source: Caselaw Access Project

author: Judge Wood

license: Public Domain

text:
    *Davis Lessee v. Livingston.
    Grant of administration is not the commencement of a suit, within tile provisions of a statutory saving clause of actions and suits pending.
    This case was adjourned here for decision, from the county of JButler. It was decided upon a single point, and only so much of the case is reported as is necessary to understand that point.
    It was an action of ejectment, brought by heirs at law, to recover lands of which their ancestors died seised. At the trial, the material facts were agreed. The ownership of the ancestor, the possession at the time of his death, and the heirship of the plaintiff’s lessors, were admitted. The character of the defendant’s title was also admitted. On March 11, 1803, the territory constituting the county of Butler comprised part of the county of Hamilton. On that day, letters of administration were granted on the decedent’s estate, in Hamilton county.- On March 24, 1803, the legislature established the county of Butler, within the boundaries of which the lands in dispute lay. On May 9, 1804, the court of common pleas of the county of Hamilton, at the request of the administrators, made an order for the sale of the decedent’s real estate, for the payment of his debts. In August, 1804, a sale was effected and a conveyance made. The defendant claimed under this sale.

      At the trial, the defendant offered this grant of administration, order of sale, with proof of the sale and the conveyance, in evidence. The plaintiff’s counsel objected to receiving them; but they were admitted, and consequently a verdict rendered for the defendant. A motion was made fora new trial by the plaintiff, on the ground of error in admitting this evidence. The determination of this motion was reserved for decision here.
    Dunlevy, for the motion.
    J. Woods, against it.
   Judge Wood

delivered the opinion of the court:

It is claimed by the defendant’s counsel, that the granting of administration on the 10th of March, thirteen days before the counties were divided, was the commencement of a “ suit or -'¿cause,” [226 which was pending at the time of said division; and that the subsequent order and sale of the lands in Butler, by the direction of the court of common pleas of Hamilton, comes within the saving clause of the statute.

In the case of Ludlow’s Heirs v. Wade, 5 Ohio, 504, this identical question was presented on an order of the orphans’ court, issued for the sale of the lands of an intestate, and this court decided that such an order issued, was not a suit or prosecution pending within the saving clause of the statute of 1805.

In the case of the Heirs of Ludlow v. McBride, 3 Ohio, 259, this court have also determined, that under the law of 1795, for settling estates in the orphans’ court, that court could not direct the sale of lands by administrators, unless they lay in the same county where the court sat.

In reviewing these cases, they appear to us to settle the questions presented, as far as they can be settled by this court. We are fully of the opinion that the grant of administration is not a suit or cause, within the saving clause of the act referred to, and that the court of common pleas in Hamilton could not legally direct the sale oí lands in Butler, by administrators, in 1804; that such order, and all the subsequent proceedings had upon it, are illegal and void; that the deed from the administrators could convey no title when, founded on such order, and that the court erred in receiving evidence of such proceedings, and such deed to go to the jury, to prove title in the defendant.

A new trial must be granted, with costs, to abide the event.


author: Judge Wright

text:
    *B. M. Piatt v. St. Clair’s Heirs, Bank of the United States, and others.
    A judgment creditor may resort to chancery to subject the effects of his debtor beyond the reach of execution at law, before he takes out execution on his judgment, if it appear that the debtor has not effects to satisfy the judgment, or the effects are connected with equities or trusts, or involve a variety of interests, so that adequate remedy can not be had at law.
    Upon a sci. fa. on a mortgage, where the mortgagor, to show payment, exhibits evidence of his dealings, and also of a judgment in his name against the mortgagee, and the jury find the payment and a balance due to the mortgagor, the judgment offered in evidence is not merged in the judgment for the defendant, upon the sci. fa. on the mortgage, or extinguished, but .stands as a judgment, to the extent of the balance remaining due the mortgagor.
    A juror may be a witness, to relate what claims of a party were allowed by a jury, under a plea of payment.
    An agreement with some of several defendants to make no defense to the suit, and let the property of a co-defendant be sold, if not carried into execution, will not affect the complainant’s real rights.
    The right to proceed by sci. fa. to charge decedent’s lands in the hands of heirs, no longer exists. Such land must be converted into personalty by the administrator to pay debts. The heir and his alienee hold the lands descended discharged of the ancestor’s debts, if the creditor do not assert his claim within five years after the administration account is settled.
    Lands, at the death of ancestor, descend to the heir, and are his, charged with the ancestor’s debts, until the representative of the personal estate of the deceased proceed to convert them into money to pay the debts.
    The heir, in such case, is bound to pay the taxes, and if he suffer them to accumulate and the lands to be sold, become himself the purchaser, and have them conveyed to his guardian, or to another, in trust, the estate, as to creditors of the deceased, is not changed.
    A sale of land by administrator, for debts, to a trustee, to place it beyond the reach of creditors, under an agreement or understanding that he should hold it for the benefit of the heirs and such debts as the parties might agree, is fraudulent and void.

      A trustee of a fund in which several parties are interested has no right to make any agreement to advance the interest of one of the parties at the expense of another of them, even if confirmed by the court; the court will be held to have confirmed the act inadvertently.
    An administrator has no power to create a trust. If a minor can, he is then chargeable with fraud, as adult. A sale by an heir is good, but the purchaser takes subject to the debts of the ancestor.
    Persons dealing with heirs for lands are chargeable with knowledge of the extent of their rights.
    Where there are several tracts of land descended, and some have been aliened by the heir, equity will compel a creditor to seek his debt: 1. Of that unaliened; and 2. To proceed back upon that aliened in regular order, beginning with that last aliened.
    When one has a lien upon two funds, and another a posterior lien upon only one of them, the one having both liens will be compelled first to exhaust the subject of his exclusive lien, and permitted only to resort to the other for the deficiency.
    In cases of decedents’ estates, where the administrator is before the court, equity will so shape the proceedings as to settle the estate.
    This case was decided by Chief Justice Collett and Judge Wright, on the circuit, at the county of Butler, in May, 1833. It had been elaborately argued and investigated in bank, in December, 1832, but was sent back to Hamilton county to make an additional party. The case is fully stated in the opinion *of [228 the court. The arguments are too voluminous to be inserted.
    Caswell, Hammond, and Starr, for the complainant.
    N. Wright, V. Worthington, E. King, and C. Fox, for the respondents.
   Judge Wright

delivered the opinion of the court:

The complainant, claiming to be a judgment creditor of the estate of St. Clair, upon which execution has been issued and been returned nulla bona, prays this court to charge his demand upon certain real estate which was of the intestate, now in the hands of the defendants. Yolurainous matters are set forth in the bill, answer, exhibits, and evidence, many of which, in the estimation of the court, have no material bearing upon the real controversy before it. I will not, therefore, state the allegations of the bill and answers in detail, but content myself with giving a statement of the material facts of the case, as the court understand them to be made out upon the papers, the documentary evidence and testimony on file.

The complainant with his brother, now deceased,'shortly before St. Clair’s death, in September, 1820, entered into an agreement with him, by which they undertook to satisfy certain liabilities of St. Clair to the Farmers and Mechanics’ Bank of Cincinnati, then about to be transferred to the Bank of the United States, and for the sum so satisfied, the Piatts were to have credit upon a mortgage, held by St. Clair against them, then amounting to about eleven thousand dollars; and for the residue, they were to be paid in land on Main street, in Cincinnati, at seventy-five dollars a foot. In pursuance of this agreement, the Piatts satisfied for the said St. Clair the sum of twenty-three thousand eight hundred and seventy-five dollars and forty-nine cents, and took a transfer to themselves of the liabilities of St. Clair. This arrangement with the bank was not fully completed until about October 14, 1820, a few days after St. Clair’s death.

St. Clair died suddenly, intestate, in September, 1820. Administration on the estate was granted to William Lytle, in March, 1821. The administrator did not pay the claim of the Piatts, but admitted a part of it as a general claim upon the estate, and confessed judgment for the amount, in favor of the Farmers and Mechanics’ Bank, for the use of Piatts, May 10, 1821, for seventeen thousand seven hundred and forty-one dollars and twelve and 229] one-half cents, supposing thereby, that *he secured to himself the privilege of paying it in the notes of that bank.

When St. Clair died, the taxes upon his real estate were unpaid for the years 1819 and 1820. The administrator paid .these taxes, and those for 1821, but having no faith in the validity of tax sales, .and finding it inconvenient to raise money to pay the taxes for 1822, suffered them to x-emain unpaid, expecting that no sale would take place, and that the tax would lie until another year. •Contrary to his expectation, the lands were brought to sale for taxes, and bidders attended. Arthur St. Clair, jr., one of the children and heir, then a few months over nineteen years old, attended the sale without any intention of bidding, but being advised to bid, and assured of pecuniary aid, he did, on December .24, 1822, buy in the estate at the tax sale. By his consent, the collector’s deed was made to Jones, his guardian, on May 24,1823 The administrator did not consider this sale as extinguishing the lien of creditors.

On February 26, 1822, the administrator, representing the personal assets as insufficient to pay the demands against the estate, applied to the probate court, according to law, for an order to sell the real estate of the intestate. Upon this ápplication, an appraisement was made in March, 1822, though not returned to the court and confirmed until March 17, 1823, on which day a sale was ordered, returnable on August 19, 1823.

On June 11, 1823, Jones, guardian, at the request of A. St. Clair, his ward, conveyed the estate to Joseph S. Benham, in trust for the heirs of St. Glair. Two days after this, Arthur St. Clair, jr., filed a bill to quiet the title to these lands, in the name of Ben-ham, the pendency of which he caused to be advertised in the newspapers. This bill was afterward dismissed.

On June 20,1823, the administrator took out the order of court, for the sale of the estate, advertised the sale on the 23d of the same month, in the same paper with the notice of the quia timet bill, in the name of Benham. The sale took place on August 6, 1823. In the written conditions of this sale, the administrator set forth a number of liens upon the estate, subject to which the purchaser of him would take. Amongst these, were Benham’s claim, under the tax sale to Jones, and the Piatt claim, “under an alleged contract” with St. *Clair, before his decease. The [230 terms of sale were payment in four equal installments, in nine, fifteen, twenty, and twenty-four months, with interest from the sale, upon satisfactory security. At this sale, the estate was struck off to Arthur St. Clair, jr., who wanted a few days of being twenty years of age. He paid no money, nor gave any security. The administrator returned the sale to the court, without naming the purchaser, and it was confirmed August 19, 1823, by the court, without its being shown to whom the sale was made.

On November 12, 1823, Lytle, in his capacity as administrator, in conjunction with young St. Clair, conveyed the estate to Joseph S. Benham, as trustee, “ without interest in, or responsibility for the lands,” to hold to him or his successors, assigns, or grantees, in trust, to pay the purchase money, and of “liquidatingsuch claims against the estate of A. St. Clair, as the parties to the deed might see fit and expedient.” Amongst other things, this deed recites, that young St. Clair was “ desirous of securing to himself and coheirs the ultimate resulting proceeds ” of the land, “ after paying the purchase money, and satisfying such claims as all the parties to the deed may agree upon.” It provides for the distribution of the residue of the proceeds, equally amongst the children of St. Clair, or the division of land amongst them, as might be convenient. Benham took both these trusts out of sympathy and regard for the St. Clair family.

Some time prior to this sale, a negotiation had been opened by the administrator, with the Bank of the United States, one of the creditors of St. Clair’s estate, having in view the liquidation of her claim, by the conveyance of a portion of the lands of the estate held under Benham’s conveyance from Jones. On November 13, 1823, one day subsequent to the deed from the administrator to Benham, the Bank of the United States adopted a resolution, in these words : “ Resolved, That if the legal representatives of Arthur St. Clair, deceased, convey to the president, directors, and company of the Bank of the United States, by a clear, undisputed, and unincumbered title to the satisfaction of George W. Jones, the lots designated in the draft exhibited by Henry Avery, and described in the article for adjusting,’etc., forwarded by George ~W. Jones, together with the lots marked in the same draft, Nos. 35 -and 32, then the agent is authorized to make án advance to the family of Arthur St. Clair of five hundred dollars; to advance 231] for the ^payment of taxes belonging to that estate a sum not exceeding three hundred dollars ; to give to the said representatives a check on the Miami Exporting Company for the sum of two thousand dollars, and'to execute a release of all claims by the bank on said estate.” Under the authority of this resolution, after its receipt in Cincinnati, Jones, as agent of the bank, completed the arrangement with the administrator; took from Ben-ham a conveyance of the lots, on December 8, 1823, and executed a release to the administrator and heirs of that date. At that time, the bank had the control of a mortgage upon St. Clair to the Miami Exporting Company, of June 29, 1820, on out-lot No. 23,. for fourteen thousand five hundred and eighty-four dollars; another, dated March 6, 1820, given to the Cincinnati College, upon out-lot No. 34, for four thousand dollars, and a judgment entered in the Hamilton common pleas, February 24, 1820, for twelve thousand four hundred and thirteen dollars and fifty-five cents, and other claims against the estate, amounting to nine thousand two hundred and thirty-four dollars and nine cents. These several claims, with interest, at that time amounted to about thirty-six thousand three hundred and twenty-eight dollars and thirty-eight cents, exclusive of advances made for taxes and to the widow and heirs. The bank, at that time, held the paper of Lytle, the administrator, on which St. Clair was security, to the amount, principal and interest, of seventy-nine thousand eight hundred and fifty-eight dollars and eighty-five-cents, and held the estate liable -on a small note of one Sinks, amounting, principal and interest, to two hundred and ninety-seven dollars and eighty-seven cents.

Piatt filed a bill in chancery against the representatives of St. ■Clair, praying for a specific performance of the contract made with St. Clair in September, 1820, for the lot on Main street, which was dismissed.

In August, 1824, the administrator not having credited anything to Piatt on the mortgage, or paid him anything on account of the judgment, brought a sci.fa. upon the mortgage against him, to which he set up as a defense payment under the contract of September, 1820; and on trial in May, 1824, he gave in evidence to the jury the contract aforesaid, and the whole amount of claims paid under it (including the note embraced in the payment in his favor), against the administrator, and obtained a verdict of the jury that the defendant was “entitled to have so much of the matter set off by his plea, arising under an agreement made with Arthur St. Clair in his lifetime, as is equal to the amount due upon the mortgage, in the writ of scire facias mentioned, set off against the same, which mortgage money amounts to ten thousand eight hundred and seventy-two dollars and twenty-four cents on October 14, 1820, leaving a balance due to the defendant May 20, 1828, of twenty thousand one hundred and thirteen dollars and forty-one and three-fourths cents, besides costs.”

^Martin, one of the jurors, testifies that the jury allowed [232 Piatt’s entire claim, which consisted of various notes, one or two accounts, and a judgment, and gave him a verdict for twenty thousand dollars.

There is some uncertainty attending the transaction between Piatt and the administrator. The arrangement with the bank by which the Piatts acquired St. Clair’s paper was completed as early as October 14,1820. The amount at that time is conceded to have been twenty-three thousand eight hundred and seventy-five dollars and forty-nine cents. The mortgage money then amounted to ten thousand eight hundred and seventy-two dollars and twenty-four cents, which would leave due from the estate to Piatt at that date thirteen thousand and three dollars and twenty-five cents. The judgment against the administrator of May 10, 1821, was for the sum of seventeen thousand seven hundred and forty dollars and seventy-seven and one-half cents, besides costs.

It does not appear that any part of the sum due from St. Clair’s estate to Piatt was ever paid by the administrator or the heirs, though it is testified by Kirby that in behalf of G-eneral Lytle he once called on Piatt, and offered to convey to him, in satisfaction of his claim, a lot on Tine street, a part of the premises held by Ben-ham. This offer was refused, because the lot was remote and of but little value.

The out-lots in Cincinnati which were conveyed to Benham were subdivided into four or more squares of small building lots, and sold from time to time under the direction of the trustee, the heirs, and their guardians. And many claims against the estate of St. Clair were liquidated by the conveyance of portions of this estate as subdivided; and Benham, the trustee, conveyed some thirty or forty different lots in the subdivision for the satisfaction of such claims between the date of the deed to him and the year 1828. Many of these lots have been resold, and passed through various hands. Much of the estate has been enhanced in value by improvements.

Lytle, the administrator, died in 1831, without having settled up his administration account. The greater proportion of the disbursements he "made were of the proceeds of sales of portions of the trust property.

From the month of June, 1827, down to March, 1832, the heirs of St. Clair made numerous conveyances of portions of the trust property included in Benham’s deed, and by him subdivided, the consideration for which conveyances, expressed in the deeds, amounts to upward of forty-one thousand dollars.

In 1831 partition was made among the heirs of St. Clair of the 233] then remaining portions of said real estate, and each *one’s portion thereof was allotted in severalty. Some of this estate still remains in said heirs.

The conveyance to Benham in trust, and by him to his various grantees, has been recognized and confirmed by repeated acts of the administrator and adult heirs, and the guardians of the minor heirs, and the estate divided by the partition is still held under the conveyance of Benham.

There can be little doubt but the arrangement with Benham was made with the assent of Lytle, the administrator, and the other persons concerned, with the intention to place the real estate of the intestate in a situation to be managed for the benefit of the heirs, and to use it advantageously for them to discharge the demands against the estate. In this no fraud was intended by the administrator and the others concerned. The measures were prosecuted with good feeling for the children, without intention of injury to creditors, and without any distinct impression that the injury would result to them. Such things are frequently done; and it is quite probable that the proceedings in this case saved this estate from actual insolvency.

Besides the claim of the complainant, there are still some other claims upon the estate outstanding and unpaid.

The first question arising in the case is, whether the complainant shows himself a judgment creditor, entitled to come into this court for relief?

Lytle, the administrator, confessed a judgment in favor of the; complainant as early as 1821, one month after he was appointed. By the chancery act, judgment creditors, where the debtor has not| sufficient effects subject to levy to satisfy the execution, may proceed | in chancery to subject the effects of the debtor, in the hands of any j person to the payment of the judgment. 29 Ohio L. 84. The chancery act of 1824 gave to judgment creditors the same power, but restrained them from proceeding in this court, in some cases,' until after the execution had issued and been returned at law! 22 Ohio L. 85-88. The jurisdiction of the court may be sustained upon either of these laws, on the case made, if the judgment remains in force, or upon general principles, because the case is so; connected with trusts and equities, and involves such a variety of!, interests that plain and adequate remedy can not be had at law.;

But it is urged that the judgment of Piatt having been set off in satisfaction of the suit on the mortgage, no longer exists, but is merged in that proceeding. It appears that upon the scire **-facias against Piatt, on the mortgage, the defendant re- [2$i lied upon the plea of payment.. To sustain this plea, he proved to the satisfaction of the jury the original contract with St. Clair, to take up his notes in the Farmers and Mechanics’ Bank, and exhibited the notes so taken up, an account, and also the judgment in evidence. The jury found that the sum of ten thousand eight hundred and seventy-two dollars and twenty-four cents was due on that mortgage on October 14, 1820, when the agreement was consummated, and that so much of the sum due to Piatt from the estate, as was equal to that sum, was a payment of it. This was a substantial finding of.the plea of payment for the defendant, upon which there was judgment for him. Does this operate to extinguish the judgment which the complainant obtained years before against the administrator? The act under which the scire facias was prosecuted, 22 Ohio L. 232, only authorized the defendant to avoid the award of execution by showing payment, or satisfaction, or some other legal bar. The statute of offsets did not allow the pleading a set-off in bar, but only to make offsets available in certain actions upon notice. 22 Ohio L. 101. This law was not considered applicable to the proceeding by scire facias on a mortgage, and of consequence was inapplicable to the case against the present complainant. Such was the judgment of the court. One of the jurors has been examined as a witness as to what was offered in evidence before the jury, to prove the ¡Dayment. His evidence is objected to by the respondents as incompetent to prove what is of record. If the objection is good, there is no evidence to show the judgment of the complainant was used on that trial at all; and of course it stands available to him, in this case, for the whole amount. But we see no valid objection to his testimony as to what constituted the payment or satisfaction of the mortgage, upon which the jury found their verdict. He proves that Piatt, on that issue, gave in evidence various notes, one or two accounts, and a judgment; that the jury allowed all the claims, and found a verdict for Piatt of twenty thousand one hundred and thirteen dollars and forty-one and three-fourth cents. The utmost the respondents can ask from this testimony is, that the judgment given in evidence shall be holden by the court as the same described in the bill. We so take it. A recurrence to the date, the amount of that judgment, the sum admitted to have been paid for St. Clair by the Piatts, and the sum due on the mortgage in October, 1820, will furnish grounds from which the amount due when the verdict was 235] found may be ^ascertained to be near what the juror swears it was, say nineteen thousand one hundred and seventy-nine dollars and eighty-six cents. The judgment, with the interest calculated up to the time of the trial, would amount to the sum of twenty-five thousand one hundred and ninety-one dollars and eighty-five cents. It was necessary to prove the judgment to the jury in order to explain the whole transaction ; but what was absorbed by the verdict will depend upon the sum due in October, 1820. If that sum, independent of the judgment, exceeded the ten thousand eight hundred and seventy-two dollars and twenty-four cents, then due on the mortgage, the balance would remain a ■debt against the estate, and if that sum, at the date of the judgment, did not amount to more, then the judgment would remain in full force for its entire amount. If it amounted to less, the judgment would have to be reduced to the true amount by the proper credit. If. more, the excess would, remain, in its original ■shape, a claim against the estate. The conceded amount settled by the Piatts at the Farmers and Mechanics’ Bank is twenty-three thousand eight hundred and seventy-five dollars and forty-nine •cents. The ten thousand eight hundred and seventy-two dollars and twenty-four cents due on the mortgage, deducted from this, leaves thirteen thousand three dollars and twenty-five cents. This, with interest from October, 1820, to May, 1821, the date of the judgment, w.ould amount to thirteen thousand four hundred and sixty-two dollars and fifty-five cents, yet the judgment was confessed for seventeen thousand seven hundred and forty dollars seventy-seven and a half cents, more by four thousand seven hundred and eighty-eight dollars and twenty-two cents; what this excess was for, we can not certainly ascertain, nor is it easy to make cut clearly what is now due the complainant. The administrator, in his statement to the court in 1826, puts this claim down at "thirty-two thousand dollars. In the agreement signed by Piatt and heirs, it is estimated at twenty thousand one hundred and thirteen dollars and forty-one cents on May 20, 1828.

The amount of Piatt’s claim on October 14, 1820, was $23,875 49

The mortgage of the same date................................. 10,872 24

Left due Piatt...................................................$13,003 25

Interest on this, balance to May 2, 1833....................... 9,789 50

Balance due Piatt then......................................$22,792 75

To which add costs and interest on the two judgments, 121 22

Sum due Piatt, May 2, 1833, .$22,913 97

In this state of the case we do not feel warranted in saying that the judgment is satisfied and inoperative. It seems satisfactorily made out that the complainant does sustain the relation of.a judgment creditor to the estate of St. Clair. His execution can not be 236] satisfied at law. The personal assets are exhausted. *The real estate has been passed into the hands of a trustee, subdivided and sold out, and is now colorably held discharged of the lien of the creditors of the intestate. In such a state of case chancery will afford redress unless the complainant has done some act to deprive himself of its aid.

It is objected to the complainant’s right that since this suit was commenced he has entered into the agreement of May, 1831, which had a fraudulent object as it regards the Bank of the United States, one of the defendants, and that he is so affected by this fraud that the chancery will afford him no relief, but leave him to his legal remedy. As to this, it will he sufficient to observe that the testimony shows that this paper was executed by the complainant and the heirs under the expectation that the bank would accede to it. But the bank having refused its sanction to the proposed measure, it has not since been esteemed valid amongst the-parties to it. This objection therefore fails.

^Section 27 of the judgment and execution law of Feb- [237 ruary 4, 1824, 22 Ohio L. 118, allows judgment creditors, after the time allowed by law for executors and administrators to settle their accounts, to proceed by scire facias to charge the judgment upon the lauds of decedents, held at their death; The administration laws give to the executors and administrator authority, on application to the probate court, and on its order, to sell these lands to pay debts. The act concerning executors and administrators, passed March 12, 1831, 29 Ohio L. 240, repeals the clause of the act of 1824, allowing the scire facias against heirs, and limits the lien of the creditor upon the lands of the decedent to five years from the decease, if the estate is settled up with the probate court; or if not settled, to the time of five years after the estate shall be settled. After such limitation, lands are held by the heir, or his alienee discharged of the lien, though the heir is liable, for any claim against the estate, to the full extent of the assets received from the estate. At no period, we believe, in this state, have the lands of a decedent been free from the incumbrance of his debts, in default of personal assets; and we believe the representatives of the personalty have always had. power, in some proceeding in the probate court, to convert, by sale, the lands necessary to pay debts into personalty, for distribution among creditors. We are of opinion that the proceeding by scire facias, by the creditor, did not, at any time, exclude the jurisdiction of this court. The policy of our law of descents and distribution has always looked to the equal distribution of intestate’s effects, first, 238] among ^creditors, and secondly, of the residue, among heirs. The strictly legal proceeding by scire facias by the creditor, provided in the act of 1824, in its practical operation, would have defeated an equal distribution, by enabling a diligent creditor, who should first proceed, to make an appropriation of the whole of the lands to himself excluding other creditors. The law prohibited the recovery of costs, if suit was brought against the administrator before the expiration of the time limited for settling the estate; so that creditors, if they brought suit, could recover no costs, and if they did not bring suit, they would be in da'nger of losing their ■claims by the superior diligence of some more considerate creditor. Another difficulty, still, would be felt. A great proportion of claims in this state are within the jurisdiction of justices of the peace. On judgments by justices, no scire facias could issue, nor would any such judgment authorize the sale of land. The practical operation of such a system would be, first, a partial appropriation of decedents’ effects among creditors; and second, to give a decided preference to the holders of large claims with the jurisdiction of courts of record, over the holders of smaller claims within,a justice’s jurisdiction We can not think this was the intention of the general assembly, or that in passing these laws, it was intended to take from this court the power of proceeding, in such cases, where one suit would settle the whole estate, and execute the laws in their spirit of equality afld justice.

This brings us to consider Whether the sale to Arthur St. Clair for taxes, and hy the administrator, were'such as to discharge the lands which descended to him and others, from the payment of the debts of their ancestor. At the death of St. Clair, his real estate descended at once to his children as heirs at law, incumbered, it is true, with a liability'for his debts; but until actually subjected to the debts by the personal .representative, or the creditor, by some judicial proceeding, they were the property of the heirs. The possession was theirs — the rents and profits theirs. They were bound of course to pay the'taxes. It would be strange, indeed, if either a court of law or equity should feel compelled to give such effect to the culpable omission of the heir to keep down the taxes, as to enable him, in consequence, to acquire a perfect right to the estate, to the total exclusion of those whose rights he was bound to protect. We look upon the purchase by the heir for taxes as but his own method of paying them. He was bound to pay, and the conveyance *to the heir, or under his direction [239 to his guardian, in no way changes the situation of the estate. The guardian could not purchase up the* estate of his ward and acquire any right, except for his ward. Whatever, therefore, passed by the sale for taxes accrued to the benefit of the heirs who before held the fee. The conveyance by the guardian to Benham,.as trustee, effected no change in the estate, at least so far as it regards creditors. None of the parties at the time regarded these transactions as disincumbering, in fact, the estate from the debts of the intestate. This is conclusively evidenced by the subsequent sale to the same person by the administrator. If, as is contended, the first -sale passed the estate from the heirs of St. Clair, what was there for the administrator to sell?

If the sale by the administrator was made in pursuance of an understanding, on his part, to place this estate out of the reach of creditors, for the benefit of the heirs, it was, in legal contemplation, fraudulent and void, however laudable the motives which influenced the act on the part of the administrator. As administra- ■ tor, he was the legal trustee of the fund, guarding alike the interest of the creditor and heir. He had no legal right to engage in any act tending to advantage one of those for whom he held in trust to the exclusion of another. The return to the probate court and confirmation there imparts to this void act no vitality. The parties to a fraudulent act can not make it available against a stranger to the fraud. The genius of the law opposes itself to all fraud, and the most solemn judicial proceedings, when tinctured. with it, are vitiated. 5 Ohio, 294. The sale to the heir, under the circumstances, being of no avail against a creditor, it follows, of course, that the conveyance to Benham, in trust, in performance of that sale, would be of no greater avail. The law conferred upon the administrator no power to create a trust. Conveying in trust, as agent of the minor heir, he could convey no more right or estate thijm that heir had. If it be conceded that a minor can create a trust estate by directing a third person to convey to a trustee, that will make no difference in this case; because, if the heir were capable of making a contract, he is chargeable with the legal fraud, and can avail himself -of no advantage resulting from it. If incapable of making the contract and creating a trust, how can Benham, the trustee, acquire any title? We consider this conveyance, and those made under it, as if made by the heirs themselves. The guardian, administrator, and trustee, 240] in these ^conveyances, are the agents of the heirs. The heirs, as such, had an undoubted right to sell the real estate which had descended to them. The purchaser took, subject to the incumbrance of the debts of the ancestor. The extent of the lien of this incumbrance, and the manner of enforcing it, is matter of general law. No one dealing with heirs, for lands cast upon them by descent, can acquire the estate discharged oí the incumbrance of the debts because they were ignorant of the law. Ignorance of the law excuses no one; much less will it impart to its possessor the power of acquiring property in land directly contrary to law. This principle would apply to the original conveyances in this case and all the mesne conveyances. No one could trace his title without carrying it back to the decedent, and from him, by descent, to the heir.

It is strenuously argued that the Bank of the United States and the other defendants and alienees were bona fide purchasers without notice, and entitled to be protected against the creditor. Is this true as a fact? Did the bank suppose the legal title in the guardian or trustee? It is declared as a fact, in the evidence printed by the bank and urged in argument, that the bank agent considered the sale void for taxes, and threatened suit; and the guardian, to avoid the vexation of the-suit, conveyed to Benham. The bank became the grantee of Benham, the trustee, for a large portion of the estate. With whom were the negotiations for purchase carried on? St. Clair, the minor heir and pretended owner, or his guardian ? Benham, the trustee? - With neither. The negotiation was opened with the administrator, or his agent, the respondent Avery, before the transfer to Benham or the sale, by the administrator, to St. Clair. After these alleged sales and the conveyances, it was completed; but the case is without a scintilla of evidence going to show any change in the negotiations on account of the sales. Is it possible to believe the agent of the bank completed so large a purchase, after these sales, under the belief in their' efficacy to pass the estate from the administrator and creditor, and still continued his negotiations with the administrator, whose interest in the subject had passed entirely away? The agent swdars that he had confidence in the soundness of the title and purchase. He claims not to have been ignorant of any fact connected with the title. Knowing these facts, he rests on his confidence in the soundness of the title. The face of the deed to Benham, every paper connected with the title, discloses to the world the *nature of his interest, and the connection of the [241 St. Clair heirs with it. Questions of this kind are determined by known, settled principles — principles well understood and inflexible — principles that can not contract or expand, and will notvary on account of the variety or magnitude of the interests involved. It is urged upon us with much vehemence, that the estate in question is immensely valuable; that large sums have been expended in improving it; and that many persons are now interested. We do not see why these arguments were pressed. Surely no counsel can suppose this court wants firmness to do its duty because great interests are involved and numerous individuals are to be affected ; or imagine we had power, in the administration of the law, to consult expediency or policy. With such questions we have nothing to do. As a court, we “ can listen only to the mandates of the law; and can tread only that path which is marked out by duty.” Considering, then, as we do, the conveyances to Benham, and all the mesne conveyances from him, as but the alienation of the heirs and their alienees, there can be no question but all who derived title from that source are legally affected with notice, and take their respective portions of the estate subject to the incumbrance of the intestate’s debts. The question now presented is: How will equity enforce the lien of a creditor upon the estate in the hands of the heirs or their alienees? At law, the heir is only liable to the creditor for what he has received of his ancestor by descent, and a jury, upon a scire facias, may assess the value of the lands descended. The creditor is limited in his recovery to that amount. Brown v. Shuker, 2 Crompton & Jervis, 311; McVickers v. Ludlow’s Heirs, 2 Ohio, 246; Union Bank of Georgia v. Meigs’ Heirs, 5 Ohio, 314; 1 Strange, 665; Wolf v. Pounsford, 4 Ohio, 397; 1 Penn. 152.

In cases where several distinct tracts of land have descended to the heir, some of which have been aliened by him and some not, equity will so far control the creditor in asserting his lien as to require him to resort, first, to the land remaining in the heir unaliened, and discharge the residue from the lien on payment of the balance due, if the property is more than sufficient for that purpose. It will ascertain the value of the property descended and the amount of the claim upon it. Where justice requires it, we doubt not the power of the court to permit a liquidation of the demand in discharge of the lien, or to imposo such conditions upon 242] the sale of the estate as shall do ^justice to all having interest in the subject. It seems to us equally clear that the demands.of justice cam not require, and that a court of equity will not lend its aid to enforce a lien upon a particular tract of land, which has passed into the hands of third persons, until the residue of the estate subject to the lien, which can be conveniently realized, is exhausted. It is a rule of equity, perfectly well established, that where one has a lien upon two funds, and another a posterior lion upon only one of them, the one having both liens will be compelled to assert his claim first upon the subject of his exclusive lien, so that he may be satisfied, if possible, without interfering with the rights of the junior creditor. 1 Hopk. 66, 460; 4 Johns. Ch. 123; 19 Johns. 486; 2 Atk. 446; 1 H. Blk. 159; and Miami Exporting Co. v. Bank of the United States and Ruffners, decided at this term. The rule, in our view, is directly applicable to this case. That portion of the real estate of St. Clair which remains unsold is subject to the lien of the creditors of the estate, and to no other lien. That portion aliened by the heirs, either directly or through the intervention of their agent and trustee, Benham, is subject to the same lien, and also to that of the alienee; The application of the obviously just rule referred to requires of the court first to subject the lands to the creditors of the estate, which remain in the hands of the heirs.

It was urged in argument that the claim of the alienees rested on the same foundation with that of the heirs, and if the sale by the administrator was considered invalid, that all the proceedings under it should be disregarded, and the creditor left to assert his lien upon the entire estate descended or upon such portions of it as he should select. Perhaps this position might be true if urged in a court of law on a scire facias, but it will not obtain in this court, having the whole subject and all the parties before it, and the power so to shape its proceedings as to attain the ends of justice and settle the whole matter amongst all interested without further' litigation. A party asking justice at the hand of this court is always required to do justice, and the court never lends its aid to do an unjust or unequitable act, or one calculated to involve others in vexatious litigation or controversy further than is absolutely necessary.

As there is an administrator of St. Clair’s estate party defendant, there will be little difficulty in ascertaining the outstanding claims upon the estate; chargeable upon the realty and so shaping our proceedings as to effect a complete adjustment, *not [243 only of the claim of the complainant, but of all others remaining unpaid. The continuing minority of some of the heirs is no- obstacle in the way. A creditor’s lien for debts of the ancestor may be enforced against minor as well as adult heirs coming into an estate by descent. The conveyances to and by Benham, the subdivision of the estate by him, the partition among the heirs, are. all acts of confirmation of those transfers, and more or less obligatory upon the heirs; perfectly obligatory upon the adult heirs-who have done any act of confirmation since they have attained to majority or shown a disposition to acquiesce. But we are not called upon now, in the view we take of the case, to decide the-questions amongst the heirs. Questions touching their interests-may arise in some future stage of the cause, and if they do they, will be then considered.

Upon the whole we consider :

1. That the complainant has an outstanding judgment against the estate of Arthur St. Clair, for which he can have relief in this court, and that- there are other outstanding claims against the estate.

2. That the personal assets of the estate have been exhausted.

3. That the purchase of the realty for taxes accrued to the benefit of the heirs and the estate.

4. That the pretended sale of tbe'realty by the administrator is fraudulent and void as against creditors, and that the estate descended upon the children and heirs at law, subject to the payment of the debts, and is still liable for the same.

5. That the estate be charged with the sum necessary to pay the outstanding debts, the costs of the complainant, and the master’s further proceeding.

The following decree was entered in the cause:

This cause came on to be heard upon the bill, amended bill, answers, replication, exhibits, and evidence, and the court having .seen and read the papers and evidence, and heard the argument ■of counsel thereon, finds that the complainant recovered a judgment against the administrator of St. Clair, on May 10, 1821, upon which execution has been issued and returned; that there are no goods or chattels of the defendant out of which to make the amount, and that after allowing to the estate of St. Clair credit for the amount of the mortgage money, and all other demands of the estate against the complainant, there is left due the complainant SM] in equity, on May 2„ 1823, ^including costs and interest, a balance of twenty-two thousand nine hundred and thirteen dollars and -ninety-seven cents; that the personal property of the intestate, St. Clair, has been completely exhausted in the payment of debts and expenses by the administrator, leaving the amount due the complainant and other claims unsatisfied; that the real estate described in the bill descended to the heirs at law, subject to the payment of the -debts due by their ancestor; that the purchase by A. St. Clair, one of the heirs at law, for arrears of taxes, and the conveyance under said purchase to John T. Jones, guardian for said heir, inured to the benefit of all the heirs of the intestate St. Clair, and left the estate so purchased subject to the debts due by their ancestor. That ,th,e subsequent sale of the real estate of the intestate by the administrator to young St. Clair, then a minor, the conveyance by St. Clair and the administrator to Joseph S. Benham, as trustee, the partition of the premises by the trustee and heirs, and the sale and conveyance thereof since, do not vest in said trustee or his alienees, or the heirs of the estate, the land so conveyed discharged of the debts of said intestate; but the said sale, conveyance, and proceedings, are fraudulent and void as against the rights of creditors to enforce the payment of their debts out of said estate. And the court is of opinion that the law and equity arising upon the facts is with the complainant. But inasmuch as the court is not .fully advised ot all the facts and details necessary to a final disposition of the whole matters arising, it is ordered and decreed that the cause be referred to Crafts J. Wright, a master commissioner of this court, with instructions to ascertain and Rtate accounts, showing:

1. How much is due from the intestate to other creditors than the complainant, including interest up to May 2,1833, showing the name of the creditor and the amount of each claim and interest.

2. What land of the intestate descended to his heirs at law, designating what lies in the city of Cincinnati, by the description by which it is known in the subdivisions made by Benham and the heirs.

3. What parcels of said lands are still held in common by the heirs at law.

4. What portions of the land descended have been since aliened by the heirs, or the trustee, or otherwise, specifying the date of the conveyance, the names of the grantors and ^grantees, [245 the tract conveyed, and the person holding the same on July 10, 1828, at the filing of the bill in this case.

In the taking of which accounts the said master may examine the documents and evidence on file, and the parties may take other testimony, and may, if necessary, compel the parties or witnesses to produce before him any books or vouchers, or written evidence in their possession or control; and if the sum due the complainant, and those found due to other creditors of the intestate, with the accruing interest, the costs of this suit, and of the master in executing this order, be not paid within sixty days thereafter, into the hands of the master, for those interested, the said master shall, forthwith, after the expiration of said sixty days, proceed to raise the money required to discharge the said claims and costs, by sale of so much of the real estate descended as aforesaid, according to the laws of Ohio, regulating sales on execution, as may be necessary to raise said moneys, in the following order, that is to say:

1. Those lands, if any, which the said heirs still hold in common.

2. Those now held by the heirs in severalty, apportioning to each heir the proportion of the same required, and selling so much of each one’s share as may be necessary to raise from each so much of his proportion of said sum as shall not be otherwise paid to said master.

3. Those which have been aliened or conveyed by the trustee or heirs since July 10, 1828, or so much of them, beginning with the latest conveyed, as maybe necessary to produce the required sum.

4. And if, after the foregoing sales, the sum raised is insufficient to discharge said claims, that then the master report the deficiency to the court, with his proceedings, and the evidence by him taken.

And it is further ordered, that if the parties are dissatisfied with any of the accounts stated and allowed by the master, or his proceedings from time to time in the progress of his acts, and file exceptions, the master shall forbear proceeding to make sale of the premises until the exceptions are disposed of.

And for the coming in of the report and further proceedings the cause is continued.

      Memorandum of an agreement made between Arthur St. Clair, John St. Clair, Eliza St. Clair, of full age; Erancis M. St. Clair, Margaret Belfour St. Clair, Laura St. Clair, minors, by their guardians, heirs of St. Clair, deceased, on the one part, and George Wallace and Daniel Gano, as securities for D. Shepherd, Benjamin M. Piatt, survivor of John H. Piatt, deceased, and Richard Eosdiek, on the second part:
      Whereas, the Bank of the United States holds a large and valuable real" estate, which was of the late Arthur St. Clair, deceased, which the said hank received in payment of certain debts against said estate, amounting, as is supposed, to the sum stated in the schedule below; and whereas it is considered that the proceedings by virtue of which they (the bank) became the holders-of said real estate are void, or voidable, and irregular, especially that the said arrangement was so made as to secure to said bank the whole amount of her debt, to the exclusion of the other creditors aforesaid; and whereas it is supposed that the real estate aforesaid is sufficient in fact to pay all the debts held by tho said bank, as aforesaid, against said estate, and all the other debts enumerated, and as specified in the schedule below: Therefore, for the purpose of a just and fair settlement of said debts of said estate, it is agreed by the said heirs and the said creditors, as follows, to wit: The real estate held by said bank aforesaid shall be decreed to be sold by the court, either m the suit now pending, or such other suit as shall be brought; and Sainual Lewis, or. the part of the creditors, and E. S. Haines, on the part of the heirs, shall, by consent of the court, be appointed special masters for'the purpose of subdividing and selling to the best advantage said real estate, the proceeds of which shall be applied to the payment of the debts against the estate, as follows: 1. The debts due to the bank, and the other debts aforesaid, to be paid, if from said proceeds there be funds sufficient to pay the same; and the residue of the funds, after paying said debts and expenses, to be divided and paid over to the said heirs, according to law. It is agreed that no defense whatever shall be' set up to the debts aforesaid, and no hindrance, either on the part of the administrator or the heirs of said St. Clair, to the most speedy settlement of the said debts of said estate, according to this agreement; and it is further agreed' that no other property of said estate shall be resorted to for the payment of said debts. But if the said property so held by said bank shall prove insufficient, then the loss to be sustained by the creditors aforesaid, in proportion to-their several claims aforesaid. The defenses put in, in the suit now pending, are to be withdrawn.
      It is also understood that Charles Vattier has a claim against said estate which is contested, and is supposed to be without foundation; which claim, if, recovered against said estate, is to be admitted to a pro rata dividend with the-creditors above enumerated; provided, however, that no greater sum shall be admitted to a distribution than what will, with the debts above enumerated, amount in all to ten thousand dollars, besides the Piatt debts.
      In witness whereof, the parties have hereunto set their hands, this 14th day of May, a. d. 1831.
      John St. Clair, for myself and Arthur St. Clair, and Eliza St. Clair, and as guardian for Margaret B. St Clair and Laura St. Clair.

      Charles Eox, guardian for Francis M. St. Clair.

      Benjamin M. Piatt, survivor, etc.

      SCHEDULE OE THE DEBTS TAKEN INTO VIEW IN THIS AGREEMENT.
      Claim of George Wallace, April 8, 1824..................................... $2,253 45
      D. Shepherd ............................................................. 1,100 00-
      Eosdick, January 20, 1820........................................... 202 81
      Benjamin M. Piatt, May 30, 1828...................................... 20,113 41
      Claims of Bank of United States:
      September 25, 1820.......................................$12,422 00
      May 11, 1821..................................................... 8,107 90
      June 29, 1820........................................................ 14,587 00
      March 6, 1820......................................................... 4,000 00
      December 8, 1823................................................... 2,250 00
      Taxes ....................... 350 00
      --$41,716 90'


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      *[The following case, though decided as on the circuit, was considered and adjudged by all the judges.]
    David Stone v. Jacob L. Vance, Abraham Harrison, and Reuben Dove.
    A paper purporting to be a receipt, but containing, in truth, a complete contract between the parties to it, can not be explained by parol, as can be mere general receipts for property or money.
    The payee of a negotiable note, in a suit between the assignee and the maker, is a competent witness to prove upon what terms the assignment was made, if called to the stand by the maker, their interest being adverse.
    A note made and indorsed for the accommodation of the maker, to be discounted at a bank where its discount is refused, can not be transferred as a business note to one having knowledge of the facts, and the amount recovered by the indorser.

      This cause was heard in the county of Fairfield, and taken under advisement for decision in the county of Franklin. The facts are fully stated in the opinion of the court.
    G. Swan, for plaintiff.
    H. H. Hunter, for defendants.
   Judge Wood

delivered the opinion of the court:

This is an action of assumpsit, brought here for decision from the county of Fairfield, founded on a promissory note, executed by the defendants on January 25, 1820, payable to the order of Nathaniel F. Stone, for six hundred dollars, four months after date, at the Franklin Bank of Columbus, and indorsed by the payee to the plaintiff.

The defendant has plead: 1. The general issue. 2. A special plea in bar, setting forth that the note was made by Vance as principal, and by the other defendants as securities for the accommodation of Vance, and was indorsed by the payee and the plaintiff for the accommodation of Vance, and for the special purpose of discount at the Franklin Bank of Columbus, and was placed in the hands of the payee with that design only; that the note was presented at the bank, and its discount refused ; of all which premises the plaintiff had notice. That the plaintiff’s name, as an indorser, was then, by the procurement of the plaintiff, and with a fraudulent intent, stricken from the note, and the blank filled with an indorsement over the name of Nathaniel F. Stone, the payee; and the note thus indorsed, delivered to the plaintiff, as the indorsee, without consideration.

If this plea be true, the note has been given a circulation ^contrary to the agreement of the parties, differing from the [247 special purpose for which it was executed and delivered, with the full knowledge of the holder, without consideration, and the plaintiff is not entitled to recover. Dennison v. J. L. Bacon et al., 10 Johns. 198. In this case the note was made for the purpose of being discounted at a bank; it was offered and rejected. The court say : “ The object of it failed; it should have been returned to the parties who gave it; it was fraudulent in the payees to negotiate it and send it into the world without notice of the agreement under which it was drawn and received. The plaintiff is, therefore, not entitled to recover.” The same principle is also recognized in the case of Woodhull v. Holmes, Id. 231.

What, then, is the proof to support this plea? The first in order, for our consideration, is a receipt, executed by the payee to Vance, at the time the note was made and delivered, and which is in the following words : “ Eeceived, Dayton, January 6, 1830, of Jacob L. Vance, a note, signed by himself, Abraham Harrison, and Eouben Dove, payable at the Franklin Bank of Columbus, in four months from January, 1830, for six hundred dollars, which note, if discounted at said bank, five hundred dollars is to be applied to said Vance’s credit, with the late firm of Stone & Bostwick.” Signed, “Nath’l F. Stone.”

It is claimed that this paper, executed at the time between the parties, is to be considered as their entire contract, in relation to the note; that it can not be enlarged, restrained, contradicted, nor varied, by parol testimony, of any agreement made before, or' at the time of its execution, unless there is some latent ambiguity. This is, in our view, a well-settled principle, and one which ought not to be overthrown. The evidence which this paper furnishes, then, in support of the plea, is, that this was an accommodation note, made and delivered for the special purpose of discount at the Franklin Bank of Columbus, and five hundred dollars of the avails to be applied to the credit of Yance, on the books of Stone & Bostwick. So far, this contract can not be misunderstood. If it be said the paper in question is a receipt, which the law permits to be explained, the answer is, that this principle only extends'to an instrument taken as evidence of the delivery of property, or evidences of' property, and not to instruments containing entire contracts between the parties, although the word “ received ” may be used in some part of the contract. It is claimed, however, that 248] *there is no express provision in this contract, what shall be done with the balance oí the note, if discounted, or if not, what shall be done with the note itself; that here is an ambiguity which will admit parol testimony, to explain the whole transaction. We think not. Our opinion is, that there is a plain and obvious construction which the law raises from this agreement, and which is as much a part of it as if it were contained within its express provisions. If discounted, say the parties, five hundred dollars shall be applied to Yance’s credit; the balance, says the law and the plain principles of common honesty and justice, shall be money in the hands of the payee, for the use of Yanee, and paid to him, when required. If not discounted, the law speaks in unequivocal terms, that the note shall be restored to the makers.

In further support of the plea, the defendants’ counsel have read the deposition of the payee, to prove that the plaintiff paid no consideration for the note; that he is prosecuting it for the benefit of the payee, and his knowledge of the purpose for which it was given. The deposition, in our view, establishes these facts. The whole field is, therefore, open to -inquiry, as much so as if the payee were plaintiff on the record.

It is, however, objected to this deposition that the witness is incompetent from interest. It is a sufficient answer to this objee> tion that the interest of the witness is against the party who calls him. It is objected, again, that a party to negotiable paper can not be called as a witness to impeach its validity. In the case of Woodhull v. Holmes, before cited, the court say, “that the indorser of a negotiable note may be called as a witness to prove facts subsequent to the indorsement, and which destroys the title of the holder. The court recognize this principle as the settled law on the subject.” The deposition for these purposes, therefore, is properly received.

The plaintiff then claims that this deposition proves, that the note was not made as an accommodation note, but was delivered to the payee unconditionally, to apply to Yance’s credit, on the books of- the payee and Bostwick; to bo presented for discount or not, at the pleasure of the payee. Can the'court receive that part of the deposition as evidence? We think not. It is in direct contradiction of the contract contained in the receipt; or, at least, it would vary the legal import of that contract, which the law would not permit. 3 Stark. Ev. 1009. Parol evidence is, also, inadmissible to vary the legal operation of an ^instrument, by [249 evidence of an intention to that effect, which is not expressed in the instrument. The parol evidence now sought to be introduced, is to prove a verbal contract made at the same time with the written one, that the note was, in no event, to be returned to the makers; nor for any other specific purpose than for a credit on the books of the payee and Bostwick, and was delivered to the payee.- This, in our view, can not be done.

How, then, stands the ease ? The defendants executed the note as an accommodation note, for the purpose of being discounted at the Franklin Bank of Columbus ; they delivered it to the payee for that purpose, and under an agreement, if discounted, a credit of part was to be made on the books of the payee and Bostwick, and the balance paid to the principal, Yance; if not discounted, to be returned to the makers. The payee and the plaintiff indorsed the note; it was presentad by the payee, for discount, and refused; the indorsement of the plaintiff was stricken from the note; it was delivered to the plaintiff without consideration, and with notice of the agreement and specific purpose for which it was designed. The plaintiff is prosecuting this suit on the note for the benefit of the payee. The note has thus been given a circulation, which the parties did not design, contrary to the purpose for which it was delivered, and the court are unanimously of opinion the plaintiff can not recover.


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    The State of Ohio v. Joseph Dawson and Ransom Tracy.
    Held, that when a justice committed a person charged with crime, the court of common pleas, then in session, might recognize the accused for his appearance from day to day, without a habeas corpus, and without inquiry into the circumstances.
    This cause was reserved in the county of Hamilton. The declaration filed in this cause avers, that on August 27,1831, one William Dawson was committed to the jail of Hamilton county, by a justice of the peace, on a charge of passing counterfeit bank notes, knowing them to be such ; and that, at the August term following, the said William being detained in custody of the sheriff, for the aforesaid charge, the said Joseph and Eansom, for the purpose of admitting said William to bail, appeared in the court of common pleas, in open court, and acknowledged themselves to be indebted to the State of Ohio, in the sum of one thousand dollars, to be levied of their goods, chattels, lands, and tenements, if default should be made in the following condition, to wit: that William Dawson aforesaid should appear in the court aforesaid, from day to day, during the said August term, to answer to what might bo objected against him, and not depart the court without leave.
    252] *The declaration contains an averment, that during the term of said court, an indictment, in due form of law, was found against the said William, for having the felonious possession of bank notes, with the intention, fraudulently, to pass them, knowing them to be counterfeit; and that the crime charged in the indictment is the same for which the said William was committed by the justice, and admitted to bail by the court of common pleas.
    The declaration then avers, that after the return of said indictment, and during the said term, were called in said court the said William Dawson, and the said Joseph and Ransom, and were required to jiroduee the body of the said William, which they refused to do, and thereupon the said recognizance was, by the court, declared to be forfeited — of which indictment, recognizance, and forfeiture the plaintiff makes profert, and avers that the said one thousand dollars, mentioned in said recognizance, remains unpaid, etc.
    To this declaration the defendants pleaded nul tiel record, on which issue was joined.
    Vanmater, for the state,
    cited 1 Chit. Pl. 395, 317.
    Strait, for defendants,
    cited 29 Ohio Stat. 155-165; Id. 197, secs. 20, 21; 4 Mass. 643-649; Id. 492; 16 Mass. 447.
   Judge Wood

delivered the opinion of the court:

Under this issue, but two questions can be made. 1. Is the instrument declared on a record? 2. Is it such a one as the declaration describes? The defendants rest the defense mainly under the first branch of our inquiry, that the obligation declared on is no record. If he is correct in this position, there is an end of the plaintiff’s case, in this form of action. A scire facias is not his appropriate nor legal remedy, unless the foundation of this action is matter of record. Such is the law, that where the statute does nod interpose and give the remedy to recover a debt, not of record, a scire facias does not lie.

To prove his cause of action, or his debt, as laid, the plaintiff has given in evidence the instrument purporting to be a recognizance, on which he claims to have declared, and which the minutes of the common pleas show was entered thereon and filed as part of their proceedings, on ^September 7,1831, and during the said [253 August term. This recognizance appears to me to be in the usual form, nor can I discover any material variance between it and the declaration. Is it, then, matter of record? The counsel for the defendants do not deny but that the orders, and the decrees, and the minutes of the proceedings of the court of common pleas, in those cases in which no final record is made, or is required to be made, are legal evidence and matter of record, if the court was in the exercise of its legitimate power and authority. The Supreme Court have so ruled on the circuit in more instances than one. ' The counsel, however, insist that the court had not the authority to take this recognizance, because they were not sitting as an “ examining court,” to inquire, where both the person and the charge were before them. Sow is this? The declaration avers that William Dawson had been committed by the justice on a charge of having in his possession counterfeit notes with the intention to pass them; and that, being in the custody of the sheriff under said commitment, he, Joseph Dawson and Ransom, the defendants, appeared in open court and entered into the recognizance in question. Were the court not in the exercise of their legitimate functions? It is true there is no statutory provision giving to the court the express power, when sitting as a court, without inquiry, to take the recognizance of a person accused of crime. It is a power, however, which has too long been exercised by all courts of criminal jurisdiction to be now questioned. Our constitution provides that all persons shall be bailable by sufficient sureties, unless'for capital offenses. The statute directing the mode of calling an examining court has reference to a prisoner confined in jail, in vacation. The associate judges are to be notified; the prosecutor is to attend; and it is only in such case that an examination into the circumstances of the charge is required. Counsel must be wrong in supposing that the court of common pleas can not recognize a person in custody, charged with crime, who voluntarily submits to enter into such obligation, without inquiry, or without having the charge before them. It is a power incident to every criminal court, and has been practiced in this state since its organization. The order of the court to the sheriff to bring up the prisoner, without a habeas corpus, to be admitted to bail, and to admit him 254] without inquiry, as to the circumstances *of the crime, to bail, for his appearance from day to day, and without the accusation boing laid formally before the court, is, in our view, fully warranted by long-established usage. It follows, then, that such a recognizance, properly taken, is valid; and being a proceeding of our courts, authorized by law, required to be journalized, and actually entered on the minutes of a court of record, it is matter of record on which a scire facias will lie.

The counsel for the defendants next.contends that this recognizance is in too general terms; is void for uncertainty, and, therefore, not matter of.record on which an action can be sustained. The condition, as set out in the declaration, is, that the said William Dawson appear here, from day to day, during the present term, to answer what may be objected against him, and not depart without leave. This is in the usual form, and no substantial objection to it is perceivable. It is unnecessary to specify any charge in the recognizance which had been made against the accused, and for which alone he is to appear and answer, although it is necessary to aver in declaring on such a recognizance that the defendant was in custody on an accusation for some offense, or had been charged with some crime, before the court could hold him legally responsible for having forfeited his recognizance. And so the court decided in the State v. Doyle, Franklin County Supreme Court. The declaration contains this averment.

Sow then stands the case ¶ The defendant, William Dawson, was committed by a magistrate on a criminal charge, while in custody, by order of the common pleas then in session; he entered into a recognizance with sureties for his appearance, from day to day, to answer what might be objected against him, and not to depart without leave; an indictment was found for the very crime for which he was committed; he was called and did not appear, and the recognizance forfeited. The plaintiff shows us the justice’s docket, the mittimus and return, the recognizance, the indictment, and forfeiture; the scire facias contains every requisite, substantial averment; there appears to us to be just such a record as the plaintiff has described, and we are unanimous in the opinion that the plaintiff is entitled to recover.

Judgment for plaintiff.