author: Ranney, J.

text:
    James Myers et al. v. The Manhattan Bank.
    The territory of Michigan was organized by act of Congress, in 1805, and a territorial government erected therein, that continued until her admission into the Union, in 1837. In 1835, the people adopted a State constitution, and elected a legislative body under it, which passed an act to incorporate the Manhattan bank, in March, 1836. Held: that the creation of a corporation is an exercise of sovereign legislative power; that al the time said act of incorporation was passed, the territorial government was still in existence, and therefore the legislative assembly, under the constitution, could not exercise legislative power, and said act was void, as repugnant to the act of Congress organizing the territory.
    The village of Manhattan, where the bank was located, was never de facto under the jurisdiction of the State of Michigan.
    If the bank had been incorporated and authorized to do a banking business while it remained under the jurtsdiction of Michigan, such authority would not have continued after it came under the jurisdiction of this state.

    Associations “incorporated by a law of this state” are alone exempted from the operation of our restraining laws, and alone authorized to issue notes and bills to circulate as money. (Act of January 27, 1816, “to prohibit the issuing and circulating unauthorized bank paper,” and amendatory acts.)
    All securities given to an unauthorized bank are void.
    Error to the common pleas of Lucas county.
    In the common pleas, the Manhattan Bank sued Myers, and Stephens B. Comstock, in assumpsit, on a note executed by Myers' partner, in the name of the firm of Myers & Co., to Comstock, or order, December 31, 1837, payable at the Manhattan Bank, sixty days after date, for $1,000; which note was indorsed by Comstock, and at its date discounted by the bank. The defendants below pleaded three pleas :
    I. General issue.
    II. Specialplea. That said bank at the time when, etc., *was a company located and doing business in this state, and that said company, not being incorporated by a law of this state, did loan money in this state, and issue in this state notes and bills, payable to bearer, passing and circulating by delivery, and that said promissory note mentioned in the declaration, was made payable at said bank, etc.
    III. Special plea. That said bank, at the time when, etc., was an unauthorized bank, within the meaning of the statute of this state, in such case made and provided, and that the promises, and each of them in the declaration, were payable at said bank, etc.

      Replication to second plea. That said bank was incorporated by an act of the legislature of Michigan, approved March 25, 1836, by which the bank was authorized to loan money, issue notes and bills, payable to bearer, circulating by delivery, to discount and own the note declared on ; that Manhattan continued to be within The State of Michigan, and subject to the enactments of the legisture thereof up to June 28, 1836; that, by a change of boundary, Manhattan, on said day, became, and has since continued, a portion of Lucas county, Ohio; and that said act of incorporation, on said day, became, and since has been, in force in Ohio, and that the note declared on was acquired by the bank, in pursuance of the act of incorporation. Concludes with verification.

      Replication as to third plea. That the bank was an unauthorized bank, but was authorized, etc. Concludes to the country.
    Four rejoinders, by Myers and Comstock, as to replication to second plea, all concluding to the country:
    1. That the act incorporating said bank was not, at the time when, etc., and never has been, a part of the public statute law of the State of Michigan.
    2. That said bank was not, by said act of incorporation, authorized to transact business of banking in Manhattan.
    3. That Manhattan was not, at the time of the passage of *said act of incorporation, within the State of Michigan, and subject to the enactments of the legislature thereof.
    4. That the act of incorporation never was in force in Ohio.
    The cause was submitted to the court upon the issues thus joined, and the finding was as follows:
    “And the court, being fully advised in the premises, do find as to the first issue, that the defendants did assume and promise in manner and form as the said plaintiffs have complained against them; and as to the second issue joined between the parties—that the act in the plaintiff’s replication to the second plea mentioned, was a part of the public statute law of said State of Michigan, in manner and form as the plaintiffs have, in their replication, alleged; and as to the third issue joined between the parties—that the plaintiffs were, by said act of the legislature of the State of Michigan, in the plaintiff’s replication to the third plea set forth, authorized and empowered to loan money, issue notes and bills payable to bearer, passing and circulating by delivery; to make contracts, and to receive, hold, and own, such promissory notes as in said declaration set forth, in manner and form as in said replication alleged. ”
    Upon this finding the court assessed the damages of plaintiff.
    Motion for new trial overruled, and judgment rendered for plaintiff below. On the trial a bill of exceptions was taken by defendants below, setting out all of the evidence which is stated of the opinion of the court.*
    This writ of error is prosecuted to reverse said judgment.
    Young & Waite, for plaintiffs:
    The whole matter resolves itself into the single question, whether the act of incorporation passed by the legislature’of the State of Michigan, on March 25, 1836, will protect the defendants in error from the operation of the statutes of this Estate to prevent unauthorized banking? If not, the judgment of the court below is clearly erroneous.
    We contend: .First. That the legislature of the State of Michigan had no power to bind 'the people of this state by the act in question.

      Second. If it had, that the defendants in error have not shown themselves entitled to the enjoyment of the franchises thereby conferred.
    1. Had the legislature of Michigan power to bind the people of this state by the act in question ?
    Until the admission of Michigan into the Union as a state, her territorial government only was recognized by the constitution of the United States. A territorial and state government can not1 exist at one and the same time. Owings v. Speed, 4 Wheat. 714. It follows, then, that the territorial government continued, until superceedod by that of the state, and until the new state government was recognized by act of Congress.

    All state legislation, as such, is unauthorized until the admission to the Union is complete. This act of incoi’poration was an exercise of the power of state legislation, and therefore, so far as the people of other states are concerned, unconstitutional and void. Jones v. Scott, et al., 5 Howard, 343.
    Let us next inquire whether, by the admission of Michigan into the Union, after the act of incorporation, her case is different?
    For the purposes of this argument, we might admit that all her legislation for the territory, over which she was finally permitted to maintain jurisdiction, was ratified by the admission. The question, however, still remains, whether, by such admission, the particular act, now in controversy, was made effectual.
    And here it should be borne in mind, that the State of Michigan. never did, in fact, have actual jurisdiction over the territory within which this bank was to be located.
    It will never be claimed that the legislation of Michigan can have an extra territorial operation; and to bind the people by *her acts while in a state of revolution, she must at least put herself in the position as a government de facto. If the territorial government had been abolished, then that of Ohio was in force. If the territorial government still remained, then both tho claims of Ohio and Michigan were unconstitutional and inoperative. Either horn of the dilemma is fatal to tho bank.
    But even if it were different, and the State of Michigan had, during the contest, asserted, and, so far as Ohio was concerned, maintained her jurisdiction over this territory, it by no means follows that her legislation in this case was affirmed by tho act of admission.
    The language of this act of Congress is as follows: “Be it enacted, etc., that the constitution and state government which the people of Michigan have formed for themselves, be and the same is, accepted, ratified and confirmed: Provided, this admission is upon this condition, that said state shall consist of, and have jurisdiction over, all the territory included within the following boundaries, and none other:” .... (5 U. S. Stat. at Large, 309)—not including Manhattan.
    Here, certainly, there is no express ratification of her former legislation.
    II. The next inquiry is, whether the defendants in error have shown themselves entitled to the franchise granted by the act of incorporation.
    Sec. 4 of the act of incorporation provides, “ that when $20,000 of the capital stock of said bank shall be paid in, the commissioners or directors shall procure a convenient place in said village of Manhattan, and commence operations.” This amounts to a prohibition against tho commencement of business until this amount of capital is paid in. Miner v. The Mechanics’ Bank of Alexandria, 1 Pet. 63; Angell & Ames on Corp. 111.
    The act does not create the corporation eo instante. The stock must be subscribed before it can enter upon the enjoyment of its franchise. Walker v. Devereux, 4 Paige, 245.
    ^Evidence of user shows sufficiently an acceptance of the act of incorporation, but not the performance of a condition precedent. Angell & Ames on Corp. 574.
    No proof of a performance of these conditions was offered. The state might waive the performance, but it is no proof of such waiver that a corporation uses its franchises.
    Hill & Perigo,  for defendant:
    1. The village of Manhattan was within the jurisdiction of Michigan, de jure and de facto, at the time the act to incorporate the Manhattan Bank was passed, and until the change of boundary by the act of Congress on June 15, 1836.
    By the act of Congress of April 30, 1802 (2 U. S. Stat. at Large, 173), “to enable the people of the eastern division of the territory northwest of the river Ohio, to form a constitution and state government, and for the admission of the same into the Elnion,” the boundaries of the State of Ohio were fixed, and the boundary on the north was to be a line running due east from the southery extreme of Lake Michigan until it should intersect Lake Erie ; or, in other words, the “ Pulton Line,” the boundary claimed by Michigan, and south of all the territory afterward in dispute between Michigan and Ohio.
    This boundary appears to have been unsatisfactory to the convention that formed our first constitution, doubts having arisen as to the latitude of the southern extremity of Lake Michigan, and a proviso was therefore inserted in sec. 6, art. 7, of the constitution, changing the boundary between Ohio and Michigan and fixing upon the present boundary, or “Harris Line,” if Congress should assent thereto; but Congress did not assent. On the contrary, an act was passed, after Ohio was admitted into the ETnion, to organize the Territory of *Michigan (January 11, 1805, 2 U. S. Stat. at Large, 309), and by this act the southern boundary of Michigan is fixed upon the “ Fulton Line,” the same lino designated by the act of April 30,1802, as the northern boundary of Ohio, and thus the legal boundary remained, with the jurisdiction rightfully in Michigan, until June 15, 1836, when the present boundary was established by act of Congress.
    In this position we are sustained by three different adjudications. See Piatt v. Oliver, 2 McLean, 282-284, and same case, 3 How. 405-408, and Daniels v. Stevens’ Lessee, 19 Ohio, 222.

      The matter of jurisdiction de facto is equally in favor of Michigan.
    The act of incorporation of the Manhattan Bank was an exercise of jurisdiction to the fullest extent of legislative power, and, taken in connection with the act of February 12, 1835, by the Michigan legislative council, prescribing severe penalties against those who should act under Ohio authority on the disputed territory, is a perfect offset to everything done or attempted by legislative enactment in Ohio.
    Moreover’, it appears by the bill of exceptions, that “a large majority of the inhabitants of the village of Manhattan recognized the authority of Michigan until her admission into the Union,” and that officers acting under the authority of Michigan resided there. And see House Journal, 34 Ohio, 126, 127; 34 House Journal, 85, 61, 123, 144; 33 Ohio L. 92; Act of June, 1835, 34 House Journal, 56-122.
    The “Harris Line” was not established until the act of Congress of Juno 15, 1836. See 19 Ohio, 222 ; 44 Ohio L. L. 310; 45 Ohio L. L. 209.
    II. The village of Manhattan being rightfully and in fact under the jurisdiction of Michigan when the act to incorporate the Manhattan Bank was passed, as the act emanated from the government de facto, it must be held valid.
    “It is the government de facto of a country, whose laws *and proceedings are recognized, whether it be a government de jure or not. Daniels v. Stevens’ Lessee, 19 Ohio, 222. But if this were not tho rule, the facts before us are abundant to show that the act in question emanated from the government de jure.

    It is a part of the public history of the country, that in May, 1835, Michigan had a population of over 60,000, and having that population, article 5 of the ordinance of 1787 (1 U. S. Stat. at Large, 51, note), gave her liberty to form a permanent constitution and State government, and a right to be admitted by her delegates into the Congress of the United States. And by the act of Congress of August 8,1789 (Ib. 51), this ordinance was to “ continue to have full effect.”
    The right to form a permanent state government was a political vested right, dependent only upon the fact of sufficient population. True, nó provision was made by Congress direct, for numbering the people, nor was it necessary; for they were competent to number themselves, and there can be no doubt that the enumeration taken under the laws of the territory was satisfactory and binding upon Congress and the people of Michigan. The right of suffrage, accruing to an individual when he attains the requisite age, is no more full, direct, or positive, than was the right in the people of Michigan to form their state government when they numbered 60,000. “When the fact happens, the right accrues and becomes active.”
    But, waiving the ordinance of 1787, the course pursued by the people of Michigan may still be sustained by well established precedent.
    February 4, 1791, Kentucky was admitted without a previous law of Congress authorizing a convention. Ib. 189.
    February 18, 1791, Yermont was admitted under like circumstances. Ib. 191.
    12 Pet. 724 ; 1 U. S. Stat. at Large, 401; 5 How. 343, 379. The court say: “ No case can be found where an objection of this character to a statute has ever been sustained.” 19 Ohio, 222, is to the same point. 1 Doug. Mich. 119.
    *111. It was unnecessary for the plaintiff below to prove that $20,000 of its stock was paid in, or that $2,000 bonus was paid to the State of Michigan.
    By section 4 of the act, the stockholders were made a body corporate until June 1, 1857, and when $20,000 was paid in, the commissioners or directors were to procure a convenient place in the village of Manhattan, and commence operations.
    Sec. 22 provides that “ unless the sum of $30,000 in specie be paid into the bank in two years from the passage of the act, and $10,000 into the Treasury of Michigan in four years, $2,000 of which was to be paid before the bank should “ commence operations,” then this act shall become void and of no effect.
    Counsel opposed to us maintain that these conditions are not cause of forfeiture merely, but are “ prerequisite to the very existence of the corporation.” Now let us see what in legal contemplation was to be done before these “ prerequisites ” should require attention.
    Notice has to be given; the books opened; stock subscribed, and part of it paid in ; election ordered; directors chosen, and a president and cashier, or one of them at least—as the remaining. “prerequisites ” impose duties rendering such an officer, or officers, indispensable. An office or banking house, has to be leased, purchased or erected, and money paid or contracts entered into for the same. And now the first $2,000 of the bonus is due to the State of Michigan, but it has not been paid. Now, what have we got before us? Here is a bank charter, under which stock has been subscribed and paid in, a perfect organization effected in every particular, and contracts have been made and are outstanding for a banking house; an dyet gentlemen tell us that the corporation has not, as yet, come into existence? Is not this declaration absurd ? If no corporation existed, how could directors, president, or cashier be chosen ?
    Clearly, then, the conditions are not those upon which the *bank was to come into existence, but upon which its existence might bo continued. And as the bank has once existed, it devolved upon the defendant below, to allege and prove its dissolution. American Life and Trust Co. v. Bayard et al. 5 Legal Obs. 13, 14. He could not prove or object that it had not been duly organized. 1 Hall, 191; State v. Carr, 5 N. H. 367.
    Cause of forfeiture can not bo inquired into collaterally. Receivers of the Bank of Circleville v. Renick, 15 Ohio, 322; Johnson v. Bentley, 16 Ohio, 79, 104.
    The bank has always been recognized. The legislature of Ohio in 1838,1839, repealed part of its charter, 37 Ohio L. L. 212. The courts, too, have administered upon it as an Ohio corporation for the benefit of its creditors.

       See act of January 27, 1816, Swan’s Stat. 136.

       See also tie argument of the same counsel in 19 Ohio, 222.

   Ranney, J.

On December 31, a. d. 1837, the defendant in error discounted for the plaintiff the promissory note upon which this suit was brought, and which was made payable at their banking house located in the village of Manhattan, in the county of Lucas. The only question presented for our consideration is, was the defendant in error, the plaintiff below, at that time an authorized or unauthorized bank? If the former, the judgment of the court of common picas is correct; if the latter, it is erroneous.

From the bill of exceptions it appears that the defendant in error was incorporated and authorized to do a banking business at said village, by an act of the legislature of the State of Michigan, passed on March 25, 1836 ; the village of Manhattan being at the time upon the territory then in dispute between this state and the state or territory of Michigan. In January, 1835, the legislativo council of that territory passed an act providing for the calling of a convention to form a constitution and state government, which assembled in May following, adopted a constitution, and submitted it to the people for ratification. It received their approval, and at the same time in pursuance of its provisions, state officers, a general *assembly, and a representative in Congress were elected. The first general assembly convened, under this instrument, on the first Monday November 1, 1835, and at the same session this act of incorporation was passed.

In June, 1835, the legislature of the State of Ohio passed an act erecting the county of Lucas, the northern boundary of which was the present northern boundary of the state, and included within its limits the village of Manhattan, where the bank was to be located. On September 5, 1835, a term of the court of common pleas was held at Toledo, in the township of Port Lawrence, and upon the territory in dispute between Ohio and Michigan. Manhattan was a village in the same township.

After the county of Lucas was erected, a majority of the inhabitants of the township of Port Lawrence acknowledged the authority of this state. All elections after that time were held under the Ohio laws—none were over had in that township under the authority of the State of Michigan. No vote was taken in the township upon the question of the adoption of the constitution, and the authority of the State of Michigan was never recognized by the township as such. In the village of Manhattan there were officers elected under the territorial government, who continued to act until the settlement of the boundary dispute; aud a majority of the inhabitants of that village recognized the authority of Michigan until her admission into the Union.

On June 15, 1836, an act of Congress was passed, entitled “an act to establish the northern boundary line of the State of Ohio, and providing for the admission of the State of Michigan into the Union, upon the conditions therein expressed.” This act established the present northern boundary of this state, and provided that the constitution and state government, which the people of Michigan had formed for themselves, should be accepted, ratified, and confirmed, and the State of Michigan admitted into the Union, upon the express condition that the state should consist of, and have jurisdiction over, the ^territory included within the boundaries thereby established, and none other. These boundaries excluded the village of Manhattan from Michigan. On December 15,1836, the people of Michigan gave their assent to the provisions of this act of Congress, in the manner pointed out by the act itself; and on January 26, 1837, another act was passed by Congz’ess admitting the State of Michigan into the.Union, on an equal footing with the original states; and her senators and representatives, already elected, wmre admitted to seats in Congress.

From this statement of facts, it appeal’s that the act of incoi’poration relied upon, was passed by the genez-al assembly of Michigan, after the adoption of the constitution of that state by the people; and before her admission into the Union by Congress, it attempted to create a corporate body on territory then in dispute between Ohio and Michigan ; which territory, before the discounting of the note in question, was, by act of Congress and the consent of the people of Michigan, settled to belong to, and was brought under the unquestioned jurisdiction of the State of Ohio. To affirm the judgment renderod in this case, by showing the defendant in error an authorized bank, we must be able to settle in its favor the three following pz’opositions:

1. That the general assembly of the State of Michigan, at the time this act was passed, possessed legislative power.

2. That the village of Manhattan was at that time de facto under the jurisdiction and control of that state government; and,

3. Assuming the truth of the two fiz’st propositions, that the Tight to bank, conferred by the law of Michigan, continued in force, and gave the same right to bank in the state after the territory came under our unquestioned jurisdiction.

Before proceeding to consider either of these positions, the following may be laid down as axioms disputed by no one, viz: That the cz’eation of a coz-poration is an exercise of sovereign ^legislative power, and that it can not be done beyond the territorial limits of the state exercising such power.

Did such sovereign legislative power pass the act relied upon by the defendant in ei’ror? is the first question. In accordance with the provisions of the ordinance of 1787, “ for the government of the territory of the United States northwest of the river Ohio,” and under the authority of section 3 of article 4 of the constitution of the United States, Congress, on January 11, 1805, passed an act to oz’ganize the territory of Michigan. It is unnecessary to go into detail, but it is sufficient to say that the territorial government thus provided for, went into operation, and was regularly supplied with a succession of officers in all its various departments, down, at least, to the passage of the act of June, 1835, providing, upon certain conditions, for the admission of Michigan into the union. It is very clear that a territorial and state government could not exist at one and the same time, over the samo territory. Owings v. Speed, 4 Wheat. 714. It follows, therefore, that before a state government, clothed with legislative power, could come into existence, the territorial government must have ceased to exist. The territory was ceded to the federal government, and belongedto the federal government in trust, for the purposes specified in the deeds of session. The territorial government was erected by a law of the federal government constitutionally made, in respect to which the constitution of the United States (art. 6), declares that it “shall be the supreme law of the land, and the, judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”

Up to the time that the state legislature of Michigan assumed to incorporate this company, this law had not been in any way repealed or revoked by tho power that made it, nor had they agreed to or approved of any state government to supersede tho one created by it. Nor had the territorial government receded from the territory; on the contrary, it was in full life, manned in all its departments by appropriate officers.

*How, then, was this government, created by a “supreme law ” of Congress, brought to a close, and overthrown, so as to make room for the state government, which brought into existence this act of incorporation ? .It is claimed to have been done by the people of Michigan, by the adoption of a state constitution, and the election of officers under it; and further, that this might legally be done, as it was done, without the assent of Congress, or any action on the part of the general government, by virtue of article 5 of the ordinance of 1787. This article, after providing that there should bo formed in the territory.not less than three, nor more than five states, and giving the outline of the boundaries of each, proceeds to say, that “whenever any of the said states shall have sixty thousand free inhabitants therein, such state shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with, the original states, in all respects whatever; and shall be at libert}' to form, a permanent constitution and state government; provided the constitution and government so to be formed, shall be republican, and in confirmitylo the principles contained in these articles.”

By article 4, it is provided that “ the said territory, and the states which may be formed therein, shall forever remain a part of this confederacy of the United States of America, subject to the articles of confederation, and to such alterations therein as shalL be constitutionally made,” etc. These extracts, subject to such modification as the subsequent adoption of the present constitution effected, and especially section 3 of article 4, in relation to the admission of new states, show the relation that this territory bore to the general government, and the rights of inhabitants as to a change from a territorial to a state government. We have seen that the territory, either under state or territorial government, must “forever remain a part of this confederacy.”

To sustain the power of the State of Michigan to legislate before her admission into the Union, wo are referred to the case of Scott v. The Detroit Young Men’s Society, decided by *the Supreme Court of Michigan (1 Doug. 119), and to the same case in the Supremo Court of the United States, 5 How. 343. In this case it became indispensable for the defendants in error to establish two facts: first, that they were duly incorporated; and, second, that they had a deed from the government of the land in controversy. The first they established by an act of the legislature of the State of Michigan, passed on March 26, 1836; and the second by a deed from the government and judges of the territory •of Michigan, under the authority of an act of Congress passed in 1806, executed on July 1, 1836.

The state court, holding that the act of incorporation “ was not invalid, on the ground that the state government had no legal existence until after the admission of Michigan into the Union, .January 26,1837,” and that “ notwithstanding the previous organization of the state government, the governor and judges of the territory of Michigan remained in office until after July 1, 1836.” The reasons for both these conclusions, seemingly contradictory, .are given at length in the opinion. I will not stop to examine them further than to say, that the first is based upon the assumption that article 5 of the ordinance secured, absolutely, thei’igh to the people of Michigan to form a state government whenever the territory contained 60,000 free inhabitants; and that “ that' right could in no way be modified or abridged, or its exercise controlled or restrained by the general government.” The Supreme Court of the United States dismissed the cause for the want of jurisdiction, and hold that “in order to givo this court jurisdiction, tbo statute, the validity of which is drawn in question, must bo passed by a state a member of the Union, and a public body owing obedience and conformity to its constitution and laws,” and that if public bodies, not duly organized or admitted into the Union, undertake to pass laws which might encroach on the Union or its granted powers, they might bo put down under the power to suppress insurrections, or by the penal laws of the states or territories in which they are situated; but that their measures *were not examinable by this court on writs of error. They are not a state, and can not pass statutes within the meaning of the judiciary act.

This decision entirely overthrows the position taken by the court below, and settles the question that Michigan, at this time, was not a state “in this confederacy,” “ owing obedience and conformity to its constitution and laws.” It is insisted that it was no longer a territory. If a state at all, therefore, it must have been one out of “ this confederacy,” in direct violation of the very ordinance to which she appeals. Justices McLean and Nelson dissented from the majority of the court upon the question of jurisdiction. There is nothing to show any difference of opinion between them and the majority, on the main question ; indeed, the view taken by the majority, so far as it has any bearing, greatly strengthens that of the minority. I regard the views taken by Justice McLean of the merits of the controversy, in the opinion delivered by him, in which Justice Nelson concurred, as entirely unanswerable, and adopt them to the fullest extent. He says: “Michigan was an organized territory of the United States. Its governor, judges, and all other territorial officers, were in the discharge of their various functions. The sovereignty of the Union extended to it. Under these circumstances the people of Michigan assembled, by delegates in convention, and adopted a constitution, and under it elected members of both branches of their legislature, governor, and judges, and organized the state government. No serious objection need be made, in my judgment, to the assemblage of the people in convention to form a constitution, although it is the more regular and customary mode to proceed under the sanction of an act of Congress.

“But until the State is admitted into the Union by act of Congress, the territorial government remains unimpaired. No act of the people of the territory, without the sanction of Congress, can change the territorial into a state government. The act to incorporate the Detroit Young Men’s Society, was the exercise of sovereign power—a power totally repugnant to the -Ksovereignty of the Union in its territorial form. This act of incorporation was repugnant to the constitution of the United States, under which the territorial government was organized; it was repugnant to the laws of Congress, which formed that organization ; it was an exercise of sovereignty incompatible with the sovereignty of the Union, in all its legal forms.

“ The two sovereignties of the state and the territorial government can not exist at the same time, within the same limits. The territorial government exists in' full vigor until it is abolished by the admission of the state.”

Satisfied of the correctness of these positions, and yielding obedience to the positive requirements of the constitution of the United States, we hold that the legislature of the State of Michigan, assembled under the constitution afterward submitted to Congress, could not, on March 25,1836, when the act in question was attempted to be passed, rightfully exercise any legislative power whatever.

The next question arising, is, was the village of Manhattan at this time de facto under the control and jurisdiction of this inchoate state government? We have come to the conclusion that it was not a government de jure. The utmost that possibly could be claimed for it, would be, that its acts were binding upon those who lived under and submitted to its authority. No question here arises between this state and the territory of Michigan. A question of that character was raised and settled by this court at its last term, in the case of Daniels v. Stevens’ Lessee, 19 Ohio, 222. It was there held that until the act of Congress of June, 1836, the territory in question ^did not come within the actual jui’isdiction of the State of Ohio. .No doubt is suggested of the correctness of that decision, although it must be confessed that it took a different view of the matter from that constantly maintained by the legislative and executive departments of the government of this state. In June, 1835, the general assembly erected the county of Lucas, and, in the most positive manner, extended the jurisdiction of our *laws to the present boundary of the state, including all the territory in dispute.

Governor Lucas, in his message to the general assembly in December following, says : “Harris’ line has been traced and plainly remarked. The laws of Ohio are in full operation south of that line, and jurisdiction actually- exercised to the same, in accordance with what must be considered, by a careful and impartial examination of the facts, as the established, incontrovertible, constitutional rights of the state.” But it is not enough to make this act of incorporation valid, to show that Manhattan was hot within the jurisdiction of Ohio, but it must at least 'be shown that if was under the actual control, and submitted to the assumed authority of the State of Michigan. Submission to the territorial government is as fatal as though the territory had been in Ohio. As a government can only act through its officers and constituted authorities, their presence, and the exercise of their functions, are commonly the evidence which marks the exertion of authority, and determines the character and extent of the jurisdiction claimed and exercised over the people. The bill of exceptions in this case does not furnish one particle of evidence that any authority whatever was over exercised by the State of Michigan, within the township in which this bank was located; but the contrary is most manifest. They took no part in framing or adopting the constitution. Before its adoption they organized and acted, and ever after held elections under the laws of Ohio, and acknowledged its jurisdiction. They held no elections under the laws of Michigan, and never acknowledged its authority. It is true that a majority of the inhabitants of the village of Manhattan, constituting, however, but a small minority of the township in which it was located, were favorable to Michigan, and recognized her authority; and territorial officers, residing there at the time the township organized under the Ohio laws, continued there until the final settlement of the dispute. There is no evidence whatever, that any state officer was ever within *the township, or that one act indicative of authority by the state, was ever performed there.

We can not, therefore, say, that at the time of the passage of the act in question, the state government of Michigan was defacto in the exercise of jurisdiction over the territory where this bank was located. I have not adverted specially to the question as to what effect the subsequent admission of the state into the Union might have upon her prior legislation, considering it clear that if she had neither rightful nor actual jurisdiction over this territory, and the ultimate settlement of the question left it out of the limits of the state, it could in no way affect this question, whatever might be its effect in places differently situated, and ultimately falling within the limits of the state.

But suppose the two propositions we have already considered were otherwise, and this bank could have been considered as duly incorporated by the law of Michigan, could it still continue to do such business in this state. I am fully aware of the principle by which private rights of property are respected and protected, upon a change of territorial jurisdiction from one government to-another, and fully impressed with the importance of maintaining it unimpaired. But this principle can never be made to extend to mere privileges and capacities created and allowed by the government- from which the territory is taken, especially when they conflict with the policy or municipal regulations of the government to which it is attached. It would hardly be supposed that a license to sell intoxicating liquors, granted to a person residing on this territory while it was under the jurisdiction of Michigan,, would protect him against an indictment under our law, after it fell within our jurisdiction, although his license had not expired.

Indeed, the principle may be still more broadly stated, and it will be found fully sustained by the jurisprudence of every civilized state. While as a general rule it is true that contracts good in the place where made, are good and will be enforced everywhere, still, the rule is always taken with this important ^'qualification, that they are not contra bonos mores, or opposed to the policy, positive law, or criminal prohibitions of the state in which they are sought to be enforced. Story’s Conflict of Laws, 203; 6 Mass. 378; 13 Ib. 1; 8 Martin, 95; 2 H. & J. 193.

This policy each state must determine for herself. The policy of Ohio upon the question under consideration has been settled for nearly forty years, by laws still in force. By the act to prohibit the issuing and circulation of unauthorized bank paper,” passed January 27, 1816 (Swan’s Stat. 136), every company or association, issuing notes or bills intended to pass or circulate by delivery, not “ incorporated by a law of this state" was declared to be an -unauthorized, bank. Any person acting as an officer, or knowingly receiving or passing their notes, was made liable to indictment, and subjected to severe penalties; while “all bonds, bills, notes, or contracts,” made payable at or to such bank, were “declared null and void.”

Now it will not be doubted that it was competent for the legislature to have allowed all persons to bank, or to have prohibited all; or to do as they have done, allow all “ incorporated by a law of this state,” and prohibit all others. The policy of this legislation is perfectly obvious. They intended to guard the community against fraud and imposition, by exacting of persons engaging in.1^ this business, the proper security before they were suffered to enter upon it, and to make them directly amenable for abuses, to our own laws. This policy would be entirely subverted by allowing institutions created by the laws of other states, and beyond our control, to do business here. The defendant in error is claimed to have incurred one of the penalties óf this act, to wit: the forfeiture of the debt sued upon. She admits that she was engaged in the business of banking at the time she took the note in suit, but claims to have been authorized to do so, not “ by a law of this state,” but by a law of the State of Michigan, which she brought with her, and so far repealed our restraining and criminal *laws. ¥e can not acknowledge the right to make any such importation. To do so would be pressing the doctrine of comity between states, to a point beyond where it has ever been carried, and to the subversion of the rights and interests of our own citizens, and of our long settled internal policy. Sitting here to administer the laws of this state, we can not make exemptions to their operation which the law itself has not made, and as this case does not fall within any prescribed exemption,' we have no power to prevent its falling under the operation of the statute.

The court of common pleas erred in overruling the motion for a new trial, and in entering judgment for'the plaintiff below, and for that cause, the judgment is reversed.

Hitchcock, C. J., was absent.

An action can not be sustained in the courts of a state on an agreement entered into in violation of the laws of the United States, or of the laws of the particular state. Note to Chitty on Contracts, citing 4 Dall; 6 Binn. 321; 4 S. & R. 159; 4 Dall. 308;. 2 S. & R. 317; 14 Johns. 46; 5 Day, 542; 1 Yeates, 483; 8 Johns. 304; 4 Rawle, 185; 1 West. Law Journal, 261.

As to contracts, etc., in. Ohio, void in violation of law; illegal executorycontracts not inforced; par-ties to illegal executed contracts not aided, etc., see Moore v. Adams, 8 Ohio, 374; Roll v. Raquet, 4 Ohio, 418 ; Raquet v. Roll, 7 Ohio, 77. [But where a person has been fraudulently induced by threats of a groundless prosecution to execute a note, chancery will enjoin collection, 18 Ohio, 548.] Seymour v. Turnpike Co., 10 Ohio, 476; Nichols v. Poulson, 6 Ohio, 305; Chaffee v. Garrett, 6 Ohio, 421; Spingeon v. McElvain, 442; Gill-man v. Lewis, 12 Ohio, 281; 6 Ohio, 21.

A statutory imposition of a mere penalty upon the performance of an act, as the sale of town lots before plat recorded, does not necessarily vitiate the contract itself. 9 Ohio, 201.

Sundry contracts—Sellers v. Dugan, 18 Ohio, 493 , Brown v. Timmany, 20 Ohio, 81. Illegal contracts in relation to interest—8 Ib. 257; 11 Ib. 489, 498, 417; 10 Ib. 378; 12 Ib. 153, 544; 17 Ib. 605, 336; and see Wilcox Dig.; 2 Swan’s Practice, 915; Curwen’s Cases Overruled, 6; and see Collins v. Blantern, 2 Wils. 341; Ward v. Lloyd, 7 Scott N. R. 499; Prole v. Wiggins, 3 B. N. C. 230 ; Paxton v. Popham, 9 East, 408; Id. 417; 5 B. N. C. 666 ; Cuthbert v. Haley, 8 Term, 390; 6 Term. 16; 1 Term, 734; 3 Ib. 422; 2 B. & A. 368, etc., cited in Broom’s Legal Max. 351.


source: Caselaw Access Project

author: Spalding, J.

license: Public Domain

text:
    *John Black v. William Webb.
    Where B. gave to W. a memorandum in writing, substantially setting forth that B. had received $175 as an advance to buy barley for W., and B. agreed to deliver at a certain place, within a certain time, and for a certain price, 1,000 bushels of merchantable barley, it is a contract of sale, and not an agreement constituting an agency.
    When before the time stipulated for the delivery, and before actual delivery, a portion of the barley stored in the warehouse, mentioned in the agreement, was destroyed by a flood, the loss falls upon B., the property being at his risk until delivery.
    Error to the common pleas of Stark county.
    In the common pleas the action was assumpsit, tried at the October term of the court, a. d. 1850, and verdict for plaintiff, (Webb), $253.43, damages, for which judgment was rendered.
    Exceptions were taken to the ruling of the court in refusing to set aside the verdict and grant a new trial; and the whole testimony is set out in the bill of exceptions.
    The plaintiff below predicated his right to a recovery upon an alleged violation of the following written memorandum, signed by defendant:
    “ Canton, February 7,1848.
    “Received (175) one hundred and seventy-five dollars as an advance to buy barley for Wm. Webb, for which I do agree to deliver (1,000) one thousand bushels of barley to Mr. Reynolds’ warehouse, in Massillon, at (35) thirty-five cents per bushel, by the middle of April next—the said barley to be good merehantaable barley. “ John Black.”
    It appeared in evidence, that between February 7 and 22) 1848, Black deposited in the warehouse of Reynolds, at Massillon, six hundred and fifty-two bushels of barley, which was placed to his credit on the books of Reynolds, and *for which receipts were given, as the different parcels arrived, of the tenor following:
    “ Massillon, February, 19, 1848.
    “Received in store, of J. Black, per Mt Fulmer, fifty-one and forty forty-eighths bushels barley, at charge and risk of owner.
    “ J. L. Reynolds & Co.”
    During the night of February 22, 1848, the reservoir at Massillon broke, and the waters swept away the warehouse of Reynolds & Co., and the barley deposited therein was all lost. After the flood, and between that and the middle of April, 1848, Black delivered at the warehouse of Reynolds, in Massillon, three hundred and fifty-one bushels of barley, which was also receipted for in his name, and credited to him on the books of Reynolds & Co. These last receipts, together with those for the lost barley, making, in all, receipts for one thousand and three bushels, were tendered to Webb on or before April 15, 1848, but he refused to receive thorn. It was understood at the time of this tender, by Webb and the agent of Black, who made it, that there were then no more than three hundred and fifty-one bushels of barley remaining in the warehouse—the rest having been swept away by the flood. He was willing to receive the quantity on hand at the stipulated price per bushel, but was not willing to lose the barley that had been destroyed.
    The firm of Reynolds & Co. never received orders from Black to deliver any portion of the barley to Webb, and would have delivered the property, at any moment, to the person returning to them their warehouse receipts.
    It was in evidence that Black resided in Canton, and bought the barley there, and sent it to Massillon; that while Black was buying the barley in small loads, at Canton, Webb, who was occasionally in Canton, frequently came to Black’s store, and if barley was offered by persons when Webb was there, he examined it. •This frequently happened. One load, thus offered, Webb said ho would not take, it being of inferior quality.
    *Griswold & Hazlett, for plaintiff.
    Webb sued to recover his advance to Black, of $175, and tho advance in the price of barley. The question arising is, which party shall sustain the loss occasioned by the destruction of tho barley? We claim that, in the language of the contract, “ Black was buying barley for Webb,” was an agent, and that when tho barley was stored in the warehouse of Reynolds it was at the risk of Webb. Tho fact that Black took warehouse receipts in his own name does not conflict with this view! If he purchased faster than Webb advanced money, he had a right to hold on to the barley until paid. But it can not be objected that tho receipts gave Black the power to sell tho barley, for he did not do so. An agent may always abuse his trust, but he is still an agent. The parties did not contemplate a delivery of all the barley on one day. Tho contract was to buy for Webb, and he was not divested of his ownership by taking receipts in Black’s name. The barley was his.

    G. W. Belden & Leiter, for defendant:
    None of the doctrines of the law applicable to principal and agent can be enforced against either of the parties in this case. ' For authorities wo refer—
    1. As to powers and duties of agents ;
    2. As to rights and liabilities of principals;—to 2 Kent, 617; 1 Kinne’s Law Comp. 20; 8 B. Monroe, 310; Peterson v. Poignard, 6 Washburn, 129; 2 Wills. 325; Pet. U. S. Dig., tit. Agency.
    An agent is a person authorized to do some act or business, in the name of the principal. He is the mere creature of the principal—bound by his authority, and subject to his instructions. In this case, Black was not bound to obey instructions, and not liable for buying bad barley. Webb was not liable for any fraud or misconduct of Black. He would have been, *if Black was a mere agent. The death of either party would not have terminated this contract, as it would an agency. If the relation of prin„ cipal and agent existed, Webb could have terminated the agency, changed tho price to be paid for barley, the quantity to be delivered, and the place of delivery.
    Black was bound to buy 1,000 bushels of barley, let the price be what it might. If he was an agent, he could not buy at a price exceeding 35 cents per bushel, and if he could Dot buy beyond that price he was not bound to deliver a bushel. Such is not the true construction of the contract. Tho ownership of the barley never passed to Webb. 2 Kent, 500, 496 ; Long on Sales; Story on Sales, 314, sec. 504; Chit, on Cont. 376, n. 1; Ward v. Shaw, 7 Wend. 404; Story on Cont. 316, sec. 507. Webb was not bound to receive the barley before the “ middle of April,” and the tender was about April 1, of the warehouse receipts—not bai’ley.
    John Harris, for plaintiff, in reply:
    The contract was ' only signed by one of the parties, and was delivered to the other. It was a receipt for the $175. Had the parties understood it as anything other than a contract of agency Black would have exacted something from Webb to perfect the contract, or to bring Webb to accept and pay for, as well as Black to buy and deliver. - Black was under no obligation to buy except as Webb advanced money. If Black had bought barley at 20 cents or 50 cents per bushel, it would not affect his agency. If Black received the $175 “ to buy barley for Webb,” it can make no difference if he bought at 10 cents per bushel. He might have bought as agent to bring custom to his store also, if he made no profits on the barley.
   Spalding, J.

There is but a single question growing out of the facts in this case. Was Black the agent of Webb in purchasing and storing this barley at Massillon ? or was he the vender of a thousand bushels of barley to Webb, to be delivered -¡'within a given time, at a certain place, and for a stipulated

price ? If the former, the law will cast the loss upon his principal ; but if the latter, the misfortune .will be his own, unless he had perfected a delivery of the grain before the accident.

We have none of us any doubt that the conduct of Black, in this whole transaction, was what the parties contemplated it would be when they entered into the arrangement of the 7th February. He was expected to purchase the barley, in small parcels, at different intervals, and to store it, as occasion might require, at the appointed place in Massillon ; and when the quantity of a thousand bushels should be there deposited, it was doubtless the understanding that the warehouse receipts would be taken by Webb, and the balance of the purchase money be paid over to Black. But a contingency has happened that could not have been foreseen, and, of course, was not provided for by the parties. It was not anticipated that the canal reservoir at Massillon would break through its banks and flood the town. If it had been, the parties could have stipulated as to the loss arising upon the happening of that event. As it is, a loss has occurred without the fault of either party, and the law must decide upon whose shoulders it shall rest.

It seems to a majority of our number that this was a contract of purchase and sale, and not an agreement constituting an agency. If we change very slightly the order of the phraseology, the intent of the parties will become more apparent.

“I do agree to deliver at Reynold’s warehouse, in Massillon, by the middle of April next, 1,000 bushels of good merchantable barley, at 35 cents per bushel, and have received from William Webb $175 as an advance to buy barley for him.
“John Brack.
February 7, 1848.”

Now, it made no manner of difference with William Webb ^whether the price of barley rose or fell in the mai’ket between the 7th of February and the 15th of April, 1848. He was sure of 1,000 bushels at the price of 35 cents; and, peradventure, it might cost John Black 50 cents a bushel, before the day of delivery arrived. There is nothing characteristic of an'agency in this.

If Black purchased all or a part of this “ thousand bushels ” of barley from the farmers of Stark county, on a credit, his insolvency would not justify them in asserting a claim against Webb for the price of their property delivered to Black. There is nothing characteristic of an agency in this.

Again: Webb had no right, by the terms of the agreement, to dictate to Black when and where he should buy this barley, or when he should stop purchasing. There is nothing characteristic of an agency in this. In fact, we do not discover from the testimony, that any right of property in this barley could vest in Webb—not even to the extent of the money advanced—until such time as Black should see fit to make actual delivery of the grain or pass over to him the warehouse receipts. It is in evidence that the warehousemen would have felt bound to deliver the barlejr to any person, or persons, presenting to them those receipts. These important evidences of ownership Black retained within his own control until after the loss.

How can it be said with certainty that this barley would have been transferred to Webb in case the warehouse had not been swept away? Black had, in himself, the absolute power of disposal, at any and all times, so long as he retained the receipts; and Webb could, with no sort of propriety, object to a sale of the property in store, so that, at the last, he received, in quantity and quality the barley, which Black had agreed to deliver to him.

By making application of these tests, and others that could be easily enumerated, we are brought to the conclusion that John Black, the plaintiff in error, purchased this barley—not as the agent or factor ofWm. Webb, but on his own private account, and for the purpose of filling a contract of sale, ^entered into, and then subsisting between himself as the vender, and Wm. Webb as the vendee.

In this view of the subject, the risk of the property would remain with Black until he should deliver the barley or transfer the contract thereof to Webb. The loss happened before such delivery or transfer, and must be borne by Black alone.

The judgment of the common pleas will be affirmed with costs.

Ranney, J., dissented.

Hitchcock, C. J., was absent, and did not participate in the decision of this cause.


author: Hitchcock, C. J.

text:
    John C. Negley v. Alexander Gard and Wife.
    In construing a will with codicils, the whole is to be taken together as parts of one instrument, and if a codicil is signed and attested at the same time and place with the body of the will, it may well be considered as constituting a part of the original will.

    "Where an executor or administrator, after final settlement, distributes the balance in his hands to a part only of the distributees, such distribution will not avail Him against the claims of such distributees as have not received their share.
    Where one of two executors or administrators has in his hands the balance remaining for distribution, an action may be maintained against him, without joining his co-executor or administrator.
    Error to the common pleas of Montgomery county.
    Alexander Gard and Mary Ann Gard, his wife, late Mary Ann Robinson, prosecuted an action in the court of common *pleas for Montgomery county, against John C. Negley, and declared in assumpsit for money had and received.
    The defendant Negley having pleaded the general issue, the case was submitted to a jury, at the Januai’y term, 1851, of the court, and the jury returned a verdict for the plaintiff.
    The defendant below, now plaintiff in error, then filed a motion for a new trial, which was overruled by the court, and judgment entered upon the verdict.
    Exceptions were taken to the opinion of the court in overruling the motion for a new trial, as well as to its rulings upon the trial, and in its charge to the jury. To reverse the aforesaid judgment this writ of error is prosecuted.
    The errors assigned present the questions decided by the court. Sufficient of the bill of exceptions appears in the opinion of the court.
    The court below charged the jury-, that “the plaintiffs are entitled to recover a distributive proportion of the surplus of said estate, after paying the specific legacies named in said will.”
    P. P. Lowe & E. J. Forsyth, for plaintiff, claimed :
    That Negley, and John McClure, the co-executors, could not be sued separately, but must be joined. 5 Pick. 104; Hammond on Parties 273; 1 Halst. 195.
    The settlement made in court with the heirs of N. Lyon, is a bar to a recovery in this form of action. The remedy is by vacating the settlement in the manner .provided by law.
    The specific legacies in the will mast be paid before those in the codicil. If so, then by what mode of construction is it that the devisees in the codicil can claim a distributive share of the surplus, when they could not got the specific legacy only upon the condition that the estate 11 reached?”

    E. W. Davies, for defendants :
    That the legacy to the children of Joanna Robinson is contained *in the codicil and not in the will, can not affect their claim. Both are to be construed as one instrument, 5 Johns. Ch. 313, Wescott v. Cady. The executor has construed the “ within named ” legatees as excluding'the children of said Joanna, contraiy to the intention of the testator. In equity, in case of a deficiency of assets to pay legacies, all the legatees abate ratably. If so all should share ratably in a surplus. Nash v. Dillon, 12 Eng. Cond. Ch’y Cases, 116.
    We do not seek to disturb the settlement of the account of legacies paid. That is correct. But the surplus, whether paid out or not to legatees, must bo hold liable to the claim of plaintiffs below. There has been no settlement of the surplus. It is not necessary to make the co-executor a party. Negley had admitted of record that he has the surplus, and the action is for money had and received.

       Ex antecedentibus et consequentibus fit optima interpretado, 2 Inst. 317. The law will judge of a deed, or other instrument consisting of divers parts or clauses, by looking at the whole; and will give to each part its proper office, so as to ascertain and carry out the intention of the parties, Broom’s Legal Max. 249.

   Hitchcock, C. J.

Several bills of exceptions were tendered and allowed in this case, and various error's assigned; but it is believed that the whole case depends upon one or two points presented by the record. On the trial of the case, the ^plaintiffs below offered in evidence the will of Nathaniel Lyons, executed on July 7, 1833, and admitted to record in the month of September of the same year. They also exhibited in evidence the account of Negley, one of the executors, admitting a large balance to be in his hands, after the payment of debts and specific legacies, and also showing that at subsequent terms of the court, this surplus had been paid over to a part of the legatees other than the then plaintiffs, the vouchers for which latter payments had been examined and approved by the court of common pleas, and ordered to be filed. They also proved that the then plaintiff, Mary Ann G-árd, was one of the children of Joanna Bobinson. Having introduced this evidence, the then plaintiffs rested.

Whereupon the defendant, now plaintiff in error, moved for judgment of nonsuit, which was overruled by the court. This ^decision of the court was excepted to, and is now assigned for error.

Whether the court of common pleas erred in this particular, depends, principally, upon the construction of the will of Nathaniel Lyons.

The testator, after directing his debts to be paid, directs his executors to sell all his real and personal estate, and to make provision for tho support of his wife as long as she shall live; and in the further disposal of his estate he proceeds as follows: “ I will and devise to my son Jotham, two hundred dollars for his legal share, and should my estate reach, as 1 have directed it to be divided, my said executors shall allow him to the amount of $400 for his service, or work which he done for me after becoming of age.

“2. I will and direct, that should Ileave this world before delivery of a deed of conveyance, and which is executed and made to my daughter, Mary Winkloy, for a tract of land whereon she lives, and occupies, lying in Indiana, that my said executors shall make delivery according to law, to her, said deed for her full share and portion, which I grant to her, besides $100 to her son John Winkly, when he arrives to his age, etc.

“3. I will and direct that my daughter Sarah shall have $100 ; to my grandsons, Bichard and William Taylor, each of them $150, and my said daughters, my grand-daughters, Jean and Hannah Shearer, each $100 when they arrive at their lawful age or marriage.

“ 4. I will and direct that my daughter Phebe shall have $100, and to each of her daughters, namely, to Eliza Ann, Marcy, Charlotte, and Lucretia, $100, each of them when they arrive at their lawful age or marriage.

“5. I will and direct that Elizabeth, my daughter, shall have $100, and to her sons and daughters, my grandchildren, namely, to John, Nathaniel, and Marcy Holmes, each of them $100. And further, I will and and devise *to my grandson, John Holmes, when he arrives at his lawful age, a tract of land containing forty acres, ” etc.

Next, after again directing his executors to sell his real and personal estate, and make provision for his widow, he proceeds as follows: “ As soon as the assets come to hand, pay each in proportion to their share, and further, should my estate not reach, to pay each the amount expressed herein, to be proportioned to each, and should an overplus be left, after exposing and settling up all the within-mentioned moieties or portions, then and in that case, to be further distributed to each of the within mentioned legatees, or to their heirs within mentioned, paying all reasonable expenses,” etc.

By the last clause of the will, John C. Negley and John McClure, are appointed executors, and the will is duly signed and attested. Next follows upon the same paper, the following, which is stated to have been signed by the testator, and attested by the same witnesses, at the same time with the signing and attesting the will:

“ Codicil. Before signing, the testator annexed, or caused this codicil to be annexed, that is to say, that he wills and directs if the estate reaches, each of his daughter Joanna Robinson’s children, fifty dollars, and if not sufficient, to each a less proportion according to the judgment of the said executors.”

It appears from the bill of exceptions that the several specific legacies were paid, and the controversy in this case is as to the surplus, which, by the terms of the will, is to be divided among the respective legatees.' It is insisted on the part of the defendant in ei’ror, that the children of Joanna Robinson are as much legatees as those named in the body of the will, and as well entitled to the surplus. This is controverted by the plaintiff in error, wbo claims that this surplus was rightly distributed to the legatees named in the body of the will.

Had this codicil, as it is termed, been executed on a day subsequent to the execution of the will itself, there might have been more difficulty in arriving at the intention of the testator. *In such case, however, I am not satisfied that there would have been any great difficulty. In construing a will, to which are attached or added codicils, the whole is to be taken together as one instrument. The codicils constitute a part of the will. Westcott w. Cady, 5 Johns. 343.

But this is a case peculiar in its aspect. The will was drawn up and prepared for signature, when it is discovered that no provision is made for the children of one of the testator’s daughters. Whether this happened from forgetfulness in the testator or by mistake of the scrivener, we know not. But when the discovery was made, or at any rate before the will was signed, this addition of what is called a codicil is made, and then the two are signed at one and the same time, and attested by the same witnesses. The attesting ■ clause of the body of the will is, “signed, sealed and published by the testator, as his last will and testament, in our presence.’' The attesting clause in the addition—“ at the same time and place the testator signed and acknowledged this annexed codicil.” The testator and witnesses appear to have been peculiarly anxious to make it known that this was all part of one and the same transaction. Under these circumstances, it is difficult to find any good reason why any difference should be made in the distribution of the surplus, between the legatees named in the different parts of the instrument; and it seems to me that the same construction must be given, that would have been, had there been but one signing, and that at the end of what is termed the codicil.

It is claimed that the children of Joanna Robinson, were to be excluded from any legacy whatever, until the other legatees were .all paid. This is inferred from the mode of expression: “ If the estate reaches.” This is substantially like other parts of the will. The first bequest is to his son Jotham—the sum of “$200 for his legal share.” Then follows “and should my estate reach,” then an additional sum of $400, etc. After directing other legacies to be paid in full, it is added, “and further, should my estate not reach *to pay the amount,” etc. In such case the executors are directed to pay in proportion to the respective legacies. Taking, the will itself and the attending circumstances into consideration, we are of opinion that the children of Joanna Robinson were entitled to their share of the surplus.

Another ground upon which it was insisted that the plaintiffs should be nonsuited, was, that in the account exhibited, it appeared that the plaintiff in error had paid over this surplus to other legatees, and that his vouchers had been examined and approved by ■the court of probate. And it is claimed that this account so settled is conclusive until opened upon motion, or impeached by bill in chancery.

Where an executor or administrator files his account with the court lor final settlement, and the same is approved by the court, this is conclusive, unless impeached in chancery. But if from such account it appears that there is a balance in the hands of the executor or administrator for distribution, that balance must be distributed. The executor may or may not at his election make returns to the court of this distribution. The act in force which governs the settlement of this estate, is the act of March 12, 1831. Section 14 of this act provides, that after an executor or administrator shall have made his settlement with the court, by which the balance in his hands for distribution, shall have been ascertained, and shall have made distribution such executor or administrator may, at Ms option, file in court an abstract of his payments with the receipts, etc. He may do it at his option, but he is not bound to do it. The next section makes it the duty of the clerk to give notice within thirty days after the term, of the filing of such abstract and voucher’s. And in section 16 it is provided, that at the next term of the court after the notice is given, the receipts filed shall be examined by the court, and if no objections are made, the court shall allow the same and direct the same to be recorded; “ and the executors or administrators shall, by such allowance, be discharged from so much of the sum found by the settlement with the court as aforesaid, *to be in the hands of such executor or administrator, as the persons whose receipts are allowed as in. this section provided, are entitled to.” The only effect of this action of the court is to place upon the record the receipts in the hands of the executor or administrator, and make them final as against those who have signed them, as to so much of the distributive share to which they are entitled. But although the receipts-may cover the whole property, those who are entitled to a distributive share, and have not received it, are not precluded from enforcing their claim.

We think the court of common pleas did not err in overruling the motion for a nonsuit.

This in effect disposes of the whole case, with the exception of one point made by the plaintiff in error, which was this: That the suit was commenced against him alone, whereas it should have been commenced against him and his co-executor, McClure. It is sufficient to say that this is an action for money had and received, and the record shows that the money was in the hands of Negley as acting executor.

The judgment of the court of common pleas is affirmed with cost. ,


author: Caldwell, J.

text:
    *The Mad River and Lake Erie Railroad Company v. Cochran Fulton.

    The owner of a trunk is a competent witness in a suit brought by him against a common carrier, for its loss, to prove the contents of the trunk, and their value, and for the same reason, the evidence of the wife of the owner is admissible to prove the same facts.
    The rule for the admission of such evidence, does not extend further than to the proof of such articles as are commonly carried in a traveling trunk.

    Error to the court of common pleas of Seneca county.
    The action below was assumpsit brought by Fulton against the Mad River and Lake Erie Railroad Company, to recover the value of a traveling trunk and its contents. The declaration avers a contraction the part of the railroad company, as common carrier, to carry the wife of plaintiff below, and her traveling trunk and contents, from Tiffin to Springfield in the railroad cars of said company, and avers the loss of the trunk and contents by said company.
    The facts sufficiently appear in the opinion of the court.
    The court below overruled a motion for a new trial, made by defendants below, and the overruling of said motion, and the admission of evidence of the deposition of the wife of the plaintiff below, on the trial, are assigned for error.
    Lane, Stone & Lane, for plaintiff in error:
    This writ of error presents two questions :—
    I. Whether the owner of a trunk lost by a railroad company, is a competent witness to prove the contents and their value ?
    *11. Whether the wife of such owner is a competent witness for her husband in such a suit?
    I. The main point is one where we can add nothing to the former discussions and obvious reasoning. I have never met with any authority in any respectable book except Greenleafs Evidence.
      His opinion, as a lawyer, has since been deliberately overruled by the Supremo Court of Massachusetts, where the authorities are collected and discussed. 12 Metc. 44. There is no case in the law, (Connecticut book-debt excepted), in which a party plaintiff is a competent witness for himself on the main issue.
    II. But if he were competent, his wife is not. His exclusion is on the ground of interest: her exclusion depends on a different rule—a rule of policy, to prevent any possible interference with the marital relation.

    If the wife be competent for the husband, she may be called by the other party to testify in chief, or may be even examined as to facts against him. She may be required to testify as to every point connected with the case. If she enumerate the contents of the trunk, she may be even examined as to the title, and required to relate all she may know, however it may affect her husband.
    We can not doubt the reversal of the judgment.
    W. H. Gibson, for defendant in error :
    On the trial in the common pleas, the present defendant in error, “ to prove the description and value of the contents of the trunk,” offered the deposition of his wife, which deposition was objected to by counsel for plaintiff in error; but the objection was overruled by the learned judge presiding, and the deposition was read. Did the court below err in permitting this deposition to be read ? This appears to be the only question for decision.'
    From necessity, a party must, in certain cases, be allowed to *give evidence in his own favor, to prevent “ a failure of justice.”
    But we insist that the rule adopted on the trial of this canse, in the court below, is at once a reasonable and necessary rule. When an individual contracts to be carried on a railroad, his baggage is taken into the care of the company. It is removed from the eye and control of the owner. The company has full power to protect the property thus committed to its exclusive care, by all necessary vigilance. Its failure to do so is not chargeable on the owner, as he has no power to control or prevent it. He is absolutely excluded from his baggage, and the latter is secured by the application of locks and guards, and placed beyond the observation of the owner.
    The company may, as a protection against bad faith and false swearing, shield itself: First. By a return of the property, to the owner, which, with ordinary care on the part of tho company, no combination of circumstances need prevent its doing. Second. Tho character of the party is open to assault. It may be discredited, if unworthy of belief. Would a respectablo witness, for a few dollars, perpetrate a foul crime? Not often. The statements given by him will generally be entitled to entire confidence. They will often be corroborated, (as in the present case), by tho testimony of others. Perjury practiced to injure the company, may be readily exposed and punished. It is a rule as ancient as truthful, that “ for every wrong there is a remedy.” If tho rule insisted upon by the plaintiff .in error be correct, the owner can do nothing more than prove the delivery of his trunk to the company —the payment of his fare to its agent, the size and external description of the trunk, and exhibit a check, admitting the receipt of it into the hands of the company.
    This proof he can easily make. But the number and value of tho lost articles contained in the trunk, it is often impossible, and always difficult, to prove. The number, description and value of articles in a lost trunk, can not often bo proved, except by th© oath of the person who placed them in charge of tho Company, and who is most nominally their owner. Experience and observation teach this.
    The necessity for a departure from the common law rule in this particular, is too evident to be overlooked by American courts. In the case cited in Massachusetts (12 Metcalf), tho court refused to depart from the common-law rule. Our courts should respect tho decisions of tho courts of other states, but are not bound by them. A rule that is unsupported by reason, should not be adopted. The authority cited is not founded in reason or justice, and should not influence this court.
    We have demonstrated tho justice of the rule we claim, and now assume that it is sanctioned by respectable authority. Tho case of John Romand v. Arthur McGill et al., recently decided in Pennsylvania, is a case directly in point. In that case, suit was brought to recover the value of two trunks and their contents, and tried in the District Court of Allegheny county. Tho plaintiff’s counsel offered in evidence the deposition of plaintiff and his wife, to prove the articles lost, and the value of each. Among the items were valuable articles of jewelry. The depositions wore objected to, but the court permitted them to be read to the jury. The case was taken to the Supreme Court, on writ of error, and one of the errors assigned was, “ that the court erred in admitting the testimony of the plaintiff and his wife, as to the value of the articles in the trunk.” Rodgers, J., in delivering the opinion of the court, appears to recognize it as an established rule, that a party may, under certain circumstances, prove, by his own oath, the contents of a box or trunk, and says the rule “applies, with as much, if not greater force, to the wife, as to the husband.” To reject her as incompetent, the court says, “ will amount almost to a repeal of the rule, and in most cases to a denial of justice. This cace is precisely analogous to the case at bar. And the rule laid down by the learned judge, is necessary and reasonable, and we think entitled to great weight. See 3 Barr (Pa.), 451.
    *Prof. Greenleaf, of Massachusetts, a man whose legal attainments are surpassed by few in the United States, in his, treatise upon the Law of Evidence, vol. 1, p. 416, and notes, affirms the rule laid down in the case cited in Barr—the rule which we insist upon in this case.
    Story on Bailments, 3 ed. 454; Herman v. Drinkwater, 1 Greenl. (Me.) 27; Clark v. Spencer, 10 Watts (Pa.), 335; Dugham v. Rogers, 6 Watts & Serg. (Pa.) 500, and Crane v. Whitesell, 8 Watts & Serg. (Pa.) 369. These cases recognized and established the rule laid down in McGill et al. v. Rowland, and give us a clear advantage in the weight of authority. Our authorities, we think, are at least “ respectable,” notwithstanding counsel say they have never met with any “ respectable ” authority laying down the rule that we claim. The decisions of the Supreme Courts of Pennsylvania and Maine are regarded by the profession as of great respectability.
    The learned counsel of plaintiff in error assume that if the party were competent as a witness, the wife is not. They say “ her exclusion depends on a different rule; a rule of policy to prevent any possible interference with the marital relation.” In Little-field v. Rice, 10 Metcalfs (Mass.) Reports, the wife who keeps her husband’s books was held to be competent as a witness “for him, in a suit upon his book-account, to testify that she made the entries by his direction and in his presence.”
    There are other cases in which the wife may be a witness for the husband. The cases just cited in Pennsylvania are conclusive, as to her competency in a ease like the one at bar.

       See Levi Sams v. Stewart & McKibben, reported in this vol. on p. 69; 7 West. Law Journal, 448.

       See State of Ohio for use Monroe Tp. v. Geo. Williams, et al. 13 Ohio, 495.

   Caldwell, J.

In the court below, the proceeding was an action of assumpsit, brought by Cochran Fulton against the railroad company, to recover the value of a trunk and contents. The plaintiff in the court below proved, on the trial, that on February 10, 1850, his wife took passage in the defendant’s cars at Tiffin, for Springfield, having a trunk worth from six dollars to ten dollars, which contained her clothing. One witness testified that he saw one lady’s dress, and some other ^articles of clothing put into the trunk. The company delivered its check to Mrs. Fulton at Tiffin, for the trunk, and it was admitted that the trunk was not afterward delivered to her, but was lost or stolen somewhere on the way between Tiffin and Springfield. Mrs. Fulton having passed through from Tiffin on the cars, at Springfield presented her check, and demanded the trunk.

The plaintiff below having proved the above facts by other witnesses, then offered the deposition of his wife, to prove the description and value of the contents of the trunk. To the introduction of this evidence the defendant below objected ; the court overruled the objection, and permitted the evidence to be offered, to which the defendant excepted. The court gave judgment for the plaintiff for the value of the trunk, and also for the value of the contents. The contents of the trunk, as thus proved, consisted principally of wearing apparel, with the addition of a few other articles, such as are frequently carried in a person’s traveling trunk.

The only question arising in the case is, whether the wife of the plaintiff was a competent witness to prove the articles contained in the trunk, and also their value. Upon this point the decisions in the different states are somewhat conflicting.

In Massachusetts, the rule has been established excluding such evidence. In the case of Snow v. The Eastern Railroad Company, which, like the present, was a suit brought against the company for the price of a trunk and contents, the court of common pleas permitted the plaintiff to testify to the articles contained in the trunk, and also to their value. The Supreme Court of Massachusetts, on writ of. error, to the ruling of the common pleas, hold that the evidence was inadmissible, and on that ground reversed tho judgment. In Pennsylvania, there have been numerous decisions the other way. The cases of Whitesell v. Crane, 8 Watts & Serg. 369, and McGill et al. v. Rowland, are both cases against stage eompanies, for lost trunks, and in both instances the *court held that the plaintiffs were competent to prove the contents of the trunks, and the value of the articles.

The Supreme Court of Maine, Herman v. Drinkwater, 1 Greenl. 27, decided that when a captain of a vessel had converted the goods, contained in a box, which he had undertaken to ship from Liverpool to New York, in a suit against him, by the owner of the goods, that the owner was a competent witness to prove the contents of the box. The question has never been decided in this court, and the decisions in other states being conflicting, we feel at liberty to adopt such rule as to us apj>ears best calculated to promote the ends of justice.

The common-law rule, that a man shall not give evidence in his own case, is no doubt one that has its foundation in reason, and that could not, as a general rule, be departed from without being attended with pernicious results. The rule is established, not because it will tend to the promotion of j ustice, in all cases, that such a rule should exist. It can not be denied, that in many instances, a party to a suit would give the true state of facts in the case— would be able to give testimony that would be necessary to a correct decision of the matter in controversy. And if such would, generally, be the character of that kind of evidence, it would tend, in the general result, to the promotion of justice, and no rule for its exclusion could, with propriety be established. But on account of the strong temptation that selfishness and prejudice present to a party, when testifying in his own behalf, to misstate the facts, it has been thought best calculated to subserve the objects of judicial investigation, as a general rule, to exclude such evidence altogether. There are cases, however, where from the peculiar circumstances of the thing about which the evidence is to be given, rendering the testimony of the party necessary; and where, from some cause, the danger to be apprehended, from a party to a suit being a witness, being somewhat removed, exceptions have been made. As where a party to the suit, having first proved the existence of a paper, is permitted to *prove its loss, for the purpose of introducing secondary evidence of its contents. Here the property is of that kind that the loss of it would not be likely to be known to any one but the owner, and therefore the necessity of his testimony. The fact that the existence of the paper has first to be proved by other evidence, does away with much of the danger that is ordinarily to be apprehended from a party’s inclination to swear falsely for his own benefit.

Another similar example is the departure that has, almost everywhere, been made from the rule, by permitting a party to testify to his book-account of the salo and delivery of goods, performance of labor, etc. Here the convenience of business is supposed to create a necessity for a departure from the rule ; and the general notoriety of the transaction is considered a sufficient guaranty against the false claim that a party, under other circumstances, might be able, by his own oath, to prove.

In the first place, then, does the necessity exist for the evidence of the party, in a case like the present? In many cases no person but the owner will be able to give a detailed account of the contents of a traveling trunk, containing his ordinary apparel and such other articles as may be necessary to his comfort whilst performing his journey. If he is a married man, his wife, as in the present instance, will be the only other person besides himself that will be likely to know what his trunk contains, and she is excluded by the general rule, The traveler has delivered his trunk to the common carrier, who has obligated himself to redeliver it to him; but although he is able to prove, by other evidence, the delivery of the trunk, and the failure of the carrier to redeliver it> yet because he is unable to prove the contents, his remedy is merely nominal—it amounts to nothing—and that in a case too where public policy requires in a peculiar manner that this remedy should be complete. But it is said that a person should have his trunk examined before he starts on his journey, by some one who would be a competent witness. This, however, is requiring more than the most careful will perform. A person starting on *a journey docs not calculate as a thing likely to happen that he will lose his trunk; and when ho has delivered it over to be transported, it is only by the delinquency of the carrier that he does lose it. It is said, however, that if a party be pormitted to testify to the value of his own property, companies like the plaintiff in error, whose business it is to carry passengers, will be subjected to great imposition. We think this objection is imaginary rather than real. If the person be known in the community where the suit is brought, it will not be difficult to rebut any exorbitant claim that he might set up for the value of his wardrobe. The character of an individual’s wardrobe is generally about as well known among his acquaintances as that of any other part of his property. And if the party should be a stranger, a great deal of evidence could, in most cases, be obtained, that would enable a sensible jury, from their knowledge of men and things, to detect any attempted extortion. Cases might occur where a person, by his own oath, would recover more than he was entitled to; but we think that this evil is much less to be apprehended than the entire failure of justice that would necessarily arise from the'exclusion of his testimony. It is contended, however, on the part of plaintiff in error, that even if the plaintiff below in this ease, would be a competent witness to prove the contents of the trunk, his wife would not, and that the court erred in admitting her evidence. We do not see why the same rule that would admit the owner, in such a case, to testify, would not permit his wife. The same reasons would apply in the one case as in the other.

In the case in 3 Barr to which we have before referred, this question was directly presented, and the court there held that the same reasons that would authorize the husband to testify, would apply to the wife, and that her evidence was admissible. No exception has been taken, in this instance, to the character of the articles proved to have been in the trunk. We would merely remark, however, that we do not intend to carry the principle further than to such articles as are ordinarily carried in a traveling trunk.

*A majority of the court are of opinion that the evidence complained of was competent, and that the court of common pleas ruled correctly in admitting it.

The judgment of the court of common pleas will therefore he affirmed.

Hitchcock, C. J., dissented.


author: *Rannet, J.

text:
    The State of Ohio, for the use of Thomas Carpenter and wife v. John Sloane et al.
    A guardian for a minor, appointed by the court of common pleas, has no power to act or to control the property of his ward, until he has give» bond, with security approved by the court.

      Letters of guardianship, issued to him by the clerk, before such bond is given’ confer no such power, and have no legal effect whatever.
    "The issuing of such letters, under such circumstances, by the clerk, does not constitute a breach of his official bond, so as to charge his sureties.

    Error to the court of common pleas of Wayne county
    The action in the common pleas was brought in September, 1847, on the official bond, dated in May, 1831, of Sloane, as *clerk of said court, against him and his sureties. The breach assigned, in the declaration, is, that on October 24,1837, Sloane, as clerk aforesaid, issued letters of guardianship to Ralph Funk as guardian of Mary May, now wife of Carpenter, without first requiring of Funk a bond, as required by law and the order of court appointing him guardian, for the faithful discharge of his duties as such ; by virtue of which letters Funk took possession of the goods and lands of his ward, of the value of $2,000, converted the same to his own use, and died in March, 1846, insolvent, without having settled his accounts as guardian, or otherwise accounted.
    The defendants filed a general demurrer to the declaration, which was sustained, and final judgment entered in their favor.
    The plaintiff excepted to the decision of the court in sustaining the demurrer. This writ of error is brought to reverse said judgment.
    L. Y. Bierce & Dean, for plaintiff:
    Is the clerk of the court, acting as a court of probate, liable for loss arising from his neglect to take bond, as directed by the court, before issuing letters of guardianship?

      Our statute speaks of letters of guardianship in one place only-— the clerk shall be entitled to fifty cents for issuing them. If such letters are void, as claimed, it can hardly be supposed that the legislature would compel a ward to pay the clerk fifty cents for issuing them.
    The law holds every one liable for false or fraudulent representations, and is much more strict bn officers, in holding them to liability, than on private individuals. 2 U. S. Dig. Sup. 97, 478 : “ The letter of guardianship is evidence that the guardian was duly appointed.” If this is law, the doctrine that letters of guardianship, issued before bond given, are void, and that all persons must look to the appointment, and its regularity, is erroneous. 10 Ver. mont, 427: “ Letters of guardianship create a trust coupled with an interest.”
    *Strong v. Harris, 3 Humph. 451; 2 Sup. U. S. Dig. 98. Justices appointing guardians are “holdon liable for taking insufficient sureties.” 1 Swift’s Dig. 51; 1 Day, 315. In Connecticut an action will not lie against a judge for neglecting to take security of a guardian, because it is an error in judgment in a judicial proceeding. As a consequence, a ministerial officer would be holden liable; and see 14 Pick. 280; 12 Mass. 363; 2 Cow. & Hill’s Notes, 857; Swan’s Stat. 223, sec. 6 ; Ib. 162, sec. 1; 2 Ham. 409; 15 Ohio, 15; 6 Ohio, 68; Stat. 430, sec. 1; Wilcox’s Practice, 2 ed. 553.
    William Turner, for defendants:
    The law will not support this action :
    1. The clerk did not omit to do any act enjoined upon him by law. He was not required to prepare a bond or compel its execution. He was merely to receive one, when duly executed, and then file it. Vide Stat.
    2. He did no act forbidden by law.
    The court entered on their journal an appointment of guardian. In issuing letters the clerk certified that fact' and nothing more. He did not state that a bond was given.
    3. Funk never was a legal guardian.

    The appointment made, him a guardian de nomine, and had he then executed and filed his bond, he would have been a guardian de jure. The statute declares that before he shall act he shall give bond.
    4. There is no such instrument known, either to the statute or common law, as letters of guardianship. The appointment and giv
      ing bond conjoined, constitute the guardian. No certificate is required.
    It is also claimed that the suit, if sustainable at all, should have been brought first against the principal in the bond, the damages ascertained, execution issued and returned unsatisfied, before proceeding against the sureties.

        A guardian derives his power to act from the appointment and bond. Lessee of Maxon v. Sawyer, 12 Ohio, 195. Letters of guardianship need not issue. But where a guardian’s sale has been confirmed by the court, and the journal entry of the appointment of the guardian shows that a bond has been directed and securities approved, it will be presumed that the bond was executed. Ib. In Ohio the guardianship of a minor female expires, by statute, when the ward arrives at the age of twelve. A re-appointment is necessary. If, without such re-appointment, the former guardian, after the ward arrives at twelve years of age, files a petition and procures a sale of land, such sale is void. Lessee of Perry v. Brainard, 11 Ohio, 442; Este v. Strong, 2 Ohio, 451; Palmer v. Oakley, West. L. Jour. 409—Mich. Sup. Court, Jan. 1847; Campbell v. English and wife, Wright’s S. C. 119.
      See Bohart v. Atkinson, 14 Ohio, 228, where an irregular sale was held ratified by the ward receiving the proceeds of the sale, with full knowledge of the facts.

   *Rannet, J.

The action in the courtbelow was brought upon the official bond of Sloane, one of the defendants in error, as clerk of the court of common pleas of Wayne county. It is averred that on October 24,1837, one Ralph Funk was appointed guardian of Mary May, then a minor (now the wife of Carpenter), and ordered to give bond in the sum of $1,000; that without requiring him to give such bond, Sloane issued to him letters of guardianship, under the seal of the court, by virtue whereof he took into possession the property of the minor, squandered it, and finally died insolvent. A demurrer to the declaration was sustained by the court of common pleas, and the main question presented for our consideration is, whether the facts so charged constitute a breach of the official bond. By section 6 of the “act to organize the judicial courts,” passed February 7, 1831 (Swan’s Stat. 223), each clerk is required to give bond, to be approved by the court by which he is appointed, in the sum of $10,000, “conditioned that he will truly and faithfully pay over all money that may be by him received, in his official capacity, and that he will enter and record all the orders, decrees, judgments, and proceedings of said court, and faithfully and impartially discharge and perform all the duties of his said office.”

It is not claimed here, that Sloane has received money which he has failed to pay over, or that he has refused or neglected to enter and record ail the orders, etc., of the court. Has he failed to discharge any of the duties of his office, as specified in the last clause of the condition of the bond? To do so, he must have neglected or refused to do something required of him by law; or attempting to perform some duty, he must have done it so improperly or negligently as to have occasioned loss to those who had a right to rely upon his official acts. If, in any matter outside of his official duties, he injures others, he stands, like all other persons, liable to make reparation; but it can not work a breach of his official bond.

The wrongful act here complained of, is issuing letters of guardianship before taking bond. The first section of the *“ act for the appointment of guardians ” (Swan’s Stat. 430) requires the guardian appointed, “ before entering on the discharge of the duties of his appointment, in every case, to give bond,” etc., which shall be filed with the clerk of the court. There is nowhere in our law any obligation upon the clerk to issue letters of guardianship, nor any authority to do so, further than may be inferred from a clause introduced into the act regulating the fees of officers, which allows the clerk to receive fifty cents for issuing such letters. The law does not impose upon the clerk the obligation to see that the guardian gives bond. The law seems to suppose that it will be given upon the spot, and aj>proved by the court; at all events, the guardian has no power or authority whatever to do one legal act, as such, until the bond is given. It is a condition precedent to his right to act, and although the clerk should issue to him letters of guardianship, he would still have no more power or authority than before—which was none at all. When the appointment is made, and the bond given, the guardian does not require letters of guardianship to enable him to act; and if he does procure them, they can be regarded as nothing more than an official certificate of the journal entry. The clerk has no obligation resting upon him to see that the bond is given, nor has he any power whatever to constitute the appointee a guardian until the bond is given. It is therefore legally impossible that he could have come into the possession of the property of the ward, by virtue of any letter of guardianship issued to him, since such a letter would have no virtue or force whatever in it.

We can not, therefore, say that Sloane has failed to discharge any duty of his said office, so as to charge his sureties in the official bond, especially under the doctrine constantly applied in this court, and reiterated again at this term, that the undertaking of sureties is to receive a strict construction, and not to be extended by implication to cases not falling within the terms of the contract into which they enter.

It may have been improper for Sloane to have issued the letters *of guardianship until the bond was executed and filed. Whether he might not be liable to any person who could show that he had been thus misled to his injury, it is not now necessary to determine.

The judgment of the court of common pleas must be affirmed.

Hitchcock, C. J., was absent.