text:
    Bank of Steubenville v. H. H. Leavitt and Judith Carrol, Administrators of Robert Carrol, deceased.
    Where a creditor suspended his right to proceed promptly against a principal debtor to enforce the collection of his debt, the surety is discharged. The ■ defense may be made at law, as well as in equity. The plea should’ aver that the suspension was without the assent of the surety.
    This cause was adjourned from the county of Jefferson. It was an action of debt, brought in the common pleas of Jefferson county, to November term, 1830. The declaration counted upon a writing obligatory made by the intestate in his lifetime, dated August 7,1819, for the payment of one thousand four hundred and thirty dollars to the Bank of Steubenville, at that bank, sixty days after date.
    At the May term of the same common pleas, Í831, the defend.ants pleaded in substance that their intestate executed the writing obligatory declared upon as security for one John C. Bayless, and not as principal debtor, and that it was so known to the plaintiffs, who then accepted and received said writing obligatory from their intestate as surety only. That since the commencement of the suit, John C. Bayless, the principal debtor, had made a power of attorney, authorizing W. W. Tracy, or any other attorney, to appear in any óf the courts of record of Ohio, and confess judgment *to the plaintiffs for certain specified sums of money, with stay of execution for one-third of the amount for six months, one-third for twelve, and one-third for eighteen months. That after the last continuance of the causQ, at May term, 1831, under' and by virtue of this power of attorney, the plaintiffs caused a ju'dgmcnt to be confessed for the sum of one thousand four hundred and thirty dollars debt, and seven hundred and ninety-two •dollars and twenty cents interest and costs, with stay of execution as set forth in the warrant of attorney. And the defendants .aver that the obligation upon which the judgment is confessed, is tho same upon which the plaintiffs count in this case.
    To this plea there is a general demurrer and joinder. The common pleas gave judgment for the defendants, and the cause was taken by appeal to the Supreme Court.
    Marsh and Stoicely, in support of the demurrer:
    To show as distinctly as possible the precise questions arising on this record, we will make a brief synopsis of the pleadings. The plaintiffs declare on a bond of Robert Carrol, dated August 27, 1819, payable in sixty days at the bank, for one thousand four hundred and thirty dollars, with a profert, and aver non-payment, etc. Suit is brought to November term, 1830.
    The defendants plead puis dañen continuance without oyer, in bar of the further maintenance of the- suit, and that the bond, in the declaration mentioned, was made by Carrol as surety for one John C. Bayless and not as principal, and was so accepted by plaintiffs. a
    That since the commencement of this suit, viz: December 20, 1830, Bayless executed and delivered a sealed power of attorney, authorizing judgment to be entered against him, inter alia, on a note for one thousand four hundred and thirty dollars, signed by him and Robert Carrol, with stay of execution for six, twelve, and eighteen months.
    That plaintiffs, since the last continuance, viz: at May term, 1831, by virtue of said power of attorney, entered judgment in ■said court, against said Bayless, on said writing obligatory, in said declaration mentioned, with a stay of execution as the warrant specified.
    ^Defendants aver that the note for one thousand four hundred and thirty dollars, in the warrant of attorney mentioned, and the bond in the declaration mentioned, are the same, etc.
    General demurrer and joinder.
    On this demurrer three questions arise:

      1. It is not averred in the plea that the judgment against Bayless was entered without the knowledge and consent of the defendants.
    It is a rule in pleading that every plea is to be taken most strongly against th.e party pleading. Wimbisb v. Talbois, Plowd. 46; Co. Lit. 303, b; 1 Chit. PI. 522. Here it is to be inferred that the judgment was taken with the assent of the defendants and then they have no ground for complaint. The substance of the objection to a recovery from the surety after giving time to the principal is, that the creditor has changed the contract without the assent of the surety, whereby the surety is injured. If, then, the arrangement be made with the assent of the surety, the ground of the objection does not exist.
    2. It is not averred in the plea that the principal has become in worse circumstances, or that the surety is in any way injured by the arrangement.
    This plea is an attempt to make an equitable ground for an injunction, in particular cases, a defense, on a general principle at law. It will be found that the plea places it on grounds which have never been assumed as warranting a decree in equity. No bill can be found placing a prayer for relief on the naked fact that time had been given. Essential and indispensable parts of every bill for relief have been that the arrangement had been made with•out the assent of the surety, and that since the arrangement the affairs of the principal have so altered as to place the surety in a worse situation, as to indemnity from the principal, by the delay. Rees v. Berrington, 2 Yes. Jr. 250; Samuel v. Howarth, 3 Merivale, 271; 2 Rand. 333.
    3. Where time is given to the principal after the bond is due, the surety can not avail himself of it at law, but must seek relief in equity, if his ease entitle him to it.
    *The ground of defense is the alteration of the contract without the assent of the surety. Where the time of payment is extended before the day of payment, it is considered as a waiver of the performance, a change of the terms of the contract, but after the forfeiture of the bond, any arrangements do not affect the bond, but concern only the compensation for the breach of it. Davey v. Hendergrass, 5 Barn. & Aid. 187; United States v. Howell, 4 Wash. C. C. 620. In this last case the point is distinctly made and decided. The same distinction is recognized in Rees v. Berrington, 2 Yes. Jr. 520. The same distinction is also recognized in Orme v. Young, 1 Holt’s N. P. Cases, 84, both in the-' pleadings and by the court in giving judgment.
    In this ease the stay is long after the forfeiture of the bond, after judgment, and not without the assent of the surety, so that, on the-facts disclosed in. this plea, neither at law nor in equity is there any ground for discharging the defendants from the payment of the bond.
    J. and D. L. Collier, and Goodenow and Wright, for defendants :
    The plaintiffs, in support of their demurrer, rely upon three-points :
    1. That it is not averred in the plea that the judgment against Bayless was entered without the knowledge and consent of the defendants.
    2. That it is not averred, that the principal has become in worse-circumstances, or that the surety is in any way injured by the arrangement.
    3. Where time is given to the principal, after the bond is due, the surety can not avail himself of it at law, but must seek relief in equity, if his case entitle him to it.
    We prefer, in answering the arguments of the demurrants, to-examine the points raised, in the reverse order in which the plaintiffs have treated them, and will, therefore, speak first to the-third point, that our relief, if anywhere, is in equity.
    Before, however, we proceed directly to that point, we would remark, that the plea alleges the decedent signed and ^sealed as a surety, and not as a principal, which is admitted by the demurrer ; and therefore the inquiry is presented free of all embarrassment. Is the security discharged by the creditors giving the-principal further credit, or time of payment, and taking other and higher security? If so, can ho avail himself of these suits at law t

    That such further credit, or extension of the time of payment, may be pleaded at law, we think is sustained by the whole current of authorities, both in England and in this country; a reference to a few of which we consider sufficient to advise the court fully of the-established principles and doctrines on the subject. 13 Johns. 174; 17 Johns. 384; 3 Merv. 276; 1 Vern. 196; 2 Caine, 56; 2 Rand. 334; 3 Wash. C. C. 74.
    We think, from those authorities, there can be no doubt the-rule is the same at law as in equity; and the only doubt which' could, perhaps, ever arise would be, whether the mode of proof and relief at law were such as to give effect to the principle. As-to this question, it may be observed that every case furnishes for itself the circumstances which decide the applicability of the principle; and we see nothing here to prevent the defendants from availing themselves of the full benefit of the rule on this-side of the court as well as on the chancery bench. Surely it is-not in the mouth of the plaintiffs to complain, and call him over to the other side of the court, to receive there the application of that rule, which applied here, will mete out to him the same justice and equity.
    The second point raised by the demurrants is, that we do not show by our plea that the principal has, by the judgment against him and extension of time, “ become in worse circumstances, or that the surety has been injured ” thereby. Here we would refer to a remark of the plaintiff’s counsel, under his first head, which we think more congruous with the one now under consideration, namely, that “ the substance of the objection to a recovery from the surety, after giving time to the principal, is that the creditor has changed the contract without the assent of the surety, whereby the surety is injured.”
    It seems to us the counsel on the other side have *misapprehended the principle upon which the plea is predicated. The doctrine in reference to a “ change of contract,” speaking in technical language, is this: that the alteration or change must be made while the contract is yet open and its time of performance unexpended; at least this doctrine embraces a class of cases different from ours, and in this point of view forms no feature of our defense. We rely upon the principles of law, applicable to cases where a higher security has been taken on the same instrument, and a further credit given, after a right of action has accrued.
    We rely upon.the positions: That a security is bound by the express terms of his contract, and by them alone; that they can neither be narrowed, extended, or modified at the will and pleasure of the principal and creditor; that the giving of further credit or further time to the principal, whereby he suspends his own right to demand or to enforce his claim, is an act which the creditor does at his peril, and has no right to hold the surety still subject to an action or judgment at law; because by his own act ho nobs the surety of a right which entered into and formed a part of his original undertaking. These positions are as well established in courts of law as in courts of equity; are as broadly and liberally applied in the one as in the other; are certain, and rest upon fixed principles, and admit oi the proof of facts and the efficacy •of relief at law as well as in equity. It is in cases where the •creditor has given indulgence contrary to the will and directions •of the surety, where courts of equity would coerce the creditor to diligence, that the inquiry ever arises whether the principal has become less able to pay or the surety has, in^fact, been injured. It would, indeed, be a doctrine not only novel but full of perplexity and endless inquiry, to establish the principle that the extension of credit or time to the principal should or should not be a discharge of the surety, depending upon the future good or bad fortune, the industrious or idle life, or the wise or foolish speculations of the principal during such extension. Hence we think reason and common sense, as well as the authorities, establish unequivocally, at law as well as in equity, that the taking of a judgment against the principal and extending to him a definite time of payment, which prevents the ^security, either by a court of equity or otherwise, from coercing the creditor to prosecute, and himself from taking any steps of indemnification, aside from the inquiry, whether he is or is not damnified, is, in itself, a discharge or release of the surety. We refer the court to the following authorities, which present the doctrines and principles of law on this point in every' different aspect, and, as we humbly conceive, most clearly and satisfactorily sustain the plea: 9 Wheat. 680; 2 Bro. C. C. 583; 15 East, 617; 4 Taunt. 453; 5 East, 619; 5 Taunt. 319; 10 Johns. 587; 1 Saund. Pl. & Ev. 377; 2 Ves. 440; 4 Ves. 737; 12 Wheat. 554; 1 Mason, 323; 1 Paine, 305; 3 Wash. C. C. 70; Kirby, 397; 1 Caine, 1; 3 Bin. 523; 6 Bin. 295; 2 Johns. Ch. 559; 2 Des. 230, 389; 3 Des. 604; 4 Johns. Ch. 131; 2 Randolph, 333; 6 Mon. 9; 1 Mon. 45; 13 Johns. 174.
    Upon the first point made by the demurrers, that “ it is not averred in the plea that the judgment against Bayless was entered without the knowledge and consent of the defendants,” we deem it proper to say that it was not raised in any argument heretofore made in the cause. Whether the averment be necessary, we have not examined or reflected sufficiently upon it to argue it. But we would suggest that the facts set forth in the plea afford no inference that the defendants had knowledge of, or consented to the “ arrangement.” Why, then, should they be required to negative that which is not inferable from the facts stated? Although “ every plea is to be taken most strongly against the party pleading;” yet unless, as on a demurrer to evidence, the facts fairly .authorize the inference, it is not to be drawn or taken against the pleader; no more than on the same facts before a jury they would be authorized or required to infer the knowledge or consent of the party. The entry of judgment is a fact over which the defendants had not, nor could they have any control; nor is their privity inferable from their relation to the parties to that judgment. Hence it seems to us that if their knowledge and consent would destroy the bar which the plea sets forth, it were the duty of the plaintiffs to reply to that fact.
    But being now first advised of this exception to the plea, and not havingjbeen ourselves originally employed in this *cause, .should the court sustain the plea on the other material points we would ask permission of the court to amend in that particular, that the decision on the merits may be known, if possible, at the present term, as there are other causes depending much upon the same facts and principles.
   By the Court :

He who becomes surety for another has a right to pay the debt when it becomes due, and collect it from his principal; he may substitute himself in place of the creditor, and subject any funds or securities provided for the' payment of the debt by the principal ; or he may call upon the creditor to prosecute his suit without delay. The law does not permit the creditor to interfere with these rights. If he do invade them, the surety is held to be discharged.

No principle is better settled, at.the present day, than that a surety can not be further bound than by the terms of his undertaking. These terms can not be changed without his consent. If any change is made that might prejudice his rights, without his consent, he is protected by holding his obligation at an end. A simple omission on the part of the creditor to pursue this remedy is not considered as affecting the rights of either party. But any act which destroys or suspends the right to an instant and continuing pursuit of the remedy, so "as that the surety can not enforce the collection of the debt without delay, absolves him from-his liability.

The defense which such an act gives -to the surety is one proper to be set up in a court of law. The doctrine is originally of chancery, and is of recent introduction there. Its adoption, in the courts of law, is almost within our own times. 4 Cam. C. 336. And it prevails, in either court, according to the circumstances of the-case. The authorities upon which it rests are very numerous. 7 Johns. 336; 12 Johns. 174; 17 Johns. 384; 2 Merivale, 276; 4 Johns. Ch. 7, 337; 2 Marsh. 82, 392; 2 Ves. Jr. 550; 4 Ves. 737; 1 Gall. 32 . 1 Mass. 339; 1 Paine, 305; 3 Wash. C. C. 7; 4 Wash. C. C. 26; 2 Rand. 333; 12 Wheat. 556.

*In the case in 2 Rand., the court lay down the doctrine broadly: “ If a creditor, by agreement with the principal debtor, or by any other act, precludes himself, at law, from proceeding against the principal, after the debt is due, for a moment, or if the agreement is such that a court of equity would stay proceedings at law, the surety is discharged.” Here is a judgment with a stay of execution entered of record. This ties up the creditor’s-hands. If the surety were to pay the debt, he could do nothing-with the judgment until the stay of execution expired. The consideration upon which the stay of. execution was entered is not a matter for investigation. The fact that it is entered suspends the creditor’s right to sue execution, until the entry is avoided. That is sufficient to discharge the surety.

It is objected to the plea that it does not sufficiently aver that the stay of execution was entered without the consent of the surety. The want of this consent is the material facts of the whole defense. We therefore think that the plea is defective. But leave is given to amend.

Judge Wright, having been counsel, did not sit in this case.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Moses Eldred v. James H. Sexton.
    Tax collector justifies as such, proof of acting and general reputation sufficient.
    This cause came before the court upon a writ of error to the court of common pleas of Lorain county.
    The defendant in error brought an action' of trespass against the plaintiff in error for taking and converting a yoke of oxen; judgment for the defendant by the justice, and appeal. In the common pleas a declaration in trespass was filed, and Eldred, the defendant there, on the plea of the general issue, filed a notice, that at the trial he would prove that before the alleged trespass, he was treasurer of school district No. 3; that a majority of the ■directors of the school district called a meeting of the householders and others liable to pay a tax for building and repairing .school-houses, at which meeting it was decided to raise money to repair the school-house, etc. Setting forth'a regular assessment *of tax for that purpose, and that a certain amount of tax was assessed upon Sexton, and put in Eldred’s hands, as treasurer, to collect; that Sexton refused to make payment, and that the seizure and sale was made, according to law, to make the amount.
    At the trial, Eldred under his notice offered to prove by parol that at .the time .of taking the property he acted as treasurer of the school district named, and was reputed to be treasurer and •collector. To this testimony the plaintiff objected, and it was overruled by the court. The defendant took his bill of exceptions. There was a verdict and judgment for the plaintiff for fifty-one dollars and five cents and costs, to reverse which this writ of error was brought.
    No argument was submitted, for the plaintiff.
    Willey, for defendant.
   By the Court :

The question raised in the case seems.to have been settled by this court, in the case of Johnson v. Steadman, 3 Ohio, 94. In •that case it was decided that a person who has justified an act, upon the ground that he was a constable, might establish his official character by general reputation, and proof that he acted as such. We are not disposed to change the principle established in that case. In fact, we are satisfied that it is more consistent with the end of justice, than to establish a contrary rule of evidence. We do not say that such evidence is conclusive; but that, it is prima facie, and, unless contradicted, must be conclusive.


author: Judge Wright

text:
    *State of Indiana, for the use of Cone, v. Robert John and others.
    Suit upon a bond subjecting the obligors to payment of statutory penalty for misfeasance in office, is an action on a penal statute, and can not be maintained, in Ohio, on a statute of Indiana.
    This cause was adjoftrned from the county of Hamilton. It was-an action of debt, and set out that the defendants, on March 7f 1825, made their writing obligatory, by which they acknowledged-themselves to owe to the State of Indiana five thousand dollars, subject to a defeasance, reciting that Robert John had been duly appointed collector of the county of Franklin, and if he should well and truly perform the duties of his office of collector, obligation to be void, etc. It then averred that Robert John took upon himself the duties of collector, and that he did not well and truly perform his duties, in this, that under color, and by virtue of his-office, he seized and levied upon a quarter section of land, the-property of Charles Cone, on a pretext that a tax of one dollar- and seventeen cents was due on said land, .and unlawfully and-without authority sold the same, in violation of his official duty, and subsequently made a deed therefor to the purchaser. The declaration proceeded to aver, that at the time of such levy and sale no tax was due on said land. It further averred, that by the laws of the State of Indiana goods and chattels, found upon a tract of land, were first liable to seizure for taxes, and that there were goods and chattels on the land so sold sufficient to pay the taxes claimed to be due, which was known to the collector; that-he refused to demand payment of the resident on the land, and. did not, as by law, he was bound to do, return that there were no goods and chattels to make the tax due. It further states, that in consequence of these illegal proceedings, Charles Cone was put to great trouble and expense, in defending an ejectment brought against him by the purchaser at the tax sale, in which defense-Cone finally succeeded. It further averred, that for breach of said bond, the law of Indiana provided that suit should be brought in the name of the state, for the use of the party injured, against the collector and his securities, and that the party injured should recover treble damages and full costs and charges. For these causes-averred a forfeiture of the bond, and demanded to recover, etc.
    *The plea negatived all the allegations and averments of the declaration, upon which issue was joined.
    In the common pleas, the jury found a verdict for three hundred and forty-four dollars. The defendants moved, in arrest of judgment, that the action, as set forth in the declaration, was not-maintainable in the courts of Ohio. The motion was overruled, and judgment rendered for treble the damages assessed by the jury, and costs, and the defendants appealed to the Supreme Court.
    Upon the trial in that court, the plaintiff gave in evidence the-bond, with proofs of the seizure and sale of the land, and that a tenant resided upon it, having goods and chattels, of whom tax was never demanded. The return of the collector, the laws of Indiana, and the proceedings in ejectment, were also given in evidence. The plaintiff then offered to give evidence of his expenses and trouble incurred, in consequence of the sale and suit of the purchaser, to which the defendants objected, and moved the court to overrule the evidence given, on the ground that the case made was not one that could be sustained in the courts of Ohio. The evidence was accordingly overruled and rejected, and the plaintiff became nonsuit, with leave to move for a new trial. This motion was made, and the question, whether the decision of the court, overruling and rejecting the evidence, was, or was not erroneous, was adjourned here for decision.
    Caswell and Starr, for plaintiff.
    Hammond, and Morris & Drake, for defendants.
   Judge Wright

delivered the opinion of the court:

On the trial of this cause, all the evidence offered by the plaintiff, in support of the issue on his part, was objected to, and ruled out, upon the ground that the suit was brought to enforce a penal law of Indiana. The plaintiff then became nonsuit, and now moves to set aside the nonsuit and for a new trial, because the ■court erred in rejecting the evidence.

The case presents the single inquiry, whether the plaintiff’s action is founded upon a penal law of Indiana ? No *one can read the declaration without observing that the bill of the plaintiff, as set forth, requires of the court, not only the application of the local law to the construction of the contract, but to give effect to a law of that state inflicting a penalty. It has been frequently ■decided, and is now settled, that the penal laws of on.e state can have no operation in another state, or be enforced by the courts ■of another. Penal laws are strictly local, and affect nothing more than they can reach. 1 H. Blk. 135; Foliot v. Ogden, Cowp. 343; 14 Johns. 340.

The right of the plaintiff to recover, rests upon the matters without the bond. The provisions of the statute laws of Indiana are introduced in the declaration, as the foundation of the plaintiff’s right. He seeks to recover on the bond given to the State of Indiana, because he has been injured by the misfeasance and false return of a public officer of that state. The common method of proceeding in such cases, in this state, is by action on the case. The right once established at law, you may then sue on the official ■bond, if the injury complained of be such that the securities are held for it. The claim here is to resort to the bond in the first instance, and charge the security before any default of the principal is established. This claim to change our law of the remedy on bonds, is sought to be sustained on the statute of another state. ■Can the practice of our courts be controlled by the legislative acts •of a sister state ? The plaintiff sets forth in his declaration, that by the law of Indiana, it is provided that for the illegal and fraudulent acts of a collector, a suit is given to the party injured, to sue upon the official bond; to recover treble damages, full costs and ■charges, by reason of which an action hath accrued to him. The provision of the law relied upon, is this: “That if any person shall be injured, or sustain damage by a false return of any collector, made to any precept under the provisions of this act, or other illegal ■or fraudulent acts of such collector, such individual, upon suit to be brought against such collector and his securities, upon their said bond, for the use of such individual, shall recover, treble damages, .and full costs and charges.” If, instead of an action on the bond, the legislature had provided that these treble damages, costs, *and •charges, should be recovered in'an action of debt, no one would have douhtod hut the action was penal. Is its character changed by .authorizing the suit to be brought on the bond, and against securities as well as the offender? "We think not. A state can enforce its contracts in our courts, the same as an individual suitor; but the remedy must be afforded according to our laws and practice. 1 Ohio, 259; 1 Johns. Cas. 139; 3 Johns. 263; 14 Johns. 340.

The counsel for the plaintiff confidently relies upon the case of Dorrison v. Chaplin, 7 Conn. 244. I have not seen the case, but the state of it, as quoted, does not seem to conflict with our opinion. It merely decides that Congress can not constitutionally confer upon the state courts, jurisdiction to enforce the penal laws of the United States. That court thought there was a broad distinction between such suits and actions to enforce penal statutes; and so we think. Scofield v. Canfield, 4 Johns. 3 40, is also relied upon for the plaintiff. It seems to us an authority for the defendants. The court refused to allow a'defense under a penal law of Connecticut, to affect a contract made in that state, subject to the law, and which, it sued there, it was claimed would have avoided the contract. The United States v. Lathrop, 17 Johns. 261, decided that a state court had no jurisdiction of the criminal or penal laws of the United States; and that Congress had no constitutional right to confer such power.

Upon the whole, it seems to us very clear that this action is founded upon a penal statute of the State of Indiana, whose authority is limited to the territory and courts of that state, and that the nonsuit was properly entered.


text:
    *Lessee of William M. Cartney v. John Reed.

      Fi.fa. issued and levied on lands after the defendant’s death, sheriff's sale confers no title.
    Deserved in the county of Clark.
   By the Court :

This ease is submitted to the court on an agreed statement of facts, and it seems to us that there is one fact agreed which is decisive of its merits. The plaintiff claims as purchaser at sheriff’s sale, and produces the sheriff’s deed as evidence of title. The-judgment under which the sale was had was rendered in Champaign county in favor of the Dayton Manufacturing Company v, Jason B. Coleman and others, in July, 1817. The said Coleman died intestate in the year 1821, and thafi.fa. under which the levy upon the premises was made was issued on October 14, 1828. The property was levied upon as the property of Coleman, who-had been dead about seven years; his lands, if he had any, had descended upon his heirs, and no scire facias had been taken out to revive the judgment against them or against the terre-tenants.This execution was improvidently issued. A sale under it would confer no right upon the purchaser. This question was fully considered by this court.in the case of Lessee of Massie’s Heirs v. Long, etc., 2 Ohio, 287, where it was held that such sales were of no validity. Without examining the other points made, we are satisfied that upon this the- defendant must have judgment.


text:
    *Bank of St. Clairsville v. S. Smith, O. Wells, and others.
    Uotes under seal, for the payment of money, negotiated before due, in good faith, are'to be regarded as commercial-paper, and the makers can not avail themselves of any breach of confidence, by one of the parties, in filling them up and putting them in circulation.
    This cause came before the court upon a motion made by the plaintiffs for a new trial. It was adjourned from the county of Belmont upon the subjoined state of facts.
    This suit was founded upon a note under seal for seven hundred dollars. Smith, one of the defendants, set up, by way of defense, that he executed and delivered the note as an escrow. At the time it was signed by Smith it was left blank for the amount. Smith, stipulated that it should not be filled up for more than two hundred dollars, and Wells, for whose use it was made, promised that it should not be filled up for a greater sum. Seven hundred dollars was inserted, and the note was discounted by the bank without any knowledge of the private agreement between Smith- ‘ and Wells.
    At the trial the court instructed the jury that upon the facts alleged, if proved, Smith could not be held liable, and for this,, charged to be a misinstruction, a new trial was asked.
    Goodenow and Hubbard, for plaintiff.
    Tapp an, for defendant.
   By the Court :

The charge to the jury in this case was grounded upon the authority of Pawling and others v. United States, 4 Cranch, 219. That was the case of an official bond delivered by one of the obligors, a surety, to his co-obligor, upon the condition, expressed only in parol, that it must be executed by certain other individuals named in the body of the bond as obligors before it should become obligatory, and it was never executed by some of these-parties. Upon reconsidering the case before us, the court are satisfied that the decision relied upon does not sustain the charge-given.

*In that case the bond was not complete when signed by a part of the obligors; on its face it contained evidence that it was to be signed by others who had not signed it. Besides, it was not a bond direct for the payment of the money, but for the perform - adce of a collateral condition. The ease turns now upon the-question whether notes under seal, made for the payment of money-in Ohio, are to be assimilated to commercial paper or to common law bonds. If the former, then it is well settled that he who reposes the first confidence must bear the ultimate loss. And we believe it ought to be so. When notes under seal for the payment of money at a day yet to come, complete upon their face, are negotiated in good faith, they should be treated as commercial or business paper, and all the incidents of such paper should attach to them. The statutes of the state give, them a negotiable-character, and we but- follow their indication in so regarding, such notes. There was error in the charge, and a new trial is.awarded.


text:
    Walter Armstrong v. The City of Cincinnati.
    ■Compensation for damages for opening alleys in towns under town ordinances can not be sought in equity, nor relief granted against the collection of regular assessments.
    This cause was adjourned here from the county of Hamilton. 'It was a bill in chancery, in which the complainant alleged that he ■ was owner of óne-half of lot No. 61, in the city of Cincinnati, being part of the block of lots situate between Third and Fourth and Main and Sycamore streets. The complainant, with other owners -of property in this block, united in petitioning that a twenty-foot .. alley should be opened between them from Third to Fourth street, and that the land should be equally appropriated from the east and west ends of the lots, except complainant, who was to be paid the full value of his ten feet, the residue to be paid for by • contribution.
    That subsequent to this a second petition was agreed upon, and signed by all the parties except the complainant, praying for a ten-foot alley only, on the ordinary terms of mutual *contribution according to the advantage received. Under this petition the ten-foot alley was opened, and the whole ground taken from complainant. That the appraisers made a mistake and only appraised five feet, valuing it at eighty-seven dollars and fifty cents, and that afterward the assessor of contribution apportioned two hundred dollars and seventy-four cents upon complainant, for which suit had been brought before the mayor and judgment recovered, under the city ordinances, and process issued to sell the lot to make that sum. The bill prayed general relief and an injunction. The defendants demurred.
    Morehead, for complainant.
    Storer and Fox, for defendants.
   By the Court :

The object of the bill is not to enjoin opening the alley, but to -obtain a decree for compensation for alleged damages. In other words, to obtain all tho advantages of the alley and be paid into the bargain. This can not be a case for relief in equity. Whatever remedy the complainant may claim is to be obtained at law,: and is given by section 13 of the law of January 26, 1827, incorporating the city of Cincinnati.

The proceedings before the mayor to enforce the collection of" the assessment are regulated by the city ordinances. If irregular, the remedy for correcting them is at law, not in chancery. No special grounds making a’case of equitable jurisdiction is presented. Here no irregularity is complained of. The bill must be -• dismissed.


text:
    Symmes v. The City of Cincinnati.
   ' This case originated in the same transactions as the foregoing,, and depended upon the same principles. Dill dismissed.


text:
    *Andrew Dewit v. William Greenfield.
    When, in an action of slander, a justification is pleaded, and an attempt made ■ to prove it, evidence may he given of the plaintiff's general had character; hut not of his character in any single particular.
    Words spoken after a term of court commenced, action brought to the same term, declaration filed generally, or of the term. No exception allowed. •
    This cause was adjourned here for decision from the county of Huron. The points arising on the case are stated in the opinion-of the court.
    Higgins, for plaintiff.
    G-. Swan, for defendant.
   Judge Wright

delivered the opinion of the court:

This is an action of slander — the charge,perjury. The defend-ant pleaded not guilty, and notice of justification,, that the words are true. At the trial, the defendant having offered evidence to> support his justification, then offei’ed to prove the general bad •character of the plaintiff for truth and veracity. This evidence being objected to, was rejected by the court; and a new trial is ■now asked, because the court erred in rejecting that evidence.

The question presented on this motion is one of some difficulty. The reported decisions of other states and countries are very contradictory upon the point. We have no reported case in Ohio, -on the general question; and it is asserted, and we believe truly, that the decisions in the common pleas in different sections of the state, and even of the Supreme Court on the circuit, are not always uniform. This seems to enforce upon us the necessity of adopting some of th® various rules as the law in such cases. The action seeks compensation in damages for injury to reputation. A person of disparaged fame is not entitled to the.same measure of damages with one whose character is unblemished. 2 Stark. Ev. 369; 1 Maule & Sol. 284. The character of the parties is directly in issue, and the only difficulty seems to be, to settle a practice for this state, out of the conflicting authorities, the nearest conformable to our notions of law and justice.

Under the general issue, the defendant, in mitigation of damages, may prove that the plaintiff, at the time of speaking *the words, was under a general suspicion of having been guilty of the charge imputed to him. 3 Stark. 577; 2 Camp. 251; 1 Maule & Sel. 284; 1 Pick. 1. He may also give evidence of the general bad character of the plaintiff. This the plaintiff may rebut by evidence of his general good character. 3 Stark. 369, 878. And .this doctrine, we believe, is now admitted law in a majority of the United States. 2 Cow. 215; 1 Root, 354; 2 Root, 149; 2 Hay. 222; 1 Nott & McC. 268; 3 Mass. 546; 6 Mass. 514; 14 Mass. 275; 3 S. & R. 336; 2 Marsh. 372.

Where several pleas are pleaded, as in this ease, not guilty and a justification; and as the jury is sworn to try the several issues, either party is at liberty to introduce the same evidence under ■ each issue, that he might introduce if that issue stood alone. Therefore, after an attempt to prove a justification fails, it is competent to inquire into the plaintiff’s general bad character, the same as though no attempt had been made to prove the special plea. But spreading a plea of the truth of the words on the .record in justification, is always an aggravation of the damages if not proven. Where the defendant has given any evidence in support of a justification in such cases, the plaintiff may introduce proof of his general good character to rebut the presumption of guilt. In all the foregoing cases, the inquiry must be confined to the general good or had character of the party in society as an honest and upright man. The usual questions put are: How long the witness has known the party, and what his general chai’aeter has been ? 2 Stark. 366. You may not, except in the words put, inquire of the character of a party as to particular facts, or in respect of particular things. A man is supposed always ready to sustain his general character, but not to meet particular reports. 3 Stark. 877; 2 Marsh. 372. It has heretofore been decided by the Supreme Court, on the circuit, that proof of facts and circumstances of suspicion, not amounting to a justification, which led the defendant to utter the slander, may be proven under the general issue, to lessen the degree of malice and mitigate the damages. This rule we do not intend to impugn. 1 Bin. 92, n.

If the question asked by the defendant on the trial of this *cause had been confined to the general character of the plaintiff, it would have been competent, but the question goes further, and seeks information of the plaintiff’s character for truth ■and veracity. In that shape it was incompetent. It would evidently be improper for a prosecutor to seek to prove a person guilty of perjury by proof of his general bad character for truth and veracity; and the same principles of evidence apply to a justification in slander. The evidence was properly rejected.

Another reason is urged for a new trial, viz: that the declaration is entitled of October term of the common pleas generally, when the words relied on were proven to have been spoken on the second day of the term. The writ in this state forms a part of the record, and indicates by its date the commencement of the suit. It is not pretended the words proven, in point of fact, were spoken after •suit brought; but we are asked to set up a legal fiction, that the declaration entitled in its caption generally, of a term of the court, by relation extends to the first day of the term, a¡nd so control the matter of fact! To impart to falsehood, in a court of justice, a power and^efflcaey which we deny to truth ! We see nothing in this case to require of us the performance of so humiliating a duty.


author: Judge Dane

text:
    Hanly, Wright, and Rooney v. Levin.
    Declaration by prochein ami, but record does not allege plaintiff to be a minor. Defendant presumed of age, and the procuratorship rejected as surplus-age. Minority is a matter of fact to be litigated upon pleadings.
    In trespass, pleas not guilty and justification, verdict guilty and damages assessed, justification not noticed, it is error.
    Verdict not amendable, in matter of form, in the Supreme Court, after writ of error brought. After judgment is reversed on a verdict, in a proper case, it may be amended, in the court of common pleas, where it was rendered.
    This was a writ of error to the common pleas of Hamilton county, adjourned here for decision, from the Supreme Court of that county.
    The ease was this: Levin brought an action of assault and battery against Hanly, Wright, and Rooney. The terms of the writ were, that the defendants be summoned “ to answer to Lewis C. Levin, by his next friend, Edward Hodge, in a plea,” etc. The declaration set out, that the defendants “ were summoned to answer to Lewis C. Levin, who, by leave of the court, appeared by his next friend,” etc. The declaration was subscribed, “ James F. Conover, plaintiff’s attorney.”
    *A11 the defendants joined in a plea of “not guilty.” Hanly pleaded a separate plea of son assault demesne, upon which issue was joined. Wright and Rooney also pleaded separately that Levin and Hanly were fighting together, and they interfered only for the preservation of the peace, and upon these pleas issue was joined.
    The verdict of the jury was in the following words: “We, the jury, find the defendants guilty, as the plaintiff, in declaring, hath alleged, and assess the damage sustained by the plaintiff to three-hundred and fifty dollars.
    Judgment for the plaintiff, on the verdict, to reverse which the writ of errror was brought.
    The errors assigned, were :
    1. That the record did not show that the plaintiff was an infant.
    2. That the pleadings were subscribed by the attorney.
    3. That there was no finding of the jury upon the special pleas.
    J. F. Conover, for defendant in error:
    The first error assigned is as follows: “ In that it does not appear thereby, that the said Lewis C. Levin, the plaintiff, was a minor, or that any legal cause existed for the prosecution of the said suit, in the name of the said Hedge, as the next friend of saidLevin.”
    The mere statement of this error is its own best answer. If it does not appear by the record, that Levin was a minor, the court can not presume that he was, and there is certainly no error on this behalf, in the record. The record nowhere shows Levin to be a minor. And the court can not look beyond the record itself. This point is so well settled, that their honors, Judges Hitchcock and Wright, would not hear an argument upon it, at their late sitting in Hamilton county. See also 2 Bac. Ab., title Error, 489, Phil, ed., where it is laid down, that if errors did not appear by the record, even “ though the matter assigned for error should be proved by witnesses of the best credit, yet the judges *would not admit of it.” See also Id. 486; 2 Tidd’s Prac. 1051; 2 Saund. 101,n. 1.
    With regard to the introduction of the name of Edward H. Hedge, as Levin’s next friend, admitted by leave of the court, it is unobjectionable on three grounds: 1. Because it is mere surplusage, and therefore does not vitiate. Jacob’s L. Die., title Verdict; 3 Saund. 308; 1 Chit. Pl. 218, 233, 234; 1 Arch. Pl. 160. 2. Because it was admitted by leave of the court, and the court is-presumed to do what is right where it has jurisdiction. 2 Starkie’s Ev. 802, 803; 1 Arch. Pl. 178. 3. Because it might have been taken advantage of by special demurrer, and whatever can-be taken advantage of by demurrer or abatement is cured bv verdict. 2 Bac. Ab. 492; 1 Saund. Pl. 2; 1 Chit. Pl. 547; 1 Arch. Pl. 178; 1 Saund. 227, 228, n. 1; 1 Day’s Cas. in E. 186, n.
    From the foregoing facts and authorities it is clear that the arguments and authorities of plaintiffs in error’s counsel do not apply under this head. Nor do his authorities, in several instances, support the points he represents — viz: that' from Com. Dig., title Pleader, 2 C. 1, 556. No authorities that I can find, require that the record should show the party suing to be of full age. If the record does not show the contrary, the party’s competency to sue-is presumed of course. If he should not be competent, advantage must be taken at the trial, by abatement or demurrer. 1 Arch. Pl. 539; Id. 178.
    The second error assigned is in these words: “In that it appears that the said Levin prosecuted said suit in the name of said Hedge, or his next friend, but nevertheless the said proceedings, to wit, the declaration and the several replications to the defendant’s several pleas, are all filed by the attorney of said Levin ; whereas, by the law of the land, if said Levin was a minor, he could not appear, nor prosecute, by his attorney.”
    The learned and important case of Apthorp v. Backus, Kir. Conn. 407, puts this objection, as well as those assigned under'the first head, completely to rest. The argument, upon all these matters, is there most fully and learnedly gone into, by Chief Justice Law and Judge Ellsworth. It is there expressly decided, that an infant’s appearance by ^attorney can not be taken advantage of after verdict. The whole of this highly important case is recommended to the special consideration of the honorable court in bank, as covering the whole ground of the errors assigned in the present case, and as being amply sufficient to sustain the judgment and verdict. See also 1 Amer. Dig., title Verdict, under Connecticut head, sec. 2, p. 385; 1 Bing. Inf. 126; Cone v. Bowles, 1 Salk. 205.
    . But it will be j>erceived that this second assignment of error .also assumes that Levin was a minor, though no such fact appears by the record. And the statement of the opposite counsel, in his argument, that such fact may be inferred, belongs to his own fancy, and to no law that I can find. If, however, such an inference can be acted on by the court in bank, the ease in Kirby, 407, is perfectly satisfactory. It is an American decision, by very eminent judges, and therefore entitled to much more weight than foreign decisions. See also Bing. Inf. 126.
    The statute of jeofails of Ohio is quite as broad as that of Connecticut, or of England, and covers all the errors that are here as.signed, even if the errors assigned fully existed in the record. .
    There is no principle in law more fully established by the best' authorities than that all errors are cured by verdict, that might have been taken advantage of by demurrer, abatement, or any other special plea. 2 Bac. Ab. 492; 1 Saund. 227, 228, and particularly note 1; 1 Arch. Pl. 178; and numerous authorities there cited; 1 Pet. Cond. 326, notes.
    Advantages of personal disabilities, of either plaintiff or defendant, must be taken by plea in abatement. 1 Tidd’s Prac. 684, 685; Arch. Pl. 539; 1 Saund. Pl. 2; 2 Bac Ab. 492; 1 Chit. Pl. 547; Bing. Inf. 127; 1 Salk. 93.

      There is, however, another ground on which the plaintiffs in error must fail to support their assignment ot errors. The defendants all pleaded generally in bar, and after a general plea in bar, no personal disability of the plaintiff can'be taken advantage of on error. 2 Bac. Ab. 492. This case is put: “ If a feme covert bring an action in her own name, per attornatum, and the defendant plead in bar to the action, *he shall never afterward assign the coverture for error.” See also 1 Arch. Pl. 177, Gould’s edition.
    The third error assigned is as follows:
    “In that there are four distinct issues presented in said record for the finding of the jury. Three of which issues are on the separate pleas of the several defendants; and the jury have passed upon and found but one issue, whereby three of said issues are yet undetermined and have not been passed upon.”
    The verdict of the jury is in these words:
    “We, the jury, find the defendants guilty, as the plaintiff in declaring has alleged, and assess the damages sustained by the plaintiff to three hundred and fifty dollars.”
    The declaration alleges, that the defendants all committed the assault and battery. To this the defendants all plead, “ not guilty,” . the general issue. This is their first plea. Then they all plead separate pleas of justification.
    How it can be correctly said, under this state of things, that the verdict does not cover all the issues, or the whole case, I am unable to divine. The verdict finds defendants guilty as charged in the declaration. This, then, certainly is the same as to say, gentlemen, you have all committed the injury, you are all guilty, you had no justification, no legal excuse, and your pleas are therefore not true. It certainly covers all the issues in the fullest extent. The defendants, by their first plea, put the fact of their committing the injury distinctly at issue. The reason why verdicts are set aside for uncertainty is that they afford no bar to other actions. But there is no such uncertainty in the case before us. The defendants are all found guilty, as they are alleged to be in the declaration. Of course, if they are all guilty on the general issue they can have no justification separately, or legal excuse, and the verdict expresses just as much as if it expressly said so. The following authority shows that this verdict is amply sufficient. In 2 Seld. N. P. (Wheaton’s), 1033, are these words:
      “ If, in an action of trespass, a verdict be found on any fact or title distinctly put in issue, such verdict may be pleaded by way of estoppel in another action between the same parties or their privies, in respect to the same fact or title.” The fact of all the ^defendants unlawfully committing the assault was distinctly put in issue, and therefore-this verdict would be a bar against another action against all or any of the defendants. It is impossible, if they all committed the injury, as the declaration alleges, that any one of them could be justified in committing it. The verdict not only says they were all guilty, but assesses the damages at three hundred and fifty dollars against them all; for they all said, in their first plea, that they were “ not guilty.” Of course, if the jury had considered any of them justified, or any way legally excused, they would not have assessed damages against them. Can any reasonable man imagine for a moment that it was not the intention of the jury to find all the issues against all the defendants? It is impossible. I can scarcely conceive how-the jury could have expressed themselves more clearly, or in language less susceptible of misconstruction. But if the intendment of the jury can be clearly perceived it is sufficient. Eastman v. Chapman, 1 Day’s Cases in Error, 50; Spencer v. Overton, Id. 183; Hawks v. Crofton, 2 Burrows, 699, 700; 10 Mass. 64.
    The record does not show that leave had been obtained from the court to file separate pleas, though the common formality to that effect is alleged in the pleas themselves. But it is presumed" there should have been a special order of court. But the defendants, after pleading generally, notwithstanding the statute, had no legal right to put in separate defenses inconsistent with the general plea. No such construction can be given the statute.
    They had no right to put in "pleas of justification. Schemerhorn et al. v. Tripp, 2 Caine, 108; Smith v. Bouchien, 2 Strange, 993; Drake et al. v. Barrymore, 14 Johns. 166; 2 Seld. N. P. (Wheaton’s), 1029; 1 Saund. 28, n. 2. Their separate pleas, therefore, are mere nullities, and the jury were not bound to notice them, Consequently the separate pleas, and the replications to-them, being void in law, the court is bound to regard them as mere surplusage. Jacob’s L. Dic., title Verdict; 1 Chit. Pl. 218, 233, 234; 1 Arch. Pl. 160; 3 Saund. 308. If this position be correct, then the verdict applies only to the general issue, and its-sufficiency in this behalf admits of no doubt.

      ^Should the court, however, not regard the separate pleas and replications as mere surplusage and void, I have yet ample authority to sustain the verdict. And 1 now solicit the special attention of the court to several very important cases, completely analogous to the one under consideration, and which put the sufficiency of the verdict beyond a reasonable doubt.
    I shall first refer to the case of Hawks v. Cropton, 2 Burr. 698. In this case the declaration, pleas, and verdict are precisely similar to that of Levin’s, añd the judgment was sustained. This case first lays down the undoubted fact, “ that verdicts shall be favorably construed” — then if the meaning of the jury can be ascertained it is sufficient. Lord Mansfield says, the question is “whether tjiis verdict is so uncertain that the court can not give judgment upon it, but must award a venire facias de novo?” He says: “ I think the present case is such a clear case, that the court may here give judgment upon the substantial finding; though the clerk may have been irregular and faulty in, point of form, it is very clear wbat the jury meant.” The verdict in this case is a general verdict upon two distinct issues. All the judges refer to -a case in Hobart, 54, with great approbation, and cite therefrom this “very just rule:” “That though the verdict may not conclude formally or punctually in the words of the issue, yet if the point in issue can be concluded out of the finding, the court shall make fhe verdict serve.” This case is quite full upon the subject, and is of itself, in my judgment, entirely sufficient.
    But I shall now cite another yet stronger. The case is an American case, and emanates from one of the best authority. It •is, therefore, doubly valuable. I refer to the case of Porter v. Rummery, 10 Mass. 64. Here the whole doctrine is very learnedly discussed by Mr. Justice Sewall, who establishes beyond controversy the sufficiency of the verdict under consideration. In the case of Rummery, issue was joined on two distinct issues, and the verdict is general. The. court holds this language, and which is go entirely'applicable to the case of Levin, that it can not fail to be conclusive: “In one view of the case, which may be ^suggested, this verdict seems capable of a construction, in which it may be understood as comprehending both issues, and sufficiently to warrant the judgment upon it for the tenant. The court are competent to collect the meaning of the jury, from the terms of their verdict, and one verdict may be a sufficient finding upon several issues” — p. 66. Certainly, the verdict in Levin’scase, “may be understood to comprehend all the issues,” especially as verdicts are to be favorably construed.
    These two very learned and important cases are supported more or less by the following authorities: Hobart, 54; Gostwicke v. Mason, 1 Mod. 3; Redman v. Edolfe, Id.; Jacob’s Law Dic., title Verdict; Eastman v. Chapman, 1 Day’s Cases in Error, 30; Spencer v. Overton, Id. 183; Apthorp v. Backus, 1 Kirby, 415; Jaques v. Cæsar, 2 Saund. 100, 101; 3 Saund. 308.
    “ Where the jury in debt on a bond, and nil debet pleaded, found nil debet to part, and debet to the rest, it was held sufficient.” Hadley v. Styles, 15 Petersdorff Abridgment, 336.
    There is a difference where the verdict is founded on a contract- and a wrong. In the latter case it is maintainable, if any part of the issue is found. Jacob’s L. Dic., title Verdict.
    The fourth error assigned is in these words: “In that judgment ought to have been rendered for the defendants, and not for the said plaintiff.”
    “ This assignment is considered as a mere matter of form, and of no consequence whatever. The court is not bound to inquire into errors, if the party does not show them.” 2 Bac. Ab. 486.
    On a review of the whole case, the honorable court will perceive that all the authorities and arguments of the counsel for plaintiffs in error are based upon false and untenable premises. - It was-first assumed that Levin was a minor, though no such fact appears upon the record. The arguments and authorities under the two first assignments, all proceed upon this assumption. His next, assumption is, that the verdict does not cover all the issues. This is also positively denied, on the reasoning and authorities before advanced. It is manifest, therefore, however much good law the gentlemen may have adduced, that it is not applicable to the present case.
    *Storer and Fox, for plaintiffs in error, in reply:
    The first error alleged is, that the suit is brought in the name of Edward Hedge, as the next friend of Levin, and there -is noaverment that Levin is a minor.
    The reason that an infant must appear by pro. ami, and prosecute, is that he is not personally liable for costs, and in all cases-when he does thus prosecute, the pro. ami is alone liable. 1 Tidd, 72; Morrell v. Pickman, 2 Esp.
    In Turner v. Turner, Strange, 708, Lord King says, that he could find no ease where the infant was held personally liable to pay costs. Hence, in England, -none but responsible persons were permitted ¡to sue as the next friends of infants; and they must have been first approved by the courts, or some judge at his chambers.
    If¡.then, the pro. ami alone is liable, it is because the plaintiff is an infant; if he is not an infant, his name on the record can create no responsibility on the part of the pro. ami, and as it creates no-responsibility, it is error for it to be thus inserted.
    All the forms require the insertion of the fact that the plaintiff is a minor. 2 Chit. 32; 2 Saund. 117, n. 1. Bingham on Infancy, 120, says, that in the King’s Bench the form is similar.
    It is a universal principle, that the capacity in which the plaintiff sues must be stated. If he sues as executor or administrator, he must make it appear that the testator or intestate is dead.
    If he does not appear to be a minor, it follows that he is represented on the record as of full age ; and it is clear, if it does not thus appear, it is erroneous. 2 Com. Dig., title Pleader, 2 C. 1, 556.
    There is no legal act that can be done by an infant unless through the intervention of a pro. ami; he can not sue, or even file errors on the record. Bing. 122.

      Error Second. That even if it could be inferred that the plaintiff was an infant, still, as he has appeared and pleaded by attorney, it is error. Formerly, the appearance of an infant plaintiff, by attorney, was error, but after verdict, the ^defect was cured Fy the statutes 21 Jas. I., c. 13; 4 and 5 Anne, c. 16. The statute, 21 Jas. I., c. 13, provides, that “judgment shall not be stayed or reversed, for that the plaintiff in ejectment, or other personal action, being under age, appeared by attorney. The statute 4 and 5 Anne, c. 16, “cures the effect of a warrant of attor: ney not being filed,”
    The law as to the appearance of an infant defendant by attorney is unchanged; it is universally held to be error, if he thus appears. 2 Tidd, 70.
    5 Com. Dig. 556, “ In all actions, real, personal, or mixed, if he appeal’ by attorney, it is error.” Brey v. Grobe, Cro. Jas. 10; Bing, on Inf. 123; Sampson et al. v. Jackson, Cro. Jas. 641; Dewitt v. Post, 11 Johns. 460; Arnold v. Sandford, 14 Johns. 423.
    The statutes of jeofails of this state is general; it is confined to matters of form, and does not specify the particular defects that are cured as by the English statutes. The same reason holds, it would seem, to reverse the judgment when the plaintiff appeared by attorney, as when the default appeared, and'more especially, as the defendant is literally taking an undue advantage, when he is permitted to obtain a reversal of a judgment on that ground. The plaintiff is bound to bring his action in legal form. The defendant is compelled to answer at all hazards; hence the propriety of requiring the plaintiff to commence his suit in a proper manner.

      Error Third. For that all the issues are not found by the jury, nor have they passed on the whole case, as the several defendants have pleaded separate pleas, which are found by the verdict to be true and untrue.
    When the jury find less than the whole matter in issue, a “ venire facias de novo” will be granted. 2 Tidd, 831. In Hooper v. Shepherd, 2 Str. 1089, the judgment was reversed because the jury did not find a verdict to cover the whole case. The action was on a charter party, at fifty guineas per month; plaintiff stated that six hundred and fifty-two qiounds was due for the whole one hundred and fifty-two pounds, ten of which had been received, and the remainder was five hundred qeounds, for which the suit was brought. The defendant qDleaded that he had paid at the rate of fifty guineas per *month for all the time the ship was in his service; issue was taken on the plea; the jury decided that three hundred and fifty-seven pounds remained unpaid; but say nothing as to the rest of the five hundred pounds.
    In Rex v. Dean of St. Asoph, Lord Mansfield says, “If the verdict omitting finding anything within the province of the jury to find, no judgment could be given, and there must be a venire de novo.” 3 Term, 426, in notes.
    “ A verdict that finds qjart of the issue and finding nothing for the residue; this is deficient for the whole, because they have not tried the whole issue wherewith they are charged.” Thomas’ edition of 3 Coke Lit. 539. “ As an information for intrusion into a house and one hundred acres of land, if the verdict finds against •the defendant for the land and says nothing about the house, it is void for the whole.” Id.
    “ In trespass against husband and wife, for beating his horse •and other trespasses, a verdict that the wife beat the horse and for the residue not guilty, but says nothing about the husband, whether he beat the horse or not, is bad.” Drury v. Dennis, Yelverton, 10 C. And so, in debt for seven pounds if there is a verdict for six pounds, and nothing for the residue. Finymore v. Sanky, Cro. Eliz. 133.
    If an action against three who pleaded personally and all the .pleas are not found true or certain, the verdict is bad. 5 Com. Dig. 504, title Pleader, S. 19.
    In an action of trespass against a number of defendants who severally plead not guilty, if the jury find a verdict for plaintiff, omitting to mention two of the defendants, the court will set the verdict aside as not comporting with the issue. Kilboun v. Wateron et al., Kirby, 124.
    In Yon Bethysen v. Dewitt et al., 4 Johnson, 313. “If no damages are assessed upon the breaches assigned in the plaintiff’s declaration, it is error.”
    In Patterson v. United States, 2 Wheaton, 225, it is decided “ that .a verdict is bad if it varies from the issue in a substantial matter, or if it find only a part of that which is in issue. The reason of .the rule is obvious, it results from the nature and the end of pleading ; whether the jury find a general or a special verdict, it is their duty to decide the *very point in issue, and although the court in which the cause is tried may give form to a general finding, so as to make it harmonize with the issue, yet if it appears to that court or the appellate court that the finding is different from the issue, or is confined only to a part of the matter in ■issue, no judgment can be rendered upon the verdict.”
    In my judgment, says Judge Story, in Steams et al. v Banet, where a verdict is not expressed substantially in the terms of the issue, the cause ought to be extremely clear, that should induce the court to make it the ground of a final judgment. 2 Mason, 173.
   Judge Dane

delivered the opinion of the court:

The two first points are easily disposed of. The plaintiff has declared by prochein ami, but the record nowhere shows that he is ,a minor. Unless such fact appear, we must presume him of age, and may well reject the curatorship as surplusage, which does not vitiate.

The second plea, upon which the second point is predicated, sets forth the hypothetical assumption, correct in point of law, that if a minor he should sue by prochein ami. Minority is a fact which should be distinctly averred, that it may be traversed. It is not so alleged, and does not so appear of record, consequently, if true, it can not avail the plaintiff in error.

The tbi-rd point has given us more difficulty. It is plain .that the verdict of the jury should respond to all the questions submitted by the issues, and where an issue is left unanswered no judgment should be rendered. The court in which the verdict is given exercises the power of amending it, and of conforming it to the-issue, whenever the meaning of the jury can be distinctly ascertained, and when it appears they have acted and decided on the' whole merits. 3 Ohio, 384. It sometimes happens that the finding of one issue concludes the whole, although some are unanswered. The pleas of not guilty and justification in tort illustrate this. The finding of not guilty is enough, since it shows that no facts are proven, which it is necessary to expuse.

*In the present case, no doubt would arise but that the court of common pleas, when the present verdict was returned to them, might with propriety have applied it to all the issues, and have amended it, so as to have made it a full answer to each. The intention of the jury is sufficiently manifest, and the verdict contains enough. We entertain the opinion that the verdict per se, unamended, is no answer to any other plea than the general one. Had it been “ not guilty,” by negativing the assault, it would have been a sufficient answer to the justification, for no fact would have been left to justify. But a verdict of “ guilty,” may, and must be found,' before the jury proceed to the other question, and it may be truly found, while the justification is fully proved, and fully available as a defense.

Is it within the authority of this court to make the amendment?' By some of the English statutes of jeofails, the authority to amend is conferred in all its latitude, not only upon the court where the judgment was rendered, but in the court to which the record is-removed by error. And now, by the English practice, amendments may not only be made in the court to which the error is triable, but the court will disregard such errors as are amendable, and by intendment will sometimes consider the amendment as made,, without any actual alteration of the record. But the statute of Ohio limits the right of amendment to the time before bringing writ of error. And for many years past, it has been held settled, that after the allowance of error, the right to amend is taken away; I am sure this effect is not conducive .to justice, and believe, that if the question were new at this time, that the statute might properly receive a different construction. But a majority of the court think themselves bound by this long-continued practice.

Two cases are cited by the plaintiff in error, which deserve-notice. In 10 Mass. 66, where an action was disseizin, plea not guilty as to part, and non-tenure for remainder, .a verdict of not guilty only, the court rest their opinion upon the point that the-state of the record lays no foundation for a verdict for one. But they fully recognize the position, that the - court below “ might work it into form,” and make it answer the justice of the case, and they do not decide the *form of the verdict, as it then stood, was an answer to both pleas.

The case in 2 Burr. 698, seems precisely in point, to show that the verdict is good. A more minute examination of that case,, leads us to believe, that decision was made with reference to their peculiar mode of practice, in amending in the court of error, and of holding an error that might be amended not to exist.

Upon the whole, a majority of the court believe that the verdict, until amended, is no answer to the three last pleas, and that it can' not be amended in this court.

Judgment reversed.


text:
    Treasurer of Montgomery County, for James Lowry, v. J. and L. Kemp.
    Decision in Stewart and Chaplin v. Treasurer of Champaign County, recognized and sustained.
    This cause was adjourned here for decision from the county of Montgomery. It was an action of debt, upon an administrator’s-bond, executed in 1824, brought against the administrator and-'his securities. The declaration set out the bond and condition, . and averred that, after administration granted, the administrator received a large amount of assets. It is also alleged, that Lowry, for whose use the action was brought, had recovered judgment against the administrator for a sum specified, due from the intestate ; that a writ of fi. fa. had issued against the goods and chat-tels of the intestate in the administrator’s hands, to be adminis- ■ tered, upon which the sheriff returned he could find no such goods, and that he had made demand of the administrator, who refused to show him any.
    The defendants pleaded various matters, upon which issues were made, but as the case turned upon the validity of the declaration, it is unnecessary to state them.
    Crane, for defendant,
    insisted that the case of Stewart, and Chaplin v. Treasurer of Champaign County, 4 Ohio, 88, decided this case.
    *Stoddard, for plaintiff,
    maintained that this case was dis- . tinguishable from the case cited, and argued that that decision ought not to be held a correct adj udication of the law.
   By the Court :

We are entirely satisfied with the decision in Stewart and Chaplin v. Treasurer of Champaign County, and are not disposed to disturb its authority. We think this case can not be distinguished from it. The cause is remanded to the Supreme Court of Montgomery county, with leave for the plaintiff to become nonsuit.


author: Judge Lane

text:
    Stephen Stewart v. The State of Ohio.
    Indictment for assault with, intent to kill, party may be convicted of assault and battery, or assault alone.
    This was a writ of error, adjourned here for decision from the county of G-allia.
    The case was this: 'Stewart was indicted for an assault with in“ient to kill and murder. Upon the trial, his counsel moved the court to instruct the jury, “ that if they were of opinion that the facts of the case would not warrant them in finding the defendant! guilty of an assault with intent to kill and murder, as charged in' the indictment, yet that it was competent and lawful for the jury to find the defendant guilty of assault and battery alone.” This charge the court refused to give.
    The prosecuting attorney asked the court to instruct the jury, “ that if they did not find the defendant guilty of the assault with.' intent to kill and murder, they must find him not guilty of the whole charge;” and this instruction the court gave to the jury; to all which, the defendant excepted.'
    The indictment .contained but one count. The jury found the defendant guilty of the assault with intent to murder, and he was sentenced to three years’ imprisonment in the penitentiary, to reverse which, this writ of error was brought.
    ^Several errors were assigned; but the opinion of the court is confined to the bill of exceptions.
    Murphy and Allen, for plaintiff in error.
   Judge Lane

delivered the opinion in the court.

It is assigned for error, that the court refused to charge the jury, that in an indictment for an assault with án intent to kill, they might find him guilty of simple assault and battery, without any such intention ; and' in charging that in this case, if the jury found him guilty at all, it must be guilty of the whole accusation.

A doubt has been raised, whether the bill of exceptions is taken to the refusal to charge, as well as to the actual charge; but a majority of the court believe it is, although somewhat informal, sufficiently applicable to both.

Ve are all of opinion that the charge was erroneous. That a jury may find a verdict of guilty for part, and acquit for the residue ; that where an accusation for a crime of a higher nature-includes an offense of a lower degree, the jury may acquit him for the graver offense, and return him guilty of the least atrocious. The cases and examples are collected in 1 Ch. Cr. Law, 638, and there is no foundation in this country for the distinction made in England on this point, between felonies and misdemeanors;, for here, an indictment for the higher offense rather adds to than, subtracts from his privileges.

Still, we can not say that the defendant might not be prejudiced by his instruction, and therefore the judgment must be reversed.


text:
    *Piatt and Wife and others v. Hubbell and others.
    Where, upon petition for partition, commissioners are appointed, and report made,possession taken in severalty in conformity with it,and improvements made, though no judgment of confirmation is entered on the report, and although some of the parties were infants, the division appearing to be a v fair one, after a lapse of several years equity will not aid to disturb it.
    This was a suit in chancery to set aside certain proceedings in partition. , It came before the court upon bill, answers, exhibits, and depositions, and was adjourned here for decision from the ■ county of Hamilton. The case is stated in the opinion of the court.
    Storer and Fox, for complainants.
    N. Wright, for defendants. 1
   Judge Lane

delivered the opinion of the court:

The plaintiffs are the widow and the owners of four distributive shares of the estate of W. Perry, late of Cincinnati. The defendants are the owners of the remaining share of said estate. William Perry died seized of a block of lots in Cincinnati, a partition of which is the main object of the present bill.

A partition is resisted by the defendants, because they say a partition is already made. In 1814, all the heirs of William Perry united in presenting a petition for partition to the common pleas, of these premises. Mrs. Ferguson and the two Strattons were then under age, but their names were subscribed to the petition by their mother, Mrs. Piatt. The court granted the prayer of that petition, and appointed three commissioners to set off the land, with directions to be governed by the provisions of the act defining the duties of executors and administrators, passed in February,' 1810.

At the next term, August, 1814, an order was issued to these com.missioners, directing them to make partition, in conformity with ■the statute, and make return to the- court, at the same term. Those commissioners made return,,August 5th, that they “had made the following partition.” (See map.) The map follows, containing the •division. Next follows the certificate of an oath, dated the same day, before a magistrate, in which they swore that the map exhibits the partition *made by them in compliance with the annexed order. No other proceedings appear to have been had in court; there is no acceptance of the report, no confirmation of the division, no other notice of its return.

Evidence has been taken in this suit for the purpose of showing the fairness or unfairness of this division. The testimony of the commissioners proves, that they embraced in the share set to Hub-bell, thirteen feet wide of land, which they supposed would be re-quired to enlarge the street called Western Row, and that they contemplated an alley would be run east and west through the whole block, and they attempted to equalize the value of the respective shares, upon the supposition that these alterations were made. The proof shows a diversity of opinion among the witnesses, as to the equality and justice of the partition, and although it is a subject upon which men are prone to differ, we think the evidence satisfactorily shows that the partition was at that time just.

The plaintiffs insist that these proceedings are entirely void, the report never having been accepted, and no ultimate judgment in partition having been made. By the defendant it is insisted, that although the general law, pointing out the mode of proceeding in partition, requires the second judgment; that these proceedings are under a different statute, vol. xiii. 161, sec. 37, in which no such judgment is contemplated, but under which the partition becomes complete by the act of the commissioners. Or that, at any rate, this is a proceeding by a tribunal having jurisdiction, whose acts are not void until reversed.

We do not think it necessary to decide what is the precise effect of these proceedings. It is evident the partition was in fact made between the parties in 1814, Avhich at that time was equal; and that all the adult parties took possession of their respective shares, and ever since held them in severalty, built upon, and improved them, on the faith of its validity. This court, in chancery, would not disturb a parol partition, originally fair, in which there had been so long acquiescence, and such acts of confirmation.

No difficulty is found in disposing of all the rights, except that remaining in the children of Mrs. Stratton, who wére ^minors at the institution of this suit. We have been led to conclude, that even to these the same principles are applicable. They were-parties to the original partition, and we believe it was fair. Separate possession, the erection of houses, and sales of parts of the properly.have been had, upon the faith of its validity. If it be invalid, it becomes so from the common mistake of those who-managed it — that no confirmation by the court was necessary. If these minors ever possessed the right to set aside these proceedings, the subsequent transactions render it inequitable for them to exert it. We feel, at least, that to produce this effect, they have not the-right to invoke to their aid the extraordinary powers of chancery.

The opinion we express, is upon the supposition that the interest of all parties requir es the alley to be opened. The bill, however, makes no such request. The case will be sent to the Supreme Court of that county, to afford an opportunity for the-amendment.


author: Judge Hitchcock

text:
    Lessee of Muhlenburg’s Heirs v. Elias Florence.
    “Verdict against the weight of evidence, new trial granted.
    Hew trials granted in ejectment where verdict is against demandant more liberally than where verdict is against the plaintiff.
    This was a motion for a new trial, by the defendant, in an action of ejectment. The case is stat ed in the opinion of the court..
    G. Swan, for defendant.
    H. Stanbert, for complainant.
   Judge Hitchcock

delivered the opinion of the court:

Upon the trial of this cause, in the county of Pickaway, it became important to ascertain the upper back corner of Muhlenburg’s survey. In fact, this was the only material question in controversy. On the part of the lessors of the plaintiff, it was insisted that this corner was lost, and they ^sought to establish it by running a line from the lower back corner, which was proven the course called for in the patent, until it should intersect the upper line of the survey extended westwardly. The defendant introduced witnesses to prove the corner at a point between sixty and seventy polos east of the point of intersection. The natural objects called for are four swamp oaks. The witness .called had never seen such a corner. Judge Florence stated, that while acting as the agent for the lessors of the plaintiff, in the year'1816 or 1817, and while attempting to ascertain the back line of Muhlenburg, he saw, at the point contended for by the defendant, a barren oak stump, marked as a corner, and another tree of the same description, marked in the same manner, had been cut down, and was lying nearly against a fence. This stump and tree were in afield, and in possession of a man by the name of Pritchard. Florence, although acting as the agent of the plaintiff, did not examine, particularly, the marks on the stump and tree; his sole object being to fix the back line at a place where there could be no-controversy on account of interfering claims.

In October, 1817, Sylvester. Bourne was surveying in the neighborhood, and was shown a corner, said to be Muhlenburg’s, about fourteen rods'west of Baldwin’s corner’. This is the distance between the corners of Baldwin and Muhlenburg, as claimed by defendant. Kinnear, a surveyor, run the line, and noticed the stump, marked as a corner, at the same point; and the same fact was stated by White, another surveyor, who was on the ground in-1831. White further stated, that the mark corresponded with other marks of the survey, except that they wore not cut through the bark, so as to ascertain the age by blockings.

It was stated that swamp oak and barren oak are the same timber. There was no prbof of any corner west of this, on the north line of the survey extended; but Shepherd, a witness on the part of the plaintiff, stated, that several years since, he found a man by the name of Muir (since deceased), in the woods making rails, who told him that he had chopped down a corner tree, which, at some future time, would make difficulty; and the witness saw a rail with marks similar to those on corner trees. This was near a prairie, *and several rods west of the corner as claimed by the plaintiff, but not at the point of intersection. Nor did it appear, that at, or near the point of intersection, there were any trees marked, although there was timber in the neighborhood of the description called for. It is now mostly dead and destroyed. Upon this evidence the jury returned a verdict for the plaintiff, whereupon the defendant moved for a new trial, assigning for •cause that the verdict was against evidence. The judges who tried the cause, although agreed that the verdict was against the weight of the evidence, yet differed in opinion as to the propriety ■of granting a new trial. Whereupon the counsel for the defendant moved, that, pursuant to the law in such case provided, the ■case should be reserved for decision here.

Motions for new trials are addressed to the discretion of the ■court, and will be granted or refused a3 the justice of the case ■seems to require. As a general rule new trials will be granted ■where the verdict is against the evidence or manifestly against the weight of the evidence. In the case of Curtis and others v. Jackson, 13 Mass. 507, the court say, that if the verdict be clearly against the weight of evidence, justice undoubtedly requires the interposition of the court. The only proof of the existence of a corner established it at the point claimed by the defendant. In fact the plaintiff relied upon the absence of such proof, in order that he might be permitted to establish a corner by running the course called for in his patent to the point of intersection. No principle, however, is better established in Yirginia military surveys than that this course and distance must be controlled by natural objects. It is true that there would be a great variation in the course of Muhlenburg’s back line, if the corner should bo established at the point claimed by the defendant. Still if the corner was here originally fixed, it can not now be changed. It is manifest that the back line was not run at the time of the original survey, and the course was only ascertained by calculation. There is no proof of the four swatnp oaks, but there is proof of two swamp oaks marked as a corner, and it appears that this corner is within a clearing. Further it must be remembered, that this survey was made in 1795, and the corner trees were *not examined until more than twenty years thereafter. Is it surprising, then, that some of the trees should be gone? Those found, however, are of the description called for, and no other corner is found in the same neighborhood, which could answer to the call of Muhlenburg. The testimony of Shepherd is entitled to but little consideration. He states what he had heard from Muir, and further that Muir was a man in the habit of telling large stories. TJpon the whole, the weight of evidence is manifestly against the finding of the jury, and such was the opinion -of the judges who tried the cause. The rule stated would then ■require of the court to award a new trial, and the justice of the case seems to demand it.

It is said, however, that in actions,of ejectment, new trials will not be granted, even where the verdict is not only against the weight of evidence, but where it is against evidence. I am aware that such a principle is laid down in the books.' The reason assigned is that the judgment is no bar. A new action may be brought, merely changing the name of the nominal plaintiff. I apprehend, however, that it will be found upon examination that this principle applies more particularly to cases where there is a verdict for the defendant. In such case the situation of the parties is not changed. The plaintiff can again renew his action and recover upon the same evidence which would have entitled him to a verdict in the first instance. He loses nothing by the first judgment but the costs of suit, and these he would probably have to pay, as a condition of the new trial. Where the verdict is against defendant, the reason of the rule ceases. For how is it with the defendant? If judgment passes against him, the possession is -changed, and although he commence a new action, still he comes before the jury under less favorable circumstances than before. .In ejectment the rule is invariable, that the plaintiff must recover on the strength of his own title, and not upon the weakness of the title of his adversary. If there is any doubt in the case, that doubt must be resolved in favor of the defendant. The defendant being in possession shall not be ousted by a doubtful claim. This being a principle recognized in the action, and it is founded in principles of abstract justice, why shall it be said, that ^defendant can not, after verdict against him,' move for a new trial because the action is ejectment, when the evidence upon which that verdict is founded goes to prove, not merely that the -claim of the plaintiff is doubtful, but that the defendant has, in fact, not only the possession, but also the right of possession ? Under such circumstances, to deny a new trial would seem to be manifestly unjust.

So also that courts are more liberal in .granting new trials in ejectment, where the verdict is against a defendant, than when it is in his favor. I refer to Runnington on Ejectment, 398, and 1 W. Blackstone, 348.

Upon the whole, a majority of the court are of opinion that, in the present case, a new trial be ordered at the cost of the defendant.


text:
    In the Case of the Bank of Mount Pleasant.

      Mandamus mode of proceeding.
    In this case, application was made at the Supreme Court in Jefferson county, in 1831, for a rule to be directed to the Bank of Mount Pleasant, situate in that county, to show cause why a writ of quo warranto should not issue, to examine and determine if its charter should not be forfeited, for certain alleged misfeasances. The application was made by an attorney of the court, in the name of a private individual, and was adjourned here for decision. The application was refused; but it was ruled as follows :
    1. An application for a writ of quo warranto against a corporation must be commenced by rule against the corporation to show cause why the writ should not be awarded.
    2. The rule must be applied for, by the prosecuting attorney of the proper county, for and in behalf of the state.
    3. Application may be made for the rule to the Supreme Court, sitting in any county of the state, previous *notice having been given to the party concerned of the intention to make the application. But the rule must be made returnable to the Supreme Court of the county where the party against whom it is taken resides, or is located, whether the party be an individual or a corporation.
    4. Upon the return of the rule, the court, upon hearing, will sustain or refuse the application, as circumstances and proofs may show to be right.
    5. In case the writ be awarded, the proceeding must be according to the common law, the ordinance having so directed, and there being no legislation on the subject.
    6. If, in a proper case, the prosecuting attorney decline to make-¡application for the rule, the court will order him to make it peremptorily, or direct it to be made by another person, according to circumstances.


text:
    Daniel S. Bell v. Samuel Miller.
    Tarty advising or aiding in committing a trespass, liable though not personally present at the time of committing it.
    This cause was adjourned from the county of Champaign, on a motion for a new trial made by the defendant. The action was for an assault and battery; verdict for the plaintiff; damages sixty dollars. Three reasons were assigned for a new trial :
    1. That the court charged the jury, that if the defendant incited or in any degree promoted the commission of the assault and battery upon the plaintiff, he was liable in this action, though not in a situation to afford any actual aid to the person who committed it.
    2. That subsequent to the trial, the defendant ascertained that .a material witness examined for the plaintiff was interested in the -cause. ■ .
    3. That the verdict was against both law and evidence.
    Anthony, in support of the motion,
    cited 2 Ohio, 169; 2 Stark. Ev. 356, n. 1; 1 Term, 167; Ld. Raym. 274; 3 Wils. 18; 2 New R. 446; 3 East, 599.
    *The plaintiff cited 4 Black. Com. 36; Chitty Plead. 67, 180; 2 Stark. Ev. 6, 10.
   By the Court :

All concerned in the commission of a trespass are considered principals. An assault and battery may be committed by a party not present, if he be a principal actor in or adviser and promoter -of making the attack. If one person employ another to commit an assault and battery or any other trespass, and the act is perpetrated, both are guilty, and both responsible in damages. It was not supposed that this was now a debatable question. There is no error in the charge of the court.

The record contains no proof of the fact that the interest of the witness was discovered after the trial, nor of the nature- and extent of that interest. In this state of the case that suggestion amounts to nothing. The same remark is applicable to the complaint that the verdict was against evidence. The evidence is not before this court, and consequently can not be acted upon.

New trial refused.