio, the case of Osgood v. Breed can have but little influence in giving a construction to the statute of the latter state.

In the case of West v. West, 10 Serg. & Rawle, it is decided by the Supreme Court- of Pennsylvania that a feme covert can not dispose of her lands by will; and in deciding the case, that court express surprise that any person should ever have thought otherwise. It may be a matter of surprise *if we look to the .statute of Pennsylvania, but no one will doubt the power of the legislature of that or any other independent state to confer such privilege upon a married woman. The first statute in the Northwestern territory on the subject of wills was ado|>ted from Pennsylvania, and took effect October 1, 1795. Ohio L. L. 457. It is presumed that this was the statute under which the case of West v. West, before'referred to, was determined; and if there had been no change in the law by subsequent legislation, that ease would be one in point, and by the authority of which we should feel ourselves bound.

Having made these preliminary remarks, let us now examino the local legislation of Ohio, and ascertain whether it has been such as to make any innovation upon the statutes of England, or •of our sister states. And if) upon such examination, it shall be found that a fair construction of the legislative acts leads to the conclusion that our own legislature have intended to confer the power upon femes covert of devising real estate, it is not for the court to thwart or disappoint that intention. It is our duty to declare, not to make the law.

The ordinance for the government of the territory of the United States, northwest of the river Ohio, Land Laws of Ohio, 252, contains, among others, the following provision : “And until the governor and judges shall adopt laws as herein mentioned, estates in the said territory may be devised or bequeathed by wills, in writing, signed and sealed by him or her, in whom the estate may be (being of full age), and attested by three witnesses.” This ordinance was passed by Congress, on July 13, 1787, and has ever been considered the fundamental law of Ohio, until the adoption of the state constitution. No law upon the subject of wills was adopted by the governor and judges until 1795 ; of course, until •that time, the before-mentioned clause in the ordinance was the law. It will be perceived that there is no restriction as to the •right of devising, excepi that the devisor shall be “ of full age.” Whether it aver became necessary for the territorial courts to give a construction to this provision we know not. Had it been necessary, however, it is but reasonable to suppose that it would have been held, that it did not ^confer the power upon a married woman to make a will. Such decision would have been in conformity with the decision of the courts, and this court would hold the same, upon the same general expressions^

On June 19, 1795, the governor and judges adopted from Pennsylvania “ a law concerning the probate of wills written and nuncupative,” which took effect October 1st, of the same year. This law, however, did not vary from the ordinance as to those persons-who should have power to make wills. It is the only statute upon-the subject, previous to the adoption of the constitution, and is probably similar to the statute of Pennsylvania, under which the-case of West v. West, was decided. It continued in force until June 1, 1805.

Since the organization oí the state government, this subject has been frequently before the legislature. In the short space of-twenty-six years, no less than six general laws, besides a grea-t number of amendatory and supplementary acts have been passed, directing the manner ol executing, proving, and recording wills and codicils.

The first of these was passed on January 5, 1805, to take effect the first day of June then next following. 3 Ohio L. 173. This statute is similar in its general features to that of 1795, and makes no change in the descriptions of persons who may devise.

On February 18,1808, another law was enacted to take effect on the first day of June of that year. 6 Ohio L. 75. The first section points out who may make'a will. It enacts as follows: “Every male person aged twenty-one years or upward, and every female person aged eighteen years and upward, being of sound mind,, shall have power, at his or her will or pleasure, by last will and testament, in writing, to devise all the estates, right, title, and interest in possession, reversion, or remainder, which he or she hath, or ■at the time of his or her death shall have, of, -in, or to lands, tenements, hereditaments,” etc. Upon these general words and expressions there is no restraining clause, nothing from which we-can infer that the legislature intended anything more or less than is expressed. Now I would ask what is meant by the phrase !i every female person of the age of eighteen years *and upward.” I do not ask those alone, who have derived their ideas of the propriety of any law by reading English books, or who would enlarge or restrain a statute of Ohio, so as to make it compare with a statute upon the same subject, although with different phraseology, enacted in New England, Now York, Massachusetts, Pennsylvania, or any other state in the Union ; but I ask any man of ordinary common sense, who desires to arrive at a correct understanding ■of a statute, by giving to the words used by the legislature their ■ordinary and appropriate meaning. The law is made, not for the benefit of this or that profession, or class of men, but for the community at large ; and every statute should receive such construction as is consistent with the common sense of that community. What, then, is the moaning oí the words “ every female person ?” Is not a married woman a person? She is, so far that she .may be punished for her criminal acts, and why may she not be, so far as to make a will? She labors, it is true, under many disabilities, but it is within the power of the legislature to remove those disabilities, and when this power is exercised, it is not the province ■oí this court to correct the procedure. If a manned woman is a female person,” she is authorized by the act of 1808 to make a will, and that she is thus authorized, seems to be clear beyond a ■doubt, to a majority of the court.

It has been argued by the counsel for the defendant, that to give this construction to the statute would be fraught with danger. We are aware of the disabilities under which a married woman labors at common law. We are aware that to some intents she is esteemed as dead in law; that her contracts are not 'obligatory upon her ; that she is not answerable even for crimes committed in the company of her husband. Still, notwithstanding all these disabilities, she may, even in England, convey her lands by fine, and in our own state by deed, if executed by and with her husband. And we do not readily perceive that there is any more danger to be apprehended from1 permitting a feme covert to transfer her land by will, than there is in empowering her to convey by deed. '■

The act of February 10, 1810, was the law in force at the time when Catherine Pegg made her will. 8 Ohio L. *146. The first section of this act is the same with the first section of the act of 1808. A majority of the court are of the opinion that at the death of Catherine Pegg, the lot of land in controversy, passed by the will of the said Catherine to Mary Ann Pegg, and that the law arising upon the agreed statement of facts is with the plaintiffs.

Whether Benjamin Pegg could have his courtesy in the premises we do not now undertake to deeidq, that question not being made upon the question presented. Nor does the circumstance that the wife was living, separate and apart from her husband, .have any influence with the court. We go upon the ground that, by the statutes of February 10, 1810, a married woman had an unquestionable right to make a will.

Judge Collet dissented.


author: Judge Wright:

text:
    James Hall, Administrator of Abel Jewett, Sen., deceased, v. Eli Pratt and Susannah, his Wife, Administrator and Administratrix of Abel Jewett, Jr., deceased.
    Where a creditor is appointed administrator to his debtor, and dies without receiving assets, it is not to be assumed that the debt was paid, nor is it extinguished.
    This cause was reserved for decision here, in the county of Licking.
    It was an action of assumpsit, upon promises between the respective intestates. The first cause is upon a note for thirty-five dollars, in grain or pork, given by the intestate of the defendants to the intestate of the plaintiff. The second count is upon a similar note for twenty dollars. The third is the common counts for work and labor, money paid, had, and received, goods sold and delivered, etc.
    The defendants pleaded the general issue, and gave notice of set-off; and also, that after the decease of the said Abel Jewett, jr., the said Abel Jewett, sen., became co-administrator of his estate, with the said Susannah Pratt, and as *such administrator, he received divers large sums of money, out of which he retained whatever was then due and owing to him, the said Abel Jewett, sen.
    Upon the trial, the plaintiff offered the notes specified in the first and second counts to the jury. It was admitted that after the death of Abel Jewett, jr., Abel Jewett, sen. (the payee), together with said Susannah Pratt, administered upon his estate, gave bond, and took the usual oath. There was no evidence that Abel Jewett, sen., did any other act as administrator. He afterward died. The said Susannah subsequently married the said Eli Pratt, and at the March term, 1826, she, in conjunction with her husband, settled the accounts of the estate of said Abel Jew■ett, jr. The accounts were also produced. They were made out under the following caption : “ Dr. Susannah Pratt (late Susan-nah Jewett), administratrix of the estates of Abel Jewett, jr., in account current with said estate. Or.”
    In this account she charges herself with the amount of the assets, which came to her hands — seven hundred and seventy-six dollars and twenty-six cents. She credits herself with money paid out — five hundred and twenty-three dollars and sixty cents — and gives the items of payments, from which it appears that nothing was ever appropriated,paid, or retained on account of the two notes; leaving a balance in her hands of assets of the estate amounting to two hundred and fifty-three dollars and sixty-six cents.
    In this state of the testimony, counsel for defendants objected to the admissibility of the notes, which objection was sustained by the court, and judgment rendered against the plaintiff, to reverse which, this writ of error is brought.
    H. Stanbery, for plaintiff in error:
    The ground taken by the court below, and now relied upon by the defendants’ counsel, in support of this decision, is this : That when Abel Jewett, sen., the creditor, became administrator to Abel Jewett, jr., the debtor, the right of action was suspended, and being once suspended, it could never be revived.
    *The case of Bigelow v. Bigelow, 4 Ohio, 147, was supposed by the counsel to settle this case; foryaltkough not analogous in circumstances, it was said that the principle there established embraced it.
    In the case referred to, the debtor had administered to the creditor. The court held the consequence to be, that the administrator and his sureties should be fixed with the amount of the debts or assets; and that no action could afterward be maintained against the administrator for the debt as it originally stood.
    It is admitted, however, that the court do say, a personal action once suspended, is always suspended; and that this principle is there laid down without, qualification. The authorities referred to by the court are Cro. Car. 372, and 1 Com. Dig. 337.
    The case in Cro. Car. is Dorchester v. Will; and the facts are these: There were two obligors in a joint and several bond. One of the obligors died and made A. his executor. The obligee afterward died and also made A. his executor. A., as executor of the obligee, brought debt on the bond against the surviving obligor. The defendant pleaded these facts ; and that assets of the deceased obligor bad come to the hands of A., sufficient to pay this debt. A. replied, that neither at the death of the obligee, nor at any time afterward, had any goods of the deceased obligor come to-his hands. The defendant demurred. The court overruled the-demurrer, and held that the action was maintained. In their opinion, the court put a number of cases, and among others the following: “When the. debtee makes the debtor his executor, it is not absolutely a discharge of the debt, for the debt remains as assets in the hands of the debtor executor; and it is quasi a release in law, because he can not be sued; but it is a mere suspension of the action; when a feme debtee takes the-debtor to husband; or if a man debtee takes the debtor to wife, that is a release in law, because they may not be sued, and personal actions once suspended, are perpetually suspended. But when the executor of the debtor is made executor of the debtee, he has nothing thereby in his own rights, but it is only to sue an action in the right of another.” None of these cases resemble *the case at bar, in which the debtee administers to the debtor; but it is claimed that they establish a principle within the operation of which the case at bar must come. And that principle is, that when a right of action is so circumstanced as to-be temporarily suspended, it is not merely suspended, but is absolutely extinguished.
    Now, as a general proposition, embracing all cases, and especially as applicable to this case, I deny this consequence of the suspension of a right of action. I am prepared to suggest to the court a variety of cases, in which there is this temporary suspension, and yet no extinguishment; and to show that in every case where a total extinguishment has been holden to be a consequence of suspension, this intendment has been made upon some sensible ground, to advance justice and to prevent the delay o'r destruction of rights. Indeed, this is the uniform character of all legal fictions.
    The cases put in Dorchester v. Webb, above cited, are in conformity with thes^ views. “ 1. If the debtee-makes the debtor his executor, it is not a discharge of the debt, for the debt remains as assets, in the hands of the debtor executor, and is quasi a release’ at law,' because he can not be sued,” etc. Here this intendment does not violate common sense and useful reason. Inasmuch as the debt can not be enforced by suit it is right that it should be¡ reached in some way, and therefore, the law presumes that the individual debtor has paid to himself as- administrator the amount of the debt for the use of the estate.

      “2. But it is a mere suspension of the action where a feme -debtee takes the debtor to husband.” It is difficult to understand what consequence, as to the action, the court intend, under these circumstances. The case of debtor executor is hold'en to be a release or extinguishment of the action; this case of feme debtee immediately follows, and is so put as to seem to be contradistinguished from the other. “But it is mere suspension of the right of action, etc.;” that is, not a release or final discharge. If this be the true construction, then this case is one, where a mere suspension works no extinguishment of the right of action. But if the case do not warrant this construction, and is taken to fall within the rule of extinguishment, there is no reason for it. *It is not the case of a fictitious union of creditor or debtor in an executor or administrator (which alter no liabilities), but of their actual legal union in marriage, which operates an entire transmutation of precedent rights and liabilities. By the marriage the husband becomes entitled to the choses of the wife upon reducing them to possession. As debtor, he is already in possession of the debt, which is the chose, and rei instanti, upon the marriage, it becomes his own and is extinguished.
    “ 3. Or if a man debtee takes the debtor to wife, that is a release in law, because they may not be sued, and personal actions once suspended are always suspended.” In this case no one can doubt that the marriage operates as a discharge of the debt, for the plain reason that the debt due from the feme, upon her coverture, becomes the debt of her husband, and therefore, the remedy, by action, expires with the debt itself. Why resort to the fictitious and nonsensical reason of the text, when the true reason is obvious and sensible.
    The only other book referred to by the court, in Bigelow v. Bigelow, is 1 Comyn’s Digest, 337. “ If an executor, who was indebted to a testator dies, an action does not lie against his executor or administrator for the debt; for a personal thing suspended is extinct.” Off. Ex’rs. 45 is cited in the margin. If this passage is understood to mean that under such circumstances the debt is extinguished, and no action lies against the debtor or his representatives, then it is not now the law. An action does lie against the debtor or his representatives, and even against his sureties to recover the full amount of the debt. Vide Bigelow v. Bigelow, ut supra. But if it is taken to imply that no action afterward lies to recover the identical debt as it stood before the death of the creditor, then the true reason is, that the right of action for the debt is gone, not because of its suspension, but because the law presumes the debt to be paid and changed into assets, for the recovery of which a different right of action is substituted.
    I pass to other cases illustrative of the operation of this principle of suspension.
    “ The case upon a special verdict was: a woman executrix mar•ri eth with a debtor of the testator, the husband dieth and *debt was brought against the woman, who pleaded riens inter mones, and •all this was found; and if this was assets, was the question. And it was adjudged that this was not assets in her hands, for by the intermarriage, the debt which the executrix had in auter droit, was not extinct, but suspended, and the action was revived against the executor of- the baron.” Crossman v. Reade, Cro. Eliz. 114. Here was a case of temporary suspension of the right of action, and according to the unqualified rule in cases of suspension contended for, the right of action was extinct. In this instance such a consequence would have worked a manifest injury to the estate of the -deceased creditor of the feme, as she would then have been liable to the amount of the debt as assets, when by the finding of the jury she had never received one cent of it. The rule was, therefore, held not to apply; and the decision of the court leads to this result: that as there is no reason in the rule, there must be some reason out of it to authorize its application.
    In Co. Lit., title Releases, 264, B. it is said, “If a feme executrix take the debtor to husband, this is no release in law, for that should be a wrong to the dead, and in law work a devastavit, which an act in law should never work; and so it was adjudged in the King’s Bench.” Mich. 30 and 31 Eliz.
    In the case of Wankford v. Wankford, Salk. 300, the question arising in the case at bar is very fully considered in all its aspects.
    It is said, by Powell, Justice, “There would be a great diversity when the obligee made the obligor his executor and when the obligor made the obligee executor; for, in the last case the debe is not extinct, but only upon supposal -that 'the executor has assets which he may retain to pay himself; for, though the obligee may give the obligor the debt, yet that will not hold vice versa, but in case of failure of assets, the executor may sue the heir. Indeed, where the executor has the assets the debt is gone, but that is be-’ cause he may retain and pay himself, and so is 12 H. IV., c. 21; Plowd. 185, B. But if he have no assets the act is never so much as suspended, for the executor may sue the heir at the very day; and so it is not within the rule of a personal action once suspended, etc.”
    So, Holt, C. J.: “ If the obligor make the obligee or the *ex ecutor of the obligee his executor, this alone is no extinguishment,, though the same hand is to receive and pay; but if the executor has assets of the obligor it is an extinguishment, because it is-within the rule that the person who is to receive the money is the person who is to pay it; but if he have no assets, then he is not the person that ought to pay, though he is the person who is to-receive it,” etc. “ In the cases of Locke and Crosse, where the obligee was made executor to one of the obligors; and in action by him against the other, the matter was pleaded, and the plea was-held to be naught, because it was not shown to what value the-assets were that he administered. But if the defendant had shown that he administered goods to the value of the debt in demand, it had been a good plea.” Hob. 10; Hutt. 138; 2 Lev. 73; 3 Keb. 116, are cited in the margin.
    In 3 Bac. Abr. 10, under the title “ of making creditors executors,” it is said:
    “ The reason why the debtor’s making the creditor his executor, or the creditor’s taking out administration (which is precisely our case) is said to suspend or extinguish the action, is on supposition of assets. So, if there are -no assets, he may sue the heir of the obligor, where the heir is bound.”'
    Thomas v. Thompson, 2 Johns. 471, may be cited and relied on as establishing a different doctrine. It is therefore proper to notice it. A. recovered judgment against B., as administratrix of C., and afterward appointed B. executrix, and died. It was held, that the judgment debt was thereby extinguished. Tan Ness, Justice, in delivering the opinion of the court, lays down the rule that a personal action once suspended is always suspended, without exception or qualification. But, in a few paragraphs after, the learned judge refers to the rule laid down by Lord Holt, in Wankford v. Wankford, 1 Salk., ut sup., to determine when a suspension of the remedy works an extinguishment; and according' to that rule, he decides that as the executrix, in the case before him, had assets in her hands as administratrix, the debt was, for that reason extinguished, as the same hand Was to pay and receive.
    The principle deducible from the foregoing cases, in reference to the case at bar, is clearly this: That as Abel Jewett, *sen., never •had assets in his hands to satisfy his debts, as there was no retainer by him while his temporary administration continued, and .as there has since been no payment of it, by the surviving administratrix, the debt yet survives, and the remedy, by action, survives with it. To hold the contrary, would lead to manifest injustice, and deter any creditor from availing himself of the provisions of our statute giving to him the right of administration upon the estate of his deceased debtor.'
    It-has been shown that the legal fiction of a temporary suspension of the right of action, being an extinguishment, is not of universal application. Other'instances than those already before the court suggest themselves.
    Between an intestacy, and the granting of administration, there -is a total suspension. So in the ease of alien enemy, of coverture, .and outlawry.
    J. Dille, for defendant in error:
    The question arising in this case was so fully settled in the ease of Bigelow v. Bigelow, 4 Ohio, 147, that it seems hardly necessary to trouble the court with any remarks here. The principle there recognized, that personal actions once suspended are always suspended, establishes as complete a bar in this as it did in that case, to the plain tiff’s recovery. That principle is so settled by authority that the court will pause long before it sets it aside and exposes us to greater injustice, resulting from the want of such a rule. Because a rule may, in an individual case, work injustice, is no good ground for setting it aside; for every rule of law may have this effect. We find this principle recognized on broader grounds in Noy’s Maxims, 2d Am. ed. from 9th London ed. 33, Max.
    The law considers that a creditor places himself in a better situ.ation by becoming administrator to his debtor, for he thereby may retain his debt out of the assets which come to his hands. If he •does not do it, it is his own fault, and there are no other means inown to the law whereby he may recover such debt.
    When he becomes administrator, the contract, eo instanti, is ^extinguished, for it loses one of its essential requisites — parties. Yet no injustice is done, for he may retain. Such is the rule of law in all cases of this kind. If a woman marry with her obligor, the debt is extinct, and she shall never have any action if another be bound with him, for by the marriage the action is suspended, and an action personally suspended against one is a discharge to all.” Noy’s Max. 83. But suppose this rule should not' apply here. The fact that Abel Jewett, sen., became administrator to Abel Jewett, jr., is prima fade proof that assets came to his hands, and that he retained his debt. If retained, the notes upon which this suit was brought, were paid and satisfied, and can be no longer the subject of an action. To rebut the effect of this proof, the settlement of Susannah Pratt, the co-administratrix, is offered in evidence, wherein, among the items of payment, nothing appears to have been paid or retained on account of those notes. This proves nothing. Susannah Pratt was obliged to account for nothing but the assets which came to her hands. If-money or property was received by Abel Jewett and wasted, she is not liable for it, but is bound only to account for the assets which came to her hands. 2 Bac. Abr. 295, tit. Ex’rs and Adm’rs, letter D, 2. Indeed, in that account, she only professes to account for what she received, for the court will perceive from the bill of exceptions, that her account is under the following caption : “Dr. Susannah Pratt (late Susannah Jewett), administratrix of the-estate of Abel Jewett, jr., deceased, in account current with said' estate.” This account, then, proves nothing in favor of the plaintiff. There is no fact in the whole bill of exceptions to show that this-is a hard case, requiring an exemption from the rule. But, on the other hand, reverse this established rule of law, and you will place every ease of this kind in a labyrinth of difficulty. As for instance, A. dies indebted to B., who administers; after some time B. dies, and C. administers upon his estate, and D. takes letters-of administration, de bonis non, of the estate of A. C., as B.’s administrator, brings suit against D., administrator of A. As the-law now stands, he can not; but reverse the rule, and in order to establish his defense, you will compel D. to prove that which is-impossible: the secret retainer by *B. of his debt out of the assets which came to his hands. There may be the specious appearance of justice in this praeti.ee, but it requires but little reflection to perceive that it will open wide the door to injustice.

      'The rules of law are general in their nature, and there is no one of them that may not, in some particular cases, operate hard;, yet the hardship must he borne with, and he who suffers must console himself that it is for the public good.
    It was not incumbent on us to prove that assets came to his hands. That is presumed from the fact that he was legally qualified to receive, take, and hold them. That presumption might, have been rebutted by proof that he died immediately after he was qualified. But no such proof was offered. He might have lived .years after he became administrator. There is no fact that takes-this case out of the rule, and let the law prevail.
   Opinion of the court, by

Judge Wright:

The plaintiff intestate was the promisee of the notes on which the suit is brought, which were given by the defendants’ intestate. The promisoe, in his lifetime, was appointed administrator to his promisor, but never received any assets, and the main question presented is, whether the mere appointment of a debtee administrator of his debtor’s estate, extinguishes the debt.

The granting administration of an estate to one indebted to the intestate, is an extinguishment of the debt. The chose in action becomes converted into a chose in possession, and is transmitted, by the mere operation of law, which is equivalent to judgment and execution. The debt is thus satisfied and extinguished. The instant administration is granted, the administrator being the person to pay and to receive, is considered as having paid the debt,, and as holding the amount in his hands as assets; and the debt having once become assets, no act of the parties can return them back to an obligation. Bigelow v. Bigelow, 4 Ohio, 147; Gordon on Decedents, 153, 159; Toll. Ev. 238; 1 Com. Dig. 135, 136; Dorchester v. Webb, Cro. C. 372; Wankford v. Wankford, 1 Salk. 302, *305; Winship v. Ross, 12 Mass. 199; Hayes v. Jackson, 6 Mass. 149; Stevens v. Gaylord, 1 Mass. 256; Woodward v. Lord Darcy, 1 Plowd. 184-186; 1 Sid. 79. The case of Bigelow v. Bigelow, which is solely relied upon by defendant’s counsel, is one of this class of cases. In that case the defendants’ intestate had. been appointed administrator to his creditor, and it was held that the debt due by him, having become assets in his hands, no action could be maintained upon the original debt against him. The principle of this decision is sensible, and is founded in justice. It •does not release the debt without payment, but charges the person bound to pay the money, directly with it, as assets.

The case at bar is entirely different. Here the creditor, not the debtor, is appointed administrator. In such cases the grant of administration may, or may not, according to circumstances, extinguish the debt. The rule is different, but like that applicable to the other class of cases, it looks to the same end, the attainment of justice by direct means. It is that the administrator has a' right to retain what is due to himself out of the assets in his hands to be administered, because he can not sue himself. Gordon on Decedents, 179; 2 Black. Com. 571; 3 Black. Com. 18, 19. If, •under such circumstances, he could sue himself, it would avail nothing, for the mere operation of law, in this, as in the other class of cases, is equivalent, to judgment and execution. It must be obvious that the right to retaimsupposes the possession of assets out of which the debt may be retained. Without chattels of the decedent the right in the administrator would be naked and fruitless; in such cases it is laid down that the appointment of one administrator to his creditor is not an extinguishment, unless he has in his hands sufficient to satisfy the debt; and if the goods he has are insufficient, or he has none, he may immediately sue the heir. Gordon on Decedents, 185. In the case at bar it is admitted that no.assets whatever came to the hands of the administrator. There could not, therefore, be an extinguishment of the debt, arising either from supposed satisfaction or from mere operation of law.

The counsel for the defendants rests' his defense upon the expression of the court in the case of Bigelow v. Bigelow, 4 Ohio, 147, that “ personal actions once suspended are *always suspended. Cro. Car. 372.” And the remark of the court that “Chief Baron. Comyn, who is himself said to be authority, has recognized the.principle as a sound one, that a personal, thing suspended is extinct. 1 Com. Dig. 337.” The case referred to in Cro. Car. is Dorchester v. Webb; there one of two obligors had died and made A. his executor; the obligee died afterward and A. was his executor also. A., as the executor of the obligee, and the surviving obligor, pleaded that' assets of the deceased obligor had come to A.’s hands sufficient to pay the debt. To which it was replied that no goods of the obligor ever came to his hands. Upon demurrer, which admitted the truth of the replication,’the court held the action maintainable, and agreed “ that when the debtee makes the debtor his executor, it is not absolutely a discharge of the debt,” for the debt remains as assets, and is quasi a release in law, because he can not be sued ; but it is a mere suspension of the action where a feme debtee marries the debtor; though “ if a man' debtee takes the debtor to wife, that is a release in law, because they may not be sued, and personal actions once suspended are perpetually suspended !” The decision of the case reported is right, but the careless report of the language of the court occasions the difficulty. The first proposition of the court I have shown by abundance of authority, and the reason of the thing is correct; the second rests, palpably, on a similar principle. By the intermarriage, if the woman be the debtor, the debt becomes, by operation of law, the debt of the husband, and so is extinguished, and the remedy'is gone; so the law gives the husband the ehoses in action of the wife when reduced to possession, and if he himself be the debtor he is already in possession of the debt, and eo instanti, upon the marriage it becomes his own, and is therefore extinguished. . These are cases of extinguishment and not of suspension. And the very ease in which the court are made to say, “personal actions once suspended are perpetually suspended,” was one of temporary suspension, so declared to be, and for that reason was sustained by the court. The passage in Com. Dig. 337, is this : If an executor, who was indebted to the estate dies, an action does not lie against his executor or admintrator for the debt; for a personal thing suspended is *extinct.” In Crossman v. Reed, Cro. Eliz. 114, a woman executrix had married a debtor of her testator ; the husband died, and debt was brought against the woman. She plead riens inter manes, which was found, and whether this was assets was the question. The case was adjudged for the defendant that this was not assets, because the debt held by her, as executrix, was in auter droit, and therefore was not extinguished by her marriage, but only suspended ; and the right of action was revived against the executors of the husband.

In Wankford v. Wankford, 1 Salk. 302, Justice Powell asserts that where the obligor makes the obligee his executor, the debt is extinct “ only upon the shpposal that the executor has assets which he may retain to pay himself; for though the obligee may give sthe obligor the debt, yet that will not hold vice versa. But in case of failure of assets, the executor may sue the heir. Indeed, where the executor has the assets, the debt is gone; but that is because he may retain and pay himself, and so is 12 H. IV., c. 21; 1 Plowd. 185, B; but if he has no assets, the action is never so much as suspended, for the executor may sue the heir at the very ' day, and so it is not within the rule of personal actions once suspended,” etc. And Holt, Chief Justice, 1 Salk. 305, says, “If the obligor make the obligee, or the executor of the obligee his executor, this done is no extinguishment, though the same hand is to receive and pay. But if the executor has assets of the obligor,, it is an extinguishment, because it is within the rule that the person, who is to receive the money, is the person who is to pay it; but if he have no assets, then he is not the person that ought to-pay, though he is the person who is to receive it,” etc. He says also, “the same point was again resolved (Hill, 24, 25, Car. 2 B. R.) in the cáse of Locke v. Crosse, where the obligee was made executor to one of the obligors; and in an action by him against the other, where the matter was pleaded, the plea was held to be naught, because he did not show to what value the assets were that he administered; but if the defendant had shown that he had administered goods to the value of the debt in demand, it had been a good plea. Secondly. Suppose the obligor takes administration to ^obligee in that case, the same person has a right to-receive the money and to pay it, yet that will be no extinguishment. And so is Sir John Needham’s case, 8 Coke, 136. In 1 Bac. Ab., title Executors and Admr’s, A. 10, p. 37, it is laid down “ that if a person dies intestate, and the ordinary commits administration to a debtor, the debt is not thereby extinguished. Off. Ex. 31. And, therefore, if an obligor administer to the obligee,, and makes his executor and dies, the creditor of the obligee may well bring an action against him.” Sid. 79.

Upon similar principles, it was adjudged in the King’s Bench (30 and 31 of Eliz.), that “ if a feme executrix take the debtor to husband, this is no release in law, for that would be a wrong to-the dead, and in law work a devastavit, which an act in law shall never work.” Co. Lit., Releases, 264, B. Judge Van Ness, in Thomas v. Thompson, 2 Johns. 471, lays down the rule, “ that a personal action once suspended by the voluntary act H the party entitled to it, is forever gone and discharged.” In that case A. had recovered judgment against B., as administratrix of C., and afterward appointed B. executrix, and died. The judge says (p. 474), “ Here the defendant as executrix of the judgment creditor,. Alexander Thompson, had a right to receive the amount due on the judgment, and having assets, as administratrix of the judgment debtor, she ought to pay. The judgment, consequently, by her appointment as executrix (the will having been proven), is extinguished.” In this case the judge, after laying down the position (with the qualification of the voluntary act of the party), that a personal action once suspended is forever gone, it will be seen decided, and decided correctly, that the extinguishment resulted, not from the fact of administration, but from the receipt of' assets, which she ought to pay. It seems to us to follow, from the-authorities, and from right reason, that as the plaintiffs’ intestate, in the ease at bar, never had any assets of his debtor in his hands, out of which he could retain the debt due to him, the taking of administration by him does not release or extinguish the debt, but that it survives to his representatives. The case of Bigelow v. Bigelow, relied upon, was rightly decided; there the debt became assets, and was extinguished; and we do not understand the court as deciding, in that *cause, for it certainly was not called upon to decide that question, “ that in all cases, personal actions, or things once suspended, are always suspended, or extinct.” Nor do we so understand the law. It appears, also, in that case (p. 148), that the whole sum due on the covenant, which was the foundation of a suit, had been judicially found to have been all paid before suit brought, so there would be no right in the plaintiff to recover on the covenant. A great variety of cases,, of temporary suspension, without extinguishment, will suggest-themselves to every professional man, and it is unnecessary to-enumerate them.

The difficulty which the counsel supposes would result from-holding this debt non-extinguished by the administration without assets is not perceived by us. The decision would not hold the debtor to prove, that which is supposed impossible, the secret retainer of the debt out of assets, but would be satisfied by proof, that the creditor, as administrator, had assets out of which he-might have retained the debt.

The court of common pleas, therefore, erred in rejecting the evidence offered, and their judgment must be reversed, and the causaremanded for further proceedings.


text:
    M. and A. Abbott, Executors of David Abbott, deceased, v. A. Cole and T. Baker, Administrators of L. Cole, deceased.
    :If administrator pay out all the personal estate to one creditor, where the estate is solvent, by selling the realty, and does not apply for such sale, it is a devastavit.

    Under our law plene administravit is an immaterial plea.
    This cause was certified from the county of Huron, upon division of opinion between the judges holding the Supreme Court of that county.
    It was an action of assumpsit. Plea, that the defendants had fully administered, and issue. The proof showed that the administrators of Cole had fully administered the personal estate, and were in advance to the estate. It'- also showed that Cole left a! large real estate, which the administrators *had taken no steps to reduce to assets. These questions were made: 1. Whether plaintiff is entitled to judgment. 2. Whether the judgment should be against the goods of the intestate, or against the administrators, personally.
    The cause was argued on the circuit by Williams for plaintiffs and O. Parish for defendants.
   Judge Wright

delivered the opinion of the court:

An administrator can not legally apply all the assets in his hands to be administered, to the full payment of one creditor and •the entire exclusion of another. If the estate is insolvent, the law points out the mode of distribution. After the personal expenses .and those of the last sickness and of administration are paid, other creditox’S come in for a pro rata distribution. If the estate be solvent, it is the duty of the administrator to convert, it into .assets, if personal; and in case of a deficiency of personalty, then to proceed to the conversion of so much of the realty into assets as may be neeessaxy to pay the debts and close up the estate. If the •estate be insolvent, the administx-ator pays at his peril; and if he pay any one creditor more than his due proportion of the estate, he does so in his own wx’ong, and is liable to the unpaid creditor-.for his contxdbutory share, in the same manner he would if the as.sets were actually in his hands unadministered. 2 Johns. 475; 1 Saund. 219, 336, n. 7; 3 Sid. 635; 1 Atk. 292. The plaintiffs are-therefore entitled to judgment. Indeed, it would seem under our" laws that an issue upon the plea of plena administravit is an immaterial issue, and might be struck out on motion.

Section 16 of the act of the general assembly, defining the duties of executors, etc., passed February 1, 1824 (sec 22 Ohio L. 126), which provision is incorporated into the revised act of March, 1831, section 29, page 353, provides that no administrator “ shall be made liable for more than the amount of assets which have-come or may come ” to his hands, “on account of having failed to-plead or make defense, or on account of any plea or pleas ” he may *“ plead to any suit or action whatever; but the judgment of the court, in all such cases, shall be de bonis testatoris, and shall only render such administrator liable for the amount of assets in his hands unadministered,” It was within the province of the legislature to prescribe the form of judgments against administrators, and their effect. In the act quoted it has done both. The intention of the act is manifest. There is no room left for construction or doubt. We are bound to carry the provisions of this law into execution. The judgment in this case; notwithstanding the plea, must therefore be de bonis testatoris. The effect of' the judgment is declared by the legislature.

Judge Collet dissented.