text:
    James Reynolds & Co. v. Thomas Morris.
    Where a bill in chancery alleges that an entire tract of land was purchased by the agent of complainants, and a conveyance taken to and in the name of the agent, but was paid for wholly by the satisfaction of a judgment against the vendor, belonging to complainants, and a resulting trust in the entire-tract is thence claimed in favor of complainants, but the proof shows that the satisfaction of such judgment was but a part of the consideration for the conveyance, the remainder of the consideration having been paid from the individual funds of the agent: Held, that the variance between the allegations and proof was material and fatal; and there being no application-for leave to amend before the hearing, the bill was properly dismissed.
    Bill of review.
    Eeserved in Clermont county.
    This is a bill of review, filed in the district court of Clermont county, and seeks the reversal of a decree of that court, rendered, at its May term, 1854, dismissing the complainant’s bill in the original case.
    The case made by the original bill is, in substance:
    That in 1823, the complainants were the creditors of one Andrew Megrue, to the amount of $351.07, for which sum they held said Megrue’s note, dated May 10, 1823; that on the 31st of December, 1823, they placed said note in the hands of the defendant, Thomas Morris, for collection; and in order to enable him to ^collect it, they indorsed'said note, taking at the same time defendant’s receipt, obligating him to collect said note for them, and to pay the money over to them, or return the note; that said Andrew Mogrue afterward departed this life, and that one Jonathan Megrue was duly appointed Ms administrator.
    That said Thomas Morris, at the August term of the court of common pleas for 1826, recovered a judgment upon said note for the sum of $419.64. And that afterward, in 1839, the said Morns received from said Jonathan Megrue a deed for twenty-two acres of land, in full satisfaction of said judgment; that he entered into the possession of the same, and has taken a large quantity of wood, timber, and stone therefrom, and appropriated the proceeds thereof to his own use, amounting to $1,000; and that he has enjoyed the use and occupation, and received the rents and profits arising'therefrom.
    That said Morris, wickedly contriving to cheat, defraud, and injure complainants in the premises, had said conveyance made to himself, instead of having it made to complainants; that he refuses to convey the same to complainants, and refuses to render an account for the wood, timber, and stone taken by him from said land; and that he refuses to account for rents and profits.
    The prayer of the original and amended bill is, that said Morris shall be directed to convey said land to the complainants ; that an account may be taken of the value of the wood, timber, and stone, and of the rents and profits; and that he may be decreed to pay to complainants the amount thereof; and for general relief.
    The answer does not deny the reception of the note, and the giving of the receipt therefor, by the defendant; but claims, in substance, that the defendant purchased said note of complainants, and was to pay them therefor in pork, whatever he might choose to give them for it. That he expended large sums of money in the prosecution of said claim, in the employment of counsel, for horse hire, tavern bills, etc.; claims that he had said land levied npon and sold; and that he purchased it at sheriff’s sale in 1837, ■and received a deed therefor from the sheriff, January 28, 1838; and that, being advised that said sale and deed gave him no title *for said land, he afterward, in 1839, purchased the same of Jonathan Megrue, for $234, paid by defendant to one Joseph Brown for said Jonathan Megrue, the heirs of said Andrew Megrue having previously conveyed said land to said Jonathan Megrue. He denies that, in making said purchase, either at sheriff’s sale or of Jonathan Megrue, he acted as agent for the complainants, or that he received the title of said land in trust for them; but that he received the same for his own use, and that he paid said sum of $234, and the costs, out of his own funds. That complainants had full knowledge of the execution and recording of said deed, and of the defendant’s possession under the sanie, and acquiesced therein, and never pretended any title thereto; that complainants, in 1842, took the benefit of the bankrupt law, and, by the assignment of their property under it, vested this claim in the assignee; ■that prior to the commencement of this suit, complainants had assigned said claim to one James D. Ackley, and calls upon said Ackley and complainants to answer as to that matter under oath; and insists upon the staleness of the claim and the statute of limitations, as a bar to the relief sought by complainants’ bill.
    The answers of James D. Ackley and complainants deny the transfer or sale of the complainants’ claim to James D. Ackley.
    The case as proved, appears in the opinion of the court.

      A. G. Thurman, and Fishback & Swing, for complainants.

      John Jolliffe, for defendant.
   Brinkerhoff, J.

The proofs in the original case, taken in connection with the pleadings, disclose substantially the following state of facts:

In December, 1823, the complainants were the owners and holders of a- note of hand, given to them by one Andrew Megrue, which, they delivered and indorsed to the defendant Morris, for collection, taking from him a receipt, as follows : ’

“ Cincinnati, December 31, 1823.
“Received of James Reynolds & Co., a note of hand, drawn by Andrew *Megrue, Sen., in their favor, for three hundred and fifty-one dollars and seven cents, thirty days after date, with interest, dated the 10th of May, 1823, the amount of which I promise to collect for them, or return the note.”

At the August term, 1826, of Clermont county common pleas, Andrew Megrue being then dead, judgment was recovered by Morris, in his own name, on the note, for the sum of $419.64, against Jonathan Megrue, his administrator. The judgment having become dormant, it was afterward revived by scire facias, and in 1837 execution was issued and levied on twenty-two acres of land, in the original bill described, and of which Andrew Megrue died seized.

About this time a compromise was entered into between Morris and Jonathan Megrue, the administrator, by which it was verbally agreed that Morris should bid off the twenty-two acres levied on, take the sheriff’s deed for the same, and then convey one-half of the land to Jonathan Megrue, and retain the other half in full satisfaction of the judgment.

The twenty-two acre tract was accordingly sold by the sheriff, and bid off by Morris, in October, 1837, and in January, 1838, the sheriff executed to him a deed of conveyance therefor. Under this conveyance Morris took possession of the premises, and had the same transferred in the books of the auditor of the county, for taxation in his name. But Morris being advised that he had acquired no title by reason of his purchase and deed from -the sheriff, and Jonathan Megrue, who was one of the heirs of Andrew Megrue, deceased, having in the meantime procured deeds of release to himself from his co-heirs, it was then agreed between them, in modification of their former abortive arrangement, that Morris, instead of conveying to Jonathan the half of the land, should satisfy a note of hand outstanding against the estate of Andrew Megrue, deceased, for about $234, in favor of one Brown, and on which Jonathan was liable as surety; and in consideration of the satisfaction by Morris of this claim of Brown, and of the discharge in full of the judgment, Jonathan Megrue was to convey his title to the entire tract to Morris. All this was done, the conveyance from Jonathan Megrue to Morris bearing date March 19, 1839.

*Morris, not being an attorney at law, had employed and paid counsel for obtaining and reviving the judgment, and had paid costs aud other expenses which, together with a fair allowance for-his own trouble, would probably amount to something over one hundred, dollars. The value of the entire tract when he obtained his title from Jonathan Magrue, was not far from five hundred dollars.

The original bill was filed in January, 1850, and during the period of about eleven years which intervened, and since that time, Morris has had the rents, issues, and profits of the premises, which are in all estimated by a master, to whom a reference was made, as amounting, in March, 1853, to over eight hundred dollars.

The complainants claim to hold Morris as a trustee of the entire tract for their use, and pray that he be compelled to release to them the legal title, and to account.

The defendant denies the trust, claims to have purchased and to be entitled to hold the entire premises for his own use and benefit, and insists on the complainants’ laches and the statute of limitations.

The question before us is, did the court below err in dismissing the complainants’ bill ?

Whether the case made in the proofs is such as to have warranted and demanded a decree for the complainants, is a question which, in the view we take of the case, is not necessary to be determined; for, before we reach that question, and preliminary to it, we must inquire whether there is not a fatal variance between the case as alleged and the case as proved.

The specific allegations of the original bill are, that “the said Morris agreed to take from the said Jonathan Megruo, administrator, a certain piece of land in satisfaction of said judgment, which land is described as follows,” etc., and “which land was afterward, for the consideration aforesaid (satisfaction of said judgment), conveyed by said Jonathan Megrue and wife to the said Morris, by deed,” etc.

Now, the allegation here is, substantially, that the whole land was conveyed to Morris for the sole consideration of the satisfaction *of the judgment; while the real transaction disclosed by the proof is, that but the undivided half of the whole land was conveyed in satisfaction of the judgment, or, in other words, that the whole land was conveyed in consideration of the satisfaction of tho judgment and of the payment, by Morris, out of his own pocket, of the note outstanding in favor of Brown. .

That the allegata and probata must substantially agree in proceedings in equity, as well as at law, is a doctrine too familiar and well settled to require the support of authority. “Proof without allegation, is as ineffectual as allegation without proof.” Hunt v. Daniel, 6 J. J. Marsh. 404. There is no dispute or uncertainty as to the rule. The only difficulty, if there be any, is in respect to its application in the case before us. In Dille v. Woods, 14 Ohio, 126, it is said: The bill alleges an agreement to convey to each of the children. The proof sustains a decree to convey to two only. By the allegata of the bill all, all the complainants had a joint right to pursue an interest in the land, and to have a joint decree for the title. By the proof, the girls were to have a claim for something against John and William, who alone were to have the title. The point was not particularly brought to our attention on the original hearing, and the question escaped a critical examination. It is, nevertheless, fatal to the decree. The proofs and allegations, in chancery as well as at law, must correspond.”

In Libbey v. Hodgdon, 9 N. H. 394, it is said: “ The plaintiff has set up a contract for an absolute conveyance of certain lands; this is part of an entire contract; in evidence it appears to have been subject to certain exceptions and reservations. We think the variance is substantial.”

It is true that these were cases brought distinctly upon, and for the specific performance of contracts, and are therefore distinguishable from the case before us, which is not brought upon the contract in respect to which the variance occurs, but is brought to enforce a resulting trust arising out of a contract in reference to lands, made between the defendant and a third person. But the case of Clements v. Kellogg, 1 Ala. 330, bears a very close analogy to the case at bar, and seems to be ^conclusive to the effect, that where a resulting trust is claimed by reason of a contract or title material to be alleged, a variance between the contract or title alleged and proved is fatal. That was a bill in chancery brought by a minor daughter of Theron Kellogg, deceased, by her next friend, against the administrator of Joshua Clements, seeking to compel him to account for the profits arising from the occupancy by Clements, in his lifetime, of “ six thousand four hundred arpents of land and a saw-mill,” of which Clements and the complainant’s father were in his lifetime tenants in common. The proof was that Clements occupied “six hundred and foi-ty acres of land and a sawmill,” of which the complainant’s father was the sole proprietor. The variance was held to be fatal. Like the case before us, the object of the bill was the enforcement of a trust, and the title of tha defendant was alleged in the bill there, as in the case at bar, only as a statement of the facts and circumstances out of which it was: claimed that a resulting trust arose.

In the case before us it was material for the complainants to-show the contract between Morris and Jonathan Megrue; and it was especially material for them to show how much of, or what interest in the land conveyed, was paid for by their judgment; for, without such showing, they would not, on the face of their bill, entitle themselves to a decree. These allegations then, being necessary and material, it seems to us clear that the proofs must, on principle, conform to them.

We think, therefore, the variance between- the allegations and proofs were fatal to the complainants in the original case. They might have taken leave to amend their bill before the entering of the decree below; but having failed to do so, they are now too late, and the bill of review must be dismissed.

Bartley, C. J., and Swan, Scott, and Sutliee, JJ., concurred.


source: Caselaw Access Project

author: Scott, J.

license: Public Domain

text:
    *Augustus Isham v. Charles Fox.
    Where, in the absence of any statutory provision on the subject, a rule of commercial law has been adopted by the court of last resort in this state, the usage will thenceforth be presumed to conform to such rule throughout the the state; and this presumption, if not conclusive, can only be rebutted by clear proof of a uniform and settled local usage to the contrary.
    Hence a negotiable promissory note, made at Cincinnati, in 1837, and payable in ninety days from date, but at no specified place, is not entitled to days of grace, without clear proof of a uniform usage, at that time and place, allowing days of grace to such paper.
    In error to the district court of Hamilton county

      Coffin & Mitchell, for plaintiff in error.

      Fox & Fox, for defendant in error.
   Scott, J.

The judgment sought to be reversed by this proeeeding was rendered in an action of assumpsit brought on a promissory note for $241.20, made by Samuel T. Tyler, dated Cincinnati, June 22,1837, payable, not at any specified place, ninety days after date, to the order of the defendant, Charles Fox, and indorsed by him. Suit was brought originally in the Commercial Court of Cincinnati ; and, on appeal from its judgment, the cause was tried in the district court of Hamilton county, without the intervention of a jury, and judgment was rendered for the defendant.

At the trial in the district court, the plaintiff offered in evidence the note above referred to, and the certificate of protest attached; and it was admitted that the notary had duly demanded payment of the note, and given proper notice to charge the defendant, as indorser, on the 20th day of September, 1837, the day on which the note became due, unless it was entitled to days of grace. And thereupon the plaintiff rested.

The defendant then called two witnesses, whose testimony, as set out in the bill of exceptions, is as follows:

*“V. Worthingtoii testified, that he had been a resident of Cincinnati since A. d. 1824; that after 1830, when he first became acquainted with the business of the city, all commercial paper was entitled to days of grace, according to the usage in Cincinnati, without distinction between paper payable in banks or elsewhere; that it was then usual in Cincinnati to allow three days of grace on promissory notes not payable in banks, as well as upon notes payable at banks; that the publication of the decision in the 7th volume of the Ohio Reports was the subject of considerable comment, but whether it made any difference in the usage as to protesting notes, he could not say so well as Mr. Avery could, who was present.”

“ John L. Avery testified that he had long been a notary public in the city of Cincinnati; that he was a notary prior to 1837; that before the publication of the decision, reported in the 7th volume of the Ohio Reports, it was the practice of notaries to protest notes not payable in banks, as well as notes made payable in banks, on the third day of grace; that, after the publication of that decision, the practice, as well as he could recollect, continued unchanged, and all notes were entitled to days, of grace; and that his own practice, in the absence of special instructions, was to protest nil notes on the third day of grace; but that some persons, he recollected, after the publication of the decision referred to, directed him to protest notes not payable in banks, both on the days of their maturity without grace, and on the third day of grace.”

On cross-examination, this witness stated that his business as a notary had been principally protesting mercantile paper for banks; and that his attention had not been called to the subject of his testimony until just as he was sworn as a witness.

Upon this testimony which was all that was adduced, the court found that the demand for payment had not been made on the proper day, but should have been made on the third day of grace.

The plaintiff then moved the court for a new trial, because the finding was against the law and the evidence, and because of *newly-discovered evidence, and because he was taken by surprise by the nature of the testimony adduced by the defendant; and filed in support of his motion, his own affidavit, to the effect, that he was engaged in mercantile business in Cincinnati in the years 1836, 1837, and 1838, and knew the universal custom in those years to have been, to make demand of payment, and give notice of the dishonor of notes not payable in banks, on the days of their maturity, without allowing days of grace; that he had no reason to suspect that an attempt would be made by the defendant to prove a usage different from the true one, at the trial in the district court, as no such attempt was made in the court below; that since the trial, he had endeavored to induce John D. Avery, who had been examined as a witness, to refer to his notarial register for the years 1836, 1837, and 1838, to ascertain the facts as to the protest of notes not payable in banks, without success ; and that he, himself, had examined the registers of A. J. Wheeler, who was a notary for the years referred to, and found many notes protested on the days of their maturity, without grace, and not one note, not payable in bank, protested on the day of its maturity, allowing days of grace.

He also filed, in support of his motion, the affidavits of Isaac G-. Burnet, Peter Outcalt, and Wilson N. Brown, showing that, in the years 1836, 1837, and 1838, it was the universal custom in Cincinnati to protest notes not payable in banks, on the days of their maturity, without grace. But the court overruled the motion of the plaintiff, and entered judgment in favor of the defendant.

The plaintiff excepted to the finding of the court in the premises, and to the overruling of his motion for a new trial. The assignment of errors in this court calls in question the action of the district court to which exception was thus taken.

Motions for a new trial on the ground of surprise, or of newly-discovered evidence, are addressed to the sound discretion of the court which tried the cause, and, in general, the exercise of that discretion will not, at common law, be reviewed upon error.

Independent of any statutory provision on the subject, the ruléis the same where the motion is based on the insufficiency of the ^evidence to support the verdict of the jury, or the finding of the court when the intervention of a jury is waived. House v. Elliott, 6 Ohio St. 497.

By the act of March 12,1845, “ to regulate the judicial coux-ts. and the practice thereof,” parties were expressly permitted to except to the opinion of the court “ in all cases of motion for a new trial by reason that the verdict may be supposed to be against law or evidence, so that such ease may be removed by writ of error.” This statute, it is true, was repealed by our present code, and hencer in the case just cited, which arose under the code, this court denied-the right to review the refusal of the district court to grant a new trial because the verdict was against the evidence.

But the case now under review was commenced before the adoption of the code, and its provisions do not apply to cases pending when it took effect. They were to be conducted to final judgment or decree in all respects as if it had not been adopted. Sec. 602. The plaintiff had, therefore, a right to except to the overruling of his motion for a new trial, that being a part of the proceedings in the cause prior to final judgment.

Of this there could be no doubt, under the statute of 1845, if the code had not been adopted. And as the code does not affect the rights of parties in cases pending when it took effect, but merely changes the form of the proceedings to reverse final judgments in such cases, we think the finding of the district court, both as to questions of fact and of law, are properly subject to review in this case.

The main question presented is this : As the ,law stood in Ohio, in 1837, was the note in question entitled to days of grace ? If it-was, the demand and notice shown in this case were premature, and the indoi’ser is not liable; but if otherwise, the demand and notice of non-payment were regular, and the indorser is liable.

The statute in force at that time, defining negotiable paper, and prescribing the rights and obligations of the parties thereto, was the' act of February 25,1820 (29 Ohio L. 217), which was entirely silent, as to days of grace. These were not expressly allowed by statute* until the act of March 13,1839, which gave *three days of grace to all negotiable instruments. In 1835, the question arising-in this case came before the Supreme Court of this state, in the case-of Sharp v. Ward, which was reserved, as appears from the report, in order “ to settle and publish a rule of mercantile law, respecting-days of grace upon negotiable notes payable at no particular place.” 7 Ohio, 223.

In that case it was held that some descriptions of negotiable-paper, such as notes payable at bank, and commercial bills of exchange, were, by well-established usage, entitled to days of grace.

But the general usage, and therefore the rule, was held to be-otherwise in this state, in regard to “mere ordinary notes of hand made in the common transactions of life.” This decision, doubtless, occasioned the subsequent legislation upon the subject in 1839, to-which we have referred. Whether such a rule thus adopted and published by the Supreme Court, could be controlled by subsequent, local custom, may well be doubled. Frith v. Baker, 2 Johns. 327; Hone v. Mutual Safety Ins. Co., 1 Sandf. Sup. C. 137.

But without determining this question, it is sufficient in this case-to say that where, in the absence of any statutory provision on the-subject, a rule of commercial law has been adopted by a court of last resort in a state, the usage will thenceforward be presumed to-conform to such rule throughout the state; and this presumption,, if not conclusive, can only be rebutted by clear proof of a uniform and settled local usage to the contrary.

In the case before us, the only evidence adduced upon the trial in the district court to show a usage in Cincinnati conflicting with the rule adopted in 7 Ohio, was the testimony of Mr. Avery.

It appears from his testimony that his business as a notary had been principally to protest mercantile paper for banks, and that in regard to notes not payable in banks, the usage, after the publication of the decision of the Supreme Court in the case of Sharp v. Ward, was not uniform at Cincinnati. That though he had uniformly protested negotiable paper on the third day of grace, prior to that decision, yet that after its publication some *persons directed him to protest notes not payable in banks, both on the days-of their maturity without grace, and on the third day of grace. The testimony of Mr. Worthington related entirely to the custom at Cincinnati prior to the decision of the Supreme Court.

There being, then, no conflict of testimony before the court, the question presented for its consideration was rather one of law arising upon an uncontroverted state of facts, than a question of fact.

The district court held that under the state of facts shown by the proof, the demand of payment had not been made on the proper day, but should have been made on the third day of grace.

We think that the recollection of the witness appearing to be imperfect, and the local usage relied on by the defendant having been shown not to be uniform, the rule adopted in Sharp v. Ward should have been followed, and that the plaintiff should have had judgment. The judgment of the district court must therefore be reversed.

Bartley, C. J., and Swan, Brinkerhoee, and Sutliee, JJ., concurred.


author: Bowen, J.

text:
    John H. Klonne and Wife v. John M. Bradstreet and others.
    'When a petition is filed by mortgagees against a mortgagor of real estate, asking for a sale of the premises and the payment of their claim, and other parties are brought in as defendants, who hold mortgage liens on the same property, and'who answer, setting up their claims, and ask for judgments in their favor, and for the sale of the real estate and a distribution of the proceeds, it is proper for the court, after sustaining a demurrer, filed by the mortgagors, to the petition, as to the plaintiffs’ demand, to determine the questions made by the answers of the other defendants, and render judg- - ments in their favor, although the plaintiffs do not, after demurrer has been decided against them, amend their petition.
    The answer of a defendant may be treated as a cross-petition, and the proper relief granted under it, if it contain a'prayer for judgment and the necessary "’averments to show the party’s right to such relief, under the proceedings instituted against him, although he does not, in terms, denominate the paper which he files, a cross-petition. The court will decide, on inspection of it, whether, in substance, it contains the elements, and he in the nature of such petition.
    In error to the Superior Court of Cincinnati.
    The original proceeding was in the nature of a creditor’s bill.
    Jn the year 1855, Bradstreet, as agent of certain named parties, filed an original and amended petition in the Superior Court of Cincinnati, to foreclose a mortgage executed by Klonne and wife on the 14th of April, 1854, and to ascertain and settle certain liens on the mortgaged premises.
    Some of the defendants claiming liens, answered, setting up their claims and asking relief.
    Among others, Ferdinand Schaffer filed an answer, stating his case as a mortgagee under a mortgage made by Klonne and wife, and filed for record May 2, 1850, and concluding with a prayer for “judgment for $2,000, with six per cent, interest from June 1,1853, in his favor against said John H. Klonne; for a sale of said real estate to pay such judgment; for a distribution of the proceeds thereof according to the priority of his lien, and for other proper relief in the premises.”
    Nicholas Schcemer, another answering defendant, after setting up his mortgage of the date of April 25,1851, concludes by asking “ that judgment for said sum of $1,100, with interest from the 25th day of April, a. d. 1855, may be entered in his favor against said Klonne, and that in default of payment, the property described in said mortgage maybe sold and the proceeds applied to the satisfaction of the judgment so entered,” etc.
    Klonne and wife, the debtor defendants, demurred to Bradstreet’s petition, and the same was not afterward amended.
    Without passing on any other claims, the Superior Court, in special session, gave judgment in favor of the two defendants ■Schaeffer and Schoemer, ordering a sale of the mortgaged premises, and appointing the sheriff a receiver; reserving in the *meantime the determination of other claims and liens for the further ■order of the court.
    To reserve this judgment, Klonne and wife took the record, on error, to the Superior Court in general term, but the judgment was there affirmed, and they now seek by their petition in error to reverse both judgments.
    It is claimed that the court below erred in granting judgment and an order of sale on the mere answers of Schceffer and Schcemer, when the answers do not purport to be cross-petitions and contain no prayer that they may be taken as such.

      Egly & Dobmeyer, and 22. 2?. Warden, for plaintiffs in error.

      Stallo, Andrews & McCook, for the mortgagee defendants in error.
   Bowen, J.

Before the adoption of the code it was usual and proper, in proceedings in chancery, to determine, by decree, the rights of all the parties to a bill, and to grant appropriate relief to-the several respondents as well as to the complainants. Having once obtained jurisdiction, by the service of process, the court would proceed to hear and determine all questions involved in the subject-matter of the litigation, when they were distinctly set forth in the petition, or made to appear by the answer and proofs. This practice of the courts resulted, not unfrequently, in a denial of all relief to the complainant, while one or more of the defendants, in the same cause, would derive the full benefit and aid of a decree. To authorize such action of the court, the filing of a cross-petition was not, in all instances, indispensable. In some cases it might be necessary; in others it could, with propriety, be omitted. When new matter, not introduced by the original bill, and which could not be made responsive to it in the answer, became necessary to be set up by a defendant, a cross-petition was the mode usually adopted of presenting such new matter to the attention of the court. A petition by the mortgagee of real estate, seeking the foreclosure of his mortgage, or the sale of the premises, should bring in, as necessary parties to *the proceeding, all those who hold similar liens on the property. The court may then determine the amount and priority of each claim; and it becomes its duty, when asked, to award execution to enforce the lien of any creditor whose claim is found to be an incumbrance upon the estate. The failure of the complainant to establish his lien, or to substantiate a right to recover against the mortgagor, never was, nor could be, correctly held to exclude other persons in the same action, though sued as defendants, from the decision of the court upon their rights, nor from the advantage of such a decree as the case made in the pleadings showed to be due to them. This power, which was constantly exercised by the chancellor, constituted one of the prominent merits of the chancery over the law side of our courts, and gave it great superiority in the administration of justice, wherever its jurisdiction extended.

The code has abolished the distinction between actions at law and suits in equity, so far as relates either to name or form, and there has been substituted for them what is called “ a civil action." But a judgment, when pronounced and recorded, must be, in effect, a decree, conferring the same relief which the party might have obtained in chancery, if the case were pending there, provided that mode of relief be appropriate to the facts of the case. When the facts, upon which- the court is to pass, would not, under the old practice, confer upon it equitable jurisdiction, the form of relief is the same it formerly was by judgment at law. Hence, although the forms of action are abolished, the same remedy is obtained by the judgment of the court which was formerly administered by the chancellor’s decree. The only change made by the code in this particular consists in the form of the action, and not in any substantial modification of the remedy.

By section 371 of the code, it is enacted that “judgment maybe given for or against one of several plaintiffs, and for or against one of several defendants; it may determine the ultimate rights of the parties, on either side, as between themselves, and it may grant the defendant any affirmative relief to which he may be entitled,” etc.

*And again, in section 385, the rule is reiterated: “If it appear that the defendant is entitled to any affirmative relief, judgment shall be given therefor.”

These provisions of the code do not, as we conceive, introduce any new principle in proceedings which were formerly carried on in chancery. The same rule, so emphatically declared by them, as we have already seen, was steadily adhered to there. It is now sanctioned by the letter of the statute, and, under our new system, may be pursued in any case which arises for judicial determination in a civil action. If, on inspection of a defendant’s answer, it shall be found to contain a prayer for judgment, and the necessary averments to show the party’s right to relief, under the proceedings instituted against him, the court will not require the filing of a cross-petition, in form, but will treat such answer as equivalent to a petition of that kind, and grant whatever relief the party may .show himself entitled to receive.

Klonne had secured certain debts, due to different individuals, by mortgage on his real estate. Bradstreet, as the attorney and agent of some of these creditors, filed a petition to sell the mortgaged premises, and asked for an application of the proceeds to the payment of the sums due his clients, and of other claims against the estate. Most, if not all, of the liens created by mortgages and set forth in the petition, were entitled to priority over those he represented. The mortgagor opposed, by demurrer, the granting of any relief to the clients of Bradstreet under the petition filed by him. The court sustained the objection urged in support of the demurrer, and gave judgment against Bradstreet. But the defendants were not affected by that ruling. They had made it appear;. affirmatively, by their answers; that they were entitled to a sale of the premises, independent of any interest in Bradstreet or his-principals. The court, therefore, after disposing of the petitioner’s-case, proceeded, as the code strictly requires, to inquire into and determine the rights of the defendants who had answered the petition and asked for judgment in their respective behalfs, the sale of the property, the distribution of the proceeds according to priority of liens, and for other proper relief. In thus proceeding to adjudicate upon *the cases made by the defendants, we think there-was no error committed.

Judgment of the Superior Court affirmed.

Bartley, C. J., and Brinkerhoee, and Scott, JJ., concurred.

Swan, J., dissented.


author: *J. R. Swan, J.

text:
    The State of Ohio, on relation of Henry S. Garrett and others, v. Bernard Van Horne, Auditor of Muskingum County.
    Under tlie acts of March 12, 1849 (47 L. L. 256), and January 16, 1851 (49 L. L. 458), an election was duly held, August, 1851, in Jefferson township, Muskingum county, authorizing the trustees to subscribe $100,000 of the-stock of the Steubenville and Indiana Railroad Company; certificate of the election was duly filed in March, 1852, and recorded in the auditor’s office; subscription made; bonds issued by the trustees dated April, 1852. The amount of interest on the bonds being assessed and collected for the year 1857, the county treasurer refused to pay over the same to the township treasurer, on the ground that the road was not located permanently through said township, until after said election and subscription. Held,. that the tax-payers having, without protest or interference, suffered the election to take place, authorized the subscription to be made, and the bonds-to be negotiated, they can not afterward, as against the innocent bondholders, deny their recognition of the acts of their agents, on the ground! that the railroad was not located until after the election and subscriotion.

      Application for a peremptory mandamus.
    The relators in their petition set forth :
    That they are the holders of a bond for $1,000, issued by the trustees of the township of Jefferson, Muskingum county, to the Steubenville and Indiana Railroad Company, or bearer, dated April 1, 1852, payable July 1, 1862, with seven per cent, interest, payable semi-annually on the first days of January and July *of each year. That the said bond and others of like tenor amounting to $100,000, were issued to raise the sum subscribed by said trustees to the capital stock of said railroad company in pursuance of a vote of the legal tax-payers of the township, at an election-held August 18, 1851, the proceedings at which election were filed with the auditor of said county, duly verified, on the 31st of March, 1852, and were by him recorded April 1, 1852. That the railroad was afterward located and constructed through said township. That the interest accruing upon said bond July 1, 1857, remains unpaid. That the said auditor levied upon the taxable property of said Jefferson township an amount of taxes equal to the annual interest on said bonds, which taxes were collected by the county treasurer in December, 1856, and are now in the county treasury. That the relators have demanded of the defendant that he draw an order upon the county treasurer in favor of the township treasurer for the amount of said tax, which he refuses to do, and also refuses a like demand for an order on the county treasurer for the amount of interest due to the relators. That they are without any plain and adequate remedy in the ordinary course of law; and they pray a mandamus requiring him to draw such order, or show sufficient cause why he omits to do it.
    Upon this petition, an alternative writ was issued, to which the defendant returned for answer: That at the time of the vote by the tax-payers of Jefferson township, and at the time of said subscription to the capital stock of said railroad company, the said railroad was not located through said township, but was made before such location of the road, and was unauthorized. That by a vote of the electors of said township, the trustees thereof gave notice to said auditor not to issue an order for the payment of the said money to the bondholders or for their benefit.
    The act incorporating this railroad was passed February 24, 1848 (46 L. L. 256), under the general law of February 11,1848. Swan’s Rev. Stat. 197, note; 2 Curwen, 1394.

      Goddard & Goddard, for the relators.

      Stillwell & JSazlett, for defendant.
   *J. R. Swan, J.

The statutes under which the proceedings mentioned in the petition and answer were founded, are as follows:

The act of March 12, 1849, amending the charter of the Steubenville and Indiana Railroad Company (47 L. L. 256), provides:

“Sec. 3. That the mayor and town council of the town of Steubenville, in Jefferson county, and all other incorporated towns through or near which said road may be located; and the commissioners of Jefferson and all other counties, and the trustees of the several townships through which said road may be located, are each respectively hereby authorized to subscribe to the capital stock of said company; on the part of such counties, a sum not exceeding two hundred thousand dollars, and on the part of the several towns and townships, a sum not exceeding one hundred thousand dollars; and the commissioners of such counties, trustees of such townships, and town councils of such incorporated towns, so subscribing, are hereby empowered to make such loan or loans as shall be necessary therefor, at an interest not exceeding seven per centum per annum. And they are further hereby, authorized to levy such an amount of tax upon the taxable property of their respective counties, townships, and incorporated towns, as shall be necessary to pay the interest upon such loan or loans as it may become due; provided, however, that all dividends arising from the proceeds of such road, which may fall to such counties, townships, and incorporated towns, shall be first applied to the payment of such interest.
“ Sec. 4. Before such subsciption shall be made, as authorized in section three of this act, the legal tax-payers residing in said counties, townships, and incorporated towns aforesaid, shall, at the annual election held in such counties, townships, or incorporated towns, or at a special election ordered for that purpose, to be held at such time and place as the said commissioners, trustees, and town council shall direct, decide by a majority vote in favor of such subscription ; but if a majority of said tax-payers decide against subscribing said stock, then it shall be unlawful for said commissioners, trustees, and town council as aforesaid, to subscribe such stock.”

By the amendatory act of March 21, 1850 (48 L. L. 288), it was provided:

“ Seo. 2. That the trustees of any township, so subscribing, are hereby required to deposit with the auditor of the county in which the said township shall be situated, a certificate of the amount of the bonds so executed in conformity with the preceding section, from time to time, as they shall be called for by the authorities of the said railroad company, and it shall be made the duty of the county auditor to levy upon the taxable property of the several townships subscribing, respectively, an amount of taxes equal to the annual interest on the bonds so issued, which shall be collected by the county treasurer, in the same manner and at the same time as the other taxes in the respective counties.”

*By the amendatory act of January 16,1851 (49 L. L. 458), it is provided:

“ Seo. 3. In all cases of elections which shall be held under the provisions of this act, or which have been or shall be held under the provisions of the act to which this is an amendment, which said election shall have or which may result in favor of subsciptions, it is hereby made the duty of the commissioners, trustees, and councils, ■or their successors in office, before any bonds of said counties, townships, or towns have been issued in pursuance of the provisions of said act, to file with the auditor of the county in which said election may have been holden, a certificate of their proceedings thereon, which said certificate shall be verified by the oath of one or more of the persons by whom said election may have been holden, and which shall be recorded by said auditor, and the said record, or a certified copy thereof, by the said auditor, shall be con•clusive evidence of the legality and validity of the subscriptions made by the commissioners, trustees, or councils to the capital stock of said company; and any bonds or notes signed and issued by said commissioners, trustees, or councils, to pay the subscriptions of their respective counties, townships, and towns to the said capital stock, shall be deemed and taken as conclusive evidence that the ■said bonds or notes were so signed and issued in pursuance of the ■said acts.”

The counsel desiring the case to be determined upon the merits, as if the tax-payers or trustees of the township were asking relief, matters of form and questions as to parties are waived.

No objection is interposed by the defendant, either to the legality of the election, or to any irregularity, in form or substance, of the certificate of the trustees of the township, filed in the auditor’s office and recorded ; nor to the subscription, the issuing of the bonds, their sale, or the receipt of the money from the purchasers of the bonds. But the defendant says that no election could bo had until the line of the railroad was actually established and located through the township; and that consequently the whole proceedings were unauthorized and void.

It is perhaps a question of some doubt, whether the general assembly did not intend that the railroad should be actually established through a township before an election. But we do not consider it necessary in the case before us to decide that question, as we are of the opinion that, conceding a location would have been necessary before an election, the acts of the parties interested have been such as to preclude them from now denying the authority *and power of the trustees of the township to issue the township bonds.

If the location of the road should have been first made, any taxpayer of the township, for himself and all others interested, could, at any time before the issuing or negotiation of the bonds, have intervened and enjoined their issue as unauthorized, on account of the road not having been located. Th ey, however, either intentionally or from neglect to assert their legal rights, and without protest or intei’forence, suffered the election to take place, their public agents, the trustees, to subscribe for stock, to issue the bonds and receive the proceeds. They also afterward, and for the. period of three or four years, paid the interest by taxation ; and thus gave credit to the bonds of the township. They now desire to retain the money of the original bondholders; refuse to pay interest; deny their obligations to pay back the principal; disaffirm the acts of their public agents, who, under the forms of law and by their direct instigation through the ballot-box, issuedi and negotiated these bonds. They had an opportunity, before innocent third persons could be injured or committed to the acts of their public agents, to enjoin their proceedings, and protect themselves; they did- not seek that protection ; but now, when they have received all the fruits of the contracts of their agents from third persons who have acted upon their recognition of the authority of their agents, they ask the privilege of denying this recognition, and thus escape from their obligations. It is too late for them to do so, as against innocent third persons. They are concluded,, not simply by the acts of their public agents, but by their own. It is true, that when public officers exceed the powers vested in them by general laws, their acts are no longer official, but void; and this principle would be applicable to the case before us, if the trustees had derived their sole authority to make the contract under consideration from the law, without any interposition, sanction, or authority from the tax-payers of the township. But, in the case before us, the trustees derived their authority to subscribe for the-stock of the railroad, and to issue the bonds, specifically, from their constituency, the tax-payers of the township. The trustees, unless authorized by the tax-payers, ^derived no authority to act from the laws under consideration. In fact, the whole transaction under the legislation was for the purpose of consummating an agreement, having all the substantial elements of a private contract, between the tax-payers as principals, who by vote made the trustees their agents to contract for them, on one side, and the-railroad and bondholders on the other. The rules of law applied to individuals, and founded upon the clearest principles of justice and sound morals, should be equally applicable to those parties. The tax-payers, as principals, and by their votes in the forms of law, set their agents in motion; professed to clothe them with special authority to make a special contract with third persons, for' their benefit; by voting, instigated those agents to make the subscription and issue the bonds; and thus induced, on the faith of this recognition, innocent third persons to part with their money and receive, in lieu thereof, these bonds. If the trustees of the-township and the tax-payers supposed, until very recently, as they probably did, that the subsequent permanent establishment and location of the railroad through the township was sufficient to authorize the issuing of the bonds, whether that location was made-before or after the election, it is equally j ust to presume that the bondholders, who parted with their money, entertained the same-belief. The one were certainly as much bound to know as the other; and if both were mistaken, no principle of law or justice-would demand, that the tax-payers should retain the fruits of the mistake, and, at the same time, repudiate those very acts of their own which misled the bondholders and induced them to part with their money: in truth, blowing hot to get the bondholders’ money, and blowing cold to rid themselves of the obligation to refund it.

But if this view of the case were not conclusive, the provisions of the act of January 16,1851, (49 L. L. 458), would seem at least intended to authorize a bondholder to look only to the record in the auditor’s office to ascertain whether the subscription of the trustees was legal and valid. . The record is, by the express terms of the statute, “ made conclusive evidence of the legality and validity of the subscriptions made by the trusteesand “ the bonds signed and issued hy said trustees, to pay the subscription, *shall be deemed and taken as conclusive evidence that the said bonds were so signed and issued in pursuance of said acts.”

Peremptory mandamus allowed.

Bartley, C. J., and Brinkerhoee, Scott, and Sutliee, JJ., concurred.


author: Brinkerhoff, J.

text:
    The State of Ohio, on the relation of Jacob Flinn, v. Francis M. Wright, Auditor of State.
    The constitution of the state has not limited the power of the general assembly to abolish courts created by the legislature, nor its power to vacate the office of judges of such courts.
    Motion for a peremptory mandamus.

      Galloway, Warden & Fullerton, for the relator.

      O. P. Wolcott, attorney-gen eral, for defendant.
   Brinkerhoff, J.

By an act of the general assembly, passed March 12, 1852, entitled “ an act to create a court of criminal jurisdiction in Hamilton county,” the criminal court of Hamilton county was established; the same to consist of a single judge to be elected by the electors of that county, and whose term of office should be five years.

The relator was duly elected and commissioned as such judge for the term of five years from the second Monday of February, 1852.

On the first day of May, 1854, the general assembly passed an act, to take effect from and after the first day of January following, repealing the aforementioned act, and transferring the business of the said criminal court to the court of common pleas of Hamilton county.

The court and the office being thus abolished by the repeal of the act creating them, and the business pending in that court *being transferred elsewhere, prior to the expiration of the time for which he was elected and commissioned, the relator claims that the repealing act in so far as it attempted to abolish his office prior to the expiration of the time for which he was elected and commissioned, is contrary to the constitution of the state, and therefore inoperative; that his office continued in being notwithstanding the repealing act; and he now seeks, by this motion, to compel the auditor of state to issue his warrant on the treasurer of state for his salary accruing subsequently to the time fixed for the taking effect of the repealing act.

That the general assembly has full power to control, modify, and abolish the courts and judicial offices of the state, except so far as its powers in this respect are restrained and limited by the provisions of the constitution, will be conceded. And the inquiry before us, therefore, is, whether there is, in the constitution, any limitation, either express or implied, upon the general power of the legislature over courts and their judges created by its authority ?

The only provision of the constitution to which we are cited by counsel for the relator, as bearing on this question, is the fifteenth section of the fourth article, which is as follows:

“ The general assembly may increase or diminish the number of the judges of the Supreme Court, the number of the districts of the court of common pleas, the number of judges in any district, change the districts, or the subdivisons thereof, or establish^other courts, whenever two-thirds of the members elected to each house shall concur therein; but no such change, addition, or diminution, shall vacate the office of any judge.”

It is superfluous to say, that the Supreme Court, the district courts, and the courts of common pleas, and also the common pleas districts and the number of judges in each, were, in the first instance, established by the constitution itself. They exist independently of the general assembly. They may be to some extent modified, but can not be abolished by it. And the last clause of the section above quoted clearly prohibits, as to them, any such legislative interference as shall result in vacating the office of any judge of those courts.

*The relator, however, contends that the saving clause at the end of this section applies as well to courts and judges established and created by legislative authority, as to those which subsist independently of that authority. But we do not think so.

“But no such change, addition, or diminution, shall vacate the office of any judge.”- The word “ such,” in connection with the words “ change, addition, or diminution,” directly refers us to certain changes, additions, and diminutions before mentioned and provided for. What are they? Clearly “the number of the judges ■of the Supreme Court, the number of the districts of the court of -common pleas, the number of judges of any district,” the districts themselves, or the subdivisions thereof.” The changes, additions, and diminutions mentioned in the preceding part of the section, ■evidently have no reference whatever to the “ other courts ” which the general assembly may “ establish,” whenever two-thirds of the members elected to each house shall concur therein.”

The constitution has in terms forbidden the general assembly to vacate the office of a judge of a court established by the constitution, but has not in terms placed any limit upon the powers of that body over the office of judges of courts established by itself. As to the latter, we can see no good reason to conclude otherwise than that the framers of the constitution intended to leave the power to .abolish, as ample and unlimited as the power to create.

It is furthermore alleged in argument that the repealing act ■before referred to, was passed in the general assembly by a less number of affirmative votes than two-thirds of each house; and it is contended, that as a two-thirds vote was requisite to establish •the criminal court of Hamilton county, a like vote ought to be ¡required to abolish it by a repeal of the law creating it.

How the fact may be, we do not know, nor do we think worth while to inquire, for it is a sufficient answer to this claim to say — the -constitution has not so ordained. The general provision of the ■constitution is, that a concurrence of, a majority of the members elected to each house shall be sufficient for the enactment and the repeal of laws. The cases where it is otherwise provided *in the constitution, are exceptional in their character, and ought not, we think, to be extended by construction. Moreover, it is not difficult to conceive of very good reasons why the constitution should require a vote of two-thirds for the passage of an act establishing a new court, increasing the number of public functionaries, and possibly'adding thereby to the public burdens, while the repeal of ■such act might be safely confided to the discretion of a simple majority.

Motion overruled.

Bartley, C. J., and Swan, Bowen, and Scott, JJ., concurred.


text:
    David Johnston, Administrator of David Lyons, deceased, v. The Cleveland and Toledo Railroad.
    Under the statute of March 25, 1851, entitled “ an act requiring compensation for causing death by wrongful act, neglect, or default,” an action may be maintained by the administrator of the estate of a deceased person, for the benefit of the next of kin of the deceased, though he leave no widow or children, and though the petition do not contain a statement of special cir-. cumstances rendéring the death a pecuniary injury to them. Such special circumstances can affect only the amount of the recovery.
    Demurrer to petition.
    Reserved in the district court of Lucas county.
    The case is stated in the opinion of the court.

      M. B. & B. Waite, for defendant, in support of the demurrer, made the following points :
    1. The statute upon which this action is founded confines the damages to the pecuniary injury, resulting from the death, to the parties for whose benefit suit is brought. Lucas v. The N. Y. Cen. R. R. Co., 21 Barb. 247; Pierce on Am. R. R. Law, 257, note 1; Blake, Adm’x, v. The Midland Railway Co., 10 Eng. L. & E. 437.
    *2. The petition must show that the deceased left a widow, or kindred who have suffered pecuniary injury by his death. State v. Gilmore, 4 Post. 461; 21 Barb. 247.
    3. One brother does not, except under special and peculiar circumstances, sustain any pecuniary injury by the death of another brother. The statute creates no new right; it only provides a remedy where none existed before.
    4. The fact that one brother may inherit from another, on his decease, gives no right of action in his behalf under the statute.
    5. There can be no recovery of even nominal damages under the case made by this petition. The action is not given absolutely to the administrator or next of kin. The pecuniary damage is the gist of the whole proceeding,, and unless a case is made which shows such damage to exist, even nominal damages are not recoverable.

      Commager & Lemmon, for plaintiff, insisted:

      That the only conditions necessary to the maintenance of an action under this statute are, that the injury be one for which, had deceased survived, he could have sustained an action for damages;. that the defendant would have been liable for those damages; that the plaintiff be the personal representative of the deceased; that the action be commenced within the time limited; that there be a widow or next of kin entitled to distribution of the proceeds of the personal estate of deceased.
    That the amount and nature of the interest which the beneficiaries possess in the life destroyed, is not a question which respects the right of action, but only the amount of the recovery, and is wholly a matter of proof.
    That if, under the petition in this case, the plaintiff is entitled to nominal damages, the demurrer will be overruled.
   Scott, J.

This case, by the reservation of the district court, comes before us on demurrer to the plaintiff’s petition, which read» as follows:

“ David Johnston comes and says he is the administrator of David Lyons, late of said county of Lucas, deceased, duly apj>ointcd ^according to law; that said David Lyons, while in life, to-wit, on the 30th day of January, 1855, and before that time, was in the employ of the Cleveland and Toledo Railroad Company, the defendant aforesaid, in the county of Lucas aforesaid, and on the day and year aforesaid, was employed as a laborer in the employ of said company on the steam ferry-boat, then and there used by said defendant in connection with the railroad of said defendant, in the carriage and transportation of passengers and freight across the Maumee river at Toledo; and while said David Lyons, now deceased, was so engaged under the dh’ections of the agents and superintendents of said defendant, the said David Lyons, by the wrongful act, neglect, and default of the said agents and superintendents of the defendant aforesaid, while they were concerned in managing and conducting the business of said defendant, was bruised and mangled by the machinery of said boat, and was thereby thrown into the water, and he, the said David Lyons, became and was drowned, and so the plaintiff says the death of said David Lyons was caused by the wrongful act, neglect, and default of said defendant, and without the fault of said Lyons.

“And the plaintiff further says, that Thomas Lyons, Maurice Lyons, Catharine Mulverhill, Cornelius Lyons, Margaret Lyons,. Ann Lyons, and James Lyons are next of kin and brothers and; Bisters of said David Lyons, deceased; the said David Lyons-leaving no widow, and having no children or child, left the said-brothers and sisters aforesaid, the heirs at law of him, the said' David Lyons, deceased; and that they, the next of kin of him the* said David Lyons, deceased, have suffered damages, by reason off the aforesaid wrongful act, neglect, and default of the said defendant, its servants and agents, in the sum of five thousand dollars. Wherefore the plaintiff says he has a right to recover said sum of five thousand dollars, and asks judgment therefor.”

The action is founded upon a statute of this state, entitled “ an-act requiring compensation for causing death by wrongful act,, neglect, or default,” passed March 25,1851, which is in the following terms:

*“ Seo. 1 Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect, thereof; then, and in every such case, the person who, or the corporation which would have been liable, if death had not ensued,, shall be liable to an action for damages, notwithstanding the death, of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the-first or second degree, or manslaughter.
“ Seo. 2. Every such action shall be brought by and in the name of the personal representative of the- deceased person, and the-, amount recovered in every such action shall be for the exclusive-benefit of the widow and next of kin of such deceased person, and. shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal-estates left by persons dying intestate; and in every such action, the jury may give such damages as they shall deem fair and just, not exceeding five thousand dollars, with reference to the pecuniary injury resulting from such death to the wife and next of kin to such deceased person. Provided, that every such action shall be commenced within two years from the death of such deceased person.”' Swan’s Rev. Stat. 707, 708.

The question presented by the demurrer is whether, under this, statute, an action can be maintained for the sole benefit of the brothers and sisters of a deceased person, who leaves no widow,, without an allegation in the petition of such special circumstances as would render the death a pecuniary injury to them.

A right of action is given by this statute to the personal representative of the deceased merely as a trustee, and for the exclusive benefit of the widow and next of kin. Hence, it would seem to be clear that, in order to the maintenance of the action, there must bo a widow or next of kin, to whom the amount recovered could be distributed. And so it was held, under a similar statute of New York, in Lucas v. N. Y. Cent. R. R. Co., 21 Barb. 247.

But if there be persons in whom the beneficial interest in the judgment to be recovered can vest, then the only other conditions to which the right of action is subjected by the terms of the statute, are, 1. That the death shall have been caused by such wrongful act, neglect, or default, as would (if death had not ensued) have entitled the party injured to maintain an action against the defendant, and recover damages in respect thereof; 2. That the action be brought by and in the name of the personal ^representative of the deceased; and, 3. That it be commenced within two years from the time of his death.

Subject to these conditions, the statute gives a right of action ; .and seems to regard the widow and next of kin as sustaining, at least, a nominal pecuniary injury, in all such cases, from the wrongful act of the defendant. Quin v. Moore, 15 N. Y. (1 Smith) 432.

Questions jnay arise, upon the trial of this cause, as to the construction of the rule of damages furnished by the second section of this statute ; but no such questions are properly before us. The -question raised by the demurrer does not relate to the amount of the recovery, but is simply can an action be maintained on the case •stated in the petition ? We think it can.

Demurrer overruled.

Bartley, O. J., and Swan, Brinkerhoee, and Sutliee, JJ., concurred.


author: Suttliff, J.

text:
    Davis B. Lawler and others v. Andrew G. Burt.
    The liability imposed by section 11 of the act “ to prohibit the issuing and circulation of unauthorized bank paper,” passed January 27,1816, was not a liability in contract, but one in tort.

    Notes issued by the Cincinnati and Whitewater Canal Company, in 1840, to its creditors, in a form to circulate as money, while said act of 1816, as amended by the act of March 18, 1839, was in force, did not make stockholders of that company, who had, as its directors, ordered their issue, liable as maicera of the notes.
    The liability imposed by said act upon the stockholders, etc., to pay the amount of said notes, is in the nature of a penalty for issuing the notes in a form,, and with a design to be circulated as money; and a right of action thereon would be barred in four years.
    The repeal, in 1845, of the amendatory act of March 18, 1839, terminated the right of action for such penalty.
    The case of Lawler et al. v. Walker et al., 18 Ohio, 151, overruled.
    This is a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    *The defendants in the court below, the present plaintiffs in error, were, with others, stockholders and directors of the Cincinnati and Whitewater Canal Company, a corporation chartered April 1,1837, by the general assembly of Ohio, to construct a canal from Cincinnati to the east boundary line of the State of Indiana. The company was not authorized by its charter, or any other law of the state, to exercise the functions of a bank.
    In the year 1840, the company becoming embarrassed in constructing the canal, the plaintiffs in error and others, as directors of the company, and on its behalf, caused a large amount of the notes of the company, payable twelve months after date to order, to be engraved and struck by a bank-note engraver, on bank-note paper, and in the similitude of bank-notes, and to be signed by the president and secretary of the company.
    The names of the plaintiffs in error nowhere appear on the notes.
    None of the notes were of a higher denomination than five dollars, and a large proportion of them were of a lower denomination.
    These notes, thus calculated to circulate as money, were used by the company and its directors for no other purpose than in payment of the debts of the company.

      The president of the company, without the knowledge of the directors, paid the engraver’s charges with the notes.
    The notes were always made payable to the order of the person to whom they were delivered. These persons were generally, the-contractors on the canal, who, receiving them in sheets,- each containing several notes, at the office of the company, sometimes indorsed them there. The indorsements were in blank. Many of the notes, from their similitude to bank-notes, were circulated without indorsement.
    The notes, thus issued at various times during the year 1840, passed and circulated as money. The plaintiffs in error knowing-this fact, and still being directors of the company, continued, on its-behalf, to pay out these notes.
    It is not claimed that the company ever did any banking business-otherwise than as stated.
    *The plaintiffs in error received no compensation for their-services on behalf of the company, and derived no profit from their connection with it.
    The company acknowledges its liability on the notes, and has taken them up, as far as it was able, since the plaintiffs in error-ceased to be directors of the company.
    Burt, the defendant in error, became the holder of these notes-to the amount of two hundred and thirty-one dollars, and in March, 1855, brought an action in the Superior Court of Cincinnati against the plaintiffs in error, as stockholders, to recover the amount of the-notes so held by him, with interest from July 15, 1841.
    The right to recover was placed upon the notes issued, and upon-the first section of the act of March 18,1839, “further to amend-the act entitled 1 an act to prohibit the issuing and circulating unauthorized bank paper,’” passed January 27,1816; and upon the-11th, 12th, 13th, and 14th sections of the act last mentioned.
    The first section of the act of March 18,1839, is as follows:'
    “Seo. 1. That every company or association, except a bank incorporated by a law of this state, that shall lend notes, bonds, bills, checks, orders, certificates of deposit, or any other evidence of debt, and shall issue, by their officer or officers, agents, or any other' person or persons, notes, bonds, bills, checks, orders, certificates of deposit, or other evidence of debt, payable to order and indorsed in blank, or payable to bearer, designed, calculated, or intended to circulate as money; or shall issue, put in circulation, or pay out for debts or property, with or without any such loan, any such notes, bonds,. bills, checks, orders, certificates of deposit, or other evidence of •debt, or use other shift or device whereby any such notes, bonds, bills, checks, orders, certificates of deposit, or other evidence of ■debt, so issued, put in circulation, or paid out by said company or association, or on their behalf, pass, or circulate by delivery, shall -be taken and deemed an unauthorized bank within the meaning of the act to which this is an amendment, entitled, 1 an act to prohibit the issuing and circulating of unauthorized bank paper,’ passed January 27, 1816.” Swan’s Stat. (ed. 1841,) 140.
    The following are the provisions of the sections of the act of January 27, 1816 (1 Chase, 904), referred to :
    “ Seo. 11. That every stockholder, shareholder, or partner, hereafter interested in any such bank, shall be jointly and severally unswerable, in their ^individual capacity, for the whole amount of the bills, bonds, notes, and contracts of such bank, here.after executed, any agreement, shift, or device in such bond, bill, note, or contract, or otherwise, to the contraiy notwithstanding.
    “ Seo. 12. That the holder of any bond, bill, note, or contract of •such bank, may institute suit.and recover judgment thereon, against any part or the whole of the persons who were interested in such bank at the date of such bond, bill, note, or contract, or who became interested in such bank at any time between that and the commencement of said suit.
    “ Sec. 13. That in such suit, it shall be sufficient for the plaintiff to set forth, in substance, that he is the holder of such bond, note, bill, or contract; that the defendants were interested in said bank .at the date of such bond, bill, note, or contract, or subsequently thereto, and that it remains unpaid; it shall be unnecessary to show in the declarations or pleadings, and unnecessary to prove on the •trial, that a demand was made of the contents of such bond, bill, note, or contract, at the time and place when and where it purports to be payable, but the persons aforesaid shall be liable without such demand.
    “Seo. 14. That if during the progress or on the trial of such suit, it shall appear that any one or more of the defendants are not liable to such action under this act, it .shall not prevent the suit from proceeding as to any other defendant, but judgment shall be .given for the full amount of such bond, bill, note, or contract, against .any one or more of the defendants, who may appear to be liable.” Swan’s Stat. (ed. 1841) 137.
    In 1845, the legislature repealed the law of 1839, and all of the law of 1816 except the four sections already quoted. Swan’s Rev. 'Stat. 110.

      The plaintiffs in error interposed two defenses to the action of the court below:
    1. That they were not liable as stockholders or otherwise; that the company alone was liable.
    2. That the cause of action did not accrue to Burt within four years next before the commencement thereof.
    The case was submitted to the court upon the petition, answer, and1 agreed statement of facts, the substance of which has been given above, and the finding and judgment was in favor of Burt.
    To reverse this judgment is the object of this proceeding in error..

      Groesbeclc & Thompson, for plaintiffs in error, argued:
    1. That there is no common-law liability of plaintiffs in error, and that it was so held in Lawler et al. v. Walker et al., 18 Ohio, 157.
    *2. That the liability can not be ex contractu, but,
    3. Statutory, and in the nature of a penalty; and that, therefore,, the action was barred by the statute of limitations.

      Collins & Serrón, for defendant in error:
    Our propositions are:
    1. Defendants are liable on those notes ex contractu by the principles of the common law.
    2. Defendants are made liable on those notes by the statutes of Ohio, and the statutes referred to clearly show that it is a contract liability.
    3. The statute of limitations will not be extended to cases not strictly within its provisions.
    4. The court will not reverse the former opinion of the law in this case (Lawler et al. v. Walker et al., 18 Ohio, 151), on the prinple of stare decisis.

      Flamen Ball, for defendant in error,
    made the following points:
    I. The directors, as managers of the corporation, had power to make a canal, but not to make paper money, and the law at that time provided that if they should step outside of their charter and do the latter, they should be jointly and severally bound on such contracts for the payment of the money to the holders.
    This requirement of the law was neither a penalty, nor a provision in the nature of a penalty, nor did it create a penal obligation.
    1. A penalty is a punishment imposed by statute for the commission of an act or the omission to perform an act prohibited or commanded by law, 1 Bla. Com. 88; 1 Kent. Com. 467; 2 Hawk. P. C., c. 26, sec. 17; Sedg. on S. & C. Law, 41.
    2. Statutes for- the prevention of fraud, for the suppression of public wrong, or to effect a public good, are not, in a strict sense,, penal acts, although they impose a penalty. Taylor v. United States, 3 How. S. C. 197.
    3. The act of issuing such notes by the directors and officers was-not prohibited by the statute. It merely prescribed the nature and extent of the liability of the parties concerned in making *such contracts, in case the officers of such corporations saw proper to make them. No penalty having been imposed by the-statute for the commission of the act, the act was not prohibited,, and was therefore not void. Lewis v. Welch, 14 N. H. 294; Act of 1816, Swan’s ed. 1841, 137; Act of 1839, Ib. 140.
    4. But no penalty was imposed on the officers of such a corporation for issuing such notes, either by the act of 1816, or by the act of 1839-They are merely held liable by said acts on the contracts so made by them. Lawler v. Walker, 18 Ohio, 151.
    5. A penalty implies a prohibition, although there be no prohibitory words in the statute. Griffith v. Wells, 3 Den. 226; 1 Kent’s Com. 467.
    II. The notes issued by the directors of the company were evidences of debt, and as such were contracts, inuring under the laws in force-at the date of issue, to the benefit of the holder. There was then, immediately on the issuing of the notes a perfect obligation created,, on the one part, to pay according to the forms of law then in force, and on the other to receive payment, which obligation was evidenced; by the written contract so put forth by the parties, and the moment, it was put forth it became an executed contract. Act of March, 1839, Swan’s Stat. (ed. 1841) 140; Act of January, 1816, Ib. 137, secs. 11-14; 1 Doth, on Ob. 77, 91.
    1. Every contract is supposed to be made with reference to the laws, and the laws in force at the time of making the contract, enter into and become part of the contract. Smith v. Parsons, 1 Ohio 238; Bocock v. May, 4 Ib. 334; Nichols v. Poulson, 6 Ib. 309.
    311

      2. This court has already decided these notes to be the contracts of the directors. Lawler v. Walker, 18 Ohio, 161.
    3. Where the directors or officers of a company act within the scope of their corporate powers, they are not personally liable at. common law; but when they exceed the authority conferred by their charter, and do acts which injure others, they can. not shield themselves from liability for those acts by claiming protection under the charter. Vose v. Grant, 15 Mass. 519; *Bartholomew v. Bentley, 15 Ohio, 667; Johnson v. Bentley, 16 Ohio, 97; Lawler v. Walker, 18 Ohio, 161; Kearny v. Buttles, 1 Ohio St. 362.
    4. The directors of a corporation are merely its agents to exercise its lawful powers; and when they exceed those powers they act not as corporators, but as individuals, and are liable as individuals. Story on Prom. Notes, sec. 71; Salem Bank v. Gloucester Bank, 17 Mass. 29; Thayer v. Burton, 19 Pick. 516; Angell & A. on Corp., see. 625; Goodloe v. Cincinnati, 4 Ohio, 513.
    III. An executed contract is a vested right. So, also, where a right in the nature of a contract has become vested by force of a statute it becomes an executed contract, and subsequent repeal of the statute can not affect or impair the obligation of the contract. Fletcher v. Peck, 6 Cranch, 87; Butler v. Palmer, 1 Hill, 324; Sedg. on S. & C. Law, 133.
    1. A right of action vested under the original law, can not be «divested by a repealing statute. Bedford v. Shilling, 4 S. & R. 401; Duffield v. Smith, 3 Ib. 590; Butler v. Palmer, 1 Hill, 324; Hitchcock v. Way, 6 Ad. & Ell. 943; Paddon v. Bartlett, 3 Ib. 884.
    2. If the repealing act of 1845 was intended to impair the obligation of those contracts, it is unconstitutional and void. Const. United States, art. 1 see. 10; Const. of Ohio, 1802, art. 7, sec. 16; McCormack v. Alexander, 2 Ohio, 75; Woodward v. D. College, 4 Wheat. 518; Ohio v. Com. Bank Cin., 7 Ohio, 1, 125; The Charles River Bridge case, 11 Pet. 420; Ohio L. I. & Trust Co. v. Debolt, 16 How. 430.
    3. A contract by which a definite, fixed, private right of property is vested, is a contract within the meaning of the constitution, the obligation of which can not be impaired by state legislation. Evans v. Eaton, Pet. C. C. 337; Butler v. Pennsylvania, 10 How. S. C. 416; Quackenbush v. Danks, 1 Den. 130; Sackett v. Andross, 1 Hill, 334.
    IY. There is no difference in law, between án act of a state legislature ■which, destroys the remedy whereby a contract may be *enforced, and an act which impairs the obligation of the •contract. It is just as fatal to the contract for the state legislature to destroy the one as the other.
    1. A remedy given by law for the collection of a debt (which is merely the legal mode of enforcing the obligation of a contract) may be modified, but it can not be altogether taken away by a state legislature, without impairing the obligation of the contract. 1 Kent’s Com. 455; Mason v. Haille, 12 Wheat. 870.
    2. It was never claimed by the Supreme Court of the United :States, that a state law might take away the entire remedy without impairing the obligation of the contract. Mason v. Haille, 12 Wheat. 370; McCracken v. Hayward, 2 How. S. C. 612.
    3. Nor did Mr. C. J. Marshall intend to be so understood. Sturges v. Crowninshield, 4 Wheat. 200.
    4. Nor did the Supreme Court of New York, in the case cited -by Mr. Worthington, in argument, so construe the law; but in that -case they held that inchoate rights only derived by statute, might be lost by the repeal of that statute; but they also expressly held that civil rights perfected far enough to become executed contracts, -could not be affected by a repealing statute. Butler v. Palmer, 1 Hill, 324.
    5. A right of appeal already attached by virtue of a statute, can not be taken away by a repeal of the statute. Grover v. Coon, 1 Comst. 526.
    6. But the legislature have never attempted to repeal the remedial part of the statute of 1816. Vide see. 11, act 1816.
    The case was further argued orally by Y. Worthington, for plaintiffs in error, and by Gollins and Ball, contra.
   Suttliff, J.

From the statement of facts it is evident that the issuing of the notes by the plaintiffs in error in 1840,'brought them within the provisions of those sections of the statutes relied upon by defendant in error. Indeed, from the agreed statement, the whole case must depend upon the question, whether the plaintiffs in error, by force of the statutes referred to, can be held liable in ^contract as the makers of the notes, and thereby bound to ■perform the promises expressed by the notes, as the makers thereof. If liable upon the notes as. makers, the plea of the four years’ limitation,urged by their answer, would be insufficient; but if the liability imposed by the statutes upon plaintiffs in error, is only statutory, or in the nature of a penalty, four years would limit the-right of action, and the plea would be good.

Let us then proceed to an examination of the nature of the liability imposed by the statutes referred to.

It appears in the first place that the notes were issued on the account of the company; that the company had received the consideration for the notes; was indebted to the contractors of the work to the amount, and delivered the notes to them as evidence of such indebtedness.

The Cincinnati and Whitewater Canal Company, by its charter, was authorized to execute notes, under such circumstances, expressive of the amount actually due their creditors; and it was their duty to do so, if unable to pay, and requested by their creditors to give its notes. The consideration, circumstances, and terms of the transactions and notes, show that the company was the maker, the promisor of the notes, and liable, upon their issue for the payment thereof; unless released from such liability by the statute. But upon reading the statute relied upon by defendant in error, it is evident that the law does not exonerate the company from the obligations of its contract expressed by the notes. Indeed, the power to issue notes to its creditors, expressive of the indebtedness of the company to the workmen engaged in constructing the canal, for which the company was incorporated, is so obviously within the provisions of its charter, we apprehend no legislature would feel authorized to attempt to inhibit the exercise of such right by the company, under its charter.

The following is the form of the notes:

“The Cincinnati and Whitewater Canal Company promise to pay three dollars to S. & H. Howard & Co., or order, twelve months after date, for value received, at their office. Cincinnati, 17th June, 1840. “ J. Bonsall, President.
“ Sam’l E. Foote, Secretary.”

*Thc notes were of different denominations, but none larger than five dollars; and were engraved and issued in the likeness of bank-bills. •

According to the terms of the notes, the company appears to be the only promisor, and holden for their payment. If sued upon its indebtedness expressed by the notes, it might be well doubted' whether the company could be permitted to so far take advantage-of its own wrong, as to set up as a defense that it had issued its-notes for such indebtedness in the similitude of bank-notes to circulate as money.

The contract or promise expressed by the notes, and shown by the statement of the case, was one made by the canal company aspromisor to the promisee or indorsee as the other party. This relation and liability of the company as promisor being established by the terms of its promissory notes, and not taken away by the-statutes, must necessarily remain, irrespective of any liability upon individual stockholders by the statute.

In what manner then, are the plaintiffs in error liable upon those-notes ? Is their liability one in contract, or in tort ? If in contract, is it a contract made by themselves; or, is it one imposed: upon them by the statute ? .

A contract is an agreement, upon sufficient consideration, between-two or more persons to do or not to do a particular thing.

Hence, to constitute a valid contract, there must be parties capable to contract; a lawful subject-matter of contract; a sufficient-consideration therefor; and an actual agreement between the parties-to do, or to forbear doing the thing proposed in the agreement.

The rules of construction applicable to written contracts generally, are the rules applicable to the promissory notes under consideration, in determining whether they are in fact the contracts or promises of the plaintiffs in error.

In the first place then, the question proposed is to be determined' by the express provisions of the promissory notes, if those provisions are clear and unambiguous, without resorting to rules of interpretation. In such a case the common-law maxim, “quoties■ *in verbis nulla est ambiguitas ibi nulla expositia contra verba fienda est,” should apply. 2 Saund. 157.

“The first general maxim of interpretation,” says Mr. Vattel, “isr that it is not allowable to interpret what has no need of interpretation. When a deed is worded in clear and precise terms; when its meaning is evident, and tends to no absurd conclusion, there can be no reason for refusing to admit the meaning which such deed naturally presents. To go elsewhere in- search of conjectures in order to restrict or extend it, is but an attempt to evade it.”

Under the application of these leading maxims, we are precluded! from having respect to anything else than the plain and expresa language of the promissory notes to determine whether the plaintiffs in error are, by the terms thereof, the makers and promisors of the notes.

The meaning of those instruments of writing is certainly clear, and tends to no absurd conclusion.

No mention is made of the names of plaintiffs in error, either within, or upon the notes. It is evident from their express terms, .that the notes are expressive of the promises of the company to pay; but contain no intimation of any promise on the part of the plaintiffs in error. And this being so, it is no more admissible to look to the statutes under consideration, to determine whether the notes express a contract or promise on the part of plaintiffs in error, than it would be to call witnesses to prove their meaning to be contrary to the express terms of the notes.

It is obvious, therefore, that the statutes can not be referred to, for the purpose of showing that the plaintiffs in error in fact made the promise in writing expressed by the notes; and that such promise is in writing, and so not subject to a limitation of four years.

Reference can only be had to the statutes under consideration to show that a liability has been imposed upon plaintiffs in error to pay the notes, and to show the nature of that liability.

And here, we apprehend, arises the single question upon which the right of action in this case depends.

*Does the statute, ex vi termini, constitute plaintiffs in error makers or promisors of the notes sued upon ?

It is insisted by counsel for defendant in error, that the liability imposed by the statute is one ex contractu, and not in tort; and that the statutet makes plaintiffs in error liable as makers of the notes.

But in order to show that this liability of plaintiffs in error to pay the amount of the notes arises in contract, instead of in tort, the following conclusions must be arrived at: 1. That there is no need of two parties to make a contract; 2. That there is no need of a consideration, or to have any actual promise or agreement, on the part of the person liable for the payment, expressed by the terms of the contract; and, 3. That it is not necessary that there should be a legal subject-matter of contract.

If the plaintiffs in error were held liable on the notes in contract, and if the amount of the judgment should be' collected from one of them, he would of course be entitled to contribution. If a recovery should be had under section 4 of the act of 1816, of the penalty thereby provided, of four times the amount of one of these notes, against an indorser thereof, after paying such penalty, having possession of the note, he could recover its amount from one or more of the stockholders.

Another embarrassment, which would arise from legalizing the circulation of this unauthorized bank paper, would be found in determining the rights of the indorsers. When would an indorser, other than a stockholder, become liable upon his indorsement? Would his liability attach upon presentation to the company and due notice of dishonor; or would the stockholders, in'that respect, also be regarded as the makers of the notes ?

Many other questions, involving the .parties in doubt, perplexities, and inextricable difficulty would necessarily arise, from construing the liability imposed by the statute upon the stockholders' to be one in contract, and making them liable as makers of the notes. It would legalize this unauthorized currency, and tend, necessarily, to put its market value at a premium, not only over paper legally executed by the same company, but over unauthorized paper generally, and thereby promote its circulation.

*But can it in fact be maintained by any just reasoning, that the legislature has the power to constitute a contract between, two persons, by statute, without their assent, and against their will ? The British Parliment (whose power and jurisdiction Sir Edward Coke pronounced so transcendent and absolute that it could not be confined, either for causes or persons, within any bounds), it is believed, has never assumed the right to enact written contract obligations between subjects of that realm. And surelysuch a power can not be conceded to the legislature of Ohio, by admitting that the statutes under consideration constituted the notes sued upon, the valid written promises of the plaintiffs in ex*ror.

We have carefully considered the arguments of counsel for defendant in error, and the authorities to which they refer, to show that plaintiffs in error, by force of the statutes mentioned, are liable, in contract, as the promisors and makers of the notes in question. But neither their able and ingenious arguments, nor the authorities referred to, at all remove the difficulties we have suggested;. and which prevent our arriving at the conclusion, that the liability imposed upon plaintiffs in error is one arising in contract against them, as the makers and promisors of the notes: Upon this point -of the case, we think the able argument of counsel for plaintiffs in ■ error must remain unanswered.

The high respect we entertain for the distinguished judges then -composing the court, and the strong desire we have to preserve, so far as practicable, a consistency in the decisions of the court, have induced us to very carefully examine and consider the statement and opinion of the court, in the case of Lawler et al. v. Walker et al., 18 Ohio, 151.

The report of that case does not show what instructions, requested •on the trial by defendants’ counsel to be given to the jury, were refused by the court; but the instructions actually given, as appears by the report of the case, and sustained by the Supreme Court on hearing the writ of error, do not perhaps necessarily imply a construction of the statutes under consideration inconsistent with the views which we entertain. There is nothing in the statement of the case indicating a necessity to find *the plaintiffs in error holden upon the promissory notes, in contract, as the promisor or makers thereof, in order to affirm the judgment.

But the opinion expressed by the court in that case, in regard to the nature of the liability imposed by the statute, that the plaintiffs in error were liable in contract as promisors and makers of the notes, is an opinion in which we find ourselves utterly unable to ■concur. We can not regard such to be the legal effect of the statutes under consideration.

,The suggestion, in that opinion,"that the plaintiffs in error may be held liable on the notes in contract as partners, can not be admitted under the facts of this ease. Nor does this fall within that ■class of cases where one acting professedly in the capacity of an .agent, but without authority, thereby makes himself liable as principal.

In this case, the plaintiffs in error are not shown to have acted without authority from their principal, in advising or directing the issue of the notes. The notes were issued in the name of the company, for the existing indebtedness of the company, and, after issued, were acknowledged and recognized by the company as properly issued, in the name of the company.

Again, if the plaintiffs in error had in fact exceeded their authority in the issuing of the notes, so as to become personally liable, they could not even then be made liable, in contract, on the .notes. The notes contain no mention of their names, nor other language necessary to charge the plaintiffs in error, upon the notes, as promisors. “Is seems clear,” says Mr. Justice Story, “that in no case can an agent be sued on the very instrument itself, unless there are apt words therein so to charge him.” Story on Agency, sec. 264.

It appears to us evident, as well from the language of the statutes as from the circumstances of the case, that the object of the legislature in enacting the statutes was to prohibit wrongs, rather than to invade the rights of incorporated companies.

While the beneficent effects of those artificial persons, called bodies politic, or corporations, have been universally felt and acknowledged wherever civilization has made progress, from the ^time of their first establishment in the Roman empire until the present time, still, like all other potent instrumentalities for good, if not properly conducted and controlled, corporations are liable, by abuses, to become productive of serious evils.

The act of January 27,1816, had evidently for its object (as indicated both by the title and the provisions of the act), “to prohibit the issuing and circulating of unauthorized bank paper.” Section 1 of the act imposes a penalty of SI,000 ; other sections impose fines and forfeitures, to be recovered by action of debt or indictment. Bonds, bills, notes, or contracts, executed to the bank or company in violation of this act, are by its provisions declared null and void — clearly indicating the object of the act to be what its title expresses.

The provisions of section 11, “that every stockholder, shareholder, or partner . . . shall be jointly and severally answerable, in their individual capacity, for the whole amount of the bonds, bills, notes, and contracts of such bank, hereafter executed,” can not, consistently with other provisions of the act, be regarded as contemplating anything more than the imposing of a penalty, to the amount of the bond or note issued’, upon the stockholder, shareholder, or partner concerned in issuing the same.

The object of section 11 is evidently the same as that'of section 4, which imposes a penalty of four times the note, bill, etc., upon any one who shall knowingly receive, pass, or circulate such unauthorized bank paper. No effect could be legally given, we apprehend, to either section, further than to regard them as penal statutes, intended to inhibit rather than encourage the issuing and circulating unauthorized bank paper.

This view of the statutes under consideration disposes of the case

The repeal of the statute of March 12, 1839, and the statute of' limitations pleaded in this case, are' alike determinate of the cause of action of defendant in error.

That clause of the statute of limitations relied upon by counsel for plaintiffs in error, to support their plea, provides as follows:

“All other actions not herein enumerated, within four years-after such right of action shall have -accrued, and that whenever-*any,action for a forfeiture or penalty shall-be given and limited by statute, such action shall be commenced within the time limited.”

As this is not an action enumerated in the statute of limitations governing the case, and it is not “ an action for a forfeiture or penalty given and limited by statute,” it falls within the above-recited provision, and was barred in four years after the right of action accrued. The plea of limitations by plaintiffs in error is therefore well pleaded in this case; and the judgment of the Superior Court must be reversed.

Bartley, C. J., and Brinkerhoee, and Scott, JJ., concurred.

Swan, J., dissented.