text:
    Joseph Bonsal v. The State of Ohio.
    Under the act of January, 1816, “to prohibit the issuing and circulating unauthorized bank paper,” it is sufficient to charge in the indictment, in general terms, that the defendant acted as an officer of a bank not incorporated by law.
    An order that the defendant stand committed, until fine and costs be paid, is erroneous.
    The judgment of the court of common pleas, in a criminal ease, may be reversed in part, and affirmed in part.
    This is a writ of error to the court of common pleas of Hamilton county.
    The record shows that at the January term of said court, 1841, the plaintiff in error was indicted by the grand jury for acting as an officer of a bank not incorporated by law.
    The indictment contains six several counts, of which it is only necessary to refer to the fifth and sixth.
    *The fifth charges “ that the said Joseph Bonsal, on January 4, 1841, with force and arms, in the county of Hamilton aforesaid, acted as an officer of a bank not incorporated by law, to wit, the Cincinnati and 'Whitewater Canal Company, contrary to the form of the statute, in such case made and provided,” etc.
    The sixth, “that the said Joseph Bonsal, on' January 4, 1841, with force and arms, in the county aforesaid, acted as officer of a bank not incorporated by law, contrary to the statute, in such case made and provided, and against the peace and dignity of the State of Ohio.”
    To this indictment the defendant pleaded not guilty, and, at the same term of the court, the case came on for trial to a jury, who returned a verdict of guilty. Whereupon the court sentenced the defendant to pay a fine of $1,000, and to stand committed until the sentence should bo complied with.
    The defendant then tendered a bill of exceptions, which was allowed by the court, and is made a part of the record. This bill of exceptions sets forth that, on the trial of the cause, “ it was proven that all the notes issued were by order of the board of the Whitewater Canal Company, and that their object, by such issue, was to raise funds to complete the canal. That an arrangement was made with the several contractors on the canal, who agreed to receive such paper (a bill of which is attached, and made a part of the bill of exceptions), in payment for their work, and indorse the same, and employ the same as money or funds to purchase labor and materials to complete their several contracts. Joseph Bonsai procured a plate to be engraved, for which ho paid $500 in Whitewater bills ; had the paper, which was now put in circulation, struck, filled up, and delivered over to the several contractors and persons whom the company owed, who indorsed the same, and put it in circulation. That the whole issue of this paper was to persons to whom the company was indebted as contractors, or persons who had performed some ^service for the company, or persons who claimed damages. That the paper, thus issued, passed and circulated, by delivery, as money.” It was further proved, that of $268,000 of notes so issued, $98,000 had been taken up by the company before they had become due, according to their face; and that none so taken up had over been reissued. That the motive of the board of directors of the company, in ordering such issue, was to anticipate funds from the state, from the city of Cincinnati, and from individuals whose subscriptions were in arrear, and to prevent a stoppage of the work. The whole issue was of the denominations of'one, two, throe, and five dollars; a small part of which was of five dollars. That it all passed and circulated as money, and was so designed, intended, and calculated to pass and circulate as money, by the defendant, and those who were concerned in paying it out, and in putting it in circulation. And; also, that Joseph Bonsai did sign these notes, as president, and Samuel P. Foot, as secretary; and it was admitted that they were the president and secretary of the Whitewater Canal Company, incorporated by law, and consisting of divers persons.
    11 And thereupon the defendant requested the court to charge the jury that they must take the intention into consideration, and if there was no intention to do a banking business, they could not •find the defendant guilty. But the court charged the jury that an intention to accomplish a good object by an issue of unauthorized bank paper was no excuse; and, if such unauthorized bank paper was put in circulation, it mattered not what good object was had in view, or what good motives prompted such illegal issue, the parties concerned mig’ht be found guilty.”

      “ The defendant also requested the court to charge the jury, that if the notes were not in a negotiable form when they left the control of the company, they could not find the defendant guilty. But the court charged the jury that if they were satisfied, by evidence, that the individuals incorporated as, and composing, the Whitewater Canal Company, had acted beyond *the scope of their chartered rights, in issuing and putting in circulation unauthorized bank paper,- such individuals, to the extent of such unauthorized act, were to be treated as individuals not incorporated. And that if the jury believed, from the evidence, that the bills, notes, or paper, so made and paid out, were evidences of debt in the similitude of ordinary bank bills, and were designed, calculated, and intended to circulate as money, and pass, by delivery, as money, by those who made and paid them out, and put them in circulation, and that such paper was so considered, and did actually so pass and circulate, although at the time said paper was paid out to the creditors of said Whitewater Canal Company it was not indorsed in blank, or payable to bearer. Yet if such shifts and devices had been resorted to in the form and appearance of said paper, that it would, at the time it was so paid out by said company, pass, by delivery, and circulate as money, and actually did so pass and circulate, and that those who then made and paid out said paper in such form and appearance, designed and intended, by resorting to such shifts and devices, that it should so pass and circulate, by delivery, as money, such description of paper was unauthorized bank paper. And if an association of individuals had put into circulation such a description of paper, and paid it out for debts, and defendant had signed his name to such paper, so issued, as an officer, the jury might find him guilty.” The note attached to the bill of exceptions is upon paper like, and in the similitude of, ordinary bank notes or bills, and in form as follows, to wit:
    No. 22,208. one. 1.
    The Cincinnati and Whitewater Canal Company promise H to pay to M. Davis, or order, twelve months after date, one ^ dollar, for value received, at their office. Cincinnati, December 5, 1840.
    Samuel P. Foot, Sec’y. Joseph Bonsal, Pres’.t..

    Indorsed in blank by M. Davis.

      *This writ of error is prosecuted to reverse the sentence of the court of common pleas in this case, and the errors assigned are:
    1. That neither count of the indictment sets forth sufficient legal ground to warrant the sentence of the court.
    2. The court refused to charge the jury as requested by defendant.
    3. General errors.
    Wright, Walker & Miner, for plaintiff in error.
    Crapsey., prosecuting attorney, for the State of Ohio.
   Hitchcock, J.

From an examination of the indictment, in this case, we incline to the opinion that the first four counts are defective, but if there be one good count in an indictment, and the verdict is general, such good count is sufficient to authorize the court to pass sentence, or enter .up judgment. The fifth and sixth counts in this indictment are similar to the indictment in the case of Lougee v. State of Ohio, decided at the present term, and which, after full consideration, was held by the court to be sufficient.

Before proceeding to examine the ease, as presented in the bill of exceptions, it is necessary to ascertain, definitely, what was requested, by the defendant, of the court, in charging the jury, and what were the instructions actually given.

The first instructions requested, were, that the jury must take 'the intention into consideration, and if there was no intention to ¡do a banking business, the defendant could not be found guilty.

The court, instead of giving such instructions, directed the jury, in substance, that an intention to accomplish a good object, ¡by an issue of unauthorized bank paper, would not excuse such an issue. If the act done was illegal, the motive leading to the commission of such illegal act could not excuse its commission. In other words, that in law, at least, the end will not justify the means.

*In the second place, the defendant requested the court to charge the jury ¡that, if the notes were not in a negotiable form when they left the control of the company, but were afterward negotiated without the previous consent of the company, the defendant could not be found guilty. The charge which followed, upon this request, is somewhat confused, but, upon careful examination, seems, .in substance, to have been that if the jury was satisfied, from the evidence, that the Whitewater Canal Company, not being authorized by law so to do, had issued and put in circulation unauthorized bank paper, the individuals constituting the company could not be protected, by their act of incorporation, from the legal consequences resulting from such issue; and that, if the jury believed that the bills, notes, or paper issued by said company,, as evidences of debt, were in the similitude of ordinary bank paper or bills, and were designed, calculated, and intended to circulate as money, and pass by delivery, by those who made and paid them out, and that shifts and devices were resorted to, in the appearance of the paper as well as in its form, to obtain for it a circulation as money, the paper thus issued would be unauthorized bank paper. And an association of individuals putting such paper in circulation would be guilty of a violation of the. law, although the same was not payable to bearer, or indorsed in blank, when it left the control of the association.

The inquiry is, whether there was anything wrong in the instructions given, or in refusing the instructions requested. This will lead us to an examination of the law, for a violation of which the plaintiff in error was convicted. And, in order to give a proper construction of this law, it will be necessary to inquire into the cause of its enactment, as well as of the mischiefs which it was intended to remedy.

. Previous to the declaration of war, in 1812, but six banks had been incorporated in the State of Ohio, and were in operation. These banks had been found to be, or, at any rate, were supposed to be by the people of that day, institutions beneficial to the interests of the state. Their credit was good, and their paper equivalent to specie. Shortly after the declaration *of war, these banks, as well as all others west and south of New .England, were compelled to suspend specie payments. This suspension was, for the time being at least, winked at by the government. Still, the people had confidence in the banks, and their paper furnished the entire circulating medium; and it is a fact worthy of remembrance that the paper of these institutions, although much depreciated, was held to be more valuable than the paper issued by the government itself. Treasury notes issued by the government of the United States were, in the market, as much below the value of these depreciated bank notes as the bank notes were below the value of specie. In such notes the taxes to the states and to the United States were paid, and in such notes were loans made to the government. Without them, the war could not have been prosecuted, and the government must have become bankrupt. But, in consequence of being relieved from the payment of specie, the banks were less cautious as to the amount of paper issued, and there is reason to believe that the business was profitable; at least it was so considered, and many associations were formed without the authority of law, and, as was believed, some of thorn without capital, for the purpose of transacting banking business. At this state of things the reflecting people of the state became alarmed, and on February 8, 1815, the first law was passed in the State of Ohio restraining individuals and associations from banking. Chase’s Stat. 868. .As the law of that year, so far as it operated as a restraining act, was repealed the next year, it is unnecessary to examine it.

At the next session of the general assembly, a number of additional banks were incorporated, and on January 27, 1816, the act now in force, “ to prohibit the issuing and circulating unauthorized bank paper,” was passed. Chase’s Stat. 904. The first section of this act provides, “ That if any person within this state shall act as an officer, agent, trustee, or servant, to any bank or moneyed association coming within the description contained in section 2 of this act, except a bank incorporated by a law of this state, he *shall, for every such offense, forfeit and pay the sum of $1,000.

And section 2, “That every company or association, that shall, lend money, and shall issue, by their officer or officers, or, by any other person or persons, bonds, notes, or bills, payable to bearer, or, payable to order, and indorsed in blank, or use other shift or device, whereby the bonds, notes, or bills, given by such company, or association, or on their behalf, pass or circulate by delivery, shall be taken and deemed a bank within this act.”

“ Sec. 3. Every person who shall act as a president, cashier, clerk, or director to any such bank, or shall, in any respect, assist in discounting paper, or lending money for such bank, or in paying out and receiving money for such bank, or, in any manner, intermeddle with such bank, or its concerns, and every person, whose handwriting shall appear on the bond, bill, note, or contract of such bank, whether as a drawer thereof, or a payee and indorser, shall be deemed and taken an officer of such bank, within the meaning of this act.”

From these sections, it will be seen that the leading object of the bill was to prevent unauthorized banking, and in this way, prevent the currency of bonds, notes, or bills, which had not been issued by responsible institutions, or by institutions recognized by law. Associations that “shall lend money, and shall, by their officers, issue bonds, notes, and bills,” are the associations prohibited. It has, by some, been contended that the word l‘and,” as here used, should, for the purpose of preventing the evil complained of, be held as having the same meaning as the word “ or but, at the time this act was passed, it was not supposed that any association would issue notes or bills, to pass and circulate as money f unless coupled with the design of loaning the same, and thus making a profit.

In the case now under consideration, the counsel for the plaintiff in error requested the court of common pleas to charge the jury that, if there was not an intention to do a banking business, he could not be found guilty. This instruction was not given. Had the law of 1816 been the only law *upon the subject, probably here would have been an error; but it had been found, that associations, which did not do a banking business, had adopted the practice of issuing notes and bills intended to circulate and pass as money. To remedy this evil, the general assembly, on March 18, 1839, passed an act to amend the before-recited act of January 27, 1816. Swan’s Stat. 140.

By section 1 of this amendatory act, it is provided: That every company or association, excepta 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, bills, bonds, 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 and circulate by delivery, shall be taken and deemed an unauthorized bank, within the meaning of the act to which this is an amendment, entitled ‘an act to prohibit the issuing and circulating of unauthorized bank paper,’ passed January 27, 1816.”

From the passage of this amendatory act, it must be considered, in connection with the law of 1816, as if it had actually constituted a part of that law, at the* time of its enactment, so far as relates to offenses committed subsequent to the passage of the amendatory law. Considering it in this light, there can be no doubt that an association violates the law by putting in circulation notes, bills, etc., intended to pass as money, whether accompanied with an intention of doing a banking business, or otherwise. Of course, it would have been improper for the court of common pleas to have given the instruction first requested.

*The court were next requested to instruct the jury, that, unless the notes were indorsed in blank, before they left the control of the company, the defendant could not be found guilty. This was refused by the court, or, rather, such instructions were not given, in so many words, although I incline to the opinion that-such instructions were, in substance, given, or such as were equivalent. If not so, the question arises, whether such instructions, given unconditionally, would have been proper. The bill of exceptions shows that these notes were payable to order; that they were, in similitude and appearance, like bank notes, and struck upon an engraved plate ; signed by the president and secretary of the company ; and that, when issued, it was intended, designed, and calculated by the defendant, and those who were concerned in paying them out, and putting them in circulation, that they should pass and circulate as money; and this, too, under an agreement and understanding, with those to whom the notes were paid by the company, that, so soon as they should receive them, they should indorse them in blank, and circulate them as money. It is apparent that the creditors of the company, to whom these notes wore paid, were as much concerned in this transaction as the canal company itself. They had a part to act in purchasing this paper for circulation, and this part was to indorse it. By such indorsement, they, as well as the officers of the company, made themselves liable to the penalty of the law, which provides that “every person, whose handwriting shall appear on the bond, bill, not.e, or contract of such bank, whether as the drawer thereof, or witness, payee, or indorser, shall be taken, and deemed, an officer of such bank.” Under such circumstances, it is but a poor subterfuge to claim that the plaintiff in error was guiltless, because the indorsement was made after the instrument was paid out by the company. It is, at best, but a miserable “ shift or device,” by which to avoid the penalty of the law. In our opinion, tho court did not err in refusing to give tho unqualified instruction, as requested.

*Nor do we see any error in the instructions actually given. Surely, it was proper for the court to say to the jury, that the defendant could not excuse himself from liability, for an illegal act, on the ground that the ulterior object in view was a good one. Nor was it improper to instruct the jury, that if the defendant had made use of “shifts and devices,” to procure for the paper issued a circulation as money, he was guilty, although the paper was not payable to bearer, or indorsed before it left the control of tho company. Whether such “shifts and devices” had been used, was a question of fact for the jury to determine.

The record shows that the court of common pleas, in addition to the assessment of a fine, sentenced the plaintiff in error to stand committed, until the fine and costs should be paid. This part of the sentence, according to the decision of this court, in the case of Lougee against the state, already referred to, is erroneous ; and, so far, the judgment of the court of common pleas is reversed. So far as respects the fine and costs, the judgment of that court is affirmed. Judgment accordingly.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    James Steedman v. The State of Ohio.
    Individual notes, intended to pass as currency, or money, are not competent evidence against the person issuing them, on an indictment for acting as an officer of a bank, without proving that there was a company, or association of individuals, formed for the purpose of putting in circulation such notes.
    This is a writ-of error to the court of common pleas of Hamilton county.

      The record shows that, at the July term of said court, 1840, the plaintiff in error was indicted “for passing unauthorized paper.” The indictment contains four counts.
    *In the first count it is charged that, “James Steedman, on January 1, 1840, with force and arms, in the county of Hamilton aforesaid, and on divers other days between that day and the finding of this bill, notes, payable to bearer, and intended to circulate as money, to a large amount, to wit, to the amount of $2,000, did issue and put in circulation, one of which notes is as follows, that is to say: ‘ I promise to pay to James Bailie, or bearer, at the office; No. 32, of J. Steedman, in Cincinnati, twenty-five cents in current bank notes. Cincinnati, No. 40 Front street, July 4,1840. J. Steedman,’ contrary to the statute, in such case made and provided, and against the peace and dignity of the State of Ohio.”
    The second count is substantially like the fh*st.
    The third charges the defendant with having put in circulation a large amount of promissory notes, to wit, the amount of $2,000> all of which were designed and intended to circulate as money, and were of the denomination of twenty-five cents each.
    In the fourth count it is charged, “ that the said James Steed-man, on January 1, 1840, with force and arms, in the county of Hamilton aforesaid, and on divers other days between that day and the day of finding this bill, did act as an officer of a bank, not incorporated by law, contrary to the statute,” etc.
    The defendant pleaded not guilty, and, at the same term of the court, the case was tried by a jury. The jury found the defendant guilty, as charged in the fourth count in the indictment, and not guilty, as charged in the first three counts.
    After verdict the defendant moved the court for a new trial, which motion was overruled, and he was sentenced to pay a fine of $1,000 to the State of Ohio and the costs of prosecution, and to stand committed until the fine and costs were paid.
    Whereupon the defendant filed his bill of exceptions, which was allowed by the court, and is made part of the record, and which is as follows : “ On the trial of the above cause, before *tho court of common pleas of said county, at the July term thereof, 1840, the notes, which are described in the three first counts of the indictment, and one of which is hereto attached and made a part of this bill, were, by the prosecutor of the state, read in evidence to the jury, and there being evidence going to prove that Steedman and other persons were concerned in having the plate made upon which said notes were struck, and that Steedman had issued, paid out, and redeemed notes of this description; the evidence being closed, the defendant moved the court to charge the jury that said notes would be no evidence to sustain the fourth count of said indictment, which charge the court refused so to give, to which refusal of the court so to charge, the defendant excepts,” etc.

      Copy of Note, attached to Bill of Exceptions.

    No. 65.
    25 I promise to pay J. Bailie or bearer, at the office of J. Cents. Steedman, in Cincinnati, twenty-five cents, in current bank notes. J. Steedman.
    Cincinnati, No. 40 Front street, July 4, 1840.
    To reverse this judgment the writ of error is prosecuted, and the errors assigned are:
    1. That the fourth count of the indictment is not sufficient, in law, to sustain the judgment.
    2. That the court erred in allowing said notes to go to the jury, as competent evidence, to sustain the fourth count of the indictment.
    3. General error.
    The case was argued by Fessenden, for the plaintiff in error, and by Orapsy, prosecuting attorney, for the state.
   Hitchcock, J.

This was an indictment, against the plaintiff in error, for a violation of the act of 1816, to prevent the *issuing and circulating of unauthorized bank paper, and the several acts amendatory thereto.

This act, of 1816, in the first place, makes it criminal for any person to act as an officer of any banking asociation not incorporated by a law of this state, and, for a violation of this provision of the law, indicts a penalty of §1,000.

The fourth section prohibits the receiving, and offering in payment, “the bond, bill, note, or contract of any such bank, knowing the same to be unincorporated,” under the penalty of three times the amount of the “bill, note, or bond” so received and offered in payment. It also prohibits an person from receiving, and actually passing or circulating, the “bond, bill, note, or contract of such bank, by delivery, without indorsing the same, knowing such bank to be unincorporated,” under the penalty or forfeiture of four times the amount of such “bill, bond, note, or contract,” so received, passed, and circulated. Swan’s Stat. 136. And it is further provided, in the same act, that all fines and forfeitures, imposed by the act, may be recovered by an action of debt, or by indictment.

Thus, it will be seen, that this act provided for those distinct classes of offenses, and inflicted different penalties, according to the nature of the offense. The first offense is that of acting as the officer of an unauthorized bank; penalty," one thousand dollars. The second, that of receiving and offering in payment a bill or note of such unauthorized bank; penalty, three times the amount of the bill or note offered in payment. Third, that of receiving, and actually passing and circulating the paper of such bank; penalty, four times the amount of the paper circulated.

This act of 1816 did not, however, prohibit any person from issuing his own individual notes, intending the same to circulate and pass as money. Whether this omission was in consequence of the-fact that notes of this desciplion had not then been put in circulation to any considerable extent, or from what other cause, we do not know. But immediately after the suspension of specie payments, by the banks, in 1837, *the country was flooded with paper of this description. The evil was felt to be a great one, and, at the next session of the general assembly, an effort was made to check it. On February 16, 1838, an act was passed, which took effect the 1st of July of the same year, to amend the act of 1816. The third section provides, “that from and after the taking effect of this act, it shall be unlawful for any individual to issue and put in circulation any bond, bill, note, order, or check, for the payment of money, whether written or struck upon an engraved plate, calculated or intended to circulate as a currency or medium of exchange, and which shall not be authorized by law; and any individual who shall so issue and put into circulation any such bond, bill, note, order, or check, or who shall offer any such in payment of money or property, knowing the same to be unauthorized by law, shall be subject to the same ¡penalties as is provided for in section 4 of the act of January 27, 1816, above referred to; and said penalties and forfeitures Bhall be recoverable in the same manner as is pointed out in section 5 of said last-mentioned act,” etc.

By this section, two more offenses are added to those enumerated in the law of 1816, to wit: that of issuing, by an individual, notes, calculated and intended to pass as currency, and that of offering such notes in payment of money or property. The penalty annexed is the same as prescribed in section 4 of the act of 1816, that is, three or four times the amount of the paper issued or offered in payment. Whether, in a given case, the penalty should be three or four times the amount, would, perhaps, be a question of difficulty, as, in this respect, the law does not appear to be explicit.

In the three first counts of the indictment, the plaintiff in error is charged, or intended to be charged, with the offense specified in section 3 of the act of 1838, already recited. That is, the offense of issuing and putting in circulation his own individual notes, intending the same to circulate as currency, andi from the bill of exceptions, setting forth the evidence in the case, it is clear, to my mind, that, of the ^offenses charged in these counts, he was guilty. But, for some reason not apparent, he was, by the jury, found not to be guilty. If not guilty of these offenses, he certainly was not guilty of any offense whatever. In the fourth count of the indictment, the plaintiff in error was charged with having acted as an officer of a bank, not incorporated by law, was convicted of this offense, and was sentenced by the court, in pursuance of this finding, to pay a fine of $1,000 and the costs of prosecution.

To this judgment, it is objected that the fourth count of the indictment is insufficient in law.

This count, as already stated, is against the plaintiff in error, for acting as an officer of a bank not incorporated by law. It charges “ that the said James Steedman, on January 1, 1840, with force and arms, in the county aforesaid, and on divers other days, between that day and the day of finding this bill, did act as an officer of a bank not incorporated by law.” It is like the indictment in the case of Lougee v. State of Ohio, decided at the present term, and which was held by the court sufficient, except that the words in italic are not contained in the indictment of Lougee. Whother the fact that these words are contained in the indictment can vary the case, is perhaps questionable. We suppose that where the offense consists of’ the performance of a specific act, it is necessary that it should be charged in the indictment to have been committed on a day certain, although it is not necessary that the proof should, in this respect, sustain the indictment. In other words, the offense may be proved to have been committed on a different day from that laid in the indictment. But whether, after having charged the offense upon one day, it will do to lay it with a continuando, upon divers other days, as in a declaration in trespass, is a different question. But for the purposes of this case, it is not necessary to decide this question.

The second error complained of is, that the court allowed said notes, mentioned in the bill of exceptions, to go to the jury as competent evidence to sustain the fourth count of said *indictment, the same being by law incompetent. The court was requested to charge the jury that those notes were not competent evidence, under the fourth count, which was refused. The notes, upon their face, were the individual notes of Steedman, and were aceompanied with proof that they were by him designed and intended to circulate as currency. These notes were proper evidence under the three first counts of the indictment. The act of 1816, under which the fourth count is framed, was intended to prevent any company, or association of persons, from acting as a banking association without being incorporated by law, and to prevent such association from putting in circulation any of their notes or bills, intending them to pass and circulate as money. To act as an officer of such l n association, is made highly penal. But how can a man act as an officer of such an institution or association, until the association itself is formed? To convict one of acting as an officer of such an association, it would tfe necessary, in the first place, to prove that there was such an association in existence. Where is there any evidence to this effect, in the case before us? The only evidence in the case, as stated in the bill of exceptions, which in the least' looks to such proof, is, that other persons were engaged with Steedman in having the plate engraved upon -which these notes were struck. Whether these other persons were the engravers, or persons who wished to use the same plate for engraving notes to be issued in their own individual names, or who they were, does not appear. Surely, this evidence can hardly be said to conduce to prove the existence of such an association as is prohibited by law, much less is it evidence of that fact. It might be one link in a chain of evidence to prove the existence of an association ; but in the case before us, it is not only one link, but it is all the evidence we have. In the absence of proof of the existence of an association of the kind contemplated by law, these notes were not competent evidence under the fourth count in the indictment, and the court of common pleas erred in not so instructing the jury.

*But it is said, by the prosecuting attorney, that all the evidence given on the trial, is not contained in the bill of exceptions, and that this count is bound to presume that there were circumstances disclosed, which would justify the court of common pleas in refusing to charge as requested, and which would warrant the finding of the jury. Whether all the evidence, given in the case, is contained in the bill of exceptions, we do not positively know. In fact, the testimony, as narrated by the witnesses, is not given in that instrument, but the facts proved are stated, and, from the manner in which the bill is framed, the fair inference is, that they are all stated. It is true that if there had been no bill of exceptions in the case, we should have been bound to have presumed that all was correct.

But what are we asked to presume, in this case ? In order to sustain this judgment, we are asked to presume that there was testimony, before the court of common pleas, to prove the formation of a company or association, to do a banking business, without the authority of law, and to issue, and put in circulation, bonds, notes, or bills, payable to order, and indorsed in blank, or payable to bearer, with the intent that the same should pass as currency or money; that Steedman was an officer of said asociation ; and that the notes given in evidence, were issued by, or for, the benefit of said association. To presume this, would be to presume a great deal, for the sole purpose of sustaining a sentence, by which a man has been fined $1,000, for circulating his own individual notes, for which offense the law inflicts a penalty equal to four times the amount of the notes so circulated. Whatever we might presume, with respect to a bill of exceptions, in a civil case, we shall long hesitate, before, in a case so highly penal as this, we shall make presumptions like those now required of us, to sustain a judgment.

The general error being assigned, it is proper to inquire whether the court of common picas did not err, in refusing the motion for a new trial. I think anew trial should have been ordered. As before remarked, the testimony given in the *ease clearly proved Steedman guilty of the charges laid in the first three counts of the indictment, but did not prove him guilty of the charge laid in the fourth count. As well might a man be convicted of burglary, upon proof that he had been guilty of larceny, as could Steedman, under the proof in this case, be convicted of acting as the officer of a bank. The truth is, he was acquitted of the offense of which he was guilty, and convicted of an offense of which he was innocent. And, as the jury may have been led into this error, by the mistake of the court, in refusing to charge as requested, I think the court erred in refusing a new trial. Judgment reversed.


author: Grimke, J.

text:
    O. & J. Towsey v. John L. Avery.
    The act of March 19, 1838, abolishing imprisonment for debt, operates to discharge a recognizance of bail entered into before the act took effect.
    This is an action of debt, from the county of Hamilton.
    It is brought on a recognizaance of special bail, for James Gonsoles, entered into on March 17, 1838. At the February term of Hamilton common pleas, 1840, the plaintiffs recovered a judgment against Gonsoles for $860.50. On May 12,1840, a ca. sa. was issued against Gonsoles, upon affidavit, that he was non-resident. The execution was returned non est.

    The defendant plead nil debet, and gave notice that, by the act of March 19, 1838, abolishing imprisonment for debt, he was deprived of all control over the person of Gonsoles, and so released from his recognizance.
    *Starr, for the plaintiff,
    denied that the right of the defendant to surrender his principal, was taken away by the statute. He had aright to take him at any time, and without judicial process. Nichols v. Ingersoll, 7 Johns. 154.
    Henderson, on the same side,
    cited Miner v. Mechanics’ Bank of Alexandria, 1 Pet. 64; Fisher v. Blight, 2 Cranch, 386; Canal Co. v. Railroad Co., 4 Gill & Johns. 1; Talbot v. Seaman, 1 Cranch, 35; Mayor of Baltimore v. Howard, 6 Harr. & Johns. 383; Thomas v. Maham, 4 Greenl. 513; Adams v. Woods, 2 Cranch, 341; 9 East, 44; 1 Ld. Raym.77. A statute will not be so construed as to take away vested rights. Dark v. Vankleck, 7 Johns. 477; Ogden v. Blackledge, 2 Cranch, 272; Calder v. Bull, 2 Dallas, 386; Osburn v. Huger, 1 Bay, 179 ; Bedleston v. Sprague, 6 Johns. 101; Ogle v. Turnpike Company, 13 Serg. & Rawle, 25; Bedford v. Shilling, 4 Cow. 334.
    Wright, Walker & Miner,
    for the defendant, insisted “that the act abolishing imprisonment for debt being in favor of liberty, is to be construed liberally.” To show the liberality extended to bail in other cases, they cited Russell v. Champion, 9 Wend. 462; Durham v. Macomber, 5 Wend. 113; Kane v. Ingraham, 2 Johns. 404; Holley v. Cobb, 1 Burr. 264; Olcott v. Sibley, 4 Johns. 409; Doug. 45; 6 Tenn. 247; 2 Bos. & Pul. 45.
    Fox, on the same side, cited Beers v. Haughton, 9 Pet. 329; Loflin v. Towler, 18 Johns. 335; Boggs v. Teackle, 5 Binn. 338; McClung v. Bowers, 9 Serg. & Rawle, 24; 1 McCord, 373.
   Grimke, J.

The questions which are presented in this case are:

1. Would the defendant have been entitled to an exoneretur, without an actual-surrender of the principal, any time between March 19, 1838 (when the act abolishing ^imprisonment for debt took effect), and May 1, 1839, when the right to imprison was reordained, as against non-residents? and, .
2. If he had this right, can the same matter be taken advantage of, by way of plea to the action brought upon the recognizance ? And if these questions are answered in the affirmative, then,
3. Did the act of March 16, 1839 (and which became of force on May 1, 1839), defeat the validity of the plea?

The first two questions are completely settled in the case of Beers v. Haughton, 9 Pet. 329. It was there conclusively shown, that wherever the principal would be entitled to an immediate and unconditional discharge, if he had been surrendered, there the bail are entitled to relief by entering an exoneretur, without any surrender. This was so held in Mannin v. Partridge, 14 East, 599; Boggs v. Teale, 5 Binn. 332; and Olcott v. Sibley, 4 Johns. 407. The same principle was determined in Durham v. Macomber, 5 Wend. 113, under the act exempting females from imprisonment; in Russell v. Champion, under the general act abolishing imprisonment for debt; and in Trumbull v. Healy, 21 Wend. 670, under an insolvent debtors’ act. It was also shown, in the case of Beers v. Haughton, that wherever-the bail are entitled to be discharged, as a matter of pure right they will not only be discharged on motion, but they may plead the same matter as a bar to a suit on the recognizance. Bail are said to be entitled to a discharge, as a matter of pure right, any time before the return of non est to a capias ad satisfaciendum; and they are said to be entitled to the same, as a matter of mere favor, any time before the return of the second nihil, on the scire facias against them. From March 19,1838, then, until May 12, 1840, when the ca, sa. was issued under the amendatory act, the bail was entitled, without a surrender, to an exonereiur as a matter of strict right, and may therefore avail himself of the same matter as a defense to this suit, provided the principal could not, if a surrender had been made, have been imprisoned *at all. And that he could not, is also settled by the case of Beers v. Haughton. The principle of the determinations in Sturges v. Crowninshield, 4 Wheat. 200, and Mason v. Haile, 12 Wheat. 370, that the right to imprison constitutes no part of the contract, and that a discharge of the party from imprisonment does not impair the obligation of the contract, was again recognized and reinforced. The legislature, therefore, had power to pass the act abolishing imprisonment for debt, so as to make it operate upon pre-existing cases. And the only remaining question then is, whether the act of March 16, 1839 (and which took effect the 19th of March), is sufficient to make a difference in the case. And I confess I am unable to see how it should have this effect. The right to an ex-oneretur, as a matter of strict right, and not merely as a matter of favor, was perfect before the passage of that act, and was not dependent, in any way whatever, upon any of its provisions. The renewal of the right to imprison the principal, on the pursuit of a new procedure, is very different from the revival of the right of action against the bail. The supposition that the one depended on the other, could only have arisen from the idea that the right of the bail to a discharge was not matured prior to the passage of the act of 1839; whereas, as I have shown, it was perfect on March 19, 1838, two days after the recognizance was entered into, and could not, therefore, be defeated by any matter ex post facto. The defendant, therefore, is entitled to a judgment, i Judgment for the defendant.


author: *Lane, O. J.

text:
    *The State of Ohio v. The Farmers’ Bank of Canton.
    When the profits of a bank are applied in payment of stock, the profits, so applied, are subject to the tax imposed by the act of March 12, 1831, on dividends.
    This is an action of debt, upon an agreed state of facts, from the county of Stark.
    The Farmers’ Bank of Canton was incorporated by act of December 16, 1817. By the application, to them, of section 27 of the’ act of 1816 (2 Chase’s L. 913), dividends of so much of the profits of the institution as the directors might judge expedient were to be made semi-annually. By the act of 1831, “to tax bank, insurance, and bridge companies ” (Swan’s Stat. 916), the board of directors of each bank, etc., were to transmit to the auditor of state a statement of all dividends made by such bank within ten days after it may be made, so that a tax of five per centum on the dividend may be computed and collected. A penalty, not exceeding $1,000 is imposed, in case of refusal.
    It is agreed that the bank, between 1832 and 1837, besides its-ordinary dividends, upon which the state tax was duly paid, at' four different times, between the years 1832 and 1837, “ applied and appropriated sums which amount, in the aggregate, to $50,000' of the profits of the business, carried on by said bank, to the payment of the capital stock of the bank, belonging to the stockholders,” without complying with the above requisition of the law,. This action of debt is brought to recover from them the four penalties claimed to have been incurred by these neglects; and it presents the question, whether a tax attaches to such profits,, earned by the bank, as are applied in payment of its stock, belonging to the stockholders.
    A. W. Loomis, for the plaintiff.
    John Harris, for the defendant.
   *Lane, O. J.

The nature of the interests belonging to a corporation, and to the stockholders' of such corporation, have recently been investigated by this court. State of Ohio v. Franklin Bank of Columbus, 10 Ohio, 91. As explained by the-court, a corporation is a creature of the law, created to exercise certain franchises, and for this purpose is invested with specific powers, among which is that of holding property as a natural person, which is controlled by its proper officers, and may be sold for its debts, but is not the property of the individual corporators; that the separate shares of the stock, in a private corporation, are not the property of such corporation, but of the individual corporators; that bank stock, and the profits earned by its use, are the property of the corporation, but that(bank shares are the property of individuals.

Now, dividends in a bank, under the laws above cited, consist of that portion of its profits which the directors separate from the .general stock, and apply to the benefit of the stockholder. Whenever, by the act of the directors, the ownership of profits is so changed that i*t ceases to be the property of the corporation, and becomes the property of the stockholder, it is a dividend of profits, upon which the tax was intended to apply. The application of the profits, in this case, to the shares, which are the property of the stockholder, is plainly a dividend, within this definition, and the neglect of furnishing the statement is an act incurring the penalty.

That penalty is any sum not exceeding $1,000. As no attempts were made to conceal the acts, and as a communication has been had with some former officers of the state, in which doubts of the validity of this tax were seriously entertained, we think it is not just to impose a penalty beyond the tax and interest.

Judgment for plaintiff.


text:
    *The State of Ohio v. The Washington Social Library Company.
    The Washington Social Library Company have no authority, either by charter or prescription, to exercise the franchise of banking.
    Corporations can exercise only such powers as are expressly granted.
    This is an information, in the nature of a quo warranto, filed by the prosecuting attorney of Montgomery county, against the defendants, to show by what authority they exercise banking powers.
   Grimke, J.

The information alleges that the defendants, from September 20, 1839, have used, without any warrant, charter, or grant, the franchise of banking, by issuing notes, receiving deposits, making discounts, and by other moneyed transactions usually performed by incorporated banks, and which none but such are authorized to perform. The plea states that the defendants were incorporated by the legislature of Ohio, by an act passed February 19, 1810, entitled “an act to incorporate the Washington Social Library Company,” and, referring to the act at large» avers that thereby they have lawfully exercised and still use and exercise the banking franchise, and receive deposits, make loans, issue paper, etc.

To this plea there is a demurrer.

And the question presented is, whether the charter of the defendants gives them authority to exercise the franchise of banking.

Section 1 of the charter creates the corporation by the name of the Washington Social Library Company, and gives it a capacity of suing and being sued, of making contracts, a common seal, and the power to make by-laws. Section 2 gives the powers of acquiring, holding, and disposing by mortgage, or in such other manner as they shall deem most proper for the best interests of the corporation, any estate, real or personal.

*Section 3 provides for an annual election, in the township of Montgomery, of directors, who are to excute the by laws, etc.

Section 4 merely appoints seven persons directors, until the first annual meeting.

The mere recital of these provisions of the charter, one would suppose, was sufficient to satisfy any understanding, whether gifted with the highest powers, or possessing only the ordinary share of good sense, that the power of banking has never been conferred upon .this corporation. It is merely created a library company, and all the authority which is given to it, is incidental to that object. Length of time is not relied upon, as giving a prescriptive right to the use of the franchise, and the defendants stand arraigned as having been guilty of the most palpable and fragrant violation of the law.

Charles Anderson, for the state.

Odlin & Schenck. and H. Stanbery, for the defendant.

It has been argued that, before the restraining acts of February 8, 1815, and of January 27, 1816, banking was not a franchise; that it might have been exercised by any individuals, who were competent to contract, and that, therefore, a corporation might also lawfully exercise the same. Admitting this to be true, at the date of the charter, in 1810, though, I confess, I am not satisfied of its correctness, yet the defendants do not pretend that they commenced the exercise of banking powers before the passage of those laws. On the contrary, the information alleges the use of this power from September 20, 1839; and the defendants, in their plea, do not undertake to say that it begun at a period antecedent to those acts. When they commenced the use of this privilege, then, it was in plain violation of the law, and was a usurpation of a privilege, for the exercise of which they are unable to show any warrant whatever.

To presume powers to be vested in a corporation, which are not expressly granted, would be attended with great inconvenience; to presume a charter, would be attended with still greater — for, what sort of a charter is it? would be the'next inquiry. Bank charters contain an infinite variety of provisions. Some are exceedingly restricted, while others are ^almost unlimited, in the power which they confer; and the shades of difference between these two extremes are so numerous that it would be impossible to form any definite idea of what were the powers intended to be granted in any particular case. The consequence is, that a body of men, to whom banking powers, in the abstract, were conceded, would be placed in an infinitely better condition than any other corporation in the state. Their powers would, literally, be unbounded, in consequence of the very defect which was inherent in their creation. That they were without law, would be a passport to the exercise of all law. It would require a much stronger case than is here presented, to presume the existence of the privilege in question. The demurrer, therefore, is sustained, and the judgment of the court is that the defendants be ousted and altogether excluded from the franchise of banking, and that the prosecuting attorney recover his costs against the defendants.


author: *Wood, J.

text:
    James N. Davidson v. Abner Root.
    The lien of a judgment, or mortgage, is not lost by the organization of a new county which includes the incumbered land within its limits.
    The lien of a judgment recovered in Huron county, is not taken away by the act for the erection of Erie county, although, by the division, the land bound by the judgment fell within the limits of Erie county.
    This is a bill in chancery from the county of Erie.
    The case is fully stated in the opinion of the court. No arguments came to the hands of the reporter.
   *Wood, J.

.This is a bill in chancery, filed by the vendor, against the vendee, to compel the specific execution of a contract, by him, for the purchase of one undivided third part of two acres of land, in the township of Portland, in th^ county of Erie, with the improvements thereon. This contract was executed between the parties on June 2, 1838; and, by its terms, the consideration agreed to be paid was $2,500 ; $1,000 was paid in hand; $500 was agreed to be paid oh July 6, 1838; $500 on July 6,1839, and $250 on July 6, 1840; the deferred payments bearing interest. The two last installments, of $750, with the interest thereon, remain unpaid.

The respondent in his answer admits these facts, and avers his readiness to comply with the terms of the contract, provided ho can do it with safety to his own interest; but insists upon the inability of the complainant to make him a good title, on completing the payments; and the doubt arises under the following circumstances: At the December term of the court of common pleas of Huron county, 1837, six months before the date of the contract, Festus Clark recovered judgment against the complainant and others for over $2,000. At the date of this judgment, the land was embraced within the territorial limits of Huron county. Davidson, and others, then filed their bill in chancery, praying for relief against this judgment. Such proceedings were had*that this suit in chancery was appealed to the Supreme Court, and, at the August term, 1840, $1,156.77 of the judgment of Clark, against the complainant and others, was perpetually enjoined; and the injunction of the common pleas, as to the residue, dissolved, leaving, therefore, Clark’s judgment, to the amount of $944.26, in full force againt the complainant.

In March, 1838, the county of Erie was erected and organized, embracing a part of the territory which before belonged to Huron county, and in which the land in controversy is situated. The only reservation of rights, in suits pending, etc., *in this act organizing the county of Erie, is in reference to proceedings before justices of the peace; while the higher judicial tribunals seem to have been entirely overlooked, or their proceedings regarded as entirely unworthy of consideration by the legislature. No execution has ever issued on Clark’s judgment; and being a lien upon the lot in question, at its rendition, in December, 1837, the question arises whether it still continues a subsisting lien, and unless extinguished, prevents the complainant from conveying an unincumbered fee to the respondent.

Section 2 of the act entitled “an act regulating judgments and executions,” provides “ that the lands and tenements of the debtor shall be bound for the satisfaction of any judgment against such debtor, from the first day of the term at which judgment shall be rendered, in all cases where such land lies within the county where the judgment is entered; and all other lands, as well as-goods and chattels, of the debtor, shall be bound from the time they shall be seized in execution.” Judgment liens are of a purely legal character. They do not exist at common law. Their creation, extension, and continuance depend entirely upon statutory provision. Their operation, as a part of the remedy to enforce the-collection of a debt, is governed by the terms of the statute. That the lien may attach, it is certain that, by the statute, the land must be in the county where the judgment is rendered, at the time of its rendition ; or, if in another county, there must be an actual levy. And it is, therefore, supposed that when a new county is organized, with no saving clause in the act, and land subject to a judgment lien, in the old county, fall within the new organization, the lion ceases to exist. We do not think so. The lien being given by express provision, although it is admitted, as a part of the remedy, to be within the control of the legislature, must, nevertheless, remain until lost by the act of the judgment creditor, or taken away by subsequent legislation. There is nothing, express or implied, in the act of 1838, organizing Erie county, inconsistent with the existence or enforcement of this lien. It may be said that, after the division of the counties, the records of Erie furnish no notice of this incumbrance to the purchaser. This is true; nor would they furnish such notice had there been ever so extensive a saving clause in the act. There is no difference, in our opinion, in principle, between this judgment lien and a lien created by mortgage, recorded in Huron county before the division. The record of Erie would have given no notice of the fact at the date of this purchase by the respondent. The law requires all instruments by which lands are incumbered to be recorded in the county where the land lies; but it has never been supposed that liens, created by such instruments, became inoperative, because the land incumbered, by a subsequent division, fell into a different county than that in which such instruments were recorded. Nor has a new record, in such case, been considered necessary to protect the grantee against subsequent purchasers without notice. The analogy between the two cases is complete.

The case of the People v. Morrell, 21 Wend. 575, is relied upon by the complainant as an authority that Clark’s judgment lien was lost with the division of the county. If there is any analogy between the cases, it is very remote; so much so as not to be seen by us. In that case, the court held the division of a county ejected from office an associate judge of the court of common pleas, who fell within the new division; that his residence was changed by the operation of the law, and that the law required a continued residence in the old county as a qualification to hold and enjoy the office.

In the case at bar the law requires the land to lie in the county at the rendition of the judgment, that the lien may attach, but not that it shall continue in the same county that the lien may be preserved. 1

If, in this case, the amount due from the respondent to Davidson was sufficient to liquidate Clark’s judgment, there would be no difficulty in decreeing a specific execution of the contract, and protecting fully the respondent’s rights, by his seeing to the application of the money due the complainant to Clark’s judgment ; but such is not the fact. The difference is nearly $300; and until this'judgment lien is removed by the ^complainant, the respondent should not be required to further execute the contract on-his part, by paying the balance of the consideration.

Bill dismissed without prejudice.


author: Wood, J.

text:
    William Parker v. Thomas J. Riddle.
    The indorsement of a note, not negotiable, is not an original undertaking between the indorser and indorsee; but it is collateral, and payment must be demanded, and notice given to the indorser, as upon negotiable paper.
    The indorsement of such note, by a person not a party to it, is a guaranty. Upon such guaranty, demand of payment must be made when the note becomes due, and notice given to the indorser before suit.
    This is an action of assumpsit, from Hamilton county.
    The declaration contains three counts. In the first, it is averred that, on September 17, 1839, to wit, at, etc., one T. L. Hilton /made his certain promissory note, in writing, etc., and thereby, then and there, promised the said defendant, ninety days after date, to 'pay him the sum of $152 ; and the said defendant, then and there, indorsed the said note to the plaintiff; and the plaintiff avers, that afterward, when the said note became due and payable, according to the effect thereof, to wit, on December 10, 1839, the same note was duly presented to said Hilton for payment, and payment thereof demanded, but neither the said Hilton, nor any person or persons on his behalf, did, or would, pay said note, or any part thereof, etc.; of all which premises, the said defendant, on the same day and year, had notice, etc.
    The second count sets out the making and delivery of the said note to the defendant, as in the first, and then avers, *that> in consideration that the plaintiff, at the special instance and request of the defendant, would receive the said note in payment of so much money as therein specified, then due by the defendant to the plaintiff, the said defendant, by his certain memorandum, in writing, on the back of said note, agreed to guaranty the payment of the said note to the plaintiff, when the same should become due, according to the tenor and effect thereof; and the plaintiff avers that, on December 10, 1839, when the note became due and payable, the same was duly presented to said Hilton, and payment thereof demanded, but neither the said Hilton, nor any one on his behalf, did, or would, pay the same, etc.; of all which said several premises, the said defendant had due notice, whereby the defendant became liable to pay said note, and afterward, in consideration thereof, promised to pay it; etc., when thereunto afterward requested.
    The third count describes the said note as made by the defendant to the plaintiff, and that the defendant thereby promised the plaintiff to pay to him the said $152, ninety days after the date, and avers the non-payment, etc.
    The declaration contains also the common counts. To this ■declaration the defendant filed the plea of non assumpsit, and the noté is now offered as the only evidence of his claim to recover by the plaintiff; and the question raised is, whether the note .alone, under the averments contained in the declaration, is sufficient proof to entitle him to judgment.
    Charles Fox, for plaintiff:
    I contend, that whenever a man transfers a note, not negotiable, or if he transfers a note, negotiable, after the same has become due, he does, by the act of indorsing, promise to pay the note. The indorsement, in such case, is equal to the making of a new note, and may be declared upon as such. In 3 Mass. 274, the party was permitted by the court, to insert, over the signature, “for value received I undertake to pay the money within mentioned to the plaintiff.”
    *This last was a case in which John Ames made a note to Olin Ames, not negotiable, and the latter indorsed it, in blank, to the plaintiff, so that the same is identically the present case.
    In 8 Wend. 421, it is held, that “ the indorsement and transfer of such an instrument is good, so as to make the indorsers liable to the indorsee, although it will/not give the indorsee a right of action, in his own name, against the maker. Again, the indorsement, in such a case, is equivalent to the making of a new note. It is a guaranty that the note will be paid; it is a direct .and positive undertaking, on the part of the indorser, to pay the note to the indorsee, and not a conditional one to pay, if the maker does not, upon demand, after due notice. The indorser, in such a case, I apprehend, is not entitled to the usual privilege of an indorsee of negotiable paper. He stands in the relation of principal, and not surety, to his indorsee, and has no right to insist upon a previous demand of the maker and notice of non-payment. An absolute guaranty may be written over his indorsement, upon which a recovery may be had against him.

      The same doctrine may be found in Bayley on Bills, 65, and in Byles on Bills, 84.
    Such I take to be the opinion of this court in 9 Ohio, 139. The principle of all these decisions I take to be this: The man, by indorsing the note, must be understood to moan something by so doing. As the note is not negotiable, his indorsement is not necessary to transfer the property in the note. To give effect to the indorsement, it must be construed into some sort of a contract. What contract can it be unless that of a promise to pay the note or a guaranty that the note shall bo paid ? Any other construction would render such an indorsement perfectly nugatory. If this indorsement is a guaranty of its payment, as held in 8 Wend. 421, of course no notice was necessary.
    Riddle & Roll, for defendants :
    We contend that the authorities cited by plaintiffs counsel are not applicable to the *case now before the court, as will appear by reference to the cases themselves.
    The note itself shows the character of the transaction. It was, no doubt, passed in the course of trade by Riddle to Parker, who unquestionably was to use due diligence to collect the same of T. L. Hilton, the maker. This is evident from the fact of the delivery of the note to Parker ; for it can not be presumed that Riddle would pass the note to Parker, merely1' to hold in his hands, without any exertion to make the money off the maker of the note. If this was not the intention of Riddle, it seems difficult to determine what induced the transfer to Parker, except- it was done in absolute payment of some debt that might have been due from Riddle to Parker, and taken by Parker as absolute payment. Had it been otherwise, it is quite reasonable to believe that Riddle would have executed his own individual paper to Parker without reference to the note in question. There is no evidence, then, going to controvert the above conclusions. It does not appear that Parker used the slightest diligence to collect the same from the maker; nor is there any evidence that the defendant was notified of the nonpayment of said note after the same became due, which, by the laws of the land, should have been done in order to fix the liability of the defendant. Nor does it appear, in evidence, that the plaintiff ever considered the defendant liable on said note until suit was brought in this ease. We contend that the defendant', in this case, can not be treated by the plaintiff as an original promisor on said note ; for there is no testimony showing that the defendant put his name on said note when it was made, which is necessary to fix the defendant, either as a joint maker or original promisor, or as a surety for the payment of the same. In this-opinion we are sustained by the decision of the court in 9 Ohio, 139, cited by plaintiff’s counsel. It is clear, then, in order to fix the liability of the defendant on this note, that the plaintiff should have notified him of the non-payment by the maker, as we regard that to be the true light in which this transaction is to be viewed, and contend that the settled principles *of law governing [106 negotiable paper and liability of indorsers, must likewise govern this ease.
    We rely on the case of Green v. Dodge and Cogswell, 2 Ohio, 439, in connection with the uniform decisions on the same question, to sustain the defendant in this case.
   Wood, J.

The first count is on a note, not negotiable, being-made payable to Hilton, without the words order or bearer, indorsed before due, and presented for payment on the 10th of December, six days before due, and of which payment was refused, and notice thereof on the same day given to the defendant. The introduction of the note, the only evidence offered, proves only its execution and indorsement. This is clearly insufficient under theaverments in this count. It proves neither the presentment of the note, and demand of payment of the maker when the note became due, nor in a reasonable time thereafter, in the language of the statute, nor notice to the indorser, which is required by all authority, as the indorser’s undertaking is collateral, to pay only in default of the maker, and due notice thereof. But, if the introduction of the note proved every averment made in this count, the plaintiff would be in no better condition ; for the presentment for payment to the maker, refusal, and notice thereof, are laid six days before the note became due, and when there was neither-legal nor moral obligation to pay.

The second count is against the defendant as a guarantor; sets out the consideration of the guaranty, and avers that the defendant thereby agreed to guaranty the payment thereof to the plaintiff, when the note should become due and payable, etc.; and again avers the presentment to the maker for payment, on-the same December 10,1839, and that the defendant afterward had due notice. Here are the same objections to the proof, and if proved, the averments show no right of recovery.

The third count describes the note as made by the defendant to the plaintiff; lays the promise as an original undertaking *to pay the plaintiff $252, ninety days after date; and it is to this count our attention has been specially directed.

The authorities cited, show that it has been held, in some of the states, that where a note, not negotiable, or a note negotiable, by its terms, after due, is transferred, the act of indorsing is a promise to pay the note; that it is, in effect, the creation of a new note between the indorser and the indorsee, and may be declared on .as such. Though the transfer of such note does not give a right of action against the maker, in the name of the indorsee, it is good against the indorser, and is a guaranty that the note will be paid. It is a positive undertaking, and not conditional, to pay, if the maker does not, on demand, 'and notice to the indorser. 8 Wend. 421. There are also other authorities, to the same import, to be found in the books, where such contract has been held to be an original, and not a collateral undertaking.

In Vermont, a different rule prevails. It is there held that the indorsee of a promissory note, not negotiable, follows the law merchant, in making demand of payment, and giving notice of non-payment to the indorser. 1 Vt. 136.

When the decisions of the highest judicial tribunals of our sister states are found to conflict with each other, this court must, of necessity, be left to select from the one or the other, or to prescribe for itself the rule, in our opinion, most conformable to reason and justice, most applicable to our local enactments, in .analogy with our own and the general opinion of the profession, .and, in eases of this kind, with the sense of the mercantile or business community.

In this, however, it would, perhaps, be as difficult to unite our opinions as to reconcile decisions in direct conflict. One member of the court holds the promise as original, as set forth in this count. The majority, however, hold it to be collateral, and subject, in .some degree, to the usages of mercantile law, as applied to the indorsee of negotiable paper; and this opinion is decisive against the plaintiff on this count. It is holden by two of the judges that .a demand upon the maker, when such note becomes due, and rea sonable notice to the indorser, *or notice before suit b rought,' would be necessary to charge the defendant as a guarantor, as. declared against in the second count.

All unite in the opinion, that the name of the payee, in blank, appearing upon the note, is not a guaranty, but an indorsement, while the name of a person, out of the note, appearing upon it,, would be a guaranty. In such case, a majority of the court are of opinion to charge the guarantor. Demand of payment must be-made when the note becomes due, and notice, before suit brought, given to the guarantor; while one member holds that the guarantor is not liable, unless the maker be prosecuted to insolvency, and notice thereof given to the guarantor; and we are unanimous in opinion that such prosecution, though a majority hold it unnecessary, and notice thereof, will enable the plaintiff to sustain the action.

The two first counts were disposed of, in the outset, on different grounds, however. The third is disposed of by the opinion of a majority of the court, that the promise therein laid is not, as-stated, an original undertaking, and is therefore not sustained by the introduction of the note; and there is no evidence to apply to the common counts. Judgment for the defendant.