author: ^Birchard, C. J.

text:
    Clinton Bank of Columbus, for the use of Rhodes, v. Ayres & Neil.
    'When, a note is made payable to a bank, and signed by a surety, presented to the bank for discount and refused, and afterward discounted by a third person, without the knowledge of the surety, an action will not lie, at the suit of the bank, for the use of the person discounting the note, against the surety.
    Such an action will lie against the principal in the note, if sued separately.
    This is a writ of error, reserved in the county of Franklin. *The original action was assumpsit, and was tried in the court of common pleas of that county. The case was tried by the court, without the intervention of the jury upon an agreed statement of facts, and judgment rendered-for the defendants. The agreed statement, including the copy of the note, is as follows : .

      “April 16, 1846.
    “ $600. Three months after date, we, or either of us, promise to pay the president, directors, and company, of the Clinton Bank of Columbus, or order, $600, at their bank, for valued received.
    [Signed,] “E. Ayres,
    Wm. Neil, Security.”
    It is admitted that shortly after the execution of said note and prior to its having passed out of the possession of said Ayres, he presented it to the payees at their bank, and requested them to discount the same, and that they did then and there refuse to discount it, or to advance any money in any form on it; nor have they ever discounted or advanced money on said note; nor have they ever had any interest in the same, nor indorsed, assigned, transferred, or in any way exercised any ownership or control over or in the said note, except that while in the possession of said Ayres, and after the refusal of payees to discount or advance any money on said note, the said Clinton Bank made the following indorsement on the same by their cashier, to wit:
    “If the above note is left with me for collection, when paid I will pay proceeds over to M. J. Gilbert or order, or any person who may leave the same for collection. •
    “D. W. Deshler, Cashier.”
    It is also agreed that after refusal to discount said note by said payees, and a few days after its date, said Ayres (without the knowledge, consent, or subsequent approval of said Neil, so far as said Rhodes is informed) did deliver the same to said Rhodes in payment of a pre-existing debt of $600, owed to him by said Ayres ; and at the time of *this negotiation Rhodes knew that Neil had signed said note as security, and not as principal, and that the negotiation was made by Ayres for his exclusive benefit.
    It is also agreed that payment of said note was demanded at payees’ bank on the day of its maturity, and that it was regularly protested for non-payment through the instrumentality of plaintiffs.
    It is also admitted that plaintiffs have never consented for suit on said note to be commenced or prosecuted in their name, unless such consent may be fairly inferred from the said indorsement on note, made by the cashier aforesaid.
    That this suit was commenced by said Rhodes in the name of the president, directors, and company of Clinton Bank of Columbus,-without their knowledge, authority, or assent, and that the same is now prosecuted in their name without their authority or assent, except their assent may be fairly inferred from the facts herein agreed to.
    It is also admitted that since the commencement of this suit the said Rhodes, by his authorized counsel in this case, did apply to payees for the privilege of using their name in the prosecution * •'his snity and that in reply to said application, by their cashier; they did answer as follows, to wit:
    “ Clinton Bank op Columbus, June 23, 1847.
    “I. Ranney, Esq.—Dear Sir; In regard to the suit in the name of this bank for the use of Dudley W. Rhodes against E. Ayros and Wm. Neil, referred to in your favor of 22d inst., advise that I can not consent (unless otherwise instructed) to aid or assist in any way the collection of the note on which suit is brought, for the reason, if my memory serves me right, that that note was in the usual form of a note for discount at this bank, and presented mo for discount, which was declined. As the note was intended to be used only at this bank, its diversion to'any other place or person might not bo in good faith to the parties or some of them; hence ^prefer not to interfere in the matter in any way. The bond is herewith inclosed to you.
    “Respectfully, D. W. Deshler, Cashier.”
    It is further agreed that prior to and at the time of the execution of said note, Ayres was indebted to Rhodes in the sum of $600. It is also agreed that M. J. Gilbert, if examined on the trial of the case, would submit the following statement under oath, which statement is to be received in evidence, and subject to all exceptions but the competency of Gilbert as a witness, which is waived: “In April, 1846, and soon after date of said note, Ayros, defendant, called on me, and stated that he owed said Rhodes some money; that he had said note, and with it wished to pay said Rhodes, but which note said bank declined discounting. Ayres requested mo to find some person who would advance the money on said note. In endeavoring to do so I encountered this difficulty—it was payable to the cashier or order. Deshler, cashier, was applied to, and declined indorsing the paper; but he made the memorandum on the same as aforesaid. My efforts to raise the money wore unavailing.”
    It is agreed that the note was executed by said Neil for the purpose of enabling Ayres to raise $600 out of the bank of payees for his (Ayres’) own use. Judgment to be entered by the court according to the legal rights of the parties, as disclosed by the foregoing admitted facts—that is, if the court are of opinion that the plaintiff should recover, judgment to be rendered for plaintiff for amount of note and interest; but, if not, judgment against plaintiff for costs—Rhodes in such ease not to be bound in equity, etc.
    I. Ranney, for Rhodes.

    W. Dennison, for Weil.

    W. Baldwin, for Ayres.

    The entry in the court of common pleas is in this form:
    “This cause came on to be heard upon the statement of facts ^agreed between the parties, and was argued by counsel; on consideration whereof the court are of opinion that the law of the case is with the defendants, whereupon it is considered that the said Ellis Ayres and William Neil go hence without day, and recover, etc., their costs,” etc.
    Two errors are assigned:
    1. It does not appear that any fact was found by the court.
    2. That judgment was given for defendants, when, by the law of the land, it should be given for the plaintiff.
    S. Einoh and I. Ranney, for plaintiff in error, referred to the-following authorities:
    Utica Bank v. Ganson, 10 Wend. 315; Bank of Rutland v. Buck, 5 Wend. 66; Chenango Bank v. Hyde, 4 Cow. 567; Farnsworth v. Sweet, 5 New Hamp. 267; Pillons et al. v. Van Mierop et al., 3 Burr. 1663; Powell v. Waters, 17 Johns. 176; Conway et al. v. Bank United States, 6 J. J. Marsh, 129 ; Denniston v. Bacon et al., 10 Johns. 198.
    Wm. Dennison, Jr., for defendants in error, submitted the following authorities:
    2 Ohio, 24; 6 Ohio, 150; 3 A. K. Marsh, 430; 6 J. J. Marsh. 131; 1 Chit. Pl. 2, 3; 3 Bing. N. C. 829; 12 Johns. 190; 3 Term, 148; 6 New Hamp. 535; 20 Johns. 288; 4 Term, 470; 18 Pick. 579; 6 Ohio, 246; 8 Ohio, 529; 11 Ohio, 65; 5 New Hamp. 267; Ang. & Ames on Corp. 104, 66, 230; 12 Wheat. 68; 2 Cranch, 127; 3 Pick. 335; 1 Pick. 297; 2 Johns. 109; 10 Johns. 182; 3 Pick. 297; 9 Wheat. 702, 703; 2 Burr. 1226; 1 Bl. Com. 75, n. 8; 2 Kent’s Com. 53; 10 Eng. Com. L. 156; 1 Sel. N. P. 122; 1 Chit. Pl. 511, 512, 556, 557; Gould’s Pl. 331, 345; 2 Hall, 195; 5 Cow. 466; 8 Cranch, 30; 13 Wend. 78; 2 Phil. Ev. 130; 2 Stark. Ev. 77-79; 11 Ohio, 489; 12 Ohio, 112.
   ^Birchard, C. J.

The first assignment of error presents

the question, whether the agreed facts in this case are properly a. ■part of the record. In the case of the Bank of Virginia v. Bank of Chillicothe, decided at this term, it was held that when .a cause was submitted to the court without the intervention of a jury to try the facts as well as determine the law, the finding of the court upon the facts can not be brought under review by writ ■of error, unless the evidence be made part of the record by bill of ■exceptions. It is urged that this case is like that, and concluded by it. A slight examination of the two cases will show a manifest ■distinction between them. In that case certain facts upon which the case turned, in the agreed statement, were left undetermined.

The agreed statement was an agreement of what the evidence was on the litigated points of the case, from which the court had to find what were the true facts before they could determine the law arising upon them. In this case all the facts were agreed upon. In this agreed statement, the facts were admitted, leaving, for the court, nothing to find, and only the naked duty of declaring the law upon the given statement of admitted facts. It was treated by the court below precisely as a •special verdict would have been treated, and bears the same relation to the record. Nothing was found by the court upon any fact, for no fact was submitted to their finding. The record, therefore, presents no issue of fact for our consideration, which is sought to be reviewed. This proceeding merely seeks the judgment of this court upon a matter of law, which we think is clearly pre■sentod. The case agreed was used and treated by the parties below as a special verdict, and was so acted upon by the court. The record shows that the parties stipulated that the facts should be taken as admitted and judgment entered thereon according to the legal rights of the parties. It is clearly distinguishable from the •case relied upon, and is not settled by it. Hence, the cause firstly assigned for error, docs not exist. Under the second assignment, questions of greater difficulty arise and upon which there is some conflict between *the decisions of our own and the courts of our sister states. These conflicting decisions have been presented and commented upon by counsel with praiseworthy industry, and an ability that does credit to the profession, while it has tended to lighten our labors in an examination of. points notwith•out difficulty.

I shall not dispose of the questions argued in the order in which -counsel have discussed them; but beginning with that last argued, will examine first, whether ¥m. Neil can be held liable in this action; assuming, for present purposes, that_the suit was well brought in the name of plaintiff.

Wm. Neil was surety on this note, and the suit is in the name of a plaintiff, who is a bank. Section 4 of the act, 43 Ohio L. 67, to regulate proceedings where banks and bankers are parties, provides, that in all contracts for the payment of money to banks or bankers, sureties in fact, known to the parties to be such at the time such contracts were made, may be proved to be, and shall be considered sureties in all courts, and have all the privileges, ■and be subject to all the liabilities of sureties, anything in the contract expressed to the contrary notwithstanding.

Under this statute Neil’s rights as surety must be looked to» and whatever they may be, we are to see that he is protected in them. His claim is, that by his contract, he agreed to become bound as surety to the Clinton Bank of Columbus or its assigns, for the sum it might advance on the note to Ayres, not exceeding the amount of the note, and that be can be bound to no other person for any money advanced on the same note.

Against this position, plaintiff’s counsel have cited several decisions of the Supreme Court of New York, which are claimed to be directly in point: 1. The case of Utica Bank v. Ganson, 10 Wend. 314, was an action of assumpsit: The plaintiff proved a note made by the defendant for $138.60, dated June 27, 1828, payable ninety days after date, to the president, directors, and company of the Utica Bank. It was ^signed, James Ganson, Azor Curtis, and Jared Rathbun, as surety. The plaintiff’s counsel admitted that the payee of the note had no interest in it, and that the note had been offered at the bank and discount refused; but offered to prove that one C. B. was the beneficial holder of the same, and that it was given to him in payment of a debt owing to him by Ganson and Curtis, two of the defendants, and that it was executed by those two defendants, to raise money to pay the debt due C. B. The circuit judge below decided that such proof would not be sufficient to sustain the action, unless it was further proven that Rathbun, the other maker of the note, knew when he signed it, that it was given to pay the debt of Brown. That the undertaking of Rathbun being to the bank alone, his liability depended upon the contingency of the note being discounted. To this opinion of the court below the plaintiff’s counsel excepted; and the jury, under the direction of the court, found a verdict for the defendants, which the plaintiff moved to set aside; and the opinion of the court was given by Nelson, J., the substance of which is contained in the following syllabus given by the reporter.

“Where a note is made by a debtor, payable to a bank by its corporate name, for the purpose of raising money upon it at such bank, to pay and satisfy a particular debt, and the debtor procures a third person to become a joint maker of the note, who signs himself “ A. B., surety,” and the bank refuse to discount the note, the creditor for whose benefit the note was made, may, with the assent of the bank, maintain an action upon it in the name of the bank against the makers, although the note was not discounted at the bank in pursuance of the original intention.” A new trial was granted.

It is to be observed of this case, that the note was used to effect the precise object designed by the surety. The court treated Rathbun as an accommodation acceptor of a bill of exchange, after an unqualified acceptance. But they say that if a person accept a bill for a particular purpose, such *as to pay a particular demand, and that known to the holder, he can not apply it to a different purpose. And again, on page 318, the judge, in further commenting upon the case, treats it as turning on. “ strict commercial principles, peculiar to negotiable paper, and not to be governed by the doctrine relating to the liabilities of sureties and guarantors, simply as such. Bank of Rutland v. Buck & Co., 5 Wend. 66, is substantially like this. There, the note was made to enable S. and E. to -raise money for their own accommodation; was signed by Buck, and delivered to S. and E. It was offered by them at the bank for discount; and discount refused. Afterward, S. and E. delivered it to E. H. & Co., as security for a judgment. The court held the surety liable, on the ground that it was drawn for the accommodation of S. and E., and they had had the benefit of it, and that it was immaterial to the surety who advanced the money. The case of J. & T. Powell v. Waters, 17 Johns. 177, is not a case of surety, but of the indorser of an accommodation note; yet it supports the doctrine of the cases in 5 and 10 Wend.

These cases seem to sustain the principle that is claimed by plaintiffs,. and to support the right to subject Neil to the payment of this note.

In our own court, a different rule has for many years prevailed. In Stone v. Vance et al., 6 Ohio, 246, it was held that a note, made and indorsed for the accommodation of the maker, to be discounted at a bank where its discount was refused, could not be transferred,' as a business note, to one having a knowledge of the fact, and the amount recovered by the indorsee.

In that ease, the ground of the decision was, that the direction given to the note was contrary to the purpose for which the note was delivered, and that a circulation had been given to it which the parties did not design. This principle of Stone v. Vance is confirmed by Riley & Van Amringe v. Johnston, 8 Ohio, 528, although another point ruled in that case has been since overruled in Carlisle v. *Wishart, 11 Ohio, 172. More than twenty years ago, the same doctrine was held in Trumbull county, upon the circuit, and repeatedly since, in other counties. In Massachusetts, the rule is the same as in Ohio,—Adams’ Bank v. Jones & Severance, 16 Pick. 574, where it was held the suit could not be maintained, because the bank refused to discount the note, and there was consequently never any valid contract between them and the makers.

In this state of authorities we can not hesitate which to adopt .as the safer guide; for however highly we may respect the learning and ability of the Supreme Court of New York, we should not depart from decisions of this court, for the sake of following them, unless satisfied that they are sound, and well sustained by reason and argument too clear to be resisted. The statute which I have quoted is adverse to the New York decision. And besides, we are of opinion that the New York cases are not sustainable upon principle. Neil might be willing to become surety for Ayres to the Clinton Bank, when he would be utterly unwilling to have his note in the hands of Rhodes. He might be willing to lend his name to procure a loan from a party who would indulge him—who would advance to his principal the full face of the note—when he would be utterly unwilling to go security to one who was his personal enemy, or who would exact harsh terms, or heavy interest of his principal. He might have been willing to aid him in procuring a loan of ready cash, when he would have been unwilling to become his security for an old debt. ' He might have expected Ayres would be prompt to pay a bank debt in which the bank had the sole interest, when he know he would be slow to pay an old debt due to a third party. And we think a court should not settle all these matters by declaring it immaterial to him who advanced the money on credit, so long as his principal received the benefit of the advance on the delivery of the note. If the note was to be regarded as a letter of credit, Neil ought to be discharged ; because, if a lettpr of credit in any sense, it was a letter filled up and directed *to a particular house—the Clinton Bank of Columbus ; and no one had a right to advance credit upon it but the one to whom it was addressed. Mr. Neil never agreed to become security to any one else. Walsh et al. v. Bailey, 10 Johns. 182, is directly to this point.

Nor- are we satisfied that the rules applicable to commercial paper, as between these parties, should be held to vary the question, and distinguish it, in any sense, from the ordinary rules applicable to securities. The paper had not been negotiated. It had not, in fact, acquired a commercial character; and, indeed, there is nothing in this case to bring it within the principles of the law-merchant, save the mere form of the promissory note. It. is a case of surety only; and, independent of the recent statute, and of the prior adjudications of this court, it is our judgment that the rule applicable to transactions like this, is the one stated and acted upon in Miller v. Stuart, 9 Wheat. 703 : “That the liability of a surety is not to be extended, by implication, beyond the very terms of his contract. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract, and any variation without his assent is fatal.

Upon its face this note is a contract with the Clinton Bank of Columbus—an offer to become surety to it, provided the note should be accepted and discounted by the bank. Unlike a note signed in blank, implying an authority to the holder .to fill it up, making it payable to whomsoever would advance the money upon it, this note spoke for itself, and could not hayo deceived Rhodes. It is not necessary to sanction this mode of ensnaring securities, by placing it in the power of principals thus situated, to make them liable beyond the strict letter of their contract. The interests of commerce do not, in our opinion, require it; and good morals and the regard for integrity proper to be observed between man and man, would seem to be best subserved by holding to a rule of more perfect good faith.

*Having disposed of this case as to the surety, we come next to a consideration of the rights of the plaintiff in interest as against Ayres. In the first place, as between Rhodes and Ayres, we think that justice demands, and the course of conduct pursued by the bank requires, that she should allow her name to be used in collecting this note for the benefit of Rhodes. The facts agreed show, that as between Rhodes and Ayres, legal rights have been acquired by the former against the latter; and, inasmuch as the note is drawn payable to the Clinton Bank, Ayres should not, after having placed it in Rhodes’ hands, and received value upon it, be permitted to deny that the suit is well brought in her name. He is, under the circumstances, estopped from denying the right of Rhodes to sue in the name of the Clinton Bank of Columbus,, by his own conduct. And the bank ought not to interfere, except to secure itself against a bill of costs. The cases above cited from New York, will sustain our views in this respect, and to the extent, that is necessary to cover this branch of this case, we feel no hesitation in regarding them as authority.

The question remains, shall the judgment be affirmed, as to Neil, and reversed as to Ayres?

Under our statute judgment, may, when the principal and surety are jointly sued, be rendered against one or both, according to the justice of the case. So that a surety may have judgment, if anything supervenes after the date of the contract which operates to' discharge him. But this suit was brought upon a joint contract, and a recovery could only be had according to the allegata et probata. By the conclusion to which we have come, this action could not be sustained against Ayres, because there was no such joint contract as is set forth in the declaration. Neil was never bound to pay the note. He was no party to it. Hence, it follows that the judgment below is not erroneous in any particular.

Judgment affirmed.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    *James S. Showers v. Lessee of John Emery.
    In an action of ejectment, if the plaintiff produces deeds showing legal title in himself, and then produces a contract for the exchange of the lands in controversy with the defendant, under which the defendant enters into possession, and providing for the execution of deeds on the performance of certain conditions, and prove the non-performance of the conditions by the defendant, and a notice to the defendant of a rescission of the contract, and to quit the premises, there is not such a failure of evidence on the part of the plaintiff as to justify a nonsuit.
    And though the conditions to be performed by the defendant were dependent upon conditions precedent to be performed by the plaintiff, a nonsuit would be improper.
    This -is a writ of error, directed to the Supreme Court of Lucas county.
    The original action was ejectment, commenced in the court of common pleas of that county, by Emery’s Lessee against Showers. On the trial in that court, the plaintiff gave in evidence certain deeds showing legal title to the lands in controversy in himself. He then offered, in evidence, a contract by which he agreed to exchange the premises for certain other lands of the defendant. The ■contract also further provided that Emery should pay said Showers a certain sum of money, and that Showers should perform certain labor, and transfer certain personal property to the plaintiff,—■ the payment of money being a condition precedent to the performance of a part of the conditions by the defendant, and the deed to ■be executed on the ji'erformance of the conditions. Under this ■contract the defendant went into possession. The plaintiff further proved that the conditions specified in the contract had not been performed by the defendant, and that before the commencement ■of the suit, he had given him notice that he rescinded the contract, and that he should quit the premises.
    Upon this testimony the defendant’s counsel moved the court *to grant a nonsuit, which motion prevailed, and a nonsuit was granted.
    Thereupon the plaintiff moved for a new trial, which motion was refused.
    To reverse this judgment of non suit, a writ of error was sued ■out from the Supremo Court, the errors assigned being, first, that the court erred in granting a non suit; and, second, that the court erred in refusing to grant a new trial.
    At the last term of the Supreme Court in Lucas county, the judgment of the court of common pleas was reversed, and this writ is prosecuted to reverse the judgment of the Supreme Court.
    H. F. Waite, for plaintiff in error.
    Tilden & Baker, for defendant in error.
   Read, J.

By the contract between Emery and Showers for the exchange of land, the performance of labor, the transfer of certain goods and chattels, and the payment of.money; it is provided that deeds shall be given when Showers should complete a barn for one Pease. Possession was to be doliverod as soon as Showers should complete a certain shop and saw-mill. He was to have the mill to saw what logs were at the mill, and to saw for a house. Showers went into possession before the time stipulated by the contract; ho failed to complete the work contracted for, and after a reasonable time had elapsed for its completion, Emery rescinded the contract and notified him to quit. By the terms of the contract, Showers was never entitled to the possession. He had not complied with the conditions which would give him the right of possession. Under the contract, then, he has no right of possession. Nor is there any proof—independent of the agreement— which discloses any right of possession in Showers. Emery exhibited his deeds which showed title in himself, and would authorize a recovery unless something appeared disclosing that Showers had *a right of possession. It is admitted, or if not, it has been proven, that the legal title was in Emery, and the only mode in which Showers could defeat a recovery, would bo by proof of right of possession in himself. Had Emory rested upon proof of legal title, Showers would have been compelled to defend his possession by production of the contract, and pi’oof that its stipulations, to confer the right by possession, had been complied with, nr have proven an independent right by possession, which is not disclosed in the bill of exceptions. But the plaintiff wont further than was necessary, and produced the contract and proved that Showers had not complied with its stipulations, and that he had notified him that he had rescinded the contract, and to deliver up the possession; and that a reasonable time had elapsed for Showers to have performed. Whereupon the court of common pleas ordered the plaintiff to become nonsuit, acting upon the hypothesis, as is suggested by the counsel, that Showers’ possession authorized the presumption of a deed. But oven that was a presumption of fact, to be left to the jury. We certainly do think there was some evidence adduced in this case tending to prove the plaintiff’s issue, and that the common pleas erred in directing him to become nonsuit, and that the Supreme Court, in reversing their judgment, were right.

But it is contended, on the part of counsel for plaintiff in error, that the payment of the money specified in the contract by Emery ■was a condition precedent to the performance of Showers, and therefore, as Showers was in under the contract by the consent of Emery, he could hold possession, although he had not complied with the conditions in the contract, which would entitle him to possession. This would be holding that the non-performance of Emery would be the performance of Showers, and would give Showers the possession of the land, when in law it only confers a right of action for breach of the contract. It is a novel doctrine to hold that on contracts for the sale or exchange of land, that the violation of the contract on the part of one can be considered *a performance on the part of the other, and thus be converted into a consideration for the transfer of possession and to compel title. In such cases the legal title prevails, and there being no equity to control the legal title, the only remedy is upon the contract. If Showers had desired to acquire the land, he should have performed, and then he could have hold possession and compelled title, and looked to Emery, upon the contract, for damages. It is true, if Emery had failed to perform a condition precedent, he could not rescind the contract. But that would not prevent a recovery, because Showers had not performed the condition on his part, which would entitle him to possession. But the state of case, as counsel suppose, does not exist, as the stipulations in the contract, on the part of Emery, are not conditions precedent to the delivery of possession to Showers. And the evidence is, that Showers has wholly failed to perform his part of the contract which entitles him to possession. Judgment affirmed.


author: Avert, J.

text:
    Nathan Button’s Administrator v. John B. Clark.
    An association of persons bought a tract of land, converted it into stock, gave their notes for a part of the purchase money, took a conveyance, and executed a mortgage to secure the payment. One of the company sold his interest for $1,750 to another member of the concern, who assumed the liability of this vendor to the original vendor, and gave his notes for the $1,750. The company failing to pay the purchase-money, the property was sold to pay the debt, by judicial sale, for a less sum than the amount due.

      Held, that these facts constitute no defense to an action on the notes, and did not show a failure of consideration.
    This is a writ of error to the Supreme Court of Portage county.
    The action below was assumpsit, brought by Clark against ^Pomeroy, the administrator of Button, upon three promissory notes, made by Button, on June 9, 1836, for $583.33J each, payable to Clark in six, twelv e, and eighteen months.
    The declaration is in the usual form. The defendant pleaded non assumpsit, and gave notice of special matter. On the trial of the cause to a jury, in the Supreme Court, a bill of exceptions was taken, which discloses the following facts :
    On January 1, 1836, Zenas Kent sold to John B. Clark (the defendant in error) N. C. Baldwin, T. P. Hardy, A. Seymour, D. H. Beardsley, S. J. Andrews, J. A. Foote, Nathaniel Button, and others, certain real estate in Eranklin, Portage county, for the sum of $75,000. Of this sum $15,000 was paid in hand, and the residue was made payable at future times.
    Subsequently, William Pomeroy and Charles S. Rhodes, who owned real estate adjoining that of Kent, sold the same-to other individuals for $40,000, part of which, $-, was paid in hand,, and the residue made payable at future days.
    These two sets of purchasers, united, stocked the lands purchased from Kent, and from Pomeroy and Rhodes; formed a joint-stock company, denominated the “ Franklin Land Company;” and represented said real estate by stock.
    In May, 1836, Kent conveyed the property sold by him to A. Baldwin, Kirkman, and Beach, in trust for those who purchased of him; and Pomeroy and Rhodes at the same time conveyed the property sold by them to the same trustees, in trust for those who purchased of them.
    Contemporaneously with these conveyances, said trustees mortgaged to Kent, and to Pomeroy and Rhodes, by separate deeds, the lands purchased of each, to secure the purchase money due them respectively; and- these mortgages were so drawn that the entire land purchased from Kent, and from Pomeroy and Rhodes, was held for the payment of each and every note due from each and every of their respective purchasers.
    On June 9, 1836, Button bought Clark’s *stock, which was but another name for his interest in the real estate purchased from Kent, and gave his notes therefor, and also executed his bond to Clark for the payment of the balance due from Clark to Kent, on account of the purchase of said land, then amounting to about $4,000.
    These notes constitute the foundation of the action below, and now amount to about $3,000.
    At the same time, Clark gave to Button a written agreement to transfer to Button the said stock as soon as Button should pay the aforesaid notes, or secure the payment of the same, and indemnify him against any liability to Kent for the balance due on said purchase.
    In the fall of 1836, Button died insolvent, without having paid the notes or Kent.
    In the winter of 1836-37, the purchasers from Kent, and from Pomeroy and Rhodes, were incorporated under the name of “ The Franklin Silk Company,” into which the Franklin Land Company ” became and was merged.
    In the winter of 1839-40, the legislature repealed the charter of the “ Franklin Silk Company ” because they assumed banking powers, but gave them five years to close up their business.
    The purchasers from Pomeroy and Rhodes failing to pay the purchase money due from them, Pomeroy and Rhodes, in 1839 instituted proceedings to foreclose their mortgage; and, in November, 1841, obtained a decree of foreclosure; and, in February, 1842, sold on execution all the property previously conveyed by them. The proceeds of this sale were insufficient to pay the amount found due Pomeroy and Rhodes by about $15,000.
    The purchasers from Kent also failing to pay, Kent, in 1843, instituted proceedings to foreclose his mortgage; and, in 1843, obtained a decree, and sold on execution all the property previously conveyed by him.
    At the time Kent obtained his decree, there was due to him from all the purchasers more than $64,000, and due to him from Clark individually $3,147.81.
    *The property sold under Kent’s decree was purchased by him at $27,285, leaving a balance still due to Kent, and to Pomeroy and Rhodes, of about $52,000.
    At the time Kent obtained his decree, Clark, as one of- the purchasers of said land, was personally indebted to Kent in the sum of $3,147.81; and they entered into an agreement whereby Clark was to pay Kent a sum less than that amount, submit to a decree for that sum, and execute to Kent a deed of his stock, in satisfaction of his own notes and his indebtedness thereon, which sum of money was received, and a decree taken by Kent, in pursuance of said agreement, though no deed of the stock has yet been executed.
    The sales of the real estate under the decrees of Kent and Pomeroy and Rhodes exhausted the property, and annihilated the-stock of the company.
    In the year 1844, more than a year after all the property had been-thus exhausted and its stock destroyed, Clark brought suit on-these notes, given by Button for stock.
    Upon this state of facts, the court below was requested to charge the jury that the plaintiff below could not recover, there being a failure of consideration, which the court refused to do.
    This is assigned for error.
    Otis & Wolcott, for plaintiff in error.
    Hitchcock, Wilson & Wade, for defendant in error.
   Avert, J.

The plaintiff in error claims that the facts shown-to exist in the case make out a defense upon two grounds •.

1. A failure of consideration after the execution of the notes.

2. A rescission of the contract.

To support the defense upon the first point, he cites Swan’s Stat. 685, allowing the want or failure of consideration -Ho be proved on the trial; and, in addition to this, repeated decisions upon the same question in several of the states.

That the .want or failure of consideration, when shown, constitutes a defense, is directly asserted in the statute, and is very-clear from the authorities referred to; so that we have only to look into the testimony and see if there is either a failure of consideration, or a rescission of the contract, to defeat an action upon tho-notes. Clark and others, whose names appear amongst the papers of the case, purchased a large tract of land, each having an interest in proportion to their share of the purchase money. A part, only, of the price of the land, was paid down; and to secure the remainder, a mortgage on the same premises was executed by the purchasers to the vendors. It was believed, at the time, to be an advantageous purchase, and that large profits would be realized from the investment. On June 9, 1836, the plaintiff’s intestate negotiated with Clark for an interest in the premises, and took an .agreement, under seal from Clark, for a certain proportion, described in the agreement as two and a half shares in the Franklin Land Company. In the agreement it was provided that he should pay to Clark the amount specified in the notes here declared upon, .and to Kent, one of the vendors, whatever balance of purchase money might remain, and he should be entitled to a transfer on the books of the company as soon as he should pay the several ■sums of money above mentioned, and indemnify Clark for any future liabilities to Kent. This agreement and the notes were executed on the same day. Now, had this investment made by the several purchasers of the land turned out, as was anticipated, to be a very profitable one, there would have been no failure of consideration ; the shares could then have been sold at an advance, and the mortgage debt could easily have been paid off. In that case, Clark would lose the benefit of the increased value of these shares; for he could have been compelled, if necessary, to convey them according to his agreement. Button stands, *then, in this condition: He is the owner, in equity, of the shares; is entitled, of course, to have all the benefit of their advance in value, and to take them at any time by paying the notes and mortgage according to his agreement; he may, for the purposes of this inquiry, be treated as •choosing to leave them in Clark’s possession ; and it is of no consequence if they are to depreciate, and a,t length to become of no value, whether they become so in his own hands or in the possession of Clark. If the interest of Clark at the time of the agreement was sufficient to constitute a valid consideration for the notes, and I do not see how this proposition can be denied, the notes at that time created a legal obligation to pay. Would it not be a new principle that should hold that obligation destroyed, because by some subsequent event, such interest loses its value ? If the vendor must bear the loss on the article sold, his notes should not be the limit of his demand when the article raises in value. The loss of this interest in the land then, by being sold to pay the debt for which it had been mortgaged, can not be regarded as a failure of the consideration of the notes in the declaration specified, and that ground of the defense must fail. Can a recovery upon the notes be prevented on the other ground taken—that the contract has been rescinded ? It must be remembered that Button, the purchaser of those shares, which are seen to be nothing but a certain interest in land, never paid any part of the notes, nor any part of the mortgage debt, according to his agreement, and as his -duty as the equitable owner of that interest required; that his representatives, as well as Clark, were made defendants to the bill of Pomeroy and Rhodes, for a foreclosure of their mortgage; and that by the proceedings upon this mortgage, a sale was effected, and only a part of the mortgage debt paid by the sale. To the bill in chancery, by which the mortgage given to Kent was foreclosed, the representatives of Button, as well as Clark, were likewise made defendants. And in this case, also, a sale of the whole premises was effected; and after applying the proceeds toward the payment *of the mortgage debt, a large balance was left unsatisfied. From the evidence it seems to be satisfactorily shown that all the lands purchased, in which must of course be included the two and a half shares aforesaid, were disposed of by regular •sale, under proceedings to foreclose the mortgages; and that, as they brought a sum much less than sufficient to satisfy the mortgages, Clark is chargeable with no fault because the lands were at length brought to a sale. It is claimed that Clark rescinded the contract, when he agreed to submit to a decree, and execute to Kent a deed of his stock, in satisfaction of his own notes and his indebtedness thereon. But it is believed, according to the evidence, that his agreement to execute, or his actually executing a deed for his stock, had not, and could not have had any greater effect to pass the stock, than the decrees and sales under them. Still, as the evidence shows, he has not up to the present time executed a deed, and thus has not done the act contemplated—to pass the legal title. Nor does it appear that Button' or his representatives have ever desired that a deed should be made; and for a number of years even before the sale of the lands under the proceedings to foreclose, there appeared to be no inducement for desiring the title; for they had lost all their value, except as contributing toward a discharge of the mortgage incumbrances. Looking at the whole circumstances of this case, we can not regard the contract as rescinded. If, in behalf of the representatives, there is any equity which should put an end to this contract, and prevent the collection of these notes, or which should demand relief in any other mode, the redress is properly to be sought in chancery. If there is any legal right yet remaining, it is in the power of these representatives to enforce it by proceedings upon the agreement under seal which is in their hands. They have no valid defense against the notes, and the judgment of the Supreme Court in Portage county is affirmed.


author: Avery, J. Read, J.,

text:
    *Moses Hockspringer v. Julius Ballenburg.
    The affidavit directed by the third section of the act to abolish imprisonment for debt, is not defective because it states the ground for a capias in the fourth “ particular ” of that section in the words of the act merely, to wit: “ That the debtor is about to dispose of his property with intent to defraud his creditors.”
    An indorsement upon the writ, of the amount for which the defendant shall be held to bail, is not necessary.
    This is a writ of error, directed to the court of common pleas of Harrison county.
    The original action was debt, prosecuted by the defendant in error to recover the amount due on a note under seal and on an account stated. The debt set forth in the precipe and affidavit was $938.78, and the damages $700. A capias ad respondendum was issued November 17,1846; the defendant arrested, and a bond in $2,000, for his appearance at the next term, executed on the same day, by himself and bail. At the appearance term, April 26, 1847, a motion was filed to quash the writ, which was heard and overruled, and a bill of exceptions was at the same time taken by the defendant, whereupon the appearance bail surrendered the defendant, and he was committed to prison and the bail discharged. Subsequently the defendant gave special bail; pleadings were filed, and the cause tried by a jury. The verdict of the jury found the debt, as above claimed, $938.78, and $48.55 damages, upon which judgment was rendered against the defendant.
    The affidavit to hold the defendant to bail is as follows:.
    “The above-named Julius Ballenburg maketh oath and says there is justly due from the said above-named Moses Hockspringer, to said deponent the sura of $940.28, over and above all discounts and payment on account of the same, on a certain note executed by said Hookspringer to said deponent, dated *August 26, 1846, and payable in fifty days after the date thereof, for $300, and on an account for goods, wares, and merchandise, sold and delivered by said deponent to said Hookspringer, at his request, on October 3, 1846, for $638.78; and the said deponent further saith, that the said Hookspringer is about to dispose of his property, with intent to defraud his (said Hockspringer’s) creditors.”
    The errrors assigned are as follows :
    1. The court of common pleas erred in overruling tho motion made by the plaintiff in errror to quash the writ of capias ad respondendum.

    2. ' The affidavit made by the defendant in error, on which said writ issued, is defective and insufficient, because the said affidavit does not state said Hookspringer had any property.
    3. Said affidavit is defective and insufficient, because tho affiant states therein and swears to a legal conclusion only, and not to any facts from which said conclusion could be drawn.
    4. The affidavit is defective and insufficient, because said affiant does not state any facts to “establish ” any one of.the particulars required by the statute, on which such a writ might issue.
    5. Neither the affidavit, the precipe, nor the writ, contain any indorsement of the amount in which the defendant should be held to bail.
    6. The general error.
    Wm. Kennon and T. L. Jewett, for plaintiff in error.
    Dewey & Shotwell, and Henry Stanbery, attorney-general, for defendant in error.
   Avery, J.

The questions discussed in the present case arise principally out of the act to abolish imprisonment for debt. Swan’s Stat. 646. In this act, it is declared that *no person shall be arrested or imprisoned on any mesne or final process, except in cases therein specified. Section 3 of the act is as follows, to wit: “If any creditor, his authorized agent or attorney, shall make oath or affirmation in writing, before any judge of the Supreme Court, or court of common pleas, justice of tho peace, or clerk of either of said courts, that there is a debt or demand justly due to such oreditor of $100 or upward, specifying, as neai'ly as may be, the nature and amount thereof, and establishing one or more of the following particulars;” which particulars, set forth in the statute, are five in number; but it is necessary here to specify only one of these, which is in these words, to wit: “That ho, tho defendant (meaning the debtor) has assigned, removed, or disposed of, or is about to dispose of, his property, with intent to defraud his creditors.” The statute, after having described the affidavit to be made by the creditor, directs that he shall file such affidavit with the clerk of the court of common pleas of the proper county, and such clerk shall thereupon issue a capias which shall be served, and the suit instituted thereby shall be, in all respects, conducted in the same manner as if this act—the act above mentioned—had not been passed. The law on the subject of writs was greatly changed by this act, and since its passage, a compliance with its specific provisions is made indispensable, before the person of the defendant can be arrested. It is denied by the plaintiff in error that there has been such a compliance in the present case. In point of fact, the creditor, before ho took his writ, did, as it appears from the affidavit given above, make oath in writing and before the clerk, according to the language of the act, and to fulfill the direction, that by such oath, he should show a demand justly due him of $100 or upward; he stated in this affidavit that there was justly due him $940.28, over and above all discounts and payment on account of the same. This is certainly a full statement, and very plainly just what the law required. Then as to specifying, as nearly as may be, the nature and amount of the demand, *the amount is given exactly, and the nature of the claim indicated, as consisting of a note and an account, each described with the fullness and accuracy, suited to a declaration in the action.

The remaining words of section 3 of the act, so far as they embrace the fourth of the particulars therein specified, have given rise to the principal discussion in the case. It is urged in argument by the plaintiff’s counsel, that in this affidavit the creditor swears to a legal conclusion only, and not to any facts from which the conclusion could be drawn. The language of the affidavit is, “ that said Hockspringor is about to dispose of his property, with intent to defraud his creditors.” Is the phrase, “Hockspringer is about to dispose of his property,” a legal con■clusion only ? A similar form of expression is used in four of the five particulars specified in this section. In the first, “tho defendant is about to remove his property out of the jurisdiction.”

In the second, “ that he is about to convert his property into money.

In the fifth, “that he fraudulently contracted the debt,” for which suit is about to be brought.

In the fourth, the particulars giving rise to this discussion, “that he has disposed of, or is about to dispose of his property.” Had he sworn that the debtor had disposed of his property, then evidently he would have sworn to a fact. . It is true, the mind draws conclusions from certain facts; and in the case under consideration, the creditor may be supposed to have witnessed particular acts in the debtor which usually precede the disposition of property, and may have hoard his threats or expressions showing a design to dispose of it; and from these facts, have concluded that he would certainly dispose of his property. Now, would not the affidavit be defective under this law, if it should state these facts, and all others that could, by possibility exist, leading to the' conclusion, and should omit to state the conclusion itself, that is, “that the debtor was about to dispose of his ^property.” These facts are not named in the act, and do not constitute themselves the thing required; though, from such facts, what is required may properly enough be inferred. The mode of expression, repeated so often in this section of the statute, is one that frequently occurs in popular language. Its meaning can be sufficiently understood; and it is the debtor’s being actually about to dispose of his property, and not merely circumstances that lead the creditor to suspect or believe it, that should appear distinctly stated in the affidavit. Nor is it perceived how the following words, viz., “ with intent to defraud his creditors,” can be regarded as a legal conclusion, in the meaning of the objection. The intention with which an act has been done, is habitually treated by the accurate pleader as a fact, in cases where peculiar accuracy of expression is required. In many sections of tho criminal law this term is introduced, and in the indictments founded upon such sections, the intention is always set out by averment as a fact.

But, supposing it proper and necessary to state the provision as it appears in the act substantially, is the affidavit, nevertheless, defective, in not stating any facts to establish the particulars in this case required? Tbo facts here intended must be such as would furnish evidence more or less conclusive of the existence of that which is required, before a capias can issue. There is no doubt but it would be proper or allowable in given cases, for the creditor to state the circumstances upon which he based his affidavit. But though it may sometimes bo proper, still, as the statute has not required any such statement, can the affidavit, in no case, bo sufficient without something of that kind.

It must bo remembered that this law allows an arrest upon a capias ad respondendum, on the affidavit alone of the creditor, not requiring, as in the case of a ca. sa., an affidavit and other testimony. And further, that by law, the fact sworn to in the affidavit to hold to bail, must be taken as true, without going into the merits. From this it results that the affidavit establishes the partieular upon which the'.capias *is allowed. The argument further claims that the affidavit under consideration ought not to bo hold sufficient, because the debtor, if it bo so held, will not bo protected against an unjustifiable arrest, and the creditor, though guilty of swearing to a falsehood, could not be punished for perjury. Without stopping to inquire whether the introduction of additional statements into the affidavit, would be more or less likely to produce a conviction, in case of false swearing as to the necessary fact, it is sufficient to say that, as it seems to us, perjury may be committed in the making of such an affidavit, and that it may be punished.

The debtor was or was not about to dispose of his property; and if the charge was false, he would' be one competent witness to prove it so. There might, in many cases, bo no great difficulty in proving enough in addition, to establish the guilt before a jury; nor would- the debtor bo, of course, without the civil remedy. This objection we do not consider as fatal to the affidavit. Another alleged cause of error is that the affidavit does not set forth that the debtor had any property. This is not required, by the act, to be stated as a distinct proposition, but, in fact, it sufficiently appears in the affidavit.

The statute in the present case, both in the form and substance of the affidavit, has been followed. In setting out the cause to justify a capias, the very words of the statute have been adopted. And upon the examination of the whole of the affidavit, no defect is discovered to call for a reversal of the judgment. Several other causes of error are assigned, and one shown upon the record-One of these is that there is no indorsement on the writ of the amount in which the defendant should be held to bail.

It is supposed that the case of BEerf ot' al. v. Shirley et ah, 10 Ohio, 263, shows this to be a fatal error. It will be seen by a reference to the opinion given in that case, that this cause of error is not taken notice of, though all the others are separately examined ; and it would be inferred, from the opinion itself, that this cause was, from inadvertence, *named with the rest, and was not in reality decided. But, besides this, one of the members of the court, who assisted in deciding that cause, is a member of the court now, and recollects that no such principle was then decided. We do not regard this objection now as valid. In this case the sum sworn to was indorsed on the writ; and double the amount of that sum -is usual and proper for the bail bond, but no objection to it would exist if the amount were cither more or less. On the examination of all the causes stated in the motion to quash, and in the assignment of errors, we discover no cause for reversing the judgment. It will therefore be affirmed.

Read, J.,

dissenting. I can not agree with a majority of the court, that an affidavit in the language of the statute, that á debtor “ is about to convert his property into money for the purpose of placing it beyond the reach of creditors,” is sufficient to warrant a copias under the act to abolish imprisonment for debt.

That act abolishes imprisonment for debt, and the only cases in which a capias can issue, either as mesne or final process, are exceptions. Before a party can have the benefit of these exceptions, he must bring himself strictly within the provisions of the act— to authorize a capias on mesne process, the creditor, or authorized agent or attorney, must make oath or affirmation in writing, that the debt or demand is justly due—of $100 or upward, specifying as nearly as may be the nature and amount thereof, and establishing ono or more of the following particular's, which are the excepted cases warranting the capias. The excepted cases are those of fraudulent motive. A simple affidavit of the motioe, without specifying the overt indications which disclose such motivo, I hold does not establish the existence of such motive within the meaning of the act. The only earthly mode in which the motives of the heart can be ascertained by human intelligence is from the declarations and acts of the party. The declarations and acts, then, of *the party, which disclose the motives which alone authorizo a seizure of his body, should be specified in the affidavit to estab. lish its existence under the act. The existence of a motive can not be established in law by a simple oath. To establish motive s you must prove declarations and acts and circumstances, which indicate the motive. A simple oath that a man had a particular motive, feeling, or interest, without any more, is no evidence in court; it proves nothing, is incompetent, and will be rejected. The only mode permitted by the law to look into the window of the heart and ascertain its feelings, motives, and intentions, is through overt acts, declarations, and conduct, which manifest the existence of the motive or feeling. There would be no safety or sense in any other rule, because there is and can be no other mode of determining the existence of the motive or intent. To make an affidavit, then, that a person did an act which, of itself, was no proof of the motive assigned, without proof of the declarations or acts which disclose it, does not establish the motive. But to make oath that a party is about to do an act with a particular motive, without stating declarations or circumstances which evidence the intent to do the act, or the existence of the motives accompanying the act which alone indicate its wrongful character establishes nothing, and can establish nothing. For a debtor to convert his property into money does not subject him to a capias, unless it be done with the purpose or motive of placing it beyond the reach of creditors. How can a creditor know that a debtor is about to convert his property into money, unless there be some declaration or act indicating that intent ? And if a debtor should convert his property into money, how does the creditor know that it is done for the put-pose of defrauding creditors, unless there be some declaration or act disclosing such purpose ? It requires both the intent to convert his property into money, and the purpose of placing it beyond the reach of creditors. And this must be established to authorize a capias. But the bare intent to convert is not sufficient, but, in the language of the act, he must be about to do

*it. The word about, means nearness of time, quality, or degree, or making preparations +o do a thing, or being actually engaged in doing something. It is one of those words which has a variety of meanings, according to the mode of its use. A man is about to start on a journey, or about his business. A man is about to convert his property into money; that is, he is near to doing it, or is making .preparations to do it. This last is .perhaps the true meaning of the word, as employed in the act. A debtor, then, must have the intent to convert, and be near to carrying it into execution, or must be making preparations to do so, with the fraudulent purpose to form the exception to the general act. The intent may exist, then, to convert property into money for the purpose of placing it beyond the reach of creditors, without authorizing a capias, unless that intent is near to being carred into execution, or unless the party is actually making preparation to convert with the fraudulent intent. The affidavit, then, should disclose the intent to convert—the dispositions or preparations to speedily convert, with the fraudulent intent—to warrant the capias. All these matters are only to be indicated by declarations and acts, being all matters of intent and motive; and unless the affidavit set forth the declarations and acts disclosing the intents and motives of the debtor, it establishes nothing—it is in fact not an affidavit at all, becauso'it has not the substance of an affidavit, as it proves nothing. It is not evidence to establish motive or intent, and could not be taken as evidence of motive- or intent, in any case where motive and intent were to be established. How, then, can it be said that such an affidavit establishes the motive and inteut, and authorizes a capias? To hold that such an affidavit warrants a capias, not only contradicts the express words of the act, as it establishes nothing, if we have regard to the rules of evidence or even possibility, but exposes the whole act to defeat, and subjects every debtor to the disposition of the conscience, or fears or suspicions of his creditor. There is no mode of convicting a creditor of perjury upon such an affidavit. Because it is impossible to ^determine whether the affiant believed what he made oath to or not; and further, it is impossible to dispirove that such intents and motives may not have been entertained by the debtor. A very suspicious or avaricious creditor would believe that his debtor intended to cheat him if he failed to pay on the day the' debt was duo, and would be ready to swear to all manner of motives and intents.. But if such a man had to swear to declarations or acts which indicate intent, ho-would have no power over an honest debtor to seize his person.

But what appears to be inconsistent is, that after judgment it is admitted by the whole court, and such has been the universal lino of decision upon the circuit, that the judgment creditor can not have a capias ad satisfaciendum, unless he make affidavit and also establish by other proof, to the satisfaction of the court or judge, the particular state of facts which will authorize the capias; one of which is the same as that which authorizes a mesne capias, that the judgment debtor is “about to convert his property into money to prevent its being taken in execution.”

The words of the statute to which this construction is given are, that “ the court or judge shall be satisfied by the affidavit of the applicant, and such other testimony as he shall present of the existence of either of the following particulars.”

The words of the statute for mesne capias are, “shall make oath or affirmation as to the existence of the debt, its amount and nature; and establishing one or more of the following particulars.”

Now what material difference is there between the phrase “satisfy by affidavit and such other testimony,” and to make affidavit of a fact, “ and establishing "? To obtain a capias ad respondendum, the statute requires that the creditor, etc., shall make affidavit of certain facts, to wit, that the debt is due, and its nature and amount, and establishing one of the particulars specified. The capias may then issue. How establish certainly but by proof? In the one case, it is by *affidavit and other testimony; fn the other, by affidavit and establishing. If establishing the existence of a fact in law means by proof, the phrases in meaning are the same. Why should the legislature intend to discriminate and make it more difficult to procure a capias after judgment than belore? In both instances the body of the debtor is seized, and for the same reason, to wit, fraudulent motives. But in the one instance the debt is established, and in the other it is not. Yet, after the debt is reduced to judgment a capias is not authorized, unless the fraudulent intent be established, both by affidavit of the creditor and other proof; and yet belore the debt is found due, it is held that the creditor may both establish the existence of the debt and the fraudulent intent by his own simple affidavit, that such motive and intent exists, without stating the acts or declarations indicating such motive and intent. • That is, that the legislature intended to be more lenient toward a debtor, where the debt was established by trial and judgment, guilty of a fraudulent intent, than toward a debtor guilty of a fraudulent intent before judgment. That is, the legislature intended to distinguish botween a fraudulent intent before judgment and a fraudulent intent after judgment, by requiring stricter proof to obtain a capias in the one instance than the other; and that, too, in requiring the least proof, where, upon general principle, they should have required the strongest. It can not be said that a capias or mesne process is less onerous, beeáuse, in that case, a party may not only be compelled to lay in prison for the satisfaction of the debt, but may be held in prison before the debt is established. The legislature never could have intended that the fraudulent motive, in either case, should be established by different kinds or different degrees of proof.

But, to obtain final capias, it would not be contended that simply swearing to the motive, without stating the declarations or acts which would indicate it, would be sufficient. Such swearing would not be the “.other testimony ” meant by the statute, nor would it be contended that the affidavit *of the party allog- [315 ing such motive or intent, without stating facts and circumstances, would be sufficient to satisfy the court or judge.

It would not seem, then, to be aright construction of the act, to hold that less degrees of evidence are sufficient to establish the fraudulent intent, which would authorize a seizure of the body upon mesne than upon final process. And I can not concur in the opinion that an affidavit, which states motives and intents, without the facts and circumstances which indicate thorn, is sufficient to establish their existence. I think to so hold violates the statute, and is opjjosed to reason,'and principle, in regarding that as an affidavit, in legal sense, which establishes no fact.

The ’construction which I give to this act, and the requirements which I hold to be necessary in an affidavit establishing motive and intent, have been given and required by the Now York courts, acting under a statute for the abolishment of imprisonment, for debt, similar to our own. I know there has been a difference of opinion in reference to affidavits for writs of ne exeat; but even when such affidavits have been held sufficient, it has always been accompanied with an admonition that it were far better to state facts and circumstances.

But 1 hold this is a question which may well stand upon reason and the impossibility of swearing to motive, apart from the overt manifestations disclosing it, and the meaning and requirements of the-statute.


text:
    *William Cartwright v. Peter Sole.
    The judgment for costs rendered in the Supreme Court, upon the affirmance or reversal of a judgment, only embraces the costs accruing on error, and none of the costs which accrued in the court below.
    This is a writ of certiorari, directed to the court of common pleas of Pike county.
    Cartwright, the plaintiff in this proceeding, sued Sole in the court of common pleas of Pike county, and on the trial of the cause was nonsuited. He then sued out a writ of error from the Supreme Court, and the latter court reversed the judgment of the common pleas, with costs, and remanded the cause for further proceedings.
    A mandate having been sent to the dourt of common pleas, the clerk of that court, in taxing costs against Sole, included the costs of Cartwright of the term at which the case was tried. Sole thereupon moved the court for a retaxation of costs, which motion was sustained, and the clerk directed to tax against him none of the costs which accrued in the common pleas. To reverse this decision of the court of common pleas, upon the motion for a re-taxation of costs, this writ is prosecuted.
    Le Grand Byington, for plaintiff.
    Thurman & Sherer, for defendant.
   Read, J.

This case was reserved to declare the rule of taxation of costs under statute for the instruction of clerks, and to remove doubts which seem to exist with some as to what costs are to be taxed on an affirmance or reversal of a judgment on writ of error. Section 122 of the practice act, Swan’s Stat. 681, ^provides, that when a judgment is reversed, the plaintiff in error shall recover his costs; when a judgment is affirmed, the defendant in error shall recover his costs.

The judgment of reversal or affirmance only embraces the costs made under the proceeding or writ of error. In ease of affirmance, there has already been a judgment for the costs of the original proceeding; on reversal the costs of the original proceeding must abide the event of the suit.

The clerk of the Supreme Court taxes the costs embraced in the judgment for costs in the Supreme Court on writ of error.

The court below, therefore, did not err in refusing to permit the court to tax all the cost of the original proceeding on the mandate to carry the judgment of reversal of the Supremo Court into execution. Judgment affirmed.


author: Avery, J.

text:
    Nathan Clark v. Schuyler Strong and others.
    A bill to subject an equitable interest in land, in pursuance of section 16 of the act directing the mode of proceeding in chancery, must show a judgment recovered, and that there is not real or personal property of the debtor sufficient to satisfy the same.
    A bill defective in these particulars does not prevent the assignment of such equity to a third person, not a party to the proceeding in chancery, during the pendency of the suit.
    This is a bill of review, reserved in tho county of Lorain.
    The facts essential to an understanding of the case are stated in the opinion of the court.
   Avery, J.

The original bill was filed in the common pleas of Lorain county, on January 3, 1841, by *said Nathan Clark, against Samuel Strong, Daniel L. Baldwin, Barna Meccher, Quarters Gilmore, David P. Merwin, and Benjamin C. Merwin. The bill set forth, that said Samuel Strong, on August 9,1836, executed his note for $937.50, payable to complainant or bearer. Complainant indorsed the note to one Wendall, and Wendall indorsed it to Horace D. Clark. Clark sued complainant as indorser, and, at the April term, 1810, of said common pleas, obtained judgment for the amount of note and interest, with costs. Execution has been taken out'by Clark, on the judgment; a sale under it made of personal property; and a levy for the balance on complainant’s land. The bill states, also, that Strong has no property subject to execution, and that he is insolvent; but that he has an equitable interest in two lots of land, to wit: Lots 89 and 104, in the village plat of Black River township, in said county, by virtue of an article of agreement given by said Baldwin, Meccher, and Gilmore ; that Strong has paid the amount due on the contract; is entitled to a deed, and can obtain it on request; that complainant has recently commenced a suit at law against said Strong, for the amount due on said note; that Strong, confederating with said Daniel P. Merwin, his brother-in-law, to defraud complainant, and deprive him and other creditors of their just rights, has recently procured a deed of such lots to be executed by said Baldwin, Meccher, and Gilmore, purporting to convey the same to said Merwin, for the benefit of said Strong’s wife, and that said deed is ready to be delivered at the instance of said Strong. The prayer of the bill, besides that for general relief, is, that the defendants answer the promises, and that they be enjoined from convoying away the lots or the title to them, either legal or equitable, till the matters set forth in the bill can be heard in equity; that Strong’s title be subjected to the payment of the claim on which suit is commenced as aforesaid against said Strong; and when judgmentshall bo obtained on the note, a sale of Strong’s interest in the lots be decreed, to satisfy said judgment. *The bill was sworn to, and an injunction as prayed for allowed.

Strong answered on April 16, 181-2. Honied that at that time, or at the commencement of the suit in chancery, he had any interest whatever in lots 89 and 104. He admits in the answer, that ho had owned the article for the lots; but that in October, 1840, he sold all his interest to Schuyler Strong, for $300; that he was indebted to said Schuyler for money had of him, and since that time he has had'no interest whatever in the lots; that Schuyler sold the lots to Mary Strong, his mother, for about $370, which she paid in cash for him. Ho denies that ho intimated, that he would convey the lots to his wife. He states that his wife was willing to convey her right of dower in a certain piece of land, if said two lots could be deeded to her, or to some one for her use, and said Strong was also willing, provided he could make any arrangement to purchase the article of said Schuyler; but no such arrangement was ever made. He denies all confederacy with said Merwin, and all fraud-.

On January 21, 1843, complainant filed a supplemental bill, stating, that at the October term, 1841, of the said common pleas,' he obtained a judgment on the claim aforesaid, against said Samuel Strong, for the sum of $1,050.22 and costs; that the judgment is still unsatisfied ; that Strong has not property, subject to execution, sufficient to satisfy the same: and therein complainant prayed that said defendants, Strong, Baldwin, Gilmore, D. P. and B. E. Merwin, answer thereto; and that said two lots bé subjected to the payment of said judgment.

On September 19, 1843, said Daniel L. Baldwin answered, saying that the amount due for the lots was principally paid; but no deed had then been made for them.

On May 2, 1844, complainant filed an amended bill, making John W. Allen, Jane Harter, and Hiram Griswold, parties, because the interest of said Barna Meeeher had been conveyed and vested in them. Afterward, the *death of Barna Meeeher was suggested, and Daniel Baldwin and Anna Meeeher, his administrators, made parties. On November 25, 1844, complainant filed another amended bill, to make Schuyler Strong, a party defendant, who demurred to the bill.

At the May term, 1845, of the common pleas, the cause was hoard on the demurrer, when the demurrer was sustained, and the bill dismissed. Complainant appealed to the Supreme Court.

On August 5, 1846, Schuyler Strong filed his answer in said Supreme Court; in which he states, among other things, that he had paid to said Samuel Strong about $500 toward the purchase of what was called the Root farm, and for which the said Samuel could give him no title; and that for the purpose of saving said Schuyler from loss, said Samuel, on October 20, 1840, assigned him the article for lots 89 and 104, in part to indemnify him against loss on account of the $500 so paid, and that he, said Schuyler, did not at the time, nor when giving his answer, think the property assigned sufficient to satisfy the $500 and interest; that in July, 1841, he sold and assigned the article for said lots to his mother, Mary Strong, for $370; that at'the time of so assigning the article to his mother, he did not know that this suit in chancery was pending ; and that from that time to the time of his answer, he has had no interest whatever, either legal or equitable, in said lots 89 and 104, or in said article for the same.

At the August term, 1846, of the Supreme Court in Lorain county, this cause came on to be heard upon bills, answers, depositions, exhibits, etc., when the injunction was dissolved and the bill dismissed.

This bill of review was filed September 8,1846, and an amended bill of review on September 29, 1847.

In this amended bill, it is stated that before the date of tho decree in the Supreme Court, to wit, about October 1, 1845, Schuyler Strong was paid, or payment was ^provided for him, from property assigned to him by said Samuel Strong, as stated in the bill of review, to the full amount of the debt from said Samuel to Schuyler, for which said lots 89 and 104 had been assigned to him, and Samuel Strong became entitled to the interest in said lots, or the proceeds thereof, in the hands of said Mary Strong. In this last amended bill, the complainant claims, that, by the filing of his original bill, he gained an equitable priority in said Samuel Strong’s equitable interest in said lots, over any one claiming interest in the same from, or under, the said Schuyler Strong, subsequently to the filing of said original bill. He states that he had no knowledge of this payment or provision for the payment aforesaid of said Schuyler Strong, at the time of the decree rendered by the Supreme Court in this case, and that not until a few days after the date of that decree, was said money actually paid to said Schuyler Strong. And he states his belief, that for the want of knowledge and proof of said last-mentioned facts in the original cause, he was prejudiced, and the said decree rendered against him, when it should have been rendered in his favor.

To the amended bill of review, Samuel Strong has answered; but his answer is objected to, because it is out of time; and it is claimed that the whole case will stand, as upon the demurrers both of Schuyler and Samuel Strong.

The first error assigned is, that the decree was rendered against the complainant, when it should have been in his favor.

The second is, that the decree is contrary to equity.

The other errors are, that the decree was not pronounced in open court; that the dismissal ought not to have been a general dismissal ; and that the decree does not show that the case was heard upon the replications filed by the complainant. These three last-named errors are not supposed to require any particular remark.

Under the two first, the questions presented in the case will be considered.

*The decree, it is contended, is erroneous and ought to be reversed, because it is contrary to the evidence. This, then, is purely a matter of fact; and it concerns the transfer by this Samuel Strong oi his equitable interest in the lots before mentioned, numbered 89 and 104; a fraudulent transfer, as it is alleged.

To decide this point, answers, depositions, and exhibits, somewhat voluminous, have been examined, which need not be spread out here. Nor will it be useful to employ time, or occupy space in bringing all the facts to view, or in attempting to weigh the numerous circumstances that prove or disprove a fraudulent design. No principle of law would be decided in all that investigation. Before the court upon the circuit, the facts were the same as they are here now before us; they were not then doomed sufficient to establish fraud in this transfer. There are doubtless circumstances of sus]ñcion against the honesty of this transfer. But enough does not appear, after examining the whole of the evidence, to induce us to disturb that decree, independently of another view which we have taken, and which would be conclusive in the case.

The original bill, it will be remembered, was brought to subject equities in the hands of a debtor. Section 16 of the act directing the mode of proceeding in chancery, provides that where judgments at law, or decrees in chancery, have been obtained against any person, and the debtor has not personal or real estate subject to levy or execution sufficient to satisfy the judgment or decree, but has equitable interests in real estate, the same may be subjected in chancery to the payment of said judgment or decree. 'Under this section, the present complainant could have proceeded, if his claim had been in judgment when he filed his bill, and there had been no sufficient property of a description which could be sold on execution at law. Now, whatever may have been the rights of a creditor before the passage of this law, they are, since the passage, undoubtedly to be subject to its regulations. A case is given, indeed, in ^section 15, after suit commenced and before judgment; but it is unlike the present. If the complainant can find authority anywhere, it is in section 16. But to be entitled to the benefit of that law, he must have established his right by obtaining a judgment; and then the aid of chancery may be invoked where there is no legal estate to satisfy the judgment. We are all of the opinion that a demurrer could have been sustained to this original bill; and further, that as the transfer of this equity from Schuyler Strong to his mother, Mary Strong, took place bofore the date of the judgment against Samuel Strong, her equity would be prior to that of the complainant; that in this case, the equitable interest being in the hands of the said Mary Strong, a decree in complainant’s favor could not have sold or put this equity to sale. There was not a lis pendens such as would make void the transfer and dispense with the necessity of making Mary Strong a party ; and in the opinion of a majority of the court, as there was no authority .for proceeding in chancery in the original bill, no amendment or an addition of parties could have remedied the defect; nothing short of an actual or implied waiver in the progress of the cause, by the party holding the equities, could confer such jurisdiction over the subject and person as to bind thorn by the decree. The principle just recognized as applicable to the case, strikes also at the foundation of the amended bill of review, and denies the right as claimed by the complainant.

L. F. Hamlin, and Hitchcock, Wilson & Wade, for complainants.

R. Wood and H. D. Clark, for defendants.

But aside from this consideration, the new matter alleged would not be sufficient to reverse the decree in either aspect as presented. It has no influence to prove fraud in the transfer, and it is too late for the complainant to seek for an appropriation of this money to the satisfaction of his judgment. As it has been paid in since the final dowee was rendered, there is no reason why the decree should bo reversed. The whole proceedings have been allowed to assume an aspect never originally contemplated, for the sake *of charging this money in the hands of a debtor of the judgment debtor. The bill of review is dismissed.