author: Grimke, J.

text:
    *The State of Ohio, for the use of the Treasurer of State, v. George Bowman et al.
    Where, in a county treasurer’s bond, the name of the treasurer is recited in the body of it, but he neither signs nor seals it, his sureties who do execute it are liable.
    An appeal bond, it seems, is good against sureties, though not executed by the appellant.
    This is an action of debt from the county of Perry.
    It is brought on a county treasurer’s bond bearing date December 12, 1833. The bond is conditioned, “ if the above-bound Henry Filler, who has been elected treasurer of Perry county, shall pay over all money that shall come into his hands by virtue of his office, and do and perform all other things necessary to be done in his office as* treasurer, agreeably to law, for the term of two years, and until his successor shall bo elected and qualified, then the above bond to be void,” etc.
    The name of Henry Filler appears in the body of the bond as one of the obligors, but it is not signed or sealed by him. It is, however, signed and sealed by all other parties whose names appear in the body as obligors.
    On the back of the bond is indorsed a certificate signed by the clerk of the court of common pleas of Perry county, that Henry Filler was duly elected treasurer for the county of Perry, at the October election, 1833.
    There is also indorsed, on the back of the bond, an affidavit by Henry Filler before a justice of the peace, that he will faithfully discharge all the duties of the office of treasurer.
    It is also admitted that Henry Filler entered upon the duties of this office, and continued to be treasurer of Perry county to August 1, 1835. The breach of the condition assigned in the declaration is the failure of the treasurer to pay over to the state treasurer certain money received by him during his continuance in office.
    *H. H. Hunter, for the plaintiff,
    insisted that the bond is a valid instrument as well under the statute as at common law. He admitted that in two cases similar bonds had been held void because they had Dot the signature and seal of the principal, Bean v. Parker, 17 Mass. 604; Wood v. Washburn, 2 Pick. 24; but he maintained that these cases were founded on no eorroct principles. He cited Barrett v. Reed, 2 Ohio, 409; Miller v. Montgomery County, 1 Ohio, 271; United States v. Linn, 15 Pet. 290; United States v. Tingey, 5 Pet. 115; United States v. Bradley, 10 Pet. 359.
    Slade, on tho same side,
    argued that the bond was good under the statute and cited these additional authorities: Gardner v. Woodyear, 1 Ohio, 79; Cutter v. Whittemore, 10 Mass. 442; Moss v. Riddle, 5 Cranch, 351; Adams v. Bean, 12 Mass. 137 ; Thorn v. Savage, 1 Blackf. 51; Hardin, 149; 9 Law Lib. 4, 51; Collins v. Prosser, 2 D. & R. 112 ; Underhill v. Harwood, 10 Ves. 225; Keene v. Dearborn, 8 East, 298; Barnes v. Bulwer, Cart. 121; Tillinghast Adam’s Eject. 349; Dixon v. Dixon, 2 B. & P. 443.
    Stanbery and Van Trump, for the defendant,
    maintained that in no case can the sureties in an official bond be held liable unless the principal himself be responsible on the same instrument; that without a principal there can be no accessory. Theobold on Principal and Surety, 2; Iveson v. Conington, 1 Barn. & Cres. 160; l Pothier on Ob. 441, 470; Com. Dig., tit. Estoppel, A. 3; 3 Chit. Pl. 909; 4 Bing. 470; Drake v. Mitchell, 3 East, 253; Scholey v. Mearns, 7 East, 148; Preston v Christmas, 2 Wils. 86. The cases cited on the other side in regard to bail are founded on the statutes of 23 Hen. VI and 12 Geo. I and have no application here. There is no case in the English books, even upon bail bonds, in which it has been held that the principal need not join, unless it was a case of of bail above on recognizance. In Beawffage’s case) 10 Co. 100, it docs not appear that the principal did not execute the bond; and Com. Dig., tit Fait. A. 3, is declared to be not cor-447] rect, *by the king’s bench, in 4 Barn. & Aid. 440. A bond signed by one surety, which contains in the body of it the names of two, is not recoverable against the one who signed it, unless it be proved that he who signed it dispensed with the execution of it by the other. Sharp v. United States, 4 Watts, 21; S. P., Wells v. Dill, 13 Martin, 592; Fletcher v. Austin, 11 Vt., 449 ; Woody. Washburne, 2 Pick. 24; Bean v. Parker, 17 Mass. 591. The liabilities of a surety are not to be extended by implication. Walsh v. Bailie, 10 Johns. 180 ; Gahn v. Niemcewicz, 11 Wend. 312; 2 Saund. 414; 4 Taunt. 583; Hurlstone on Bonds, 108; United States v. Boyd, 15 Pet. 187; Miller v. Stewart, 9 Wheat. 703; United States v. Tillotson, Paine’s C. C. 305; Bank of Washington v. Barrington, 2 Penn. 27.
   Grimke, J.

The question presented for consideration is, are the sureties liable when the bond has not been signed or sealed by the principal obligor? The principal is dead, so that no objection is made to the form of the action; although the bond is joint and several, the defense is, that-the instrument is not a valid one.

In 5 Com. Dig. 148, tit. Officer, it is laid down, “ that no bond or writing may be exacted from the subject to the king or other person, to do that which by law'he was bound to do to the king, and such bond will be void, and the defendant may plead duress.’ And this rigorous principle has been the foundation of all the reasoning which has been employed to show that bonds given by public officers, which are not in conformity.with the provisions of tbo law, are void. At that early day the distinction does not seem to have been well established between statutory bonds and bonds which the party voluntarily consented to execute. This has been left to the more liberal spirit of modern times, which, acting upon society in all its various ramifications, has introduced itself into the structure of all our laws, and into the mode in which justice is administered. The distinction can not be called a merely curious and artificial one, since it has the same root and foundation *wbich the laws themselves have. It may [M'8 more truly bo called an enlightened distinction, since at the same time that it stands upon certain fixed principles, it endeavors to do violence to the rights of no one, by ascertaining in the most sensible manner the real intention of the parties to a contract.

It may be laid down as a general fact, that in the earlier stages of jurisprudence, its principles and the forms in which they are announced, are the most narrow and restricted possible, and that in its further progress, and when it has arrived at maturity, the rules which it adopts are combined with a greater degree of good sense. This results from the nature of the human mind, which, in the absence of a long and extensive experience, is obliged to take shelter under a sot of maxims which' are the most general and technical, and the least flexible in their application. Thus, notwithstanding the rigorous rule which I have referred to in Comyn, it is impossible not to know that a vast body of authorities have grown up in modern times, and particularly in our own country, which have regarded this question in a totally different light from that in which he viewed it, and that the courts, without disregarding, but rather for the sake of preserving the fundamental principles of justice, have not in one or two instances, but in a great multitude of cases, felt themselves bound to give a most liberal construction to the bonds of public officers, even where they have been taken in pursuance of a public statute, but are not in conformity with its provisions. Some of the earlier American cases seem to vibrate between the strict rule which was formerly adopted, and the more liberal interpretation which is now applied to these contracts. For in the late adjudications, and especially in the Supreme Court of the United States, where this subject has been repeatedly and deeply considered, the distinction between a strictly statutory bond and a bond good at common law, has been firmly established. The cases of United States v. Brown, 5 Pet. 373; United States v. Tingey, 5 Pet. 115; United States v. Bradley, 10 Pet. 359; and United States v. Linn, 15 Pet. 290, demonstrate this. I confess I am not one of those who believe that the 449] *oldest cases are for that very reason entitled to higher consideration than later ones. The modern cases are necessarily the result of a greater amo unt of human experience, and would therefore seem to challenge a greater degree of respect.

In the case of the Postmaster General v. Early, 12 Wheat. 136, the suit was upon a bond given to the postmaster-general by the defendant, his deputy. The defendants pleaded and proved that their contract was not one authorized by any law of the United States. The bond, however, was sustained upon the soundest principles of reasoning. And yet the doctrine of Comyn is, that it is absolutely unlawful to take such a bond. The passage which I have cited from that author is also supported by Lord Coke in his 3 Inst. 149, with the exception of the last words, “ and the defendant may plead duress.” The true inquiry, undoubtedly, in all these cases is, has duress been practiced in obtaining the'bond? If it has, the bond should be annulled; but if it has not, if the contract has been voluntarily entered into, every principle of reason and of justice declares that it should be sustained. This is the doctrine which the courts may be considered as having fairly settled down upon as the most likely to secure the rights of the parties and to prevent fraud. Comyn says that the def'end-ant may plead duress to a bond which has not been authorized by the legislature. But the law considers the question of duress as not necessarily involved in the taking of the bond, but as entirely independent of it, and refuses to annul such a bond, where it has been freely and voluntarily entered into. There are some cases where a statute, after prescribing the form in which a bond shall be taken, proceeds to declare that if not taken in that manner it shall be void. In the case of Alleghany County v. Van Campen, 3 Wend. 48, the court, in sustaining a suit upon a county treasurer’s bond, which was not in the form prescribed, remark that it is not like the case of sheriffs’ bonds, which the act had declared to be void unless taken in the mode directed. The statute under which the bond in this instance was taken, provides that the county treasurer, previous to his entering upon the office, shall give *bond with four or more freehold sureties, etc.; but in [450 the statute which regulates appeals to the Supreme Court, the language used with regard to the appeal bond is substantially the same, and yet it has been repeatedly held that such bonds are good, although they are only executed by the securities ; and the authorities to the same point are very numerous in England under their statutes prescribing bonds upon taking writs of error. 8 East, 298; 2 Bos. & Pul. 443. In the last case the court say they may, without doing violence to the statute, construe the words, with sureties, to mean by sureties. But the statute under which this bond was taken provides that in case of default, suit should be instituted against the treasurer and his sureties, from which it is ai’gued that the statute contemplates an execution by the principal as well as his sureties. I admit that it is the duty of the treasurer to execute the bond, and that the statute even supposes that he will do so. But I deny the proposition, that if it is not done the bond will be therefore void. The bond may be procured ; may, in the words of the act, be given by the principal, although he did not sign or seal it, nor does the statute declare that the suit to be instituted against him shall be on the bond. It might be argued with equal plausibility that these words, “on the bond,” wete carefully omitted, in order to guard against the conclusion that because an execution by the principal was proper, therefore it was necessary. The responsibility of the treasurer himself is equally fixed, in the event of a defalcation, whether he executed the instrument or not. And this is an answer to the reasoning which is employed to show that the bond, in its present state, is an incomplete one. The completeness of the bond, stricti juris, depends simply upon the fact whether it was given by him. And that it was thus given, the indorsement on the back of the bond, on the very day on which the term of office commenced, on the very day when the bond should be given, of the oath of office by the principal, affords, in the absence of any countervailing testimony, the strongest possible presumption.

Great reliance is placed upon the fact, that if the instrument 451] *is not executed by the principal it will affect the remedy over against him by the securities. There would be great force in this argument if the remedy were destroyed; but it is not; the force and the extent of this liability to them are unimpaired. Whether they could use the bond, per se, as evidence of his liability, presents a question merely of convenience in the use of the right, but does not affect the right itself any more than would the loss or destruction of the bond. And a further answer to this argument is, that the bond being found in the hands of the legal depositary, the auditor, the presumption in the absence of any testimony to contx’adict it, is very strong that the sureties dispensed with, or which, as to its legal effect, is the same thing, that they were careless about the fact whether it was signed by the principal or not.

There is one case which has been recently decided by the Supremo Ooux't of the United States, which I can not refrain from noticing. It is the United States v. Linxx and others, 15 Pet. 290. The instrument on which the suit was brought, was a writing not sealed by either the principal or his sureties, and it was held that, although it was not a bond, it was a good contract between the parties. It is contended by the counsel for the defendant, that in that case the act under which the suit was brought, does not require bond, but merely that security shall be given. But an examination shows that he is mistaken. The act under which the instrument was taken (3 Story’s Stat. 1780) directs that the receiver shall give secuxdty in the same manner as was provided by the general act in force; and this act (1 Story’s Stat. 786) expressly directed that receivers should give bond with approved security. The term security applies to the sureties, and not to the nature of the instrument, which is absolutely required to be under seal; and yet the court held that this writing having been voluntarily entered into, upon good consideration, was a binding contract upon all the parties. It is unnecessary to do more than to refer briefly to the case. It closes a series of adjudications upon the subject of official bonds, which have been more distinguished *for care and accurate research, than all others put [452 together.

I shall go into no further examination of the cases. There are a number of others which might be referred to in support of the conclusion to which we have arrived, that this is not an imperfect bond, that it is a good statutory bond, and that if it were not, it would be a good bond at common law.


source: Caselaw Access Project

license: Public Domain

text:
    *Peter Larrowe and Mart, his wife, v. William Beam.
    The plea of a bona fide purchaser is no defense against a legal title.
    Where a widow is beyond seas, and so within the saving clause of the statute of limitations, equity will not allow the staleness of her claim to be set ■up to bar her dower.

      As against the heir the widow is to be endowed according to the-value at the time of the assignment.
    This is a petition for dower from the county of Knox.
    George Resley died intestate, in Washington county and State of Maryland, in the year 1809, leaving the said Mary Larrowe, his widow, who resided till the year.1835, out of the State of Ohio. At the time of his death, George Resley was seized of the premises in the petition mentioned, and now owned and occupied by William Beam, as well as other real estate, in the county of Knox. In 1812, Jacob Resley, one of the heirs, came to Ohio from Maryland, in behalf of himself and the other heirs, to look after and take charge of the land. In 1815, George Resley, the son and heir of George Resley deceased, entered upon, and commenced improving the tract now occupied by defendant, the same having been assigned to him by an amicable partition previously made between the heirs of George Resley deceased. In 1817, Jacob Resley, also a son and heir, filed his petition for partition in Knox common pleas, making George Resley, together with the other children and heirs at law, of George Resley deceased, among whom one is mentioned as a sister of the half blood, the defendants to said petition, all of whom but George and Jacob, were then residents of the State of Maryland. In July 1818; this lot, being the tract upon which George had settled and commenced improving, was set off to him, by said proceedings in partition, and confirmed by the court, at the July term of the same year, In none of the proceedings for partition between the heirs, is the name of the petitioner mentioned, or any allusion whatever made of a widow of George Resley.
    George Resley, the son and heir, after occupying the premises till the year 1830, sold and conveyed tile same to John *Bea-m, [499 who, in 1835, transferred his title to Adam Kesler, of whom the defendant purchased in 1836, and received a conveyance, without any notice of petitioner’s claim of dower to said premises.
    In all the deeds of conveyance, there is a reference made to the proceedings in partition of the court of common pleas of Knox county; being the same partition before mentioned, whereby this lot was set off to George Resley. The said George and his grantees have cleared on the lot in controversy about fifty acres, at an average expense of $12 per acre; besides erecting buildings of the value of $300 or $400, making all the improvements worth $900.
    The petition in this case was filed in October, 1840.
    The defendant, in his answer, relies, first, on the statute of limitations; second, on lapse of time; and, third; he insists he is an innocent purchaser without notice.'
    Hurd, for the plaintiff:
    The act of limitations is not a bar. The widow was beyond seas until November, 1835, and was, therefore, within the saving ' clause of the statute. The petition for dower is virtually an- action for the recovery of possession, and may therefore be sued anytime within twenty years. Tuttle v. Wilson, 10 Ohio, 24; Kane v. Bloodgood, 7 Johns. Ch. 120; Hovenden v. Annesly, 2 Sch. & Lef. 607 ; Com. Dig. Tit. Temps. 536 ; Co. Lit. 346; Bac. Ab. Dower, 375, 401; Booth on Real Actions, 83.
    The exceptions in the statute are as obligatory upon the chancellor as upon a court of law. Sug. Vend. 396; Belch v. Harvey, 3 P. Wms. 288; Bonny v. Ritgard, 17 Ves. 99; Hodle v. Haley, 1 Ves, & B. 536 ; Rusk v. Postlewaite, Coop. Eq. 161, 189 ; Aggar v. Pickerell, 3 Atk. 225; Smith v. Clay, 3 Bro. Ch. C. 639; 2 Vern. 377; Prec. in Chan. 116; Lytton v. Lytton, 1 Bro. Ch. C. 458; Blake v. Poster, 2 Ball & Beatty, 576 ; Demarest v. Wyncoop, 3 Johns. Ch. 129; Elmendorf v. Taylor, 10 Wheat. 152; Miller v. McIntyre, 6 Pet. 67; Mitchell v. Owings, 3 A. K. Marsh. 316; 500] Fenwick v. Macey, *1 Dana, 278; Floyd v. Johnson, 2 Litt. 112; Falls v. Toronce, 4 Hawk. 412; Lewis v. Legate, 3 Hen. & Mun. 104; Wilson v. Kilcannon, 4 Hayw. 186; Wisner v. Barrett, 4 Wash. Ch. C. 631; 2 Story’s Eq. 736, 732.
    The defendant can in no sense be regarded as an innocent purchaser without notice. The right of dower is a strictly legal right, and the true rule is, that the doctrine of an innocent purchaser without notice, is of no avail against the legal title. Collins v. Archer, 1 Russ. & Myln. 284, 3 Bro. Ch. C. 264; Beam’s Eq. 234, 245; Roper on Husband and Wife, 446; 2 Freem. 24; Amer. ed.; Harrison v. Pierce, 1 Wash. 217; Taylor v. Stone, 2 Mun. 314: Hughes, v. Graves, 1 Litt. 319. In the case of a prior legal title, the rule is caveat emptor. Hurst v. McNeill, 1 Wash. Ch. C. 70 ; Snelgrove v. Snelgrove, 4 Des. 289.
    The defendant was bound to take notice of the plaintiff’s right. Whatever is sufficient to put a person on inquiry is considered in equity as conveying notice. The husband’s title was on record, and a purchaser from the heir takes at his peril as against the widow. Jackson v. Rowe, 2 Sim. & Stu. 473; Nantz v. McPherson, 7 Mun. 599 ; Peters v. Goodrich, 3 Conn. 146 ; Sigurney v. Munn, 7 Conn. 324; Booth v. Barnum, 9 Conn. 146; Green v. Slaytor, 4 Johns. Ch. 238 ; Stenny v. Arder, 1 Johns. Ch. 267; Smith v. Lowe, 1 Atk, 490 ; Pitney v. Leonard, 1 Paige, 461; Hawley v. Cramer, 4 Cowen, 717 ; Cunen v. Hart, Hardin, 37 ; Wadsworth v. Wendell, 5 Johns. Ch. 224; Brush v. Ware, 15 Pet. 93; Jackson v. Caldwell, 1 Cowen, 622 ; Button v. Bigelow, Pet. Ch. C. 452.
    The rule for the assignment of dower in cases like this seems to be well settled. That if the husband dies seized, the heirs may assign when they please; but if they delay it and improve the land and render it more valuable by cultivation or buildings, the widow will be entitled to her dower according to the value of the land, exclusive of the emblements, at the time of the assignment, and the heir is to be presumed to have made the improvements with a knowledge of his right and obligation. Co. Lit. 32, a; Harg. n. 192; 4 Kent Com. 62; 1 *Hill. Ab. 71; Hale v. James, 6 [501 Johns. Ch. 260; Dunseth v. Bank of United States, 6 Ohio, 67: Allen v. McCoy, 8 Ohio, 418.
    Sayre and Delano, for the defendant:
    As a general rule the statute of limitations is confined to eourts of law. But the chancellor will sometimes act upon it by analogy. Elmendorf v. Taylor, 10 Wheat, 168; 1 Story’s Eq. 73. Still, a court of equity always refuses its aid to stale demand's, where the party has slept on his rights, or acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Smith v. Clay, 3 Bro. C. C. 640; Jones v. Tuberville, 2 Ves. 11; Cholmondeley v. Clinton, 2 Jac. & Walk. 1; Campbell v. Graham, 4 Eng. Ch. Rep. Conds. 521; Kane v. Bloodgood, 7 Johns. Ch. 193; Piatt v. Vattier, 9 Pet. 405; Gilmore v. the Bank of Cincinnati, 8 Ohio, 62; Tuttle v. Wilson, 10 Ohio, 24; Pickering v. Stamford, 2 Ves. 583; Hovenden v. Annesly, 2 Sch. & Lef. 637; 2 Story’s Eq. 736 ; Pendleton v. Galloway, 9 Ohio. 178.
    The defendant is an innocent purchaser without notice. Such persons are favorites of a court of equity. 1 Story, 415.
    There is a conflict of opinion in the English courts how far an innocent purchaser without notice may protect him.soll a uinstthe legal title.

      • But the doctrine appears to have been more thoroughly investigated by Lord Boslyn, in the case of Jerrard v. Saunders, 2 Yes. 454, than in any former case. He maintains, in the most unqualified manner, that it is a good defense, and remarks, ‘‘I have looked into Bogers v. Searl, Freem. 84. It is impossible that it could be the opinion of Lord Nottingham that if the plaintiff has a legal title, the defendant can not protect himself as a purchaser for valuable consideration, but he may if the plaintiff has an equitable title. It is directly contrary to what he laid down soon after he got the great seal. The very reverse was often stated by him. It was laid down by him, that, against a purchaser for valuable consideration, this court had no jurisdiction.” He then mentions 502] ^another case that occurred to his recollection, decided by Lord Nottingham, that of Bassett v. Nosworthy, Finch, 102, where he holds to the same principle contained in the case of Burlac v. Cook. Lord Boslyn then cites the language used in this case by Lord Nottingham, in which he says, “Equity will not disown a purchaser, but assist him; and precedents of this nature are very ancient and numerous, viz. where the court hath refused to give any assistance against a purchaser, either to an heir, or to a widow, or to the fatherless, or to creditors, or even to one purchaser against another.”
    It has been repeatedly decided in Ohio and Pennsylvania that the widow takes one-third in value of the property as it is at the time of the assignment, excluding improvements made by the owner. Dunseth v. Bank of the United States, 6 Ohio, 77; 5 Serg. & Rawle, 289, Hill. Ab. 18, 72.
   Grimke, J.

It appears that a period of more than thirty years has elapsed from the death of George Besley, sen., the time when the right to demand dower first accrued, and the commencement of this suit. But as the petitioner resided out of the state until the year 1835, it is attempted to avoid the effect of the exception in the statute of limitations, by a reliance on the laches and gross negligence indicated by not having instituted these proceedings at an earlier period; and undoubtedly the mere lapse of time, which has been truly said to obscure all human testimony, may sometimes be a bar to the assertion of a stale demand. In such cases courts of equity act sometimes by analogy to the statute of limitations, and sometimes unon their own inherent doctrine of discouraging for the peace of society, antiquated demands, by refusing to interfere where there has been extreme and unreasonable backwardness in the prosecution of the claim. Mit. Eq. 269, 274. But I do not know that there is any case in which the defense has been distinctly placed upon this ground, where there was a statute of limitations in force applicable to the case. If the party be guilty of such laches in prosecuting his title as would bar him, if his title icerep solely at law, he shall be barred in *equity. Smith v. [503 Clay, 3 Br. Ch. C. 640. But further than this the courts have not ventured to go. If there is a statute of limitations in force, a court of equity acts not merely in analogy to it, but in strict obedience to its provisions. In Elmendorf v. Taylor, 10 Wheat. 152, it .is truly said that “ although the statutes of limitation do not properly extend to suits in chancery,” because they only enumerate legal remedies, “yet the courts universally acknowledged their obligation.” And this should be more particularly the case in the present instance; for at the time the right of dower accrued, the mode of proceeding was by the writ of dower at law, and it was not until the year 1824, that the petition in chancery was substituted in its place; and admitting that before that period equity had concurrent jurisdiction as in England, for the purpose of removing obstructions to the title, the rule would still be of no less universal application. The court act in obedience to the statute, where, if the claim were asserted at law, the statute would afford the rule. Thus the period of limitation which takes away a right of entry or an action of ejectment, has been held to bar relief in equity where the suit has been instituted in that court. 10. Wheat. 152. And it is only where the court is unable to act even in analogy to the statute of limitations, that it proceeds merely and exclusively upon the staleness of the demand. This was the case in Prevost v. Gfraty, where a trust was involved.

The case of Piatt v. Vattier, 9 Pet. 404, has been relied upon as' a very decisive authority to show that lapse of time is a sufficient answer to the assertion of a stale demand, even where there is a statute of limitations in existence, which contains a saving in favor of persons who are out of the state. If this is so, it is the only case where a doctrine which has been sometimes obscurely suggested, has been distinctly proclaimed and enforced. But an examination of that case will show that the inference attempted to be drawn from it is not correct. The answers did not rely upon the statute of limitations, nor did the complainant in his bill allege that ho was within any exception. Neither of these ques-504] tions were in issue in the cause. *It was as if there were no statute applicable to the rights of the parties, and the case was, therefore, obliged to be decided upon the mere lapse of time, and without any regard to the excuse which the complainant may have had for not commencing his suit at an earlier period. The truth, I suppose, is, that the complainant did not obtain leave to amend his bill because he could not safely aver a continued residence out of the state. And then the case was decided in strict conformity with the rules which prevail both at law and in chancery. The circumstances were entirely different from what they are here. The petition and the agreed case have put the disability to sue of the plaintiff completely at issue, and,- as I before remarked, I know of no case where it. has been explicitly and unreservedly decided that the court is bound to look to the period of limitation in the statute, and yet not bound to regard the exceptions which are contained in the saving clause. If such were the rule, it would entirely reverse the principle upon which a court of equity habitually proceeds, which is, to look particularly at the equitable circumstances which make in favor of one or the other party. Indeed, the contrary was distinctly declared in the similar case of Belch v. Harvey; 3 P. Wms. 287, n.; Smith v. Clay, 3 Bro. 639; Lytton v. Lytton, 4 Bro. Ch. C. 458.

The claim of the petitioner is next resisted on the ground that the defendant is a bona fide purchaser without notice. It would be a sufficient answer to this, that the defendant does not, either by plea or answer, avail himself of this defense. But as the case has been argued upon this ground by the counsel on both sides, and as it is one of very great importance, it shall be considered. The petitioner has a legal title, and it is difficult to see how the allegation of a bona fide purchase, without notice, can be an adequate defense to.such a title; that it is a defense to an equitable title merely, is well' settled; but that it shall be any answer to a plaintiff who combines both the legal and equitable title in her own right, would seem to be incomprehensible if there were nota very great weight of authority on that side of the question. The application of the rule is not peculiar to cases of dower, but has been 505] extended *to other cases also. In Burlac v. Cook, 2 Freem. 84, the plea was held to be good against a legal estate. So in Parker v. Blythmore, 2 Eq. Cas. Abr. 79, the master of the rolls held the plea to be good. On the other hand, in Williams v. Lambe, 3 Bro. Ch. C. 204, which was a bill filed to obtain dower, the chancellor overruled the plea. He said that the only question was, whether a plea of purchase, without notice, would lie against a bill to set out dower; that he thought where the party is pursuing a legal title, as dower is, the plea did not apply, it being only a bar to an equitable claim. But in the case of Jerrard v. Saunders, 2 Ves. 454, the chancellor expressed great surprise at the decision in Rogers v. Seale, 2 Freem. 84 (where Burlac v. Cook, was directly overruled), and decreed that the plea was good against a legal as well as against an equitable title. No notice, however, was taken of the case of Williams v. Lambe. There is the greatest contradiction imaginable between these cases; and two very modern determinations have left the law in the same state of uncertainty. In Collins v. Archer, 1 Russ & M. 284, the master of the rolls says, “ Following the case of Williams v. Lambe, and the general principles of a court of equity, I am of opinion that the defense is of no avail against a legal estate.” On the other hand, in Payne v. Compton, 2 You. & Coll. 457, a directly opposite determination was made, and the plea was held to be good. The only American case in which the question has been made, is that of Snelgrove v. Snelgrove, 4 Des. 289, and it is, perhaps, a more instructive one than any of the English cases. There the plea was held to be of no avail. The chancellor says, “ When the complainant comes with a legal title, I do not see how he can be refused the aid of the court.”

Where the heir sells land to which a right of dower has attached, and which is admitted to be a legal right, it presents a case where A. undertakes to convey not his own land, but the land of B. Under such circumstances, a plea of bona fide purchaser is entirely beside.the case. That defense properly applies where A. undertakes to sell his own land to two or more persons, and where he who has the legal title and the *highest [508 equity is necessarily protected. If the rule promulgated in Burlac v. Cook, and some of the other cases, were to have a general application, it would contribute to shake the titles to real estate more than any other which has been established. In the absence of a registry law, individuals might deal as freely with the property of others as they could with their own. Take, for instance, the case of Jerrard v. Saunders. The plaintiff had an undoubted legal title, yet the defendant, who claimed under a mortgage subsequently executed, was held to be protected, because ho averred that he was a bona fide purchaser without notice. Thomas Jerrard, who executed the mortgage, had but an estate for life, and could therefore convey no greater estate, yet, by virtue of this novel rule of property, his deed was declared to be superior to the indefeasible title which had vested in the plaintiff. The cases appear to have been so few in England, during the last two centuries, that the question has never been submitted to a thorough examination and research. The principle has been alternately adhered to and repudiated, as the particular circumstances of each case seemed to render it more or less reasonable, or rather, perhaps, as there existed in each chancellor a greater or less disposition to repose upon the authority of adjudged cases.

It is fortunate that the difficulty which exists in England does not exist here. Our titles are all of record; this single circumstance removes a great deal of the embarrassment which surrounds the English cases. And this leads me to remark that the defense in this case does not carry with it the same force which it has in England. For what is the meaning of the plea? — it is that the defendant, having bona fide and honestly paid his money, no person has a right to require him to discover any facts which shall reveal ah infirmity in his title. But here no such discovery is necessary. The English authorities apply peculiarly to a case which can seldom arise in Ohio. There it becomes frequently necessary to institute not a petition, but a regular bill in chancery, making a great number of persons parties, the nature of whose title has always been a secret. The registry of deeds is there the 507] ^exception and not the rule. The consequence is, that a discovery from the defendants themselves is indispensably necessary, in order to remove out of the way the obstruction which hinders the claim of the complainant. Under such circumstances the English courts have sometimes said that, if the defendant will plead that he is a bona fide purchaser without notice, he shall not be compelled to make a discovery, the effect of which will be to invalidate the deeds in his possession. Such a case will rarely arise in this state; the public registry of deeds makes evident the true nature of the title of both parties, without the necessity of rousing from the sleep of half a century the secret imperfections which may exist in some one of the deeds under which a defendant claims. In this case it may be admitted that the deeds of the defendant are all perfect — that is, they may be in exact conformity with the statute which prescribes the mode of conveying real property. No discovery with regard to these is necessary, since what they are is made apparent by the records. But the complainant shows a superior title, and any right which the defendant has acquired other than from her, must necessarily be held in subordination to her title.

The remaining question relates to the mode in which dower should be assigned. There is a difference where the land is conveyed by the husband in his lifetime, and where it is conveyed by the heir. In the former case the widow is entitled to her dower according to the value at the time of alienation, for the heir is not bound to warrant, except according to the value as it was at the time of the sale. But here the alienation was by the heir; and it appeal’s that fifty acres have been cleared on the lot at a cost of §12 an acre, and buildings have been erected worth §300 or §400, and these improvements, with a very small exception, not worth noticing, have been made by the heir. They were then made at his own risk; he is presumed to have placed them there with a full knowledge of his obligations, and of the rights of the complainant; and she is entitled to be endowed according to the value of the land (exclusive of the emblements) at the time of the assignment.


author: Judge Hitchcock

text:
    The State of Ohio v. The Granville Alexandrian Society.
    A grant of power, in an act of incorporation, “to hold any estate, real' or personal, and the same to sell, grant, or dispose of, or bind by mortgage,, or in such other manner as they shall deem most proper, for the best interest' of the corporation,” does not confer upon such corporation banking privileges.
    Under the clause, in an act of incorporation, that the action of the. corporation shall be “ subject to.such rules and regulations as the legislature, from time to time, may think proper to make,” the general assembly may re*strict such company from exercising the franchise of banking.

      This is an information in the nature of a quo warranto, to ascertain by what authority the defendants exercise banking powers.
    The information was filed in August, 1840, and charges, “ that the Granville Alexandrian Society, for twelve months previous to
    filing the information, and more, have and still do *use, with out any warrant, charter, or grant, the following liberties, privileges and iranehises, not conferred upon it by law, to wit: that ot becoming the proprietors of a bank or fund, for the purpose of issuing notes, receiving deposits, making discounts, and transcating other business, which incorporated banks may and do transact, by virtue of their respective acts of incorporation, and also that of actually issuing notes, receiving deposits, making discounts, and carrying on operations and other moneyed transactions, which are usually performed by incorporated banks, and which they have a right to do; of all which liberties, privileges, and franchises aforesaid, the said Granville Alexandrian Society, during all the time aforesaid, usurped, and still do usurp, upon the State of Ohio, to its great damage and prejudice; and so the said prosecuting attorney of the said State of Ohio avers, that the said Granville Alexandrian Society during all the time aforesaid, at Licking county aforesaid, hath and still does exercise a franchise and privilege not conferred upon it by law, against the peace and dignity of the State of Ohio, and contrary to the forms ■of the statute,” etc.
    To this information the defendant has filed several pleas:
    1. The first plea sets forth that the defendants were, on January 26, 1807, created, by the legislature of Ohio, a body corporate .and politic, with perpetual succession, by the name and title of “ The GtranviUe Alexandrian Society," capable, in their corporate .capacity, of suing and being sued, etc.; to have a common seal, etc. ; and power to ordain, establish, and put in execution such by-laws, ordinances, and regulations as they should deem most proper for the good government of the corporation ; provided such by-laws., ordinances, and regulations are not incompatible with the constitution and laws of this state. The plea then sets out the second -section of the act of incorporation, and claims to exercise banking privileges, by virtue of said charter.
    To the first plea there is a demurrer, assigning for cause: That the act of the general assembly, passed January 26,1807, entitled
    “an act for -incorporating a library society in *the town of Granville, in the county of Fairfield,” confers no banking privileges on said society, as is falsely claimed.

       The second plea sets out that the society, under their act of incorporation, commenced banking on August 1, 1815, and continued to issue notes, receive deposits, etc., for a period exceeding twenty successive years prior to March 17, 1838.
    To this plea there is a replication, a rejoinder to the replication, and issue joined to the country.

       The third plea, after setting forth the incorporation of the Granville Alexandrian Society,” states, “ That defendants, in virtue of said act of incorporation, and acting thereunder, heretofore, to wit, on August 1, 1815, at the town of Granville aforesaid, established a bank, in the name and by the authority of the corporation, and became the proprietors of a fund for the purpose of issuing notes, receiving deposits, and making discounts, and transacting all other banking business, and did then and there, in their corporate name and authority, issue notes, receive deposits and make discounts, and use and transact all other banking business; and that from the 1st day of August aforesaid hitherto, and for more than twenty years successively next preceding March 17, 1838, have, from time to time, issued notes, received deposits and made discounts, and transacted other banking business; and, during all said time have, without intermission, kept up by election and swearing into office of their directors and other officers, their organization as a bank ; and upon all dividends by them declared in their banking business have paid the lawful tax to the State of Ohio, as a banking corporation, to wit, at Granville aforesaid,” etc.
    To this plea there is a demurx’er, assigning for causes:
    1. That the election and swearing in officers “during a period of twenty years,” etc., is not such a user of a franchise as confers the right.
    2. The payment of a tax on dividends confers no privileges on the society.
    *3. Having “ from time to time,” during a period of twenty
    years, issued notes, etc., is not such a user as confers the right to bank.

       Said plea is double in this, that it assigns three distinct causes of defense.
    5. Said plea is otherwise defective, etc.
    4. The fourth plea i*efers to the charter; states the commencement of banking, as in the third plea, and avers that after said commencement and before the commencement of this prosecution, to wit, on March 18, 1839, the legislature did recognize and fully acknowledge the right of defendants to bank.
    To this plea there is a general demurrer.

       The fifth plea sets out the charter, etc.; states the commencement of banking, as before, and specifies the recognition bythelegislature to be by the appropriation of the sum of $156.20 (which have been drawn for by the auditor of the state, and paid by the bank as a tax upon a dividend), to the common school fund, in the general appropriation, and passed March 18, 1839, “ togother with other money in said act named.”
    To this plea there is a special demurrer, and the causes of demurrer are:
    1. That the draft of the auditor of state for tax on dividends is is not a recognition of the assumed power of the society.
    2. Payment of said tax to the treasurer is not a recognition.
    3. The appropriation by the legislature, in the act referred to, does not amount to a legislative recognition.
    Parker, Prosecuting Attorney, for the state:
    In support of the demurrer to the first plea, it is denied that the intention of the legislature, in incorporating the Granville Alexandrian Society, was to confer banking privileges; neither does the charter confer such privileges. This will be apparent *if the ordinary rules for the construction of statutes are adhered to. 6 Bac. Ab. 384, 391; 15 Johns. 380, 383, 384; 4 Term, 793; 1 Atk. 174.
    Corporations are artificial beings, existing only in contemplation of law, and possessing only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its existence. 14 Pet. 129; 2 Kent’s Com. 298, 240; 2 Cranch, 127; 4 Wheat. 636; 4 Pet. 152; 15 Johns. 358, 384; 3 Pet. 232; 8 Ohio, 257, 287; 2 Kent’s Com. 240.
    In support of the demurrer to the third plea, it is contended that the Granville Alexandrian Society can not avail itself of the limitation in the act “relating to information in the nature of a quo warranto, and regulating the mode of proceeding therein,” for the following reasons :
    1. The application for leave to file an information, by the prosecuting attorney of Licking county, at the September term of tho Supreme Court of said county, in 1839, was a commencement of proceedings within the time prescribed by the act.
    2. The passage of the resolution by the general assembly on which this information is filed, operates as an extension of the time within which this information may be filed, so far as this corporation is concerned.
    3. The use of a privilege occasionally, or “from time to time,'’ during a period of twenty years, is not such a user as can give a prescriptive right to the franchise, or bar a prosecution by order of the legislature. 4 Burrows, 2120; 3 Cruise’s Dig. 310, 312. The defendants must show a continued and uninterrupted use and exercise of the franchise of banking, in order to claim it under the limitation of the law, and not an occasional and “from time to time ” use.
    The, fourth plea is bad for generality. It specifies no act of the legislature upon which it predicates the claim of recognition.
    The matters claimed as a legislative recognition, in the fifth plea, are not sufficient. Such recognition should be direct *and positive. 2 New Hamp. 121; 10 Mass. 155 ; 3 Burrows, 1870; 3 Term, 232; 2 Johns. Ch. 320; 2 Mass. 133; 9 Ib. 352; 4 Pet. 502.
    Ewing & Stanbert, for defendants:
    The information in this case is defective. The provisions of jquo warranto law extend as well to natural persons as to corporations; and as this information is against the Granville Alexandrian Society, it should have been stated that this is a body corporate.
    Again, the information is defective, because it is not averred that the principal office, or place of business of the corporation, is in the county of Licking, which is the venue of the action. The proceedings under the quo warranto act, whether against individuals or corporations, are local.
    If the information is held to be sufficient, then it will be necessary to look into the further pleadings.
    The question presented under the first plea is, simply, whether the defendants can found the right of banking upon their charter. Section 2 provides, “ That the corporation be and hereby is made capable in law to hold any estate, real or personal, and the same to sell, grant, or dispose of, or bind by mortgage, or in such other manner as they shall deem most proper for the best interests of the corporation, provided that the express purpose of any gift or grant be answered. ’
    In considering the quostiou of powers granted by this charter, in reference to what is called the banking franchise, it must be considered as of the time when the charter was granted.
    This charter was granted on January 26, 1807. At that time the business of banking was not a franchise. Every person capable of contracting might become a banker. So, too, every corporation made capable of contracting, and not limited in the exercise of this power to any particular form or purpose, might do the same. It has never been held, either in England or the United States, that the business of banking was a franchise of government, necessary to be granted to the subject ^before if could be lawfully exorcised. 2 Johns. Ch. 377. All the legislation in both countries is restrictive of tho pro-existing right to contract in that form.
    At the time of granting this charter, there was no restraining law of tho kind in Ohio. Tho first law of this kind was enacted in 1815. But that law can not be so construed as to restrict the rights of this corporation. Those rights, having been vested in it by the act of its creation, could not be taken away by subsequent legislation.
    This corporation was created, with unlimited power to contract, with a power equally unlimited of acquiring property, real or personal, and of disposing of such property in such manner as it shall deem most proper for its best interests. Under the power thus granted, it might engage in the business of banking. To sustain these positions, tho case of this Corporation v. John Van Buskirk, decided by tho Supremo Court of Licking county, in the year 1817, is referred to, and also the written opinion of Chancellor Kent; also the following cases: Taylor v. Miami Exporting Company, 6 Ohio, 176, and The People of New York v. The Manhattan Company, 9 Wend. 351.
    The lacts set forth in the third plea are sufficient to operate as a bar to this information, and those facts are well pleaded.
    It is not double. Tho lacts stated all conduce to one point, and to establish one proposition, the user of banking powers. Stephen’s Pl. 262; 3 Chit. Pl. 1110; 4 East, 337; 6 Cowen, 216.
    Reference was made, also, by the counsel to several acts of the legislature, and of the officers of the government, recognizing the Granville Alexandrian Society as a banking institution.
    Parker, Prosecuting Attorney, in reply,
    resisted the several positions assumed by defendants’ counsel, and, at great length, argued to sustain the propositions by himself advanced in his opening argument. He cited the following authorities: 15 Johns. 384; 8 Cowen, 709; 1 Chit. 310, 311; 14 *Pet. 129; 2 Kent’s Com. 239, 240; 8 Ohio, 286; 9 Wend. 351, 383; 6 Cowen, 316.
   Judge Hitchcock

delivered the opinion of the court:

This case has been very fully and ably argued by the counsel, as well for the state as for the defendants. It is a case of importance, and presents several questions requiring the grave consideration of the court. These questions have been fully considered, and will now be noted, so far as is necessary for the disposition of the case.

Several objections are made to the information, the first of which is, that it is filed against the defendants by the name of the Gran-ville Alexandrian Society, without averring that said society is a corporate body.

The law under which this information is filed, authorizes proceedings of this kind against natural persons and against corporations.

Against natural persons:

“ 1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in any corporation, created by the authority of this state.
“2. When any public officer, civil or military, shall havo done or suffered any act, which, by the provisions of this act, shall work a forfeiture of his office.
“3. When any association of persons shall act as a corporation, within this state, without being legally incorporated.”
Against any corporate body, when any such corporation shall have:
“ 1. Offended against any of the provisions of the acts creating, altering, amending, or renewing such corporation.
“ 2. Whenever it shall have forfeited its privileges and franchises by non-user.
“ 3. Whenever it shall have done or committed any acts which amount to a surrender of its corporate rights, privileges, and franchises.

*“4. Whenever it shall have misused any franchise or privilege conferred, or exercise any franchise or privilege not conferred upon it by law.” Swan’s Stat. 770, 771.

The complaint in this case being, in fact, against a corporate body, for exercising a franchise not conferred upon it by law, it would have seemed to be more consistent with correct pleadings to have averred that the Granville Alexandrian Society was a body corporate, in law. There is not, perhaps, the same necessity of so doing in this state, where the private as well as the public acts of the legislature are printed in the statute book, and sent forth to the people, and where the court takes notice of them without pleading, as there would be in those states where a different course of practice prevails. But still, had there been no precedent to the contrary, we might have been inclined to the opinion, that, for this omission, this information was defective. But this information is framed after the precedent in the case of the People of New York v. Utica Insurance Company, 15 Johns. 381. It is like the information in the case of the State of Ohio v. Commercial Bank of Cincinnati, decided at the present term, and which was held to bo sufficient.

Another objection made to the information is,.that, although the venue, in the margin of the information, is laid in Licking county, yet it is nowhere stated that the principal office, or placo of business, of the defendants, was in that county.

We all concur in the opinion that it should appear that the .violation of the law complained of must havo taken place in the county where the information is filed, and that it is equally necessary that it should so appear upon the face of the information; as it would be that it should appear in an indictment, that the offense complained of had been committed in the county where the indictment is found. The jurisdiction of this court, upon quo warranto, is confined to the county where the defendants have their office, or place of business. It is so expressly declared with respect to natural persons, and the same reason applies with respect to corporations. As to the question, whether this place of business is sufficiently ^alleged in the information, we do not entirely concur. The information, after stating (without any venue) that the society had used the franchises of becoming proprietor of a bank, and of issuing notes, etc., concludes as follows: “And so the said prosecuting attorney, for the said State of Ohio, avers that the said Granville Alexandrian Society, during all of the time aforesaid, at Licking county aforesaid, bath, and still doth exercise, a franchise and privilege not conferred upon it by law, contrary to the form of the statute,” etc. Some of the members of tho court believe that this is sufficient, and that, although tho venue is not technically, it is substantially, laid. And, as this is rather a technical objection, we should be unwilling to dispose of tho case, upon this point, without further consideration.

Holding, for present purposes, that the information is sufficient, we will proceed to the examination of the further pleadings.

The defense relied upon in the first plea is, that by tho act of incorporation, banking powers wore conferred upon the Granville Alexandrian Society. If such be a fact, there is an end to the case.

This act of incorporation was passed on January 26, 1807.

It must be admitted, that the purposes for which this act was passed, do not appear in the act itself. It is very short, and expressed in general terms. But the title is, “an act for incorporating a library society in the town of Granville, in the county of Fairfield.” 5 Ohio Stat. 72. True, the title to an act does not constitute any part of the act, but it may be referred to, in order to explain what is doubtful in the act itself; And well may it be referred to in this case, whore, without the title, it would be impossible to conjecture what object tho legislature could have had in view. By reference to the title, we find the object to have been to incorporate a library association ; and, in giving a construction to the act, this must be borne in mind. Tho powers granted were intended to be such as were necessary to effect this object. It is not *reasonable to suppose that it was intended to grant any other. If, however, others have been granted, it is not in the power of this court to restrain them, although it is in tho power of the legislature to do it, for reasons which will be hereafter stated.

In section 1 of this act, it is enacted that certain individuals therein named, together with such others as shall be hereafter associated with them, shall be a body corporate, by the name of the “ Granville Alexandrian Society,” with tho usual powers of contracting and being contracted with, of suing and being sued, of making by-laws, ordinances, etc.; “ provided, said by-laws, ordinances, and regulations are not incompatible with the constitution and laws of the state ; subject, however, to such rules and regulations, as the legislature, from time to time, may think proper to make."

That part of the law relied upon as conferring tho banking power is section 2. It provides, “ that the corporation be, and they are hereby, made capable in law to hold any estate, real or personal, and the same to grant, sell, or dispose of; or to bind, by mortgage, or in such other manner as they shall deem most proper for the best interests of the corporation; provided, that the express purpose'of any gift or grant be answered.”

Before proceeding to a careful examination of the powers here granted, it may be well to recur to the argument of defendants’ counsel. It is not pretended, that, at this day, a grant of powers like these would confer the franchise of banking; but it is contended that, at the time this act of incorporation was passed, banking was not a franchise — there was no restraining law ; and any individual, or any corporation, authorized to contract and be 'contracted with ; to hold, sell, and dispose of property, without restriction, might engage in this business. The case of Attorney General v. Utica Ins. Co., 2 Johns. Ch. 377, is referred to as an authority. The remark of the chancellor, in that case, is : “ The right of banking was formerly a common law right, belonging to individuals, and to be exercised at their pleasure; but the legisla ture *thought proper, by the restraining act, to take away that right from all persons not specially authorized. Banking has now become a franchise.” He says nothing about corporations. It belongs to “individuals; ” but it does not follow that it belongs to corporations. Individuals have natural rights; corporations have not.`

Although there was no restraining law in this state, at the time this act of incorporation was passed ; and, although an individual might have engaged in this business, still, a corporation could not, unless the power was expressly granted; or, unless it was necessary, to carry into effect powers which were granted. The rule for construing acts of incorporation was the same then as now ; and that rule is, “ to consider corporations as having such powers as are specifically granted by the act of incorporation; or as are necessary for carrying into effect the powers expressly granted, and as not having any other.” 2 Kent’s Com. 298; 2 Cranch, 127; 4 Wheat. 636; 4 Pet 152; 8 Ohio, 286.

Applying this rule of construction to the charter of the Gran-ville Alexandrian Society, and it seems to us clear that the privilege of banking is not granted. The corporation has power to contract and be contracted with; and this power it must have, for its accommodation as a library association. It is made “ capable in law to hold any estate, real or personal, and the same to sell, grant, or dispose of, or bind by mortgage, or in such other manner as they shall deem most proper for the best interest of the corporation ; provided, that the express purpose of any gift or grant be answered.” Here is no power of banking expressly granted. Is it necessary to carry into effect any of those powers which are granted ? Beyond the power of contracting and being contracted with, it has power to hold property, real and personal; and it may “grant, dispose of, or sell the same.” It is not necessary to exercise the power of banking in order to make contracts; or, in orde? to “grant, dispose of, or sell” property. Or it may bind such property by mortgage; or it may bind it “ in such other manner ” as it shall deem most proper for the best interests of the corporation. *If, at the time of the passage of this law, there was a mode of binding property, by exercising banking powers, as distinguished from binding by mortgage, well known and understood, then, possibly, by the grant of the power to bind property in such other manner, as the corporation might think proper, might be construed as granting, by implication, the power of banking. I can see nothing else in the law that would excite the least doubt whatever upon the subject.

But it is said by counsel, that in 1817, this court was called upon to give a construction upon this act of.incorporation; and that it was then holden, that it did confer banking powers; and we are referred to the case of the Granville Alexandrian Society v. John Van Buskirk. If our predecessors have, after full consideration, in fact determined the identical question now presented to us, we ought not lightly to overrule their decision. We have a manuscript report of that case, showing the pleadings, the facts, and the judgment'of the court. The reasons for that judgment are not assigned. It appears that the action was upon a promissory note, given by the defendant to one Samuel Davis, and by him indorsed to the plaintiffs, for 1250. The defense relied upon was, that the plaintiffs were a banking company, or association, that loaned money, and issued notes payable to bearer, contrary to the act of 1816, prohibiting the issuing and circulation of unauthorized bank paper, which act declares all notes discounted by such companies void. It was admitted by the plaintiffs, that they did loan money, and issue, by their officers, notes or bills payable to bearer, and had done so from 1815 to the time of trial; and that the note was discounted by them for the defendant; and that he received, for the note, the bills of the plaintiffs. It is said in the manuscript, that the only question made and argued, was, whether the charter of the plaintiffs authorized them to do a banking business. The case was submitted to the court at the August term, 1817. Judges Brown and Couch being present, it was taken under advisement, and finally decided in Belmont county, Judges Pease and Couch holding the court. Judgment was rendered for the plaintiffs.

*The case seems to have been considered by three of the then judges of the court; whether they all concurred in the judgment finally rendered, we do not know. It was a decision made upon the circuit; for at that day there was no court in bank. Since the establishment of the court in bank, we have considered our own decisions, made upon the circuit, as of less authority than those made by a full court. In this decision, we have no evidence that more than two of the lour judges concurred. The presumption is, that there was a difference of opinion; otherwise, why was the case taken under advisement ? Taking all these circumstances into consideration, although the judgment of the court, in this case, would seem to have been predicated upon the supposition that the charter Of the Granville Alexandrian Society conferred upon that corporation banking powers, we can not look upon it as an authority to justify us in so holding, when we do not, in our consciences, believe that any such powers were intended to be, or were, in fact, granted. It may not be improper to say, that the defense set up in that case, although it might have been a legal, was a most unconscionable, one. It was one which the court could not but have looked upon with disgust. The defendant had received that from the plaintiffs which had been as good and valuable to him as so much money, and he now undertook to shelter himself from payment, under a highly penal statute. Whether this consideration had any influence with the court pronouncing the judgment, I can not say. From my knowledge of the men, I am sure they would strive against any such influence. But that a strong desire to do strict justice between parties does sometimes lead courts away from strict law, there can be no doubt. It is a very common, and a very just remark, that hard eases frequently make bad precedents.

We are also referred to the opinion of Chancellor Kent, upon the extent of the powers granted by his charter. That opinion) however, is based, not upon the charter itself, but upon the decision of the court above referred to. The chancellor, if adjudicating this case, would probably hold that decision obligatory. We do not, for the reasons already stated.

*But even if we are wrong in supposing that the charter of this corporation did not confer upon it banking powers, we think it is within the laws restraining banking.

The first law of this kind was passed on February 8, 1815, and provides “that from and after the taking effect of this act it shall not be lawful for any individual, or company of individuals, to issue and put in circulation any note or order for the payment of money, struck or printed upon an engraved plate, and calculated to circulate as a bank bill or note, unless such individual shall be, by law, specially authorized so to do; or unless such company shall be incorporated by law for that purpose.” 2 Chase’s Stat. 868. There is no pretense that express power is conferred upon this society to do banking business; it is only by implication that it is claimed for it. This law, then, would be sufficient to restrict it in the exercise of this implied power; and it was passed before this power was exercised by this society.

The next restraining act is the act of January 27,1816, “to prohibit the issuing and circulating unauthorized bank paper. Swan’s Stat. 136. This act prohibits the exercise of banking powers, except by “ banks incorporated by a- law of this state.” It can hardly be pretended that the Granville Alexandrian Society is, within the meaning of this statute, “ a bank incorporated by a law of this state.” It, is a society incorporated as a library society, claiming the implied powers of banking, which it is prohibited from exercising by this law.

But it is said that if these restraining acts are construed to include this corporation, then so far they are unconstitutional, as taking away vested rights.

That the legislature, having granted powers to a private corporation can not, consistently with tho constitution, take away those powers, without any default on the part of the corporation, is too well settled by any who regard the stability of the law, the authority of judicial decisions, or the safety of our institutions And even whore a corporation has violated its charter, it is rather a judicial than a legislative question whether such violation is a cause of forfeiture. *But the legislature may, and in most, if not in all cases, it is well that they should, in the acts of incorporation which they pass, retain the power of modifying, changing, and altering, as occasion may require. They have done it in the charter of the Granville Alexandrian Society. The corporation is created, and the powers granted, “subject, however, to such rules and regulations as the legislature, from time to time, may think proper to make.”

Can there be any doubt that, under this saving clause, the legislature would have had the power, on the day on which they passed these restraining laws, by a private act, to have said that this corporation should not exercise banking powers and privileges ? We think not. And if the corporation would have been bound to obey a private law of this character, it certainly should be bound to obey a general law intended to effect the same object.

It has boon argued by defendant’s counsel that there has been, so far, a recognition, by the supreme power of the state, of the power of this corporation to exercise the banking franchise, as, in fact, to confirm to it the right. There is force in the argument, and it would seem difficult to escape the conclusion that the authorities of the state have considered this as a banking institution. It has been so treated by the auditor of state and by the banking commissioners. It has paid a tax like the other banks, since this tax has boon appropriated by the legislature. The state, by its agents, have borrowed money of it to carry on its public works, and although, by the reservation in the charter, the legislature might, at anytime, have passed a law prohibiting it from issuing paper or exercising banking powers, it has done nothing of the kind, except what is contained in the general restraining law. The only act ever done by the general assembly, so far as we know, manifesting dissatisfaction at the course pursued by this corporation, was the adoption of the joint resolution directing the information in this case to be filed. Still, it seems to the court that these things can not properly be taken into consideration in deciding upon the validity of the first plea of the *defendants. The simple question presented by that plea is, whether, by the act of incorporation, as originally passed, banking powers were vested in this corporation. We think they wore not, and we therefore hold that the pica is insufficient, and can not operate as a bar to the information.

This plea being disposed of, it becomes necessary to turn our attention to the third plea, to which there is also a demurrer.

This prosecution is in pursuance of the act of March 17,1838, entitled “ an act relating to informations in the nature of quo warranto, and regulating the mode of proceeding therein.” Swan’s Stat. 769.

In section 26 of this act, it is enacted, that “ nothing in this act contained shall authorize any proceeding against any corporation, for forfeiture of charter, unless the same shall be commenced within five years from the time of the exercise of the power, or the act of omission alleged as the cause of forfeiture; and no proceedings under this act shall be sustained against any corporation, on account of the exercise of any power or franchise under its charter, which shall have been used and exercised for the term of twenty years prior to the commencement of such proceedings; nor shall any proceeding be commenced under this act against any officer, to oust him or her from office, unless such proceeding shall be commenced within three years next after the cause of such ouster or right to hold such office shall have arisen; provided, that such proceedings under this act may be had, and the same shall not be'barred, in any of the above cases, if commenced within two years from the passage of this act.”

It will be seen that by this section three classes of cases are provided for. If the proceeding be against a corporation for the exercise of a power not granted, or for an act of omission, it must be commenced within five years from the exercise of the power, or of the omission to act. If it be for the exercise of a power or franchise, it must be within twenty years from the commencement of the exercise of the franchise. In other words, if this power or franchise has been exercised for the term of twenty years, tho right to exercise it can not be questioned *under this act. If the proceeding is against an officer, to oust him from office, it must be commenced within three years after the cause of such ouster shall have arisen.

But there is annexed a provision, that if the proceedings are commenced within two years from the passage of the act, none of the above causes shall operate as a bar.

The third plea in the case, now under consideration, is framed, or intended to be framed, under this section of the statute.

It sots out that the defendants, “ on August 1, 1815, at the town of Granville aforesaid, established a bank, in the name and by authority of the corporation, and became the proprietors of a fund, for the purpose of issuing notes, receiving deposits, making discounts, and transacting all other banking business; and did then and there, in their corporate name and authority, issue notes, receive deposits, and make discounts, and use and transact all other banking business; and that from the said 1st day of August, hitherto, and for more than twenty years successively, next preceding March 17, 1838, have, from time to time, issued notes, received deposits, and made discounts, and transacted other banking business. And during all said term, without intermission, have kept up, by electing and swearing into office their directors and other officers, their organization as a bank, and upon all dividends by them declared, in their banking business, have paid the lawful tax to the State of Ohio as a banking corporation.”

It is objected to this plea, that the distinct facts set forth in this plea do not, separately considered, amount to evidence of the exercise of the franchise of banking. For instance, that the election and swearing into office of officers during a period of twenty years, is not such a user of a franchise as to confer a right. This is certainly correct, and if the plea contained nothing further, it would unquestionably be bad.

It is further objected, that having “from time to time, issued notes,” etc., is not such a user of the franchise of banking as to confer a right. This also is true, and if nothing beyond this had been stated in the plea, it would have been defective.

*The whole plea must be taken together, and if, taking the whole together, it shows that the defendants have, for the term of twenty years and more, used the franchise of banking, as that franchise is ordinarily used by banks, upon which it is expressly conferred, it is sufficient. This franchise is exercised, not by the performance of a single act, but of a variety of acts, which, taken together, constitute the business of banking.

The prosecuting attorney, however, complains that this plea is double, because it undertakes to set forth this variety of act. It is not so. Several matters are stated, such as the discount of notes, the issue of notes, the election of officers, etc., but they all conduce to establish one proposition, the use of banking powers.

The question is, whether the plea does, in fact, set forth the use, by the defendants, of the banking franchise for twenty years, as that franchise is ordinarily exercised by banks.

It sets forth, that, during all the time stated in the plea, the corporation “have, without intermission, by election and swearing into office of their directors and other officers, kept up their organization as a bank.” This is in conformity with the practice and usage of banks. It further sets forth, that, from August 1, 1815, “hitherto, and for more than twenty years successively, next preceding March 17, 1838, they have, from time to time, issued notes, received deposits, and made discounts, and transacted other banking business.” This, too, we suppose to be in strict conformity to the usages of incorporated banks.

It seems, however, to be apprehended by the prosecuting attorney, that the expression “from time to time” implies that there has been a cessation of this user, and that it has not been continuous. The allegation of the plea is, “that for more than twenty years successively, next preceding,” etc., notes, etc., were “ from time to time” issued, etc.; not that it was done “from time to time” during a period of twenty years. No bank is perpetually, continually, daily engaged in receiving deposits,' making discounts, and issuing notes. All these things *are done “time to time,” at set times, or, as occasion may require.

From a most careful examination, we are brought to the conclusion that this plea is well pleaded, and that it is sufficient,, in law, to bar the prosecution.

It is claimed, however, that this information having been filed in pursuance of a joint resolution of the general assembly, that resolution operates as an extension of time within which an information maybe filed, so far as this corporation. Is concerned; and, further, that the commencement of this prosecution must be dated from the time an application was made to the court for leave to file an information. This application is said to have been made in September, 1839. So far as relates to this last position taken, it is sufficient to say that we are now; inquiring as.to the validity of a plea, and must be confined to the-record. In the record, there is nothing to show that application was ever made to this-court for leave to file an information against the defendants. And if there were, it would be a strange inference to draw, that, because this court refused leave to file an information, therefore, an information was filed, and proceedings commenced.

As respects tho resolution of the general assembly, directing this information to be filed, it does not purport to interfere with, or change, tho quo warranto law. That law directs that an information may be filed by the prosecuting attorney, “upon leave granted by the supremo court, in term time, or, by any judge thereof, in vacation,” “ and- shall be so filed when the same shall b.e directed by the governor, the general assembly, or the supreme court.” When the information is filed, no matter whether it is done on leave granted, or by direction of the governor, general assembly, or supreme court, tho proceedings must be according to the law, and tho decision of the case must be according to the law. We can not look back to see whence the order for tho commencement of the proceedings emanated, and vary our decisions accordingly.

The court being unanimous in the opinion that the third plea is sufficient, it is unnecessary, at the present time, to go further into tho case.

*The prosecuting attorney can have leave to withdraw the .demurrer, and reply. If this is wished, the case will be continued, and remanded to the county. If not, then judgment will be .entered for the defendant.

£Note. — Upon the suggestion made by the court, the case was -continued, and remanded to the county of Licking, and leave ..given both parties to amend tho pleadings.]


text:
    William M. Townsend v. P. and G. Carpenter.
    The assignee of .a jiote, not negotiable, may sue the maker in chancery to enforce .payment.
    This is a bill i-n chancery, from the county of Fairfield.
    The bill is.filed -'by the assignee of a note, not negotiable, against the assignor.and maker,-setting up, in avoidance of the right of set-off by the maker, a promise to pay, made by the maker to the assignee, after notice of the assignment.
    The bill charges that on January 7, 1839, Paul made this note to Gabriel Carpenter, for $1,500. That on the same day, Gabriel indorsed it to the plaintiff, oi which fact Paul, at the time, had notice from the complainant. That at the time of the assignment Paul had no demand against Gabriel which could be set off against the note in the hands of Gabriel ; that at the maturity of the note, and frequently afterward, Paul promised to pay to the complainant the amount due on the note. The bill then alleges that he has never paid the same, and protends to have claims as set-offs against the note.
    Paul Carpenter, the maker of the note,
    in his answer, among other things, avers that af'tcr the transfer of the note, Gabriel promised that he would give the respondent $50 a week to pay *on the note ; that the respondent so told the complainant, and the complainant expressed a belief that Gabriel would do so; and the respondent, in that event, promised to pay the complainant ; he avers that ho never promised except upon this condition. The testimony of several witnesses has been taken for the purpose of establishing the charges in the bill.
   Grimke, J.

The first and principal question to be decided is, whether an assignee of a note has a right to maintain a suit in this court. The note is not negotiable; the consequence is that an assignment of it does not transfer the legal, but only the equitable interest in it. This is obvious from the fact that the assignee, if he does sue at law, is compelled to make use of the name of the assignor. Notwithstanding the assignments, the legal interest remains in the assignor; and as he alone who has the legal interest in the subject matter can maintain a suit, the action, although it is brought for the benefit of the assignee, must still be brought in the name of the assignor. It is not even necessary to notice the name of the assignee on the record, as that it is for his use ; hence the term assignment has been appropriated to signify the transfer of a note not negotiable, and indorsement, to signify the transfer of a note which is negotiable. It would seem to follow, therefore, that if the transfer of a note which is not negotiable, docs convey the merely equitable interest in it, that the assignee has a right to maintain a suit in chancery against the maker to enforce the payment of it. There could be no doubt of this, if it were not that courts of law, in very modern times, have been disposed, in an indirect manner, to protect the interests of the assignee when he sues in the name of an assignor; and, in consequence of this, a single court has determined that a court of chancery is deprived of its jurisdiction. .Such is the decision in the case of Mosely v. Grouch, 4 Rand. 592. But I do not know another case where it has been held that a court of law having once declined jurisdiction of a particular subject matter, and afterward, in an indirect manner, entertained it, that a court of chancery, to which it appropriately and originally *belonged, is, therefore, deprived of it. The course now pursued by the courts of law constitutes a part of its practice, while that pursued by the other court is not merely a part of its practice, but grows out of its original constitution and the nature of the interest which is the matter in controversy.

Story, in his treatise on Equity, does not treat this as a doubtful question. He seems to take it for granted as an acknowledged principle. “ In order,” he says, “ to constitute an assignment of a debt, or other chose in action, in equity, no particular form is necessary. Indorsing and delivering a bond to an assignee amounts to an assignment of tho'bond. An assignment of a debt may be by parol as well as by deed.” 2 Story Eq. 311. I think, then, that the first question — has the assignee a right to sue in chancery? — must be answered in the affirmative.

The bill alleges that on the day this note for $1,500 was assigned to the complainant, he gave notice to Paul Carpenter, and that when the note became due, and frequently afterward, the latter promised to pay him the amount. The answer admits notice a short time after the date of the note, but denies that he ever mado any promise to pay, except upon the condition that Gabriel Carpenter, the assignor, would procure his discharge from his liability as security for Gabriel, or furnish him money to pay the note. But the depositions of Hunter and the two Townsends expressly contradict this assertion in the answer, and show that Paul Carpenter did make an express promise to the complainant to pay him. If it should be said that this promise, at any rate, gives a right to sue at law, it may bo answered that a promise by the maker can not divest a third person, the assignor, of his legal interest, so far as to deprive a court of chancery of at least com current jurisdiction.

Decree for the complainant.

No arguments came to the reporter’s hands.


author: HitcncocK, J.

text:
    *The State of Ohio, ex rel. Philip Owens et al. v. The Trustees of Section 29, Fractional Township 3, Range 1, Delhi Township.
    Before any denomination of Christians can be entitled to any part of the ministerial fund, arising from the rents of section 29, they must have formed themselves into a society, in the township in which the section is located, and have given themselves a name.
    The agent appointed to receive said fund must have been appointed by the society, as a collective body, and not by the individual members of the society
    This is an alternative mandamus from the county of Hamilton.
    At the April term of said court, 1840, by order of court, an alternative mandamus was issued, commanding the defendants to pay over to the “Roman Catholic Church of Delhi township ” an equal dividend of the rents of section No. 29, in said township, due for the years 1837, ’38, ’39, or to appear before the court forthwith, and show cause why the same should not be paid over.
    The defendants appeared, and time was given to make return, and on September 14, in the same year, the return was filed.
    In this return the defendants allege:
    1. That there is not now, and never has been, in said township of Delhi a society formed and organized by the name of the “ Roman Catholic Church of Delhi township,” for the purposes of religious worship; and they deny that all those who are claimed by the relators to belong to such society are citizens of said township.
    2. Thev deny that they have refused to pay to the Roman Catholic Society of Delhi, or their authorized agent, appointed by said society, their proportion of the rents arising from section No. 29, for the years specified, but aver, on the contrary, that at all times when the agent of the relators presented himself for said years, they informed him that when he would produce evidence that the relators wore ^citizens of said township; that they wore regularly organized as a religious society, by the name of the Roman Catholic Society, or Church, of Delhi township, and that the agent was appointed at a regular meeting of said society to receive said rents, they would pay the same. They allege, however, that this evidence has never been furnished, although often promised.
    To this return no demurrer, plea, or answer has been filed. It stands upon the record uncontradicted, and is in no way controverted. Testimony has been taken both by the relators and defendants. As that testimony is cited and commented on in the opinion of the court, it is unnecessary hero to recapitulate it.
    Carey & Caldwell, for the relators.
    Storer, Riddle & Roll, for defendants.
   HitcncocK, J.

This case is presented to the court in somewhat of a singular aspect. A mandamus was issued on the relation of Philip Owens and others, claiming to be the members of the Roman Catholic Society of Delhi township, to which a return was regularly made by the defendants. The statute regulating proceedings in cases of this description, requires “ that whenever a return shall be made to any such writ, the person prosecuting such writ may demur, or plead, to all or any of the material facts contained in the said return ; to which the person making such return shall reply, take issue, or demur; and the like proceedings shall be had therein, for the determination thereof, as might have been had if the person prosecuting such writ had brought his action on the case for a false return.” In the case before us, this provision of the statute has been entirely disregarded, and there is neither an issue in fact, nor in law, joined. It would be right to send the case back to the county, with directions to have an issue made up. But as testimony has been taken and the case argued, although we do not intend to sanction the course of practice pursued, we shall not decline to go into its consideration. The counsel *for the respective parties seem to have treated the case as if the return had been traversed; and they also raise some questions of law, as to the effect of the return, provided the court shall consider it as having been proven to be true.

Before referring to the testimony in the case, it is proper to settle the principles of law by which it must be governed.

In the sale of land by the United States to the Ohio Company, and to John O. Symmes, secion 16 in oach'township was reserved for the use of schools, and section 29 for the use of religion in the township. In other sales of public lands by the United States, section 16 has been in like manner reserved, but not section 29. These sections thus reserved for religious purposes have usually, in common parlance, and sometimes in legislative enactments, been denominated ministerial sections.

In section 26, of article 8, of the constitution of the state, it is provided that “laws shall be passed by the legislature which shall secure to each and every denomination of religious societies in each surveyed township, which now is, or may be hereafter formed in the state, an equal participation, according to their number of adherents, of the profits arising from the land granted by Congress for the support of religion, agreeable to the ordinance or act of Congress making the appropriation.”

In accordance with this injunction of the constitution, the general assembly have, from time to time, as seemed necessary, acted upon the subject. The law now in force in relation to it, is found in the act of March 14, 1831, “ to incorporate the original surveyed townships.” In section 13 of this act, it is provided that “ each and every denomination of religious societies, after giving themselves a name, shall appoint an agent who shall produce to the trustees-a certificate containing a list of their names and numbers, specifying that they are citizens of said township; and the agent shall pay over an equal dividend of the rents within three months after they shall have been received, to be appropriated to the support of religion, at the discretion of each society; provided *that all members, above the age of fifteen years, shall be entitled to have their names enrolled by any society.” And in section 15 the trustees of each incorporated township are required to meet on the first Monday in January, annually, and make a dividend of the rents to each religious society; “and in making such dividend, each society shall bo entitled to receive a just proportion of the money received by the treasurer.”

It is clear that this fund is intended for the support of religion in the township in which the section is located, from which it is derived, and can not be appropriated for any other purpose, or for the support of religion in any other place.

It is to be distributed to tho different religious societies in proportion to their numbers ; and in ascertaining numbers, all actually belonging, or adhering, to each society, of the age of-fifteen years, or more, are to be taken into the account, provided “they are citizens of said township.”

Here a question is raised as to the meaning of the word “ citizens,” as used in this connection. That this word does not always mean one and the same thing is clear. Thus, we speak of a person as a citizen, of a particular place, when we mean nothing more by it than that he is a resident of that place. When we speak of a citizen of tho United States, we mean one who was born within the limits of, or who has been naturalized by, the laws of the United States. It can hardly be believed that the legislature, in using the word “ citizen,” in this statute, intended to make a distinction between native or naturalized citizens, and resident aliens. Why should such distinction be made ? Is there not as much need of religious instruction in the one case as the other? To me it seems clear that the word citizen, as here used, should be held to be synonymous with tho word resident. The legislature did intend that, in ascertaining numbers, none but such as were residents of the township should be included. But if there is any doubt upon the subject, that doubt must be removed upon reference to tho constitution. We are bound so to construe every law, if possible, that it shall not conflict with the constitution. *If it can not be so construed, then it must be rejected, for a legislative act which is in violation of the constitution can be of no binding force. The provision of the constitution, as already cited, is, that laws shall be passed, securing to each and every denomination of religious .societies “an equal participation, according to their number of adherents, of the profits arising” from these lands. If a person who is not a citizen can be an adherent of a religious society, this section of the constitution has secured to him a participation in the profits of these lands. It is clear, then, that this law is not such as is required by the constitution, unless we hold the word citizen, as here used, to moan the same as resident.

But before any claim, can be made upon the trustees, the sect claiming must have formed themselves into a society, and must have given themselves a name. It is not enough that there are individuals who are members of Christian churches, residing within the township. A society must be actually formed, and known by name. A religious society is made up of individuals associated together for religious purposes. As to the particular mode or manner of constituting or forming this society, it is immaterial. Each denomination of Christians may form their societies according to the usual practice or custom of their sect. But the society must be formed, and must have a name.

The society thus formed, must appoint an agent. This can not be done by the individual members of the society, by subscribing a paper constituting an individual an agent; but it must be done by vote of the society, as a collective body.

This agent must be furnished with a certified list of the number and names of the members of the society, residing within the township, over the ago of fifteen years.

The society having been thus formed, and having appointed their agent, are entitled to a share of the fund, in proportion to their numbers, upon the production by the agent to the trustees, of the certified list of numbers and names.

Before the trustees can be justified in distributing any portion of this fund to any agent, they must have satisfactory *evidence that a society has been organized, and has a name, and that an agent has been appointed. The proof of the appointment of the agent should be verified by something more than his own statement.

Such we understand to be the law upon this subject, and it remains to apply it to the case before us.

The first reason assigned by the defendants for not obeying the alternative mandamus is, that there is no such religious society in their township as the “Roman Catholic Society of Delhi township,” regularly organized and having that name.

•Much testimony has boon introduced upon this point by both parties. Without recapitulating it, it is sufficient to say that it is altogether vague, and of such a character as to satisfy us that there never has been any organized society of that name in the township. There are many Catholics in the township, and efforts have been made to effect an organization, not for religious worship, but for procuring a portion of this fund. But the law has not been complied with. Three persons have been examined to prove an organization. The first of these is Philip Owens, the principal relator. He states, among other things, as follows: “We organized, as well as 1 remember, in the year 1834, a Roman Catholic Society in Delhi township, for the purpose of becoming a body of people, and to receive our proportion of the ministerial fund When inquired of as to the name of the society, ho says it was the “Roman Catholic Society of Delhi township.” James Cahill speaks of a society organized; and when inquired of as to the name, he says it was “ Catholic.” Anthony Hannah, another witness, says that in January, 1839, ho was at the formation of a society of Catholics in Delhi township, and that the name was the “Roman Catholic Society.” Ho afterward says that the society had been previously formed, but that he had never before attended. These are the only persons who know anything about the formation of a society, which is said to consist of about one hundred and fifty members; and it is, at least, a little singular that no two of them agree as to the name. When called upon for their books, or other written evidence of *the formation or existence of a society, none were produced; and when the defendants called at the place where they were informed such documents could be found, they were not there; but it was said they had been carried away to town to be fixed. As yet, however, they have never been exhibited.

This testimony falls far short of satisfying our minds of the existence of such a society as is claimed; and might be well rejected by the trustees, as not furnishing such proof.

The second cause alleged why the mandamus was not obeyed is, that the defendants did not refuse to pay over the money to the Roman Catholic Society, but only required proof of the formation of such society, of the appointment of an agent, and of the correctness of the list, and proffered, if such proof was given, to pay over the money; but no such proof was exhibited.

This allegation is sustained by the evidence. The only testimony to contradict is, that throe instruments of writing wore produced to the trustees, all of which art, of similar purport. One of those instruments of writing is as follows, to wit: “We, the undersigned, citizens of the township of Delhi, Hamilton county, Ohio, composing the Society of Roman Catholics of said township, claiming to have the benefit of the ministerial appropriation for said township, for the year 1838, do appoint Philip Owens our agent, to receive our proportions of said fund, and receipt for the same accordingly. As witness our hands, this December 23, 1838.” Then follow the names of ninety-seven individuals, after which the following certificate: “Certified by Philip Owens, agent for the society.” The entire document, signatures and all, was proven to be in the handwriting of Philip Owens. And, in addition to this, there was the testimony of one witness, that he had heard that there was a Roman Catholic Society in Delhi.

This evidence was not sufficient to prove the existence of the society, nor the appointment of the agent who made the application, without which proof the trustees could not have been justified in paying over the money. Besides, it was suspicious upon the face of it. And these suspicions were ^increased by the testimony of a witness, who stated that Owens went about among the people, with a paper similar to the foregoing, to get names subscribed to it, and that he procured one person, at least, to subscribe to it, who was not of the Catholic faith, by assuring him that that would make no difference; and, by assuring him further, that the money, when procured, should bo distributed íd equal proportions to those whose names appeared on the paper.

Taking the whole case into consideration, the court are of opinion that the return is sufficient in law, and that the facts therein stated are true. Judgment will therefore be entered for the defendants. Judgment for the defendants.