author: J. R. Swan, J.

text:
    *Charles W. Hill and Elizabeth C. Hill v. Chas. Butler.
    A counter-claim must contain facts recognized by courts of law or equity as constituting an existing cause of action, and which would have entitled the defendant to a judgment or decree in a separate action.
    B. executed liis deed to H., with covenants of warranty, and H. executed a mortgage to secure the purchase money, and went into possession of the premises. A defect in the title was discovered to a part of the premises, after the deed was made, and before the mortgage was executed; and B. assured H. that he would get in the title, but failed to do so. In an action to foreclose the mortgage, H., by way of counter-claim, set up the defect in the title and the assurance and promise of B. to cure the defect, and prayed that B. might be enjoined from collecting the purchase money, until he made the title perfect. Held, that the defect in the title not asserted by action, and H. remaining in possession, did not entitle him to the relief asked; and that until eviction, or something equivalent thereto, nominal damages only could be recovered on the breach of the promise of B. to perfect the title.
    A judgment will not be reversed where the court fail to give nominal damages on a counter-claim, if such omission did not affect the costs or other rights of the defendants.
    In an action to foreclose' a mortgage for the purchase money of land, the mortgagor having covenants of title in the deed from the mortgagee, and, being in possession, can not, in the absence of all fraud, by counter-claim, have alleged defects of title passed upon, or damages awarded to him.
    This ease comes before the court upon a petition in error to reverse the judgment of the district court of Lucas county.
    Charles Butler filed his petition in the court of common pleas of Lucas county against Charles W. Hill and Elizabeth his wife, to foreclose a mortgage executed by Hill and his wife to Butler, on the 1st day of September, 1848.' To this petition Hill and wife filed their answer as follows :
    The defendants, for answer to the petition, say that the bond' and mortgage in the petition mentioned, were given for the pur208] chase money of said lots 285, 286, 287, and 424, *and that no payments have been made thereon other than those mentioned in the petition ; but they deny that the plaintiff is entitled to recover a judgment for the moneys unpaid on said bond and mortgage for the facts and reasons hereinafter stated ; and by way of counterclaim to said petition say: That in the spring of 1846 defendant, Charles W. Hill, was desirous of purchasing said lots 285, 286, and 424, as a site for a residence for himself and family; and being informed that the title to said lots was in the Albany City Bank, but that said plaintiff was in equity the owner thereof, went to said Butler and negotiated for a purchase of the same; and in pursuance of such negotiation, and upon terms fixed and agreed upon by and with said plaintiff, acting in the name of said bank, by John Fitch, Esq., its attorney, a contract was entered into, in writing, on the first day of May, 1846, by which said bank undertook to sell to defendant, Charles W., the three lots last mentioned, and to convey to him the same in fee simple; and binding said Charlee "W. to pay the purchase price thereof, and also to expend certain sums thereon, from year to year for three years, in permanent and valuable improvements. And defendants aver that said clause for improvements was put into said contract at the instance and on the requirement of said plaintiff, ho being at the time the owner of a large number of other lots adjoining those last mentioned, in their immediate vicinity.
    “That in pursuance of said clause defendant, Charles W. Hill, did go on to improve said property then lyiDg vacant. And, in •one year from the making of said contract, had expended on said premises, in constructing drains, erecting fences, and a barn, and in planting trees, more than eight hundred dollars- But in making such purchase said Charles "W. did not investigate the title to said premises, or make any inquiries in relation thereto, but re-209] lied wholly upon the *good faith of the plaintiff, implicitly believing that the plaintiff and said bank held and would convey a good title to said premises, or that they otherwise would not contract to do so.
    “ That about one year after said contract was made, and, as defendants believe, some time in the month of May or June, 1847, defendant Charles W. Hill had another negotiation with the plaintiff, when it was arranged between them, that said lot 287 should be added to those before sold, and that said plaintiff should, by his own deed and that of other necessary parties, convey all four of said lots to said Charles W. Hill, by such sufficient deed or deeds as would vest in him a perfect title to said four lots, with covenant of warranty on the part of the plaintiff. And that, a mortgage should be given by the defendants, with a bond to secure the purchase money for said lots to the plaintiff. And in pursuance of this last arrangement, which defendant believes was not in writing, the deed, a copy of which .is annexed hereto, was executed by said Butler and said banlr, and, on or about the 20th of July, 1847, delivered to defendant, Charles W. Hill, and the mortgage and bond mentioned in the petition, on the day of the date thereof, given in exchange therefor, and the written contract first mentioned given up, or treated as merged and superseded by the deed, bond, and mortgage. And defendants aver that said purchase was made on their part with the sole reference to using the said premises permanently as a place of residence for themselves and their families; that said lots 285, 286, and 287 lay together, and were intended by them as a sits for their dwelling-house; and when purchased as aforesaid were entirely vacant.

      “ And defendants aver, that until several months after said deed was made and delivered, as aforesaid, defendants had not examined or inquired into the state of the title *to said lots, or either of [210 them; but relying upon the good faith of plaintiff, and implicitly believing that he would not pretend to sell and convey property to which he had not a perfect title, received said conveyance, and continued to expend money for the improvement of said property, not doubting that said Charles W. Hill had received a perfect title to the same, until a short time before said-bond and mortgage were given.
    “ That a principal object in obtaining said deed, at the time it was received, was to enable the grantee to obtain a loan on said property; and with that view defendant, Charles W. Hill, caused an examination of the title to be made, some time in the summer of 18-18, when it was ascertained that there was some defect in the title of the plaintiff. That an undivided portion of each of said lots, equal to five seventy-second parts of the same, had been, on or about the 15th day of September, 1835, conveyed by Edward Bis-sell and his wife to one Isaac S. Smith, before the accruing of the title under which the plaintiff claims; and such defect defeated said object of obtaining said loan.

      “ That soon after said examination was made, said Charles W. Hill informed said plaintiff that said title was defective, .and requested him to get in the outstanding title, which he undertook to do.
    “ That at the time when said bond and mortgage were about to be añade, defendant, Charles W. Hill had a conversation again with the plaintiff about the state of said title, when it was understood "between them, that the plaintiff had several other lots in the vicinity of the four lots- above mentioned, or was interested therein, the iitle to which was in the same condition as those above mentioned, ¡and on that account, and as the plaintiff had sold said four lots to 211] said defendant at their full value, and. undertaken *to give him a perfect title to the same, said plaintiff then assured the said 'Charles W. Hill that he would then proceed to get in said out•standing title, and secure to and vest in said defendant a perfect title to said premises; and the defendants aver that relying upon the good faith of said plaintiff and upon his promise and assurance last aforesaid, said bond and mortgage were given for the full value •of said four lots, and without any diminution in the price thereof in consequence of any defect of title. Defendants further aver that without such assurance and promise on the part of said plaintiff, .-said bond and mortgage would not have been executed or delivered to the plaintiffs, as defendant would not have received property for immediate improvement as a homestead, the title to which was defective, without express and reliable assurances that a perfect title would be promptly secured to them.
    “ That, relying upon the good faith of the plaintiff and upon his ¡assurance aforesaid, said Charles W. Hill, having been j>ut into the possession of said property under said contract and deed, after the making of said bond and mortgage went on to improve said mortgage premises as a homestead, the plaintiff knowing that the ■defendant wished said premises for that purpose, and has expended in improving said premises, and in fitting the same up as a residence for himself and family, more than six thousand dollars in permanent and valuable improvements.

      “ That the plaintiff was particularly anxious to have defendant go •on with said improvements, as they would tend to enhance the value of his other property in that vicinity, then vacant also.
    “ That from investigations recently made at the instance of defendants, it appears, and defendants state the fact to be, that said 212] mortgaged premises, with a large number of Hots in the same vicinity, on or about the 15th of September, 1835, belonged to. a joint stock company, the aggregate shares of which amounted to 1, 152 shares; 960 of which belonged to and were held by said Edward Bissell, 80 shares by said Smith, and 112 by one Henry W. Hicks, now of the city of New York — being five-sixths in Bissell and one-sixth in the other parties.
    <! Defendants are not fully advised of the exact state of so much of the title as was held by said Smith and Hicks, but are informed and believe, and therefore state, that a portion of the same has descended to, and vested in the widows and heirs of Hiram Pratt and William E. P. Taylor, viz., Maria E. Pratt, Ann Eliza Pratt, Mary B. Pratt, Maria E. Pratt, Jane Taylor, Henry Taylor, William B. Taylor, and Sheldon Thompson Taylor, of Buffalo, in the State of New York; all but the said Maria E. Taylor and Jane Taylor, being, as defendants are informed and state, infants; and that the remainder of the title so held by said Smith and Hicks, is now held by said Hicks, or otherwise outstanding.
    “Defendants further say that the plaintiff’s title,' as conveyed to said Charles W. Hill, purports to come from said Bissell, and is .also incumbered by a prior conveyance to one Sidney Bissell, of the entire property; and if not thus incumbered, would amount only to five-sixths of the property which plaintiff was to receive pay for by the bond and mortgage, and which he undertook to •convey to said Charles W. Hill; the other sixth being now outstanding in various persons, as aforesaid. .
    “ Defendants further state from information recently acquired, which they believe to be true, that the plaintiff, before said sale to defendant, Charles W. Hill, held such an estate in the mortgaged premises as would vest in his wife, then and still living, an inchoate dower estate; that she *has not released that estate, and in [213 case of his death might legally claim the same against the defendants. N
    “ That said plaintiff resides in the city of New York, and is now about fifty-five years of age.
    “ That said lots 285, 286, and 287 are occupied by the dwelling-house of defendants, and that a partition of the mortgaged premises could not be made without manifest injury to the same.
    “ That more than six years have elapsed since the most prominent defects in said title were made the subject of the special undertaking in relation thereto by the plaintiff, above set forth ; during which period he has taken no steps, so far as defendants are informed, toward getting in and perfecting said title in defendants, or either of' them, but wholly neglects and.refuses to perform his said agreement, and, in direct violation of the rights of the defendant, seeks, to collect the full price of said premises by legal proceedings. ■
    “That defendants are fearful that by the death or insolvency of the plaintiff, or by an assignment or transfer of the bond and mortgage aforesaid by the plaintiff, the title to a large portion of said premises may be wholly lost to defendants, and their remedy on the-warranty of the plaintiff worthless; and that should the warranty aforesaid continue in other respects good, it would not afford an adequate remedy, as the property is not susceptible of division, and the amount that could be recovered would not be equal to the damage sustained, and therefore defendants would suffer irreparable injury.
    “ Defendants are willing to pay the balance of said purchase money, and interest, whenever said plaintiff will vest in said Charles W. Hill a good and perfect title to said premises.
    * “ Defendants therefore pray that any further proceedings on the part of said plaintiff, toward the enforcement of said bond and. mortgage, until said title is perfected as last aforesaid, or any transfer or assignment of said bond or mortgage, or any part of either of them, to any other persons, before said title is so perfected, may be restrained by the order or injunction of this honorable court; and that the plaintiff may be specifically required and directed by this court to perform «aid agreement as to title on his part; and that defendant may have such further relief as is right and proper.”
    The court of common pleas rendered a judgment against the defendants below, and found that they were not entitled to the relief by them prayed for in their answer. An appeal was taken by the . defendants below to the district court, where a like judgment was entered, the court holding that the answer contained no matters constituting a defense, cpunter-claim, or set-off. There had been a reply to the answer, but the case seems to have been submitted to the court upon the answer, as if the allegations therein had been proved. Hill and wife now prosecute a petition in error to reverse the judgment of the district court.
    P. B. Wilcox, for plaintiffs in error:
    I. The agreement to get in the outstanding title is a valid one, and may be enforced specifically, if practicable; or, if not practicaBle, then it is a good ground for damages, by way of counter-claim or set-off. 1 Ohio, 357.
    And the rule is well settled that, where money is paid upon a parol contract, and the vendor refuses or neglects to execute the contract, the money paid may be recovered back. 1 Ohio, 357-363; 14 Johns. 15.
    The allowing the defendant to go on and make so large *im- [215 provements on the faith of the agreement to get in the title; is a ■fraud, and furnishes good ground for damages. 14 Johns. 15, 31.
    II. The party is not bound to look to the covenant of warranty in his deed.
    The subsequent agreement being a valid one, ought certainly to Be taken ídío account, either as a defense, or counter-claim, or set-off
    If 'Butler had the power to specifically perform this subsequent ¡agreement, he would, undoubtedly, be compelled to do it, although it is in parol. 14 Johns. 15, above cited, is a strong case in point. See also 2 Story Eq. Jurisp., sec. 761; 1 Dev. & Bat. Ch. 410.
    III. Besides, a parol agreement is good and will always be enforced, even when it is void under the statute of frauds, unless the ■statute be set up and relied upon in the pleadings. A court of equity will always enforce a parol agreement as soon as any other, unless the statute of frauds is interposed. And such interposition is always to be made by the party. The court never go about to make any such inquiries of their own motion.
    IY. This is not the ease of a common mortgagee suing on his Bond and mortgage to recover his money, when the title is, in whole or in part, defective. In such cases the validity of the title ■is a matter of the mortgagor’s concern only. But this case is where a vendor is seeking to recover his purchase money, where his title .turns out to be defective. And in such cases a court of equity will not allow a sale till the title is cleared up. See 1 Rand. 72.
    Y. And in cases of common mortgages and other public sales, in order to obtain a fair price, and that purchasers may be protected ■by the court, and not compelled to take incumbered or worthless titles, the court will always take notice, in their decree, of any cloud upon the title, or defect *in the title, and order it to be [216 sold at the purchaser’s risk. 1 Ed. Ch. 301; 1 Paige Ch. 120. But here the entire premises are ordered to be sold, as if the title were complete and perfect in all respects. If such sales are allowed) very little confidence will soon be placed in judicial sales.

      M. R. & R. Waite, for defendant in error.
   J. R. Swan, J.

I. There are three kinds of defense which maybe set up in an answer under the code: 1. Matters which, by the common law, were usually plead in bar of the action; 2. Counterclaim; 3. Set-off. Although the answer may be so unskillftilly drawn as not to distinguish between the three, yet if it contain sufficient facts to show a defense under either, the court will not permit thp defendant to be prejudiced by his not making the proper distinction, in his answer, between the three kinds of defense.

The defense in this case was set up as a counter-claim.

The code allows any ground of defense existing in favor of a de■fendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s, claim, or connected with the subject of the action, to be set up as a. counter-claim. Code, sec. 94. This provision allows the defendant, to plead various matters of defense, which could not be entertained before the adoption of the code, either on account of the separation of the law and equity jurisdiction of courts, or the forms of actions and of pleadings.

But it neither changes contracts, nor alters the rights of parties; it only changes and enlarges the mode by which contracts shall be-enforced and existing rights vindicated. Hence, in the case before-217] us, the rights of Hill under the ^covenants in the deed of Butler, and under the alleged agreement as to a defect in the title,, must be determined upon the recognized principles of courts of ' law and equity, and can obtain no support by means of this provision of the code. In other words, the counter-claim must contain facts recognized by courts of law or equity as constituting an existing cause of action.

II. It is insisted that the defect in the title to the premises ought, to have been considered in fixing the amount due upon the mortgage, or a recovery of so much of the purchase money enjoined, as-would cover the alleged defect of title. In general, where the title fails, in whole or in part, a court will decree a return of the purchase money, even after the purchase money has been paid, and a delivery of the deed containing covenants of warranty, provided-there had been a fraudulent misrepresentation as to the title. Edwards v. McLeary, Cooper Eq. 308; Fenton v. Browne, 14 Ves. 144. But if there be no ingredient of fraud, and the purchaser is not evicted, or something equivalent to an eviction has not transpired, the insufficiency of the title is no ground for relief against a security given for the purchase money, or for rescinding the purchase and claiming restitution of the money. The party is remitted to-his remedies on his covenants to insure his title. Abbott v. Allen, 2 Johns. Ch. 519; Edwards v. Bodine, 26 Mend. 109; Burkhamstead v. Case, 5 Conn. 528; Patten et al. v. Taylor, 7 How. 132; Leggett v. McCarty, 2 Edw. Ch. 124; Maner v. Washington, 3 Strob. 171; Lamerson v. Marvin 8 Barb. S. C. 11; Platt v. Gilchrist, 3 Sand. S. C. 118. And the party is remitted, in such ease, to the covenants in the deed, not on account of the forum in which he proposes to reduce the amount of the purchase money to the extent of the defect in the title, nor on account of the form of judicial ^proceedings, but because, so long as the grantee remains in [2XS possession and enjoys the fruits of the purchase, no real damage has accrued to him ; and the defective title may, by adverse possession, ripen into a perfect one. Simpson et al. v. Hawkins et al., 1 Dana, 309. And where there is no actual prosecution of the paramount title or incumbrance, the insolvency or non-residence of the vendor will not, when coupled with the mere existence of such title or incumbrance, give to the purchaser a right to equitable relief. Latham v. Morgan, 1 Sme. & Marsh. Ch. 618; Rawlins v. Timberlake, 6 Mon. 232. It is said by Chancellor Kent, in the case of Abbott v. Allen, 2 Johns. Ch. 522: “ It would lead to the greatest inconvenience and perhaps abuse, if a purchaser in the actual enjoyment of land, and when no third person asserts, or takes any measures to assert a hostile claim, can be permitted, on suggestion of a defect or failure of title, and on the principle of guia timet, to stop the payment of the purchase money, and of all proceedings at law to recover it.”

When the covetiant is broken at the time the suit is brought to recover the purchase money, the purchaser will be entitled to detain the purchase money to the extent to which he would, at that time, be entitled to recover damages upon the covenant. Knapp v. Lee, 3 Pick. 459; Rice v. Goddard, 14 Pick. 293.

It may however be said that the agreement set forth in the answer is'of such a nature that the general principles of -law relating to covenants of title in deeds are inapplicable. There are several answers to this position. The matters set forth in the answer are a detail of what transpired in various interviews between the plaintiff and defendant; and are so stated for the purpose of raising a presumption that the whole constituted a promise by Butler to obtain a conveyance from those who derive title 219] ^through Smith, etc. That the parties conversed upon the subject is abundantly shown by the answer ; but that the parties mutually understood that an express agreement was entered into, creating a legal liability, and changing their relation to each other under the covenants of title contained in the deed, we do not believe. There was no consideration for such an agreement. Miller v. Watson, 5 Cowen, 195. But if it were held to be an agreement, and that Butler failed to perform it, what damages is Hill entitled to? He is still in possession, enjoying the fruits of his purchase, and ripening his title by that possession. Shall he be compensated as though an eviction had taken place, because by possibility, or even probability, an outstanding title will be asserted ? This would be giving damages by reposing confidence and resting opinions upon a future event which may never happen, for the benefit of the purchaser, and at the same time leaving in him an inchoate title, which may, by possession, become perfect and paramount. At most, therefore, the defendants below would be entitled to nominal damages only, and where a counter-claim or set-off is set up, upon proof of which the party is entitled to nominal damages only, and the court below do not award them, this court on error will not disturb the judgment on that account, if such finding did not affect the costs. But the defendants did not ask for damages, but that Butler might be restrained by injunction from a recovery of the purchase money until he performed the agreement. Such relief must be denied. The plaintiffs in error do not desire to cancel the contract as. to the whole, or as to five seventy-two parts, or place Butler in the position, as respects the five seventy-two parts, he occupied before the sale. On the contrary, their claim is, that they shall retain possession, enjoy the fruits of the contract, have 220] the benefit of the title which is ^ripening, and pay nothing for it until Butler procures a perfect paper title. Such remedy would be making a new contract between the parties.

We are of the opinion that the same reasons which have influenced courts not to relieve, after deed made with covenants of warranty, against the payment of the purchase money, on the mere ground of defect of .title, when there was no fraud and no •eviction, applies with equal force to the agreement set up in the answer.

If Butler was insolvent, and there was an action pending against Hill brought to assert a paramonut title under Smith, etc., or if no •deed had been made by Butler to Hill, and the action below had been upon a title bond or agreement, for the sale of the premises to Hill, the rights and remedies of Hill, upon such executory contract, would have been very different.

III. But it is insisted that the court below should have ascertained the extent and nature of the defect in the title, and, for this purpose, should have ordered the persons who hold the outstanding title to be made parties; settled their respective rights, legal and equitable : made a proper abatement of the purchase money; and ordered that portion of the premises to which Butler was found to have a perfet title, sold to pay the amount found due to him.

The outstanding title accrued in 1835.

Hill, in quiet possession under his deed, and enjoying the fruits •of his purchase, has no right to call upon the court to stir up a • litigation about an outstanding claim to the premises which has never been, and probably never will be, asserted by action or otherwise. If he desires to quiet his title, he can file a petition for that purpose, and under his alleged agreement with Butler, could probably subject the latter to the costs and expenses of the proceeding. To litigate and settle a question of title with third persons having -*no privity with the sale by Butler to Hill, for the purpose [221 of creating a right of action by way of counter-claim in a pending suit relating to that sale, we think is extending the defenses under the code beyond any legitimate claims of justice.

Judgment of the district court affirmed.

Brinkerhoee, Bowen, and Scott, JJ., concurred.

Bartley, C. J., dissented.


source: Caselaw Access Project

author: Brinkerhoff, J.

license: Public Domain

text:
    Samuel Myres and others v. Rachael Myres and others.
    In a proceeding under the statute to contest the validity of a will, the remedy by petition for rehearing, if ever authorized in such a proceeding, was superseded by the code of civil procedure.
    In all proceedings, after the taking effect of the code, to vacate, modify, or reverse final orders, judgments, or decrees in civil cases, the code of civil procedure applies, in special statutory proceedings, and in cases in chancery, as well as at law — saving only the old remedy by bill of review.
    Where, after verdict and decree in a contest of a will under the statute, the party against whom the verdict and decree were rendered filed a petition within the time, and containing substantially the allegations and prayer prescribed by sections 534 and 301 of the code for a petition for a new trial, the fact that the same was filed on the allowance of a judge of the Supreme Court, and was called a petition for rehearing, will not vitiate the petition, and it will be allowed to stand as a petition for a new trial, and formal defects may, on proper terms, be cured by amendment.
    The district court erred in holding that the allowance of such petition operated of itself to vacate the verdict, and in awarding a new trial, without further evidence, hearing, or finding of facts.
    This is a petition in error, to reverse an order of the district court of Seneca county.
    *The material facts shown by the record are the following:
    The plaintiffs in error brought suit in the court of common pleas of Seneca county against the defendants in error, under the statute “relating to wills” to contest the validity of a paper writing which purported to be the last will and testament of William Myres, deceased. , .
    The case was tried in the court of common pleas, and decree rendered for the defendants. The plaintiffs took an appeal to the Supreme Court, and the case was pending in that court when the new constitution took effect; and came into the district court of that county as the successor of the old Supreme Court.
    The case came on for trial in the district court by j ury, as provided by statute, at the September term, a. d. 1853. And the jury found that the said paper writing was not the last will and testament of the said William Myres, deceased.
    The defendants thereupon filed their motion for a new trial. The ' motion was overruled by the court, and decree entered on the verdict of the jury.

      No exceptions were taken upon the trial, and none were taken-when the motion for a new trial was overruled and decree entered the court adjourned and the judges dispersed.
    Afterward, but within thirty days after the court adjourned, counsel for the defendants prepared and presented to the judge of' the Supremo Court, sitting on the trial, a paper, which they called-a petition for rehearing, and he allowed it as a petition for rehear ing, making upon it the following entry: “I, one of the judges-before whom the within-named cause was tried, in the district court, and who concurred in the orders, and judgments, and decrees entered in said cause, in said court, do hereby allow a rehearing in said cause pursuant to the statute.”
    *At the next term of the district court of Seneca county, [223 the same being the September term, 1854, the plaintiffs appeared and moved the court to strike this petition for a rehearing from-the files, as unauthorized: ■
    This motion the court overruled, and held that the petition for rehearing was not only authorized by law, but a majority of the-court held that its allow&nce vacated all the proceedings which had been had in the .case subsequent to the appeal from the common pleas; and the court thereupon made the following order in the-case, which was entered on the journal, to wit:
    “ This cause came on to be heard on the motion of the contestants to vacate and strike from the files the order of the judge of the Supreme Court allowing a rehearing of this cause, which motion was overruled by the court. And thereupon, on motion of the said Rachel Myres, it is ordered and adjudged by the court that an issue be made up and directed to a jury to try the validity of said will, which is hereby ordered. .And thereupon came the said Rachel Myres and John Myres, and moved the court to change-the trial of said cause to some adjoining county, which motion, by consent of the parties, was reserved by the court for decision in Wood county, and the cause is continued.”
    To all which the plaintiffs in error excepted, and obtained a copy of the record, and on leave filed their petition in error in this court.

      J. M. Boot and W. F. Stone, for plaintiffs in error.
    We claim:
    1. That a rehearing is not á remedy to which either party can or ever could resort in suits brought to contest a will under the-statute above referred to.

      2. That in no case can a rehearing be had since the code went :into operation.
    *3. That however this may be, the allowance of a rehearing in this case did not operate to set aside the verdict of the jury; but the same remains in full force, and stands as the final determination of the matter in controversy.
    ' 4. That if we are right in either of the foregoing, the district •court, in its adjudications and proceedings in said 'cause, at the September term thereof, 1854, erred, and such errors may be corrected •by petition in error to this court.

      Bartlett & Hall, and Gibson, for defendants in error.
   Brinkerhoff, J.

The “ act directing the mode of proceeding ¡in chancery,” of March 14, 1831, provides, in its fifty-sixth section, that “ petitions for rehearing shall be signed by counsel, and preferred within thirty days after the making of the order on the hearing; and the prayer of such petition shall bo allowed or dis.allowed, at the discretion of'any two of the judges of the court of common pleas, or one of the judges of the Supreme Court, who •made the order on the hearing of the case.”

The judge in vacation allowing the petition for rehearing, and the'district court, on acting on that allowance, have evidently proceeded on the assumption that the proceeding lately pending before them was embraced within the provisions of the statute referred to, and that 'the same were still in force, applicable to the ■proceeding, and not superseded by the code of civil procedure.

But whether this proceeding under the statute to contest the validity of a will was ever so far a “ proceeding in chancery” as to ■carry with it, as an incident, the right to file a petition for rehearing under the fifty-sixth section of the act of 1831, is a question which, though urged by counsel, we do not, in the view we take of the case, deem it necessary either to discuss or to determine; for '225] we are ^satisfied that the old remedy by petition for rehearing, if it ever existed in a proceeding to contest the validity of a will, has been superseded by the provisions of the code.

Section 602 of the code provides that “ the provisions, of this •code do not apply to proceedings in* actions or suits pending when dt takes effect. They shall be conducted to final judgment or decree in all respects as if it had not been adopted; but the provisions of this code shall apply, after a judgment, order, or decree-heretofore or hereafter rendered, to the proceedings to enforce, vacate, modify, or reverse it, except as provided in section five-hundred and thirty-three.” And that section is as follows : “ The final order or decrees of courts of chancery heretofore rendered, or which may hereafter be rendered in any chancery proceeding-pending when this code takes effect, may be reviewed in the same-manner and within the same time as if this code had not taken effect ; and all suits in chancery pending at that time may be prosecuted to final decree in like manner.” The decrees of courts of chancery may he reviewed in like manner, etc. This is technical phraseology, borrowed from pre-existing usages and laws, and when used in reference to tho'se laws and usages, had a meaning-fixed and ascertained.- The rehearing of a case in chancery, and the review of a decree in chancery, were not identical, but distinct, remedies ; and the latter was always, in its technical sense, understood to mean a remedy by bill of review. And, in accordance with a familiar and well-settled canon of construction, we so understand and hold its meaning to be in this section of the code. The provisions of the code, then, do apply, after decree, to proceedings to. vacate, modify, or reverse it, excepting and saving only the old remedy by bill of review.

It may, perhaps, be contended that the provisions of section 604 of the code provide for other exceptions ; but *that position [226 is negatived by the holding Of this court in Collier’s case, and in Hobbs v. Beckwith, at the present term. The proceedings mentioned in that section- are excepted from the operation of the code-while pending ; that is, up to final order, judgment, or decree,’but not as to proceedings to vacate, modify, or reverse them.

In this case there was a verdict; motion for new trial made,, heard, and overruled; and final decree in pursuance of the verdict. And all proceedings to vacate, modify, or reverse that decree, must be had under, and be governed by, the code, of civil procedure.

What, then, were the remedies afforded by the code, and how far have they been pursued by the defendants in error ? They were, first, the ordinary remedy under the code, by petition in error ; and second, the remedy by petition, provided for in section 534 of the code. That section provides that “ a court of common pleas, or district court, shall have power to vacate or modify its own judgments or orders, after the term at which such judgment or order "was made: 1. By granting a new trial for the cause, within the time and in the manner prescribed in section three hundred and •one,” and so on.

Now, turning to section throe hundred and one, we find it to be -as follows: Where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee, or decision was rendered or made, the application maybe made by petition filed, as in other cases, not later than the second term after the discovery; on which a summons shall issue, be returnable and served, or publication made, as prescribed in section seventy-two. The facts stated in the petition shall be considered as denied without answer ; and if the service shall be complete in vacation, the 227] case *shall be heard and summarily decided at the ensuing term, and if in term, it shall be heard and decided after the expi ration of twenty days from such service. The case shall be'placed on the trial-docket, and the witnesses shall he examined in open court, or their depositions.taken, as in other cases ; but no such petition shall be filed more than one year after the final judgment was rendered.”

This, then, is the remedy which the code afforded to the defendants in error. Have they pursued it? If we look to the substance of things, regardless of mere names, we think they have. The • calling their petition a petition for rehearing, instead of a petition for a new trial, certainly can not vitiate it; and the fact that a judge in vacation indorsed on the paper his leave to place on file a petition which they might have filed as a matter of right, surely ought not to operate to the prejudice of the petitioners. The petition was filed within the time prescribed by the code; process issued, and was served and returned; the petition contains substantially the averments necessary to a good petition for a new trial; and any formal defects in their petition, of which the defendants in •error may bé advised, may, on application to the court where it is pending, and on proper terms, be cured by amendment.

But, while the party did unwittingly adopt and pursue the remedy to which he was by law entitled, the court was, we think, less fortunate in its proceedings. In hearing no testimony, finding no fact, and holding that the allowance of the judge alone operated ■of itself to set aside the verdict, and thereupon ordering a new •trial, the court erred.

Only one question remains. Does a petition in error lie to reverse this erroneous ruling, and order of the court? We are of «¡union it does — that order coming, as we think, fairly within the ■definition of a final order, as given in section 512 of the code. It is “ an order affecting a substantial *right . . . upon a [228 nummary application in an action after judgment.”

All the rulings and orders of the district court, made after the ■decree in the case, will, therefore, be reversed; and the petition of the defendants in error for a new trial pending there, subject to ■such amendments as they may be advised are necessary and proper, and as the district court, on proper terms, may allow, will stand •for trial and determination, on testimony to be adduced by the parties respectively.

Orders of the district court, subsequent to decree, reversed, and writ ■of procedendo awarded.

Bartley, C. J., and Swan, Bowen, and Scott, JJ., concurred.


author: Bowen, J.

text:
    Joshua Dial, Administrator of David Dial, v. Alfred Holter.
    Words spoken of. another, charging him with maliciously removing the cornerstone of lands, are, per se, actionable.
    When a defendant to a count for libel pleads that the charges against the plaintiff were preferred without malice, to a church of which both parties were members, for the purpose of bringing plaintiff to trial on such charges, before a committee of the church, according to the usage and discipline thereof, a replication reaffirming the defendant’s malice in making the publications was properly held sufficient on demurrer to such replication, although it did not aver want of probable cause on the part of defendant to make the charges.
    Where a defendant in an action for libel and slander, after the finding of a verdict against him in the court of common pleas, files, during the same term, and in compliance with the rules of the court, motions for a new trial and in arrest of judgment, and afterward dies, and the motions are continued to another term for hearing, the court may, if such motions be overruled, enter a judgment nunc pro tunc upon the verdict, as of the term in which, it was found.

      *In error to the district court of Clermont county.'
    Alfred Holter sued David Dial, in the court of common pleas, for libel and slander.

    The first count of the declaration charges that Dial wrote and published of Holter, that he knowingly and maliciously removed a. corner-stone of O’Bannon and Taylor’s survey — that he had been guilty of falsehoods, and that he had committed an assault and battery on Benjamin Hammett.
    The second count alleges that the defendant verbally charged the plaintiff with willfully, maliciously, and knowingly plowing up the-corner-stone, and of willfully and maliciously removing the cornerstone of J. O’Bannon’s survey, and that he ought to be indicted and punished for so doing.
    To the first count the defendant pleaded that he and Holter were members of the Methodist Episcopal Church, and that, without the-malice imputed to him in the declaration, he did exhibit to the branch of said church of which they were members, according to the usage and discipline thereof, the several charges and specifications against the said Holter, for the purpose of bringing him to a trial on said charges before a committee of said church, according to the usage and discipline thereof, and that afterward the same came on for trial before a committee of said church and was then and there tried; and that this is the same matter charged against said Dial in said first count, etc.
    To the second count defendant pleaded justification.
    The plaintiff replied to the first plea that the said Dial, for the-, purpose of harassing, defaming, and injuring him, the said Holter, did willfully and maliciously exhibit to said church, said charges and specifications in said plea mentioned, etc.
    *A special demurrer was filed to this replication: 1. Because it does not admit nor deny that the parties were members of the said church, and that the charges were preferred according to the discipline; 2. It does not deny probable cause on the part of said Dial to prefer said charges; 3. It does not answer the whole of the plea.
    ■ This demurrer was overruled; when the defendant rejoined “ that the said Dial, for-the purpose-of harassing, defaming, and injuring him. the said Holter, did not willfully and maliciously exhibit to said church said charges and specifications, in the replications mentioned.”

      The cause was submitted to a jury on the 18th of November, 1848, and a verdict returned for the plaintiff for $500j on which the court rendered judgment; but the defendant, after the entry, and at the same terra, filed motions for a new trial and i n arrest of j udgment. No disposition was made of these motions, at the said November term, but a general order of continuance, of cases not disposed of, was made upon the journal and carried the motions over to March term, 1849.
    On the 4th of December, 1848, and before the adjournment of the court at which the verdict was returned and judgment rendered, David Dial died, and Joshua Dial was appointed his administrator. At the March term of the court, 1849, a suggestion of the death of Dial and of the appointment of an administrator, was made. The latter thereupon moved the court to strike out the entry of the judgment of the November term, because it was entered while the motions for new trial and in arrest were pending, and because the said David Dial had departed this life. The court overruled this motion and would not permit Joshua Dial to bo made party to the proceedings. The motions for a new trial and in arrest were declared abated by the death of Dial, and therefore overruled.
    *A writ of error was jn-osecuted in the Supreme Court of [231 the county to the ruling of the common pleas on the above motions, and at the May derm, 1850, the judgment was reversed, because the court below had refused to allow the administrator to enter an appearance for the deceased, and to be heard on said motions, and the cause remanded to the common pleas.
    At the July term, 1850, of the common pleas, Joshua Dial was made a party to the suit, and the motions were then heard and overruled, and a judgment entered against the' administrator for the amount of the verdict.
    A second writ of error was prosecuted by the administrator, and the last judgment reversed, on the ground that it was given against him as administrator, and the cause was again remanded to the ‘common pleas.
    At the November term, 1851, the court of common pleas made the following order in the case:
    “ It is now here considered by the court that the said Alfred Holter recover of said defendant, David Dial, the said sum of $500, the damages assessed by the jury aforesaid, at the said November term of this court in the year 1848, and also, his costs herein expended; ■■and it is further ordered and adjudged that this judgment shall ¡stand for and be considered as the judgment of this court rendered ¡as of and at the November term of this court in the year 1848.”
    A third writ of error was sued out of the district court of the ■county, in 1853, to the last judgment, but that court affirmed it.
    This petition is filed to reverse the judgment of affirmance of ■the district court.
    It is assigned for error:
    1. That the court of common pleas erred in rendering a judg-' ¡raent nunc pro tunc.

    *2. In not declaring said action abated by the death of David Dial.
    3. In overruling the demurrer to the replication.
    4. The second count of the declaration is not sufficient to maintain the action, and the verdict is general upon both counts.

      John Jolliffe, for plaintiff in error, argued:
    I. The courts of Ohio have no power to enter judgments nunc pro tunc.

    Such judgments are contrary to the whole policy of this state-.as the legislature has settled that policy by statutory provisions.
    The whole power of the courts in Ohio to enter judgment is derived from the statutes of the state.
    There, is no statute that authorizes judgments nunc pro tunc.

    II. No such judgment as this is, could be rendered at common law in England.

      Nunc pro tunc judgments' could be entered where no judgment had been entered, in certain cases, and where the entry did not ■contradict the entry of a previous term. Farrell v. Tipper, Latch’s Cases, 88; Crisp v. The Mayor and Commonalty of Berwickupon-Tweed, 1 Leving 252; 1 Mod. 37.
    III. The case abated by the death of David Dial. Ireland v. Champeny, 4 Taunt. 884; Cro. Cas. 509; Cowly and wife v. Poulton and wife, Hobart, 129a, (Williams’ ed.); The King v. Dryden, Gibbs, and others, Cro. Cas. 574; 1 Bac. Abr. (Bouvier’s ed.) 15; Swan’s Stat. of Ohio, 667, sec. 80; Weston v. James, 1 Salkeld, 48; Griffith v. Williams, 1 Crompton & Jarvis, 43; Graham on New Trials, 609; 44 Ohio L., sec. 2, of Act of March 12, 1848.
    IT. The replication to the first plea to the first count of the ^declaration was insufficient, because it did not aver “ want [333 ■of probable cause,” as well as malice.
    The court erred in overruling the demurrer to said replication. Gray v. Pentland, 2 Serg. & R. 23; Thorp v. Blanchard, 5 Johns. 508; Vandergee v. McGregor, 12 Wend. 545; Fairman v. Ives, 5 Barn. & Ald. 642; O’Donaghue v. McGovern, 23 Wend. 26; White v. Nichols, 3 How. U. S. 266, 276, 289, 291.
    Y. The plea avers that the publication was made to the church only for discipline. Its exhibition there for that purpose is not actionable. Rex v. Bailie, 2 Esp. Nisi Prius (Gould’s ed.), 91; King v. Hart, 1 Wm. Black. 386; 1 Term, 130.
    VI. The second count is for verbal slander. ’ The words are not actionable. See 1 Hare & Wall. Amer. Lead. Cas. 120, 121, referring to Holt v. Schofield, 6 Term, 690; Hall v. Mellern, 8 Dowling & Ryland, 140; Shaeffer v. Kinster, 1 Binn. 537-541; Pratt v. Price, 11 Wend. 127; Watson v. Humpton, 2 Bibb, 310; Stafford v. Green, 1 Johns. 505; Ward v. Clark, 2 Johns. 10; Arbell v. Witt, 2 Nott & McCord, 364; Young v. Miller, 3 Hill, 21; State v. Burroughs, 2 Halst. 426.
    YII. The administrator was not made a party to this case.

      Thurman, and Fishbach & Swing, for defendant in error.

      Thurman, for defendant in error, argued :
    I. The first count is good — the law being, that any malicious publication of printed or written matter, tending to bring an individual into disgrace or ridicule, is, if untrue, libelous, and per se actionable. Watson v. Trask, 6 Ohio, 531; Tappan v. Wilson, 7 Ohio (pt. 1), 190, 193; Newbraugh v. Curry, Wright, 97; White v. *Nichols, 3 How. U. S. 266; Woodburn v. Miller, Cheves, 194. [234
    II. Being sufficient, it would sustain the verdict and judgment, even were the second count bad — the law in Ohio being, by force •of our statutes, that a single good count will support a general verdict in a civil case. Johnson v. Mullin, 12 Ohio, 10; Swearinger v. Bank of Mount Pleasant, 13 Ohio, 208.
    III. The second count is good. That the defamatory words laid in it are actionable, per se, was expressly decided in Young v. Miller, 3 Hill, 21, and Todd v. Rough, 10 S. & R. 18.
    That they are so upon principle is clear. There are all the elements which any court holds to be necessary to constitute actionable words in themselves, and more than the current of authority requires; for they import the commission of an indictable offense, involving moral turpitude, calculated to disgrace the offender, and punishable corporally. Swan’s Stat. 286, sec. 16; Baker v. Pierce, 6 Mod. 23; Button v. Heyward, 8 Mod. 24; Mayne v. Digle, Freeman, 46; 1 Starkie on Slander (ed. of 1852), 40, margin; Ib. 43, margin; Brooker v. Coffin, 5 Johns. 188; Andreas et ux. v. Koppenhæfer, 3 S. & R. 255; Ludlow v. McCuer, 1 Harrison (N. J.), 12 Gage v. Shelton, 3 Rich. (S. C.) 242; Perdue v. Burnett, Minor (Ala.), 138; Miller v. Parish, 8 Pick. 383; Woodbury v. Thompson, 2 N. H. 194; Frisbie v. Fowler, 2 Conn. 707; 1 Starkie on Slander, 28, 29, margin; 2 Sid. 21; Walton v. Singleton, 7 S. & R. 449; Morris v. Barkley, 1 Littell, 64; Phillips v. Wiley, 2 Ib. 153; Gibbs v. Dewey, 5 Cow. 351; Gearly v. Ashley, 4 Har. & J. 314; Bush v. Prosser, 13 Barb. 221.
    The count is sufficiently certain — certainty to a common intent in general being all that is required.
    IT. The replication of July 17, 1848, to the first plea to the first count is sufficient.
    *An express admission of the church membership of the-parties, and that the charges were preferred in the way of church discipline, is not necessary in the replication. Color is given to these allegations of the plea, which is enough. Traversable matters-not denied are confessed, and a formal confession is unnecessary. Stephen on Pleading, 199, 200, 202, 203, 217.
    The replication does answer the whole of the plea.
    It is not necessary that the replication should deny the existence-of probable cause. For:
    1. Probable cause is no defense, in cases like this, if the defendant, in making the publication, was actuated by express malice.
    There is but one class of cases in which probable cause protects-a malicious libeler, to wit, cases in which the libelous charge is-made in the ordinary and proper course of judicial proceedings.
    Thorn v. Blanchard, 5 Johns. 508, seemed to establish another class, to wit, memorials for removal from office, but the clear weight of authority is now against that decision.
    But in cases like the present — although there is some loose language in the books — the well-settled rule is this :
    In the absence of express malice, the existence of probable causer coupled with an occasion which makes the libel a privileged communication, will rebut the ordinary legal presumption of malice, and defeat the action. But if the plaintiff can show that the publication was expressly malicious, the action will lie, notwithstanding the existence of probable cause. White v. Nichols, 3 How. U. S. 266; Gray v. Pentland, 2 S. & R. 23; Vanderzee v. McGregor, 12 Wend. 545; O’Donaghue v. McGovern, 23 Wend. 30; The King v. Baillie, 21 State Tr. 67; Hodgson v. Scarlett, 1 B. & Ald. 247; 1 Starkie on Slander, chap. 13; 2 Chitty’s Pl. (8 Am. ed.) 630a, note k.

    *In the King v. Hart, 1 Wm. Bla. 385; and Fairman v. Ives, [236 7 Eng. Com. Law, 220, cited by Mr. Jolliffe, there was no proof of ■express malice, nor any question whether probable cause is or is not a substantive ground of defense.
    Again, where want of probable cause is essential to the right of action, the party aggrieved can not bring an ordinary action for libel, but must bring a special action on the case, and aver not merely the publication, but also the occasion and manner of it, and both malice and want of probable cause. 1 Starkie on Slander, chap. 12, 276.
    But in case of privileged communications, like the present, it has never been doubted that the ordinary action and declaration for libel are sufficient; and no precedent can be found of such a declaration with an averment and want of probable cause. 2 Starkie on Slander, appendix; 2 Chitty’s Pl. 630a, 641&, 641f. White v. Nichols, supra.

    In averring malice, it is never necessary to employ the term, •“express malice.” “Malice” or “maliciously” includes all kinds of malice.
    If the authorities are conflicting — the question being of common ■law — the court will incline to prefer the decision of the Supreme Court of the United States in White v. Nichols; because such a rule of preference tends to produce uniformity of decision; Carlisle v. Wishart, 11 Ohio, 191; Treon v. Brown, 14 Ohio, 488.
    2. Were probable cause a substantive ground of defense, it should have been averred in the plea. But there is no such averment. It matters not, therefore, whether the replication is good or not — a bad replication being good enough for a bad plea. For the publication was prima facie libelous, and the burden of averment •and proof of the contrary lay upon the defendant. Gray v. Pentland, supra; O’Donaghue v. McGovern, supra.

    3. The plea amounts to the general issue, and. is therefore bad. 287] *And this defect is reached by the special demurrer to the replication. O’Donaghue v. McGovern, supra.

    Y. The absence of a joinder in demurrer is no ground for reversing a judgment. A joinder is a mere acceptance of the issue of law tendered by the demurrer. But that issue must be accepted — hence-the joinder is a mere idle formality. Stephen on Pleading, 55, 56.
    Even in error, although there is an option to plead or join, if no-answer to the assignment of errors be filed, the case will be considered as if the common joinder were filed. Wells v. Martin, 1 Ohio St. 388.
    Besides, the objection is removed by statute, and the joinder might be filed even now. 2 Curwen, 211, 1059, 1060; Taylor v. Browder, 1 Ohio St. 232; Huntington v. Ziegler, 2 Ohio St. 11.
    YL. The replications de injuria to the second and third pleas,, were proper. Stephen on Pleading, 163, 164, 264.
    YII. The verdict is technically, as well as substantially correct..
    YIII. The 9th assignment of error objects to the judgment of November 17,1848. But that judgment was reversed upon the first writ of error. The judgment under consideration was rendered November 7, 1851.
    IX. The motions for a new trial, and in arrest of judgment were-overruled before the judgment in question was rendered. There-can not be a judgment for a defendant, non obstante veredicto; hence, the motion for that judgment was frivolous. Buckingham v. McCracken, 2 Ohio St. 287.
    A judgment will not be reversed because a motion previously made was not decided, if there was no ground for the motion. Young v. The State, 6 Ohio, 437, 439.
    X. The authorities fully warrant the judgment nunc pro tunc. 2: 238] Tidd’s Pr. 932; 1 Bac. Abr. (Bouvier’s ed.) 15; *Tooker v. Duke of Beaufort, 1 Bur. 146, 148; Trelawney v. Bishop of Winchester, 1 Bur. 219, 226; Toulmin v. Anderson, 1 Taunt. 384; Mackay v. Rhinelander, 1 Johns. Cas. 408, 410; Collins v. Prentice, 15 Conn. 423, 427; Campbell v. Mesier, 4 Johns. Ch. 334, 342; Lapelle v. Barnett, 1 Blackf. 150, 155; Dartmouth College v. Woodward, 4 Wheat. 518, 714.
    Farnel v. Tipper, Latch, 92, is not good law. Besides, it does not appear that the delay in that case was occasioned by a motion for a new trial, or in arrest of judgment, or a cui ad vult.

      In Crisp v. The Mayor, etc., of Berwick, Levinz, 252, 1 Mod. 36, no decision was made.
    XI. As to the p.oint, that there was a time when the common pleas had no jurisdiction of the case, the same thing might he said of every case in which further proceedings are had in that court after a reversal.
    XII. Mr. Jolliffe asks, what was the use of reversing the first judgment, if another judgment could be rendered nunc pro tunc, to take its place ?
    The answer is plain. The first judgment was reversed, because the motions for a new trial, etc., were not decided. Thereupon they were overruled, and being out of the way, a proper judgment could be rendered.
    XIII. Mr. Jolliffe insists, that a judgment nunc pro tunc can not be entered in an action for defamation, because such an action abates by the death of the defendant.
    A strange point’. The very reason for a judgment nunc pro tunc, is, that the action abates by death, and therefore, such a judgment is necessary to do justice. At common law, all personal actions abated by death, and it was for this reason that judgments nunc pro tunc were invented. Were there no abatement, there would be no necessity *for such a judgment, for the personal representa- [239 tive of the decedent might be made a party, and judgment be given against him.
    XIY. If a judgment nunc pro tunc can be rendered three years after verdict, it may be twenty years after; “ and to the prejudice of intervening rights,” says Mr. Jolliffe. I reply:
    1. That a power mighr be abused, does not prove its non-existence.
    2. The court may impose conditions to protect intervening rights that ought to be protected. Mara v. Quin, Executrix, 6 Mod. 1.
    And this is an answer to all Mr. Jolliffe’s argument, founded on our statutes.
    XY. But, in truth, the statutes create no difficulty.
    1. As to liens. As between the surviving party and the heirs of the decedent, a judgment nunc pro tunc may well be a lien as of the date for which it is rendered; but as to bona fide intervening rights of third persons, the lien may be held to date from the time of the actual rendition of the judgment, upon the principle of the O. L. Ins. and Tr. Co. v. The Urbana Ins. Co., 13 Ohio, 220.
    The provision that between executions sued out during the same judgment term, or within ten days thereafter, there shall be no preference, can give no trouble; for if the judgment nunc pro tunc be actually rendered more than ten days after the term for a judgment of which it is to stand, there can have been no execution thus issued upon it. .
    So, if more than a year has elapsed between the term for which the judgment is to stand and that at which it is actually rendered, it will not prejudice a bona fide judgment rendered within the year. This is, in effect, settled by McCormick v. Alexander, 2 Ohio, 65, and Patten v. Sheriff of Pickaway, Ib. 395.
    *2. Nor does the limitation act in respect to writs of error, create any difficulty; for the time begins to run from the date of the actual rendition of the judgment. Under the old system a decree of the court in bank was generally certified to the county and entered as a decree of the court in the county of the term of the reservation of the cause. Chase v. Washburn, 2 Ohio St. 99, 100; Wilcox Forms (2 ed.), 5, and cases there cited. But it was uniformly held that the five years within which to file a bill of review began to run from the time of the actual rendition of the decree in the court in bank, and not from the reservation term in the county; so expressly ruled, after full argument, in Miner v. Wallace, ultimately decided by this court. 5 Ohio St.
    3. As to dormancy. The five years begin to run from the day of the actual rendition of judgment.
    4. As to appeals. Neither in 1848 nor in 1851 could this cause have been appealed.
    5. As to interest. It is.perfectly right that a judgment nunc pro tunc should bear interest from the term of which it is to stand as a j udgment.
    XVI. Judgments nunc pro tunc rest upon a most solid foundation of justice; for it would be manifestly unjust that a party who had, by the verdict of a jury, established a right to recover, should be deprived of it by delay in entering judgment, occasioned not by liis fault, but by the course of his adversary, or the act of the court.
    XVII. The judgment of 1848, rendered in the lifetime of Dial, was improperly reversed. Instead of reversing it, the court should have reversed the order deciding the motions for a new trial, etc., to be abated, and have awarded a procedendo or issued a mandamus to compel the decision of those motions.. The motions have now been heard and overruled, and the plaintiff in error is in no worse condition *by the judgment of 1851, than he would be in had [241 the judgment of 1848 remained in force, as it should have done. Upon the whole record, then, he is not prejudiced by the judgment of 1851, and, therefore, it ought not to be reversed. Harman v. Kelly et al., 14 Ohio, 502; Gano & Thomas v. Samuel, Ib. 592.
    And the correctness of the judgment of reversal may be inquired into in this case. Aubrey v. Almey, 4 Ohio St. 524.
   Bowen, J.

Three questions are presented in the record for decision, which, for convenience, may be stated as follows :

1. Does the second count of the declaration contain actionable words ?

- 2. Does the special plea of the defendant contain matter sufficient to bar a recovery by the plaintiff?

3. "Was it competent for the court of common pleas, at its November term, 1851, to enter a judgment nunc pro tune upon a verdict found in the same court at its November term, 1848?

To determine the question whether the words are actionable in themselves, when not spoken of the plaintiff in his office, profession, or calling, we must ascertain whether the charge, if true, will subject the party charged to an indictment for crime, involving moral turpitude, or subject him to an infamous punishment, or will tend to render him loathsome to society in which he moves. If any such result would be likely to attach to the plaintiff, by means of the speaking of such defamatory words, then they will be, in themselves, actionable. Brooks v. Coffin, 5 Johns. 188; Martin v. Stillwell, 13 Ib. 275. By this rule the infamy of the offense or of the punishment constitutes the test whether the words are actionable, when an indictable *offense is charged upon the plaintiff. [242 And so it must be understood when he has imputed to him acts not subject to indictment, but which, nevertheless, involve great moral turpitude, and, if believed, would exclude him from the favor and countenance of all moral persons; as, for example, the crime of sodomy, or a charge that the plaintiff was laboring under some loathsome disease. The nature and turpitude of the act charged are the criterions by which to decide whether the injury is such as to be the foundation of an action. A charge of assault and battery — of fighting at fisticuffs — of refusing aid to an officer to arrest criminals — resisting an officer in the execution of process — keeping a ferry or tavern without license, and others of the like class, ' •though subject to indictment and punishment, and of themselves reprehensible as violations of positive law, do not imply that degree of moral depravity which will sustain an action of slander for words spoken imputing such offense.

Section 101 of the act punishing such offenses (Statutes, 286), enacts: “That if any person shall knowingly, willfully, and maliciously cut, fell, deface, alter, or remove anydandmark, corner, or bearing-tree, properly established, the person so offending shall, on conviction thereof, be fined in any sum not exceeding five hundred dollars, or imprisoned in the cell or dungeon of the jail of the county, and be fed on bread and water only, not exceeding thirty days, or both, at the discretion of the court.”

In a conviction under this act, not only would the plaintiff be subject to pecuniary loss, but to loss of character, because the removal of boundaries has always been held in execration. The curse of God was denounced against it by the Mosaic law. Deut. ix: 14. Dr. Scott says that the removal of landmarks was a crime among the Israelites similar to forging, altering, destroying, or canceling 243] *the title deeds of an estate at this day. The Romans considered it an infamous offense, and all civilized nations have been of the same opinion. Todd v. Rough, 10 Serg. & Rawle, 22; Young v. Miller, 3 Hill, 21.

We are satisfied that both counts of the declaration contain allegations sufficient to maintain the action, and that the motion in arrest was properly overruled.

2. The special plea to the first count of the declaration attempts to repel any malicious and. slanderous intentions in making the publication. Both parties were members of a religious church, whose discipline authorizes and makes it the duty of those who fall out or differ in their secular affairs to come before the body of which they constitute a part, and have an investigation into and settlement of disputes between them. For this purpose either may prefer his petition to the church, specifying the cause of complaint he has against his brother member. By this means the subject is brought officially to the notice of those charged with its adjudication. Having this clearly authorized right thus to appear in the character of a petitioner, and to ask for a hearing and decision according to the rules which all of the members undertake to observe, he may pursue it, whenever necessary, against another member, subject to this restriction: he must not institute the proceeding maliciously. He can not shield himself, under the cover of church privilege, from an intentional and willful attack upon another’s-character, under pretense of'inviting a religious inquiry into the-charges he makes. The declaration avers that the defendant charged 'the plaintiff with “ knowingly and maliciously removing the cornerstone.” This the defendant, in his plea, says he did without malice,, for the purpose of bringing the plaintiff to trial on the charge before-■a committee of the church. The plaintiff replies, that the defendant willfully and maliciously ^exhibited the charge to the church, [244 for the purpose of harassing, injuring, and defaming him. It thus-becomes a question of fact for the jury to decide, whether the defendant, in preferring the charge, was governed by a sense of Christian duty and his obligations to the rules of the church, or whether those pure and commendable principles were disregarded by him, and an evil and malignant desire to degrade and injure his neighbor-permitted to control his action. This issue the parties themselves-made, and when settled by verdict must be conclusive, unless the court should set the finding aside. The jury found that the charge-was maliciously made; that the defendant exceeded the privilege of a church member, and should be held for the injury committed-while thus acting contrary to the object and spirit of the discipline. It was not erroneous to allow the jury to pass upon the question thus made up by the parties.

It is said,.however, that the replication does not deny probable-cause on the part of the defendant to make the charge. This was not necessary. The replication was good without it.. If there was-any necessity to aver or to negative the existence of probable cause, on the part of the defendant, that necessity rested with the defendant. It was incumbent on him to place a full and perfect defense upon the record. "Whatever defect, therefore, attaches to the pleadings by the omission of those words, is chargeable to the plea; for-if the principle before alluded to be correct, that such publication as that made by the defendant is only privileged when made in strict compliance with the rules of the church, and iñ good faith,, without malice, it follows that the plaintiff was only bound to answer a general denial of malice, by a roaffirmance of it. Hence,, if the demurrer to the replication had been sustained, as it is claimed ought to have been done, the judgment of the *court would [245 have reached the plea, and set it aside for insufficiency. Wo think that the demurrer was correctly overruled..

3. It is urged with much ability by the counsel for plaintiff in •error, that the action of the court below, at the November term, 1851, in giving a judgment nunc pro-tunc upon the verdict of November, 1848, is not warranted by the laws of this state. Dial was in life when the verdict was returned and the judgment entered upon it: and by filing motions for a new trial and in arrest, within the rules of the court, he superseded the judgment, though not the verdict, until the court should make a disposition of them. No decision, however, of the motions was had at that term, and the general ■order of continuance carried the verdict, the judgment, and the motion to the next term for further action thereon. Before the November term of the court had expired, but after the motions were ■filed, the defendant died. This occurrence divested the court of .any further power over the case, except to hear and determine the motions, and, if overruled, to enter judgment upon the verdict. But if a new trial had been allowed, or the judgment arrested, the •cause could not have proceeded any further, as the death of the party abated it. Neither of the orders of reversal of the Supreme Court reached or attempted to go behind the verdict, but both allowed that to remain undisturbed. Later irregularities only, were .affected by the reversals. And this brings us to the inquiry whether the court, after overruling the motions for a new trial and in arrest, which left the verdict unimpaired, could predicate a judgment upon it as of the term in which it was found; and thereby save the cause from abating, and the plainttiff from losing his recov■ery of-damages.

The power of the courts to enter nunc pro tunc orders *and judgments is discretionary. It may be exercised, in a proper case, •to prevent injustice. Whenever there is a foundation presented by the facts of the case, for the exercise of such power, there should be no hesitation in making the entry. It has been frequently done in this state, and is a practice well known and often followed in the -common-law courts of England and of this country.

Personal actions, by the common law, as well as by our statute, abate by the death of the party. If, before verdict,'such an event happens to one of the suitors, the cause is brought to an end. But if after verdict, and before judgment, he dies, the rule is different. The right to recover being established, and the amount of damages ■determined by the verdict, it shall continue in force, and a judgment may be given upon it as of the term when it was rendered.

In Collins v. Prentice, 15 Conn. 423, it was beld, where a defendant in an action of trespass died after a trial in the superior court, and a verdict for the plaintiff, and during the pendency of a motion for a new trial by the defendant, that after the rule for such motion was discharged, a judgment might be entered for the plaintiff as of the term in which the verdict was had.

In Ryghtmyre v. Durham et al., 12 Wend. 245, the same order was made. And so in Mackay v. Rhinelander, 1 Johns. Cases, 408.

These and other cases to the same point, proceed upon the supposition that judgment might and undoubtedly would have been entered for the plaintiff in time, had it not been for the delay occasioned by the defendant in filing his motion for a new trial, and that when the motion does not prevail, it ought not to work any prejudice to the rights of the plaintiff.

The court of common pleas being satisfied that the *mo- [247' tions of the defendant should be overruled, and having before it the record showing that the motions had operated to delay the verdict of the jury, as well as the judgment of the court entered on its journal during the lifetime of the defendant, conceived it to be justly due to the plaintiff to give him the same benefit from the' verdict as if the motions of defendant had not been interposed. In this we think there was no error; and do, therefore, affirm the judgment of the district court.

, Bartley, C. J., and Swan, Brinkerhoef, and Scott, JJ., concurred.


author: Scott, J.

text:
    Daniel Beckel v. Algernon S. Petticrew and others.
    In the certificate of the acknowledgment of a mortgage, the officer taking it described himself as 11 a justice of the peace within and for said county,” no particular county being named in the certificate or its caption; but the grantors and grantee were both described in the body of the mortgage as of a particular county, and no other county was named therein. Held, that the mortgage does not thereby become invalid.
    The lien authorized by the “ act to create a lien in favor of mechanics and' others in certain cases,” will extend to all the materials, in good faith furnished for the purpose of erecting or repairing a house in pursuance of an agreement with the owner, notwithstanding a portion of such materials. may subsequently be otherwise appropriated without the consent of the party furnishing them. ,

    Reserved from Montgomeiy county.
    The facts stated in the opinion of the court are sufficient for a proper understanding of the points decided.

      Lowe & Jordon, for plaintiff:
    1. The mortgage given by Petticrew and Bennet to *Brooks is defective, because in the certificate of acknowledgment the officer •does not give himself a locality; .and the mortgage can not be reformed in equity as to third persons. Vance v. Schuyler, 1 Gil (Ill.) 160; Johnson v. Harries, 2 Ohio, 55; Brown v. Farian, 3 Ib. 140; Cornell v. Cornell, 6 Ib. 353; DeSegond et al. v. Culver et al., 10 Ib. 188; Smith’s Lessee v. Hunt, 13 Ib. 260; White v. Denman, 1 Ohio St. 110; 16 Ohio, 59; Elliott v. Pensol, 1 McLean, 15; Schultz v. Moore, Ib. 527.
    2. The lien of Gebhart, Bro. & Co. is good for all the materials furnished for the purpose of building houses on the premises, upon a contract to that effect.

      Vallandigham & McMahon, for defendant Brooks:
    We claim that the mortgage is not defective in any particular, .and that it is a legal, and not a mere oquitable mortgage. Crumbaugh v. Kugler, 2 Ohio St. 379; The Fund Commissioners of Muskingum County v. Glass, 17 Ohio, 542; Broom’s Legal Maxims, 292; King v. Wright, 1 Ad. & El. 434; King v. Inhab. of Countesthorpe, 2 B. & Ad. 487; Fuhrman v. Louden, 13 Serg. & Rawle, 386; Whittlesley v. Starr, 8 Conn. 134; Merritt v. Stanton, 2 Cow. 552; Tighlman, in Loughborough v. Parker, 12 Serg. & Rawle, 48; Vanness v. Bank of U. S., 13 Pet. 21; Hall v. Gittings, 2 Har. & Johns. 390; Shaller v. Brand, 6 Binn. 435; Smith v. Packhurst, 3 Atk. 135; Brooks v. Chaplin, 3 Vt. 281; Chandler v. Spear, 22 Ib. 407; Rackleff v. Norton, 19 Maine, 274; Bradford v. Dawson, 2 Ala. 203; Lougborough v. Parker, 12 Serg. & Rawle, 48; Truluck v. Peeples, 1 Kelly, (Ga.), 3; Livingston v. Ketelle, 1 Gilman, 119; King v. Inhab. of St. Mary’s, 1 Barn. & Ald. 330; Coles v. Hulme, 8 Barn. & Cress. 568; Jones. v. Kimball, 1 Mann. 308; Fisher v. Butcher, 19 Ohio, 406.

      *Wood & Nead, for defendant Brown; J. Lovell, for defend- [249 ant Harris; Conover & Craighead, for defendant Huffman.
   Scott, J.

The questions arising in this case relate to the validity, extent, and priority of liens alleged to be held by creditors upon certain real estate of the two defendants, A. S. Petticrew and Ohas. D. Bennet. The plaintiff has liens upon the same property, which he seeks to enforce, and the other creditors are made defendants.

The questions presented in argument relate only to two of those liens.

James Brooks, oue of the defendants, sets up in his answer a mortgage lien, which is claimed by the plaintiff to be void as against other lienholders, by reason of a defect in the certificate of acknowledgment. The certificate reads thus : “ The State of , ■County, ss. Before me, a justice of the peace within and for said ■county, personally appeared the above-named Algernon S. Petticrew and Charles D. Bennet, partners of the firm of Bennet & Petticrew, and acknowledged the signing and sealing of the above deed,” etc. (continuing in the usual form), and is signed “ Thos. B. Tilton, J. P.”

A printed form was used in drawing the mortgage and certificate of acknowledgment, and the blank loft in the caption of the certificate was not filled up by the insertion of the state and county within and for which the justice acted.

Does this omission invalidate the instrument ?

In the body of the mortgage, the grantors and the grantee are each described as “of the county of Montgomery and State of Ohio,” and the mortgaged premises are said to be situate in the county of Montgomery, in the State of Ohio.” No other county or state is mentioned in *any part of the instrument. If we [250 wholly reject the caption of the certificate (and being without meaning, by reason of the. blank, it can only be rejected), yet we'think that in describing the officer taking the acknowledgment as “a justice of the peace within and for said county,” it may be fairly understood as referring to the county named in the body of the mortgage. The certificate is not wholly independent of the deed, the acknowledgment of which it certifies. It refers to it in express terms, and could acquire a meaning and operation only by such reference. The first time the grantors are named in the certificate, they are called “the above-named Algernon S. Petticrew,” etc., clearly referring to the mortgage, where, only, we find the parties-named. The terms “said,” “aforesaid,” “above-named,” and the like, are -of kindred character, each referring to some antecedent; and if in this case we may look to the mortgage for the antecedent of one of those terms, why may we not do so in the case of another?' If authority were needed in support of this construction, the case of Fuhrman v. Louden, 13 Serg. & Rawle, is precisely in point. In. that case the blank before “county,” in the caption of the certificate, was not filled; and it was held that the words “for said county,” in the certificate, must be taken to refer to the county-mentioned in the deed as the residence of the grantors. We therefore think that the alleged defect does not invalidate this mortgage-

The other question made in argument arises on the claim of the-defendants, Gebhart, Bro. & Co., for lumber furnished by them toBennet & Petticrew, for the purpose of erecting buildings upon the premises against which the creditors are asserting their liens. These premises consist of two lots — Nos. 1,850 and 1,851 — in the city of Dayton. Gebhart, Bro. & Co. furnished lumber at sundry times, commencing March 17, 1853, and ending May 11th, of the same 251] *year, for the erection of buildings on each of said lots, in. pursuance of a contract or arrangement with the owners to that effect. Separate accounts wore not made of the lumber furnished for the buildings on the different lots, but the items were all entered in one general account, in the order of the dates of delivery, and amount in the aggregate to $527.07. On this entire account a payment of $200 was made May 23, 1853, leaving a balance of $327.07; for which sum Gebhart, Bro. & Co., on the 6th of September, 1853, filed their account in the proper office, pursuant to the provisions-of the “ act to create a lien in favor of mechanics and others in certain cases.” Swan’s Stat. 551. They now seek to assert their lien under this act. There is testimony in the case tending to show that portions of this lumber, amounting in the bill to $84.91, were not in fact used, in the buildings erected on the lots against which the-liens are sought to be enforced; and it is claimed by some of the parties that, to this extent, the lien must therefore fail. We do not so understand the statute. The first section of the act referred to provides “that any person who shall furnish materials for erecting or repairing any house, or other building, by virtue of an agreement with the owner thereof, shall have a lien,” etc. We think a fair construction of this section must extend the lien to all the material in good faith furnished for the purpose of erecting or repairing a house in pursuance of an agreement with the owner, notwithstanding a part of the material may subsequently be otherwise appropriated without the consent of the party furnishing it.

The $200 payment, which was made generally on the entire account, must be considered as paid in discharge of the earlier items. 11 E. C. L. 36.

The lien of the remaining items will attach to the ^several [252 buildings and lots, for the use of which they were respectively furnished.

As the cáse is not in a condition for final decree, and a further reference to a master will probably be necessary, it will be remanded to the district court for further proceedings and final decree, in accordance with the principles above stated.

Bartley, C. J., and Swan, Brinkerhoee, and Bowen, JJ., concurred.


text:
    The Union Bank of Rochester v. The Union Bank of Sandusky.
    In proceedings in aid of execution, under the 464th section of the code, a debtor of the execution debtor, against whom an order of the judge is issued, can not, after the service of the order, discharge himself from the proceeding.by payment to the execution debtor of his indebtedness — the service of the order having the effect of lis pendens.

    An order requiring A, president of the Union Bank, and B, cashier, to testify as to any indebtedness of the bank to C, without otherwise naming the bank, or indicating otherwise the object of the order, does not make the bank a party to the proceeding.
    A judge can not, under the 461th section of the code, enforce the pajrment of a debt, in the absence of all fraud, by imprisonment as for a contempt, but may direct the application ©f the proceeds of the debt, when collected by the receiver, or otherwise.
    ^Petition in error to reverse the judgment of the court of [255 •commom pleas of Erie county.
    The plaintiff in error recovered a judgment in the Cuyahoga common pleas, against the Sandusky, Mansfield and Newark Railroad Company and others. The principal office of this company being at Sandusky city, and the railroad company being the principal •debtor, an execution was issued on the 8th day of March, 1855, .and sent to the sheriff of Erie, county. Finding no property, whereon to levy, the plaintiff, on the 7th of April following, instituted proceedings in aid of execution before the probate judge of that county, for the purpose of reaching money in the hands of the defendant, the Union Bank of Sandusky, belonging to the railroad company. For this purpose the following affidavit was made and filed with the probate judge :

      “ Homer Goodwin, of lawful age, being sworn by mo, says that he is the lawful attorney of the Union Bank of Rochester, which bank is a lawful corporation, existing as such by the laws of the State of New York, and as such corporation the said bank recovered a judgment in the court of common pleas of Cuyahoga county, and State of Ohio, at a term of said court commencing on the 15th day of February, a. d. 1855, for the sum of nineteen hundred and seventy-six one-hundredths dollars, against the Sandusky City Bank, The Sandusky, Mansfield and Newark Railroad Company, John R. Robinson, superintendent, and others. And on the 8th, day of March, a. d. 1855, an execution was duly issued out of said court on said judgment, to the sheriff of Erie county, Ohio, which was the sheriff of the county where said Sandusky City-Rank is located, and where the principal office of business of said, railroad company is also located, and where the said Robinson, superintendent, for the most part, resides; said execution corn-256] manding said ^sheriff, that of the goods and chattels of the-said defendants found in his bailiwick, he cause to be made the said judgment, together with damages and costs; and for want of goods and chattels, then that he cause said amount to be made of the lands and tenements of the said Sandusky City Bank, The San-dusky, Mansfield and Newark Railroad Company, J. R. Robinson, superintendent, and Ansel Roberts, impleaded, etc. And affiant further says, that the said judgment debtors, the Sandusky City Bank, said railroad company, J. R. Robinson, superintendent, have not personal or real property subject to levy on execution, sufficient to-satisfy the aforesaid judgment; but that the said Sandusky, Mansfield and Newark Railroad Company (which is the principal debtor in said jadgment, and which ought to pay it in preference to the-others of said defendants) has money in the Union Bank of San-dusky, a body corporate, situate in said Sandusky, which money ought justly to be applied in the payment of said judgment; and that said Union Bank, a corporation aforesaid, is indebted to said “railroad company, in about the-sum of three thousand dollars, as affiant is informed and believes, by way of a deposit of money with said bank last mentioned, which stands to the credit of said, railroad company on the books of said bank ; and further deponent saith not. Homer Goodwin. Sworn to, etc., on the 7th of April, 1855.”
    The probate judge entered upon his journal the following order:
    “On motion to the court by H. Goodwin, Esq., attorney for-plaintiff, and it appearing to the satisfaction of the court by affidavit of'H. Goodwin, that the Union Bank of Rochester has recovered a judgment in the court of common pleas of Cuyahoga county, Ohio, at the February term thereof, against the Sandusky, 257] Mansfield and Newark ^Railroad Company and others, for the sum of nineteen hundred and eighteen dollars and fifty cents, and eight dollars and twenty-six cents costs; and that said railroad company has no personal or real property subject to levy on. •execution, and that the Union Bank of Sandusky, a corporation, is indebted to the said railroad eonpany in about the sum of three thousand dollars, it is ordered that an order issue, requiring E. T. Barney, the president, and G. W. Weston, the cashier of said Union Bank of Sandusky, to appear and answer on oath concerning the •same, on Monday, the 9th day of April, A. D. 1855, at nine o’clock in the morning on said day; and it is further ordered, that the plaintiff notify the said railroad company of the matters herein, .so as to give them or one of their officers sufficient time to be present at such examination.
    “Abraham H. Stryker, Probate Judge.”

    The probate judge issued to the sheriff a notice, under the four '■hundred and sixty-fourth section of the code, as follows :
    “ The State oe Ohio, Erie County, ss.
    -“ To the"Sheriff of the County of Erie, greeting:

    “ You are hereby commanded to notify E. T. Barney, the president, and G. M. Weston, the cashier of the Union Bank of San-dusky, to be and appear before the judge of the probate court, at the court-house in said county, on the 9th day of April, A. d. 1855, at nine’o’clock, forenoon, then and there to answer on oath concerning the indebtedness of said hank to the Sandusky, Mansfield and Newark Railroad Company ; and this they shall in no wise omit; and have you then and there this writ. •
    “ Given under my hand, and the seal of said court, at the courthouse in the city of Sandusky, said county this 7th day of April, A. D. 1855.
    [seal.] “Abraham H. Stryker,

      “Judge of the Probate Court.”

    Upon this notice the sheriff made the following return: “I served this writ by delivering copies thereof to the *within- [258 named Barney and Weston, on the 9th day of April, 1855.
    Barney, the president, and Weston, the cashier of the bank, appeared on the 9th, in pursuance of the notice, and answered (and their answers were reduced to writing), in substance, that at the time the notice was served upon them, the assistant treasurer of the company had on deposit in the bank the sum of $3,825 ; that after the -service of the notice they had paid on the check of this assistant treasurer the sum of $3,800.; leaving but $25 to his credit; and the assistant treasurer stated that he drew the money after notice was served upon Stoekwell, the president of the company, who directed him to draw the money. Upon this state of facts, the probate judge ordered the bank to pay to the judgment creditor enough of the money on deposit when the notice was served, to satisfy the judgment. This order was reversed in the common pleas, and the present petition is filed to reverse the judgment of that court.

      Homer Goodwin, John Crowell, and R. P. Banney, for plaintiff in error.

      E. B. Sadler, W. F. Stone, and H. H. Hunter, for defendant in error.
   J. R. Swan, J.

1. The original proceeding was under sec. 464 etc., of the code, “in aid of execution.” The object of the Union Bank of Rochester was to obtain payment of its judgment against, the Sandusky, Mansfield and Newark Railroad Company,'by subjecting thereto a debt which the Union Bank of Sandusky owed to-the railroad company.

We entertain no doubt but that if the Union Bank of Sandusky 259] had been duly served with an order, all *the incidents of Us pendens must necessarily be enforced against it from the time of such service, and the bank would have been amenable to the plaintiff in the execution for any-indebtedness it may have been under to the defendant in the execution. Any other construction of the code would make the service of the order a mere invitation to place the fund beyond the reach of the creditor, and render the proceeding, in practice, altogether nugatory. Porter v. Williams et al., 5 How. Pr. 441; 2 Whitt. Pr. 142 (2 ed.). Section 468 of the code-gives the judge power to “ forbid a transfer or other disposition of the property of the judgment debtor not exempt by law, and any interference therewith.” This provision was proper, because applicable to some cases in which the rules of Us pendens would not protect the rights of the judgment creditor. It does not therefore indicate that the rules of Us pendens are inapplicable to a judge’s order,, under section 464 of the code, after service of the order.

2. But did the notice issued against and served on “F. T. Barney,, the president, and G-. M. Weston, the cashier of the Union Bank of Sandusky,” requiring those two officers to testify as to the indebtedness of the bank to the Sandusky and Mansfield Railroad Company, make the bank a party to the proceedings of the Union Bank of Rochester ? If a copy of the journal-entry of the had been recited in the notice, or if the notice had shown that the Union Bank of Rochester was proceeding to subject the indebtedness named to the payment of a judgment against the railroad company, the notice might have been sufficient. But the notice indicates simply that Barney and Weston were required as witnesses touching the indebtedness of the bank to the railroad company. The Bank .of Rochester is not alluded to. At whose instance, or for what purpose, or in what action or proceeding *the testi- [260 mony was required, is wholly omitted from the notice. The Bank of Sandusky is nowhere named, except in the description of the offices held by Barney and Weston. It does not indicate that it was an order, or based upon any order, in aid of execution. If there had been pending before the probate judge the settlement of the estate of a stockholder of the bank, in which was drawn in question a deposit made by him to the credit of the railroad company, this notice would have heen quite as proper, as in the present caso. We are of the opinion that the Sandusky bank,' as a corporation, was not made a party to these proceedings by the issuing of this notice against Barney and Weston, or by its service on them. Instead of this notice, the probate judge should have issued to the sheriff a copy of his journal entry, and had the same served. Code, sec. 474.

3. After the money had been paid over by the Union Bank of Sandusky to the railroad company, and after the testimony had been taken, and upon the final hearing before the probate judge, it appears by the record that the Union Bank of Sandusky appeared by its attorney to contest the final order. This appearance is claimed as a waiver of service of the order. If it be so, it can not by relation be treated as service of the order before the money was paid over to the railroad company; so that it works no benefit in that respect to the Union Bank of Rochester.

4. The probate judge ordered the Union Bank of Sandusky to pay a certain amount to the Rochester bank. This order brings before us the construction of sections 467, 468, and 473 of the code. These sections are as follows:

“ Sec. 467. The judge may order any property of the judgment debtor not exempt by law, in the hands either of himself or any other person or corporation, or due to the ^judgment debtor, [261 to be applied toward the satisfaction of the judgment; but the earnings of the debtor for his personal services, at any time within three months next preceding the order, can not be so applied, when it is made to appear by the debtor’s affidavit, or otherwise, that such earnings are necessary for the use of a family supported wholly or partly bjr his labor.
“ Sec. 468. The judge may also, by order, appoint the sheriff of the proper county, or other suitable person, a receiver of the property of the judgment debtor, in the same manner, and with the like authority, as if the appointment was made by the court. The judge may also, by order, forbid a transfer or other disposition of the property of the judgment debtor, not exempt by law, and any interference therewith.”
Seo. 473. If any person, party, or witness, disobey an order of the judge or referee, duly served, such person, party, or witness, may be punished by the judge as for a contempt.”

If section 467 authorizes the judge to order payment of a debt or the delivery of property, then section 473 authorizes him to enforce such order by imprisonment. Such summary mode of enforcing the payment of a debt by imprisonment would probably be a violation of the constitution. Art. 1, sec. 15. Such, however, is not the proper construction of section 467. There is a manifest difference between an order to pay a debt and an order settling the right of the judgment creditor to the application of the proceeds of a debt. The latter is all that was intended by section- 467 of the code. It authorizes ithe judge to order that either property or a debt due the judgment debtor, be applied to the satisfaction of the judgment; thus fixing the right of the judgment debtor, so that when possession of the property is obtained, or the debt collected, by the 262] * sheriff or receiver, under section 468, the proceeds may be duly applied to the discharge, of the judgment.

It is unnecessary for us to determine whether the order under section 467, such as we hold to be proper, could be enforced by imprisonment; perhaps it could be; and conceding that it could be, it is quite clear to us that the section does not authorize a peremptory order to pay a debt.

If, however, a peremptory order to pay a debt is made, it must be construed as a mere order for the application of the debt, when collected, to the discharge of the judgment; and its payment could not’be enforced by imprisonment.

The counsel on both sides have consumed much ink and paper in endeavoring to show the corrupt practices and dishonest motives of their adversaries’ clients. We could not avoid reading all this. 'Conceding, as a matter of courtesy, the force and truth of all that is said on both sides, we have been unable to perceive its application, to the construction of the code.

Judgment of the court of common pleas affirmed

Bartley, C. J., and Brinkerhoee, Bowen, and Soott, JJ., concurred.