text:
    James Weakly, who sues for the use of Samuel Bell, v. T. R. Hall, Executor of Richard Hall.
    Where A. assigns a chose in action to B., who agrees to collect it in the name of A., to employ counsel, advance money, procure the necessary bail for the prosecution of the suit, and reimburse himself from the proceeds, A. and B. are as tenants in common of the chose, and a release by A. will, at law, discharge the cause of action.
    If the release has been made by fraud and covin between A. and the debtor,, tho only remedy of B. is in equity.

      In Ohio, there is no statute against champerty or maintenance, hut contracta founded on such considerations are void, and the law tolerates no lien, in or out of the legal profession, which will prevent litigants from compromising controversies.
    This is an action of assumpsit, from Trumbull county.
    The plaintiff declares in the first count, upon a promise by defendant’s testator to indemnify the plaintiff against a certain indorsement made at the testator’s instance and request, and for his .accommodation.
    The second and third counts are upon the testator’s indorsement of a promissory note.
    *The common money counts are added. Upon the plea -of non assumpsit,'and notice of set-off, a trial was had in the common pleas, and a verdict and judgment for the plaintiff.
    The cause being removed to the Supreme Court by appeal, leave was granted the defendant to plead puis darrein continuance, whereupon the following plea was put in :
    “And now, at this day, that is to say, on November 10, A. D. 1843, next after September 9, A. D. 1843, from which time this cause was continued until the next term of said court, with leave to the said defendant to plead puis darrein continuance, comes the said -deiondant by his attorneys, and says that the said plaintiff ought not further to have or maintain his aforesaid action thereof against -him, because, he says, that after the commencement of this suit, ¡md after the joining of issue therein, to wit, on August 15, a. d. 1843, at, etc., the said plaintiff, by his certain writing of release, -sealed with his seal, and which the said defendant now brings here into court, the date whereof is the day and year last afore-said, did release and discharge the said defendant, as such executor as aforesaid, from all debts and demands of every name and nature which the said plaintiff then had, or could allege against the said defendant, as by the said deed or writing of release, refer-ence being thereunto had, will fully appear, and this the said defendant is ready to verify ; wherefore, he prays judgment, if the said plaintiff ought further to have, or maintain his aforesaid action against him.”
    To this plea, the plaintiff replied as follows:
    And now comes the said Weakly, for the use of Samuel Bell, ¡and as to the plea, puis darrein continuance, of said defendant, wherein he alleges the making and delivering to him, by the said Weakly, of a release and discharge of all debts, suits, demands, etc., says, that, by reason of anything set forth in said plea, he, the said Weakly, for the use of said Bell, ought not to be barred from having and maintaining the aforesaid action against the said defendant, because, he says, that long before the making of said supposed release and discharge *set forth in said plea, and long before the commencement of this suit, to wit, on May 1, A. d. 1840, at, etc., the said Weakly, for a valuable consideration, assigned, transferred, and delivered, to the said Samuel Bell, the «aid claim set forth in the plaintiff’s declaration, and then and there authorized and empowered the said Bell to sue and collect said claim in the name of the said Weakly, for his, the said Bell’s use and benefit, and to hold the avails thereof for his own use, and as security for all moneys paid, and costs, charges, and expenses incurred and to be incurred, by the said Bell i'n prosecuting and collecting said claim. And the said plaintiff, for the use as aforesaid, further says, that the said Bell, after the assignment and delivery, as aforesaid, of said claim, long before the making of said supposed release and discharge as aforesaid, to wit, May 1, a. d. 1840, did emplo3r Tod '& Hoffman as his attorneys to commence suit on said claim for his use and benefit, and to procure bail for the costs thereof; and his said attorneys did commence this suit on said claim in the name of the said Weakly, for the use of the said Bell, against the said defendant, in the court of common pleas of said county, and which said suit was appealed by said defendant to this court; and the said plaintiff, for use, etc.; further says, that in and about the prosecuting of this suit, and former suit on said claim, and in and about collecting said claim, he has expended divers large sums of money in the payment of costs of former suit, in taking depositions, and in paying witnesses and attorneys ; and he has become liable to pay the costs of this suit, and has become liable, and has agreed to pay his said attorneys for services in suing and prosecuting suits on said claim, and for other services in and about the collecting of said claim, amounting in all to a large sum of money, to wit, the sum of |260, all of which sums of money have been paid, and said expenses, charges, and liabilities, incurred by the said Bell, long before the making of the said supposed release by the said Weakly, of all which the said defendant, long before the making of said supposed release, to wit, on August 1, a. d. 1840, had notice. *Yet, the said defendant, well knowing that the said Boll bad an interest in said claim; that the same was, and is sued for his use and benefit; that he had paid a large sum of money, and incurred the expenses and liabilities as aforesaid, and had a lien on said claim, and on the proceeds thereof, as well to indemnify him for his trouble, expenses, and liabilities incurred as aforesaid, as to pay him the consideration given for said claim, did, by his attorney, E. Newton, at the time stated in said plea, secretly, covinously, and fraudulently, and without the knowledge or consent of the-said Bell, or his attorneys, procure said pretended release, set forth in said plea, from the said Weakly, all which the saicV plaintiff, for the use of the said Samuel Bell, is ready to verify; wherefore, he prays judgment, and his damages by him sustained on occasion of the non-performance of the said several promises and undertakings in the said declaration maintained to be adjudged to him,” etc.
    To this replication the defendant demurred, and assigned as eause:
    1. The said plea shows that the said Bell had not the exclusivo interest in said claim, that the same was not transferred to him absolutely, but that he was prosecuting the same for hire, compensation to be made from the avails of the suit.
    2. The said plea contains- distinct and independent matters of defense in this, that it sets forth that the claim on which the action is based, was previous to the commencement of the suit assigned to the said Samuel Bell, and also sets forth that the said release was obtained by fraud.
    3. The fraud charged in said replication is not charged to have
    been committed upon the plaintifT in the suit, but upon Samuel Bell,, who is not claimed to have any other than a contingent interest in the case. *
    Wade & Rannet, in support of demurrer:
    So far as regards the formal objection to the replication, that it. is double, we suppose there can be no doubt. This difficulty, however, may be removed by an amendment.
    *Wo contend that the replication is bad in substance:
    1. It may be stated as a general rule that pleadings at common law must be predicated upon the legal rights of the parties. An equitable right, however perfect, can not lay the foundation of a, suit at law, nor can an equitable right be interposed to arrest the course of a legal title. 1 Chitty’s Plead. 1, note a; 1 Chitty’s Prac. 6, 7; Foreman v. Jervis, 5 Barn. & Adol. 836.
    2. The replication in this case abandons the legal plaintiff upon the record, and introduces a person not legally a party to the suit.
    3, The facts set forth' do hot show an assignment of the whole interest in the claim to Bell, but a mere lien upon apart for costs, ■etc. He does not, therefore, stand upon the ground of an assignee to whom the whole interest is assigned.
    Peter Hitchcock submitted an argument on the same side.
    Tod & Hoffman, and Hutchins, contra:
    Without looking at the replication with a technical eye, but •merely at the substance of it, and its sufficiency as to matter, we ■refer to authorities as follows, viz:
    Courts of law will take notice of, and protect, the rights of assignees against all persons having either express or implied notice of the trust, or assignment of choses in action. Johnson v. Bloodgood, 1 Johns. Ch. 51; Wardell v. Eden, 2 Johns. Ch. 121; S. P., Van Vechen v. Graves, 4 Johns. 403; Littlefield v. Story, 3 Johns. 425; Anderson v. Van Allen, 12 Johns. 343; Briggs v. Dorr, 19 Johns. 95.
    The assignee of a chose in action can not defeat a suit brought in his name by his assignee, by a release to the defendant, who ■has notice of the assignment. Andrews v. Beecker, 1 Johns. Ch. 411; S. P., Raymond v. Squire, 11 Johns. 47.
    And to a release pleaded, the plaintiff may reply the.assignment, and that the defendant had notice of it. Ib.
    *So to a plea of payment. Littlefield v. Story, 3 Johns. 425. See also 12 Johns. 484; 15 Johns. 405; 16 Johns. 51; 20 Johns. 140, for decisions protecting the rights of assignees 'of choses in action at law.
    The law in Now York and Massachusetts seems to be well settled on this point; and Swan, in his treatise, refers to those decisions as containing the law.
    Where any one has the entire beneficial interest, or only an ■agency coupled with an interest, suing for his use, in order to protect his lien, it is out of the power of the assignor, or legal owner of the chose in action, to deal with the defendant, and defeat the beneficiary. If he could do so, law would be inadequate to project his rights; whether he owns the whole or only a part, whether he has purchased and paid for the equity, or only has a lien by reason of advancements made in collecting, coupled with his authority to collect, it is all the same. He has an equity in the proceeds, in whole or in part, that should be protected. The nominal plaintiff in this case is a non-resident of the state, and may be irresponsible. The defendant had notice of all that is alleged in the replication. His demurrer admits it, nor can he tamper with the nominal plaintiff without the consent of the beneficiary, and thereby legally defeat the beneficial plaintiff.
    The defendant says, in his demurrer, that the beneficiary does not claim tho whole equity; that he has not an absolute suit, only contingent. Well, what matters it? An interest in half should be protected as well as interest in the whole. Why not? Can the defendant complain? He knew the “cestui que use” had a. lien. He knew the attorneys had fees. He knew they had paid large bills of costs in pursuing the claim. He knew they were liable for'eosts. He knew they had a lien. It was his duty to-come and settle with the beneficiary, or with him and legal plaintiff together. He ought not to be permitted to go to the legal plaintiff, behind the back of those having liens, paying him and getting his release. This release can not affect the “ cestui que use.” It is no defense as to him, nor as to the lien of the attorneys, even for *their fees. To protect the beneficiary in such cases, there seems to us to be no other way than to require-the defendant to pay the claim-, if it all belongs to the assignee, or to pay so much as belongs to the assignee. If the assignee, or “ cestui que use” only claims a part,, then such part should be the rule of damage, the release being shown as defense to that part of the claim belonging to the legal owner. The defendant should first pay the lien on the claim and pay the costs, and keep the “ cestui que use ” clear of costs. The very fact of the defendant paying the legal plaintiff and taking a release, is evidence that the plaintiff had a right to recover; and hence the costs should not be thrown onto the beneficial plaintiff.
    If this could not be done, then judgment, generally, should go for the plaintiff, and the defendant should be left to resoz-t to the legal plaintiff, with whom he dealt, behind the back of the assignee.
    The causes of demurrer are not consistent with each other. Demurrant says that plaintiff does not claim full interest. Then, again, that he claims an assignment of the claim; says the replication contains two distinct matters, viz: assignment, then fraud;, but says again, that the fraud charged is not on Weakly, but on Bell.
    The truth is, the replication states exactly the interest of Bell, and how that interest is attempted to be interfered with ; and it, all taken together, constitutes his answer to the plea of release.
    1. His interest, in fact, is just this, he took the claim to collect,, to employ attorneys, pay the expense, and collect, and to have-$100 out of the proceeds. Second suit was commenced, but inability to get depositions, etc., compelled a discontinuance, and costs were incurred and paid by attorneys, and Bell assumed to pay them. The claim sued the third time for Bell’s use, deposi tions taken, paid for, attorneys’ fees incurred to large amount as stated. Newton, attorney for defendant, knew this; the replication charges this notice to Newton, and then says, making fraud the gist of the replication, that Newton secretly got the release, without the knowledge or consent *of Bell, or his attorneys. Does this amount to duplicity? The last allegation barely rebuts the conclusion that the release was obtained by consent, and knowledge of Bell.. We think the replication is not double. We think it good in substance, so far as Bell is concerned. The question recurs, ought he to be protected in law against the after actii of the assignor, or legal holder of the chose in action? The law seems to be clear that he ought. This case is a proper one for the exercise of the rule.
   Wood, J.

The question raised by the pleadings is, whether the replication avoids the effect of the release set up in bar of the action, in the special plea, and therefore shows a right of recovery.

It is by no means our intention to shake tho well-established principle, that a court of law will protect the interest of the bona fide assignee of a chose in action, after notice to the debtor of the assignment. The rule is convenient, and necessary in the administration of justice, to secure parties against fraud and circumvention.

What, then, is the case made by the replication? It is this - Hall was indebted to Weakly in a claim of many years’ standing. For some reason he does not choose to prosecute it himself, and he assigns it over to Bell, not a lawyer, who agrees to collect it in Weakly’s name, to employ counsel, advance money, procure bail, etc., reimburse himself tor his allowances from the proceeds when collected, and receive a portion of the avails for his compensation. The averment is that advances had been made, and liabilities incurred to a largo amount, that Bell had a lien on the claim assigned to him, of all which premises, Hall had notice ; and that alter such notice, in fraud of Bell’s rights, Hall procured the release from Weakly.

While the replication thus attempts to avoid the release sot up in the special plea, it show clearly there was no absolute transfer of tho entire interest in the chose to Bell. The extent of his interest was to depend on circumstances, limited by his allowances and liabilities, and his share of the claim.

*Weakly and Bell, therefore, were tenants in common in this chose in action against Hall, as between themselves. Each had a distinct interest, and there was, therefore, something which Hall’s release could operate upon and discharge, notwithstanding this assignment to BolL and notice to Hall. It would seem to follow that Bell could no longer pursue Hall at law, in Weakly’s name, for Weakly’s rights are all absolutely discharged by the releaso. He can not sue at law in his own name, because tho chose in action is not negotiable, and his remedy, if any, must be in equity.

It is insisted, moreover, by counsel, that the assignment by Weakly to Bell shows a case of champerty, and is therefore void. ■Champerty and maintenance are offenses at common law, punishable by fine and imprisonment. The English and American courts have considered agreements founded on such considerations as champerty or maintenance, as against sound policy, and void. Key v. Vattier, 1 Ohio, 132.

Champerty is an agreement to prosecute at one’s own risk and expense, and to take a part of the thing received in compensation. Tho common law discourages officious intermeddling in the litigation of others, as it clearly ought. In some of the states they have statutes passed to prevent it, in others not; but where no statutory regulation exists, the common law is universally holdon to prevail, as imported by our ancestors, and applicable to our local circumstances; and Bell, by the agreement set out in the replication, would seem to be within its provisions.

It is unnecessary, perhaps, to say anything in reference to the lien which is set up in the replication, and which, it is insisted, ■could not be discharged by the release of Weakly to Hall. But wo take occasion to say that the law of Ohio will tolerate no lien in or out of the profession, as a general rule, which will prevent litigants from compromising or settling their controversies, or which, in its tendencies, encourages, promotes, or extends litigation. We think the replication is bad, and^he demurrer is sustained. Judgment for defendant.


source: Caselaw Access Project

author: *Read, J.

license: Public Domain

text:
    *The State of Ohio v. Rowland Johnson.
    If, in the condition of a recognizance for a person to appear and answer a criminal charge, the time or place of appearance be uncertain or ambiguous, the recognizance is void.
    If, in a declaration on a recognizance, the assignment of breach be so narrow as not to exclude the possibility that the condition was performed, the declaration is defective.
    This was an action of debt from Cuyahoga county.
    The plaintiff counted, “for that whereas heretofore, to wit, -on July 30, A. d. 1842, at Cleveland, in said county, .the said defendant had been arrested and brought before one Isaac F. Benedict, then and there being one of the justices of the peace of the township of Cleveland, in said county, duly charged on the oath of one Peter P. Perry with having committed an assault and battery on the person of the said Peter P. Perry, to wit, at -Cleveland, aforesaid, on July 20, a. d. 1842. And, whereas, .the said Isaac E. Benedict, being such justice of the peace as ■aforesaid, having duly examined into the truth of said charge, so made against the said defendant as aforesaid, then and theref to wit, on the said July 30, a. d. 1842, at Cleveland aforesaid, required the said defendant to enter into recognizance unto the said State of Ohio, in the sum of $150, conditioned that the said defendant should appear before the then next criminal court of common pleas, on the first day of the term thereof, to be holden Id the city of Cleveland, in and for said county, to answer the said charge of assault and battery on the person of the said Peter P. Perry, and not depart said court without leave. And the said plaintiff avers that the said defendant, then and there, to wit, on the said July 30, a. d. 1842, personally appeared before the said Isaac P. Benedict, justice of the peace as aforesaid, and then and there acknowledged himself to owe the State of Ohio the sum of $150, to be levied of his goods and chattels, lands and tenements, if default should be made in the condition following, to wit, that *the said defendant should appear before the then next criminal court of common pleas, on the first day of the term thereof, to bo holden in the city of Cleveland, in and for said county, to'answer said charge of assault and battery on the person of the said Peter P. Perry, and not depart the court without leave, as by said recognizance; and the record thereof, in the said eourt of common pleas, remaining and ready here in court to be shown, will more fully and at large appear. And the said plaintiff avers that the said defendant did not appear before the said court-of common pleas at the term thereof, holden in Cleveland aforesaid, next alter the date of said recognizance, and to which said recognizance was returnable, as by the terms of said recognizance he was bound to do; but, being then and there solemnly called to come into court, and answer unto said charge of having committed an assault and battery upon the person of the said Peter P. Perry, as by the terms of said recognizance he was bound to,, came not, but made default, by reason whereof, and of the premises, it was then and there considered by said court of common-pleas that the said recognizance of the said defendant be and the-same was then and there declared forfeited, as by the record of said forfeiture in said court of common pleas, remaining and ready here to the court to be shown, will more fully and at large-appear; whereby, and by reason of the premises, the said defendant became liable to pay to the said plaintiff the said sum of $150, in said recognizance mentioned, whenever thereunto afterward requested ; yet the said defendant has not paid the said sum ©f money nor any part thereof.”
    The defendant demurred.
    F. T. Backus, for the state.
    D. Parish, Payne & Wilson, for defendant.
    Arguments were not furnished to the reporter.
   *Read, J.

This ease was reserved to determine the constitutionality of the act passed February 13, 1839, authorizing a quorum of the judges of the court of common pleas of the county to hold special sessions for the transaction of probate business, and the trial of all criminal offenses, the punishment of which is not capital, and the granting of licenses, etc. There is reason to entertain much doubt whether this act is constitutional.

Section 4 of the third article of the constitution confers complete criminal jurisdiction upon the judges of the Supreme Court and courts of common picas, in such eases, and in such manner as may be pointed out by law. In all matters of law and equity, section 1 of the third article of the constitution confers jurisdiction upon the Supremo Court, courts of common pleas, justices of the peace, and such other courts as the legislature from time to time may establish. In civil matters the legislature is, by the constitution, authorized to confer jurisdiction, not only upon the courts specified in the constitution, but upon such courts as the legislature may from time to time establish; but in criminal matters complete jurisdiction is conferred upon the judges of the Supremo Court and courts of common pleas, in such cases and in-such manner as may be pointed out by law.

By what authority, thon, can the legislature confer criminal-jurisdiction upon any court they may see proper to create?

Will it be contended that the constitution, conferring complete criminal jurisdiction upon the Supreme Court and courts of common picas, does not forbid the legislature from conferring it upon other courts? This would violate the well-established rule of construction, that where the constitution confers the power upon one tribunal it forbids ils exercise by any other.

But if the word “complete” does not, in the sense it is used in the constitution, mean exclusivo, and other courts may be created for the trial of criminal cases, why do not such courts have complete jurisdiction as well as the supreme and courts of common picas? The exercise of a power conferred would *bo complctc within the limit of its action. Hence the constitution would read, by this construction, that complete jurisdiction shall be conferred upon all courts the legislature may establish for the-trial of crimes and offenses, and the legislature may create such courts as they may see proper for the trial of -criminal offenses.

But it may be said the jurisdiction of the supreme and courts-of common pleas is complete in such cases as'may bo pointed out bylaw; but the fact that they have only jurisdiction in such cases as are pointed out by law, does not confer a power upon tho legislature to create other courts not named in the constitution.

The courts have no power to declare a crime; they only have power to punish crimes defined and declared by law. But if the legislature may create special courts for the trial of criminal offenses, there is no constitutional guard against the creation of new .and strange tribunals, to which the people are unaccustomed, for the determination of questions affecting reputation, liberty, and life. And times of high political excitement and religious intolerance may arise, when the old, long-established, and well-known constitutional courts will be the best, if not only, safeguard of tho citizen ; and the power to create new courts for the punishment now crimes would be at the hazard of all right.

But this question, grave and important as is, wo do not now pretend to decide, as the statute creating this court has. been repealed, and as there are other points which must determine this ease.

The declaration avers that the defendant was recognized to appear before the next criminal court of common pleas.

The assignment of the breach is, that the defendant did not appear at the next court of common pleas. Non constat that ho did not appear at the next criminal court of common pleas. Tho breach assigned does not meet the condition of tho recognizance. There is no such court as the criminal court of common pleas. But suppose we say tho criminal court of common pleas means the special session of the ^common pleas, as specified in the statute creating such court; still it does not appear but that tho recognizance was forleited at the general session of the court of common pleas. It can not be contended that, if the defendant was recognized to appear at the special session, that he was bound to appear at the general session or forfeit his recognizance. All that he is bound to do is to comply with the letter of his recognizance,becauso a recognizance has no spirit or power beyond its letter. If the condition of the recognizance is impossible to be complied with — as requiring an appearance before a court that has no existence, or ambiguous, leaving it doubtful before which ■of two courts the defendant shall appear’ — the recognizance is ■void; or, at all events, if the condition of the recognizance requires the party bound to appear before either one of two courts, the declaration should show that the partyappeared before neither.

Hence there is-an ambiguity in the condition, of the recognizance, not helped by averment; and the breach assigned is too narrow to exclude the possibility of the condition having been performed. Demurrer sustained.


author: Lane, C. J.

text:
    *Samuel Carey’s Administrator v. The Administrator of Clark Robinson.
    "Where non-residents are within the saving clause of the act of limitations of ■ 1810, the statute does not begin to run until their death, and after their death, their heirs may commence suit within the period limited.
    Hazlet and others v. Critohfield and others, 7 Ohio, 153, pt. 2, affirmed,
    lessee of Whitney v. Webb and Westenhaven, 10 Ohio, 513, explained and' qualified.
    This is an action of debt from Geauga county.
    There are three counts in the declaration. The first is upon a judgment; the second is upon a sealed note, executed by ihe defendant to Samuel Carey, on September 19, 1817, for the sum of $630, with interest, to be paid in four payments, as follows: $166 on May 1, 1818; $100 on May 1, 1819.; $89 on May 1, 1820; $275 on May 1, 1821. The third count is for goods sold, etc.
    To the second count the defendant pleaded the statute of limitations, that the cause of action did not accrue within fifteen, years.. The plaintiff replied that at the time the cause of action accrued, Samuel Carey was residing in the State of New York;. that the defendant there made and executed the sealed bill; that the said Samuel Carey, from said September" 19,1817, continued to ■ reside beyond sea to the time of his death, on January 1, 1834, and was never within the State of Ohio; and that this suit was commenced within fifteen years from and after the death of the said Samuel. To this replication the defendant demurs.
    Suit was commenced on April 15, 1838, since which time Clark Robinson, the original defendant, died, and his administrator has-been made defendant.

      Perkins and Osborn, for defendant, in support of the demurrer:
    The replication does not aver any disability in the plaintiff, but only in his intestate. *The demurrant claims the law to be that the saving in the statute only operates in favor of the person entitled to it at the time the action accrued. The plaintiff insists he has fifteen years after the death of that person.
    This question has already l’eceived two solemn, well-considered decisions in this court, both of which are.in favor of the demur-rant; and we are accustomed to consider that reported decisions •settle a question so that we may repose on an established principle as a rule of civil conduct. The cases to which wo refer are Whitney et al. v. Webb et al., 10 Ohio, 513, and Ridley et al. v. Hettman et al., 10 Ohio, 524.
    The disability which entitles a party to the saving of the statute must exist when the right of action accrues, and successive dis.abilities do not save. Demarest v. Wyncoop, 3 Johns. Ch. 3; Griswold v. Butler, 3 Conn. 227. In this case the father was a lunatic, and died, leaving minor children who claimed the saving. 1 Swift’s Dig. 164; 5 Cruise, 221. Now if the doctrine contended for by the plaintiff prevails, either these authorities and a host of like ones must be disregarded, or else the court must establish an arbitrary rule entirely outside of the statute. For if, at the death • of the person to whom the action accrues, there still remains a right in his heir or administrator; then if the heir or administrator is under disability, he will have fifteen years after his disability shall be removed, and so on, ad infinitum, unless the statute somewhere fixes a limitation. Our statute provides no saving in favor of the heir or administrator, but only in favor of the person to whom the action accrued.
    The act of 1810, 1 Chase, 655, governs this case, and provides “that all actions of covenant or debt, founded upon any specialty under hand and seal, shall be sued or brought within fifteen years next after the cause of such actions or suits.” The time of “ the cause of such action” is no doubt the time when the defendant was first liable to action. Kerns v. Schoonmaker, 4 Ohio, 331.
    As more than fifteen years had elapsed no person bad, at the time of the institution of this suit, any right to sue unless *by virtue of some saving clause in the statute. This brings us to in■quire what is the saving applicable to this caso? And it here follows : “Provided, that if any person or persons, who are or shall be entitled to have, sue, or bring any suits, action or actions, as aforesaid, shall be beyond sea at the time when any suits, action or actions, may or shall have accrued, then every such person or persons shall have a right to have, sue, or bring any action or actions aforesaid, within the time hereby before limited in this act, after such disability shall have been removed.” As before: “ The time when any suits may have accrued ” must have relation to the time when defendant became liable to action. The saving, then, is in favor of the person to whom action first accrued, and provides that every such person, i. <?., the same person may bring action after “such” disability; that is, the same disability shall be removed. There is no saving in favor of any person except the very individual who is under disability at the time the defendant became liable to action.
    The plaintiff, we judge by the framing of his replication, has drawn it from English precedents, based on the English statutes. In the saving clause of the English statute, and also of the New York, Massachusetts, and Connecticut statutes, there is a provision for action by heir, etc., a certain number of years after the death of the person to whom the action accrued. In our statute there is no such saving. Our statute is substantially copied from the English act, and this clause being left out furnishes additional argument against the replication. The difference between ours and the English law having been overlooked by the plaintiff, he has replied that the action was brought within fifteen years after the death of the person to whom the action accrued, and at the same time shows that more than fifteen years has elapsed since the action accrued.
    Our law, very well in its saving, omits the provision in favor of the heir, etc., after the death of the ancestor, because, unlike the English statute, in its body the words “descended or fallen ” are omitted, and the operation of the law is to bar all ^persons after fifteen years from the time the action accrued. 10 Ohio, 520, 521.- The omission of the words “or death” in our law, which is also to be found in the English, makes the statute still more restrictive. Ib. 522. And the pei’son to whom the action accrued being dead, and fifteen years having expired, the plaintiff is barred.

      P. Hitchcock, for plaintiff, contra:
    It will be seen, from the statement, that the cause of action accrued in May, 1821, or rather, that the last installment on the sealed bill fell due at that time. And at the time of the execution of said bill, at the time the several payments fell due, and from the first period up to the time of his death, in 1834, the obligee was beyond sea, and at no time, within that period, within the State of Ohio. He died in 1834, and the suit was commenced four years thereafter. '
    The question raised for the consideration of the court is, whether this action is barred by the statute of limitations of January 25, 1810, the act in force at the time this cause of action accrued. By that act it is provided, among other things, “that all actions of covenant or debt, founded upon a specialty, under hand and seal, shall be sued or brought within fifteen years after the cause of such actions or suits.” This action was not brought within fifteen years from the time the cause of action accrued. But the statute contains the following proviso: “That if any person or persons who are, or shall be, entitled to have, sue, or bring any suit, action, or actions, as aforesaid, shall be within the age of twenty-one years, insane, feme covert, imprisoned, or beyond sea, at the time any suit, action, or actions may or shall have accrued, then every such person or persons shall have a right to have, sue, or bring any action or actions aforesaid, within the time hereby before limited in this act, after such disability shall have been removed.” Chase’s Stat. 655. This proviso is substantially the same as that in the limitation act of 1804, which by this was repealed with a saving clause. We supposo the *right of action in the case before the court is saved by this proviso, and that this action is well brought, having been commenced within fifteen years after the disability of the intestate, which existed at tho-time the cause of action accrued was removed. As to the terms' “beyond sea,” as used in this statute, the court have always held it to bo equivalent to out of the state.
    We suppose there would never have been a question raised as to the right of the plaintiff to recover under the pleadings in this ease, but for the decision of this court as reported in 10 Ohio, 513, of the ease of Whitney v. Webb and Westenhaven. It is supposed, and unquestionably it is true, that, by that decision, a new principle was introduced as to the construction of our statutes of limitation. Before that decision, the uniform course of decision had been the same in this state as it'still is in Kentucky. Cumulative or successive disabilities were allowed, as corning within tho proviso of tho statuto. Thus, for instance, if a right of action accrued to a feme sole, and she died, leaving an infant heir or heirs, the statuto was held not to commence running until tho heir arrived at full ago. Or, if a right of action accrued to a person who was a non-resident, or beyond sea, and he should die, leaving heirs who were also non-residents, tho statute would not commence running until ho or they, who had the right of action, cama within tho state. Disability was added to disability, until tho right vested in some person who was not within tho saving clause of tho statute. And I never hoard tho propriety of this course of decision questioned, until tho case of Whitney v. Webb and Westenhaven was presented for consideration. I think that two members of the court, at least, will bear mo witness, that this statement is correct. Such, as before remarked, I understand still to bo the law in Kentucky; but in this I may be mistaken.
    In this state tho principle has ever been held, that when the statute commences to run, it continues, although there should subsequently be a disability in one in whom the right of action might bo vested. As, for instance, a right of action accrues *to a feme sole, and she becomes covert; as tho statuto commonccd running while she was sole, i.t continues to run, although by her subsequent intermarriage, she is disabled to sue. In this respect our decisions have been different from those of Kentucky. In the case of Macbir v. May, 4 Bibb, 44, it was holden that, “if the statute begins to run against the ancestor, but, by his death, the land descends to his heirs, who are infants, the statute does not run on, but the infants shall have tho time allowed by tho statuto, after arriving at full age.” This is a doctrine which has never been adopted in this state.
    When the case of Whitney v. Webb and Westenhavon was presented to the court, tho propriety of the former course of decision was questioned, and eventually a new rule was adopted. Tho action was ejectment, and the case was this: The defendants were in possession under a deed from Farmer, who derived title under Ephraim Cutler, and had been in possession from«-1805. Tho plaintiff derived title from Manasseh Cutler, who, on July 2,1792, conveyed the land in controversy to Elisha Whitney; who devised the lands in fee to Eunice Whitney, and died on February 22, 1807. Eunice Whitney died, intestate, on April 28,1819, leaving the lessors of the plaintiffs her heirs at law. Their title upon the face of it was the better legal title. The suit was commenced on November 4, 1839. Neither Elisha Whitney, Eunice Whitney, nor the lessors of the plaintiff, were ever within the State of Ohio.
    It will be seen, from this statement, that the right of action accrued to Elisha Whitney in his lifetime, for the defendants were in possession as early as 1805, and he did not die until 1807. From the time of his death to tho commencement of this suit was thirty-nine years; and from the time of the death of Eunice Whitney, who next succeeded him, to the commencement of the suit was more than twenty years. The act of limitation by which tho case was governed was the act of 1804, which-required actions of -ejectment to be commenced within twenty years.
    *The defense relied upon was tho statute, and it was insisted that tho disability attached to the person to whom the right of action first accrued, and that disability could not be added to disability, otherwise it might so happen that the statute of limitations would run forever; that there would never be a bar. Hence it was further insisted that when Elisha Whitney, to whom the right of action first accrued, died, the disability was removed, and that tho action not having been brought within twenty years from that time was barred. After much consideration and examination the court came to that conclusion and decided, that “the disability of '*beyond sea” in the act of limitations is removed by death, and the heir, -whether himself under disability or not, is barred of his ejectment unless he sue within twenty years after the death of his .ancestor.”
    This was decided by the court, and it was all that was decided. And in making this decision, I thought at the time and still think, we wore verging more nearly to legislation than a court ought generally to do. But it seemed to be necessary, and I think it was right.
    It will be seen by examination that the English statute is materially different from ours. By the English statute it is provided, “ that if any person or persons shall be entitled to such writ or writs, or shall have such right or title of entry, and shall bo, at the time the said right or title first descended, or accrued, under or within tho age of twenty-one years, feme covert, non compos mentis, imprisoned or beyond seas, that then such person or persons, and his and their heir and heirs, shall, or may, notwithstanding the said twenty years be expired, bring his action or make his entry as he might have done before this act, so that such person and persons, or his or their heir or heirs, shall, within ten days next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death, take benefit of and sue for the same, and at no time after said ten years.”
    The statute of fines contains a similar exception in favor of persons under disabilities, allowing such persons five years to *enter after the removal of their disabilities. 1 Law Lib. 11, n. 2.
    It will be seen that by the express provisions of this statute the disability attaches expressly to the individual to whom the right “first” descended or accrued, and that by the English statute “death” of the party removes the disability. Neither of these words are contained in oür statute, but we were compelled, in effect, to interpolate them to conform our decisions to the English.
    But there is still another difference in the statute. The English statute gives ten years after disability removed within which to commence the action; our statute gives the same length of time after disability removed as must run where there is no disability, in order to bar the-action. Notwithstanding this difference, however, the court did decide as before stated, and such is the marginal note ot the case.
    But it is said that the decision of the court, as expressed by the learned judge who gave that decision, goes farther than this, and sustains the doctrine that if the number of years necessary to constitute a bar has run before the disability is removed, the action is barred upon the removal of the disability, especially if the disability is removed by death. It can not be so if the disability is removed in any other way than by death, because the statute expressly provides that time shall be given after the removal of the disability equal to the time that must have run had there been no disability. And it seems to me preposterous to say that if a man lives and comes into the state, he shall have twenty or twenty-one years to prosecute an ejectment, but if he dies without coming into the state, his heirs are thereby barred from having the action. ,In such case it is the death of the ancestor which operates as a barj not the statute of limitations.' Such was not the intention of the court, nor could it have been the intention of the judge.
    We are willing and free to admit that the opinion is not as clear and lucid as tho opinions of that learned judge usually were, and ho does seem to carry tho idea that where the disability is removed by death, the case shall be considered as if *no disability had existed, and the reason assigned is that the disability is a personal privilege.
    As before remarked, the court decided no such thing, as is well known to two of the present members; and if this case is to bo considered at law, that law was not settled by the four members of the court, but by one of its members. And what would be the consequence of accepting this opinion of the justice as law? Take a simple case: A right of action accrues to a feme covert — it may be an action of ejectment; she lives after the right of action accrued twenty-one years, and died still being covert. At her doath the heirs can have no action; it is barred. By what law? Not by tho statute of limitations, for by its express provision that does not commence running until she becomes discovert. If barred at all, it is barred by death.
    Take another case: A cause or right of action accrues to an insane man. He remains insane fifteen or twenty years, as tho case may be, and dies. By his death tho right of action is taken away; his heirs lose the inheritance. Had he recovered his health and lived he-would have had twenty years within which to receive the inheritance and transmit it to his heirs; but as ha died before his disability was removed it is gone, and neither his heirs nor personal representative can enforce his rights. And all this because the word heirs is not contained in the statute; at any rate this is the most plausible reason assigned. I repeat, this court never did recognize a principle as being law that would be. fraught with such consequences, and I trust never will.
    And now I beg leave to call the attention of the court to tho authorities which ai’e cited to sustain this opinion. The first case cited is the case of Stowel v. Zouch, Plow. 458. That case decides this: “Disseizee levies a fine with proclamation; disseizee dies after throe years, and within fivo years bis heir, being within age, who, after the five years expired, comes of full ago, and within a year after his full age enters, and adjudged that his entry was not lawful; for here the five years given by tho statuto, 4 Hon. 7 (the statute of fines), first attached *in his ancestor; and in such case, being once commenced, there shall not bo any intermission or interruptions of them, but the heir, though within age, must claim within those five years, or he shall be barred, and he shall not have other five years after his full age.”
    Now this case, although a very long one, settles no other point than this: that when the statute of limitation begins to run there shall be no intermission, but it shall continue to run, a principle which has always been recognized as law in this state.
    In the case of Doe v. Jepson, 6 East, 80, which is next quoted, the marginal note is this: “Where the ancestor dies seized, leaving a son and daughter, infants, and on the death of the ancestor a stranger enters, and the son soon after went to sea and was supposed to have died abroad within ago, held that the daughter was not entitled to twenty years to make her entry after the death of her brother, but only to ten years, more than twenty years having •elapsed in the whole since the death of her brother.”
    The case settles the principle that disabilities are not cumulative, and can not be added one to another, precisely the principle which this court intended to adopt and settle, and did, in fact, settle in the case of Whitney v. Webb and Westenhaven. But the English statute, as we have soon, attached to the person to whom the right first accrued, and by the same act the statute continued to run but two years alter the disability removed, provided ten years had transpired after the right accrued, and before the disability was removed. Our statute, or rather the statute of 1810, gives twenty-one years after the disability is removed. But this case does not in the least conduce to establish the principle that, if the twenty years has run before the disability is removed, the law operates upon the removal of the disability.
    The ease in 4 Mass. 182, only settles the question that whero two disabilities center in the same person, the one which existed at the time the right accrued is the one which is protected; as, for instance, a right of action accrues to a female ^infant, and she marries; her rights as a feme covert are not protected by the statute. The statute commences running as soon as she arrives of ago. In this respect the law is different in Massachusetts from what it is in England, for in England the disability would continue qu account of the coverture.

      The case in 2 Conn. 27, in principle, is like the last quoted. The court decide that the saving of the statute of limitation, regarding the right of entry into lands, applies only to such disability as existed at the time the right of entry accrued, and not to any supervenient disability. The case was one where the right accrued to a female infant and she marriod during her infancy. In that case the court say, “It has been long recognized as a principle, in this state, that a statuto of limitations never begins to run during the existence of a disability; though, when it begins to run, it will not be interrupted by an intervening disability.” And so I say it has always been held in this state, until the doctrine was broached in the opinion which I am examining, that, if tho party laboring under the disability died during that disability, tho statute commenced running from the time tho right of action accrued. It did not run during the life, but at death it run both ways, both prospectively and retrospectively.
    But the case principally relied upon by the judge, as sustaining his opinion, is the case of Demarest v. Wyncoop, 3 Johns. Ch. 129. All that is decided in this case is, that the disability which entitled the party to the benefit of the proviso of the statute of limitation must exist when tho causo of action first accrued, and that successive or cumulative disabilities are not within the policy or sound construction of the statute.
    It will be soon that tho cases cited do sustain the decision of the court, as given in the note of the case; but they do not sustain the judge in his opinion, and I hope and trust that this court will now settle tho question whether tho law is as laid down in the note, or as intimated in the opinion ; for this has been a matter of controversy with tho profession ever since the report was published. *Tbo question is important, and, if time would permit, I would be glad to go more fully into it. Although important, it seems to mo to be perfectly plain.
    As beforo remarked, in the decision of the case of Whitney v. Westenhaven, the court well knew that a new principle was introduced as to tho construction of the statute of limitations of the state; and it was done for the purpose of conforming our decisions to those of England, and some of the other states, and for the purpose of putting an end, at some period, to the limits of the statute.
    In England it was held, that the disability attached to tho person to whom the right of action “first” accrued, and that the statute begins to run, from the time such disability is removed; and it is so decided, because such is the express provision of the statute. An examination of the English cases fully shows this, and the court will see it to be so from the treatise on limitations, contained in the Law Library, vol. 1. This court held the same principle in the before-cited case, although, by our statute, there is no provision that the disability shall attach to the person to whom the right of action “ first” accrued.
    The English courts hold, that the disability is removed by the “ death” of the person who is laboring under the disability, and it so holds, because such is the express provision of their statute. This court adopted the same principle, although our statute contains no such provision.
    The English courts hold, and in this most of the courts in tho United States concur with them, that from the time the disability is removed, the statute begins to run. This court holds the same, and so decided in the aforesaid case; and further decided, that when the statute begins to run, it shall not be interrupted.
    Now I do not complain of the decision of the court. It is justified, however, from necessity, rather than from the reading of the statute. But the opinion of the judge, as commonly understood, goes beyond what has ever been decided in England or America. It holds, that when the disability is removed, *the statute runs, not from the time of such removal, but from the time tho cause of action accrued. It is the same as if no disability had ever existed. The statute, as to such cases, is repealed, and the reason assigned for it is, that the word heirs is not used in tho statute; and therefore, it is said, that nothing is saved to the heirs.
    This not only breaks down all former constructions of this particular statute, but it upturns another general principle of law, that a man dying in whom is vested a right of action, that right descends upon his heir if a real action, and is cast upon his personal representative if' a personal action, unless the action is for a tort.
    By our statute, all causes of action survive, except those named in section 78 of the practice act, and these are actions for libel, slander, malicious prosecution, assault or assault and battery, action Oon the case for a nuisance, or against justice of tho peace for misconduct in office. That I am correct, the court will see by looking at the same section 78, and tho sections following. Swan’s Stat. 666-670. By this statute tho right of survivorship extends much further than at common law, or by any of the English statutes. But by this decision the principle is overthrown, at least in a large class of cases. The principle of the common law, the principle of tho statute, is general. It extends to all eases. But this opinion, if it does not destroy entirely, limits by not extending it to those cases where, but for tho disability of tho ancestor, the caso would have been barred by the statute of limitations.
    If this opinion is adopted as law, tho court, in order to bo consistent, must go further and say, that whoro the action is actually commenced by tho ancestor, who had boon laboring under a disability, and tho ancestor dies during the pendency of the suit, tho action shall abate, provided the time limited by the statute has passed away, although, during the whole of that time, tnc ancestor was laboring under disability. I say tho court must so hold, Cor it would be an extraordinary position to assume that a cause of action which does not survive, *shall survive if the suit was commenced by tho ancestor. Neither tho heir, nor the personal representative, can come in to prosecute or defend a suit already depending, unless that heir or personal representative could originally have commenced or defended tho suit.
    By tho decision o( tho court in tho before-named case, tho law of Ohio is made to conform to the laws of other states and of England. By the decision of the judge, taking that as law, the law of Ohio is different from that ol all the oilier slates and of England. I have said that no court in England or America have made any such decision. In this I ain mistaken, for the circuit court for tho district of Ohio, did so decide after this case was reported, not because the judge supposed that this was a correct interpretation of the statute, but because ho supposed such had been tho construction put upon it by tho state court, at least such was his statement after he had made the decision.
    It must bo borno in mind that this construction is not to apply to actions of ejectment alone, but to all- other actions to which a bar is created by the statute of limitations, and the simple question is, can that statute bar a claim before it begins to run? After it begins to run, can it bar a claim until it has run the length of lime prescribed by the statute itsell? Turn it in whatever way you may, this is the whole of the question.

      In the ease of Ridley et al. v. Hettman et al., 10 Ohio, 524. the same judge who gave the opinion of the court in the case of Whitney states corrcctlj’ what was actually decided in that case. Ho says, “ The principle there decided was, that successive or cumulative disabilities in different persons aro not within the true intent and meaning of the proviso in the statute of limitations; that whore the person to whom the right has aecured is beyond tho state, the statute does not commence against him until ho comes within the slate, but that if he dies abroad, tho heirs can not unite their disabilly tu his, so as to bring them within the protection of the law.” Such was tho decision. The statute did not oommonco running until tho disability removed from tho ancestor, and that disability being ^removed by tho death of tho ancestor, it did then commence to run, and although at the death of tho ancestor, the heirs, being under age, were disabled, this disability could not for their protection bo added to that of the ancestor, but as the statutes commenced to run at his death, it must continue to run, notwithstanding the disability of tho heirs. Tho court were iar from deciding that the statute commenced to run from tho tirno tho right of action accrued.
    But without taking up any more of the time of tho court, I will, for a few moments, call its attention to the caso now under consideration.
    On September 19, 1817, Clark Robinson, in tho State of New York, executed his sealed note to Samuel Carey, now deceased, lor the paymont-of $630, in installments, the last of which fell due on May 1, 1821.
    Samuel Carey was never within the State of Ohio, but died in the State of Now York, on January 1, 1834.
    This suit was commenced by the personal representatives of Samuel Carey, on April 6, 1838.
    Now the question is, whether it is barred by the statute of limitations. It is admitted that if Samuel Carey was now living, it would not ho barred. He would have legal right to prosecute the claim to effect. Is it barred when the same claim is prosecuted-by Ins personal representative? That is the simple question for the court to settle.
   Lane, C. J.

The declaration contains several counts in debt. The plea is the statute of limitation of fifteen years.

The plaintiff implies, that when the cause of action accrued, Samuel Carey resided in the State of New York; that he died in 1834, never having been in this state; that this suit is brought within fifteen years from his death. The defendant demurs.

The last installment of the instrument on which the action was brought, fell due in 1821, so that the statute of limitations at that time in force was the act of 1810. 1 Chase’s Stat. 655; 7 Ohio, 123, pt. 2.

*Tho question, therefore, is, whether the saving in the Btatutb of limitations of 1810, of a right of action to a non-resident of this state, is terminated by his death, or whether it survives to his heirs for the period originally limited.

The case of Whitney’s Lessee v. Webb and Westenhaven, 10 Ohio, 513, seems fatal to this right in the heirs. That case arose under tho act of 1804 (1 Chase’s Stat. 393), tho terms of which are similar to the act of 1810. The right of action was saved until the death of the ancestor, in April, 1819, and the suit was brought in November, 1839. The time limited is twenty years. The question, then, presented by that record, was not whether the heir of a nonresident could bring his action at any time within twenty years after tho death of the person in whose iavor the right accrued, for that time had elapsed before suit, but it was whether the protection of the heir could be coupled with the protection of the ancestor’s right of action ; so that the statute did not begin to run until tho pei’son having the right to prosecute should arrive within this state. It was neither more nor less than the old question of supervenient disabilities, and was discussed and decided on no other principles.

But the judge who reported that case extends his reasoning beyond this, and regards the right of action absolutely lost by the death of tho ancestor, occurring after the period limited lor tho statute to tako effect. With entire respect for oar late associate, we feel constrained to examine the soundness of his opinion in a case which depends upon the precise point.

The object of statutes of limitation is to provide a time within which suits may be brought. One of tho first principles is, that whero the statute begins to run, it continues to run without interruption irom any subsequent disability, unless produced by tho act of the defendant.

The proviso in section 2 confers privileges upon “ minors, insane, femes covert, imprisoned, and beyond seas.” As to them, tho statute does not begin to operate until the cause for protection ceases; and it authorizes bringing the suit at anytime afterward, within the time originally before limited. *The causes which prevent the running of the statute are called in it “ disability; ” and when they cease to exist, as by the majority of a minor, or the diseoverture of a feme, then the statute does its perfect work, by requiring the action to be prosecuted by him who holds the right, within the “times limited.” Tho rights of non-residents are created and controlled by the same word, in the same sentence, and must receive the same construction. They suspend the operation of the statute in favor of him who holds the right of action when it ac crues; but when such person ceases to hold it, the effect of tho proviso ceases, the statute begins to run, and the suit must be com • menced within the time it prescribes.

This construction of the statute gives effect to all its words, and conflicts with no previous decisions, and seems conformable to its general objects. It does not permit one “ disability” to be connected with another, of either the same or a different kind, but it secures the right of pursuing a cause of action after the first privilege has expired, or the first disability has been exhausted.

Demurrer overruled.


text:
    Miers and Coulson v. The Zanesville and Maysville Turnpike Company.

      A creditor pursuing equitable assets of his debtor, obtains preference, except in cases under the statuto relating to assignment.
   Lane, C. J.

This ease- has once been before the court, and may be found stated and reported in 11 Ohio, 273, in which certain points are decided.

It is a bill brought by a judgment creditor, to pursue and obtain the arrears of certain shares of stock subscribed and unpaid, which were not embraced within the objects of the *proceedings in Muskingum, to which this was postponed in that decision.

The answer of the company is now filed, admitting the existence of these assets, and claiming that an account be taken of tho oreditors of the company, and tho amount realized distributed equally among all.

H. H. Hunter, for complainants.

Henry Stanbery, for defendant.

This claim of the company for equal distribution is inadmissible; for tbec vigilant creditor, pursuing his claim, acquires a preferable equity, which attaches and becomes a specific lien by the filing of his bill. 6 Ohio, 156; Bank of Muskingum v. Carpenter’s Heirs, 7 Ohio, 21, pt. 1.

Tho receiver is therefore ordered to pay tho assets in his hands to judgment creditors, in the order in which their liens attach, by filing bills, and all further questions are reserved.

Order entered.


author: Read, J.

text:
    Sherman Hutchins v. The State of Ohio.
    A person indicted for having in his possession a counterfeit bank note, for the purpose of selling, bartering, or disposing of the same, can not be convicted, by proof, of having in possession such note, with intent to pass the same to an innocentporson as true and genuine.
    Sections 22, 29, and 32 of tho act for the punishment of crime respecting counterfeit bank notes, are different and distinct offenses, and proof of tlio one will not support an indictment for either of the others.
    Vanvalkenburg v. The State, reported in 11 Ohio, 404, is’affirmed.
    This is a writ of error to the court of common picas of Fairfield count}’.
    The plaintiff in error was indicted and convicted, under section 29 of the act for the punishment of crimes. Swan’s *Stat, 233, lor having in his possession a counterfeit bank note, for tho purpose of selling, bartering, and disposing of the same.
    A bill of' exceptions was taken which shows that, “on the trial of this caso, evidence was given to the jury lending to show that the defendant,. Hutchins, had in his possession one fivc-dollar counterfeit note, corresponding in description with the noto set forth in tho two counts of the indictment. No evidence was given to show that the defendant had in his possession any other counforfeit note, but that be bad in bis possession counterfeit coim; and there was other evidence tending to show that he know tho note to be counterfeit. The counsel for the defendant asked tho court to charge the jury as follows:
    “ 1. That in order to convict the defendant they should be satisfied of tho possession of the note by tho defendant, knowing it to bo counterfeit, coupled with the intention to barter, sell, or disposo of it in some other way, than in tho usual way of passing counterfeit bank notes as true and genuine.
    “2. That the being detected with the counterfeit note in his possession, knowing it to bo counterfeit, coupled with an intent to utter and publish, or pass it as true and genuine, would not mako a case of guilt under tho indictment.
    “Which instructions the court refused to give, or cither of them ; but did chargo and instruct tho jury that, as to tho intent of tho defendant when detected in tho possession of the counterfeit note, if tho jury should be satisfied that the intent was to pass the said note as true and genuine, it would bo sufficient, and that there need not be proof of any intent to sell, barter, or otherwise dispose of said note as a counterfeit note. To which several rcJusals of tho court to instruct and charge the jury, and also to tho said charge and instructions so given, the defendant, by his counsel, excepts.”
    H. St an berv, for plaintiff in error.
    T. Ewing, for the state.
   Read, J.

This case is settled by tho authority of Vanvalkenburg v. State of Ohio, 11 Ohio, 404.

*The crimes defined in sections 22, 29, and 32 of the act for the punishment of crimes, are distinct and different.

Section 22 defines tho crime of “uttering and publishing, as true and genuine,” counterfeit bank notes to defraud innocent persons. Section 29 is for “selling, bartering, and disposing of” such, to guilty and willing receivers. Section 32 is, “for attempting to pass,” with intent to defraud.

Those arc different and distinct crimes, and proof of the one will not support an indictment fo.r either of the others.

The charge of tho court was therefore erroneous, and tho judgment is reversed. Judgment reversed.


author: *Lane, C. J.

text:
    Henry Swearingen, Joseph B. McGrew, and others v. The Bank of Mount Pleasant
    A judgment by default entered upon a declaration containing some bad and some good counts, will not be reversed for error.
    Johnston v. Mullin, 12 Ohio, 10, is affirmed.
    This is a writ of error to the court of common pleas of Jefferson county.
    The action below was assumpsit. The declaration contained two counts. In the first count, the plaintiffs in error were declared against as indorsers of a promissory note for $3,000, made by one Daniel Swearingen, payable at the Bank of Pittsburg, in Pittsburg bank paper, or eastern funds. The second count was in the common form for money lent. At the August term, 1842, judgment was entered by default for $3,135. To reverse which judgment, this writ is now brought.
    *Mason and Moody, for plaintiff in error:
    The judgment must be reversed if either count in the declaration is substantially defective, damages being assessed generally upon the whole declaration, and the judgment being by default. This has always been the practice at common law, even after verdict, and has often been recognized in this state, by this court, previous to the enactment of the statute of 1835, amendatory of the practice act. Swan’s Stat. 688; Nelson v. Ford, 5 Ohio, 473; Maxfield v. Johnson, 2 Ohio, 204.
    The recent case of Johnson v. Mullin, 12 Ohio, 10, construes section 6 of the act of 1835, and, were this a judgment after verdict, might perhaps be regarded as conclusive upon this case, were either count in the declaration good, unless it appeared upon the record that the evidence upon which damages were assessed, was not applicable to the good count.
    The judgment in this case, however, is a judgment by default. Has section 6 of the practice act of 1835 anything to do with it? and was that act intended by the legislature to extend the judgments by default? The language of the act is, “and where sufficient appears to sustain the verdict, the judgment shall not be re-,, versed on account of such defective counts.”

      The whole section appears clearly to refer only to cases whore a verdict has been returned, and damages assessed by a jury. If the legislature had intondod that this law should bo extended to include judgments by default, why should they restrict it in its language to those which are taken after verdict ? The act is amendatory of the common law, and should not bo construed to apply to any cases except those which appear to bo clearly within its language and provisions.
    The language made use of in the English statutes of jeofails, is similar to that made use of in our act of 1835; they provide that “judgment, after verdict, shall not be stayed or reversed by reason of any mispleading.” 1 Chitty’s Pl. *682; Tidd’s Prac., 9 ed. 923. They were invariably construed not to extend the judgments by default, until by the act for the amendment of the law, passed in 4 Anne, ch. 16, sec. 2 (see Chitty’s Pl., appendix, 701), the statutes of jeofails were, by express enactment, extended to judgments upon confession, nihil dicit, or non sum informatust and the construction, placed upon the. same language, will aid in the construction of this statute.
    If then remains for us to inquire whether, admitting the count for money lent to be good, the first count in this declaration is substantially defective.
    Any objection which would have been fatal upon general demurrer to this count will be noticed upon error, because the judgment is by default, and there can bo no intendment after verdict to save it. 1 Chitty’s Pl. 674, 683, 684; 1 Saund. 288, n. 1; 13 East, 407; Gould’s Pl. 505.
    The plaintiff was a banking corporation, and it is evident that the attempt has been made to adopt the peculiar remedy given to banks by section 9 of the act of January 8, 1824. Swan’s Stat. 149. This act authorizes banks to sue drawers and indorsers jointly, otherwise they may pursue the common-law remedy, suo them severally and take their judgment without costs. The act has been often enough construed to warrant this conclusion. Bank of Chillicothe v. Yoe et al., 4 Ohio, 125; Henry Lewis et al. v. Bank of Kentucky, 12 Ohio, 132. The first count is clearly erroneous, therefore, because, if intended to bo a count under the statute, no such count is authorized by it, but only the count for money lent; or, if the statute should be construed to authorize such special count,' there is still error, because Daniel Swoaringon, the maker of tho note, is not joined in the action, and tho plaintiff lias sued tho four indorsors jointly, upon a noto which the statutes, for purposes of suit and judgmont, makes tho joint obligation of five, or of drawers and indorsers; and it is error to take judgment against a part of several joint obligors. Wright’s Ohio, 118; Ib. 94. Nor is this a question of variance, bceauso it appears, upon tho face of the pleadings, that tho first count *is upon a promissory note drawn by Daniel Swearingen and indorsed by tho defendants. It is not thought necessary to make an argument to show that, at common law, it is error to declare jointly against four indorsers, whose indorsement is averred to bo several. So that the first count is neither good at common law nor authorized by statute.
    Again, the breach in tho first count Is not assigned in words eo-extensive with the import and effect of the contract declared upon.
    Tho contract described it, “ to pay in Pittsburg bank paper, or eastern funds.” Tho breach is a refusal to pay money. Chit. Pl. 332, and n. c; 2 Saund. 181, a; Com. Dig. Pl., ch. 46, 47. So the contract in the declaration is stated in tho disjunctive; tho breach should be that they did neither tho ono nor the other, Com. Dig., Ib.; 1 Chit. Pl. 334; and an insufficient broach, though aided alter verdict, would be bad on general demurrer, or after judgment by default. There can be no intendment that tho de'ectivc statement of tho broach was supplied by evidence. 1 Chit. Pl. 337, 674, 683, 684; 1 Saund. 288, n. 1; 4 East, 270, 271.
    The note described is not negotiable, because it is not payable, in money.
    Eastern funds is not money, nor is Pittsburg bank paper. Bay. on Bills, 10; Rhodes v. Lindley 3 Ohio, 51; Chit, on Bills, 153, and n.; Jerome v. Whitney, 7 Johns. 461; But. N. P. 272; Jones v. Fale, 4 Mass. 245; Leiber v. Goodrich, 5 Cow. 136; McCormick v. Trotter, 10 Serg. & Rawle; Hasbrook v. Palmer, 2 McLean, 10.
    But if tho court should feel required to sustain a judgment by default, where one count in the declaration is good, and whore it does not appear that tho damages wore assessed upon the defective count, it is still claimed by the plaintiff in error that the record in this case supplies'means by which tho court must arrive at the conclusion that this judgment was rendered and the damages assessed upon tho dofoctivo count* Tho plaintiff in tho court below files in court, as the instrument upon which suit is brought, and which is intended to be offered *in evidence at the trial, a promissory note, which he causes to be copied into the record. The statute does not require him to do this, but does require him to furnish the defendant with a copy of the obligation, or bill of particulars of his demand upon request. Where, however, as in this case, the plaintiff files, voluntarily, a copy of the instrument declared upon, and himself causes it to be copied into the record, as the note referred to and described in the declaration, will it not be regarded as the evidence, and the only evidence, upon which the assessment of damages has been made, particularly when the amount of damages assessed corresponds exactly with the amount appearing to bo due upon the note filed? We think so; and if so, then, would it appear that these damages were . assessed upon the bad count? — for this note could not be offered in evidence under the count for money lent and advanced, as between indorser and indorsee, much less could it be evidence, at common law, of a joint promise by four indorsers, whose indorsement is several, to repay money lent by the plaintiff or holder of the note Nor could it be offered in evidence, under the second count, by force of the statute, because the drawer is not sued.
    If, then, sufficient appears upon the record to satisfy the court of the fact, that the promissory note filed in the cause was the evidence upon which the damages were assessed and judgment rendered, it is clear that such evidence was not applicable to the second count in the declaration, and the first count upon which the damages would consequently have been assessed, being undoubtedly bad, the judgment must be reversed.
    Daniel Peck, for defendant in error :
    The real error relied on is, that the first count is substantially defective; and although the second count is good, yet the judgment, being on the whole declaration, must be reversed, because of the bad count.
    It seems to be admitted that if this judgment had been rendered, on a verdict of the jury it ought to be affirmed.
    *1 think that th e question is reduced to this, whether a case, wherein the court assess the damages, shall stand in the same situation as though the jury had returned a verdict; or if the finding of the court shall be equal to the finding of the jury.
    At the common law, it was not the province of the court to find facts or assess damages, but this belonged exclusively to the jury.
    Iu this state the unsuccessful party in a lawsuit, where a matter of fact was tried by the jury, was taxed with a jury fee. The defendants looked upon the ceremony of calling a jury to find a fact not in any way disputed, at the cost of six dollars, as a very vain affair.
    The legislature of this state, in order to save both time and money, passed an act, “ that when judgment shall be entered by default, against the defendant, the court shall assess the damages, unless the plaintiff or defendant request a writ of inquiry.” Swan’s Stat. 671, sec. 98.
    I think that the finding of the court, and the assessment of the damages in cases of judgment by default, is placed by this act upon the same footing as the verdict of a jury; for the court could not assess the damages with less evidence, or upon different principles, than would the jury.
    In order to save judgments from being reversed, where there was enough in the declaration to sustain the suit, though mixed up with defective counts, section 142 of the practice act was passed. It is this:
    “ That in suits where there are several counts in the declaration, some of which are bad or defective, and the residue good, and the jury shall return a general verdict for the plaintiff, it shall be lawful for the court to give judgment on such good counts, to which the evidence on the trial was applicable, and either before or after motion in arrest of judgment, to strike out such defective counts; and whenever sufficient appears to sustain the verdict, the judgment shall not be reversed on account of such defective counts.” Swan’s Stat. 688.
    This section was considered by this court in the case of Johnston v. Mullin, 12 Ohio, 10. In that case the ^plaintiff brought a writ of error to reverse a judgment rendered on a verdict of the jury on a declaration containing good and bad counts. The record did not show that any evidence had been offered by either party.
    In the opinion delivered in that ease, the judge says: “But a question must first be settled, whether section 142 of the practice act does not require courts to sustain verdicts, even upon defective counts, whon one good count is found among them. It authorizes the court taking the verdict to strike out the bad counts, before or after motions in arrest, to give judgment upon those good ones to which the evidence applies. ‘ And when sufficient appears to sustain the verdict, the judgment shall not be reversed on account of the defective counts.’ This last clause relates to the duty of the court in error, for the word ‘reverse’ is applicable to no othei’.
    “ A majority of the court find, on this record, enough appearing to sustain the verdict. They find two counts upon promises well plead, and the verdict, that they were made as set forth, and they will intend that the damages were computed upon these, unless it appears by the evidence spread upon the record by a bill of exceptions, that it was not thus applicable. For errors in amount of damages will not be corrected on error, unless the record supply the means, and the court of error will presume the correctness of the proceedings they are called upon to inspect, until the errors, appear on their face.”
    Now, in the case under consideration, it does not appear that any evidence was offered or received in support of the claim on the part of the'bank; but this court must intend that every material allegation in the declaration was proved.
    Were it.not for such intendment there would be no safety in rendering judgment upon default, for it would rarely appear that any proof was made of the plaintiff’s demand.
    If the defendant wishes to test the sufficiency or competency of the plaintiff’s testimony, he must spread the evidence on the record by a bill of exceptions. This is the only way such a matter can come before a court of error.
    *It is no objection that the suit was brought as well for a note as for money lent, or that a copy of the note was filed in the case ; for there is not anything in the record which shows that the note was offered in evidence; and the court can not now be called upon to guess what was, or was not, offered in evidence.
    If the judgment in this case should be reversed on the ground that it does not appear, by th6 record, that the testimony was applicable to the count for money lent, then one-half of the judgments in the state might be reversed for the same reason.
    There was never any good reason why a judgment on a declaration which contained good and bad counts should be reversed for that cause, and it has always been held differently in criminal eases. Under such a rule, the court would release one from a judgment for one dollar, because the declaration contained a defective count together with a good one, and would hang him on an indictment having the objectionable features contained in the declaration. The court would require only an excuse to take final leave of such an absurd rule.
    I do not see any good reason why a trial by the court should not stand on the same ground as a trial by a jury. The mischief to be remedied by the statute is the same in both cases.
    If the court should be with me in this part of the case, it will not be necessary to examine that part of the case in which the other errors are assigned.
    The note declared on was payable in bank paper or eastern funds. I do not admit that this note is not negotiable, but it seems to me that it can hardly be necessary to argue the questions raised on the first count. I can not doubt but that the other point concludes the case.
    I ask the court to affirm the judgment, because there is one good count in the declaration, and because the court can not know but that the evidence adduced in support of the same was applicable to the good count.
   *Lane, C. J.

This is a writ of error to tne common pleas of Jefferson couuty. The record shows a suit in assumpsit, by the Bank of Mount Pleasant, against the defendants. The decla> ration contains two counts. The first count is a cause of action against the indorsers of a promissory note, specially setting forth tho facts which render each liable. It is an attempt to frame a special count under the statute to regulate judicial proceedings, where banks and bankers are parties. It is a bad count, because the statute authorizes only the form of “ declaring for money lent.” Swan’s Stat. 149, sec. 51.

The second count is for money lent, and is unexceptionable in form. Judgment was rendered by default.

The plaintiff in error relies on the position that a judgment rendered by default upon a declaration containing two counts, of which one is defective, is erroneous and reversible. The doctrine is correct at common law, and the error is fatal unless cured by our practico.

At tho last term,, it was holden by this court, in Johnston v. Mullin, 12 Ohio, 14, that judgment is not erroneous after verdict rendered upon a declaration containing one good and some bad counts. That rule decides this case, unless a judgment rendered on a default should be followed by different consequences. We think, however, that the same section of the act of 1835, amending the practice act, cures defects of this kind ; for the action of the court assessing damages, under section 98, Swan’s Stat. 671, stands in place of verdict on a writ of inquiry, and may be justly presumed to embrace money due, on a cause of action well stated and left undefended.

The judgment is therefore affirmed, without reference to the other points. Judgment affirmed.