text:
    *Muskingum Valley Turnpike Company v. Nahum Ward.
    A transfer, by a subscriber of stock in a turnpike company, to a fictitious person, is void.
    A notice to pay installments of subscription to the treasurer of a company, implies that the payment is to be made at his office, and is a sufficient designation of the placo of payment.
    Where the law requires “at least sixty days’ notice” to be given of the time and place of payment, a single notice, given at least sixty days before tho time of payment, is sufficient; it is not intended that notice should bo given sixty consecutive days.
    This is a motion for a new trial, in an action of debt, reserved from Washington county.
    On the circuit a verdict was taken for the plaintiff, subject to the opinion of the court on this motion.
    Tho action was brought to recover of the defendant, as a stockholder of the company, a “ subsequent installment ” of ton per cent, upon his stock, and also the penalty thereon under section 6 of the act to provide for the regulation of turnpike companies. Swan’s Stat. 974.
    The Muskingum Valley Turnpike Company was incorporated in 1838 (36 Local L. 97), and is regulated by the general act relating to such companies. Swan’s Stat. 974. Section 2 of this act provides that not more than five per centum on each share shall be demanded at the time of subscribing, nor more than ten per centum at any subsequent installment; and at least sixty days’ notice shall be given in some public paper in general circulation, printed on or nearest to the route of such intended turnpike road, of the time and place or places of paying in any installment subsequent to the installment paid at the time of subscribing ; provided, also, that no installment shall be called for in less than sixty days from the day of payment of any preceding installment.
    Upon tho trial of this cause on the circuit, the plaintiff, having proved that a “ call ” of ton per centum on tho shares was made by the company on April 7,1840, in order to show that they had complied with the requisitions of *section 2 of the statute entitied “ an act to provide for the regulation of turnpike companies ” (Swan’s Stat. 974), in giving the notice of such calls therein roquired, produced and proved that they had caused to be published for four successive weeks, in a newspaper in general circulation printed on the route of the road, next succeeding its date, the following notice:
    “fourth installment.
    “Notice is hereby given that the stockholders of the Muskingum Valley Turnpike Company are required to pay to the treasurer of said company, on or before the 1st day of July next, a further installment of ten percent, on the capital stock, boing'$2.50 on each share.
    “ By order of the board of directors,
    “ D. P. Bosworth, Secretary.

    “ Marietta, April 28, 1840.”
    To which the defendant objected as insufficient, because :
    1. It is not a notice of the “place ” of payment.
    2. It should have been published “sixty days.”
    The defendant then proved that, prior to the making of said call, ho had assigned all his stock in said company, upon the books, to Richard Roe, whom he admits to bo a fictitious person. The defendant claims that this assignment amounts to an abandonment of his stock.
    John Welch, for defendant, in support of the motion, contended
    1. The notice is insufficient; it should specify the place of payment.
    This is expressly required by the statute; it is equally required by the circumstances of the case. The stockholders ai’e usually in such companies numerous, widely spread, and, some of them, at least, very ignorant. Many of them do not know who the treasurer is, or where he keeps his office; or whether he receives money at one place, or at several places. The stockholders are usually scattered all along the route of *the road, sometimes hundreds of miles, and the business being transacted entirely by directors, they know little or nothing about the polity, officers, etc., of tho company, except as places, names, etc., are pointed out to them in a direct notice.
    There is nothing in this notice specifying the place where payment is to bo made, or the person to whom it is to be made, except what is contained in the single word “ treasurer.” The stockholder would have to learn, 1'rom other sources, who the treasurer was, where his office was kept, and the fact that his office was the place where he received installments.
    If the stockholders are to be presumed to know that there was a treasurer, that he kept an office, and where the office was, they would have no need of any notice at all of the place of payment, for they certainly would also be presumed to know that the treasurer’s office was the place of payment. No notice of the place of payment, therefore, was necessary; and the statute must be construed as merely requiring notice of the time of payment.
    2. It should specify the person to whom payment was to be made.
    3. The notice should have been continued for sixty days.
    “ Sixty days’ notice” is equivalent to notice for or during sixty days ; strictly and grammatically equivalent. Such i's its obvious construction", pointed out by its Bubject matter. Such was in fact the intention of the legislature, as will appear by comparing the language of this act with other acts of the legislature requiring a notice to be given.
    The object of requiring time in such notices is not so much to enable the party to meet its requisitions as it is to give him an opportunity to see it. It is usually for both purposes.

      Wo have many statutes requiring these public notices to bo given, either in papers or in manuscript. And it seems to mo to be the policy of the legislature, in all cases whore similar language is used, to require the notices to be continued during the period mentioned; and such, I believe, has been the construction *of our courts. Such is our statute, for notice to be given by the commissioner of insolvents. Swan’s Stat. 446, sec. 25. Also, by the sheriff on executions, 472, sec. 9, and 474, see. 14, etc.
    It is seldom that a notice is required to be given in the papers, or by handbill, where it is not intended to keep the notice before the public some time. Where such intention does not exist, that is, where only a single act of publication is required, the language is very different. This will appear by looking at our statutes requiring notices of “ elections,” Swan’s Stat. 302, sec. 1, and 306, sec. 17, where the governor and sheriff are required to insert a notice-days before the election.
    Such also is the language of our statute as to 11 partition,” 614, sec. 3; “petitions to the legislature,” lb. 632, sec. 1; “roads,” lb. 790, sec. 5; and “attachments,” lb. 81, sec. 3.
    In these acts the language is decidedly different. The party, instead of being required to give so many days’ notice, by advertisement, is required to give notice so many days before, by inserting, etc. If such had been the intention similar language would have been used here. ' I think there can not be a single statute found which, by the common consent, has been construed to require only a single act of publication, or which has been so held by the courts, where the language is similar to that of this statute, and where it is not specific and certain, as in the cases of “ elections, partition, roads,” etc.
    It is very seldom that this form of expression, “give so many days’ notice,” is employed in speaking of a notice which, from its nature, necessarily consists of a single act of personal service. The only instance I can find is the statute for “ amercement ” of sheriffs. Swan’s Stat. 484, sec. 31. And here, as in all such cases, the language is controlled by the subject matter; the notice is to be served, and is to be in writing, and therefore can not be continued. In all other.cases, as “certiorari,” Swan’s Stat. 516, sec. 60; “depositions,” lb. 321, sec. 2; “forcible entry,” lb. 4^ see. 3, etc., the language is in the other form, requiring in terms a single act of service.
    *That this suit can not be sustained without proving a compliance with the statute, will not be denied. A compliance must bo averred in the declaration as well as proved at the trial. 9 Ohio, 136.
    The courts arc very strict in requiring a compliance with the requirements o,f statutes requiring notice in such cases, and that “ doubtful words will be construed most unfavorably to the company,” will appear by consulting Wadsworth on Joint Stock Companies, 323, 338; Law Library, March, 1843, 190, 198.
    3. The defendant did not own stock at the time the call was made.
    The act gives the right to transfer their shares. A stockholder who has assigned is not liable, even where he assigns to ui insolvent person. War. Joint S. Co. 321; 7 Term, 36.
    If there was no assignment here, we contend that the act of tho defendant amounted to an abandonment of his shares. A man can abandon his property whenever bo pleases. An assignmont to an insolvent is the same as an assignment to Richard Roe. Either amount to an abandonment.
    The design and policy of the law is, that the stockholder shall stand liable to calls as long as he remains an owner, and no longer. He tacitly agrees, when he subscribes, to respond to calls made while he owns or claims the stock. When stock is thus abandoned, or assigned to an irresponsible or unreal person, the company owns it, or may own it, by declaring it forfeited. The original stockholder is estopped from claiming it, or any of the rights of the company, and can not be subjected to any of its burdens. He is no longer one of the corporators.
    Goddard, Nye & Convers, for plaintiff:
    A shareholder could not discharge himself from his obligations to his associates by a fictitious assignment of his stock.
    *The defendant cites 7 Term, 36 ; but the language of the court shows that the case arose under a very different act of incorporation from that which we are now considering. Lord Kenyon says: “ On looking through the act of parliament, it is clear that the legislature meant that the parties should only be liable to the payment of their shares so long as they individually continue members of this company; that is, so long as they have property which constitutes them such.”
    Again : “ The act says that persons who have subscribed, and their assigns, shall bo deemed proprietors.”
    So, Mr. Justice Ashurst says: “ The only restriction imposed on the power of alienation is, that the owners shall not assign until all the money due at the time of assigning is paid.”
    But if our statute, and that which was before the court of king’s bench, in 7 Term, were identical, the defendant would have advanced but a stop in his case. He might then have shown a power to assign ; but the fact of actual assignment would still remain to be established. To constitute a valid assignment of property of any kind, we suppose there must not only be an assignor, and a thing assignable, but an assignee. An insolvent person may be an assignee. He is still a person. But a fictitious person is no person. An assignment to such is a more nonsensical act.
    Nor, we apprehend, can this pretended assignment be regarded as such an abandonment of his interest in the company as to exempt the defendant from liability for the subsequent installments. His original subscription not only secured to bim rights, but imposed upon him duties; and nothing can be more inconsistent with all our notions of such associations than that the obligations of a shareholder can be thrown off at pleasure.
    As to the notice. The language of the statute is: “ At least sixty days’ notice of the time and place, or places, of paying in any installment subsequent,” etc. The act contemplates the payment of installments at different places or points on the route of the road, and this for the convenience of the stockholders. Now this notice does not, it is true, in terms, ^designate a place or places where payment is to be made; it goes something beyond the act itself in accommodating those who are to be called upon to pay. It designates an officer to whom payment may be made, and the place is either his office, or wheresoever he maybe. The stockholders are presumed to know him, and to know where he can be found. Indeed, it is obvious that a treasurer of a company has a place of doing business, and that need not be indicated in a notice to the members of the company, whose treasurer he is. Notice to pay to him may, therefore, be well construed, as notice to pay at his office.
    As to the objection that the notice was not continued sixty days:
    The notice was dated April 28, 1840. It was published in a newspaper in general circulation, and printed on the route of the road, for four successive weeks next succeeding the 28th April. The first publication was sixty-two or sixty-three days prior to the 1st July, on which the installment was required tobe paid. It was continued the usual period of an advertisement — three or four weeks. It was continued as long as was useful.
    It is argued that the several cases in which, by our statutes, notice is required to be given, may be divided into two classes: 1. That class where the object of the notice is to enable a party to heed the requirements of the law; and, 2. Where the object of the notice is to increase the chances that the fact may be made known to a party. It is, however, admitted that both objects are usually designed. We will not stop to inquire into the propriety of this arrangement of the various notices required by law, and cited from the statutes, but will call attention to a class which has been entirely overlooked, viz: those cases where the legislature have specified the number of insertions.

      The auditor shall publish the delinquent list at least four weeks, between the 1st of October and the 1st of December. Swan’s Stat. 112, sec. 30.
    Notice of pendency of petition for divorce shall be published in a newspaper six consecutive weeks. Swan’s Stat. 292, sec. 2.
    ^Notice of the filing of a guardian’s accounts shall be published in a newspaper for throe weeks successively. Ib. 431, sec. 5.
    Notice of the pendency of chancery suits shall be published six consecutive weeks. Ib. 701, sec. 3.
    In all these cases a continued publication is prescribed, for the very purpose of increasing the chances of its being seen by an absent party, whose interests are to be affected. Yery different language this from that employed in the turnpike act, and for the reason, that the object is different. Sixty days’ notice is required here to enable the shareholder to collect his means and prepare for the payment, and this is rendered entirely obvious, by the proviso at the end of section 2, page 975, prohibiting calls from being made faster than at intervals of sixty days.
   Birchard, J.

The reasons urged in support of the motion of a new trial, which we will examine, are:

1. That the defendant was not a stockholder at the time the call for an installment was made.

In support of this position he relies upon the fact that, prior to the call, he had transferred his stock to a fictitious person, which, he claims, is an abandonment of his stock. The assignment to a fictitious person is a mere nullity. It transferred no right, simply because there was no real person to receive it on its passing from the original proprietor. Assuming it to be sufficient evidence of an abandonment, it still does not help the defendant, for an individual can not release himself from the obligation of a contract against the consent of'the obligee; and the defendant’s subscription to the capital stock of the plaintiff is a contract.

A second ground is, that the notice does not designate the place where the money was required to be paid.

The notice was, to make payment “to the treasurer of said company.” The language of the statute (Swan’s Stat. 975) is, “at least sixty days’ notice shall be given, in some public paper in general circulation, printed on or nearest to the road, *of'tho time and place or places of paying in any installment,” etc. The act contemplates that the payments may be directed to be made at different places on the route of the road, and this for the convenience of the stockholders ; therefore, the company are required to designate the places, if payments are directed at different places. If, as in this case, but one place is designated, a substantial compliance with the statute is observed, and is all that is required. What is the effect of a notice to pay to the treasurer of a company? Is it straining language to .say, that it is a notice to pay at his .office? Clearly, that is its legal effect; and would any one feel at liberty to cavil, if this notice had road, “ to pay to the treasurer of the company, at his office,” for the reason that it omitted to state-the township or section upon which that office stood? The object of the legislature is fully accomplished by a notice to the stockholder, which informs him when, where, and to whom he is to make payment. This notice was ample to accomplish all of those objects. The company had a treasurer. His person and place of business was sufficiently designated by his name, in the connection in which it was employed in this notice, to convey all needful information to those subsci'ibers disposed to fulfill their obligations to the company.

The third gx-ound for a new trial is, that the notice was not published continuously for sixty days.

This position stands upon the hypothesis, that “ at least sixty days’ notice” is equivalent to “notice for and during sixty days.” The words are, however, not equivalent. A notice published once sixty days or more befox-e the time of payment, is all that tho statute requires. Tts letter is complied with by that. Wo are not left at liberty to imagine or suppose, in this case, that one thing is expressed and another intended, because whenever the legislatux-e have designed that a continuous notice should be given, they have used explicit terms. Had a contixxuous notice been intended in this class of cases, we should have found words more appropriate to convey that meaning; such as, “notice by publicatioxx, at least sixty days prior to the day of payment, which notice, shall be published *daily, tri-weekly, or weekly to the day of payment;” ox’, “ which notice shall be continued for eight consecutive weeks prior to the day of payment.” The manifest objeet in requiring sixty days’ notice was to give the stockholders reasonable time to prepare funds to meet the demand made upon them. The notice must be, from the power of the words used in the statute, complete, at least sixty days before the day of payment. It could not be thus complete, if, in order to perfect it, the necessity existed of renewing it each week during the sixty days.

Motion overruled, and judgment on the verdict.


source: Caselaw Access Project

author: Lane, C. J.

license: Public Domain

text:
    Harper and others, Trustees of the Associate Presbyterian Congregation of the Church of Cæsar Creek, v. Crawford and others.
    Trustees of ft religious society, who hold an estate at law, can not maintain a suit in chancery to establish such title, against defendants, who claim a better title to the same property, as the lawful trustees of the same society.
    They must manifest their title by suit at law.
    This is a bill in chancery, from Greene county.
    The case is stated in the opinion of the court.
    Prescott, for complainants.
    Odlin, for defendants.
   Lane, C. J.

This bill states that, in 1831, an association of worshiping Christians, calling themselves the Associate Presbyterian Congregation of Ca3sar Creek, in communion with the Associate Presbyterian Church, and in subordination to the Miami Presbytery and Associate Synod of North America, *was organized as a religious assembly, of which one Andrew Heron became the acting pastor; that, in 1841, Heron was charged, before the Miami Presbytery, of certain breaches of discipline, and suspended from his pastoral and clerical functions as a member of the Associate Presbyterian Church; that, upon the promulgation of this sentence, a part of the congregation seceded, elected other trustees, and took possession of the church property.

That, in 1833, one Brown conveyed to the trustees of the Associate Presbyterian Church of Caesar Creek one acre and sixty-six hundreths of land, “ to have and to hold all the lands hereby conveyed to said parties of the second part, trustees as aforesaid of the said Associate Presbyterian Congregation of the Church of Csesar Crook, and their successors in office, as aforesaid, in trust for the use of said congregation, as a place of public worship, and in the name of, and for the use of, the said congregation, as subordinate to the Associate Synod of North America, for the purpose and use aforesaid, forever.”

The plaintiffs, therefore, claiming to be the lawful trustees of the said religious society, pray that the defendants, who are the trustees elected by the seceding members, may bo enjoined, in the language of the pleader, from the possession and control of said property, and from disturbing the complainants, and the true Associate Presbyterian Congregation, from its sole possession and control.”

Whatever may be the merits between the parties litigating, it is plain that they can not be investigated under this bill. It is not a bill by cestui que trust, against their trustees, to enforce a due execution of trust, nor is it a bill by trustees against cestui que trust, asking the aid and direction of this court, for the due administration of trust property; but it is a bill by trustees of an estate (if any exists, at law, against other trustees, whoso estato, if any, is likewise at law, to try which legal title is the best. Morgan et al. v. Leslie et al., Wright, 144; Lessee of Bryant et al. v. McCandless, 7 Ohio, 135, pt. 2.

*If the plaintiffs are, as they claim to be, the lawful trustees, let them manifest their title in an action of ejectment, and if they recover the possession, they can then execute the lawful trusts on which they hold the land.

The bill will be dismissed without prejudice to their rights at law. Decree accordingly.


author: Wood, J.

text:
    John Burt v. Richard H. Dodge.
    A tender made under the statute, during pendency of suit, must include the costs up to the time of tender.
    Where the court below has erred in favor of the plaintiff in error, he can not avail himself of it to reverse the judgment.
    Error to the Supreme Court of Morgan county.

      The record shows that Dodge brought a suit against Burt, on a note, for $118. The action was assumpsit. The defendant plead the general issue, and gave notice of set-off. At the trial term of the court of common pleas, on his motion, Burt was ordered to deposit with the clerk, for Dodge, $85.48, which he admitted to be duo, and which he then paid to the clerk. Verdict and judgment were for Dodge, in tho common pleas, and an appeal taken.
    The cause was submitted to a jury in the Suprome Court, at the November term, 1843, and tho following verdict returned:
    That the defendant did assume and promise, etc., 11 and the jury assess the damages of the said plaintiff, etc., to $85.44, the amount which the said defendant admits to be due to the said plaintiff, and deposited as a tender.”
    Whereupon the court gave judgment that the said plaintiff recover of the defendant the sum of *$85.44, his damages aforesaid, in form aforesaid, etc., and that the said defendant recover of the said plaintiff his costs, since the deposit was made.
    Tho errors assigned are, first, that tho court rendered judgment against the defendant below for $85.44, the amount deposited with the clerk; second, that the court did not, by their judgment, discharge the defendant.
    Isaac Parrish, for plaintiff in error, cited:
    Swan’s Stat. 660, sec. 61; Bank of Columbia v. Sutherland, 3 Cow. 336; Baker v. Hunt, 1 Wend. 103; May v. Bethew, Ib. 191; Spalding v. Verplank, 2 Wend. 431; Graham’s Prac. 540; 2 Tidd’s Prac. 1167; 2 Saund. 101, note 1; Bowen v. Lytle, 4 Cow. 91; Manhattan Co. v. Osgood, 1 Cow. 65; Lambert v. The People, 7 Cow. 103; Law v. Nelson, 8 Cow. 746.
    No argument was submitted for defendant in error.
   Wood, J.

The principal question arises under the practice act, Swan’s Stat. 660, sec. 61, which enacts, “ that if, at any time, pending an action on any bond, bill, note, or specialty, for the payment of a sum certain, tho defendant shall bring into cour^ where the action is pending, the principal and interest due on such bill, bond, note, or specialty, and all costs, etc., the money so brought in shall be deemed and taken to be in full payment and satisfaction of such bond, etc., and the court shall give judgment to discharge the defendant from the same accordingly.”

It will be seen the deposit was of the principal and interest due on the note only. The amount of costs which had then accrued, was not included. As a statutory deposit, therefore, the plaintiff in error did not bring himself within the provision. It was no legal deposit, and judgment was correctly given for the defendant in error, on the verdict.

*The judgment for costs is erroneous. The law is, that in this class of cases, where the plaintiff recovers less than $100, he shall recover no costs — not that he shall pay costs to the defendant. The deposit being insufficient, did not lay a legal foundation for the judgment for costs, in favor of tho plaintiff in error, from the time such deposit was made. Such judgment, however, is not to the prejudice, but for the benefit of tho plaintiff in error, and he can not avail himself of it to reverse the judgment.

Judgment affirmed.


author: Read, J.

text:
    John H. Cleveland v. Samuel Bodwell.
    Where suit is brought in the common pleas, on a claim within the jurisdiction of a justice of the peace, if the defendant appeals to the Supreme Court, and the plaintiff recovers more than in the court below, he is entitled to judgment for full costs in both courts.
    This case was reserved from the county of Summit, to settle a question of practice as to costs.
   Read, J.

The original suit was commenced in the court of common pleas. Judgment was recovered to the amount of forty dollars, in favor of plaintiff, and each party adjudged to pay his own costs, as the subject matter of tho suit fell within the jurisdiction of a justice of the peace. From this judgment the defendant appealed to the Supreme Court, and the plaintiff, in that court, recovered a judgment of seventy dollars. The question now is, whether the plaintiff is entitled to a judgment for full costs. It seems to have been supposed that, as no judgment for costs could be rendered against the defendant in the court of common pleas, that it followed, as a matter of course, that no judgment could bo rendered for them in the Supreme Court on the appeal, or at least not for full costs.

Wm. W. Gaston, for plaintiff.

Otis and Tilden, for defendant.

*This question is settled by the statute. The act regulating the practice of judicial courts, Swan’s Stat. 683, section 126, provides “that if the defendant, in any personal action, shall remove the same, by appeal, to the Supreme Court, and the plaintiff shall recover in such cause a judgment for the same sum, or a larger sum than was recovered in the court of common pleas, exclusive of costs, the Supreme Court shall render judgment for the sum so recovered, with costs of suit.”

In this case the defendant appealed, and the plaintiff recovered judgment for a larger sum in the Supreme Court than in the common pleas. Hence, the defendant comes within the exact words of the statute, which subjects him to a judgment for full costs of suit.

Nothing can be gathered from the spirit or meaning of the law which would limit its construction to embrace the costs only of the Supreme Court. The object of the statute was to prevent the litigation and delay of a second trial, where the party appealing had justice in the first trial, by punishing him with full costs. Full costs embrace all the costs accruing in the suit, both in the common pleas and Supreme Court.

Judgment for plaintiff.


text:
    *Hillyer, Bostwick, and Bush v. Richards, Heustis, Griswolds, and Richards.
    In a declaration upon an injunction bond, it is necessary to aver that execuhad been issued against the principal debtor, and that it appears by its return, he has not goods and chattels, lands and tenements, sufficient to satisfy the same.
    Where one, not a party to the judgment, enjoins a lovy under it, upon specific property, the value of such property, and the costs, may be decreed against him on the dissolution of the injunction.
    But where he enjoins all proceedings upon the judgment, ho is liable, upon its dissolution, for the whole amount of the judgment, with penalty and costs, and the same should be decreed against hi m under the statute.

      This is a writ of error to the Supreme Court of Medina county.
    The action below was debt upon an injunction bond. The following facts appear from the record:
    At the'June term, 1835, of the common pleas, Hillyer, Bostwick, and Bush recovered judgment for $2,556.26 and costs, against Alfred Griswold and Alexander Griswold.
    On July 9, 1841, a writ of fieri facias issued upon this judgment, and was levied upon certain goods and chattels claimed by William C. Richards and William Heustis, who thereupon filed a bill in chancery against the plaintiffs in execution and the execution debtors. The bill set forth the claim of Richards and Houstis to the property levied on, and prayed that their title thereto might be quieted — “that in the meantime the said Hillyer, Bostwick, and Bush, their agents, etc., may bo enjoined from all further proceedings on said judgment at law, and the execution issued thereon ” for perpetual injunction and general relief.
    Upon this bill an injunction was allowed as prayed for, and bond given by the complainants, with Dudley Griswold and Ezekiel Richards as security, in the sum of $4,000, conditioned “ if the said William 0. Richards and William Heustis shall pay, or cause to be paid, all moneys and costs due, or to beeomo due, from said complainants in said judgment at law, *and all moneys and costs which shall be decreed against them, in case such injunction shall be dissolved, then, and in that case, the said bond shall be null and void, otherwise to be and remain in full force.”
    At the September term, 1842, the court sustained a demurrer to the bill, and a decree was entered “that the said injunction in this case be dissolved, and the said bill stand dismissed with costs.”
    Suit was then brought by Hillyer, Bostwick, and Bush upon the injunction bond. The cause came on for trial at the September term, 1844, of the Supreme Court, and judgment was rendered in favor of the plaintiffs.
    Upon the trial, the following bill of exceptions was taken :
    “This cause came on for trial, upon the plaintiffs’ declaration containing five counts; defendants demur to the first and fifth counts, and the plea of non est factum to the second, third, and fourth counts; and neither of said parties requiring a jury, the case was tried by the court; and the court being of opinion that said domurrer was not well taken, the same was overruled; whereupon the plaintiffs, by their counsel, gave the following testimony, to wit: An exemplified copy of the record of a suit in chancery, in Summit common pleas, wherein William C. Richards and William Heustis were complainants, and Philo Hillyer, Edmund B. Bostwick, Ralph E. Bush, Alfred Griswold, and Alexander Griswold, Jr., were defendants; also, the original injunction bond in said suit, and upon which this suit is brought. The defendants gave in evidence the execution docket containing the judgment of Philo Hillyer et al. v. Alfred and Alexander Griswold, rendered in Medina common pleas, June term, 1835, and the executions of February 6, 1837, and July 9', 1841, and tho motion filed by the said Alfred and Alexander, at the October term, 1841, to set aside said last-mentioned execution, and the subsequent proceedings thereon; and thereupon the defendants, by their counsel, objected to the plaintiffs’ recovery of any judgment at all, but if the court thought that the plaintiffs were entitled to recover anything, it could be only for the amount decreed against William C. ^Richards and William Heustis, in Summit common pleas, to wit, the sum of $13.87 costs; but as that had been paid after the commencement of this suit, the plaintiffs would only be entitled to recover their costs in this suit to bo taxed.
    The defendants, by their counsel aforesaid, further objected that as said judgment of Philo Hillyer et al. v. Alfred and Alexander Griswold, rendered June, 1835, was dormant at the time the exe^ cution was issued, on July 9,1841, and had remained so ever since, the plaintiffs in this suit could not recover till they had revived the same, and proceeded upon it; but the court having hoard and considered the matter, wore of opinion that, inasmuch as the said William C. Richards and William Heustis had prayed in their bill, in Summit common pleas, “that the said Philo Hillyer, Edmund B. Bostwick, and Ralph B. Bush, their attorneys, agents, sheriffs, servants, etc., be restrained from all further proceedings on said judgment at law, and the execution issued thereon they had by that act prevented the plaintiffs from proceeding on their judgmcnt, and were therefore liable for the whole amount thereof. The court therefore overruled said objections, and proceeded to render a judgment against the said William 0. Richards, William Heustis, Dudley Griswold, and Ezekiel Richards, for tho sum of $4,000 debt, with leave to issue execution for $3,981.79 damages and costs of suit. The said defendants excepted, and prayed that their bill of' exceptions, in that behalf, might be allowed, which is accordingly done; and upon their motion, the same is ordered to be made a part of the record in this case.”
    It is assigned for error:
    1. That the defendants in error were not entitled to recover in this suit on the injunction bond at all, till they had revived, and proceeded on their judgment of June term, 1835, against Alfred and Alexander Griswold, in Medina common pleas.
    2. The said defendants in error were not entitled to recover more than the costs of suit, the costs in Summit ^county having been paid after the commencement of this suit, and before judgment.
    3. The said defendants in error were not entitled to recover upon said injunction bond more than the amount of the decree in Summit common pleas, to wit, $13.87.
    4. A court of law is not the proper tribunal to recover against these defendants the amount of the judgment of defendants in error against Alfred and Alexander Griswold, in Medina common pleas, unless a decree for the amount had first been made in the suit in chancery,in Summit common pleas.
    5. The defendants did not undertake, in the covenant of their bond, to pay said judgment of the defendants in error against Alfred and Alexander Griswold, of June term, 1835, of $2,556.20 and costs, or any part thereof, and were not therefore liable to pay it by the terms of said bond.
    Alvah Hand, for plaintiffs in error:
    In England (from whence we have derived the elements of our jurisprudence), an injunction to stay proceedings at law does not release a levy made on execution of property before the injunction issued ; if the property had been sold, the sheriff was ordered to pay the money into court. 2 Madd. Ch. Pr. 223.
    If the complainant seeks to stay proceedings upon judgment at law, he is sometimes ordered to pay the amount of the judgment and costs into court, not as a payment, but as security for the amount actually due. Drew on Inj. 362; Jacob, 572. So in New York, Blake’s Ch. Pr. 392; no bonds are required to make an injunction operative; money is deposited if the court, or master allowing the injunction, so order.
    Our statute has provided differently. When an injunction is allowed to stay proceedings at law, under the provisions of our statute, a bond must be given by complainant as directed by section 43 of the chancery act; the subsequent proceeding of entering judgment against complainant, on the ^dismissal of his bill, for the amount of the judgment at law, is entirely statutory. Our statute further provides that when the injunction is allowed, and bail given, the property levied upon by execution shall be released. The bond is substituted for the property, and this is always presumed to be a good substitute; it covers the whole amount of the judgment and costs, etc. But to protect the sureties to the bond, the law provides that suit shall not be brought against them till execution has issued against the principal debtor, and returned “ no goods,” etc.
    The right of action upon the bond does not accrue to the plaintiff in the judgment at law till he has thus issued his execution, and if be brings bis suit upon the bond before cxocution issued and returned, he brings it before his cause of action has accrued; if this appears on the trial he will be nonsuited. He should aver in his declaration that execution had so issued and been returned, and prove the fact on trial.
    It is admitted by the attorney of the defendants, in orror, that persons, not parties to the judgment, might lawfully restrain proceedings upon an execution, to which they were not parties; but he contends that it is a fraud upon his clients to attempt to restrain them upon the judgment; there is no fraud in restraining the execution ; orror is here made a fraud.
    I have said heretofore, and now repeat, that the injunction did not prevent Hillyer et al., from proceeding to revive their judgment during its continuance, and their not doing so was a fault of their own, for which the plaintiffs in error are not responsible, and upon which they think it unjust to be made liable.
    In 2 Madd. Oh. Pr. 223, it is said, if an injunction is obtained after an interlocutory judgment (as by default or demurrer), the plaintiff may go on to ascertain his damages, all the court intending to stop being the cxocution. The plaintiff at law is allowed to proceed, so far as that he may be at liberty, eo instanti, that the injunction be dissolved, to take out execution, nor is it a breach of an injunction to sue out, when necessary, a scire facias. 2 P. Wms, 147. This, I believe, *has always been considercd the law in Ohio, and our practice has usually conformed to it.
    • Fraud will not, I trust, be imputed to the plaintiffs in error, because the defendants in error, or their attorney, were ignorant of the law.
    It is admitted, by the defendants in error, that this case does not come within the letter of the statute, but they contend that it comes within its intention; I, on the other hand, broadly assert that it neither comes within the letter nor intention of the statute. The evil that the statute intended to prevent, was the retaining property levied upon, by an execution, in the custody of the sheriff, till the suit in chancery should be finally disposed of.
    In England the court of chancery is considered to be always open; injunctions are there usually allowed upon motion, and mostly after notice .to the opposite party; but the defendants may, at anytime, by complying with the rules of practice, move to dissolve the injunction.
    Our court of chancery has regular and stated terms for the transaction of business; months elapse between its several terms; if property, levied upon hero, must remain in the hands of the officer till the suit in chancery should be disposed of, great injury would result to community by locking up the means which is wanted for improving the country and producing wealth ; and it was in view of the condition of the country, and the wants and requirements of the people, that our statute was made, and I trust the court will give the statute'such a construction as to carry out the intention of the .legislature.
    Our statute makes it an object for the complainant to take care of the property levied upon, and at the same time to secure the judgment creditor, by permitting him to substitute personal security for the debt, and to use the property for his own bonofit. It is the genius of our institutions to promote private, and at the same time the general welfare.
    All that is said in the argument of the defendants in error, in relation to the construction of statutes, appears to me to *be entirely gratuitous, and does not help their case. There is no doubt but the statute ought to be construed liberally, but by a liberal construction it is not meant that it shall extend to the defendants’ ease, unless it is fairly within its intention. The statute expressly designates, and points out the oases which come within its provisions, and leaves no room for including others.
    It is contended, on the part of the defendants in error, that the plaintiffs in error are endeavoring to take advantage of their own wrong. They are charged with having made use of the powers of a court of equity for fraudulent purposes, and after those purposes wore accomplished, are endeavoring to avoid the results, by a denial of the legality of their proceedings. I trust the court will not forget that the defendants in error issued an execution upon their judgment against A. and A. Griswold, and levied it upon the property of Eichards and Heustis, who were strangers to that judgment; which execution was subsequently set aside for irregularity, and the levy released.
    It is difficult to perceive what the doctrine of estoppel has to do with this case.
    The decree of the court, which dismissed the bill of Eichards and Heustis, is the criterion of the amount which defendants in error ought to have recovered upon their bond, whenever they showed themselves entitled to recover at all. It is not the province of the court to make contracts for the parties, but to enforce them, or give damages for their violation.
    In reply to the fourth error, the counsel for defendants in error says, “ that it is plain, from the language of the statute, that the remedy by decree, given by the letter, was intended to apply only to cases of injunction obtained belore judgment, and not, as in the present case, and that last cited above, to those obtained after judgment.” No such construction can bo drawn from the statute. The language of the statute is, “ upon the dissolution of the injunction, and dismissal of the petition in the court of common pleas, the court shall render a decree in favor of the respondent (plaintiff at law), for the *debt or damages, interest and costs, covered at law;” sec. 41, Swan’s Stat. 711. This language is too plain to admit of cavil, or require an explanation. This provision was first incorporated into the statutes of Ohio, February 4, 1822 (2 Chase’s Stat. 1233), and has been continued ever since without any alteration.
    It is also contended by defendants in error, that they have a remedy by suit upon the bond, even if they had one by decree. A party having a remedy by suit at law, or by. proceeding in chancery, can not resort to both tribunals to try his rights; a decision in one is a bar to the other.
    I can not well see how the statute in this case can be cumulative in its effect, as contended for by the defendants in error.
    Its provisions make it imperative on the court, on the dissolution of the injunction and dismissal of the petition, to enter a judgment in favor of the respondent (the plaintiff at law). The court, having jurisdiction of the bill, either rendered the decree, prescribed by the statute on the dissolution of the injunction and dismissal of the bill, or else the court refused to do so. In either event the court acted, in contemplation of law, upon the subject matter of the suit, and that action of the court was final, and a bar to this suit.
    The defendants in error claim that the judgment of the Supreme Court on the circuit in this case on the bond, is a decree in substance, if not in form, in contemplation of the statute. This, I suppose, comes under the head of liberal construction.
    Under the ninth point in the argument of the defendants in error, it is admitted that the plaintiffs in error only covenanted to pay what was due from themselves on the judgment of Philo Hillyer et ul., and that they knew at the time they filed their bill and gave their bond, that they did not owe said judgment, and herein consists one strong item of fraud. They say that plaintiffs in error covenanted in form just as if they were parties to the judgment, and had the full benefit of it just as if they had been parties, and now claim exemption from the responsibility imposed by the statute, because they were not in fact such parties.
    *It is enough for us to say that we should have had the same benefit, if our bill had only prayed to restrain the execution. They were not prevented from reviving their judgment by our injunction. Their execution could not issue till the judgment was revived. They were the agressors with their ii-regular execution, and they would not have been justified in levying even a regular execution issued on that judgment, on the property of strangers.
    The defendants in error complain that the court is called upon by us to sanction fraud. Wo make no such demand of the court; the fraud, if any, is all on the other side, and they appear to expect to change the influence of that fraud from themselves to us, by reiterating it.
    The eleventh point made by the defendants in error is, that the statute does not require an execution to issue against the principal debtors in a case like this, as it was only designed for cases where the defendants to the judgment filed their bill to stay proceedings on the same. I suppose it applies to any case where the court, on the dissolution of the injunction and dismissal of the bill, was bound to enter a decree against complainants for the amount of the judgment at law, etc. If the common pleas were bound to enter up a decree against the complainants in that suit on the dissolution of the injunction and dismissal of the bill, then it applies to this case.
    In the twelfth point made by defendants in error, they claim, among other things, that the plaintiffs in error had ample remedy at law, by a suit in trespass or replevin, and that they did not resort to either, but to a bill in chancery, therefore their intentions were fraudulent. They had a right to select any one of several remedies, and their having chosen to proceed in chancery is no just cause of complaint, nor evidence of fraud.
    The thirteenth pqint made by defendants in error is, that a party shall not be permitted to take advantage of his own wrong. This maxim is just, and ought to be applied to this case, where it properly belongs.
    The defendants in error also say that there is another maxim of law equally applicable to their case, and that is, “for every *wrong there is a remedy, and for every injury a redress; ” and unless they are permitted to recover in this suit, they are without remedy for the loss of the property levied upon by their execution, and released when the execution was set aside.
    H. W. Floyd, for defendants in error:
    The defendants in error roly upon the following reasons, to show why they should recover their judgment at law, together with the interest and costs which was rendered in the Supreme Court:
    I. That if the court had no jurisdiction over the subject, they should have pleaded that fact specially. If the first and fourth errors are well taken, they show that a court of law had no jurisdiction ; and it is too late, after judgment, to take advantage of it on a writ of error.
    2. The plaintiffs in error are estopped from setting up the dormancy of the judgment against A. and A. Griswold, because they swear in their bill in chancery filed in the common pleas of Summit, that the “judgment was in full force, and not dormant, satisfied or discharged,” if it were true that said judgment was dormant.

      . 3. That the said defendants in error were not bound to revive and proceed on their, judgment of June term, 1835, against A. and A. Griswold, after the dismissal of the bill in chancery, if it were dormant before they commenced suit on the bond, because neither of the present plaintiffs in error were parties to that judgment, and therefore had no right to stay the defendants in error from proceeding to collect their judgment against A. and A. Griswold; neither had the plaintiffs in error any interest in the judgment, as appears from the record.
    4. That it does not appear that the plaintiffs in error had any interest in the property levied on, except what is stated in their bill in chancery, nor did’ they attempt to show any at the trial in the Supremo Court, but, on the contrary thereof, the defendants in error proved by some ten depositions, ^that the property belonged to A. and A. Griswold, and not the plaintiffs in error.
    5. That if any error was committed by the court, it was in favor of the plaintiffs in error, in admitting the evidence of the dormancy of the judgment, it being objected to by the defendants in error.
    6. The record shows that the suit in chancery was commenced by the plaintiffs in error against the defendants in error, and Alfred and Alexander Griswold (who were the plaintiffs and defendants in the judgment at law), and therefore the said plaintiffs in error can not claim that they come within the provisions of sections 43 or 27 of the chancery act. The plaintiffs in error did not execute the bond as security for A. and A. Griswold, or for their benefit, or at their request; nor were A. and A. Griswold parties to the bond, but they wore made respondents in the bill in chancery, as well as the defendants in error, by the plaintiffs in error. The statute contemplates the filing of a bill in chancery to enjoin a judgment at law, by the plaintiff or defendant to that judgment, and not by third persons, who have no interest in it, and are strangers to it; therefore it was not necessary to issue an execution, before commencing a suit on the bond.
    7. The plaintiffs in error went too far, when they enjoined the defendants in error from proceeding to collect their judgment against A. and A. Griswold, and thereby rendered themselves responsible on their bond for the judgment against A. and A. Gris-wold ; if they- had enjoined only the levy and execution, they might have proclaimed protection under the decision of this court, Portsmouth Turnpike Co. v. Byington, 12 Ohio, 114, on a motion to enter up a decree'on the dismissal of their bill. But, in a suit on an injunction bond, where the injunction only roaches the property levied on, and stays the sale thereof, if it should appear on the trial of the cause that the property belonged to the defendants in the judgment, and not to the complainant in the bill, they would be held liable on their bond for the value of their property levied on and restrained by the injunction bond.
    *8. That the injunction tied up the hands of the defendants in error from proceeding to collect their judgment, which they held against Alfred and Alexander Griswold, until it was dissolved by the court, there is no doubt.
    9. That the injunction to enjoin the .judgment in this case was fraudulent on the part of the plaintiffs in error, against the defendants in error, is equally clear.
    10. That it was unnecessary for the defendants in error to issue an execution against Alfred and Alexander Griswold, or to revive the same by scire facias before suit on the bond, as will appear from Swan’s Slat. 482, because the statute contemplates the protection of the bail in an appeal bond, or in an injunction bond, filed either by the plaintiffs or defendants to the suit, and not where third persons voluntarily step in and file an original bill in chancery on their own account, who have no interest in the judgment enjoined: and therefore it was not necessary for the defendants in error to aver in their declaration that fact, or to prove it on the trial of the cause, and the court were right in ovei’ruling the demurrer to the first and fifth counts of the declaration.
    11. If the execution were irregular, or even void, it did-not justify the plaintiffs in error-in interfering either with the judgment or execution, unless the execution interfered with their rights, and then their remedy was not in chancery, but at law. The dormancy of the judgment, or the irregularity of the execution, belonged to the plaintiffs and defendants to the judgment to settle between themselves, and not to the plaintiffs in error.
   Read, J.

The errors assigned raise two questions, which we propose to consider:

1. The sufficiency of the declaration upon the injunction bond.

2. For the purpose of further proceedings, if the pleadings should be so amended as to warrant judgment, what would be the amount to be recovered ?

*The statute provides that, before the successful party shall bring suit upon an appeal or injunction bond, execution shall issue against the-principal debtor; and, by the return of the execution, it shall be made to appear that the principal debtor has not goods, chattels, lands, or tenements, sufficient to satisfy it. Act regulating judgments and executions, sec. 27, Swan’s Stat. 482.

It is necessary, therefore, to aver in the declaration upon an injunction bond, that execution had been issued against the principal debtor, and return of nulla bona, as to the whole or in part, to sustain the action, or some' legal excuse for not making such averment. No such averment is made in the declaration, nor any excuse why such averment was not made. The declaration is therefore defective, and the judgment must be reversed.

If the plaintiff should ultimately prevail, what should be the amount to be recovered ?

When a stranger to the suit, in which judgment has been had, files a bill to restrain a levy upon specific proporty, claiming right therein, on the dissolution of such injunction, the person suing it out is not responsible for the whole amount of the original judgment, penalty and costs, but only for the value of the specific property levied upon, and the costs arising from the proceedings in injunction; because the.judgment has not been enjoined, and the judgment creditor was not hindered from proceeding in any other manner against the judgment debtor. Portsmouth and Columbus Turnpike Co. v. Byington, 12 Ohio, 114.

But where an injunction against a judgment at law has been dissolved, the recovery upon the injunction bond is for the amount of the judgment, costs at law, and the penalty, and also the moneys and costs decreed against him on the dissolution, if the terms of the bond admit. S.wan’s Stat. 711.

This is the rule as to the amount to be recovered, in all cases where the judgment has been enjoined, whether by parties to the original judgment, or by strangers.

*As to whether, in suit upon injunction bonds, more can bo recovered than the amount decreed on dissolution, depends upon the terms of the bond. The rights under the decree are cumulative only, and do not impair the common law remedy upon the bond itself; and, in suit upon such bond, the amount can be recovered which it was given to secure.

A difficulty, perhaps, may exist under the condition of this bond, which has escaped the attention of the pleader. The defendants are not parties to the judgment enjoined, and the condition is, to pay such money as will become due from them in said judgment, or as shall be decreed against them. There was nothing decreed against them but costs, and, not being parties to the judgment, nothing is due thereon from them.

The case is remanded to the county ; and counsel for plaintiffs will then have an opportunity to consider whether a recovery can be had at law, under the condition of this bond, for the amount of the judgment, or whether he may not require the aid of a court of equity.

Judgment reversed, and cause remanded.


text:
    Stansell v. Roberts, Jennings, and others.
    The lien of a second mortgage first recorded is preferred.
    Notice of a prior unrecorded mortgage will not, under the Ohio statute, postpone the second mortgagee.
    Nor does it make any difference that the first mortgage was given to secure money borrowed to pay for the land.
    A third person advancing money to enable a purchaser to buy, can not claim a vendor’s lien.
    In chancery, from Highland county.
    This is a bill brought for tho foreclosure and sale of mortgaged tenements, against Roberts, the mortgagor, and Jennings, another mortgagee, claiming a preferable lien.
    *The pleadings and proof show that Roborts, on April 17, 1841, mortgaged the premises to Jennings, whose mortgage was not recorded until July 13, 1842. That on July 4, 1842, Roberts mortgaged the same premises to Stansell, who knew of the existence of the mortgage to Jennings, and who procured his mortgage to be recorded on July 5,1842.

      A. Brown, for complainant:
    • The complainant claims the first lien, because his mortgage is first recorded, and there is no fraud shown against him in act, word, or deed.
    Mortgages take effect from the time the same are delivered to the recorder. Swan’s Stat. 266, 267, and the declaratory act, Ib. 268; McGee v. Beaty, 8 Ohio, 396; Doe, ex dem. Sturges, v. Bank of Cleveland, 2 McLean, 341; 5 L. J. 207, 208.
    The object, no doubt, of the legislature was to make the fore going statutes certain and positive. The former laws provided for cases where there was notice, but these do not. The delivery to the recorder is as certainly required before a mortgage takes effect as the execution or acknowledgment of the mortgage. One clause is equally as binding as the other.
    A mortgage, when it is recorded, becomes a lien on real estate, and not before; but one that is not recorded never takes effect.
    A mortgage executed under the statute of Ohio, of 1820, was a lien from the time it was executed, without recording. Notice of such a mortgage was notico of a lien of some vested right; but a mortgage executed under the law now in force, under which this case comes, is not a legal mortgage until it is recorded. The recording is a part of the execution of such mortgage; it is placed upon record before it has any legal effect. Before that, it is only part executed.
    *Thero can be no conflict of rights between parties before their mortgages are recorded. Both stand on equal ground, neither having acquired any right or lien. Then he who is industrious and obtains a lien has the better right. The mortgages referred to in the former registry acts are duly executed, and were liens, and therefore have no analogy to an unregistered mortgage under the present law, which is inoperative, and perhaps not even a ground of action, not having taken effect.
    The complainant, in this case, held the note on file before he took his mortgage, and took his mortgage to secure a just claim, and had it recorded and secured a lien.
    A judgment entered on the same day would, it is presumed, have taken a prior lien to defendant’s unregistered mortgage. A court of chancery would not interfere and give effect to such a mortgage, unless some good reason is shown why defendant has not complied with the law by having his mortgage recorded. The defendant in this ease was doing nothing to acquire a lien.
    The object of the legislature was to compel persons to have their mortgages recorded, and for that purpose provided that they should not take effect until recorded; and for the purpose of rendering such cases more certain, the clause in the law of 1820 (with regard to notice) was left out. This was done for the safety of men of business, so that they might see all the liens that were on real estate by examining the records, and that the sales of real estate should not be injured by reports of claims not upon record, and to guard against secret claims, held in reserve to keep up the credit of persons in failing circumstances. The former law, by its provisions, opened the way to much greater frauds than the law now in force. A construction should never be given to the law that would bring back those evils that the legislature have shut out by a change of the law. The law now in force points out the manner in which liens shall be acquired on real estate. Then it is not a fraud for a person to pursue his remedy to secure his claim, in the manner pointed out by law, as the complainant 'thas done in this ease. The acts of the complainant were •open, and his mortgage placed on the county record in accordance with the law. The statute provides that the first one recorded shall have the first lien. This language is unconditional, and, perhaps, as strong as the legislature could employ in declaring the time and manner of giving effect to mortgages. The legislature could never go further. The complainant here, then, has the prior lien ; his mortgage is first upon record, and takes date from the date of the record; this he has under the express provisions of the statute. It is very evident the legislature intended to change the law, and they have done it in express terms. , If the construction contended for by the defendant be given, there would be no difference, in effect, between the law of 1820 and the law now in force; but the construction contended for by the complainant is not only in accordance with the express provisions of the statute now in force, which governs this ease, but with the obvious intention of the legislature.
    Robert G-. Corwin, for defendants:
    There appears to be no reported decision, under this section of the statute, of the point raised in this ease. The courts, however, have Uniformly decided, upon the circuit, that, if the junior mortgagee, at or before the time of taking his mortgage, had actúa] notice of the existence of a prior unrecorded mortgage, his lien should be postponed to that of his senior mortgagee; and such, no doubt, would have been the decision of the court in this case, had it not been for a decision made by the circuit court of tho United States, in the case of Doe, ex dem. Sturges, v. Bank of Cleveland, 2 McLean, 341.
    This court can not regard this decision of tho circuit court as authority, any further than the dictum of that learned tribunal commands its respect. In giving a construction, then, to this section of our statute, the court must resort to the usual and well-established rule for construing all statute law, and will look to the old law, the mischief, and the remedy.
    *The recording of a mortgage or deed has been held to be but a constructive notice to subsequent mortgagees and purchasers, 1 Johns. Oh. 298; and is it possible that the legislature intended to provide that no other than constructive notice should be of any avail? Not even actual personal notice?
    If it be unsafe to look to tho words alone — and wo can find nothing in either the context or the subject matter to aid us in coming to a conclusion — we are left to look at the effects and consequences, the spirit and reason of the law alono. In applying this test, the first and most important inquiry will be as to what was the object of legislatures in the passage of registry acts. That object evidently was to prevent frauds being practiced upon subsequent purchasers and incumbrancers, by requiring notice to bo given of tho prior conveyance or incumbrance; and, in this case, the notice was more full and complete by far, than if Jennings’ mortgage had been put upon record. In the case of Day v. Dunham, 2 Johns. Ch. 182, it is said that, “ the notice that is to break in upon tho registry acts, must be such as will, with the attending circumstances, affect the party with fraud,” etc.; and in 1 Strange, page 664, it is said that, “ when a man purchases with notice of prior incumbrances, he purchases with an ill conscience, and, in a court of equity, his purchase shall never be established.” In 18 Johns. 554, 555, it is said that, “When the proof of notice is clear and certain, it is, per se, evidence of fraud in him who attempts to defeat a prior incumbrancer, by sotting up a subsequent deed.” Tho same doctrine is laid down with great emphasis, by Lord Hardwicke, in the case of Le Neve v. Le Neve, 3 Atk. 646.

      In 4 Kent’s Com. 168, after the learned commentator has given a concise synopsis of the provisions of the statute of New York, by which it will be seen that its provisions are very nearly the same with ours, he remarks: “It may be said, generally, that this is the substance of the statute law on the subject, in every state of the Union ; but in some of them the wording is still more severely enforced, and deeds are declared *void, at least as to all third persons, unless recorded.” And on page 171, same volume, he says, “the doctrine of notice, and its operation in favor of the prior unregistered deed or mortgage, equally applies, however, as I apprehend, throughout the United States, and it everywhere turns upon a question of fraud, and on the evidence requisite to infer it.” In support of this position, the following authorities, embracing decisions from many of the states, aro cited: 4 Mass. 637; 3 Pick. 149; 8 Greenl. 94; 2 Dana, 23; 6 Vt. 411; 2 Bibb, 420; 2 Rand. 93; 9 Johns. 164; 10 Johns. 457; 13 Serg. & Rawle, 167; 2 Har. & Gill, 415; 5 Mason, 159; 1 Brock. 317; 5 Leigh, 520; 18 Mart. Lou. 733; 9 Lou. 71; in 4 Kent’s Com., from page 167 to 174, both inclusive, the whole doctrine is discussed and conclusively settled.
    The statute of New York provides that all mortgages shall be recorded in the city or county where the lands lie; and in case of several mortgages of the same premises, or any part thereof, the mortgage or mortgages which shall be first registered, as aforesaid, shall have preference in all courts of law and equity, according to the times of the registering of such mortgages respectively, provided the mortgage or mortgages .so to be preferred, be made bona fide., and upon good and valuable consideration.” 1 Revised Statutes of Now York, 373. Under this statute, it has been uniformly decided, that notice of a prior unregistered mortgage is sufficient to postpono the subsequent mortgage to the prior one. In addition to the ease of Day v. Dunham, 2 Johns. Ch. 182, already referred to, I would call the attention of the court to the case of James v. May, 2 Cow. 246, and the case of Jackson v. Valkenburgh, 8 Cow. 260; also, to Jackson v. Sharp. 9 Johns. 164; Jackson v. Bengott, 10 Johns. 457, and the case above referred to in 18 Johns. 554.
    The statute of Pennsylvania is even more rigid in its terms than ours; it provides that all mortgages, etc., “shall* have priority according to the date of recording the same, without regard to the timo of making or executing such deed,” and that no mortgago shall be a lien, until such mortgage is recorded. *7 Penn. Laws, 303. And yet it has been decided in one case, at least, that has come to my notice, and doubtless in a number of cases, that, under this statute, the doctrine of notice is entitled to its full force. Muse v. Letterman, 13 Serg. & Rawle, 167. I would also refer to the statute of Connecticut regulating the registry of mortgages, Connecticut Statutes, 390, 391, the provisions of which are very similar to those of Pennsylvania, and to a decision under this statute, in which it is remarked by the court, incidentally, that the doctrino of notice always obtained under that statute, Mix v. Hotchkiss, 14 Conn. 46; the remark being made in the closing paragraphs of the report. The statutes of Delaware, North Caro ■ lina, South Carolina, Yirginia, Tennessee, and Indiana are all equally rigid in their terms with our own ; and under some of them, at least, and no doubt under all of them, the doctrine of notice has always obtained.
    But, as between the complainant and defendant Jennings, there is another and still stronger view that I will present. In almost all the cases cited, and in many others, it has been uniformly held, that, where a subsequent incumbrancer, with notice, seeks to obtain a priority over his prior incumbrancer, he is thereby affected with fraud — such fraud as courts of equity, at least, will not overlook.. Such has been the doctrine in England, under the statute of 7 Anne, ch. 20, the terms of which, if literally construed, would be equally rigid with ours, as the court will perceive, bjr a reference to the cases cited above under that act; and such has been the uniform decision of all the courts in this country. This court is now called upon to give such a construction to our statute as will enable this complainant to consummate an act which has been declared fraudulent in all civilized states, and in all times.
    But if this court are disposed to give a literal construction to our statute, and to sustain the decision of the circuit court, I would then call upon them to take another view of this case, which, it seems to me, is conclusive as to the rights of these parties.
    *It appears that the money loaned by Jennings to Roberts was paid over to the vendor of Roberts; that it was borrowed for that purpefee, and was so appropriated. I shall insist, then, that Jennings’ lien, being to secure the purchase money, is the same in equity with the,vendor’s lien. Jennings advanced this money, through Eoberts, to the vendor, and it matters not whether he or the vendor holds a lien for that amount. If this money had not been so advanced by Jennings, the vendor would have still retained his lien upon the premises for it; and will a court of equity go farther to protect the vendor than him who steps into his shoes and advances the purchase money?
    In the case of Clark v. Morrison, 14 Mass. 351, it was held that the lien of a third person, who advanced'the purchase money and paid for the premises, was the same with the vendor’s lien, for the purpose of barring the widow of the purchaser of her dower in the lands. And again, in the case of Jackson v. Austin, 15 Johns 477, the court go the whole length in saying that the lien of a third person, who advanced the purchase money, shall have the same priority over other incumbrances that the lien of the vendor would have, and, in fact, that such third person is substituted to all the rights that the vendor could have. It is a well-established principle, that, where a person purchases lands with the funds of a third person, the lands shall be held by him for the use of such third person, unless it appears from the transaction, or the facts or circumstances connected with it, that such was not the intention of the parties at the time such advancement and payment were made. But such was the intention of the parties in this case, as is shown by their efforts to make this land liable for the money advanced by Jennings.
   Lane, C. J.

This case presents the naked question, whether the lien of a first mortgage is preferable to the lien of a second mortgage first registered, if the second mortgagee had notice of the first, when his was executed.

*If the solution of this depended upon general chancery principles, the first would hold, by the application of the doctrine of earlier equities.

But our statute relating to deeds, Swan’s Stat. 266, controls the liens arising from the registration of the different kinds of deeds. Section 8 provides that all deeds except mortgages, not recorded within six months from'execution, shall lose their preferences, except against later purchasers with notice; but section 7 relates to mortgages, gives them effect “from the time of record only,” without introducing the exceptions of notice contained in the other section. The expression of the consequences of notice in one class of deeds, and the omission of it as to the other, is a plain indication that the legislature did not mean to give the protection arising froni it, except to the class of deeds to which it is expressly attached.

It is urged that a second purchaser or mortgagee, having notice of an earlier conveyance, commits a fraud by attempting to set up his own claim at the expense of the other. We do not see the-justice of the doctrine between mortgagees. Both acquire equities against the mortgagor, equally deserving protection; and where the law gives priority to the earlier registry, he holds the strongest right.

Neither can the benefit of the lien for the purchase money be claimed by Jennings.- He loaned the money to Roberts to make the first payment on the land. The purchase money is what •passes between vendor and purchaser, and the lien is the right of the vendor to look to the thing sold, for the price for which it was sold. But money advanced by a third person', to enable the purchaser to buy, is no part of this transaction; nor is he who advances privy to the sale. Nor can it be construed into a resulting trust; that, exists where land is purchased with the money of another. But this purchase was made by Roberts with his own money, borrowed from Jennings, and for which the parties looked to no other security than the mortgage, whose lien the mortgagee lost by his own neglect. Decree for complainant.


author: *Read, J.

text:
    *Samuel Ramsey v. Zachariah Riley, Recorder of Miami County.
    To maintain suit against a recorder, for recording a forged receipt for money due on a mortgage, it must he shown that he knew the character of the instrument, and, with corrupt intent, entered it upon record.
    This is an action on the case from Miami county.
    The plaintiff counted “ that heretofore, to wit, on November 2, a. d. 1835, at the county of Miami aforesaid, one Ishmael Waller-ton, being indebted to one Ziba Wallerton, in the sum of $500, executed and delivered to the said Ziba Wallerton a mortgage deed of the following described lot or parcel of land, to wit,” etc.; “which mortgage deed was duly executed and conditioned to be void on the payment of the said sum of $500, with six per cent, interest thereon, from the 1st day of April next after the date of the said mortgage, for which sum a promissory note was given by the said Ishmael to the said Ziba; which mortgage deed, being duly executed and acknowledged by the said Ishmael, and by him delivered to the said Ziba, was by the said Ziba lodged for record in the of-' fice of the recorder of deeds of Miami county, on November 3,1835, at nine o’clock in the forenoon, and was duly recorded among said records by the defendant, ho then and there being recorder of the said county, on the 6th day of November, in the year last aforesaid. And afterward, to wit, on October 2, in the year of our Lord 1837, the defendant then being recorder of deeds for the county of Miami, without any competent authority, at the instance of the said Ishmael Wallerton, entered on the margin of the record of the said deed of mortgage a receipt purporting to be signed by the said Ziba Wallerton and by him, acknowledging the receipt of $540, *being the principal and interest due on said mortgage; which receipt, as entered on the margin of the record as aforesaid, and the entry thereof by the defendant, recorder as aforesaid, is as follows, to wit:
    “‘Received of Ishmael Wallerton the sum.of $540, being the principal and interest on mortgage or bond, entered in the office of Miami county, Ohio, Septomber'29,1837. Entered October 2,1837.
    “ ‘ Z. Riley, Recorder Miami County.' ”
    “ Which receipt was false and forged, never given by the said Ziba Wallerton, nor by him authorized to be entered on the margin of the record as aforesaid. And afterward, to wit, on April 3,1838, the said Ishmael Wallerton-proposed to sell and convey the said tract or par.cel of land to the plaintiff; and the plaintiff, to ascertain whether the said mortgage had been paid, and whether the said parcel of land was free from any incumbrance, applied to the defendant as recorder as aforesaid, at his office in Troy, in said county of Miami, who informed the plaintiff that the said mortgage money had been paid to the said Ziba by the said Ishmael, and then and there showed the plaintiff the entry of this receipt on the margin of the record of the said mortgage, so by him made as aforesaid. Whereupon the plaintiff, in full faith that the said mortgage money had been fully paid, and that the said tract of land was free and clear of incumbrance, then and there purchased the same of the said Ishmael Wallerton, for the price and consideration of $1,150, which the plaintiff paid to the said Ishmael, and received from him a deed of bargain and sale of said land. And the plaintiff avers that the money secured by the said mortgage, and to be paid by the said Ishmael to the said Ziba, had not been paid; that the receipt before specified was false, forged, and fraudulent; that since the purchase of the said land by the plaintiff, the same has been decreed to be sold, in a suit in chancery by the said Ziba Wallerton, instituted on the said mortgage, beforo the court of common picas of Miami county; and, by virtue of said decree, actually sold, so that by the sheer negligence and carelessness of the ^defendant as recorder as aforesaid, in entering the said false and forged receipt on the margin of the said record as aforesaid, the plaintiff has been deprived of a good title to said land, and lost the full. consideration paid therofor, as aforesaid, to his damage,” etc.
    The defendant demurs.
    Crane and Thomas, for defendant, in support of demurrer:
    The declaration in this case confounds misfeasance and negligence.
    The declaration does not charge the defendant with acting willfully and maliciously, or fraudulently, with a knowledge of the forgery. The charge is, for recording a receipt “ without any competent authority;” in other words, with a mistake as to the law, whether the writing in question was one required by law to be recorded. If such mistake was made, the defendant, acting bona fide, is not responsible to the plaintiff for its consequences. The recorder is a public officer, sworn to discharge his duties “ according to the best of his abilities and understanding.” It is his duty to record “all deeds, mortgages, and other instruments of writing, required by law to bo recorded, and which shall be presented to him for that purpose.” Swan’s Stat. 778. He has no option to act, or not; ho must record all writings presented to him, required by law to be recorded, and consequently must judge whether the paper presented be one of that-description.
    In Harman v. Tappenden, 1 East, 555, it was held that an action does not lie against individuals for acts erroneously done by them in a corporate capacity, from which detriment happens to the plaintiff, without, proof of malice. Lawrence, J., said, 562, “there is no instance of an action of this sort maintained, for an act arising merely from error of judgment.”
    In Drewe v. Coulton, 1 East, 563, note a, Wilson, J., says: “ Thia is in the nature of an action for misbehavior by a public officer in his duty. Now I think that it can not be ^called a misbehavior unless maliciously and willfully done, and that the action will not lie for a mistake in law. The case of the Bridgemaster is in point. Buller’s N. P. 63. In all the eases put, the misbehavior must be willlul; and by willful, I understand contrary to a man’s own conviction. In very few instances is an officer answerable for what he does to the best of his judgment, in cases where he is compelled to act. But the action lies where the officer has an option whether he will act or not.” This was an action against a return* ing officer; but the principles laid down apply with equal or greater strength to the present case.
    The mistake of the defendant was not as to the law, but as to the fact of the genuineness of the receipt. By the very terms of a mortgage to secure the payment of money, upon performance of the condition the estate of the mortgagor becomes indefensable. Hill v. Webb, 8 Ohio, 224 A receipt showing such performance of the condition, is a writing “required by law to be recorded,” and when presented to the recorder it would bo his duty to record it. The declaration in this case does not show that the condition of defeasance was broken; and, if it had been, the payment of the money due operates as a release ; and any genuine instrument of writing showing such payment, is a proper subject of record. The recorder can incur no responsibility by being imposed on by a forged writing, which, if genuine, would have operated as a release of the mortgage. The place where the record is made, whether on the margin ortho body of the book, is immaterial; if the writing is the proper subject of record, the margin is preferable, as' more convenient for reference.
    The damages which the plaintiff alleges he has sustained, are not the legal and natural consequences of the unauthorized act imputed to the defendant. The receipt being forged, was null and void, and did not operate as a release. The plaintiff, because ho supposed the receipt genuine, and therefore purchased and paid for the land, can not resort to the defendant for the loss which ho has sustained by an imposition practiced on them both'. He had equal, in fact greater, means and %tronger’motives than the defendant, to ascertain the genuineness of this writing. His misfortune is not the legal and natural consequence of the defendant’s act, but an indirect and remote result of his subsequent purchase and payment. It was his act which gave force and efficacy to tho fraud of the mortgagor. Butler v. Kent, 19 Johns. 228.
    If these positions are correct, the declaration does not show a right of action against the defendant.
    The declaration states that, since the purchase by plaintiff, the land has been decreed to be sold, in a suit in chancery by the mortgagee, and actually sold, and from thence infers the loss and damage of plaintiff. The damages are not stated with sufficient distinctness. For aught that appears, the premises may have'sold for a sum sufficient to' pay the mortgage money, and reimburse the plaintiff the amount of his purchase money.
    Odlin & Schenck, Grovenor & Burgess, contra:
    The statute, Svvan’s Stat. 270, requires the receipt to be entered “on the mortgage,” or “on the record of the mortgage,” in the second section. The recorder shall record the satisfaction made on said mortgage, or permit the mortgagee to enter therein the satisfaction of said mortgage. The statute then seems to be guarded to prevent fraud. In the first requirement there is tho possession of tho mortgage itself, which is a strong security that the person holding it is the mortgagee. The second requires his personal presence, to receipt tho mortgage on the margin of the record ;• these are the only modes in which this statutory release can be made; neither of them have been complied with by the defendant; and the only question is, is he liable for permitting to be entered upon his records an illegal receipt, and representing the mortgage to be satisfied, and thereby deceiving the plaintiff? etc.
    The defendant, as recorder of the county of Miami, receives certain fees for the performance of his official duties. Those duties are clearly defined, and among them is that duty to reject from record any receipt as satisfaction which is not either *written upon the mortgage, or signed on the margin by the mortgagee. By permitting this false receipt to appear upon his records, the plaintiff has suffered special damage in the loss of the consideration money of the land.
    If a mandatory should gratuitously undertake to carry or to pay, or transmit money for a mandator to a particular place, to bo paid on a particular day, and the money should be delivered to him for that purpose, he would be bound by his receipt of the money to carry, pay, or transmit the money accordingly, and if he should omit so to do, he would be responsible for his negligence to the mandatory. Upon the same ground, if a bank should gratuitously undertake to collect the money on a note when due, upon the note being indorsed in blank, and left in the bank, and the bank should neglect to present the same duly for payment, or should neglect to give due notice to tho indorsers of the dishonor, etc., it would be responsible. Story on Bailments, 180, 182; Hough v. Young, 1 Ohio, 504.
    Where a person is clothed with authority as a public agent, it can not be' presumed that the government meant to justify, or even to excuse his violations of his proper duty, under color of that authority. Story on Agency, 328.
    It is claimed in this case, by counsel for the demurrant, that unless the record of release is operative, the act of entering it was null and void, and tho plaintiff was as much bound to know the effect of it as the defendant, and that, in that view of the case, the only condition upon which the defendant could be made liable would be, that he placed the writing upon record to mislead purchasers, which is not claimed.
    To this we reply, that the mode of release is directed by the statute; and, in the language of Story on Bailments, 181, “if he who undertakes the business of another is capable of managing it, and neglects to do so with due care, he is responsible; if he is not capable,' he is still responsible, for he ought not to have engaged to do that which he could not perform.” The law intended to protect the public is yet to be executed by the officer, that it may bo efficient for good; and it will hardly do to say that the public should know the requirements of the ^statute, and thereby protect themselves from the consequence of a paper illegally admitted to record, as an excuse for the officer. Fees are given by statute, Swan’s Stat. 398, to recorders for searches made.
    There is a case in 11 Wend. 546, where a justice of the peace gave erroneous information as to the amount of judgment beforo him, by means whereof an appeal was. lost, in consequence of a variance between the amount in the bond of the judgment, and the amount of judgment as returned in the appeal. In that case the court say, case will not lie without fraud or evil intent. That case is plainly distinguishable from this, and the reasoning of the court shows it. It is not the official duty of a justice of the peace to give the amount and date of a judgment, to enable parties to appeal. The court there say: “The justice in this case is the supposed friend; he is under no obligation, except that of courtesy, to give the information. It is not imposed by statute; he receives no compensation for it, and therefore should not be responsible for unintentionable error.” In this case it is the duty of the officer, by statute, to see that no improper release is placod upon the record. It is true he can not be required to judge of the genuineness of a paper proper for record; but this was a paper improper to bo recorded. By that improper record the plaintiff has been deceived. Had he exercised the cafe and diligence which public policy, and the public interest should alike demand of him, the statute duty would have been complied with, and the paper would not have been there to deceive the inquirer.
    This rule of liability, on the ground of public policy, attaches to many of the occupations of life, and why not to the discharge of official ministerial duties ?
    Counsel for the defendant rely upon the fact, that it is the duty of the recorder to record all deeds, etc., required by law to be recorded, etc.; that he has no option, except to determine whether it is a paper required by law to be recorded, and that this determination being of a judicial character, he is not responsible for ignorance of law; and, to sustain this position, *the case of Harman v. Tappenden, 1 East, 555, is cited. That was a case in which the “ plaintiff had broken a by-law, for which he had incurred certain penalties, and, happening to be present in court, he was called upon to show cause why he should not pay the forfeiture ; to which, not making any answer, but refusing to pay, the court proceeded, taking the case pro confesso, without any proof, to call upon him to show cause why he should not be disfranchised; and they accordingly made the order.” The court say: “This was undoubtedly irregular, but it was nothing more than a mistake, and there was no good ground to impute any malicious motives to the persons making the order ” (against whom the suit was brought), and therefore did not sustain the action. The case of Drewe v. Coulton, 1 East, 555, was, as has been stated by defendant’s counsel, an action against a returning officer for refusing a vote.
    Now, it séems to us, that these cases are plainly distinguishable from the case before us. There was no judicial act, as we understand it, to be done. The statute is directory and explicit; he acts but ministerially in carrying out its provisions. “He shall record the satisfaction made on the mortgage,” “ or permit the mortgagee to enter it on the record.” Swan’s Stat. 270. Now these are the only facts upon which the record can be made; and in disposing of the question, it is but simply to do what the statute directs, without possibility of error or doubt. The act so done will release the mortgage. The plaintiff, finding the receipt upon record, and being told the mortgage was discharged, had a right to consider it so done. The direction to the officer was, to protect him from fraud. Had that officer followed the plain directions of the statute, he would have been protected. The plaintiff finds the receipt upon record. If he is presumed to know the law, how does ho reason? This receipt on the margin is a copy of the receipt indorsed on the mortgage, and the £>ossession of the mortgage is my security that it was done by the proper person, or it was done by the mortgagee in person; and the fact that it is all in the same handwriting may well be, for it may ’tall be written by the mortgagor. Not so with the recorder; he is aware, and knows, that he has not pursued the plain direction of the statute; that he has recorded a mere loose receipt, presented by, he knows not whom, and by this utter carelessness and disregard of those directions to him as an officer, the plaintiff is injured.
    We do not suppose that the case of Hill v. Webb, 8 Ohio, 224, aids the defendant. It is true that any evidence, parol or written, which shows payment of a mortgage upon competent proof, will discharge the mortgage. Prior to the existence of this statute, we suppose, the only efficient record of discharge was a release— a perfect release — signed and acknowledged with all the formality of a deed. A mere receipt was not a paper for record, as in itself, discharging the mortgage, but for proof. However that may be, the statute had now rightly defined and set bounds to its operation.
    It is further claimed that the damages are not the legal and natural consequence of the unauthorized act, and that, therefore, the plaintiff can not recover. 19 Johns. 228.
    The caso in 19 Johns. 228, was an action brought to recover against the conductors of a lottery, for so carelessly, etc., managing the same that the public lost all confidence, etc., by which the price of tickets were reduced, the plaintiff having a large amount to retail.
    The court, in that case, determined the injury to be a public injury common to all the holders of tickets, and, if existing at all, to find its remedy in the bond given by the managers under the statute, and too remote, uncertain, and vague, to be the foundation of an action.
    We suppose, in this case, the damages to have been as direct as they well could be in any case, as consequential upon the act of defendant; The title is found to be unincumbered by the wrongful act of the recorder, and the plaintiff purchases and loses his money. It is true that it was his act of payment that fixed the damages; but it is equally true that it was this improper record that led to that payment.-
   *Read, J.

This action is brought against the defendant, as recorder of Miami county, for entering of record a forged receipt of money due on a mortgage, which misled the plaintiff into the belief that such mortgage was satisfied. And he, in consequence thereof, made purchase of the mortgage premises, which were afterward sold to satisfy the mortgage.

There is no averment in the declaration that the recorder had knowledge that such receipt was a forgery, or in any way acted maliciously or corruptly.

There is, therefore, nothing in this case to take it out of the operation of the ordinary rule, that an officer acting within the scope of his duty, is only responsible for an injury resulting from a corrupt motive. It is the duty of the recorder to enter of record all deeds, mortgages, and other instruments of writing, required by law to be recorded, and which are presented to him for that purpose. Swan’s Stat. 778. It is not his duty to determine the validity of such instruments as may be presented for record, or to ascertain whether they be genuino or forged. But even if it were, and he should act honestly and fairly, according to the best of his ability, he would not be responsible. Yet, undoubtedly, if regardless of his duty, he should willfully and maliciously, with full knowledge, enter a false and forged instrument upon record, whereby some person was misled and injured, he would be responsible.

In this case it is not pretended that the recorder had any knowledge that .the receipt was forged, or that he acted from corrupt, motive. In this view the declaration discloses no cause of action,, and the demurrer is well taken.

But it is said the receipt is not such an instrument of writing as the recorder was by law authorized to record, and therefore-he is liable. If this were so, and the recorder exercised his judgment in good faith, according to the best of his abilities, ho would not bo responsible. Besides, if the instrument is not such as th:elaw authorizes to bo recorded, the act of recording is a nullity,, and the plaintiff should have disregarded it.

*But, under our statute, the entry of a receipt of the mortgage money, upon the mortgage or upon the record, is a satisfaction of the mortgage, and operates its release. Swan’s Stat. 270..

Such a receipt would be put, of course, in the hands of the mortgagor, whose interest it is to have the mortgage released, and he-might present it for record. The receipt for the mortgage money is, within itself, authority to enter satisfaction of the mortgage, and the mortgagor has the right to present it for record.

Hence, in no aspect of the case made in the declaration, is the-plaintiff entitled to recover.

Demurrer sustained, and judgment for defendant.