source: Caselaw Access Project

author: Judge Hitchcock

license: Public Domain

text:
    Jonathan A. Cram v. David D. Spear.
    It is not admissible for a plaintiff to prove boots of entries of money, but, in large sums, by his own oath.
    Reserved in the county of Muskingum.
    The declaration in this case is in assumpsit, containing the •common count.
    Plea, general issue, with notice of set-off.
    At the last term of the Supreme Court,'in the county of Mus•kingum, a jury was sworn to try the issue.
    On the trial the plaintiff produced a book purporting to be a book of accounts, having the first six and.one-half pages written upon, consisting of such entries as are usually made in book accounts; the dates extending from September 4, 1834, to July 23, 1836. On page 6, the following successive entries are made
    1836. Jan. 15. D. D. Spear, Dr. To cash lent, 00
    “ “ 18. D. D. Spear, Dr. To cash lent, 275 00
    ■“ Eeb. 14. D. D. Spear, Dr. To one horse, sold Tallmage, 70 00

      And on page 7, the following :
    Zanesville, March 19,1836.
    D. D. Spear, Dr.

    To draft on New York, by Mr. Stewart, . $45 00'
    May 15. X>. D. Spear, Dr.

    Paid f per cent, discount and premium on a bill at Zanesville Bank, for $1,000, for 4 months, 30 00
    Balance for mare traded for Bob Hoxse, as per contract, foundry,..... 40 00
    To cash in store,......12 50
    Then follow three other charges against different individuals, and the residue of the book is blank.
    The plaintiff then offered himself as a witness to prove the said several charges of cash contained in said book. The witness 495] *was objected to as incompetent, by the counsel for the defendant, and the objection sustained by the coui’t. Whereupon the plaintiff suffered a nonsuit.
    At a subsequent period of the term, the plaintiff moved to' set aside the nonsuit, and for a new trial, on the ground that the court mistook the law in rejecting the evidence offered by the plaintiff.
    Goodard and Converse, for plaintiff.
    James, Stanbery and Yan Trump, for defendants.
   Judge Hitchcock

delivered the opinion of the court:

The decision of this motion depends upon the construction of section 2 of the act of December 18, 1823, “ dispensing with proof in certain cases.” 2 Chase’s Stat. 1295. This section provides, “ that in all actions where any claim or defense is founded on book accounts of not more than eighteen months’ standing, in which is drawn in question the validity or amount of any such book accounts, the court or justice may, upon the trial of such action, examine the party under oath or affirmation, touching the validity of such account or accounts, which shall be admitted as evidence on the trial, the credibility thereof being left to the jury or ■justice to determine.” It will be remembered that this is not the first statutory provision in this state upon the subject. Section 6 of the “act for the prevention of frauds and perjuries,” passed February 19, 1810, is in words the same. . 1 Chase’s Stat. 695. , I well recollect that the courts of that day, when this enactment was first made, held that it only authorized the party to testify that the book introduced was his book of accounts, and that he-could not by his own oath verify any particular item of charge. This construction wás adopted on the ground that the statutory provision was an innovation upon the principles of the common-law, and ought not to be extended beyond its letter, and from an apprehension that a statute made for the prevention of frauds and perjuries, would, by any other construction, have a tendency to-increase perjuries.

This strict construction was not, however, adhered to for any length of time, and in the course of practice upon the circuit, the following general principles have obtained:

1. If the items charged are such as generally constitute the ^subject of book account, the quantity, quality, and delivery of the articles, if goods or chattels, or the services performed, if labor, may be proved by the oath of the party claiming by virtue of the book account. But the book in which the original entries were made must be produced, otherwise the oath of the party will be rejected. If, for instance, there be day-book and ledger, the day-book as well as the ledger must be before the court.

2. Money, especially if of any considerable amount, is not the proper subject of book account; still if, in the course of business, small sums are passing between the parties, these may with propriety be charged on book, and proved in the same manner as the other items of the account.

3. Although the party introducing the book can only testify to the quantity, quality, and delivery of the articles, or to the performance of the services therein’ charged, still in the cross-examination more extensive latitude of inquiry is given.

4. The party testifying, to sustain the charges on his book, can not testify as to the value of the articles charged, or of the labor performed; much less, if there be a specific contract, can he testify to such contract.

Books of deceased persons have sometimes been permitted to go to the jury, in connection with other evidence, and without further proof, as to the books themselves, than that they were in the handwriting of the person making the charges. But this has been done, not in consequence of the statute, but from the necessity of the case, and in accordance with the principle that the handwriting of a clerk in the habit of making charges may be proven after his decease, or when he is without the jurisdiction of the court.

It is insisted, however, by counsel for the plaintiff, that this is an improper construction of the statute, and one which docs not cany out the intention of the legislature. And the position is assumed, that any chai’ges made upon book may' be verified by the oath of the party making such charges. If, however, we apply the ordinary rules of construction to the statute, I apprehend it will be found that the practice adopted under it is substantially correct. In transactions among men, it is an ordinary custom to keep books, in which charges are made for goods and chattels sold, labor performed, or other services rendered. The merchant, the farmer, the mechanic, the professional man, all keep books of account. And in a great proportion of cases, it would be utterly impossible to prove the ^-accuracy of the charges made on these books by disinterested testimony. In consequence of this difficulty, a practice has been prevalent in some of the states to permit parties to testify to their accounts, even where there is no statute to authorize it. Such is believed to be the case to some extent in New York, and to a greater extent'in Pennsylvania. In Connecticut, they have a form of action denominated an action of book debt, and by a statute enacted as early as 1714, and which has been continued to the present time without any material change, the parties are authorized to testify as witnesses. 1 Swift’s System of Con. 166. This statute, however, seems to have been the more recognition of a principle previously adopted in practice. By a statute of Yermont, passed as is believed in 1797, actions upon book account are placed in some respects upon the same footing with the old action of account, and the parties may be examined upon oath.

The difficulty of making proof in such cases was undoubtedly the inducement which induced the legislature of Ohio to enact the provision before referred to in the acts of 1810 and 18'i8. In construing this provision, however, it will not do to extend it beyond the pre-existing mischief intended to be remedied. That mischief was the extreme difficulty, and in many cases, the utter impossibility of proving the quantity, quality, or delivery of articles passing from one person to another upon credit, and which are ordinarily charged upon book. The merchant does not always keep a clerk by whom this proof could be made; the farmer or mechanic rarely, if ever. Hence the necessity of the statute. But when the quantity, quality, and delivery are proven by the party who alone may be supposed to be acquainted with these facts, there is no necessity of going any further with the testimony from this interested source. The price or value can as well be proven by disinterested witnesses.

It could not have been the intention of the legislature to make any change in the business of the country, or to authorize charges to be made upon book for things which are not properly the subject of book accounts; and if any person shall make such charges upon his book, with a view to sustain them by his own oath, it ■can be viewed in no other light than as an attempted fraud upon the law. Money lent or paid is not ordinarily charged upon book. The person lending or paying usually takes a note or receipt. Arj individual, it is true, might be engaged in a business that would, seem to justify such charges; and in such *case-, I am not prepared to say that he might not be examined as a witness. Whether he might or not, it is not now necessary to determine. The case before the court is not one of that character. Here an account was exhibited, consisting of seven separate items, amounting in the whole to $872.50. Of this amount $687.50 was contained in three separate charges for cash. It was proposed to prove this part of the account, and this alone, by the oath of the party. In the opinion of the court, it could not have been the intention of the legislature to admit this kind of testimony in such a case. And we believe that the construction heretofore given the statute upon the circuit is correct, and are not disposed to depart from it.

This'opinion is fortified by the following authorities: 8 Johns. 211; 12 Johns. 462; 1 Yeates, 347; 1 Day, 104.

The motion is overruled, and judgment will be entered for the defendant on the nonsuit.


author: Judge Lane

text:
    John Campbell et al. v. Alexander Watson et al.
    A conveyance in trust may be canceled by a decree in equity, so as to bind the interests of all, though the cestuis qui trusts be not made defendants.

      This is a suit in chancery reserved from the county of Delaware.
    On August 23, 1816, Samuel P. Campbell, then seized of certain lands in Delaware county, conveyed them to Samuel Campbell,. George Davis, and John Chambers, trustees, etc., to hold upon the-following trusts, viz:
    1. To himself for life.
    2. Remainder to the heirs of his body and their right heirs forever.
    3. Remainder to Robert Campbell for life.
    4. Remainder to the heirs of his body, and their right heirs forever.
    5. Remainder in fee, to the children of Samuel Campbell and Catharine Morton.
    6. And with power in Samuel P. Campbell to charge and jointure of $5,000 upon these lands.
    In 1826, Samuel P. Campbell filed his bill in Delaware common pleas, to set, aside this deed of trust on account of fraud., The-three trustees only were made defendants. In May, 1827, a final decree was passed, finding the fraud, annulling the deed, and directing a reconveyance by the trustees. The deaths of ^'Samuel P. Campbell and Robert Campbell have occurred since the decree, both unmarried and without issue. This bill, is filed by the children of Samuel Campbell and Catharine his wife, formerly Catharine Morton, disclosing the above facts, and demanding the remainder in fee, lastly created by the above deed of trust.
    General demurrer by defendants.
    Wilcox, for demurrant:
    The proceedings in the former case have extinguished the-plaintiff’s interests.
    The trustees and the first tenant in tail were'parties to the decree. The rule is thus laid down in England:
    “ Where real property in question is subject to an entail, it is generally sufficient to make the first person in being, in whom an estate of inheritance is vested, a party with those claiming prior-interests, omitting those who may claim in remainder or reversion after such vested estate of inheritance; and a decree against the person having lhat estate of inheritance will bind those in re» mainder or reversion.” Mit. PI. 174, 231.
    Gifford v. Hart, 1 Sch. & Lef. 386, is a leading case and much in, point. A decree had been taken against the first tenant in tail, under which the lands had been sold by a master. Neither the’ trustees nor any person entitled in remainder, were made parties. The court held the' remainder-men bound. This is the language-of the chancellor:
    “ It has been repeatedly determined, that if there be tenant for-life, remainder to his first son in tail, remainder over, and he is-brought before the court before he has issue, the contingent remainder-men are barred ; this is now considered the settled rule-of courts of equity and of necessity.”
    The same rule is laid down in 2 Jac. & Walk. 133; 1 Atk. 590.
    It seems to be a rule in England that a decree against a. prior tenant in tail binding the lands entailed, can not bo disturbed by a subsequent remainder-man, except on appeal, or by bill of review> The remainder-man seems to be regarded as privy in estate, and therefore, can not sustain an original bill. 1 Sch. & Lef. 386; Mit. Pl. 173, 230, 92, 137.
    This bill, therefore, can not be sustained. The objection well *lies, because the complainants have themselves set forth the decree in their bill.
    W. A. Adams and H. Stanbery, for plaintiffs:
    The principle that a judgment against the first tenant in tail binds the remainder does not apply. Even admitting this was a-direct entailment, and Samuel P. Campbell the first donee in tail, be was not before the court as a party in the attitude to give the principle effect; he was not a party defendant representing or protecting interests in remainder!- It was a suit between trustees- and one of the cestuis que trust; other cestuis que trust, not parties, are not bound.
    They cite Edwards on Parties in Chancery, 161, secs. 48-50; Hopkins v. Bear and Hopkins, 1 Atk. 590; Kirk v. Clark, Rec. Ch. 275; Calverly v. Phillips, 6 Mad. 229; 2 Chitty’s Eq. Dig. 1313, tit. viii; Mit. Eq. Pl. 135, 139, 145, 146.
   Judge Lane

pronounced the opinion of the court:

As Samuel P. Campbell was unmarried at the execution of the deed of trust, the rights created under it consisted, if it took effect, in a legal estate, in fee to the trustees, and a vested equitablo-estate in Samuel P. Campbell, with successive contingent equitable-remainders to the heirs of his body, to Robert Campbell, and the -heirs of his body, and to certain children of Samuel Campbell.

Equitable estates in land are subjected, in courts of equity, to the same rules which govern legal estates in courts of law. 2 Bl. Com. 337; 4 Kent’s Com. 302. The plaintiffs estate created by this deed, being a contingent remainder, depended upon the trustees’ legal fee, and upon the equitable freehold of Samuel P. Campbell, as a particular estate, and it was liable to be defeated by any act which should destroy these estates before the happening ol the contingency. “ Wherever there is an estate for life, and contingent estates depending on it, the tenant for life may not only by death, but by surrender, alienation, and other methods) determine his own estate before the remainder vests, the consequence of which is, he utterly defeats them all.” 2 Bl. Com. 171-A feoffment with lively, in many cases, may work this effect, but the chief instrument is a recovery, whose great value, as a corn-mon assurance, arises from its jiower to defeat ^remainders. The doctrine by which it ojierates is, that a recovery of a judg ment in a real action against a tenant to the precipe seized of the freehold, besides him, all contingent estates depending on his estate, and all vested remainders where owners are made parties by aid prayer. 2 Bl. Com. 171, 362; Co. Lit. 362; 8 Ohio, 106.

A decree operates upon an estate in equity.


author: Judge Grimke

text:
    E. H. Flint and Micah P. Flint v. The Ohio Insurance Company.
    Where there is a special understanding between an insurance office and the agent of the insured, that no insurance should be considered as effected on behalf of himself or others for whom he might act, until the premium was paid or secured, no treaty or agreement for insurance where this requisite is not performed or dispensed with, can be set up in equity to charge the office.
    This case came from the county of Hamilton.
    The bill alleges that the complainants were the owners of $7,000 worth of books, in the custody of William D. Jones, to be by him forwarded to complainants, at Alexandria, Louisiana.

      That they directed Jones to have the goods insured.
    That Jones, on November 10,1831, by his clerk, called upon the-officers of defendants, of which Jones was director, and made a written proposal to insure said goods, as follows-:
    “Insurance is wanted on twenty-one boxes and three stoves, shipped on board the steamboat Grenadier to Natchez, to be forwarded from thence to Alexandria, Louisiana. Amount to be insured, $1,200. Signed lor E. II. Flint & Go., W. D. Jones.”
    The president replied, that they would take the risk at one and a half per cent, to Alexandria, which was agreed to, and a policy-was actually made out, signed by the president of the company, and laid aside for said Jones. The policy was dated November 10,1831, and by the terms thereof, insured plaintiff’s goods againstr etc., in ordinary form.
    The contract was made and fully completed in equity, by the agreement of the parties, but not so as to enable plaintiffs to sustain an action at law; because the policy made out, signed, etc., by mistake, describes the property as belonging to E. II. Flint only. The goods were shipped on board, on November 10, 1831, to the-value of $7,200.
    The bill then avers the sailing of the boat, with the goods on-board, on November 11th, and afterward avers a total *loss by a peril of the river, in the same month; avers complainants made, and exhibited to the defendants, full proof of their property in the goods, of the loss thereof, and were ready, and offered to pro- - duce such lurther proof as defendants should reasonably require; but de/endants refused to pay the sum insured, and refused to receive any further proof, or to acknowledge any liability, on account of said contract of insurance, or loss, pretending they were-not liable, because they had not received payment of the premium.
    The bill charges, that the company, at the time of entering into the contract, did not insist, nor were they uniformly in the habit-of insisting, upon the immediate payment of the premium, but, on the contrary, defendants, and other insurance companies, were,, and are, in the habit ol taking the promissory notes of the insured and their agents, and are in the habit of giving credit to commission merchants and brokers for the amount duo for premiums on insurances. William D. Jones was in the habit of dealing with the defendants on these terms, and did, in fact, give defendants-•credit on his books for the amount of the premium, it the time ■of effecting the insurance.
    No discovery is sought.
    Prayer is, that defendants be decreed to pay the amount insured, •or if that can not be done, that the defendants be decreed to deliver a policy according to the agreement.
    The defendant filed an answer, although not called upon by the bill to do so.
    The defendant requires proof of ownership and kind of property destroyed.
    It is admitted that a proposition was made in the books, at their •office in Cincinnati, by Samuel McCormick, in name of William D. Jones, for E. H. Flint & Co., November 11, 1834, in sub•stance as stated in the bill.
    That the effect of this proposition, according to the usage and ■custom of the office, as understood by Jones, is to inquire at what rate a risk would be taken.
    To this proposition a memorandum was made on the answering book, signifying that the office would take the risk at one and a half per cent, premium; but they deny that Jones or McCormick ■ever assented or agreed to said answer, or accepted the insurance, -or paid the premium, or agreed to pay it, until alter information was received of the loss.
    *They deny that they ever made insurance on the goods in .any way, or on any terms.
    It is admitted a policy was filled up in the office by a young man, not a clerk in the office, who occasionally assisted the secretary in writing, dated November 10, 1834, predicated upon said proposition and answers, and prepared to be ready for delivery in case it should be called for, and the premium paid. But said policy was not valid, nor intended to be any evidence of insurance made, until the premium should be paid, and the same delivered ; .and that the policy was not, in fact, delivered.
    It is alleged that it is customary for policies to be made out, so that they may be ready when called for.
    Defendants do not admit the goods were shipped, nor the loss ■of them ; nor do they admit notice, nor that preliminary proof was furnished of the loss, nor that the premium was ever tendered.
    They insist that they have a standing rule, and it has been the «uniform usage, that risk should not be commenced until the policy was delivered, or an acceptance written and signed on the answering book, and the premium actually paid, or satisfactorily secured, as complainant, and Jones and McCormick, at the time of making the proposition, well knew.
    It was a special rule of the office, that no risk should be considered as taken, before a policy was delivered, until such written acceptance was entered on the answering book; a copy of this rule has been kept in the office, posted up, and risks are not considered as taken until the premium is paid, or written acceptance or policy delivered. That Jones has always acted on this rule, being always in the habit of writing an acceptance.
    That in this case, no acceptance was made, cither written or verbal, by Jones, or any other person.
    That it is the general rule of the office, to require payment of the premium, or a note therefor, at the time insurance is made; but the secretary of the office has 'a private understanding with some confidential mercantile houses, that he shall keep an account, .and call on them when he has occasion for it; but in these cases the same written acceptance, or the delivery of the policy, is uniformly required.
    That such an understanding existed with Jones prior to 1822 when a dispute arose between Jones and defendant, and from that period an express understanding was had, that with Jones, *no risk would be considered as taken, on his application for himself or others, until he had actually paid the premium, although a regular acceptance should be entered; and since then, business has been so conducted with Jones, he always paying .the premium at the time the contract of insurance was closed, and none being closed until such insurance was paid.
    Proofs were taken in the cage, which are sufficiently noticed in. the opinion of the court. The result of these proofs constituted the material question to be decided.
    Storer and Fox, for complainant.
    Wright and Walker, and Wright and Hodges, for defendant.
   Judge Grimke

delivered the opinion of the court:

This was a bill in chancery, filed for the purpose of perfecting an alleged agreement to insure. The premium was not paid; the policy, though made out, was never delivered; and it describes the goods as the property of E. H. Flint only.

There can be no doubt, that if an agreement has been made, which is binding upon the parties, a court of equity will decree a-policy to be executed and delivered. And it is equally certain, that where it is proved that a policy has, by mistake, been reduced to writing in terms which are not conformable to the real intention of the parties, that the court will compel the policy to be rectified. This, which was once considered a doubtful proposition, has been completely settled since the case of Henkle v. Ray. Exc. Ins. Co., 1 Ves. sen. 317, and the principle has been illustrated and enforced, by repeated decisions in England and the United States. The view which we have taken of the case, however, will render it unnecessary to consider whether the facts disclosed will enable the court to grant relief on this ground.

It is proved to have been a rule in this office, not to consider the insurance effected until the premium was paid or the policy delivered, or until a written acceptance was entered on the answering books; and it is also stated in the evidence, that a. copy of this rule was constantly kept posted up in the office. The legality of these special rules has boon questioned ; but I know of no principle which forbids underwriters from limiting and qualifying the general responsibility which would otherwise ^attach to them. The case has been likened to that of common carriers. But there is, in reality, the greatest imaginable difference between the two cases. A common carrier is under a common law obligation to carry goods; and the law has not»therefore, given him a general permission to exempt himself from responsibility. But the rule, even'with regard to them, is very different from what is supposed. The indulgence is afforded them, of qualifying their general liability by limitations not inconsistent with their common law obligation. Formerly a carrier might, where he had just ground for doing so, decline altogether to take goods; or, ii he consented to accept them, he might protect himself by the special terms upon which he agreed to receive them. Bodenham v. Bennett, 4 Price, 34. And the receipt of goods, upon such conditions, was considered as a special acceptance, and was usually made in each particular case. But, in recent times, a mode has arisen of effecting the same object, by means of a general notice, intimating to the public the terms upon which the carrier consents to take goods. The legality of theselioticos, in the case of common carriers, and the policy of adopfcing them, have been frequently questioned, and their introduction has been regretted by many eminent and learned persons, 4 Camp. 41; 8 Taunt. 146; but they are now established to be legal, and are constantly received and acted upon in courts of justice.

In Nicholson v. Willan, 5 East, 507, an objection to their validity came formerly before the court, and Lord Ellenborough observed that “ inasmuch as carriers were deemed fully competent to limit their own responsibility in all cases by special contract, and as there is no case in the books in which the right of a carrier thus to-limit, by special contract, his own responsibility, has ever been, by express decision, denied, we can not do otherwise than sustain such right, however liable to abuse it may be.”

Nothing is more common than to post up rules (as was done by these defendants) for the purpose of giving information to the public. It is said that the notice should be fixed in some conspicuous part, that persons delivering goods may have ample means of seeing the terms on which the business is conducted, 2 Camp. 415; 3 Camp. 28 ; and there does not appear to be any objection on this ground to the notice in this instance.

Admitting, therefore, as a general rule, that the agreement to insure is complete, although the premium has not been paid, yet that rule has been varied by the notice in this case, and by the ^particular terms upon which the underwriters agreed to insure. But I apprehend that no case can be found in the English books during the last fifty years, in which the premium has not been paid by the insured, and yet the contract considered complete, either at law or in equity. The actual state of the law in England absolutely forbids that this should be the case. By statute, the premium is required to be inserted in the policy, and the acknowledgment contained in the policy of the receipt of the premium by the insurer is conclusive as between him and the insured, except in a case of fraud. The case is not like a deed of conveyance, where, although the receipt of the consideration money is acknowledged in the deed, an action may be brought to recover it, if it has not been really paid. The cases which are found in the books, where actions have been brought to recover the premium, are never against the insured, but against the broker. As between the underwriters and the insured, the acknowledgment in the policy stands in the place of the actual payment of the money, and is conclusive evidence of that fact. The former are, in the absence of any fraud, precluded from recovering it against the insured. 1 Camp. 532.

It is, I imagine, in consequence of this state of tho law, in Great Britain, that the insurance offices in the United States have generally adopted the practice of framing particular rules, for the conduct of their business, and as a guide to those who transact business with them. Tho policies in the United States are framed after the model of those in England; they generally acknowledge the reeoipt of the premium, although we have no statute like the British requiring such a clause to be inserted, and drawing after it the consequences which I have mentioned.

The case of Perkins v. Wash. Ins. Co., 4 Com. 645, has been referred to by the complainant’s counsel; and yet it is impossible not to see that it is very strong authority on behalf ol the defendants. For although the letters from the underwriters in New York to their agent in Georgia express that the policy should take effect .from the time the premium is paid and received at New York, yet rthe company, in their answer, admit that, they sent printed proposals to him at Savannah, in which the words “and received at .New York,” were left out. These proposals were actually hung up in the office, and the premium had been paid to the agent, who was quoad hoc, the insurer; and it was very naturally decided that these proposals should govern the contract. Tho agreement to insure was considered complete *in equity, because the premium had been received in compliance with the proposals, and ¡there appears to have been no question of the right of the company or their agent to frame particular rules for the conduct of their business.

It was, then, a rule in this office not to consider the insurance ■ effected, until the premium was paid, or the policy delivered, or until a written acceptance was entered on the books; and not one .of these conditions has been complied with.

But there are other circumstances which show that the complainants are not entitled to relief. The deposition of McCormick proves that in consequence of a previous misunderstanding between Jones (the agent) and the company, the former was particularly notified that no insurance should be considered as effected, ■whether he acted for himself or on behalf of others, until the ¡premium was actually paid.

The complainants have¡not complied with the general rules of the office, nor with the particular agreement between their agent and the defendants; the contract to insure was not completed in equity, and the complainants are not entitled to relief.


author: Judge Wood

text:
    John G. Remington v. Benjamin Harrington.
    In motions for a new trial, points not stated in the motion are not open fol discussion in the court in bank.
    "Where notice to an indorser is the question in issue, the facts of the res gestae may properly be given in evidence, though no one proves the actual fact of notice, separate from its connection with others.
    Where a variety of facts are given in evidence, tending to prove notice to cha'rge an indorser, the court should not set aside the verdict upon mere difference of opinion with the jury.
    This case was submitted to the jury, on the last circuit, in the county of Cuyahoga, and reserved for decision in this court, on a motion filed by the defendant’s counsel for a new trial. The action was founded on a negotiable note for the sum of $800, payable six months after date, to the order of the defendant, at the Bank of Cleveland, signed by Luke Ripley, and by the defendant indorsed to the plaintiff. The defendant plead the general issue, and gave notice of set off in the usual form.
    On the trial, the plaintiff, after having given the note in evidence to the jury, offered other proof, which was objected to by the defendant’s counsel, but admitted by the court, and which was as follows: T. C. Severance testified that he was, at the time, teller in the Bank of Cleveland, and that the note was left at the' bank for collection, before it became due. That, on the last day of grace, it was protested for non-payment, and a written notice thereof made out by the witness and deposited in the post-office of the city of Cleveland, between the hours of four and *six o’clock, in the afternoon of the same day. That the defendant resided at the time in said city, and was the keeper of a public house, midway between the bank and.the post-office; that the" bank, public house, and post-office were on the same street, and on the same side of the street; but the witness did not know whether or not the defendant was at home, when he left the notice at the post-office.
    John Tomlinson, a clerk in the post-office, testified that the defendant rented a box in the post-office, in which were placed, by his direction, all letters and papers which came to the office, directed to the defendant, and other members of his family; and that the contents of the box were called lor daily, or more frequently, by the defendant in person, his barkeepers, servants, or by one Sartwell, a stage agent, boarding with'the defendant; and it was admitted on the trial, by counsel, that all the letters and papers of the defendant, or members of his family, taken from the office by Sartwell, were delivered by him to the defendant, or to some one of his barkeepers. ' It was further admitted, on the trial, that there was, at the time, no penny-post, who distributed letters through the city of Cleveland.
    Luke Ripley, the maker of the note, testified that after the note became due, it was his impression the defendant called on him and requested him to have the note paid.
    On this evidence, the jury found a verdict for the plaintiff, and the defendant’s counsel submitted a motion for a new trial for the reasons as they appear on record:
    1. That the verdict is without evidence.
    2. That it is against the evidence; and,
    3. That it is against the law.
    Payne, Wilson, and Spaulding, for the motion.
    J. C. Wright and S. J. Andrews, against the motion.
   Judge Wood

delivered the opinion of the court, as follows ■

Two questions arise in this case for decision: 1. Was the testimony offered by the plaintiff, objected to by the defendant, and admitted by the court, proper for the consideration of the jury? 2. Was that evidence sufficient to warrant the jury in finding for the plaintiff? The fii-st point is not embraced in the motion, and to the points there made, the discussions of counsel ^should, in ordinary cases, be confined, because they are the only notice to the opposite party of the questions to be raised, and constitute the substratum on which the opinion of the court rests. The objection was made at the trial, and is relied upon in the argument here, that the court erred in the admission of the evidence; and counsel have probably supposed that point was" embraced in their motion, or that it followed, as a corollary, the reasons on file. Such, however, is by no means the fact. But if it were otherwise, the result, in this case, would be the same. "Where the issue is that of due diligence, on the part of the holder of negotiable paper, to enable him to recover of the indorser, there is no exception to the general rule, that all the surrounding facts of a transaction, or, as they are usually termed,, the res gestee, may be submitted to a jury, provided they can be established by competent means, and afford any fair presumption or inference as to the question in dispute.” 1 Stark. Ev. 40. It is no legal objection to the competency of the evidence, that it does not prove the entire issue or is insufficient to warrant a recovery. However inadequate it may be for this purpose, if it tend to demonstrate or make clear the point in controversy, it is competent and must go to the jury.

Baldwin v. State of Ohio, 6 Ohio, 16. The point in dispute was that of notice to the indorser; and it can, we think, hardly be questioned that the proof admitted bore directly on that inquiry and should not have been withheld.

Does the evidence warrant the finding of the jury? This must depend on the fact: 1. Whether due diligence was used to obtain the money of the maker; and, 2. Whether legal notice of its nonpayment was given to the defendant as the indorser. It can not, we think, be successfully controverted that the leaving of a note at the place of payment, for collection, is a sufficient demand on' the maker. Conn v. Gano, Ohio C. 210. Indeed, the right of the plaintiff to recover does not depend upon his making a demand, for a demand need not be averred in the declaration nor proved on the trial. Id. 210, 211. But the sufficiency of the notice to the indorser is very zealously and ably contested. The argument is that the undertaking of the indorseris conditional, and depends on his receiving 'strict notice of' the non-payment of the note by the maker. It is said the time and mode of this notice has been defined with great clearness and precision. That if the indorser resides in another town, notice may be sent by the next day’s post; that when the parties live in the same town, and ^within the circuit of the penny-post, it is sufficient to give notice through the post-office, by letter. But if there be no penny-post, it is said the notice must be personal or by a special messenger. There can be no doubt that the positions assumed aro sustained by a great weight of authority, and may be considered as the well-settled law of this state and others of the confederacy. But if personal notice were given in this case, the law is satisfied and the argument has no application. There is no positive proof of personal notice, but circumstances have been resorted to; they have been spread before the jury, and, from the facts surrounding the transaction, they have presumed personal notice; and we are now called upon to revise this evidence, and to determine, from it, whether the weight of it is with or opposed to the finding of the jury upon this point.

The defendant lived near the post-office; he rented a box; his letters and papers were put into it. This notice, directed to the defendant, was deposited in his.box between four and six o’clock in the afternoon of the last day of grace on the note, and after its protest. The defendant called at the office once a day or more frequently, for his letters, and if sent by Sartwcll they were delivered to his barkeepers or himself. Can this evidence be otherwise than satisfactory that the defendant received personal notice, or that notice was left at his house, in the hands of his agents, on the day of the protest, or on the succeeding day?

It may be supposed that notice on the day after the protest is not in time, as the parties resided in the same town. It was so decided iñ Woodbright v. Brigham, 12 Mass. 403, where the court held that notice in such case should be given to the indorser on the same day on which there was a demand and refusal of payment. But in Langdale v. Trimmer, 15 East, 291, and in Bennett v. Raugh, 2 Taunt. 87, a notice on the day after the demand and refusal was held to be in time; and in Derbyshire v. Parker, 6 East, 3, Mr. Justice Lawrence said that the general rule, collected from all the authorities, with respect to persons living in the same town, seemed to be that the notice should be given by the next day; and to such as live in different places, that it should be sent by the next post. Such is, also, the import of the decision in Carp v. McComb, 1 Johns. Cas. 329. It is there said, without distinction as to the residence of the parties, that although the notice of nonpayment may be given on the day of the demand, it is earlier than is required.

In the Hartford Bank v. Stedman, 3 Conn., it is laid down *as a general rulé, that the holder of an inland bill, or note, need not send notice of non-payment until the day after its dishonor. The same was ruled in Lindenberger v. Beall, 6 Wheat. 104. In 12 Massachusetts, the point, as to the time of the notice, could not have been before the court, where the parties resided in the same town, for it is stated in the report they lived a full day’s journey from each other — the plaintiff residing in Hartford, where the note was payable, and the indorser in Northampton. That case can not, therefore, be considered as authority. If notice, then, in the case at bar might have been given on the day of the demand, and it would not have been too early, or on the subsequent day, and it would not have been too late, and if notice must be personal, or by special messenger, left at the defendant’s house, we nevertheless can see no deficiency in the evidence to meet the requisitions of the rule. If notice were necessary, on the day of tho demand, this case would fail within the range of the observations of Lord Ellenborough, in Lawson et al., assignees, v. Sherwood, 1 Stark. 314. The witness stated, that either two or three days, after the dishonor of the bill, notice was given. Notice in two days was in time, but on the third day, too late. His lordship remarked, the witness says two or throe days, but the third would be too late? It lies on the plaintiff to show notice in due time, and I can not go upon probable evidence, without positive proof. The evidence left it as probable, that the notice was on the third as on the second day, and the court could not infer it was on one in preference to the other. The manner in which it is said positive evidence must be given has led to the impression, that proof of a higher order, or more positive character, must but be given, to fix notice on the defendant than to prove any other fact. Such is not the law, nor did the court design to be so understood, but only that there should be positive proof of certain facts, from which the interference of notice might be reasonably inferred. In the case at bar, like the one in Starkie, it is doubtful whether notice was received by the defendant on the day of the demand, or on the subsequent day, but unlike that case, notice on either day is sufficient. „

We repeat, the evidence of the witnesses, and the admissions made upon the trial, were amply sufficient to wax-rant the jury in finding for the plaintiff, and judgment must be entered on the verdict.


author: Judge Hitchcock:

text:
    *Lessee of the Heirs of Thomas J. McArthur v. Charles P. Gallaher.
    Where lands were located as early as 1787, in the name of an assignee, and the original owner set up no claim until 1814, when he assigned the warrant, as unlocated, to a surveyor or speculator, who located it in 1823, an original assignment may he presumed by a jury, in the absence of all explanation.
    Reserved in the county of Clinton.
    This is an action of ejectment for a tract of land in Clinton county. The cause was submitted to a jury at the last term of the court in that county, and, by consent, a verdict taken for the plaintiff, subject to the opinion of the court on the questions of law arising in the case.
    After verdict, the defendant moved for a new trial, on the ground that the verdict was against law and evidence, and that the court erred in permitting the patent under which the lessors of the plaintiff claimed title to go in evidence to the jury.
    On the trial of the case, a patent was introduced by the plaintiff, bearing date November 12, 1823, granting the land in controversy to Thomas J. McArthur, and describing it as being survey No. 12,352. The land is situated in the Virginia military district, and within the county of Clinton. It was admitted that the lessors of the plaintiff were the heirs of McArthur, and that the defendant was in possession of the land covered by the patent. Here the plaintiff closed his testimony in chief.
    The defendant gave in evidence a certified copy of entry No. 729. This entry was made on August 8, 1787, in the name of John Tench, assignee, on a part of military warrant No. 2,377, and was surveyed on March 7, 1794, and recorded Juno 24, 1796. It was admitted by the plaintiff that the land in controversy was included within the survey. .
    The defendant further gave in evidence a «certificate from the county auditor of Clinton couney, dated December 12,1825, stating that on that day 43 acres of land, part of entry 729, in the name of John Tench, had been sold for taxes to Josephus Reed and Cyrus Reed, and which certificate had been assigned by the Reeds to the defendant.
    Also, a certificate from the auditor of the same county, bearing date December 31, 1827, stating that on that day he had sold to William Rhenemas and Joseph Reed 267 acres of the same entry for taxes, which certificata was also assigned to the defendant.
    Also, a deed from A. J. Williams, collector of taxes for the sixth collection district, dated September. 26, 1811, purporting to ^convey to James Gallaher, by metes and bounds, 300 acres of land, out of said entry No. 729. This deed was in pursuance of a previous sale for taxes, and refers to another sale of 500 acres from the same entry, sold in the same manner.
    Also, a deed from the auditor of Clinton county to William Rhenemas, dated September 11, 1823, purporting to convey 45 acres out of the same survey, sold for the taxes of 1821 and 1822.
    Without further proof the defendant claimed title under these certificates and deeds, and rested his case.
    The plaintiff then introduced a statement from Henry Massie, which was agreed to be evidence, proving certain practices and modes of doing business in the principal surveyor’s office of the Virginia military district.
    Also, the deposition of Allen Latham, surveyor for the Virginia military district in the State of Ohio. Latham refers to certain documents attached to his deposition, and verifies them to be true copies from the books in his office. He states that he has been acquainted with the office since 1819, has probably examined every paper therein, and has never seen any assignment of warrant No, 2,377 to John Tench. That it was the general opinion of locators that there had been no such assignment, and he had been told by Col. Anderson, former surveyor, that none such had been filed with him in the office.
    1. The documents referred to contain a copy of military warrant No. 2,377, issued to John Trezvant, for 6,000 acres of land, which appears to have been located in five separate entries of 1,200 acres each, in the name of John Tench, assignee. These locations were made in 1787.
    2. An assignment, on a separate paper, from Trezvant- to Cadwallader Wallace, of this warrant. This assignment purports to have been made for a valuable consideration, on September '14, 1814; but the amount of consideration is not named.
    3. A certificate by Wallace, that the purchase by him made of Trezvant was on the joint account of himself and John Wood-bridge.

      4. An assignment by Woodbridge of his interest in the warrant to Thomas J. McArthur. This assignment bears date May 6, 1023.
    Another of these documents shows that on October 18, 1823, Thomas J. McArthur, assignee, entered 1,200 acres, a part of this warrant, which was surveyed on the 22nd day of the same month, *and covers precisely the same land included in the entry and survey of Tench, No. 729. The number of this entry of McArthur is 12,352, and was the survey upon which the patent given in evidence by the plaintiff, and under which his lessors claim title, was issued.
    The case was argued by Swan for the’defendant in favor of the motion for a new trial, and by Leonard, contra.
    For the defendant, it was insisted that the patent under which the lessors of the plaintiffs claim title was improperly admitted in evidence, being void under the act of 1807, prohibiting surveys upon lands previously entered and surveyed. It was urged that the survey of Tench was a good and subsisting survey, on October 18, 1823, when the plaintiff’s entry was made, and that although there was no positive proof of the assignment of Trezvant’s warrant to Tench, yet such assignmeht, under the circumstances in the case, ought to be presumed ; at least, the circumstances were such as to throw the burden upon the plaintiff to prove that there was no such assignment. It was further insisted, that the defendant, being in possession, might take advantage of the act of 1807, because in this, as in every other ease of ejectment, the plaintiff must recover upon the strength of his own title. At any rate he must show a better right to possess the property than the defendant; but if his patent was void as against the law, he had no right of possession whatever. It was further insisted, that in the absence of proof to the' contrary, it was right to presume that the defendant had been in possession since 1811, the date of the tax deed from Williams to Gailaher.
    The following authorities were cited: 1 Pet. 628; 6 Ib. 666 ; 14 Mass. 261; 9 Cowen, 110; 7 Wheat. 151; 19 Johns. 347; 3 East, 192 ; 8 Ohio, 135; 2 Stark. Ev. 686, 687; 4 Cranch, 431; 5 Ib. 242; 9 Ib. 98; 5 Wheat. 305; 7 Ib. 123, 151; 2 Stark. Ev. 663 ; 1 Cowp. 214, 215; 7 Cranch, 59; Adams, tit. Ej. 29, 30; 7 Wheat. 59; 4 Cowen, 602 ; 1 Mass. 251; 4 Burr. 2487; 16 Johns. 200; 9 Cowen, 86; 1 Marsh. 251.

      For the plaintiff, it was insisted that the act of Congress of 1807 was only intended to protect those who had a legal subsisting interest in a pre-existing survey, and could not-by construction be extended to the protection of mero intruders, or of those who had no interest. That although as between Tench or any one claiming *under, or through him and the lessors of the plaintiff, there might be a question as to the validity of the plaintiff’s title, still no such question could arise here, as the defendant does not show any title in himself, nor any regular sale for taxes. It vas urged further, that the entry and survey of Tench was absolutely void, and did not appropriate the land included within, because Tench was not the assignee of Trezvant’s warrant, and had no interest in it; and the entry and survey being void, atjy subsequent locator might locate the same land. There is no evidence going directly to prove any assignment, but there is negative evidence conducing to prove the contrary. It was admitted, that in a proper case an assignment might be presumed, but insisted that the circumstances of this case were not such as to'justify such presumption. Authorities cited: 3 Ohio, 232; 1 Pet. 628; 6 Pet. 666 ; 7 Wheat. 122.
   Opinion of the court, by

Judge Hitchcock:

The defense relied upon in this case is, that the plaintiff shows no title, inasmuch as the patent under which he claims is void under the act of Congress of March 2, 1807. This act was passed for the purpose of extending the time for locating Virginia military warrants, etc., between the Little Miami and Scioto rivers; and section 1 contains the following proviso: “That no locations as aforesaid, within the above-mentioned tract, after the passing of this act, shall be made on tracts of land for which patents had been previously issued, or which had been previously surveyed; and any patent which may nevertheless be obtained for land located contrary to the provisions of this section, shall be considered as null and void.” 4 U. S. L. 92; Swan’s L. 134.

This same provision has been contained in all the laws since enacted, for the purpose of giving further time to make locations upon these lands. And no person acquainted with the subject can for one moment doubt the wisdom of the enactment. Perhaps no one thing has done more to put a stop to litigation within the district, and to quiet the titles of the inhabitants. It is a beneficial law, and should be construed liberally to effect the object intended. It was not intended alone to settle controversies between locators and speculators — these can usually take care of themselves — but to give peace to the citizens.

The great inquiry is, whether this case is within the provisions of this law. That the land entered and surveyed by McArthur, *and upon which survey his patent was issued, had been previously entered'and surveyed by Tench, there can be no doubt. But it is objected by the plaintiff, that admitting the survey of Tench to be a good, valid, and subsisting survey, yet this defendant can not take advantage of the law of 1807, to protect himself, because he does not connect himself with the title of Tench, or show that ho is vested with any interest in the survey. To sustain this position, the case of Holt’s Heirs v. Hamphill’s Heirs, 3 Ohio, 232, is cited. It is claimed that the certificates of tax sales, and the deeds introduced by the defendant,^ do not show any title in him, nor in any way connect him with the Tench survey. If this were a controversy between Tench or any other person claiming under him, as heir or assignee, this position would be conclusive. Although these papers show that the proprietor of this survey, like many other locators in the district at an early period, was negligent, grossly negligent, in the payment of taxes, still they do not contain all the evidence requisite to prove that the land was properly sold. And in the case of Holt’s Heirs v. Hamphill’s Heirs, it was held that such proof was necessary before a tax claimant could so far connect himself with a survey as to be protected under the act of 1807, But that case was entirely different from the one now before the court. The entry of- Boyer, in whose name the land had been taxed, was withdrawn before the entry and survey of Holt. So that, at the time Holt’s location was made, the lands included within it were vacant, and the patent was not affected by the law of 1807. And the court clearly intimate the opinion that had the tax sale been valid, it would have been beyond the power of Boyer or those claiming under him to destroy the rights of the delendants by withdrawing the entry. But as it was not shown to be legal, it was held that the supposed tax purchasers had no right to contest the withdrawal and the rights of the plaintiff under his patent. In the case under consideration, there is no pretense that the entry of Tench has been withdrawn, either by himself or any person claiming under him.

But this argument is like an instrument with two edges. It may be used either way. What is it? The lessors of the plaintiff say to the defendant, although John Tench might with propriety question our title, although as to him we admit it would be void, still you have no right to contest it, because you do not properly connect-yourself with Tench, by showing that the tax sales under which you claim were legal and in conformity with *the statute. Might not the defendant with propriety reply: “What business have you to examine the legality of my tax title? That is a question between John Tench and myself. By your own admissions your pretended title is void by a law of the United States, and it is not for you to say my tax title is irregular and void.”

The defendant is in possession of-this land, and in possession under claim of title. Possession itself is so far evidence of title, that it will be protected until a better title is produced. The general rule is thát a plaintiff in ejectment must recover by the strength of his own title. He must show a right of possession, at least a superior right to that of a defendant. In the case under consideration the plaintiff introduces a patent, and the proofs in the case show, that the entry and survey upon which this patent was predicated, were made upon land which had been previously surveyed. A law of Congress says, that a patent issued under such circumstances “ shall be considered as null and void." Such patent, if “null and void" conveys no title, and when a positive law of Congress says it shall be “ null and void," this court can not with propriety say it is good and available.

It is urged, however, by the counsel for plaintiff, that the survey of Tench was void and did not appropriate the land included within it. If so, it follows that the location of McArthur was properly made, and the plaintiff is entitled to judgment.

The reason assigned why the survey of Tench is void is, that Tench bad no assignment of the Trezvant warrant. Whether he had such assignment is the great question in the case, and the one upon which it must be decided.

There is no positive evidence of such assignment. On the contrary, Allen Latham states that he has searched the office of the principal surveyor and can find none. This is the place where it should have been deposited. He states further that it has been long the opinion of locators that there was no assignment. This opinion may possibly be entitled to some weight; but really it is difficult to see upon what principle it can bo received as evidence. If the opinions of locators on these subjects were always the same, it might do to rely upon them; but as a matter of fact, we know that they are subject to change, and some have been so uncharitable as to suppose that they varied with their respective interests. Latham states further, that Colonel Anderson, former principal surveyor, had told him that no such assignment had been deposited in the office.

*This being the negative testimony, and there being no positive testimony in the case proving an assignment, the plaintiff must succeed, unless the facts and circumstances are such as to warrant the court in presuming an assignment. It must be remembered that no particular.mode of assigning military land warrants was prescribed by law. It might be done by an indorsement upon the warrant itself, or on a separate paper. Nor was there anything in the law requiring it to be done even in writing. That mode was adopted most convenient to the parties. 7 Wheat. 122. Courts will, under circumstances sufficiently strong, presume a grant or a deed, and there is no impropriety in a proper case made in presuming the assignment, and such presumption was made in the case of Bouldin v. Massie’s Heirs, 7 Wheat. 122; and in that case the subject is very fully and at large discussed.

What, then, are the circumstances of this case? In the year 1787, an entry is made on a part of the Trozvant warrant in the name of Tench, assignee. This entry was surveyed March 7,1794, and recorded June 24, 1796. All this transpired, it is believed, very soon after the office of the principal surveyor had been established, and probably before the business of that office was reduced to a system. Would the principal surveyor have permitted this, if there was no evidence of assignment produced to him? It will be remembered that he did not say to the witness, Latham, that the warrant was not assigned to Tench, but that no assignment had been deposited in the office. Trezvant’s warrant, No. 2,377, authorized the holder to locate 6,000 acres of land. In 1787, not only entry No. 729, of 1,200 acres, was made on this warrant, in the name of John Tench, assignee, but four other entries on the same warrant and in the same manner, of 1,200 acres each. From this time until 1814, a period of more than twenty years, we do not find Trezvant, the original owner of this warrant, making any inquiry after his warrant, or his land. Is it thus, that a man having a claim to 6,000 acres of land, like that in the military district, usually conducts with respect to it? Or rather, is it thus, that a man usually neglects attending to his rights and his property? Trezvant was not in a foreign country; he was a resident of the adjoining State of Yirginia. But even in 1814, Trezvant did not inquire after this land. But Cadwallader Wallace, a locator of lands in the district, visits him in Yirginia, and procures *frorn him an assignment of the warrant, not upon the warrant itself, for that was in the surveyor’s office, but upon a separate paper. This assignment is expressed to be for value received or for a valuable consideration, but the amount is not named. If it had been, some light might have been thrown upon the subject. At least, we should have known the estimate which Trezvant put upon 6,000 acres of Ohio land.

Although the assignment was made in 1814, th-e assignees make no location until 1823, another period of almost ten years. They then wait fourteen years longer, until 1837, before they attempt to enforce their claim by suit. At this time, Colonel Anderson, the principal surveyor, and most others who may be supposed to have been intimately acquainted with these transactions, are dead, and their testimony can not be had. Taking all these circumstances together, and it seems to- me to be a strong case in which to presume an assignment, and such is the opinion of the court.

Tench, then, having an assignment of this warrant, and having procured the entry and survey of Ho. 729 to be made, and that being a subsisting survey at the time of the entry and survey of the plaintiff’s lessors, their patent is void, and they have no title to the premises in controversy.

A new trial will be granted, costs to abide the event of the suit.


author: Lane, J.,

text:
    The Bank of Utica v. Joseph Card.
    A discharge under the New York insolvent laws must be made by an officer having the qualification of a counselor at law, or it is invalid. '
    Debt upon a judgment rendered in the State of New York, in 1826, reserved in Cuyahoga county.
    The original suit was founded on a note given by the defendant, then, and for some time after, a citizen of New York, within which the corporation plaintiff exists. The defendant’s plea in bar sets up a discharge under the insolvent law of New Yerk, reciting particularly the proceedings, from which it appears that; Card, then a citizen of Ohio, being in Buffalo on business, was arrested on civil process, and filed his petition for discharge under the insolvent law before Burnett, first judge of Erie county court, of the degree of counselor at law, who assigned a day for hearing, but being absent from the county *on that day, one of
    the judges of the county court appeared, heard the application, and granted the discharge, etc. The replication admits the proceedings and discharge, but allege they are coram, non judice and void, because the judge of the county court, who ordered the discharge, was not of the degree of counselor at law.
    To this replication there is a general demurrer and joinder. The only question raised is, whether the judge of the county court, not of the degree of counselor at law, had authority to hear the application and grant a discharge?
    Andrews and Foote, for the demurrant:
    Cited 2 Rev. St. N. Y. 34, which provides that application for discharge, etc., “may be made to circuit judges, supreme courts and commissioners, first judges of county courts, and any other judge of said court of the degree of counselor at law, in the supreme court, and also to any county judge in said article specified.” Also to the same law, articles 5 and 7, which provides that in case of the death, absence, etc., of any such officer, after proceedings have been commenced, the said proceedings may be continued by his successor in office, or by any other officer residing in the same county, who might have instituted such proceedings, in the same manner, and with the like effect, as if originally commenced before him. They insisted that these provisions, one expressly authorizing such proceedings as set forth in the plea, to be instituted belore a county judge, whether of the degree of counselor at law or not, and the other giving the same effect to proceedings continued by him, as would be given to those originally commenced before him, gave validity to the discharge pleaded.
    R. Hitchcock, for plaintiff:
    Contended that, by the whole act taken together, it will appear obvious that no power to discharge the petitioning debtor was intended to be conferred upon any single judge, unless of the degree of counselor at law; and that the act did not embrace the case of a citizen of any other state than New York.
   Lane, J.,

delivered the opinion of the court:

- The only point arising in this case, not before decided in 7 Ohio, *2 pt. 170, is, whether a discharge under the New York law is valid, if granted by a judge who is not a counselor at law? This question is readily decided by inspection of the statute. Article 7 provides, that applications for the discharge of an insolvent .debtor from his debts, under article 3, may be made to either of the following officers: Circuit judges, supreme court commissioners, first judges of county courts, or any other judge of said courts of the degree of counselor at law. Section 4 provides for the institution of these proceedings in another county, where there is no such officer in the county of the insolvent’s residence. Section 5 makes provision that in case of death, removal, or disability of the officer before whom proceedings were commenced they may be continued under any other officer who might have originally instituted the proceedings. 7 N. Y. Rev. Stat. 34. Noth, ing, then, can be more evident, than that no officer not possessing the qualification of the degree of counselor has any jurisdiction to act in these proceedings; so that a discharge, like the one-pleaded, granted by a judge not possessing this character, is void.

The demurrer to the replication is overruled. Judgment for plaintiff.


text:
    S. and E. W. Perry v. George P. Torrence.
    A state law including steamboats as a portion of the property subject to taxation, is not unconstitutional.
    This case was adjourned from the county of Hamilton.
    The whole matter of it is explained in the opinion of the court.
    Wright and Hodges, and Wright and Walker, for plaintiff.
    H. Starr, for defendant.
   Judge Grimke

delivered the opinion of the court:

This ease comes before the court on the following agreed state of facts: The plaintiffs are owners of the steamboat Adriatic. They reside in Cincinnati, where the boat was built. She was •enrolled first at Cincinnati, and afterward at Louisville, and is •one of the largest class of boats intended for and employed in the *trade on the Mississippi; but touching occasionally at Cincinnati, to receive and discharge freight. The defendant is treasurer of Hamilton county. In 1835, a tax was levied upon this rboa-t, and by agreement between the parties, paid without prejudice to the right of trying the legality of the tax.

The tax was levied under the act of 1831. Section 1 declares (that all stock or capital invested in steamboats shall be subject to taxation ; and section 6 that all stocks or interest in steamboats shall be valued upon the statement of the owner under oath. It is admitted, that if this law is constitutional, the tax was legally collected, and that this action, which is brought for the recovery of it back, can not be maintained. It is contended:

I. That it is repugnant to the fundamental principles of taxation.

2. That it is repugnant to the constitution of the United States; and,

3. That it is a violation of the ordinance of 1787.

The first objection we are not authorized to consider; it is addressed to the legislature, and not to the courts. Ho state has ■ ever been able to devise a perfectly just system of taxation. The ■laws which govern the distribution of wealth are so imperfectly ■understood, that the greatest wisdom is perhaps unequal to the ¡task. Moreover, the two classes of individuals, those who administer the practical affairs of society, and those who are ■ masters of the science of political economy, dividing between themselves the actual amount of knowledge, the whole even of that knowledge can seldom be made to bear upon the interests of the community.

It is one fundamental principle of taxation, however, that the property of all the citizens should be made to contribute as equally as possible to the public burdens; and the law under which this tax was levied was probably framed for the purpose of attaining this great object. It imposes a general tax upon stock of every description. If it had exempted capital invested in steamboats, a disproportionate burden would have been imposed upon the class of citizens taxed. Similar laws exist in Connecticut, Massachusetts, and New York; only in the former state, it is provided that if the boat is taxed in any other state, it shall thenceforth be relieved from the imposition there. If it is fit and proper that all the citizens should be made to contribute, as nearly as possible, equally to the expenses of government, no rule more just ean.be adopted than that which considers property of this description *as situated in the place whore the proprietors reside. It is not on the technical principle that the situs of personal property is there where the domicile of the owner is found ; for that would embrace property which was exclusively and constantly employed in another state. It is because a boat which is navigated beyond the boundary of any one state can not, in the nature of things, be considered as located, for the purposes of taxation, in any other place than that where the owners reside.

Is the law repugnant to the constitution of the United States? It must necessarily be difficult in a government so complex as ours, composed of one government within another, or perhaps more properly, of two jurisdictions standing side by side of each other, to prevent all interference of their respective powers. The wisdom of their contrivance consists in their touching each other in so many points; and the occasional inconvenience which this produces, is only the accidental result of the general genius of the system. Health laws, inspection laws, wreck laws, and harbor regulations are only a few of those instances in which state legislation may appear to interfere with the acknowledged power of Congress to regulate commerce; and yet those laws are universally conceded to be valid, because they act upon a subject matter which is within the appropriate sphere of state legislation. The laws for regulating the internal commerce of a state, those which have relation to the construction of roads and canals, constitute an immense portion of legislation, which is reserved to the states ; and yet they may more or less interfere indirectly with even the exclusive power of Congress to regulate commerce among the states.

This occasional interference, which no human foresight could avoid, and which no human wisdom could altogether prevent, is even necessary to carry out the general designs of the government. It creates a salutary control upon the powers which are claimed and exercised by the two jurisdictions, and prevents either from indulging in an unlimited exertion of the authority confided to it. The laws of this state, which impose a tax upon the capital stock of merchants, and more particularly those which impose a duty on boats navigating the canals, necessarily affect its commerce with other states; and yet this has never been suggested as a reason why such laws are unconstitutional. If there is one class of powers which entei’S into the very definition of the authority to regulate commerce, there is also another, which is of the very essence of state legislation, and which can not be denied *to the states, without impairing the very constitution whose integrity is intended to be preserved.

In the case of Gibbons v. Ogden, 9 Wheat., it was admitted that the taxing power was not a part of the power to regulate commerce. It had been ruled differently before; but in that case it was admitted that the two power's were substantive and distinct from each other; and that the states might have levied duties on imports and exports, if the constitution had not contained a separate prohibition on the sxxbject. And yet it is evident that there could be no more formidable interference with the power to regulate commerce, than the imposition of duties upon impoi’ts and exports.

But if this tax is not repugnant to the constitution on these grounds, does it infringe that clause which forbids a state from levying a tonnage duty ? A tonnage duty is a duty upon a vessel without any reference to the place where her owner .resides, without any regard to the jurisdiction within which the capital invested is owned. It is then most manifestly a tax upon the boat as an instrument of navigation, and not a tax upon the property of citizens of the state. This distinction, I think, shows the reason why a power so general and indiscriminate, as the imposition of a tonnage duty, was withheld from the states; and it affords an equally good reason, why a tax which confines itself exclusively to the property of our own citizens, can not be considered within the letter or spirit of the prohibition. The former power would interfere directly with the taxing power of other states; while the last would bo the mere exercise of a power, which appropriately belongs to a single state. One great design of the federal constitution, so far as the intercourse among the states is concerned, was to prevent a conflict of their respective powers; and that great end is not infringed, but is carefully preserved, by the express provision of our law, which restricts the tax to the property of citizens of our own state. The New Eng • land confederation, the assembly which met at Albany, and the convention at Annapolis, which led to the formation of the constitution of the United States, 'were all more or less designed to guard against the countervailing regulations of the different states. They were intended to prevent the encroachments of one state upon the legitimate powers of the others, and not to narrow the sphere of state legislation further than was absolutely necessary for that object.

In McCulloch v. Bank United States, 4 Wheat., it was held, *that it was not competent to a state to tax the franchises of the bank ; but it was admitted that a state might tax the stock of individuals living within the state, although it might be argued, with great force, that this was doing indirectly what it was not permitted to do directly. But the rights of the states are, themselves, substantive and independent powers, which Congress can neither usurp nor impair, merely because it is sometimes difficult to define the exact boundary which terminates those powers. The repugnance of the power exercised in this case, to that clause of the constitution which prohibits the states from levying a tonnage duty, is as little perceivable as were the two apparently conflicting powers in the case of McCulloch v. Bank of United States. The two cases are, to be sure, diverso intuito; but the analogy between them is not, for that reason, the less strong. It may be necessary, in both, to make nice distinctions; but the making distinctions constitutes, if I. may so express myself, the chief exercise of the human mind in every department of knowledge, Whether theoretical or practical. It is one of ou.r privileges, and not one of our vices, that we can not always see our way clearly to the performance of great public duties without much thought, attention, and study.

The late case of the City of New York v. Miln, 11 Pet., in which was upheld the constitutionality of a law of New York, making it obligatory on all captains of vessels engaged in the foreign trade, to give bonds that the emigrants on board should not become a public charge, shows that there is as strong a disposition in that court to maintain the just powers of the states as there is to preserve, unimpaired, the acknowledged powers of the general government. The states must not bo regarded as mere municipal corporations. The happiness and weliare of the people are as much, if not more, wrapped up in their administration than in that of the federal government, inasmuch as the sphere of legislation which is prescribed to them comprehends a greater variety of vital interests. He was a wise man (Oliver Ellsworth), who, in the convention which framed the constitution, declared that he did not want a splendid- national government — he wanted a government which would give him domestic felicity. The saying showed that he thoroughly understood the great purpose for which government was created.

The law of 1831 is not unconstitutional any more than would be a law which imposed a tax upon every barrel of flour or tobacco manufactured. Such a tax might be argued to be virtually a duty *upon exports, because a largo portion of the flour and tobacco would be actually exported. The'toll exacted from canal-boats, too, might be contended to be a tax upon goods imported from another state, because the owners of the goods paid the tax. There is no power in words, but there is power in just and correct distinctions. A tax upon lands is, in one sense, a tax upon exports; because it is certain that some portion of its produce will be exported. But it would not be a tax upon the privilege of exporting; neither the design of the law nor the form in which it was clothed would authorize us to say so. There could be no visible bond of connection between the federal and the state governments if their respective rights and interests did not lie in the near neighborhood of each other.

A third ground taken is, that the tax is repugnant to article 4 of the ordinance of 1787, which declares that the navigable waters leading into the Mississippi shall be common highways, and forever free. Even admitting that the article applies to citizens of this state, and not to citizens of other states, with regard to whom invidious distinctions might be made in the form of discriminating duties, if the power contemplated were permitted, yet this tax can not be regarded as a restraint upon the right of navigating those waters. The tax presupposes the right. Its efficacy as a tax results from the very liberty of exei’oising it, and could have no operation if the right were disturbed.

The conclusion, on tbe.whole, is, that the tax complained of does not interfere with the power of Congress to regulate commerce; nor can it be regarded as a tonnage duty, because that is a tax which is levied upon the vessel as an instrument of navigation, and without reference to the place where she is owned; nor is it a violation of the ordinance of 1787.


text:
    Riley and Van Amringe v. Johnson, Anderson, and Shipley.
    Where signatures are obtained to a blank paper, to be filled up for money, upon false pretenses, and are delivered in blank in payment of a precedent debt, and the note written by the creditor’s agent, the securities are not bound.
    Assumpsit, reserved in Muskingum county.
    The issue of fact, on non assumpsit, was submitted to the court under the statute, instead of a jury. The facts, agreed by counsel, are as follows:
    That the defendant, Johnson, resided in Martinsburg, Knox ^county, in May, 1837, and had for years carried on an extensive business as a merchant. The 2d of January, in that year, he was indebted to the plaintiffs, who resided in Philadelphia, Penn., more than $3,000 for moneys lent to him by them, and Van Amringe called upon him at Martinsburg for payment, but obtained nothing. On that day Van Amringe and Johnson rode together to Nashport, where the defendant, Anderson, resided, and had astore, in connection with Johnson, conducted under the name of Johnson & Anderson. They arrived late in the afternoon, and took lodgings near the store. In the evening Johnson called on Anderson, and inquired if he did not want money? Anderson replied, he could use it if he had it. Johnson then said, he was going to Zanesville the next day and would try the banks; that it was best to draw two notes for $1,500 each, and if he could get the $3000, $1,000 of it should go to the Nasbport establishment. He then wrote in figures, $1,500 at the top on the left hand of two pieces of paper, and he and Anderson and Shipley signed their names, iollowing each other, to each piece of paper, on the right hand, some distance from the top, leaving room, and intending to have promissory notes written over their signatures. Johnson took the papers, returned to his lodgings, and handed them to Van Amringe, who dated them January 2, 1837, and filled them up as notes, for $1,500 each, one at ninety days after date, payable to the order of the plaintiffs at the Bank of Granville; the other in like manner1, at four months. Upon these notes this suit is brought. Van Amringe and Johnson left Nashport the next morning, the former not having visited the store or met Anderson during his stay. Van Amringe received the notes of Johnson in part of the plaintiffs’ account against him, and gave him credit on account for $3,000. He left them at the Granville Bank for collection, where they were protested for non-payment, and the plaintiffs then charged them to Johnson. Johnson, up to May, 1837, was in good credit, supposed to have ample means, and responsible for a much larger sum than $3,000; but about that time absconded totally insolvent, leaving the plaintiffs wholly unpaid, and without other security than the notes.
    Stillwell, for plaintiffs:
    Insisted, that the facts entitled them to a verdict for the amount *of the notes, as no fraud is proven upon the plaintiffs in obtaining the notes, and none will be presumed from the circumstances. These notes were negotiable, fairly taken in payment, not received as collateral security. He commented upon the following cases cited: 8 Cow. 423; 9 Wend. 170; 12 Wend. 523, 593; 10 Wend. 85; 20 Johns. 636; 5 Johns. Ch. 54; 3 Kent’s Com. 81; 2 Wheat. 66, 73; 2 Peters, 170, 182; 5 Wend. 66; 16 Pick. 574. If we are not entitled to recover against Anderson, with whom the issue is joined, we claim judgment against the other defendants, who are in default. As to this he cited 1 Pet. 47; 11 Pet. 86.

      Goddard and Converse, contra :
    Claimed that the law arising on the state of facts is with the defendants on the issue ; that Yan Amringe was grossly negligent in taking such an obligation in blank, when by a walk of only a few feet he could have seen the defendant Anderson, and learned if he intended to be bound. They cited 8 Wend. 423; 9 Wend. 170; 10 Wend. 85; 12 Wend. 523, 593 ; 16 Pick. 579.
   Judge Wood

delivered the opinion of the court:

Do the facts in this case give the plaintiffs a right to recover? Johnson was in the plaintiffs’ debt a sum greater than the notes he delivered. The notes wore negotiable, and if negotiated for a valuable consideration without notice, the right of the holder would prevail, even against a true owner ; but such consideration must be actual, the holder must have incurred loss, by giving credit to the paper, or by paying a fair equivalent for it. If he has done, if the plaintiffs have done neither, but have merely taken the paper (or a pre-existing debt, their condition is improved if they recover, but nothing is lost by their failure, as they remaiu as before. In such case thé equity of the holder is not superior to that of the owner. Such is substantially the language of the court of errors in New York. 20 Johns. 637. Spencer, Judge, said, that in all the cases cited, in which such transfer had been valid, the notes or bills had been taken in the usual course of trade, for a present consideration, and not as security for an antecedent debt. And whoever receives a note, negotiable on its face, in payment of a precedent debt, takes its subject to all its equities between the original parties. -In such cases, the holder has no ^equity superior .to the maker, and the law will leave him in possession who already has it. These principles are recognized in 10 Wend. 86, and appear to decide this case. The notes in question were not received in the usual course of trade, for a valuable consideration, in the meaning of those terms, applicable to such cases, but for a precedent debt. Failing in this suit, the plaintiffs lose nothing. They remain in the position they were in when they took the .notes, and may sue on their original cause of action. The notes received were no payment and bar no right.

We have, so far, considered the transaction between Johnson and Yan Amringe bona fide. It might, we think, be viewed in a very different light. During the visit of these gentlemen at Nashport, Yan Amringe remained at his lodgings; he did not visit the store of Anderson, though himself a merchant, and within a few rods twelve or fifteen hours; made no inquiries about Anderson’s business or standing; was not seen by him; but as soon as the notes were handed to him, he filled them up to himself, retained them as his own, and the parties departed together. The state of case, and conduct of these men, strongly impress the mind with the belief, that the whole business was previously arranged between them; and this impression is strengthened by the subsequent absconding of Johnson totally insolvent. If this is correct, fraud is fixed upon the plaintiffs. In such a state of case they can not recover. A note made for the maker’s own accommodation for discount at bank, can not, upon the refusal of the bank to discount, be transferred to one having knowledge of the facts, so as to enable him to recover. 6 Ohio, 249.

Judgment for defendant.


author: Judge Hitoiioock:

text:
    George and William Rennick v. President, Directors, and Company of the Bank of Chillicothe, and Felix Rennick.
    A creditor having dealt with parties to a conveyance, regarding it as valid, can not afterward impeach it for fraud.
    Reserved in the county of Ross.
    This case came before the court upon bill, answers, replications exhibits, and testimony.
    The facts of the cases are stated in the opinion of the court, so *far as the same áre necessary to the proper understanding of the points decided.
    The case was argued at length by T. Scott and Leonard, for the complainants; and by H. Stanbery, for the respondents.
    On the part of the complainants, the following authorities were cited : 2 Eq. Cas. Abr. 603; 16 Wins. 776; 2 Atk. 53; 2 Stra. 1017; 1 Hopk. Ch. 231; 2 Pick. 517; 3 Ib. 50; 1 Bibb, 334.
    For the defendants, the following: 2 Chan. Cas. 83; 6 Cranch, 8.
   Opinion of the court, by

Judge Hitoiioock:

Although this case seems to be involved in some obscurity, and many points have been raised and argued by counsel, yet, upon a careful examination, there does not appear to be any serious difficulty. The great object is-to ascertain the intention of the parties in their several contracts and dealings, and when this is once ascertained, the case is easily disposed of.

Th.e case appears to be this: On April 11, 1821, Felix Rennick was indebted to the Bank of Chillicothe, in the sum of $22,465.44. Of this amount, $12,465.44 was secured by notes indoi’sed'by Fullerton, Waddle, and Carlisle, and $10,000 was without any security. At the same time F. Rennick was possessed of a farm, in Ross county, called the high bank farm, containing 1,200 acres of land. This farm, on April 14, 1821, he mortgaged to the bank to secure the payment of the aforesaid debt of $10,000, the said debt being made payable in installments, the last of which would fall due on April 18, 1826.

On April 11, 1821, Felix Rennick, for the expressed consideration of $23,000, conveyed the high bank farm to his brothers, George and William Rennick, the complainants, by deed absolute upon its face. But, at the same time, a contract in writing was given by George and William to Felix, binding themselves to pay him $13,000 on or before April 11, 1826, and át the same time to veconvey to him 300 acres of land, of an average quality with the whole farm, and also a like quantity on or before April 11, 1830. There is a stipulation in the contract, that George and William may pay the $13,000, by clearing off ^incumbrances upon the land. It is observable that the last installment of the debt to the bank, secured by mortgage, fell due on April 11, 1826; that the whole debt, with interest, would, at that time, amount to about $13,000, and that there was no other incumbrance on the land.

Six days after this transaction, the bank recovered a judgment on one of their notes against Felix, indorsed by Carlisle, Fullerton, and Waddle, for $2,891. And in March following, recovered two other judgments against the same, one for $1,035, th.e other for $8,907, which three judgments included all the debts due from Felix to the bank, exclusive of the one secured by mortgage, and would have operated as liens upon the high bank farm, but for the conveyance to the complainants before referred to.

On March 24, 1823, the high bank farm was sold by the Rennicks to Rees McNeil for $23,000 — $10,000 to be paid in band, and the balance in annual payments of $2,000 each, with the exception of the last, which was $1,000.

In making this sale, Felix was instrumental, and it was made for his benefit, with an understanding between him and his brothers, that the proceeds should first be applied in payment of debts secured by the mortgage on the land, and the balance in payment of the other debts due the bank. An agreement w;as made between the bank and Felix, that he might liquidate his debt in bank stock at par, and on July 9,1823, he paid, in this way, $5,605.05, including stock in his own name, and a dividend on the same. There seems to have been an arrangement between the complainants and Felix, and pi’obably with a view to this agreement between Felix and the bank, that the proceeds of the sale to McNeil should be applied in the purchase of bank stock, which was then at a discount, and which the bank was to receive atrpar in payment of Felix’s debt; and by this operation it was supposed the whole debt would be liquidated, and a balance left of more than $2,000.

On January 22, 1824, the notes of McNeil for $13,000 were deposited in bank by complainants, and a receipt given them, reciting “the deposit of the notes, the indebtedness of Felix, the giving of the mortgage to the bank for a part of the debt, the sale of the land to the complainants after the mortgage, and that the bank had agreed to receive all its *debts in the stock of the bank at par value, in consideration of certain payments then lately made, and in consideration of complainants pledging and depositing McNeil’s notes as collateral security for the payment of the said Felix’s debt, and when said debt should be paid, the notes, or such of them as should be unpaid, should be returned to complainants; or if the complainants should wish to retaint he notes, they might do so by giviug such other security as the bank might accept.”

A considerable amount has been paid into bank in stock and money, more than sufficient to satisfy the debt of Felix secured by mortgage, but not sufficient to satisfy the other debts due the. bank. Within a short period, George and William Rennick have paid to the wife of Felix, he being still living, $14,000 to procure the relinquishment of her right of dower in the high bank farm.

Such are the prominent facts in this ease.

The complainants contend that the moneys which have been ■paid into bank shall be first applied to the extinguishment of the debt secured by mortgage, and insist that if the contract of January 24, 1824, does not secure to them this right, it is differently worded from what was intended and should be reformed. The defendants deny that there is any mistake in the contract, and there is not a particle of testimony to prove any mistake. We must, therefore, take it as it is. By this agreement no difference is made between the different debts, but the intention is manifest that the whole amount of $23,000 should be applied in the way of payment. Not in the way of payment, first of one debt and then of another, but of the whole debt. The debts from that timé may be considered, so far as these parties are concerned, one consolidated debt. And it is manifest that the parties at the time supposed that the proceeds .of the sale to McNeil, in the way those proceeds were to be applied, would more than satisfy this whole debt.

But as it is found that the whole bank debt has not been, and probably will not be paid from the avails of the sale to McNeil, the complainants claim that they have a right to direct to which part of the debts, due from Eelix, the payments made into the bank shall be applied, and upon this principle they seek to h,ave them applied in extinguishment of the mortgage debt. Were there no contract in this case by which the application of the payments was to be controlled, there might probably be some difficulty. We suppose, however, there is no difficulty in ordinary *cases. Where there are different debts due, the debtor has a right, when he makes payment, to direct to which it shall be applied ; if he gives no direction, the creditor is authorized to apply it as he may think proper. But in this case there was a contract, and this must govern. By that contract no distinction was made between the different description of debts. They were all treated as one debt, and this debt was 'to be satisfied, as far as it could be done, with the $23,000.

The defendants contend that the complainants undertook to satisfy the whole debt; in other words, that they became securities for Eelix, that the whole debt to the bank should be paid, and therefore that they have a right to hold on to the mortgage until the whole debt is paid. They contend further that the conveyance from Felix to George and William was fraudulent as to the bank, consequently that their judgments attached as alien upon the land, and that they are not, therefore, under any obligation to release the mortgage until the judgment liens are satisfied. It seems to the court that this claim of the defendants can not be sustained, and that they are mistaken in part, at least, with respect to the contract of January 22, 1824.

That the conveyance was, in contemplation of law, fraudulent, we think there can be no doubt. There’was a secret trust. The object was to relieve Felix in his embarrassed situation, and this was to be done by placing his property in a situation that it could not be reached by execution. The only payment toward the land which was to be made, was a sum sufficient to relieve it from the lien of an existing mortgage, and after this was done, the residue of the land was to be reconveyed. The conduct of the parties subsequently shows that it -was never intended that this property should rest in the complainants for their use. When sold to McNeil, it was done in part, at least, through the agency of Felix, and done, too; entirely for bis benefit. This conveyance being fraudulent, the judgments of the bank would operate as a lien upon the land in the hands of the complainants, or of any other person having notice of the fraud. But although this is true, the defendants could have received no more toward their debts, whether secured by mortgage or judgments, than the value of this land when sold at sheriffs sale. These were, in -part, the considerations which induced the complainants to enter into the arrangement of the 22d of January.

But it is now too late for the bank to set up this fraud. They, by their contract of the 22d of January, have agreed, upon the ^stipulations therein contained, to receive the proceeds of the sale to McNeil in satisfaction of their debt, in part or in whole, as the case might be, thereby, in effect, recognizing the conveyance to the complainants to be good and available. By this contract the complainants assert that these proceeds shall be thus applied. But do they undertake to say that the debt due from Felix shall at all events be paid ? They were under no obligation, either moral or legal, to do this, nor is there anything in the terms of the contract, from which it can be inferred that any such‘thing was intended. They were willing to obligate, and did obligate themselves, that the $23,000 received from McNeil, should go to sink the debt of Felix; beyond this, they did not bind themselves. They undertook, however, that this $23,000 should be applied in the purchase of stock, if it could be done at a discount; in the first place, the $10,000, and the balance from time to time as it fell due, and this stock was to be transferred to the bank. And this is a part of the agreement, the performance of which the bank had a right to require.

It is claimed, on the part of the complainants, that they are entitled to a-credit for the $14,000 paid to Mrs. Rennick, to procure the relinquishment of her right of dower. But this can not be allowed. The husband is still living, and this right of dower isa mere expectancy. It may or may not be a charge upon the land. Besides, the bank were to have the benefit of the whole $23,000.

Whether they have had this benefit, we know not from any papers before us. The case must therefore be referred to a master to inquire:

1. How much of this $23,000 has been expended in the purchase of bank stock.

2. How much the complainants have paid into the bank in cash on the debt of Felix Rennick.

3. Whether the complainants have at any time neglected to purchase bank stock when it could have been procured at a discount, and when they had or might have had money in their hands, made Dy the sale to McNeil.

4. If they have thus neglected, what has been the loss on that account.

5. Whether moneys, the fruit of this sale to McNeil, have been detained by complainants an unreasonable length of time.

The master will examine witnesses, and the parties themselves under oath, if deemed necessary; and will also have access *to the books of the bank, for the purpose of aid, in stating an account, and will make report at the next term of this court in Ross county. With his report, he will return the testimony by him taken, on which it is based. And for the coming in of the report, and for final decree, this cause is continued and remanded.