author: Wood, C. J.'•

text:
    Frederick Bissell vs. Benjamin Couchaine.
    Wh^re the facts ¿f a case are submitted to* the Court of Common Pleas without the • intervention of a Jury, and error intervenes m applying the law to such facts, the judgment will be reversed. •* ¡ ’. - ■

    If A deliver money to B, which he promises to pay to C, on the note of A, but refuses . so to do, it is not a debt contracted iñ a fiduciary capacity, and is not within the,provisions of the Bankrupt Law of the United .States.
    ■ This suit is brought before the Court by a Writ of Error to the Court of. Common Ple.as of Lucas County. ■
    The’ declaration, sets forthjin substance, that,, on' the 16th day of June, 184Í, the defendant in. error- delivered to the plaintiff in error the: sum of $418 in trust, to be by the pláintiff in error applied in payment and discharge of a certáin promissorynoté foxy $-100, and interest, made by, the'defendant 'in error with Bisselí and Gardner, on the 12th day of June, 1838, and payable to Chandler Knapp, on the first day of December then next;. that- the plaintiff in error promised' to execute the trust,- but had wholly failed so to dp, and thé note remained unpaid and outstanding against the defendant in error.
    In Bank.
    Dec. Term, 1846
    Then-follow the ;cpmmon money counts. Two pleas were .pleaded'by the plaintiff in error; 1. Non-assumpsit; .2. A special plea in bar, of discharge in bankruptcy and Certificate thereof, granted December 5 th; .1842, on,a petition filed-July'. 18th, 1842, &c.
    The defendant in error replied,'that the debt -and -' cause- of action, arose,, and was contracted; in a fiduciary capacity, and that the plaintiff in error had applied.said money to his own use, and not .in the payment or discharge of the note. -. The plaintiff rejpined,' and put in. issue the facts averred’ in the .replication'.' ■ ’
    • On these issues, the causé was submitted to the Court without the intervention of a'jury, and judgment given for,the defendant in error; and to the finding of the Court the plaintiff in,error excepted. . ..
    It appears from the record, that, on the trial, the defendant in error, to maintain the issue on his part, gave in evidence the rióte described, arid that the plaintiff in error was one of the firm of Bissell and Gardner,* -who signed the note as sureties for the defendant in error, the other'maker thereof; and that to indemnify Bissell and Gardner, as such sureties, on the 20th day of June, 1839, the defendant in error, as principal, with one' Peter Navarre as his surety, executed and delivered to said Bissell and Gardner their promissory note, for the sum of one hundred and three dollars and fifty cents, payable on demand. The defendant in error also proved, that he paid $100- qn the last' mentioned note to said Bissell and Gardner, with the understanding, that they were to apply it on the note to Knapp; The small balance due on the note, to indemnify Bissell and Gardner, was, afterwards; paid to Gardner, after the dissolution of the firm, but was receipted for by him in the name of the partnership. It was likewise proved, that Bissell and Gardner to have paid the $ 100 so received to Iinapp, on tiro note first mentioned, but the firm soon after becoming embarrassed, failed, and said note remained unpaid. The payment to Bissell and Gardner was proved to have been made before the discharge of Bissell, the plaintiff in error, in bankruptcy, and the counsel for him therefore submitted a motion for a non-suit. This motion was resisted by the counsel for the defendant in error, on the ground that the debt, for which the action was brought, was contracted in a fiduciary capacity. The Court of Common Pleas so held — overruled the motion, and gave judgment for the defendant in error.

      Lam, Hill fy Bennet, for Plaintiff in error.
    Is the finding of the Court, as to the issue on the plea of discharge in bankruptcy, (which finding appears only in the bill of exceptions,) sustained by the evidence ? Did Bissell become indebted in a fiduciary capacity? We maintain that he did not. The evidence shows, that the $100 was paid to Bissell and Gardner in part payment of the note given to them by Couchaine and Navarre. This $100 is all that oven constructively came to the hands of Bissell; the balance having been paid to Gardner, after the firm of Bissell and Gardner was dissolved.
    It does not appear that Bissell and Gardner were to pay over the money within a specified time, or that they were to pay over the identical money received from Couchaine on his note; but they were to “ apply that amount ” on the note which they had signed as his sureties. The $100, undoubtedly, wont into the cash drawer of Bissell and Gardner — was mixed up and used with their own funds; and, before the balance was paid by Couchaine, the firm of Bissell and Gardner had become embarrassed, and failed, “ having no means or effects with which to take up said first mentioned note.” Whatever remained, then, of the estate of said firm, acquired in whole or in part by means of this $ 100, passed to, and vested in the assignee in bankruptcy, by operation of law. U. S. Bankrupt Law, sec. 3, passed Aug. 19th, 1841.
    Such would be the case with money in the hands of a bankrupt executor or administrator, if it could not be “ specifically ‘ distinguished and ascertained to belong to a testator-or intestate, and not to the bankrupt.” 3 Burr, 1369; Owen on Bankruptcy, 125, 126.

      A ud where a bankrupt, who is factor for another, has sold the property of his principal, and received the price, before any notice to the vendee not to pay him, the principal has no other remedy but to prove for the amount upon the estate, unless the price remain in the hands of the factor, specifically distinguishable from the factor’s own property. Owen .on Bankruptcy, 126.
    It was for the defendant in error to show that this money, or some part of it, did remain in the hands of the plaintiff in error, ' specifically distinguishable from the plaintiff’s own property, and, not having shown it, the certificate and discharge in bankruptcy should have been held a bar.
    The principle which we are contending for, is again declared in Waller v. Edwards, 6 Little’s (Ky.) Reports, 384; where it is held, that a certificate and discharge in bankruptcy is no bar to the recovery of specific property held by the bankrupt as executor,. Aliter, as to a recovery by distributees of money received by him in his fiduciary capacity, and for which he was liable before bankruptcy.
    But we suppose it will be contended on the other side, that Bissell had assumed a trust in favor of the owner of the first mentioned note; and although the trust was purely voluntary, and without any consideration, yet, as the beneficiary is not shown to have become a party to it, it was revocable, and being revoked, an implied trust results in favor of the party who originally created it, and that the nonpayment of the money establishes the fact of indebtedness in a fiduciary capacity.

      Before this position can' be made available to the defendant jn error some proof would seem to be required that the trust . ■ . ■ ' was revoked before suit was brought;-but there is no proof-whatever oh that subject.- .-
    'Again, — the construction of that clause in the bankrupt law, winch is involved in this suit, has, been authofitively settled by the Supreme-Court of the United States,-in the case of Chapman v. Forsyth et al., 3 Howard’s Rep.- 202, showing that the indebtedness'proven in this casé, is not a fiduciary debt within the meaning of the act. : 'We extract so much of the opinion of the.Coürt as bears directly on the'point under consideration: ■
    “.The second .point is, whether a factor, who retains the c money of his principal, is a fiduciary debtor within the mean- ‘ ing'of the act? .
    “If the act embraced such a-debt, it will be difficult to limit ‘ its application.- -.It must include all debts arising from agen- ‘ cies; and, indeed, all cases where the' law implies- an obliga- , ‘ tion from the trust' reposed in the’debtor. -Such, a construc- £ tion would have left but few debts on which the, law could. £ operate. In almost-dll' the commercial transactions of’th'e £ country, confidence is reposed in the punctuality and integrity £ -of the debtor, and a violation of these is, in á commercial ‘ sense; a!disregard of á trust. But this is not the relation ‘ spoken of in-the-first section, pf the act-.
    . “ The cases enumerated — ‘-the defalcation of a public offi‘•cer,’ -f executor,’. ‘ administrator,i ‘ guardian,’ of ‘ trustee’— are ‘ not cases of implied, but.special trusts;, and the ‘other'fidu- ■ ‘ -ciai;y capacity,’ mentioned, must mean the same class of trusts. ‘ Thé act. speaks of technical trusts. ■ A factor is not, therefore, ‘ within the act.. . • -. 1
    “This view is strengthened, and indeed made conclusive,' ‘ by thé provisions of the fourth section, which declares that no ■ ‘..‘merchant,' banker, factor, broker, undér-writer,-:ór marine- ‘ insurer,’ shall be entitled' ,to.a discharge ‘ who- has ;not kept - ‘ proper books of accounts.’ In answer to the second question, ‘ then, we say, - that a factor, who- owes his principal money,'. ■£ received on the sale of his goods; is not a fiduciary debtof £ within the meaning- of the act.” . - y',
    Upon the strength of these authorities, we feel warranted in spying, that. the case at bar does not'.present, a fiduciary debt .within the meaning -of the' act of Congress, as found by the. Commpn Pleas, and that its judgment' ought to be reversed. ■

      F. Johnson, for. Defendant-in error.-
   Wood, C. J.'•

It is insisted by -the counsel for -the defendr ant in error, that, as' this case •' was' submitted . to .the Coúrt instead of a jury to determine.the issues of .factj if the judgment is' reversed it must' be because thé- Court of .Common ■Pleas gave too much or too lit-llie credit to. the testimony introduced, and, in the opinion of this 'Court, did, not give the evidence its' proper and .legitimate .influence, pr weight, .in' its application to the facts of.-.the. cáse. If it be sought’to disturb this judgment bn this ground, the-position assumed cannot for a moment be entertained. The reason why, not, is given in several reported cases, and. need not, in this, be again' repeated from the bench. Utter v. Walker's Adm'r, Wright’s Rep. 46 ; Price v. Orange, Ibid. 568; Reynolds v. Rogers, 5 Ohio Rep. 169; Bank of Cincinnati, v. Buckingham, 12 Ohio Rep. 482.

The record, however, shows no such case as belongs propeily to that class of case's, in .which the.principle alluded to has been maintained. The record presents all the testimony adduced upon the'trial. ■ There does not appear to. have been any disagreement with Court pr counsel ps to the proof;, and,..from the facts adduced, the Court held,.thát the money received by. the plaintiff in error, in-truth, in discharge of- his own note of indemnity, and which he. -agreed .to apply on the note of the defendant in error to Knapp, was received'in a--fiduciary capacity, and' therefore not- embraced- within the terms, and -could not be-.discharged under, the bankrupt law. Not for the erro-' neous finding of á fact, but-for. deducing the' legál result from the fact, that the debt was created in a fiduciary capacity, the error is assigned, and this Court is called upon to revise the judgment of the Court below. What is a fiduciary capacity, is a question of law; and if the Common Pleas erred in applying the law to the facts, the judgment is erroneous. It is, perhaps, only necessary to refer to the case of Chapman v. Forsyth et al., 2 Howard’s Rep. 202. The Supreme Court of the U. States holds this language:

The second point is, whether a factor, who retains the ‘ money of his principal, is a fiduciary debtor within the mean- ‘ ing of the act ?
££ If the act embraced such a debt, it will be difficult to limit its application. It must include all debts arising from agen- £ cies; and, indeed, all cases where the law implies an obliga- tion from the trust reposed in the debtor. Such a construction £ would have left but few debts on which the law could operate. ‘ In almost all the commercial transactions of the country, con- * fidence is reposed in the punctuality and integrity of the £ debtor, and a violation of these is, in a commercial sense, a £ disregard of a trust. But this is not the relation spoken of in £ the first section of the act.
££ The cases enumerated —£ the defalcation of a public offi- cer,’ executor,’ £ administrator,’ £ guardian,’ or £ trustee ’— £ are not cases of implied, but special trusts; and the £ other £ fiduciary capacity,’ mentioned, must mean the same class of £ trusts. The act speaks of technical trusts. A factor is not, £ therefore, within the act.
££ This view is strengthened, and indeed made conclusive, £ by the provisions of the 4th section, which declares that no £ £ merchant, banker, factor, broker, under-writer, of marine insurer,’ shall be entitled to a discharge £ who has not kept proper books of accounts.’ In answer to the second question, then, we say, that a factor, who owes his principal money, £ received on the sale of his goods, is not a fiduciary debtor within the meaning of the act.”

If a factor is not within the act, when .he. refuses to pay to the principal the money in his hands for the sale of goods, why is the plaintiff ,in error, who received $ 100 on his own note of indemnity, but which he promised to pay in discharge of the obligation for which his was taken ? It was a debt created ; but not a special, technical, or express trust. If a trust, legally speaking, was created, a bill in equity, to compel an account and a decree for its execution, would be an appropriate remedy; but we think the most careless and unskillful solicitor would hardly dream of that form of remedy in the case at bar.

Judgment Reversed,.


source: Caselaw Access Project

author: Birchard, • J.

license: Public Domain

text:
    Cyrus Darling and others vs. Erasmus D. Peck and others.
    Debt may be maintained upon a bond for the redelivery of property under the act authorizing the appraisal of personal property levied on execution.
    A bond duly executed during the existence of that statute, is valid, and suit may be brought for the breach of the same, notwithstanding the expiration of the act.
    The common law remedy remains, though the statutory remedy is gone.
    Parol proof of the demand of other property than that named in the writ, is competent 3 it being proof of an extrinsic fact not required to be made a part of the return of the officer, and not an attempt to alter or enlarge the return by parol.
    This is a Writ 01? Error to the Court of Common Pleas of Wood County.
    The record shows that on the 28th June, 1842, the defendants in error recovered a judgment against Darling for one hundred dollars debt, besides costs; that on the 19th October, 1843, execution was issued on that judgment, and levied on property which was not sold for want of bidders; that on the 22d November, 1843, a vendi. issued, but the constable, being still unable to sell the property, took from the defendant in the execution, and the other plaintiffs in error, a bond under the statute then in force, to the’ defendants in error, in the penal sum of one hundred and fifty dollars,- conditioned to be void if said Darling should deliver, at the time and place of the next sale, to the officer, having in his hands an execution upon the same judgment, the property to him restored, (meaning the property held by the constable under the execution,) or other property of equal value, to be selected by the officer, — which value should be determined by an inquest of three householders; that upon the execution of said bond, the property was redelivered to the said Darling by the constable ; that on'the 19th March, A. D: 1845, a further vendi. exponas was issued on the judgment, and delivered to a -constable to, execute on the 7th April,- A. D. 1845, who returned that he “advertised the prop- ‘ erty for sale, but the same was not offered for sale, in conse- ‘ quence of the failure - to- deliver.” The defendants in error thereupon brought the present action of debt upon the bond against the plaintiffs in error, as the obligors, and filed their declaration in two counts, averring, in substance, the making of the bond — the issuing of the last vendi. exponas — the delivery of the writ to the constable, for service — the advertise ing of the property for sale by the constable — and the failure of Darling, although he had notice of the time and place of sale, to deliver the property described in the execution to the constable, or any other property of equal value, from which a. selection might be made according to the condition of the bond; and in one of the counts was an averment, that the constable made demand of the property from Darling; and in the other, that averment was omitted. To this declaration the plaintiffs in error pleaded the single plea of non est factum, with notice that they should prove and insist, as a bar to the recovery, by the defendants in error, that, at the time when the said property was advertised for sale, the said Darling had other property which he offered to turn out at the appraisement of three householders, and that the constable then and there neglected and refused to select the same, or to call said householders to de» termine the same. Upon the issue thus joined, .the cgpse was-submitted to the Court; and the defendants in- error,; in support-of-their, case,’ gave in evidence the bond declared upon, and the transcript of the original-judgment, upon which the -' execution was. issued. T.o’the introduction'of this transcript in evidence, the counsel for the- plaintiffs iii error objected, , but for what cause, does not appear of record. • .The defendants in error then proved- by the constable, to whom the last execution.was delivered for service, that, -having in his hands the execution, he called upon Darling for' the property described in the .execution, and made demand thereof,'or, other-property, ■ as provided for in the bond, but. that Darling -neglected to pro-, diice, on the day. of sale^ either the property levied upon or any other.' To the admission; of-this testimony the counsel for the plaintiffs-objected, but his objection was .overruled, and they tendered their bill of exception?; and the' Court upon this state of facts gave' judgment for the defendants’in error in the amount of the penalty of the bond, and ordered that execution issue’for the amount ’found to be due' upon the original judgment, and costs,. ■ .- . . .-..'i - - •

      In Bank,
    Dec. Term, 1846

      To reverse this judgment of the'Court,-the present-writ .of error is prosecuted. . - • \
    Several errors are assigned, - which are.stated.in the opinion of the Court. ■ - ' '

      Spink fy Hosmer, for Plaintiffs in error.-.

      Young Waite-, for Defendant? in error.
   Birchard, • J.

The second' érror assighéd -is,- that the bond was void ; the -third,- that there was -po -breach of it-.The bond ■ was executed in-pursuance of. the 4 th section of the act passed January 19, 1843, (O: U. vol. 41, page. 3.0,) which, act expired’ by its terms of. limitation on the first, day. of March, ,1845, The first-three, sections of ’the-act provide for the' appraisemen't of personal property levied on execution,-and'.also, that .it shall not be sold for less than two-thirds of its appraised value. fourt¡1 section provides “ that when the goods or chatties ” “ levied and appraised shall not be sold for two-thirds the ‘ appraised value, it shall be lawful for the officer holding such £ execution to return upon the same, £ not sold for want of ‘ biddersand such officer shall deliver such unsold goods ‘and chatties to the person against whom execution had £ issued,” &c., &c., “ upon his giving bond,” &c., condition- £ ed that the said debtor in execution will deliver at the time £ and place of the next sale, to the officer having in his hands £ an execution upon the same judgment, the goods and chat- £ tels to him restored, or other goods and chattels of equal £ value,” &c., “ which bond shall be made payable to the other £ party in the execution.”

The 11 th section of the act declares what shall constitute a breach of the bond, in these words: “ That if the debtor in £ execution shall not at the. time specified in the condition of £ the bond, deliver to the proper officer the goods and chattels £ to him restored as aforesaid, or other goods and chattels of £ equal value as aforesaid, the condition of said bond shall be £ considered broken, and the creditor may sue out a writ of £ scire facias,” &c.

The ground taken in support of the second and third assignments of error, is, that as the statute expired on the 1st March, 1845, and the execution upon which the property that had been levied upon, or other property of equivalent value, was demanded, issued on the 19th March, 1845, after the expiration of the statute; the bond itself was absolutely dead, and all rights under it were gone. In support of this it is urged, that to suppose differently, is to suppose that the creature is .greater than the creator — the bond may survive the statute which called it into existence. That it was the duty of the justice to issue another vendi. exponas immediately, and the duty of the defendant in error to see that he did his duty in this respect. We cannot sustain such views, believing, as we do, that they are unsound. When made, the contract was good and valid in law ; it was a contract which the officer was authorized expressly to enter into on behalf of, and for the benefit of the defendant in error. Without the aid of the statute he could not have entered into it, but that gave him .power to receive the bond and return the goods to the judgment debtor; and he acted under its authority. The taking away of the authority cannot affect acts lawfully done under it, while it existed. The bond was valid once, and if once so, is so now. It is hot a penal bond, to be construed like a conveyance,' as will be seen hereafter. As to the duty of the magistrate to have forthwith issued an alias vendi. exponas on the return of the bond, little need be said. The 10th section of the act is imperative; it forbade the issue by the magistrate in any case, unless directed by the judgment creditor, his agent or attorney.

The next point to' be considered, is, whether there could be a lawful breach of such a bond after the expiration of the act.

All that the law requires to constitute a good breach of the bond, is, a refusal to deliver the property bonded, upon the day of sale, or its equivalent in other property, to the officer having an execution upon the same judgment.

According to the evidence, there was in this case literally just such a breach of this bond. It is the precise breach appearing from the proof set forth in the bill of exceptions. The only difficulty in the way, is a supposed want of authority in the constable having the execution, to sell, after the expiration of the act, any other property than that originally levied upon. It would seem hardly fair to allow such an objection to avail the plaintiff in error.

It was the business of the officer to see to his own authority, the business of the defendant in execution to comply with the terms of his bond ; and had he lived up to the letter of his obligation, and voluntarily placed the property originally levied, in the hands of the constable, there would be no que'stion of-his-right to sell, and as the other equivalent property would have been delivered for the purpose of sale on the execution, we think the officer, had it been turned out to him pursuant to the terms of the bcincl, might'have sold'it and "applied-the proceeds *n' satisfaction '$6 sanie, with perfect safety. .•

The forirth .assignment is, that.the Court érred in admitting parol evidence of the acts of. the constable.. • •

It i's 'necessary -in disposing^-of this- point, to bear in mind the issue between-the parties, which was non est factrim, unaccompanied by-an' affidavit of the truth 0f the plea. The introduction of the instrument itself, .proved 'this, issue against thé plaintiff, and entitled' the.- defendants' in érror. tp judgmént'for the penalty of the bond. It is riot .the samé .issue as nil debit, and did not require any other proof of indebtedness before a recovery could bp had. ■ It is true that the plea of non est factum was accompanied by a notice that they would prove that Darling offered to .turn out other property at the appraisement of three householders, and that the constable neglected and refused’ .to call upon said householders to determine- the •value of the same. Under this notice the.plaintiffs in error had the affirmative, and if the Common Pleas erred in admitting the adverse party to introduce incompetent testimony to establish a fact admitted by plaintiff’s own pleadirig,-he .cannot be heard to alledge that the error is to his prejudice.. Tlie general rule .is, that what is not avoided or denied in a plea, is confessed, and, as before said,, the plea only denied the execution of the bond. '

■ But-was ■ the parol evidence incompetent? The vendi. exponas commanded the'sale of the certain specific property therein named. The officer returned that he could not sell that specific? property, because the debtor refused to deliver it to him. This was a full return, because the law had expired which required of him a demand and sale of- other property of equal value. The proving that other. acts were done, by no hieans contradicted, the return upon the execution made by the officer. The demand of other property in lieu of that specified in the Writ, was an extrinsic' fact, not proper to be returned under the circumstances, or at least not required to be indorsed upon the writ, and might therefore well be established by parol.

The fifth assignment is for the admission of the magistrate’s transcript. The main objection urged in argument to this, is disposed of in disposing of the last point. We are not inform- / ed by the record what were the exceptions taken'to the admission of this evidence in the Common Pleas; and if the transcript was competent. for any purpose, it was rightly admitted. We cannot say it was used for any other object than the legitimate one. The presumption is, that it was so used. It was clearly proper evidence to enable the Court to determine ihe amount due in equity; and if used to establish anything for which it was incompetent, the record should have shown the fact.

There is still a general error. This presents the question whether the action of debt can be maintained, inasmuch as the remedy prescribed by stathte was scire facias. • Had the statute remained in force, the remedy which is provided might have been pursued, but that remedy was the creature of the act, and expired with it. If the common law action does not remain, we should find here the case of a wrong without a remedy; a thing, indeed, which-courts are not over anxious to discover — in this case that which which does not exist. The words of the statute, “ may sue out a writ,” &c., were not intended to be mandatory. They are not, as contended by counsel, of the same import as shall sue out a writ of scire facias, and shall, have no other redress. Where a statute gives a new remedy without impairing or denying one already known to the law, the rule is, to consider it as cumulative, allowing either the new or the old remedy to be pursued at the option of the party seeking redress.

Judgment. Affirmed.


author: Read, J.

text:
    In Basic.
    Dec. Term, 1846.
    William Davis and Martha Davis vs. The State of Ohio.
    Whether the Jury shall be permitted to separate during the progress of the trial in a criminal ense, is matter of sound discretion with the Court trying the case, and the exercise of this discretion cannot be questioned on error.
    When the Jury retire, in the charge of a Sheriff'or of a qualified Constable, such officer need not be specially sworn.
    If a wife join with her husband in the commission of a crime less than murder, she is presumed to act under the coercion of her husband, and in law is not guilty 5 but the fact of coverture must be clearly made out by proof.
    This is a Writ of Error to the' Court of Common Pleas of Logan County; and the record presents the following state of facts:
    William Davis and Martha Davis were convicted of arson, at the August term, 1846, of the Court of Common Pleas in Logan county, and sentenced to the penitentiary for the term of ten years.
    The bill of exceptions and affidavits, in substance, disclose the following facts:
    That, after the jury was sworn, and some testimony submitted, the Court adjourned for dinner, and permitted the jury to disperse until the coming in of the Court in the afternoon, first having cautioned the jurors to have no conversation with others, or among themselves, respecting the cause under consideration; that, at night, a constable in attendance upon the Court,.was requested by the Court to take the jury to a tavern, and remain with them until the next morning; that said constable was not sworn to hold no conversation himself with the said jury, or not to permit others to converse with them ; that, after the cause was submitted to the jury, they retired to their room, under the charge of the sheriff; that, during a portion of the time they were in charge of said constable, the constable stood in the hall, in view of the jury-room; that no person had any conversation with said jury during their deliberation; that the said sheriff and constable were not specially sworn as to their duties respecting the jury.
    That, during the progress of the trial, evidence was submitted, that William and Martha Davis resided in Miami county; that said Martha kept house, but no proof whether it was as a married or single woman; that they acted as man and wife, so far as sleeping together was proof of the fact, at different times; that the sheriff treated them as man and wife, and lodged them in the same cell, with but one bed; that she on one occasion called him ‘ my dear ’— also that, at Sidney, they stopped at a tavern, and acted towards each other as strangers — paid their bills separately, and lodged in separate apartments, and left for different points of destination; that, after the verdict of guilty, said Martha made her affidavit, stating that she was, in truth, the wife of said William, and that, having been treated as the wife of said William by the officers, she supposed that fact was conceded, and did not prepare to prove that she was such, and was taken by surprise; and that she could prové such fact, if allowed to do so, on new trial being granted.
    Upon this state of facts, a motion was made for a new trial, in substance, upon the following grounds :
    That the jury had been permitted by the Court to disperse, without the consent of prisoner or counsel, during the progress of the trial; that the officer, who took charge of the jury over night, was not sworn not to converse with them, and not to permit others to converse with them; that, when the cause was finally submitted to the jury, they did not retire under the charge of an officer specially sworn to take charge of the jury; that the said Martha was the wife of said William, and should not, therefore, have been convicted; that she was taken by surprise by the conduct of the officers, and was therefore not prepared at the trial to prove her marriage — all of which was overruled by the Court, and a new trial refused.
    To this decision of the Court a bill of exceptions was taken, and the following errors assigned:—

      First: That, after the jury were sworn and the trial commenced, the jury should not have been permitted to disperse and separate during the adjournment of the Court, but should have been placed in the custody of a sworn officer.
    Second: That, after the evidence and argument was closed, the jury were not placed in the charge of a sworn officer.
    Third: That the offence was joint, and the said Martha could not be legally convicted of committing the offence jointly with her husband.
    Fourth: That there was no evidence to rebut the presumption, that the said Martha had committed the offence by the command and under the influence of her husband.

      Stanton & Walker, for Plaintiffs in error.
    First: ’ It is claimed that the Court erred in not making some order in relation to the manner in which the jury should be kept, and in suffering them to disperse at the adjournment of the Court, during the progress of the trial.
    It is admitted, that it is competent for the Court to make . any order they may deem necessary, to prevent the jury from being tampered with during the progress of the trial, aiid before they retire to consider of their verdict.
    But it is their duty to exercise the discretion conferred upon them; and if they fail to do it, and turn the jury loose, to exercise their own discretion as to the manner in which they shall conduct themselves, it is error, and the judgment should be reversed. This position is believed to be abundantly sustained by the following authorities: 1 Chitty’s Crim. Law, top paging, 513, margin, 629; The King v. Wm. Stone, 6 Term Rep. 531; The People v. Meany, 4 Johns. Rep. 295; 3 Black. 375, note 37; 2 Barn. & Aid. 462; 4 Black. 360, note 21; McKinney v. The State of Illinois, Law Journal, vol. 3, No. 11, 502; Buller’s Nisi Prius, 308; 4 State Trials, 222; 4 Hawkins’ P. C. 233, chap. 36, sec. 15 ; 2 Caines’ Cases, 305; Foster, 16 and 23; Co. Littleton, 221.

      “ It is a general rule, that there can be no separation of the £ jury, in a criminal trial, after the evidence has been entered £ upon, and before a verdict is given.” Roscoe’s Crim. Ev. 227
    Second: The Court erred in sending out the jury to consider of their verdict, without placing them under the care of a sworn officer. The matter is not mended by the fact, that the sheriff conducted the jury to their room, and then left them in charge of one constable, who in turn handed them over to another, but neither of whom was sworn.
    It is no part of the official duty of the sheriff, or a constable, to take charge of juries while they are considering their verdict. They derive their power from the Court, and act in obedience to its orders.
    The custody and care of juries belongs to the Court; they may exercise their discretion as to the manner in which they shall be kept. This is a judicial act, and the Court cannot delegate the power of exercising this discretion to a ministerial officer, and thereby escape the responsibility that properly belongs to them.
    And the Court have no power, in the exercise of this discretion, to place the jury in charge of any body but a sworn officer.
    “ If they (the jury) cannot agree in a short time by consult- £ ing in their box, they retire to a convenient place provided for £ them, and the bailiff is sworn to keep them, as follows: You £ shall swear that you will keep this jury, without'meat, drink, £ fire or candle; you shall suffer none to speak to them, nor £ shall you speak to them yourself, but only to ask them if they £'are agreed, so help you God.” 1 Chitty’s Crim. Law, 516, margin, 632. In modern times, this oath has been so far altered as to allow the jury necessaries and refreshments ; yet no authority can be found for dispensing with it altogether.
    ■“ According to the cases of Van Doren v. Walker, 2 Caines’ £ Rep. 273, and Fink v. Hall, 5 Johns. Rep. 437; in that it £ does not appear, by the return, that a constable was sworn to £ attend the jury.” Beekman v. Wright, 11 Johns. Rep. 441. This was a civil case, on certiorari, to a Justice’s Court, to re verse a judgment for twenty-five dollars.
    “ It was the duty of the Court to have sent a sworn officer £ with the jury; and if this duty was neglected, and the fact £ should appear from a bill of exceptions, the judgment would ‘ be reversed.” McKinney v. The State of Illinois, cited above. The fact does appear from the bill of exceptions in this case.
    “The officer, oh receiving charge of them, (the jury,) is £ sworn to conduct them to their room, and not suffer them to £ separate, or to eat or drink, water only excepted, or to speak ‘ to them unless it be to ask them if they are agreed, or by £ order of the Court.” Engles v. The State of Ohio, 13. Ohio Rep. 492.
    “ Although, in modern times, the ancient strictness has £ yielded to a more enlightened reason, yet no rule tending c to insure the impartial administration of justice, and the purity £ of jurors, has, in the slightest degree, been abandoned or imc paired.” Sargeant v. The State of Ohio, 11 Ohio Rep. 414.
    The Legislature have recognized the necessity for swearing the officer who has charge of a jury, by providing for the payment of the clerk’s fees for administering the oath. Swan’s Stat. 395. The law presumes that, in the absence of such an oath, the jury will be tampered with; and it is for that reason, that the oath is required. Can this presumption be rebutted by proof? ■ We hold that it cannot. But if it can, are ex parte affidavits to be taken as conclusive ?
    We may deny the facts stated in the affidavits, and ask that the witnesses may be sworn “ to tell the whole truth.” We demand an opportunity to cross-examine them; we offer evidence to contradict them; we demand compulsory process to compel the attendance of .witnesses. It is a mockery of justice to permit a fact of this magnitude to be established by the ex parte testimony of such witnesses as the party may select.

      It is submitted with confidence, that, to dispense with this oath, would “tend” to defeat “the impartial administration of 5 r justice,” and endanger “ the purity of jurors-.”
    It has long been settled, that the testimony of a juror is inadmissible to prove misconduct in the jury. This effectually closes the door against the only practicable means that can ever be resorted to, to prove that'a verdict has been, in fact, procured through improper influences.
    If the door shall now be opened on the other- side, for the admission of improper influences, the purity of jurors, and the impartial administration of justice, cannot be presumed.
    Third: Martha Davis ought not to have been convicted, because the offence was committed by her jointly with her husband. The record and bill of exceptions show, that they are known by the same name, addressed each other as husband and wife — were treated as husband and wife by the landlord in Port Jefferson — by the officer who arrested them — by the tavern-keeper, where they stayed the night after they were arrested, and by the sheriff and jailor, from the time of their arrest till their trial; that there was no testimony tending to rebut this proof.
    “ Where, on the trial of a man and woman, it appeared by c the evidence that they addressed each other as husband and ‘ wife, and passed as such, and were so spoken of by the wit-c nesses for the prosecution, it was held sufficient.” Roscoe’s Crim. Evidence, 879.
    “ The law seems to protect the wife in all felonies, committed £ by her in company with her husband, except murder and ‘ manslaughter.” Hale’s P. C., chap. 47.
    “ If a woman commit theft, burglary or other civil offence, '£ against the laws of society, by the coercion of her husband, or £ even in his company, which the law construes a coercion, she £ is not guilty of any crime, being considered as acting by cortic pulsion, and not of her own will.” 4 Blackstone’s Com. 28.
    “ As the charge against the husband and wife was joint, and £ it has not been left to the jury to say whether she received the £ goods in the absence of her husband, the conviction of the c wife cannot be supported, though she had been' more active £ than her husband.” The King v, Archer, 2 English Crown 146.
    “The Court said the indictment could not be supported £ against Susannah Trimmer, as she was charged with having e committed the offence jointly with her husband. Whereupon £ the Solicitor General (Davis) entered a nolle prosequi.”.— Commonwealth v. Trimmer, 1 Mass. Rep. 476. . , ■
    “ The general doctrine is, that a feme covert incurs no legal £ guilt by the commission of civil offences, by the coercion of ‘ her husband, or even in his presence.” Commonwealth v. Neal, 10 Mass. Rep. 152.
    “ And if a wife act in company with her husband, in the ‘ commission of a felony other than treason or homicide, it is £ conclusively presumed that she acted under his coercion, and £ consequently without any guilty intent.” Greenleaf’s Evidence, sec. 28, page 35.
    It is deemed unnecessary to multiply authorities; and it is claimed that the judgment must be reversed, and that Martha Davis must be discharged from custody.

      H. Stanbery, (Attorney General,) for the State.
    Only three of the causes assigned for error are relied upon by the plaintiffs in error:
    First: That the jury were allowed to separate during the progress of the trial.
    It seems to me this is not an open question since the case of Sargeant v. The State, 11 Ohio Rep. 472. The Court held in that case, that “ in both civil and criminal cases the Court may, £ in their discretion, during the progress of a trial, permit the £ jury to disperse for the purpose of obtaining food and rest: £ but in no case can the jury, after they have retired to consider £ of their verdict, be permitted to separate and disperse until £ they have agreed.”

      Second: That the Court erred in suffering the jury to retire to consider of their verdict, without placipg them under the care of a sworn officer.
    There is no pretence of any misconduct on the part of the jury — of any separation, or of any access to them from without. On the contrary, it appears by affidavits made .part of the transcript, that they were kept in their room up to the time of their agreement, and were then immediately conducted into Court and delivered their verdict.
    As to the objection that no special oath was administered to the sheriff in relation to the custody of this jury, I am not aware of any practice of swearing a sheriff in such cases. In some circuits it is usual to administer such an oath to the constable in attendance upon the court. This oath is in the old form of the English practice. We have no statutory provision which requires it. At the best it is but a mere form, as is said by this Court in The State v. Engles, 13 Ohio Rep. 492.
    Third: The remaining assignment of error, is, that the Court erred in passing a judgment of conviction against the said Martha Davis, who was proven to be in company with her husband at the time of the commission of the offence.
    The only answer that need be given to this assignment, is, that it assumes a fact not warranted by the transcript. There is no proof that Martha Davis was the wife of William Davis. The testimony relied upon by the counsel for plaintiffs in error to establish the marriage,, is thus summed up-by him: “ In the £ first place they have the same name —address eacli other as £ husband and wife,” (videlicet, she once called him £ my ‘ dear,’) — ■“ were treated as husband and wife by the landlord in £ Port Jefferson, by the officer who, arrested them, and the £ tavernkeeper where they staid the night after the arrest, and £ by the sheriff from the time of their commitment until their £ trial.”
    But if such testimony even tended to establish the fact of marriage, the supposed wife had all the benefit of it. No part of it was excluded by the Court. It seems it did not satisfy the jury.

      Wm. Lawrence, upon the same side.
    • First: It is not error for the jury to disperse by permission of the Court during' the progress of trial when the Court adjourns. Sargean} v. The State-, 11 Ohio Rep. 472 ; The State v. Engles, 13 Ohio Rep. 492; Sutliffet.al.Y-. Gilbert, 8 Ohio Rep. 405, and.3 Ohio Rep. 53; People v. Douglass, 4- Cowen, 26; Clark y-. Coe, I Pá. R.ep. 278;. Crane v.. Sayer, 1.Hal-stead, 110 ; BurriU- v. Phillips,;! .Gall. Q. C. Rep.- 360 ; Sliép-, herd y'. Bayler, 2 Southard, 827 yT.Coweffs Rep. 232,238 in npte'; ex parte Hill, - 3 Cow-e.n; 355; -Winslow, v.-Draper,' 8 Pick. 170'; The King.v. Wolf et al., 1 Chit. Rep. 401,;-Daña v. Tricker, 4 Johns. Rep. 487 ; Harrison v;- -Rowan, 4 . Wash. C. C. Repi 32; 1 Chit. Cr. Law, 629; 2-B. &'A. 462; 1 Chit. Rep. 401; S. C. -Smith- v. Thompson, 1 Cówen, .221'; Douglass v.'.-Tousey,. 2-Wend. 352. • :The refusal to grant, a new trial is' in-theydiscretion-Pf the iCquit below, but- is not examinable on.er-rofV; 2- Peter’s .Dig.'. 549, ..citing U.. States v.Gillies, -Pét. C. C't Rep: ■ 15:9; The' case: of McKinney., v. ■ Illinois, Law J'pur. yo1.-3,No.'11, wq,s decided tinder a statute of Illinois,- . . . , ■ -■' ■ -■ V . -
    -.'■•Second: \ The judgment will not be-reversed because the ;Rpn'stabIes- 'were --hop specially.-.sworn.. The-'authorities cited show, that, without proof'of-misconduct on'the part of the jury, their yer'dict-will'.,not- be set--aside;/even -wheré they disperse after;haying retired 'to-, consider of- their verdict, (as is said in á case referred, tó; above,) '— even- “ in a- .capital case, contrary to the directions of 'the .Court.” If such separation of the jury will not, per se, set-aside their verdict; the fact that a constable had charge of the.'.jury-without being specially sworn, will not avoid a'verdict without' proof' of misconduct; No statute requires them to. be sworn;. such is not the practice in Qhio; but. our. law (Swan’s-Stat; 39)' recognizes them as officers of court. Besides, the record shows that the jury were “ in the custody of the sheriff,” .and-'hp is the executive officer, of -the court, and. as such, properly had charge of the jury. It is well settled that all presumptions of improper conduct on the p;.rt of the jury, may be rebutted, and it is done in this case by the affidavits made part of the record.
    Third: This Court will not review the discretion exercised by the Common Pleas in refusing a new trial, so as to permit Martha Davis -to make more full proof of her marriage. New trials rest in the sound discretion of the Court below, and its exercise in that Court will not be reviewed: U. States v. Gillies, Pet. C. C. Rep. 159. Nor can this Court infer that there was no evidence rebutting the legal presumption that Martha Davis committed the crime under the coercion of her husband. It will be presumed that the Court and jury had that evidence, and did their duty; 3 W. Law. Jour. No. 11, 491. The whole evidence is not set out in the bill of exceptions. If Martha Davis proved her marriage, the jury found' that the presumption of coercion was rebutted. If she did not prove it, and if it does not so appear here, there is nothing on which this Court can act to grant a new trial. If that defence was not made, it is now too late to make it. Any other rule would encourage a defendant to hold in reserve a part of his defence, and would lead to endless new trials.
   Read, J.

The errors complained of, are, in substance, a violation of law in the conviction of Martha Davis; a non-observance of the rules of conducting a criminal prosecution; and a refusal to grant her a new trial for the causes set forth in her affidavit. These errors look to the entire discharge of Martha Davis, and a new trial as to one or both.

As to the entire discharge of Martha Davis. It is claimed that she was the wife of William Davis, and joined with him in the commission of the crime, and, therefore, was not guilty, as the law presumes that she acted by the command and coercion of her husband. The legal principle claimed for her benefit, is admitted; but the fact of coverture, necessary to bring her within its operation, was not established. The fact of he? being the wife of William Davis, was submitted to the jury and found against her. Hence her conviction was legal. True, the facts and circumstances tending to prove her married, were objected to by the prosecuting attorney after being detailed in evidence, but the record does not show that they were ruled out or withdrawn from the consideration of the jury.

As to the error in refusing to grant a new trial. New trials are granted for some error or misconduct in the conducting of a trial, or for facts or circumstances which lie without the record, but which, when established, induce the belief that the accused has not had a full and fair opportunity to disprove the charge, or to claim the benefit of those safe-guards and principles secured by the law to every person upon trial for crime. Motions for new trials are said to be addressed to the sound discretion of the Court, and its decision upon such, motions will not be disturbed by a revising Court. This depends upon the grounds upon which the motion for a new trial rests.

If a new trial be asked because of error in the proceedings, which appear of record, and it be refused, it is error, and the judgment will be reversed. But if the grounds of the new trial are matters of facts which are extrinsic to the record, and are to be established by proof other than the record, the credibility of witnesses and the effect of the evidence is necessarily submitted to the Court. If they find against the facts claimed, and refuse a new trial, such finding and refusal are the legitimate exercise of a discretion reposed, which is final, and cannot be reviewed or reversed. Of such nature was the application of Martha Davis for a new trial, for the grounds set forth in her affidavit,- made after verdict, that she was a married woman, and could establish, the fact if permitted the opportunity, on a new trial. The Court undoubtedly were not satis fied that her statements were true, looking to the whole evidence as disclosed on the trial.

As to the errors claimed to have been committed in the mode of conducting the prosecution. It is claimed as error that the jury were permitted to separate and disperse during the progress of the trial, and before verdict, and were.not sent out in charge of an officer specially sworn, when they retired to consider of their verdict.

Whether jurors shall be permitted to disperse during the progress of a trial, is a matter committed to the sound discretion of the Court. It is no longer an open question. This was decided in the case of Sargeant v. The State of Ohio, 11 Ohio Rep. 474; and also in the case of The State of Ohio v. Engles, 13 Ohio Rep. 492. In the latter case it was decided, furthermore, that the jury might be permitted to disperse after they had agreed, and return a sealed verdict. The reasons for relaxing antiquated strictness, are fully given by the. Court in those cases.

It is said that the officer having charge of the jury-when they retired to consider of their verdict, was not specially sworn.

The jury retired under the charge of the sheriff. He is an officer sworn to discharge his duty; and to take charge of all juries constitutes a part of his duties. It is not necessary to administer to him an oath to discharge his whole duty, and a special oath to discharge each particular duty. One of the objects of administering the special oath to officers having charge of juries, in ancient times, appeared to be, to secure an observance of those senseless and harsh measures which looked oftentimes to the compelling of a verdict by physical suffering, rather than a conviction of reason, which both officer and jury were disposed to disregard. That has passed away, and with it the means resorted to, to enforce it. Jurors are now considered as honest men — disposed to discharge the obligations of their oath and do justice; and it is not going very far, to presume that they would resist all efforts to corrupt them by improper influences, as much as a sworn constable.

But in this case there appears to be nothing wrong, even in form. It is not claimed that there was, in point of fact. So far as the jury were concerned, it appears to be conceded that they acted honestly and fairly. The sheriff, who was the proper officer, took the jury in charge. The fact that he permitted a constable, w;hó .was in' attendance on the Court, to watch the door in his temporary absence,-we do not think such' a violation of principle as would demand á new trial. Besides; under the statute, the .'sheriff -is entitled-to the-assistance of constables during the térfn of" court, and when so acting,' he is bound by his official óath, and need not be- specially ,'s.worn.

Judgment Affirmed.