author: Judge Hitchcock;

text:
    Hazlet, Alexander & Co. v. Jos. Critchfield et al.
    The limitation laws of Ohio are so framed that all actions and causes of action must be governed by the particular act in force at the time the cause of action accrued.
    This case was submitted to the court in the county of Knox, and reserved for decision in bank.
    It is an action of debt. The declaration alleges that the defendants being the stockholders of the Owl Creek Bank of Mount Vernon, on June 8, .1831, in the county of Knox, and carrying on the banking business under the name and association of the Owl Creek Bank of Mount Vernon, were indebted to the said plaintiffs in the sum of eighty dollars, for money lent, and advanced, and deposited'in said bank, at the request of the defendants, by means whereof the defendants became liable to pay, etc., but neglected and refused, etc.
    To this declaration the defendants pleaded, first, the general issue; second, that the cause of action in the declaration mentioned did not accrue within six years before the commencement of the suit,-concluding with a verification.
    Issue is joined upon the first plea, and a replication filed to the second, setting forth that the indebtedness of the defendants stated in the declaration, is evidenced by simple contract and not by specialty; and that' the cause of action accrued to the plaintiffs before February 25, 1821, and after January 25, 1810.
    To this replication there is a general demurrer and joinder.
    Ewing, Harter, and Curtis, for plaintiffs.
    Goddard, Converse, and Brewer, for defendants.
   Judge Hitchcock;

delivered the opinion of the court:

The pleadings in this ease present this question, “ whether an .action of debt upon simple contract, the cause of action accruing ^before the passage of the limitation law of 1824, is barred, if not commenced within six years from the time the cause of action accrued. By an examination of the limitation acts of January 4, 1804, Chase’s Stat. 392, and January 25, 1810, Chase’s Stat. 655, it will be seen that the time within which the following actions shall be brought is limited, to wit: Trespass for assault and battery, slander for words spoken, as for libel, false imprisonment, actions upon book account, for forcible entry and detainer, trespass upon real property, trespass, detinue, trover, replevin, actions upon the case, debt for rent, actions of covenant or debt upon specialty, and actions of ejectment. In both acts the limitation is made to operate not upon the cause, but upon the form of action, except so far as relates to actions founded upon book .account. Actions of debt upon simple contract, are not enumerated as among those limited; and the court, at an early period, decided upon the circuit, that actions of this description were not within .either of these statutes, unless the cause of such action was book account. After the organization of the court in bank, the same was held in the case of Tupper v. Tupper, Ohio, 387.

It is supposed by counsel, however, that'this action is barred by the act of February 25, 1824, more than six years having intervened between the passage of that act and the commencement of this suit. This act, among other things, provides that actions upon the case, and debt founded upon specialty, or any agreement in writing, shall be brought within fifteen years; if founded upon any simple contract, not in writing, within six years from the time the cause of action accrued. By this act, that of 1810 is repealed with the following proviso, “that nothing •in this act shall be construed to extend any action or cause of action which may have been heretofore barred by any statutes of limitation; but all such actions and causes of action shall be adjudged and decided under the statutes by which they have respectively been barred.” Chase’s Stat. 1402, 1403. Taking this act by itself, there might be difficulty in the case under consideration, as the pleadings do not show whether the action is founded •upon a written contract or otherwise. The form of the declaration is for money, lent, advanced, and deposited; but this is no criterion by which to judge of the evidence to be adduced. The declaration might be sustained as well, at least, by written as unwritten evidence. If, however, the contract rested in *parol merely, the cause of action would seem to bo barred, as six years had transpired after the passage of this act and before the commencement of the suit. But for the purposes of this case, the act of 1824 can not he taken by itself alone. On February 8,1826, an act supplementary to that of 1824 was passed. Chase’s Stat. 1528. The reason of enacting this latter law is stated in a preamble. It was because doubts had arisen, in consequence of the peculiar phraseology of the proviso or saving clause in the act of 1824, whether that act did not suspend the operation of all former acts for the limitation of actions and causes of action, not actually barred by such former aetfj, prior to February 25, 1824. To remove these doubts, the acts of 1804 and 1810 are expressly revived, so far as relates to all causes of action accruing during their continuance in force, and are to be barred by the operation of those statutes, and no other. In construing the act of 1824, it must be taken in connection with this supplementary law; and being so taken, there can be no difficulty. The intention of the legislature is-clear that all actions shall be barred by the limitation law in force at the time the causes of action accrued. It was not the design that the law of 1824 should have a retrospective, but a prospective operation. Not that it should affect causes of action which had already accrued, but those which might thereafter accrue.

Such has been the policy of all the state legislation upon this subject, with perhaps a trifling exception in the act of January 4, 1804. This was the first law upon the subject, after the organization of the state government. In section 1, several actions and'"causes of action are limited, and lest it should bo supposed that existing causes of action might be thereby barred, it is enacted in section 5, “thatall causes of action enumerated in this act, which, have already accrued, shall only be barred by counting time of' limitation given to those actions respectively from the passage of this law.” Chase’s Stat. 393. In the act of 1810, there is a section providing “that all causes of action enumerated in this act, which accrued before the passage of the act of 1804, shall only be barred by the provisions thereof, as well as those causes of action which have accrued since the passage of the act aforesaid, and before the passage of this law.” Chase’s Stat. 656. Next comes the act of 1824, with the supplementary law of 1826, which have been already considered, *and then the act of February 18, 1831, which is still in force. The phraseology of the saving clause in this statute is somewhat different from the others, but the effect is the same. It is as follows: “ That all causes of action not heretofore barred,, which subsisted or accrued during the time those acts were in force, shall be commenced within the times therein limited, and not after; and all such actions shall be barred after the expiration of the several times allowed for their commencement, according to the provisions of said acts respectively, and their amendment.” Chase’s-Stat. 1768. It has been contended that causes of action which were actually barred, are not within this saving clause. But such could never have been the intention of the legislature. It would be the-height of absurdity to suppose that they intended to continue thosepre-existing statutes in operation, so far as respected causes of action which were not barred, and to repeal them to such as were. It was held differently by this court, in the case of Bigelow v. Bigelow, 6 Ohio, 97. And with the construction put upon this part of the statute in that case we are satisfied.

From a careful examination of all the legislation of the state-upon this subject, we are led to the conclusion that the laws are so framed that all actions and causes of action must be governed by the limitation law in force at the time the cause of action accrued.

Applying this principle to the cause under consideration, the plaintiffs are entitled to judgment on the demurrer ; because when the cause of action accrued, the law of 1810 was in force, and by that law, there was no limitation to the action of debt upon simple-contract.


source: Caselaw Access Project

author: Judge Wood

license: Public Domain

text:
    C. & J. Wood v. Pugh, Gano and Lee.
    The prayer of a bill, supra protest, for the honor of the indorser, must give-reasonable notice to the party that he has made such payment for his credit, otherwise he is not subjected to refund.
    This case was adjourned from the county of Hamilton, upon a-motion made by the plaintiffs for a new trial. The action was assumpsit, and was founded upon the following state of facts : Thomas-Bell, a merchant of Cincinnati, drew a draft in favor of Pugh, G-ano •.and Lee, on Willis and Robinson, merchants in New York, dated March 21, 1831, at four months. *Pugh, Gano and Lee sold this draft at the Branch Bank of the United States, in Cincinnati, by whom it was transmitted to the branch in New York. The . draft was duly accepted, and on the 3d of August, protested for non-payment, and the legal notice given to the parties interested, On the 4th of August, the plaintiffs paid the amount of the draft as under protest; or, in commercial and legal language, supra protest, for the credit of the drawers and indorsers; and this suit was brought to recover the amount of Pugh, Gano and Lee, the indorsers.
    On the trial, the plaintiffs produced no proof that notice of the ■payment supra protest, for the credit of the defendants, was communicated to them, and the defendants proved that the next day after receiving notice of the protest, they were advised by the cashier of the branch bank of Cincinnati that the draft was paid in New York.
    The defendants’ counsel moved the court to instruct the jury “ that the plaintiffs were not entitled to recover without proving -that they gave a reasonable notice to the defendants that they had paid the draft, after protest, for their honor.” This instruction was given by the court, and a verdict found for the defendants. For error, in this instruction of the court, the plaintiffs moved for ■a new trial.
    Haines,
    in support of the motion:
    The only question now presented for the consideration of the court is, “ whether the holder of a bill for the honor of an indorser must give notice within a reasonable time of such intervention for his honor, although due notice of non-payment has been given ?”
    The general rule of law is, that no man can constitute himself the creditor of another without his consent, express or implied. The only exception to this rule is, the payment of a bill supra protest. The reasons for this rule are, that it induces the friends of the drawers or indorsers to render them this service, and thereby prevent the great expense attending the return of the bill, and preserves the credit of the trader. The law implies consent of the party for whose honor acceptance is made, from the nature of the Javor conferred — being gratuitous, and incurring hazard, for the purpose of rendering a service. An acceptance supra protest may demand recompense *for the credit given, for whoso benefit the acceptance of payment is made. And in case he redraws on such person, his bill ought to be promptly complied with, besides a grateful acknowledgment of the favor. Thus it would appear, from the language of this celebrated writer on the law merchant (Beawes), that the payer for honor is not only entitled to repayment, but to the gratitude of the parties whose names are saved, from discredit. In accordance with this principle, we find in T Esp. 112, it is said, “That the common law, and the law merchant as part of the common láw, jiresumes a general standing request to be made by the drawer and indorsers of an unpaid bill, to-every friend, to prevent the dishonor of the bill and the burden of heavy damages, in consequence of this. If acceptor supra protest, for the honor of an indorser, pays the bill, he may sue the indorser, as he is to be considered as an indorser, paying full value for the bill.” Esp. 112. And in the language of Ch. J. Marshal, “No reason can be assigned why the person who has made himself the holder of the bill, by accepting and paying it under protest, should not recover its amount from the drawer and indorser.”
    As to those parties, he is in the character of an indorser, and as such may maintain an action against all or any of the parties to it, except the person whom he paid, either on the bill or for money paid, etc. He acquires all the right that the holder of the bill had, although no regular transfer be made to him. He is placed in the same position in which he would have been had he purchased the bill after its maturity. In the language of Chancellor Kent, “The policy of the rule granting these privileges to the acceptor or payor supra protest is to induce the friends of the • drawer or indorsers to render them this service, for the benefit of commerce and the credit of the trade.”
    We admit that the intervention of a stranger to the bill and payment for the honor of the parties, does not vary the duties of the holder; he is bound to have it protested at maturity, and to • have the same notice given to the antecedent parties as if the bill was not taken up; but when that formality is complied with, we claim that his right of action is complete — that ho has discharged his duty to the parties, and is then to be considered as an indorsee - for value,-and may claim immediate payment and remuneration, by suit or otherwise without *any notice or advice to the parties for whose honor he had intervened.
    Why should such further notice be required?
    The parties have already, by the protest for non-payment, by the drawer, been notified of the dishonor of the bill, and are thus -enabled to protect themselves by obtaining satisfaction from any parties liable to them; for which purpose alone notice is required. They are then put upon inquiry, and it is then their duty to project their names, and take up their paper, whether in the hands -of a regular indorser, or of a friend who has saved their name from dishonor, and the parties from heavy damages. They owe that friend, in the language of Beawes, a debt of gratitude, instead ■of requiring the further idle act of advising them of such intervention, and thus subjecting the payor for honor to an additional risk, and to one which, if required, would be very apt to put a stop to all these voluntary or gratuitous payments.”
    How will you distinguish between the acceptor and payor for honor as to these rights ? Were the Woods the acceptors for honor and failed to pay at maturity, the acceptance supra protest would have been obligatory on them and they might have been ■compelled to pay. Would it have been then contended that upon such compulsory payment, they could not have recovered against these parties for the want of notice of such intervention ? The only object of protesting the bill for non-payment and giving notice is, to entitle the payor for honor, to all the rights of an indorser; for if “the acceptor for honor receive approbation of the acceptance, he may pay the bill without any protest for non-payment.” The only object, therefore, without such approbation in protesting for non-payment is, to secure all the rights of an indorsee, and. as such, the books consider a payor for honor. Not .a single dictum can be found, requiring the holder for honor, to advise the parties to the bill, of his intervention, and this silence affords a fair implication that no such notice is itecessary. There can be no advantage in any such requisition; but, on the contrary, it would tend greatly to increase the risk to all parties connected with this most useful species of commercial paper, and to •lessen its utility by a diminution of confidence in its punctual .payment.

      *Fox, for defendants :
    In order to determine whether the notice was necessary in this transaction, it will be well to inquire into the character of the party paying supra protest

    It is said any person may appear and accept or pay a draft (after the same has been protested) for any one of the parties to the bill, and, on such payment being made, he is invested with all the rights of the person for whose honor he paid. Bailey on Bills, 213, 214.
    The person paying supra protest can not hold any party who would not have been liable to the party for whose honor the bill was paid. Bailey, 214.
    The person paying supra protest holds in his original character, •and not as upon a transfer from the person he has paid. Bailey, 212, 213.
    A perfect stranger, then, it appears, has the right, according to mercantile usage, without the knowledge of a party to the draft of making that party his debtor by a voluntary payment, without his assent; and the question presented is, whether the law imposes no duty on such stranger in order to perfect his right. We •contend that the law has imposed a duty on the person thus paying, and we say it is this: That he shall, in a reasonable time,
    give notice to the person of what he has done, in order to enable the party, for whose benefit the act is intended, to secure himself •against the effect of the non-payment.
    It is held, wherever an acceptance is made generally, it is considered as made for the honor of the drawer, unless otherwise expressed. Bailey, 45.
    Such acceptance, however, may be so worded, that though it be intended for the honor of the drawer, yet it may equally bind the indorser; but in this latter case, notice of such acceptance must be sent to the latter. Chitty on Bills, old ed., 256; Beawes’ PI. 39,
    If the person do not choose to accept in honor of the drawer.
    “ he may accept for the honor of the indorser, in which latter case he should immediately send the protest in which he made the acceptance to the indorser.” 16 East, 391; Ld. Raym. 88; Chitty on Bills, old ed., 254; Beawes’ PI. 33, 34.
    If we examine the cases, we shall find the uniform practice *of acceptors and payors, after protest, has been to give immediate notice to the persons for whose honor they have acted. Leoux v. Leverett, 10 Mass. 1; Konig v. Bayard, 1 Peters, 261, 262.
    We have, then, the authority of the elementary writers, and thetmiform practice of the mercantile world, in favor of the position we assume, viz: that when any one,undertakes to pay a draft after-protest for the honor of the indorser, he is bound to give that indorser immediate notice of what has been done. This position is-sustained in express terms by the elementary writers referred to, and the plaintiffs have not shown a single case where a contrary doctrine has been held.
    The analogies of the law are all in favor of the position. There-is as much propriety in giving notice in such case, as there is betweeen the parties to the bill or draft. If the object of the notice is to enable the prior party to secure himself, either by taking up the bill and suing the parties ultimately liable to him, or to-enable the surety to secure himself from funds of the drawer, why has not the indorser thesame right to notice from a perfect stranger to the transaction, who voluntarily becomes a creditor of the indorser without his knowledge, as he would have if a party to the bill wished to make him liable?
    It is said, however, that a notice from the holder of the bill is-sufficient notice for all parties. We admit that if the holder gives notice to all the parties of the protest for non-payment, any one whose name is on the bill and has paid the note, may rely upon that notice, but it is only the parties to the bill that can take advantage of the acts of the holder, and even then, the parties who rely upon the act of the holder, do so at their peril; for if he acts incorrectly, if he neglects to give the proper notice, the party relying upon it will be affected by the negligence. Every indorser is bound to notify the prior parties to whom he wishes to resort for payment, and if he employs an agent to do it, he is affected by the negligencaof the agent.
    But we deny that a person paying after protest, can take any advantago of a notice of non-payment given by the holder. Many reasons might be urged in support of this position. In the first, place, the bill can not be paid by a stranger until after it is protested. At the time the protest is made, he has no concern or interest in the matter; it would be strange, therefore, *thafr ho should be entitled to any benefit arising from the notice of protest. But he afterward, by permission of the law, pays the bill;, and then it is that he is required to give a notice to such parties: as he wishes to look to for his indemnity. Is there any hardship imposed upon such a person to require him to give notice of the claims which he thus asserts? On every person who becomes a party to a negotiable paper, this obligation is imposed. No matter how many persons indorse negotiable paper, the law imposes upon each one the obligation, when he pays the note, of giving notice to such of the prior parties as he intends resorting to for payment. To be sure, the holder of the note may, if he pleases, actas the agent of all the other parties to the note, but he need not do it. But it is only prior parties that can take advantage of a notice given by a subsequent party. It is very certain that a second indorsee could not take any benefit or advantage of a notice given by the first indorsee, because he himself would not be liable to the first indorsee.
    The position, then, which we maintain is, that every person who becomes a party to a bill, is obliged by himself or agent, to give notice of non-payment to those who precede him, and that nothing unreasonable is required in holding the payor after protest to the same duty. How can an indorser know where to look for his creditor without such notice? His residence maybe unknown; where to address him, where to find him, so as to pay and possess himself of the draft, the indorser can not tell. The latter can not take up the draft and thus place himself in a situation to pursue the prior partios, without knowing to whom he is bound to pay it. It is in the power of the party volunteering the payment, to prevent any and all difficulties of this kind, by simply notifying the indorser of the facts. If he is negligent, if he omits to furnish the indorser with notice of his having become his creditor, he ought to bear the loss.
    Wright and Walker,
    in reply:
    We hold that the law does not require notice. It is agreed on all hands that there is no express authority holding notice to be necessary in this case. The defendants quote from several elementally writers on the subject of acceptance supra protest, but nothing on the subject of payment. The question, ^therefore, is strictly one of first impression; and we must argue from principle and analogy only. Now, on principle, we do not see the slightest reason for notice. The indorsers in this case had notice of protest. This was enough to put them on their guard as to prior parties to the bill, which is the only object of notice in any case. By notice of protest, their liability to the holder was fixed, whether the holder became such in the usual course, or by intervention supra protest. Furthor notice of payment supra protest is therefore absolutely nugatory; and the law will not require a useless act. Nor do the analogies of the law merchant require notice. If a. bill is not paid, the drawer and indorsers must be notified that they may secure themselves. This is a good reason, and this notice was given. Pugh, Gano and Lee were thus apprized of their liability, and might look to Bell. Here, then, the analogy and the reason on the other side end. But there are expressions and analogies directly in our favor. Thus in Chitty on Bills, 329, the payor after protest must declare “to a notary public, for whose honor he pays, of which declaration the notary must give an account to the parties concerned, either in the protest itself, or in a separate instrument.” It is then sufficient to give the account in the protest itself'. This was done in the present case. The protest attached to the bill is explicit as to the manner of payment, and for whose honor; and this is all the law merchant requires. Again :3 Kent’s Com. 75, 1 ed., giving the reason why the drawer or in■dorser is entitled to call for the protest, and identical bill or number of the set protested, before payment, says, “ without this he ■might be exposed to claims from some bona fide holder, or person who had paid it supra protest, for his honor." But if notice of such ¡payment be necessary, he could never be thus exposed; because without such notice he would not be liable. And Kent further ■says, that it is sufficient to produce the bill and protest at trial. But this would not be sufficient if the party could be entitled to the notice before. For these reasons we insist that the law does ¡not require notice of payment supra protest, after notice of protest.
   Judge Wood

delivered the opinion of the court:

The fact that no case is found in which the question before us has come up for direct consideration is rather surprising, but it forms no available argument for one or for the other *party. It is subject to the plain and obvious answer long since given in such cases ; either way, it may have been acted upon as a matter .too plain for dispute.

The right of one individual to mako- another his debtor, by volunteering to disturb rights legally fixed, upon dobts due, is conifined to this special case of paying a bill supra protest, for the honor of the drawer or indorser. The proceeding has grown up with the law merchant, and we have not attempted to look after its commencement. The elementary writers treat su ch payor as acquiring an original right in himself-against the persons for whose honor he pays, and upon the right thus acquired, he is invested with the rights of the person for whose honor he paid, in relation to other parties to the protested paper. But he acquires no new rights against any one.

Payment, for the honor of the indorser, binds such indorser to refund the amount paid, upon which he is reinvested, with all his original rights, which, until such payment is made, are held by the payor. It would seem but reasonable that prompt notice should, in such cases, be given to a party, upon whom, without his knowledge or consent, these new relations are imposed. The change may very seriously affect his interests; for it might be that eveiy other party^to the bill were his debtors, and bankrupts, so that this payment for honor subjects him to a total loss that could not otherwise have occurred. Had the rule been settled, that no notice need be given to an indorsor, that a bill had been paid, after a protest, for his honor, we should conform to it; but finding it an open question we are clear in deciding that such notice should be required.

A just conception of the operation of any'rule of law can be best obtained at the trial of a case in which it is involved. The temptations it may create, the shifts and resorts to which it may give rise, are very often developed in the course of a trial. There was somewhat of this in the trial of the ease now before us, as reported by the judges who tried the cause.

The drawer of the. bill resided in Cincinnati, where he transacted .a large business as a commission merchant and dealer in produce. He had correspondents and credit in New York, where he was well known to the plaintiffs, and ti'ansacted business with them. There, too, lived the acceptor, also an acquaintance of the plaintiffs. The indorsers, the defendants, *were pork dealers in Cincinnati, with no direct commercial connection in New York. In this state of things, it was obvious that, if immediate notice that the payment of the bill supra protest, for the honor of the indorsei*s, was not one part of the rule of law that charged them, they were placed in the most disadvantageous relation to all the other parties to the bill. The day succeeding that on which notice of the protest was received, information was forwarded that the bill was paid, with no intimation that it was paid for account of any individual party to it. The effect was to induce a conviction on the indorsers that their liability was at an end, and also to re-establish the credit of the drawer. Thus, the indorsers were led to take no steps for their own security, and a door was opened for a confidential understanding between the other parties, in which time was obtained for efforts to restore their credit at the ultimate risk of these indorsers. This might take place, if the rule of notice was not held necessary. And it very plainly shows what a door would be open in just such a ease, for swindling impositions. There is no imputation of that in the case .before us. But the whole facts tended strongly to suggest what abuses the rule contended for by the plaintiffs, might introduce into the mercantile business of the country. New trial refused.


author: *Judge Lane

text:
    B. Piatt v. Heirs of St. Clair, Bank of the United States, and others.
    An administrator conveying his intestate’s lands, sold under an order of court, does not vitiate the conveyance by attaching trusts to it, fairly intended for the benefit of heirs and creditors.
    An administrator’s sale of land of his intestate may be voidable in the hand3 of the first purchaser, and yet valid in the hands of bona fide second purchaser.
    Though an administrator’s deed contain no words of perpetuity, yet if the sale was in fact made of the whole estate, chancery would so decree it.
    This is a suit in chancery, reserved from Hamilton county. The proceedings were instituted in 1828, and questions of the most complicated character have been frequently presented in various aspects to this court. 5 Ohio, 533; 6 Ohio, 227 ; Wright, 261, 596.
    The case was argued by Messrs. Fox, Wright and Walker, for the heirs of St. Clair, and by Messrs. N. Wright and Worthington, for the bank. The point decided is stated in the opinion of the court.
   *Judge Lane

delivered tbo opinion oF the court:

The general object of the bill is to make settlement and distribution of the estate of Arthur St. Clair, deceased. An acoount of the debts has been taken by the master under former decrees, and sales have been made of the unincumbered portions of the land belonging to the estate. All these matters have been acted upon, and are considered to be settled. 6 Ohio, 227; Wright, 261, 592. The Bank of' the United States was a creditor; and the present question is a claim preferred by the bank, to obtain satisfaction of its debt by a sale of the remaining lands, provided a conveyance of certain tenements, which it has heretofore accepted as payment, shall be holden not binding on the heirs.

The facts of the case may be found in 6 Ohio, 227, and Wright, 262. It is not necessary for me to repeat any except those which bear upon the present question.

St. Clair died intestate in 1820. In 1822, Lytle, the administrator, filed his petition to sell lands, and in March, 1823, received the requisite authority. In August, 1823, he sold the estate with the usual forms to Arthur St. Clair, jr., one of the heirs, a minor of about twenty years of age, for the sum of fifteen thousand three hundred dollars. This sale was confirmed by the court, but no money was paid nor conveyance made. On November 12, 1823, the administrator and St. Clair, the younger, by a deed, tripartite, conveyed the land to Ben ham, a trustee, in trust to hold the land: 1. To secure the payment of the purchase money ; 2. To liquidate such debts against the estate as the parties might deem expedient; 3. To secure the ultimate resulting proceeds to the Heirs of St. Clair.

On December 8, 1823, Benham, with the assent and authority of Lytle and of the guardian of the children of St. Clair, made the deed now controverted, by which, for certain considerations involving the extinguishment of debts in judgment, and secured by mortgage to the amount of thirty-five thousand and sixty-three dollars, and the advancement of two thousand six hundred and fifty dollars for taxes and other purposes, he conveyed certai n lands, parcel of his said purchase, to the Bank of the United States. Two minor heirs of St. Clair are contesting the validity of this deed by an action of ejectment. If it be holden to confer a good title, the debt which the bank once held against the estate is extinguished by it; but if the deed conveys no title, it is conceded to be ri<>-ht *to set up the debt against the estate, and to satisfy it by a further sale of lands. In adjudicating, therefore, upon the validity of this deed, we decido two cases, viz: the ejectment brought by the heirs, and the point presented by the bank, in Piatt v. Heirs of St. Clair, to obtain satisfaction of its debt under that decree.

The objections preferred to the trustee’s deed are:

1. That it was not made to the purchaser at the sale, but to another person. This objection is removed by a decision of this court, 7 Ohio, 204, where a conveyance to an assignee is held good.

2. That an administrator, exercising a limited and delegated power, to be strictly exercised, has no authority to convey any estate except an absolute fee. If the objection assumes the deed to be void, because it contains no words of perpetuity, it is plain, from the transaction, that the parties contemplated the creation of an entire legal fee simple; and if the power was given, and the execution defective, the mistake will be aided in equity. 2 Ohio, 393; 3 Ib. 529; 4 Ib. 493. But if it be asserted that an administrator can attach no uses to a conveyance of the legal estate, the justice of this position is not recognized. Admitting that, having no interest in the land, he has no power except to convey in fee simple, that he can not, like a donor of an estate held in his own right, prescribe limitations or impose conditions at law, yet the legal title may pass by a conveyance in fee made with the requisite forms to a grantee capable of holding th(-r land. When trusts (which are not recognized except in chancery) are attached to such an estate, they affect the parties to the deed only. Where the power to convey subsists in the administrator and a legal conveyance made in good faith, the ulterior disposition of those acquiring the title can not be questioned by heirs, creditors, and strangers.

3. That the sale was fraudulent. It has been found by the first decree, 6 Ohio, 227, that as the parties designed by that sale to secure advantages to the heirs and certain preferred creditors, at the expense of the others, the general creditors might treat it as void, being against the policy of law insuring equal distribution, and might pursue the land for the satisfaction of debts. We do not doubt the correctness of this decision; we intend to carry it into effect. But the doctrine bearing upon the present case lies behind this, and has been ^discussed but not decided, viz: ■whether the holder of a fraudulent title may not transmit a good, one to a purchaser in good faith for a valuable consideration.

It will be observed that, in this case, the petition, the appraisal, and the order for sale, being the ceremonies instituted by law for the protection of the heirs, were regularly complied with, and conferred the power to sell. If the purchase of the younger St. Clair had been unattended with collusion, the estate of the heirs in these lands would have rightfully passed to him at their price. The illegality of this sale consists not in an intention to injure the heirs, but in an attempt to create a secret trust for their benefit at the expense of creditors, and in an effort to give unjust preferences among creditors themselves. It is right for the injured creditors to avoid the sale. No person aiding or knowing the fraud can be permitted to set it up to prevent an equal distribution among them. But it is good between the parties; for it is made in the forms of law, and liable to be avoided by those only upon whom the fraud is attempted. If, while matters are in this condition, one of the defrauded parties secures his rights, and purchases the land in satisfaction of his just debts, although such a sale may be set aside by creditors, if it prevent an equal distribution, it seems to us good against' the rest of the world. For a fraudulent feoffee may transmit a good title to an honest purchaser for a valuable consideration. His right to convey becomes perfect, by matter ex post facto. 1 Soil. 133; 1 Eras. 92; 18 Johns. 515; Sug. Vend. 11, 198; 1 B. & P. N. R. 332. That this transaction was without actual fraud, or intention to injure the heirs, is plain ; for it was matured by the co-operation of the administrator and young St. Ch.ir, aud the selected trustee and the guardian of the children, all acting in the interests of the family; and it is apparently one of the steps by which the estate was saved from insolvency. The title by a trustee makes no difference; for he had the capacity to hold and transmit it to such a purchaser, in the same manner as St. Clair if he had been of age, and had taken the conveyance to himself.

It is necessary to discriminate between the application of this principle at law, and the equitable doctrine concerning a purchaser for a valuable consideration without notice. The latter emphatically belongs to a court of chancery, is generally used as a de ense, and enables him who holds this character to *assert his legal advantage over equal equities. But where the title of a purchaser in good faith, for a valuable consideration, is relied upon in a court of law, the element of notice has no bearing on the case. If such purchaser have notice of the fraud, the books say he knows it does not affect him. Roberts on Er. Con. 39; Sug. Vend. ed. 1836; 1 Ves. 202; 2 Ves. 51; 1 Atk. 625.

4. That the deed frpm the administrator to Benham contains no words of perpetuity. Admitting that no fee can be created by deed, without the word heirs, this conveyance may pass at least an estate for the life of the trustee, which is still subsisting, and will prevent a recovery in ejectment.

It has been the effort of the court, in the various decrees which they have rendered in this complicated case, to produce such a final settlement and distribution of the estate as would do justice to all parties. The manner in which the bank acquired this property from Benham has been repeatedly examined, and our conclusion is that they took a legal title, in good faith, for what, at that time, was a full-consideration, with the consent of all parties in interest capable of acting, and with the approbation of the guardians of the minors, subject only to the claims of creditors for equal distribution among creditors. It is evident that a conveyance in fee was intended, for “ all the right of A. St. Clair, at the day of his decease held,” is attempted to be conveyed, and the objects of the trust could not be attained without it. If, then, any less estate be conveyed, the suit in chancery, in which all the parties are before us, presents a convenient opportunity to correct the mistake. Without attempting to decide whether' the deed is defective, a decree may be taken, declaring the title of the bank, except it shall be necessary to recur to it for equal distribution and enjoining all persons, parties to this suit, to abstain from molesting their possession, and all further questions are continued.


text:
    Lessee of Margaret St. Clair et al. v. Bank of the United States.
   This suit was determined by the adjudication of the preceding case. The reasons of the decision may be found in the opinion of the court.


author: Judge Grimke

text:
    *Bank of Utica v. Joseph Card.
    A discharge of a debt between two citizens of the same state, under the insolvent laws of the state, where the debt was contracted after the laws were enacted, is a good defense to an action on the judgment brought in Ohio.
    This case was adjourned from the county of Cuyahoga.
    R. Hitchcock, for plaintiffs.
    Andrews and Erost, for defendant.
   Judge Grimke

stated the case, and delivered the opinion of the court:

This was an action of debt on a judgment rendered in court in New York, in the year 1826. The suit in which this judgment was obtained, was founded upon a promissory note made in the state where both the parties were resident at the time. The defendant was arrested upon execution on this judgment, and obtained his discharge under the insolvent law of that state, on making an assignment of his property. These laws wore passed, the one April 12, 1813, and the other in the year 1828. The latter, however, is merely auxiliary to the former, prescribing certain' formalities which shall be observed by any one who makes application to be relieved under the provision of the former. These laws undertake to discharge, not merely the person of the debtor, but the debt itself. And the single question which it is of moment to decide is, whether such discharge can be pleaded in the courts of Ohio to an action on the judgment. This was once a very difficult and a much litigated question, but it has been finally settled by repeated adjudications of the Supreme Court of the United States. In St urges v. Crowningshield, 4 Wheat., it wa's decided that a law passed after the debt was contracted was unconstitutional. In McMillen v. McNeil, at the same term, the law was enacted prior to the making of the contract, and it was said by the chief justice, that he did not consider that that circumstance made any difference. In that ease, however, the debt was contracted in South Carolina, and the discharge was obtaiued in Louisiana, and,therefore, the defense could not, for that reason alone, be regarded as a valid one. Indeed, it is difficult to conceive how it can be competent for Congress to pass a law impairing the obligation of' contracts, and yet unlawful for the states to do-so, notwithstanding the prohibition in the constitution extends only to the latter. In Ogdon v. Saunders, 12 Wheat. 213, the law under which the defendant obtained his discharge, was prospective in its operation, *and it was then finally decided that the power of Congress to establish a uniform bankrupt law, does not exclude the right of the slates to legislate on the same subject, except when the former is actually exercised by Congress,, and the state laws conflict with those of Congress. It was further decided that a bankrupt or insolvent law of a state, which discharges both the person of the debtor and his future acquisitions of property is not a law impairing the obligation of contracts. And although repeated attempts have been made to shake this decision, yet it has been reaffirmed as often as it has been questioned; the chief justice, in Boyle v. Zacharie, 6 Peters, 348, 635, declaring that the principles settled in Ogden v. Saunders are no longer to be questioned or considered open for controversy. The only limitation to the effect of a discharge now is, that it can not be pleaded in bar of an action brought by a citizen of another state in the federal court, or by a citizen of any other state than that where the discharge was obtained. In Smith v. Parsons, 1 Ohio, 236, the question was settled in our own courts. It was there decided that a discharge under a law of the state where the notes on which the suit was brought were made, was a good defense to an action in the courts of Ohio. This important question, therefore, may now be considered as finally closed. Insolvent laws constitute a pai*fc of the law of the contract, and where a discharge has been obtained in the state where the contract was to be performed, it is a complete bar to any subsequent suit.


author: Hitchcock, J.,

text:
    The Trustees of Center Township, Guernsey County, Ohio, Plaintiffs in Error, v. The Trustees of Wills Township, Guernsey County, Ohio, Defendants in Error.
    When a new township is established, paupers haring residence within its territorial limits are chargeable upon it, though before charged upon the entire township from which it is taken, in whole, or in part.
    Adjourned from the county of Guernsey.
    This was an amicable action in debt brought by the trustees of Wills township against the trustees of Center township.
    The declaration contained one count and plea, the general issue. The suit was brought to recover for necessaries furnished to William Smith, a pauper, and submitted to the eourt of common pleas at October term, 1835, upon a statement of *faets. The court rendered judgment for the plaintiffs below, and this writ of error is prosecuted to reverse that judgment.
    The facts agreed and submitted to the eourt were substantially these: About twelve or fourteen years ago Center township was organized and included part of Wills township, which had been organized before. Smith, the pauper, had a settlement in Wills township, and owned land there, on which he had resided about six years before Center township was organized. Smith sold his land and left the county, and has remained out of the county over since, until 1835, but has gained no settlement since he left Wills township. When Center was organized, it included in its limits the farm on which Smith lived when residing in Wills township. Smith returned to Wills in 1835, and became chargeable, and has been supplied there; he was legally tendered to Center by Wills, but Center refused to receive him or pay Wills for supporting him.
    Isaac Parish, for plaintiffs in error:
    The plaintiffs in error think that it is no difference whether all or part of Center was taken from Wills, so far as their case is concerned, and refer for authority to Groten v. Shirley, 7 Mass. 156.
    2. There is a material difference between a legal settlement and an actual residence or inhabitancy at the time of erecting the new township, which is to be attended to in this case, and for authority refer to 4 Mass. 280, 390, 453,, 479; 6 Mass. 446; 7 Mass. 157.

      ' 3. They think the settlement is co-extensive with the township, and not affected by local habitancy, and the converse of this proposition is, that the liabilitj’’ to support on the part of the township is a corporate liability. Windham v. Portland, 4 Mass. 384-389, Judge Spencer’s opinion; Pike v. Union, 5 Ohio, 528, 529, Judge Wright’s opinion.
    4. They think, on common principles, this liability remains to Wills, under the circumstances of this case. See Brewster v. Harwich, 4 Mass. 278, Spencer’s opinion, p. 280; Windham v. Portland, 4 Mass. 384, Judge Spencer’s opinion, p. 390.
    5. They think the statutes under which Center was erected do not vary these principles. See 1 Chase’s Stat. 700, act *of February 19, 1810; 2 Chase’s Stat. 1089, act of January 24,1820.
    James M. Bell, for defendant in error:
    In this case the defendants in error make this single point: That in a new country like this, when the creation of new townships is of such frequent occurrence, the only reasonable and safe rule that can be adopted touching the settlement of paupers is to make the township chargeable which includes, within its bounds the territory on which the person to be supported is a pauper, had his last actual residence, and on which he had gained a settlement. Any other rule, it appear to me, would lead to great and innumerable difficulties, and, in some instances, would deprive a pauper of support entirely; for the cases are not rare, where the names of townships have been changed, or where, in the division of an old township into two or more new ones, the old name has been abandoned. The case of North Whitehall v. South Whitehall, 3 Serg. & Rawle, 120, is one in which it appears that an old township name was lost, and two new towns erected out of an ancient town, both taking new names. In such case, unless the rule I have suggested be the correct one, where would the pauper go for support, who had gained a setlcment in the old township, but was not an inhabitant at the time of the division? The old corporate name, to which so much magic seems to be attached, is gone entirely; and if the principles assumed by the counsel for the plaintiffs in error be correct, all liability for the support of paupers goes with it. The name is everything; the territory or locality, nothing.
    But a very few years previous to the time at which the pauper, Smith, sold his farm and left the country, the county of Guernsey was erected, the greater part of the new county being taken from the old county of Muskingum. Before that time, Wills township, Muskingum county, was in existence, and included within its bounds nearly the whole of what is now Guernsey county. The county of Muskingum has now no township named Wills. Suppose this man, Smith, having gained a settlement in Wills township, Muskingum county, had, previous to the erection of Guernsey, leit the county, and now come back a pauper, where is he chargeable? Wills ^township, Guernsey county, could hardly be made to bear the burdens of Wills township, Muskingum, county; and the last-mentioned name having now no existence, the pauper is completely without the means of support.
    The case of Mansfield v. Granby, 1 Root, 179, is very much like the case now before the court; .indeed, the facts are exactly similar. In that case the court make the defendants liable, “upon the principle, that had the pauper remained in Granby she would have been an inhabitant there. Her being gone out of the place at the time of the incorporation, and not having gained a settlement elsewhere, could make no difference in the reason and nature of the case.”
   Hitchcock, J.,

delivered the opinion of the court:

The simple question for the consideration of the court is, which' of these two townships are liable for the support and maintenance of this pauper?

A recurrence to our statutes for the organization of townships, and for the support and maintenance of the poor, prescribe no rule by which we are to be governed. The solution of the question must depend rather upon the sound discretion of the court than upon any principle of law. There are decisions, it is true, in some of the other states, and more particularly in the states of Massachusetts and Connecticut, which have a bearing upon the question. But the laws of those states, and the modes of incorporating townships, are so different from ours, that those decisions can not be held to be of binding authority. In these states, however, townships are incorporated by special legislative enactment; here we have a general law upon the subject, and the county commissioners .are authorized to divide old or set off new townships. There provision is usually made for the distribution of paupers, where a new township is incorporated, and this is necessary in consequence of the number of paupers. Here nothing is said upon the subject; and the reason undoubtedly is, that we have had but few of this description of persons among us.

We suppose that where, under our system, a new township is set off, all persons residing within the limits of that township, and who have resided there a sufficient length of time to obtain a settlement in the original township, have a legal settlement in the new township; and this, although at the time apportion of these inhabitants are actually paupers. This principle seems to be contradictory to that laid down by the court in the case of Pike Township v. Union Township, 5 Ohio, 528. It must be remembered, however, that that ease was decided upon the circuit, and experience teaches us that such decisions are, many times, made without that reflection which a case ought to receive before it is adopted as authority.

Upon the assumption that when a new township is set off, all persons residing within its limits have a legal settlement therein, it follows that had Smith remained at his domicile in Wills township, he would now have had a legal settlement in Center, and that township would have been chargeable with his maintenance. Shall the fact that he was away when Center was organized make any difference in the case? It seems to us it should not. In coming to this conclusion, we are in some measure, I may even say in a great measure, influenced by the pecular situation of the country. But a few years since, some townships were equal in extent to what are entire counties. Still, in some they are five or six' miles square, and the original township name is retained. It would be impolitic, it would be unjust, to compel the township thus limited to maintain all those who were paupers at the time of the division, or who, residing in other parts of tho country, have become such since the division.

It seems to us that there is nothing erroneous in the judgment of the common pleas, and it is, therefore, affirmed with costs.


text:
    Redick McKee v. The Bank of Mount Pleasant.
    One partner makes a bond and a warrant of attorney to confess judgment, under seal, and in the name of the firm, upon which judgment is confessed before the other partner has any knowledge of the transaction. His remedy is to have the judgment vacated, on motion, in the court that rendered it. Chancery can not interfere.
    Reserved in the county of Belmont for decision in the court in bank.
    The bill states that on June 27, 1829, one David B. Bayless, a merchant at Wheeling, in the State of Virginia, being desirous of borrowing of the bank of Mount Pleasant two thousand dollars, executed a bond and svarrant of attorney, and also procured the signatures of Knox and McKee, the ^complainant, William B. Tjmson & Co., Jones & Ritchie, and E. B. Swearingen & Co., as his securities; the names of the firms being all signed to the said bond and warrant of attorney by the several first-named partners without any knowledge, authorit}', or consent of the copartners. The obligors, at the time of the execution of the bond and warrant of attorney, resided, and still do reside, in Virginia, with the exception of Bayless, who has since deceased. The bill states that all the obligors but Bayless were only securities, but the bond itself recites they were principal debtors. On this bond Bayless obtained the money of the respondents. Before May 10, 1830, Bayless died in Wheeling, and John C. Bayless was appointed administrator. On May 10, 1830, the surviving obligors sent a written notice to the. respondents to sue the administrator of the principal debtor, or they should consider themselves discharged from liability on the bond and warrant of attorney. This notice the bank for a while disregarded, and on May 19, 1830, entered up a judgment on the bond and warrant of attorney in the Supreme Court of Belmont county.
    This judgment is against the oomplainant and all the other obligors.
    On March 5, 1831, in pursuance of notice of McKee and others, the respondents commenced a suit against the administrator of Bayless, in Virginia, who appeared on the 10th March, on the return of the writ, and confessed a judgment for the amount due, with stay of execution of this judgment until the next August term.
    On February 28, 1834, the respondents issued an execution on their judgment, which was entered in the Supreme Court in Belmont county, o'n which execution the real estate of the complainant was taken. JMcKoe, the complainant, obtained an injunction to stay the sale, and now asks us to perpetually enjoin the respondents from the collection of this judgment, and for other relief.
    The respondents, in their answer, deny that any of the obligors were sureties, but all principals, and were so treated and considered by the bank in obtaining the loan; that the respondent never know ’that the complainant denied the execution of the bond by his partner as obligatory on him, but, on the contrary, he authorized and sanctioned it. The answer further admits the judgment on the bond, and warrant of attorney, and the issuing ^execution and levy on tho complainant’s property. In a supplemental answer, the bank admits the judgment against the administrator in Yirginia, and that stay of execution was entered of record, as stated in the bill. But tho respondents aver no knowledge of such proceeding in Yirginia until the filing of the complainant’s bill; that no such proceeding was ever authorized by the bank, but that the suit was commenced by an attorney, at the instigation of tho administrator himself, and the whole business arranged by him and the other obligors.
    A supplemental answer was filed, the object of which was to correct some errors in fact, set out in the original answer. No exception was taken to the filing of the supplemental answer until the cause came up for hearing.
    Peck, for the complainant:
    1. Were these parties the securities of D. B. Bayless?
    2. Was the bank obliged to take any notice of the request to sue?
    3. Having brought suit in pursuance of such notice, is it not bound to notice them as securities?
    The fact of securityship is amply proved both by the answers of the obligors to the interrogatories of the bank and by the testimony.
    The answers are full and positive. The testimony of J C. Bay-less is to the point and full. The testimony of the old cashier Walker, is full to the point. So are the entries in the books of the-bank, where D. B. Bayless is charged alone with the money, and it was drawn out on his check, and he alone is credited’ with the payments.
    So it is proved by the bond itself; for it is provided that the time of payment might be extended without impairing the liability of any one on the paper at the option of the bank. This presupposed some of them to be securities, else this clause would have been senseless.
    The clause of “principal debtor” was inserted in the bond, as it would seem, by the testimony of Harris, the cashier, to evade the law made for the benefit of securities, and for no other purpose.
    I take it to be fully and satisfactorily proved that at the time of the discounting of the bond the bank were well aware that the obligors, except D. B. Bay less, were only his ^securities, and that they so treated the parties at the time; but if they were not cognizant of this fact at the time of the loan, they were unquestionably fully notified of it on May 10,1830, by means of the written notice.
    Was the bank under any obligation to act upon the reception-of that notice?
    In Ohio it would not be necessary to sue an administrator if he acknowledged the debt, and was willing to pay it; but in Virginia the executor or administrator stands so much in the shoes-of his testator or intestate, that the goods of the testator can be taken by execution on a judgment against the executor; and then the executor is obliged to pay judgments and decrees first, and' specialty creditors next, and simple contract creditors last. Hence the necessity of a judgment against the administrator in this case. The usual course in Virginia, when there are judgments, specialty and simple contract debts, is for a simple contract debtor to file his bill in equity, and so soon as he gets a decree on his own behalf, and all others who may come in and prosecute under his bill, he stops the assets, and the court orders an account to be taken, and makes a pro rata distribution. Hence the anxiety of the obligors, in this case, to have a judgment so as to bind the assets, and prevent the simple contract creditors from coming in.
    The excuse the bank makes for not immediately commencing suit on the reception of that notice was, that they were all principal debtors, and were not securities, and rely, I suppose, on the-principal debtor clause in their bond, though this does not plainly appear.
    Perhaps this is the first time that the question has been raised, whether if one acknowledges himself principal in a bond, can ho be permitted to prove himself but a security only.
    I do not see how this clause can alter the legal effect of the bond. 'The law puts that construction on a mere joint or' a joint and ¡several bond; this principal debtor clause is but the mere conclusion of the law on all instruments of more than one obligor, unless it otherwise appear on the face of the instrument. I do not ■see why one should be concluded by inserting a mere conclusion ■of the law; it does not alter the fact.
    This bond on its face is false and contrary to the intent of the parties, and for that reason it is prima facie fraudulent, *and it is an acknowledged fraud on the statute, and therefore parol evidence is admissible to show the real transaction. 1 Johns. Ch. 125.
    This bank has the privilege of issuing three times the amount ■of paper to the stock paid in. This is not enough, but they must have two and a half per cent, over the interest allowed them for attorney’s fees. This is not all; they must have a warrant of attorney, executed before their money is loaned, and then make a law that all who deal with them must be principals — no securities there. I think that the court should not be overserupulous in dealing with such contrivances.
    I think, however, that at law this principal debtor clause might have been pleaded or replied as an estoppel, and if the bank wished to raise that question, they should not have acted on the notice at all, and it should have pleaded this matter here as an estoppel, or they should have demurred, and thus raised the question unmixed with others; and I think that, even admitting that the obligors were concluded by that recital in the bond, yet here the bank’s course of conduct on the notice, and their manner of pleading have fully opened it, and let the truth fully appear.
    I take it to be a well-settled elementary principle, that if a party intends to rely on a bare legal estoppel, he must put his defense precisely upon that point; but that if you go into the merits, you must take the whole merits.
    In this case the bank have taken issue on the securityship, have ■denied it, and not that alone, they call upon the obligors to answer under oath whether they were securities or not; this is done in every varity of shape to get at the whole merits of that question, and is answered as fully and explicitly.
    Now, if the obligors in a common note, or one stating that they were securities, were called on in this way, they would have to discover the truth, would the holder of the paper bo bound by such a recital, if untrue ? The rule must be mutual; now, in this •case, the obligors are bound by their answers in all respects; and must not the bank be bound likewise? There can be no doubt of it, unless they can prove them untrue. • It is a question which the bank have opened, and that, too, in the most ample manner.
    In fact, it does not deny but that it knew that, as among themselves, the obligors might have been the securities of D. B. Bay-less, but that it was in the habit of taking bonds in *that way (no doubt to evade the statute), and consider them as principal debtors. Perhaps the bank would have been justified in treating them all as principals until notice of the securityship in writing; but that, after that notice, however justifiable they might have been in lying idle, they could only act at their peril. On the reception of this notice, they do treat the obligors as securities. The request to prosecute the administrator in Wheeling was most reasonable, especially when accompanied by an offer of indemnity against costs. In pursuance of that request, the bank did sue the administrator; and here, again, after the judgment against the administrator, the bank possibly might have laid idle, but it does another act, greatly to the prejudice of the obligors, that of staying the execution. This was, in every sense of the word, unjustifiable.
    Admitting that the bank might have disregarded the fact of securityship of notice to sue, and objected on account of the administrator’s residence in Yirginia, yet they have done it voluntarily after notice, and must be bound by it and abide the consequence. Indeed, I apprehend that under the circumstances, even though they were all principals, the creditor has no right to get a judgment against one and stay the execution; for if the other were to pay, they could have no contribution of him until the stay should expire. The creditor may sue which of them he pleases, or all, or let it rest; but he has no right, in equity, at least, to intermeddle with the -remedies and rights of the obligors, as among themselves.
    In the case of the Bank of Steubenville v. Hoge and others, in a suit at law, this court decided that an obligor is not estopped at law from showing himself security, in a case identical with this,, except the principal debtor clause. The court say, “that if the obligation recited that the obligors were principals, there might be color for the assumption that the admission concludes them. In the absence of such recital, we find nothing to stop them from proving the truth.” 6 Ohio, 18.
    This clause of giving time of payment, from time to time, may be ended by notice. 6 Ohio, 512.
    The answers to those interrogatories, so far as they go, are as good evidence as any other; for when one party calls for the testimony of the other, he makes him a witness in-the case. 3 Pet. Cond. 319.
    If, then, these obligors can prove themselves securities, or if *that question has been opened by the bank, as I think it has, this case is decided; for it is wo,ll enough settled that such an act, either as the refusal to sue, or the stay of an execution against the principal without consent, if there is no other sufficient ground for relief, this is sufficient. 5 Ohio, 207, and the cases there referred to.
    A security may call upon the holder of paper on which he is security, and compel him to sue the principal without any statute for that purpose. It is but natural equity, and justice requires it..
    Alexander, for respondents:
    Three questions arise in this case.
    1. Were McKee, Kiger, and Ritchie bound by the act of their-partners in executing the bond and warrant of attorney, etc.
    2. If they were, were they and the other obligors discharged, by the conduct of the bank on the receipt of the notice to prosecute?
    3. Or were they discharged by the stay of execution ?
    In going further into the case, we shall take it for granted that the depositions excepted .to, are ruled out, and that they should be, is so palpable that nothing need be said on the subject.
    1. Were McKee, Kiger, and Ritchie bound by the act of their partners’ judgment in Ohio, etc.?
    These persons’ names were not only signed by their partners to. the bond, but also to the power of attorney, by virtue of which their attorney appeared in court for and confessed judgment ngainst them. Is not this act of their attorney binding on them ? The presumption is, that their attorney had sufficient authority to act as he did, and this authority might have been either the power attached to the bond or other tantamount authority; and ■the presumption is by no means rebutted by any legal testimony in the case.
    Again, the facts would warrant this view of the case, that their ■names, viz: their firm names, were signed as principal debtors, that the two thousand dollars were drawn and divided among them, that a certain portion went into the funds of each partnership, and, consequently, an existing equitable liability rests upon all. And this might be the case, independent of *any bond, warrant of attorney, or judgment. This is the strong probability. Hence their attorney appeared for them, and confessed judgment. This judgment, then, should not be set aside, unless the most positive evidence is adduced to show a total absence of authority in the attorney who acted for them, etc.
    2. Were they discharged by the conduct of the bank on the receipt of the notice to prosecute ?
    On this subject it is said, in the argument for complainant, that the bank, even if the notice might have been disregarded on account of the administrator’s residence in Tirginia, etc., yet having voluntarily regarded it, that by so doing its obligatory power is ■recognized.
    In answer to this, we say, that the bank has in no act acknowledged any such power; and, even in the answer, protests that the notice could have rio such obligatory power.
    If the bank were bound to regard the notice, she did all that law or equity required. The statute of Ohio reads, that if any person shall become bound as surety or sureties by bond, etc., for ■the payment of money, etc., and shall apprehend that the principal is likely to become insolvent, or reniove from the county and state, etc., such person so bound may, by notice in writing, require the creditor forthwith to put such bond, etc., in suit, provided a right of action shall have accrued, etc., and unless this is done in a reasonable time, the surety, etc., shall be discharged.
    Section 3 of the act provides, that nothing in the act shall be so construed as to affect bonds with collateral conditions, etc.
    The common law, it will not be claimed, extends further than, ■the statute or near so far.

      The question arises here, did the bank put this bond in suit in a reasonable time after the receipt of this notice ? The notice was-sent to the bank on May 12,1830, and on May 19,1830, only seven days after, the bond was not only put in suit but judgment obtained. This must have been done by order of the directors at. their next meeting after the receipt of the notice, as they only meet once á week as other banks; and this was done in accordance with their practice, as stated in their answer. In any way of putting it, the bank could only be bound to regard the notice as binding ^according to the statute or the common law doctrine on the subject, and so far the bank has fully complied.
    But the bank was not obliged to regard the notice as obligatory,, or pay any attention to it whatever.
    What is the language of the notice? It is in effect that we, theobligors, having indorsed for the late Mr. D. B. Bayless for two thousand dollars, and eighteen hundred dollars remaining unpaid, deem it necessary for our safety that the bank request a judgment .from him, or we will not hold ourselves bound for the same. We-further say, that if you will send us the bond by the bearer, we-will attend to it ourselves, etc.
    The notice does not require the bond to be put in suit; it does not say that Bayless is likely to become insolvent, or leave the county of Jefferson or Belmont, or the State of Ohio, or the commonwealth of Yirginia. It is therefore, in itself, insufficient. It asks too much. It requires more than the bank could reasonably do, and more than law, equity, or common sense would say she-should do. We, the obligors, say unto you, bank, go to Yirginia,. and request a judgment from Bayless, the administrator, or send the bond to us, or we will not hold ourselves bound for the same. Bayless perhaps resided in Yirginia, Ohio county. The bank says she did not know where he resided, and it is not proved that she did know. But suppose she did know that he did reside in Ohio county, Yirginia, was she bound to go there and make the request? If she was, she was on the same principle bound to go to Accomac county, Yirginia, or any other town or county in the-United States, or in North America, or any port of the whole globe, the city of Amsterdam not excepted, if Bayless perchance had resided there, and then and there go to the trouble and expense* and encounter the delay of prosecuting an estate, doubtful as to-the solvency, for the purpose of collecting this money, and at the same time these obligors having property at the very door of the bank. The proposition needs only to be mentioned in order to see its absurdity, and it matters not whether those who executed the bond were principals or sureties.
    But were they bound as sureties ? In the bond they bound themselves as principal debtors, and agreed that the bank might extend the time of the payment thereof from time to time, etc. And it necessarily follows, that if they were bound as principals, the notice might be disregarded by the bank. The testimony is, that the bank used bonds of this description for the purpose of making all the obligors principals as between *them and the bank, and without doing so, the bank would not discount any bonds; and in faith oí this, the obligors got the two thousand dollars. This, then, was the contract and understanding of the parties, and this, their intention, should be carried out by this court.
    It appears plain, from the bond and testimony, that the obligors were all principals as between them and the bank, and nothing has transpired to change this relationship.
    If these obligors wished to have a judgment against Bayless, the administrator, they should have first paid the bank, and then proceeded against him where they could have found him. This would have been fair sailing.
    In complainant’s argument it is said that judgments in Yirginia have precedence, etc., and for this purpose they wished the bank to request a judgment, etc. There is no evidence in the case that this is the fact; but admit that judgments have precedence, a judgment was obtained seven days after the notice, and is certainly entitled to precedence, even if obtained in Ohio. The bill claims that obligors were discharged by the refusal of the bank to sue according to notice. The argument for complainant claims that the bank complied voluntarily with the notice to sue, and is bound by her act; and, therefore, obligors discharged (loco foco), because the notice was not properly complied with. Scylla on one side and Charybdis on t’other.

    There is another view that might be taken of this case, that is, that D. B. Bayiess, who is said to be the principal in the bond, was deceased at the time notice was given, and consequently the statute could not reach the point made.
    Neither the statute nor common law requires us to run after “dead men’s bones” for money, vphen we can get other property, and that, too, at home, and not in a foreign land, etc. This fact, alone, is conclusive on this point.
    3. Were the obligors discharged by the stay of execution?
    Having almost a perfect confidence that this question is settled by supplemental anRwer, etc., we shall pay but little attention to it. In the bond the obligors bound themselves jointly and severally, as principal debtors to the bank; this gave the right to the bank to sue all jointly or each one separately, or any one of them alone; and over any such suits a perfect control, at least so far as the staying of execution might be concerned. This view of the case is aided by another clause in the bond, viz: that clause that gives the *right to the bank to extend the time of payment from time to time, etc.
    It is insisted on in the argument for the complainant that this would affect the right of contribution among the obligors. This is not true. If the bank had commenced several suits on this bond and obtained judgment against each one, and stayed execution on’all except one, and on that one. made the money, it is perfectly obvious, in our opinion, that in an action for contribution by that one against the others, the stay of execution could not affect his rights.
    The obligors then bound themselves as principals, and must blame themselves, and not do it again. They might have been but the sureties of Bay less, as between them and Bayless, but •this matter they may settle among themselves. The original answer of the bank states, responsive to the bill, that stay wa3 given without her consent or authority, and this is sustained by the depositions both of Bebee and Atkinson; and the question whether the bank ever consented to or authorized the stay of execution is put in issue by replication to answer. The truth is, as appears from the testimony, that the bank not only did not authorize or consent to the stay, but never knew of the judgment or stay until the filing of this bill. The pretended securityship, if true, could not, under the circumstances of this case, if the bank had given the stay, release them. There is an equity arising from the nature of the bond, judgment, and other facts in this case, going to show the understanding of the parties that will vouchsafe this claim to the bank. In conclusion, we have a few words to say in reply to some other arguments of complainants, aiso, as touching this case generally.

      It is argued that the warrant of attorney attached to the bond •was void because it was executed in Virginia, and that the bond is false on its face, a fraud upon the statute, etc., and also void.
    This is almost a little too absurd to notice. The intention of the obligors was to have the bond discounted at the bank in Ohio; the warrant of attorney was attached to it. At the bank in •Ohio it took effect, and in Ohio it is legal; also in Virginia.
    There is no law in Virginia that prohibits people from signing bonds and warrants of attorney, nor is it proved that this bond, etc., was executed in Virginia.
    *Again, we say that the bond is true on its face, and .shows the intention of the parties as between the bank and obligorsAs between themselves, we care not whether it is true or false.
    Would these obligors execute instruments of writing forbidden -by the laws of Virginia? Would they commit frauds upon the statute, etc ? They say they would, or have; and if they would, they would try to cheat us out of our money. ■
    It is also argued that as to the question of estoppel, that it can only be raised by plea or demurrer.
    It is insisted upon, in the answer of the bank, that these obligors, having bound themselves as principals, can not now say that they are only securities.
    Is this not sufficient? Can not the question be raised by the answer, as well as in any other way ? We think it may. And we still insist upon it that these obligors are estopped from saying that they only are securities.
    As to the solvency or insolvency of the estate of D. B. Bayless, ■there is no legal testimony in the case; nor does it appear that the •obligors have or will lose anything, if they have to pay the money, .and by no means does it appear that they have been injured •by the conduct of the bank.
    There is a contract existing between these parties, evidenced by •the bond and warrant of attorney. In construing this contract, we must look at the words and expressions made use of in it. These are plain, and upon its face there is certainly no ambiguity, and as to the meaning of it and the intention of the parties there can be no dispute.
    There is also a judgment existing between the parties. This judgment was obtained by virtue of the warrant of attorney, which was surely sufficient. It never was revoked, and could not be, being coupled with an interest, etc.; and it did authorize, to> the fullest extent, the power exercised under it by their attorney,, who confessed the j udgment.
    These matters go to charge, independent of everything that has been said, a liability existing, upon those who seek to be released,, for the payment of this money.
    The two and a half per cent, rests in contract, and it is nothing-more than just that the bank, in this case, should be indemnified against all costs and attorneys’ fees, when agreed upon by the parties.
    One word as to the predicament in which these men have-placed themselves, in order to get rid of the payment in this *case. In the first place, more than one-half of theseobligors signed the bond and warrant of attorney in the firms’ names without the knowledge, consent, or authority of their partners, as they say; and having done so, never informed them. In the second place, they signed said bond as principal debtors, and when interrogated under oath, they signed it only as securities; and lastly, they say they committed a fraud upon the statute in signing said bond, it being false on its face; and violated a law of Yirginia in signing the warrant of attorney, etc., it being prohibited.
    Do they love money? For it they are willing, as they say, to-commit forgery! For it theyare willing, they say, to commit perjury l For it, frauds upon the statute, and violations of the laws of their native state. But do they love wickedness ? Would they speculate upon their characters ? Would they barter for money ■their honesty, their faith, and their sacred honor? If they are willing to admit all this, we are unwilling to believe it. Nor do-we charge it, as they might have been in part mistaken; though even this is strongly rebutted by the fact that the most of them of their own accord, and moved by the love of money, gave depositions strong and full, each one to clear his fellow, and in their-argument cite authority to establish their own disgrace.
    We ask a decree against these obligors, especially Knox, Tyson, Jones and Swearingen, who signed the bond, etc., for the whole-amount of the judgment, except the amount paid. As to McKee, Kiger, and Ritchie, we admit that their liability is, to a certain f silent, doubtful.
   Judge Wood

delivered the opinion of the court:

A question of fact is presented in this case, as to the complainant’s assent to the execution of the bond by his partner. This allegation is averred by the respondents in their answer, but this averment avails nothing as proof, because it is not in response to-anything charged in the bill. Besides this, the answers of the complainant and others, to the interrogatories propounded in the respondent’s answer, make a strong impression that the complainant knew nothing of the bond and warrant of attorney, until after the confession' of judgment.

It is well settled that one partner can not bind his copartner by bond under seal, unless specially authorized to do so. There is, in this case, no evidence of any such authority, or *of any ratifieation of the bond or warrant of attorney, in act or deed, by the-complainant. He can not then be concluded by them. The warrant of attorney conferred no power from the complainant upon the attorney who acted under it in confessing the judgment, and the ease must be one for relief somewhere. Can it be obtained by bill in chancery?

This question has been decided in Critchfield v. Porter, 3 Ohio,. 522. That was a case where an attorney appeared for the complainant without authority in a suit at law, went to trial, and a verdict and judgment were rendered against the complainant, who filed his bill in equity for relief. The court say the complainant has relief at law, by motion in court, where the judgment was rendered; that it was fully competent for the court to give the complainant all therelief, on motion, he could obtain in acourtof equity; that it had become one of the plain and accustomed remedies of a court of law to afford full and adequate relief against judgments, irregularly or improperly obtained, when there had been no fault nor negligence on the part of the judgment debtor; and this relief is to be had on a motion to set aside the judgment addressed to the court by whom it was rendered, and upon whose records-it remains. Consequently, he can not be relieved in equity, and this bill must be dismissed.


text:
    Robert Vincent v. Lessee of Goddard.
    .A purchaser from a judgment debtor, of land actually levied in execution, is not entitled to the benefit of the occupying claimant act.
    This case was reserved from the county of Holmes.
    The plaintiff below recovered judgment in ejectment, against -the then defendant, Robert Vincent, on a sale under execution against A. Dougherty. The defendant claimed, under a sale from Dougherty after the rendition of the judgment, and after the levy, and also under a sale for taxes. He now applies for relief under 'the occupying claimant law.
    Avert and Leadbetter, for the applicant:
    The applicant is entitled to' relief, under either of two distinct -provisions of the statute: 1. Because he holds by deed, according to the terms of the act. 2. Because he holds under a sale for taxes. The act is entitled to a liberal ^construction; the whole course of legislation upon the subject, and the reported decisions show this. The judgment creditor can have no equitable claim to ■satisfy his demand by a sale of what was not levied upon. Although, on this subject, the occupying claimant law, and the law with regard to judgments and executions come into conflict, yet what reason is there why the former should give way, rather than the latter. The law is fully stated in 5 Ohio, 158 ; and in Sellers v. Corwin, 5 Ohio, 398, it is decided that purchasers under execution, must pay for the improvements. But the plaintiff is also entitled •to relief under his tax title.
    Spangler, contra:
    It is not every case in which a claimant may show himself within ■the letter of the statute that will entitle him to its benefits. He must not show a case of fraud and collusion. In Shafer v. Magin, 2 Ohio, 237, the remarks of the court show that the occupying claimant law should be so construed as to bo subservient to the ends of justice. The cases cited by the counsel on the other side have no application. In 5 Ohio, 398, the purchaser under execution was held liable for improvements, under very different circumstances from the present. The claimant bought the land sub* jeet to the lien created by the levy. As to the tax sal es, their date,., the date of claimant’s deed from Dougherty, the fact that claimant permitted the land to be sold for taxes, and afterward bought in-the certificates, show a case too highly tinctured with fraud to-entitle him to the relief.
   Judge Grimke

delivered the opinion of the court:

This is an application by a defendant in ejectment, under the* act for the relief of occupying claimants. Both parties deduce title from Andrew Dougherty, against whom a judgment was rendered in 1822. In 1824, an execution issued, and a levy was made on the land; and in 1831, the lessor of the plaintiff, became the purchaser. On December 12, 1826, Dougherty, the judgment debtor, conveyed to the defendant. Is the latter entitled to compensation for improvements? The act declares that he shall have the benefit of all improvements made before receiving actual notice, by the commencement of an adverse suit. And if the right only depended *upon this part of the statute, perhaps it would be difficult to deny him relief. At any rate, it is unnecessary to examine, whether this is to be deemed an adverse suit. Eor there is another provision in the law, which declares that “ a purchaser having obtained title without any fraud or collusion on' his part shall not be turned out of possession without being paid for improvements.” A judgment, where no scire facias is necessary, and, except as between different judgment creditors, is a perpetual' lien on the land of the debtor; only, it is presumed, like a bond at common law, to be paid after a lapse of twenty years. It is, to be sure, a general, and, not like a mortgage, a specific lien on the land. But when this judgment was followed up by an execution, and an actual levy on the land of the debtor, no one, who-afterward received a conveyance from him, could be considered a-purchaser in good faith. It is true a levy on land does not, like a levy on goods, divest the debtor of his property, but it is such a decisive and unequivocal act leading to this result, that no one could mistake it, and no one purchasing afterward can be said to be absolutely exempt from fraud and collusion. The case in 5 Ohio, 398, is a peculiar one, and does not authorize the application in this case.

The defendant also holds under a sale for taxes; but, I suppose,., he does not place much reliance on this part of his case; for the thirty-five acre certificate was produced eight mouths, and the one hundred acre certificate, five years, after the date of his deed.

Application rejected.