author: Granger, C. J. Martin, J.

text:
    Stewart v. Welch.
    A will, probated, in A. d. 1858, contained tbe following provisions:
    “20th. I will and direct tliat all tbe residue of my estate, not herein specially bequeathed or disposed of, be equally distributed among my surviving children, and the heirs and representatives by families of those who may have deceased.
    ‘ 23d. I hereby authorize and empower my executors, the survivor or survivors of them, to sell and convey such parts of my real estate as may remain undisposed of at my decease to any of my legatees who may elect to take the same, or to others, as they shall deem most expedient or beneficial in the speedy and satisfactory settlement of my estate.”

      Without fault, the executors were ignorant that the testator had had a daughter Phebe, who, being dead, was represented by her grandson. They distributed the residue to the surviving children, and the heirs and representatives of the other deceased children. Their final account, showing this, was filed and approved by the probate court in 1860. ' Throughout their administration they had duly published the statutory notices. As early as 1853 the grandson knew of his relationship to the testator; where the latter lived; that he had a large estate, and would probably soon die. The grandson could have (at his pleasure) readily ascertained when the testator died and the contents of the will. He did not inform either executor of his existence, or claim, until in 1871. In 1878 suit for his share was begun by W. and K. claiming as his assigns. Seld:

    1. As against the executors his action is barred.
    2. A contract based upon a champertous agreement is void. Although said contract is in form an assignment of the claim, and suit is brought in the assignee’s name, if it was made for the purpose of carrying on litigation without expense to and free from the control of the assignor, who received and is to receive nothing except a share of the recovery, the transaction is champertous, and the action should.be dismissed, if defendant so asks, as soon as the court ascertains its nature.
    Error to tbe District Court of Athens County.
    In February, A. d. 1858, Daniel Stewart, of Athens county, Ohio, died testate. His will was admitted to probate, and on March 3, 1858, the executors named therein were duly appointed and qualified. The will read thus:
    “I, Daniel Stewart, of the township of Rome, in the county of Athens, in the state of Ohio, for the purpose of arranging and disposing of my worldly affairs in the manner I deem most suitable, equitable and just, while as yet by the blessing of Divine Providence I remain in the exercise of my right reason, do make and publish this, my last will and testament, as follows, to wit:
    “1st. I will and direct that all my just debts and the expenses of my last sickness and burial be fully and promptly paid.
    “ 2d. I give and bequeath to my beloved wife, Louisa Stewart, should she survive me, six hundred dollars and the use and occupation of that certain part of a lot and the' “Brick House” thereon in the town of Athens, conveyed by Thomas Francis to Hull Foster and by said Foster to me, in lieu of dower in the remainder of my real estate, agreeably to the terms and intent of the marriage contract between us, dated August 24th, 1841, together with all the household and other property by her brought into my family, and any other household goods she may desire to retain.
    “ 3d. I give and bequeath to my brother, Arehelaus Stewart, in case he shall survive me, in token of my love, one hundred dollars.
    “ 4th. I give and bequeath to the heirs of my son, Andrew Stewart, deceased, five hundred dollars, to be equally divided among them by families in addition to advances made to my said son in his lifetime.
    “ 5th. I give and bequeath to my son, William Stewart, four thousand dollars, subject to the deduction of such sums as I may have advanced to him, and for which receipts may have been taken.
    “ 6th. I give and bequeath to Emily, Lauretta and Martha, the three daughters of my son, Charles Stewart, deceased, two hundred and fifty dollars each, subject to like deductions for advances.
    “7th. I give and bequeath to my son, John Stewart, four thousand dollars, subject to like deductions.
    “ 8th. I give and bequeath to my son, Ezra Stewart, four thousand dollars, subject to like deductions.
    “ 9th. I give and bequeath to my son, Alexander Stewart., four thousand dollars, subject to like deductions.
    “ 10th. I give and bequeath to my son, Daniel B. Stewart, four thousand dollars, subject to like deductions.
    “ 11th. I give and bequeath to my son, Hiram Stewart, four thousand dollars, subject to like deductions.
    “ 12th. I give and bequeath to my daughter, Lois Webster, two thousand dollars, subject to like deductions.
    “ 13th. I give and bequeath to my daughter, Sally Warren, two thousand dollars, subject to like deductions.
    “ 14th. I give and bequeath to my daughter, Lucinda Kincade, two thousand dollars, subject to like deductions.

      “15th. I give and bequeath to my daughter, Polly Root two thousand dollars, subject to like deductions.
    “ 16th. I give and bequeath to my daughter, Harriet Stewart, two thousand dollars, subject to like deductions.
    “ 17th. I give and bequeath to the missionary society of the Methodist Episcopal Church, for the support of missions, five hundred dollars.
    “ 18th. I will and direct that my household goods that my wife shall not desire and elect to retain for her own use be distributed in as near equal proportions as may be among my five daughters.
    “ 19th. I will and direct that my books be distributed to and among those whose names I may direct and cause to be written therein.
    “ 20th. I will and direct that all the residue of my estate not herein specially bequeathed or disposed of be equally distributed among my surviving children, and the heirs and representatives by families of those who may have deceased, and in case my estate shall prove insufficient for the payment of all my legacies, debts and expenses of administration, that the deficit be deducted ratably from all said money legacies except that of six hundred dollars to my said wife.
    “ 21st. I will and direct that a sufficient portion of said bequest of five hundred dollars to the missionary society of the Methodist Episcopal Church be applied for the purpose of constituting my son, John Stewart, and grandson, William Fletcher Stewart, life directors of the parent missionary society of said church, and the remainder for the purpose of constituting my wife, Louisa Stewart; my daughters, Lois Webster, Sally Warren, Polly Root and Harriet Courrier; my son-in-law, William Kineade, and my daughter-in-law, Eliza D. Stewart; Sarah Stewart, wife of John Stewart; Julia Stewart, wife of William Stewart, life members of said society.
    “ 22d. I further will and direct that the price of any lands I may have conveyed in fee or otherwise by way of advance-merit before my decease to any of my said legatees, or for their use, be deducted from the bequest of such legatee.
    “ 23d. I hereby authorize and empower my executors, the survivor or survivors of them, to sell and convey such parts of my real estate as may remain undisposed of at my decease to any of my legatées who may elect to take the same, or to others, as they shall deem most expedient or beneficial in the speedy and satisfactory settlement of my estate, and also to compromise and adjust any matters of dispute or doubt which may arise in such manner as may to them seem most expedient, just and equitable.
    “ 24th. I further will and direct that my executors shall be allowed and receive six per cent, and no more on the amount of money and property by them settled and distributed in the due course of administration of my estate as compensation for their services, and in no case for extra charges beyond that amount.
    “25th. I hereby constitute and appoint my sons, John Stewart and Hiram Stewart, and my friend, Archibald Or. Brown, executors of this, my last will and testament, with full and adequate powers and authority for the carrying of the same into early, full and complete effect.
    “ In testimony whereof I, the said Daniel Stewart, have hereto set my hand and seal this 2d day of December, A. D. 1852.”
    The executors settled the estate, paid the legacies, and distributed the residue among the surviving children and the representatives of those deceased children who were named in the will. The final account, filed in Athens probate court, showed this distribution, and that no part of the estate remained unadministered, or undistributed. This account was approved by said court on August 14, 1860, and the following entry made:
    “ State of Ohio, Athens County, ss.:

    “Probate Court, August 14th, 1860.
    “ The executors of the estate of Daniel Stewart this day made a final settlement with the court after due notice being given of the time of settlement, and it is found that said executors have faithfully paid out according to law and the will of said decedent, all the assets of said estate, and that there is nothing remaining in their hands.
    “Calvary Morris,
    Probate Judge.”
    All statutory notices were duly published during the administration, including those of the filing and hearing of said final account. No exceptions were ever filed.
    In 1871, Nelson L. Hilliard came to Athens and claimed that he was the grandson and sole surviving heir of Phebe Derthick; that she was the first born child of the testator by his first wife. Hilliard stopped at a hotel, but called upon Daniel B. Stewart (one of testator’s sons), and remained at his house for the night. They exchanged such information as either had touching the family history. Hilliard was told of the settlement and distribution of the estate. He made no demand of either executor, sought no counsel, and returned to his home in Cuyahoga county, Ohio. Joseph L. Kessinger talked with Hilliard at the hotel, and learned his relationship to the Stewarts as claimed by him. Kessinger told Johnson M. Welch what he had thus learned, and the latter, without any invitation from Hilliard, went to Cuyahoga county and opened negotiations. It was understood between Welch and Kessinger, that the latter should share equally with the former in any contract with Hilliard. The negotiation produced a contract reading thus:
    “Nelson L. Hilliard, of the County of Cuyahoga, Ohio, who claims to be a great-grandson of Daniel Stewart, deceased, late of the County of Athens, Ohio, has and hereby does sell, assign and transfer to Johnson M. Welch, of said Athens County, Ohio, for and in consideration of the covenants and agreement of said Welch, hereinafter set forth, all his interest, claims, right and title as an heir of the said Daniel to his distributive share of the estate left by said Daniel at his -death, according to the terms and provisions of the last will and testament of said Daniel Stewart, or to his right as such heir to any and all part or parts of said estate under said will, and said Hilliard hereby authorizes said Welch to bring or defend any suit or suits necessary to establish or protect his said rights as such heir — or to make him a party plaintiff of defendant in any suit now pending in said Athens County, involving his said rights as such heir. Provided in no case shall said Hilliard pay or be liable for any costs or expenses of any kind in any steps said Welch shall deem necessary to take to establish his, said Hilliard’s, said heirship.
    “ The said Welch hereby agrees to pay said Hilliard for his said interest, one half of whatever sum he may recover or receive on said claim. Provided, however, that said amount is not to be paid until and only when said Hilliard’s rights as such heir is established, and his share of said estate has been realized in money. Said Welch binds himself to prosecute the said claim of said Hilliard hereby so assigned to him with reasonable dispatch.
    “ This agreement is not to be binding and carried out unless said Welch, before he receives any money by reason thereof gives said Hilliard the guarantee of Judge John Welch and E. H. Moore, both of said Athens County, that he will fulfil and perform the same on his part.
    (Signed) N. L. Hilliard.
    “ May 12,1871. Johnson M. Welch.”
    The guarantee was given. After some unsuccessful attempts to enforce Hilliard’s claim, by intervening in actions brought on notes that had belonged to the testator, but had been sold by the executors, Welch and Kessinger, on the 6th of March, 1878, sued the surviving executors (John Stewart having died), in Athens common. pleas; claiming one fourteenth of $65,650, the amount distributed under the residuary clause of the will, and interest thereon. Hilliard was made a nominal defendant.-
    The executors answered:
    1st. A denial of a transfer to Welch, with additional averments reading thus:
    “Said, defendants allege that said Welch on said 12th day of May, A. ». 1871, and prior thereto, was, and still is, an attorney and counselor-at-law, admitted to practice in the courts of this State, and then well knew that said claim of said Hilliard against said defendants would be contested by said defendants, and if insisted upon, would be litigated. Thereupon on said 12th day of May, A. D. 1871, said Welch, for the purpose of stirring up and maintaining a suit against said defendants, covenanted and agreed with said Hilliard, to bring a suit against said defendants to establish said claim, and to prosecute such action at his. (said Welch’s) cost and expense, and without any cost or expense to said Hilliard, and that said Welch might bring any suit or take any step, which he should deem necessary to enforce said claim, and without any interference or control on the part of said Hilliard, or any power in him to release, compromise or adjust said claim ; and in consideration thereof said Welch agreed to pay to said Hilliard one half of whatever sum said Welcli might recover or receive on said claim, and nothing more, and with the provision that said consideration should not be paid until and only when said Hilliard’s claim should be established, and his pretended share in said estate should be realized in money.
    “ In pursuance of said agreement said Welch and Hilliard, on said 12th day of May, 1871, made and signed a paper writing, purporting to assign and transfer said claim to said Welch upon the consideration, covenants and terms above set forth; but said defendants allege that said pretended assignment is illegal, champertous and void, and that said Joseph L. Kessinger was privy thereto.”
    The second defense denied Hilliard’s pedigree, &c., in detail.
    The third denied charges of combination, &c., to defeat Hilliard’s claim. Their fourth defense set out their proceedings in settlement of the estate, the action of the court on their final account, and added:
    “Upon such settlement and order said executors were finally discharged from their trust, which then ceased and terminated. Neither of said executors had any knowledge, or information or suspicion of the existence of said Hilliard, or of his relationship to said testator, or of his claim to be a legatee under said will until more than ten years after all the assets of said estate had been distributed, and their said trust had been finally settled and terminated. Although said Hilliard had notice by publication of the appointment of said executors, and of the filing of their said account, he never made known to said executors, or to either of them, his claim or demand in the premises until the year 1871, but suffered said executors, without objection, to make distribution as aforesaid of all the assets of said estate.”
    This defense also denied the averments in the petition that Hilliard had no notice of the testator’s death, &e., until 1871.
    The fifth defense adopted the statements and denials of the fourth, and averred that “ the cause of action set forth in the petition did not accrue within ten years before this action was commenced, &c.”
    The sixth defense pleaded the six years’ bar, and a seventh the four years’ bar.
    The plaintiffs combined a reply and demurrer thus:
    “1. The plaintiffs, for reply to the defendants’ first ground of defense, say that the plaintiff, Welch, was not a practicing attorney-at-law on or before said 12th day of May, 1871, nor did he then know that said claim would be litigated— and plaintiffs deny that said Welch made the champertous agreement set forth in the answer.
    “ 2. For reply to fourth ground of defense the plaintiffs say they deny that said Hilliard had notice of the appointment of said executors, or of the filing of said accounts, or of the distribution of the assets, as alleged in the answer.
    “3. And the plaintiffs,demur to so much of the 5th, 6th and 7th grounds of defense as set up the statutes of limitation — first, because they do not, nor does either of them, set forth facts sufficient to bar the action; and, second, because they are multifarious and contradictory, containing both denials and new matter in confession and avoidance.”
    After a judgment in the common pleas, the cause was appealed to, and tried in, the district court. That court found for the plaintiffs, and made a decree in their favor for $7,518.49. A motion for a new trial was overruled, and a bill of exceptions presenting all of the evidence duly-made part of the record.
    The evidence showed that prior to 1790 the testator was living with a woman, reputed to be his wife, in Litchfield county, Connecticut. She then had two children — a girl several years old, named Phebe, and a baby son named Andrew. The testator, about 1790, disposed of his property, abandoned his wife and the children, and went to New Jersey with a woman, whom he thenceforward treated as his wife. About 1802 he moved to Athens county, Ohio, and resided there until his death in February, 1858. Children were born to him, both in New Jersey and Ohio. At some time he married the woman with whom he had left his Connecticut home. About 1795 his first wife married one Taylor, and had by him a son, born in 1796. After this son, whose name was Philo Taylor, had grown old enough to notice and remember occurrences, the testator visited his first wife in her Taylor home. The daughter Phebe grew up, married James Derthick, and died about 1803, leaving a child, Calista Adaline, then a baby. Derthick took the baby to his father’s in Litchfield county, Connecticut, and she there grew up, within a few miles of the former home of the testator, and of the then home of the Taylors, as was known to her grandmother and Philo. The boy Andrew, after an appenticeship in Connecticut, followed the testator to Athens, Ohio, and was received and acknowledged by the testator as his “ son by his first wife.”
    Calista Adaline, in 1822, married Gurden Hilliard, had two children, Phebe and Nelson, and died before the testator. Phebe also died, unmarried and childless, before the testator. Nelson was born in 1824, lived for three years, or more, in Portage county, Ohio, and afterwards in Cuyahoga county. A year or two before January, 1853, his grandfather Derthick told him that Daniel Stewart was his great-grandfather ; that he was living in Athens county, Ohio; that from him he would inherit a share of a large estate, and advised him to look after it. On January 24, 1853, Nelson wrote to Daniel B. Stewart at Athens, Ohio, making inquiries about the Stewart family, but giving no hint of his object, or of his relationship. In reply he received, by due course of mail, a letter reading thus:
    “ Gttysville, Athens Co., Feb. 28, 1853.

      “Dear Sir: Yours of Jany. 24 Directed to Daniel B Stewart was duly reed by me altho it was not exactly my name yet I suppose it was intended for me. I live 13 miles below Athens in Rome Tp Guysville P. O. As it respects my parentage my Fathers name is Daniel Stewart his fathers name was Daniel his Mother name was Phebe & had a sister named Phebe whom died many years since, they were all Born in Litchfield State of Connecticut. My Father is now over 90 years old was in the Revolution war I am one of his younger sons. Born in Ohio and am now over 40 years old and one of a Large Family, 6 Brothers of us 5 Sisters m3r Father had but one Brother named Archelaus 10 years younger than himself had one sister Marnell Hodskip who died in Astabula Co this State. Left several children who are there now in Geneva Center or near there, there was three more sisters of my Father that stayd in Connecticut If I understood my Father right perhaps this will give 3rou enough information as to our origin to enable you to arrive at what you want. I shall be hapy to hear from you again soon.
    “ Respectfully, D. B. Stewart.
    “ if you should want any Correspondence with Hodskins, his name is Aaron he had a sister Maud Marinus Prince. Both lived in Geneva, Astabula Co. Ohio when I was there 4 or 5 years since.”
    Nelson made no further inquiry, or communication, until, in 1871, being in Logan, Hocking county, on other business, he concluded to visit Athens. What he did there, and afterwards, has been already stated.
    During his entire life the testator never spoke of Phebe (Nelson’s grandmother) as his child to any one (so far as the evidence shows), unless he did so a few months before his death to one Bowles, who did not inform any of the executors, or of the family of such conversation. It does not appear that Andrew spoke of her to any of his half brothers, or sisters, or to any other person in Ohio. They and the executors remained ignorant that she had ever existed until Nelson’s visit to Athens in 1871. The settlement and distribution of the estate was made in good faith, and was believed to be in strict accordance with the directions of the will. The executors had no reason to suspect the existence of any person entitled to a share of the residue other than those to whom distribution was actually made. Hilliard, on the other hand, had good reason to believe that his relationship to Daniel Stewart was unknown to the family at Athens, and that Daniel Stewart had not recognized Phebe Derthick as his child for more than sixty years, if ever.

      Harrison, Olds & Marsh, for plaintiff in error.
    I. The contract between Welch and Hilliard was clearly champertous and hence absolutely void. It could not legally operate to assign or transfer to Welch or Kessinger any interest in the claim of Hilliard against the defendants. The plaintiffs could not through or under it derive or obtain any right to maintain an action against the defendants. They,. therefore, had no cause of action.
    Broom’s Legal Maxims, *734; Walker’s Am. L., 218; 2 Blackstone’s Com. Book 4, page 135; Pollock on Contracts, 294; Martin v. Clark, 8 R. I. 389; Brown v. Beauchamp, 5 Ky., 413; Duke v. Harper, 66 Mo., 51; Ackert v. Barker, 131 Mass., 436 ; West v. Raymond, 21 Ind., 305; Key v. Vattier, Ohio, 132 ; Weekly v. Hall, 13 Id. 167 ; Reed v. Quigley, 16 Id. 445; Morrison v. Deaderick, 10 Humphreys (Tenn.) 342; Norton v. Tuttle, 60 Ill., 130; Coleman v. Billings, 89 Id., 183; 2 Story’s Eq. Jur., §§ 1048, 1049; Dewitt v. Brisbane, 16 N. Y., 508; 103 U. S., 261; Webb v. Armstrong, 5 Humphreys, 379; 29 Wis., 502; 61 Ind., 201; Hilton v. Woods, L. R., 4 Eq., 432; 2 L. R., Ch. App., 164; 14 Wis., 131.

      II. The settlement in the Probate Court was conclusive. Redfield on Wills, Pt. 2, p. 894; 3 Toller on Exrs. ch. 10, p. 495; Field v. Hitchcock, 14 Pick., 405; 76 Pa. St., 231; Schouler’s Exrs. and Admrs., § 528. And the statute of limitations began to run from the settlement of the account. Angell on Lira., § 166; Carpenter v. Canal Co., 35 Ohio St., 316; 33 Conn., 67; Clark v. Boorman, 18 Wall., 493; Moore v. Porcher, 1 Bealey Eq. R. (S. C.), 195; Payne v. Harris, 3 Strobhart (Eq.), 39; 2 Rawle, 287, 304; Fee v. Fee, 10 Ohio, 469; Lathrop v. Snellbaker, 6 Ohio St., 276; Kerns v. Schoonmaker, 4 Ohio, 331; Park v. R. R. Co., 23 Ind., 572.
    III. If the trust continued and subsisted after the settlement, and therefore the case did not come within the bar of the statute, still it was a stale equity, and Hilliard was guilty of such laches that equity should not relieve him.

      Clark v. Potter, 32 Ohio St., 59, and cases there cited.

      DeSteiguer & Jewett; E. A. Cuthrie and Welch Welch, for defendant in error.
    I. As to champerty: In the light of all the non-Ohio cases on the subject of champerty we think five things may safely be asserted:
    1. The English courts uniformly confine the defense of champerty to actions or disputes between the parties to the champertous contract, and never allow it in an action to recover the claim which was the subject of the contract.
    2. A decided majority of the American cases, and those of the highest authority, hold the same doctrine.
    3. There is no case, English or American, where the legal title, or the exclusive right of action was in the alleged champertor, in which the defense has been allowed.
    4. In no case has it been allowed, unless the creditor or claimant was, in some shape or manner, a necessary party to the action, liable for costs, and deprived of the right to settle or dispose of the action or controversy.
    5. Where the plea of champerty is allowed it has been allowed for the benefit, and not to the injury of the original claimant; the primary object of the court being the protection of the claimant against the machinations of the champertor, and not the protection of the debtor who refuses to pay an honest debt.

      Wright v. Tibletts, 91 U. S., 252; Wylie v. Cole, 15 How. (U. S.), 415; 1 Parsons on Notes and Bills, 218, 219; 3 Pickering, 184; 48 Ind., 206; Pollock on Contracts; Albany Law Journal of May 21, 1881.
    The Ohio cases which bear on the subject are: Key v. Vattier, 1 Ohio, 132; Hall v. Ashby, 9 Id., 96; Weekly v. Hull, 13 Id., 167; Lewis v. Lewis, 15 Id., 715; Reed v. Quigley, 16 Id., 445.
    II. As to the settlement and statute of limitations:
    As long as the beneficiary trusts the trustee, or is supposed to trust him, the trust is a “subsisting or continuing” trust. Whenever the beneficiary is advised that the trust is disavowed, then he ceases to trust, and the trust is no longer “ subsisting or continuing.” It would almost seem that the word “ continuing ” was put in the law purposely to meet a case like the present. By a final distribution the executors disavow the trust; but the eestue que trust “ continues ” to' trust, until he is informed of the disavowal.
    These propositions, in regard to the law of limitations in such cases, are fully sustained by the authorities, both in and out of Ohio. We cite the following:

      Carlisle v. Exr's of Loring, 10 Ohio St., 198; Williams v. Pres. Society, 1 Id., 478; Williams v. Van Tuyl, 2 Id., 336 ; 16 Id., 11, 16 ; Tappan, 198; Wright, 370 ; 17 Ohio St., 484, 505; 22 Id., 27; 14 Id., 424; 20 Id., 310; 5 Id., 87; McAfee v. Philips, 25 Id., 374; 7 Id., pt. 1 p. 21; 24 Ohio St., 160, 169; 39 Mo., 292; 9 Fla., 187; 4 How. (U. S.), 560; 3 Johns ch., 190, 214, 216; 2 Watts (Pa.), 161, 163; Hill on Trusts, 168, 169, 583; See also Arden v. Arden, 1 Johns. Ch., 313 and cases cited at p. 316 ; Perry on Trusts, 186, 867; Tiffany on Trusts, 715; 2 Am. R., 572; 7 Blackford, 86, 16; Davis v. Bagley, 2 Id., 572; Chitt. on Con., 311; See also State v. Immel, 2 Ohio St., 561; Albany Law Journal, April 22, 1882, p. 317. Also same Journal, of February 17, 1883, p. 135, of Dec. 2,1883 and of June 1880, p. 495.
   Granger, C. J.

It seems to us that the evidence showed that the testator did not consider Phebe Derthick as one of the deceased children referred to in the 20th or residuary clause of the will. If, before her birth, he had married her mother, the law would presume her legitimacy. But it cannot be fairly claimed that the record before us does more than to show that, at a time when Phebe was several years old, the testator was living with her mother as his wife, and that he acknowledged Andrew as “his son by his first wife.”

While the law of evidence, ex necessitate, permits hearsay as to pedigree; and general reputation that a man and woman lived and cohabited in a community as man and wife, has been held sufficient to establish the fact of marriage, the weight to be given to such evidence varies with the circumstances of each case. No witness of the marriage between Daniel and Phebe’s mother was examined. If such marriage occurred prior to Phebe’s birth, it was celebrated as early as 1783. Of the witnesses for Hilliard’s claims, Philo Taylor was born in 1796 ; Lucy Ann Judd in 1790; Sallie Baldwin in 1791; Mercy G. Alcott in 1797; Jedadiah Gaylord in Í803; and Anne Derthick in 1799. No one of these, therefore, could, of their own knowledge, tell of the cohabitation of Daniel and Phebe’s mother, and its accompanying reputation. Whatever they testified was a repetition of another person’s narrative of the events of years prior to the birth of all of these witnesses. Only two of those witnesses ever heard any of Daniel’s family say anything on the matter. Jedadiah. Gaylord’s mother (a sister of Daniel) told him “ about my (his) uncle Daniel Stewart going away from Connecticut and leaving his wife there and taking another woman with him.” Gaylord added, “ I also heard her say that he left a son, by the wife he left, by the name of Andrew there. When I was a boy Andrew came to my father’s on his way to Ohio to find his father.” Mercy G. Alcott, sister of Jedadiah Gaylord, related what their mother had told her thus: “ I heard mother say he was married in Connecticut; do not recollect who-she said he married, nor when and where; he left his wife in Connecticut with two children and in low circumstances, and his wife in the family way. * * * Andrew was one. As near as I can recollect, the other one’s name was Covil.” Now, Schovil was the maiden name of Phebe’s mother. Mrs. Alcott also testified that Andrew told her “ that his father had fifteen children ; three born in Connecticut and the rest in Ohio.” As she saw Andrew when he was “about 17 years old” of course he could not, and did not, tell her that his father had 12 children born in Ohio. Moreover, if Andrew told her of three children born in Connecticut he included Philo Taylor, who was not his father’s son. It is an undisputed fact that several of the testator’s children were born in New Jersey. Hence we .must conclude that either Andrew was incorrect in his statement, or Mrs. Alcott’s memory of them is defective.

As Andrew was an infant when his father abandoned his mother, anything said by him before he rejoined his father, as to Phebe’s pedigree, was necessarily hearsay from his mother’s side of the house.

In 1795 that mother married Taylor, and subsequently the testator openly visited her at Taylor’s house. ' The tes'tator married another woman while Andrew’s mother was yet living. There is no evidence of any divorce. He acknowledged Andrew. Andrew, before reaching manhood, confidently made the then long and difficult journey from Connecticut to Ohio, to see his father. But no witness speaks of any such acknowledgment of Phebe. Neither Phebe, nor any of her descendants, ever sought recognition until Hilliard visited Athens in 1871. For three fourths of a century there was an absence of recognition on one side, ■and of all claim for such recognition on the other.

It is urged that the testator, when he made his will, supposed that Phebe had died childless. Of this there is no •evidence. Her child was reared to womanhood within five miles of the home of Mrs. Taylor (Andrew’s mother). Philo Taylor saw her there. Mrs. Taylor did not die until Calista was in her teens. Andrew did not leave Connecticut until after Phebe had died, and her child .had been left at its grandfather Derthick’s, within five miles of his own home. Calista was almost a woman when Philo Taylor came to Athens in 1818. She was married before he left Athens county. Andrew and Philo were half brothers, and Calista was certainly their niece. These facts do not prove that the testator knew of Calista’s existence, but they render improbable the suggestion that he did not know of it.

Andrew married, and had nine children. It • does not appear that he ever named to them Phebe, or her child.

uJames Derthick never told Hilliard of his relationship to Daniel Stewart until after 1850 — when Nelson was more than twenty-five years old. Although told of his supposed great-grandfather’s wealth, of his own heirship, and that Daniel Stewart, in 1853, was more than ninety years old, he made no further inquiry until 1871. Even then he showed no confidence in his claim, and if left to himself, would probably not have asserted it.

The only witness who claims to have ever heard Daniel Stewart speak of leaving more than one child in Connecr ticut, is Peter W. Boyles. Boyles moved into the house of Daniel in the fall of 1857, and Daniel died there in February, 1858. Whatever talks they had were in that interval —Daniel being almost 95 years old. Boyles’ narrative not only conflicts with the power of attorney of June, 1857, but it contains his assertion that Daniel “ wanted me (him) to have A. Gr. Brown to come down so that he could make an alteration in the disposition of his property.” Neither Boyles, nor any other witness, testified that any such message was carried to Brown. The will, the power of attorney, and the entire evidence as to Daniel Stewart’s life, satisfy the mind that if he had desired such a message carried, he would have been obeyed.

Looking at the whole will in the light of the evidence in the record; it is plain that the testator did not, in his own mind, include Phebe among his “ deceased children ” referred to in clause 20. Possibly, if her legitimacy had been clearly established, it would be the duty of the court to hold that in law he did intetad to so include her. But the evidence does not so establish her relationship to the testator.

Leaving this question of pedigree, we turn to the facts presented .in support of the third defense.

In August, 1860, the executors, in open court, declared that their office under the will was at an end; that they had paid out the entire residue to specified persons as proper distributees. The court approved their final account, found that they had fully distributed the estate according to law and the will, and discharged them. From that time the statute of limitations began to run against all persons who had notice of this termination of the trust relation of the executors. While numerous cases thus hold, Justice Milieu, of the Supreme Court of the United States, in Clark v. Boorman’s Exrs., 18 Wall., 493, clearly and concisely stated the rule thus:

“It may be conceded that, so long as a trustee continues to exercise his powers as trustee in regard to property, that he can be called to an account in regard to that trust. But when he has parted with all control over the property, and has closed up his relation to the trust, and no longer claims or exercises any authority under the trust, the principles which lie at the foundation of all statutes of limitation assert themselves in his favor, and time begins to cover his past transactions with her mantle of repose.”

Nelson Hilliard, long a resident of Ohio, was especially bound to take notice of our statutes regulating’the settlement of estates by executors and administrators in the probate court. In Februarjq 1853, he knew that the man whom James Derthick spoke of as his great-grandfather, possessed of a large estate, was a fixed resident of Athens county; that he was then more than ninety years of age, and therefore his death was probably nigh .at hand. He had been told of his relationship and of his probable inheritance. His maternal grandfather had urged him to look after it. After reading D. B. Stewart’s letter he knew that the old man’s death at an early day was probable. Long a resident of Ohio, he knew that her law allowed a limited period for the administration of an estate. He had good reason to believe that Daniel Stewart was dead, and that his estate was being settled in ignorance of his own existence and claims. His voluntary omission to inquire as to the death, and to notify the executors of his claim, produced the distribution without assigning any share to him. True, he knew nothing of the will, but if he was a great-grandson of the decedent he was an heir. Until informed that there was a will he had a right to consider himself as an heir, and therefore having an interest that he ought to make known to those administering upon the estate. If he did not have actual notice of the proceedings in Athens probate court it was his own laches that prevented it. The executors acted in good faith, and without negligence. They gave every notice required, or authorized by law. Having no knowledge of Hilliard, or of his claims, they could not specially notify him. We think his knowledge of the position imposed upon him a duty in favor of the executors.

The error of the trial court was in holding that Hilliard’s notice dated from his visit to Athens in 1871, when he first learned of the will and its contents. But we think that, under the peculiar circumstances hereinbefore detailed he must be held to have known all that proper diligence on his part would have told him. This included everything in the probate court, from the probate of the will to the discharge of the executors. What Hilliard actually knew in January, 1853, “put him upon inquiry.” That being so he should be treated as having learned all that reasonable inquiry would have made known to him. While equity refuses to allow the statute of limitations to run in favor of a trustee, who has disclaimed the trust, until his beneficiary has notice of such disclaimer, it will not allow a beneficiary to remain silent, and without inquiry, while he has good reason to believe that the trustee, innocently ignorant of his claims, is distributing the estate to others, without treating the beneficiary so acting as one having notice of all that his own laches left him ignorant of.

Applying this principle to Hilliard, it is evident that nothing but his own failure to inquire prevented his actual knowledge of the appointment, proceedings, account and discharge of the executors at the time. Certainly the most ordinary diligence would have informed him of everything as early as 1863. The suit was not begun until 1878.

This conclusion requires a reversal of the judgment below and a final judgment for the executors, but we ought to notice the defense in which champerty is pleaded.

The facts have been fully stated. The district court held that the agreement between Hilliard and Welch was champertous. In that holding we concur. But that court decided that the executors could not avail themselves of the champerty; that Hilliard had completed the transfer of his rights to Welch; that it was an executed contract, and could not be annulled. In this we see error.

If Welch and Kessinger had obtained actual possession of Hilliard’s share of the estate in specie, the champertous agreement could not be so used as to dispossess them, or to prevent their recovery against any subsequent wrong-doer. To such, and kindred cases, the doctrine of the trial court well applies.

But the pending action is the identical one for whose prosecution Hilliard and Welch contracted. If the parties to such a contract, by a mere change in its form; the introduction of a few words; by agreeing that the claimant shall assign his claim to the champertor; that the latter shall prosecute the suit in his own name, and pay to his assignor a share of the recovery, can escape the power of the court and force the tribunal which condemns champerty to actively aid the champertor, the common law was indeed blind when it pronounced champertous contracts void.

Courts are not so helpless that they can be rendered powerless by the easy change of words in the contract, or the shifting of parts in a play of champerty. Such tribunals, when not shackled by statute, look through words and form to substance; deal with things, rather than names ; look at what was intended, more than at what was said, or written, in all cases.where evidence, legally admissible, establishes the actual facts. It is plain that the contract before us was skilfully drawn; that the purpose was to commit champerty in such form that it would be impossible for any person, or court, to defeat its object. To find and decree for Welch and Kessinger is to interpose actively in giving effect to a champertous contract. This the court should refuse to do. We think the first defense was one the executors had full right to make; that, the evidence established it, and that upon it judgment ought to have been rendered dismissing the action. Whether Welch was an attorney at law, or not; practicing or not, was immaterial.

In Weakly v. Hall, 13 Ohio, 168, it was held that “ In Ohio there is no statute against champerty, or maintenance, but contracts founded on such considerations are void.” Whether such contract stipulates that the action shall he in the name of the champertor, as purchaser of the claim, he to share the recovery with his assignor, or that the claimant himself shall be plaintiff and allow the champertor .to. control the suit and to receive his share of the recovery, is unimportant if the agreement is actually champertous. The contract is an entirety. It cannot be carried out without the aid of a court. That aid the court should refuse, if satisfied of the champerty, regardless of the form of the agreement. The cases cited' by counsel confirm us in this view. The judgment of the district court is reversed, and the action dismissed at the costs of the plaintiffs below.

Martin, J.

I concur in the judgment on the ground that Hilliard’s heirship is not established by the testimony.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Board of Education v. Sinton.
    A board of education being authorized by a special act (66 Ohio L., 402) to issue its bonds to an amount not to exceed the sum of $20,000, issued the same to the full extent of its authority, payable to-- or bearer ; and thereafter took up and paid certain of such bonds and loft them with its treasurer, who was a member of such board, with instructions to cancel them, which he failed to do, but negotiated them, before maturity to S., as collateral security for a loan made to him by S., who made no inquiry in regard to them. Held:

    1. The payment of the bonds by the board extinguished them, and they were incapable of being re-issued.
    2. There was no negligence on the part of the board in not seeing that its treasurer complied with its instructions to cancel the bonds.
    3. S. was guilty of contributory negligence in taking the bonds without inquiry.
    Ebbok to the District Court of Hamilton County.
    . Sinton was plaintiff below, and his action was founded on thirty coupon bonds, each for $100, alleged to have been given by the defendant, a board of education of the separate school district of the village of Westwood. The defenses were a general denial and payment. Sinton recovered judgment. A motion for new trial having been overruled a bill of exceptions covering the testimony was allowed. In the district court the judgment was affirmed. The object of this proceeding is to procure a reversal of the affirmance.
    It appears that the board was organized under the act for the formation of separate school districts from sub-districts of a township, passed April 9, 1867, (64 Ohio Laws, 117). The board consists of three members who, when the transactions under review occurred, were William E. Davis, John D. Minor and Thomas Morgan. Davis was treasurer of the board from April, 1874, to his death in April, 1877. He was a man of repute and prominence, and held other public trusts. The board was authorized by a special act of the legislature, passed May 7,1869 (66 Ohio Laws, 402), to purchase a site and build a school house at a cost not exceeding $20,000; and for the purpose of providing funds therefor to issue and sell at par value its bonds in sums of not less than $50, nor greater than $500, with interest at 8 per cent, per annum, payable semi-annually, for an amount not exceeding in the aggregate the sum of $20,000, and payable at any time, not exceeding ten years, from the time of issue. It was also authorized to levy an annual tax for the payment of the same, and to sell the old school house and lot, and apply the proceeds toward the erection of the new building.
    On September 1, 1869, the board accordingly issued two hundred bonds, each for the sum of $100, payable September 1, 1879. The bonds in suit are of this number, and were sold and delivered by the board, and were at various times thereafter, and before June, 1875, redeemed and lifted by the treasurer for the board, and with its funds; and on report made by him he was ordered by the board to cancel them by punching or defacing the signatures. He did not cancel them; but on November 4, 1876, having procured a favorable introduction to Sinton, he delivered them as collateral security for a loan then.made to him by Sinton. Sinton had no previous acquaintance with Dayis,. and supposed he wms the owner of the bonds, and did not know that he was or had been treasurer of the board. He made no inquiry as to the custody of, or title to the bonds.
    The bonds were separately numbered and of this form ;
    State oe Ohio, County oe Hamilton.
    SEPARATE SCHOOL DISTKICT OE VILLAGE OE WESTWOOD 100 Dollars.] EIGHT PEB CENT. LOAN [Certificate No.
    Eon Purchase of Site and Erection of School House.
    By virtue of an Act' of the General Assembly of the State of Ohio, passed the 7th day of May, 1869, the Board of Education of Separate School District of the Village of Westwood, in the County of Hamilton, and State of Ohio, do hereby acknowledge that the Separate School District of the Village of Westwood, owes and promises to pay to --or bearer, the sum of One Hundred Dollars, on the first day of September, eighteen hundred and seventy-nine, with interest thereon at the rate of eight per centum per annum, from the date hereof, the said interest to be paid semi-annually, on the first day of March, and the first day of September, on presenting the proper coupon for the same at the Bank of the Ohio Valley, Cincinnati, O.
    In witness whereof, we, the Directors of the Separate School District of the Incorporated Village of Westwood, have hereunto set our hands, and. affixed the seal of the said Incorporated Village, this first day of September, in the year 1869.
    Wm. E. Davis, ) Board [seal.] John D. Minor, > of Thomas Morgan, ) Education.

      King, Thompson and Maxwell, for plaintiff in error.
    I. In no event can the defendant be liable upon these bonds. The board had exhausted its authority by its original issue of §20,000 and could not bind the corporation, even by a voluntary issue of additional bonds.
    The board had no power, except as specially conferred by the legislature, to issue negotiable securities. 1 Daniels on Negotiable Instruments, §§ 420-423, and cases cited. Bank v. Inhabitants of Winchester, 8 Allen, 109 ; Cummings v. Fitch, 40 Ohio St., 56; Williamson v. City of Keokuk, 44 Iowa, 88; Sikes v. Mayor, 55 Miss., 115; Marsh v. Fulton County, 10 Wall., 676; Treadwell v. Commissioners, 11 Ohio St., 183 ; Bank of Chillicothe v. Swayne, 8 Ohio, 257; Straus v. Eagle Insurance Co., 5 Ohio St., 59; Town of South Ottawa v. Perkins, 94 U. S., 260; McClure v. Township of Oxford, Id., 429.
    It is of course immaterial whether the unauthorized issue be by reissuing forms already printed and signed, or by using new bonds. The Mayor v. Ray, 19 Wall., 468.
    The case, as at bar, of absolute want of power, must not be confounded with those of its irregular exercise, such as in State v. Board of Education, 27 Ohio St., 96, and numerous cases in the supreme court of the United States. DilIon on Mu. Corp., § 546; 92 Ill., 25; 19 Wall., 469; 7 Id., 676.
    II. Now, these bonds never were, in fact, reissued by the board. Davis, in delivering them to Sinton, did not assume to act, nor did Sinton understand that he was acting, as an officer of the board. On both sides it was understood to be an individual transaction. There is no room, therefore, for invoking any principal of agency, whereby to construe Davis’ delivery to Sinton as a reissue by the board.
    So that, assuming our defense of ultra vires to be untenable, the question is, whether as against Sinton, the board is estopped to deny a reissue at some time prior to his purchase from Davis. 93 U. S., 326; McKinzie v. Steele, 18 Ohio St., 38, 41; 1 Story’s Eq., § 391.
    III. The bonds got out, without any intention on.the part of the board. The estoppel, if any, must, therefore., proceed upon the ground of negligence.
    Upon that ground it fails.
    (1.) Because there was no negligence in fact.
    Davis was a man of very high reputation, occupying, at the time, the position of Assistant United States Treasurer at Cincinnati. He was a member of the board, and its treasurer. It was not negligence in the board to entrust him, as its proper officer, with the custody of the bonds for purposes of cancellation; certainly not such gross negligence as is equivalent to fraud or bad faith — the degree essential to work ' an estoppel. Arnold v. Cheque Bank, 1 C. P. D., 578; Chipman v. Tucker, 38 Wis., 43; 29 Ohio St., 364, 369; 41 N. Y., 521; 123 Mass., 196.
    (2.) The estoppel fails because it was not the defendant’s alleged negligence, but Davis’- crime, which was the proximate cause of the plaintiff’s injury. Lowery v. Western Union Telegraph Co., 60 N. Y., 198; 30 Ohio St., 555; 94 U. S., 469, 475; Bank of Ireland v. Evans' Charities, 5 H. L. C., 410; Baxendale v. Bennett, 3 Q. B. D., 525.
    (3.) The estoppel fails because the plaintiff was guilty of contributory negligence. The bond showed Davis to be a member of the board. He was in fact its treasurer. He presented himself to the plaintiff with an instrument which disclosed on its face that he was a trustee, claiming to own trust property. The plaintiff accepted it from him without inquiry. Wharton on Agency, § 187; 95 U. S., 557; Claflin v. Bank, 25 N. Y., 293.

      Lloyd & Taft, for defendant in error.
    I. David Sinton was a bona fide purchaser- of the bonds for value before'their maturity. ,
    Delivery of negotiable instruments as collateral security for a contemporaneous debt, is a transfer of them for a valuable consideration. Roxborough v. Messick, 6 Ohio St., 448.
    The purchase was made in 1876, three years before the bonds fell due, Mr. Sinton knew nothing of the facts of the purchase by the board, or the circumstances which followed. The fact that Wm. E. Davis’ name appeared asoné of the signers of the bond, in his official capacity, as member of the school board was not a circumstance to put him on his guard. It would be quite natural for Davis to have invested in the bonds and there was nothing illegal or suspicious in his having done so. Beside, the bonds had been issued seven years before, and Davis’ possession after the bonds had been issued so long a time, was not a fact that even the most careful could regard as suspicious. Sinton did not know that Davis was treasurer or custodian of the bonds, and there was nothing on the face of the bonds to indicate that he was. Davis was introduced to Mr. Sinton in an ordinary business way, as a gentleman of good standing in the community. Johnson v. May, 27 Ohio St., 374.
    The fact that the name of the payee is left blank when the bonds are payable to-or bearer, is not suspicious: Daniels on Neg. Inst., § 1496; White v. R. R. Co., 21 Howard, 575; Preston v. Hull, 23 Gratt., 613.
    The rules of law applying to commercial paper govern bonds like these: Dillon on Mu. Corp., § 405.
    II. By the purchase of the bonds before maturity, the rights which the board acquired, were neither greater nor, less than those of any other purchaser. If the bonds, at the time the board purchased them, had been bought by some other person, say a corporation, and the treasurer of that body had embezzled the bonds and sold them to Sinton under the same circumstances, the corporation, thus losing them, could not recover them in a suit from Sinton, or prevent his recovering the money on them from the board, whenever they fell due, on the ground that it, the corporation, had not delivered them. See Consolidated Association of Planters v. Avegno, 28 La. Ann., 552; City of Elizabeth v. Force, 29 N. J. Eq., 587; Burbridge v. Manners, 3 Campb., 194; Morley v. Culverwell, 7 Meeson & Wellsby, 174; Harmer v. Steele, 4 Exch., 1; 25 L. J. Exch., 244; 2 Daniels on Neg. Inst., § 1233; Thompson on Bills, 246.
    III. But even if it is held, that such a purchase constitutes payment, the board is liable on the bonds, because the delivery to their agent for any purpose, even for cancellation, is sufficient delivery to constitute a re-issue, and give vitality to the bonds in the hands of a bona fide purchaser for value however fraudulently the agent may have abused the board’s confidence. Bank v. Neal, 22 Howard (U. S.), 107; Fullerton v. Sturges, 4 Ohio St., 535; Merrick v. Bank 16 Id., 307.
    IY. The board of Education is estopped to deny its liability on the bonds, because of their negligence in not cancel-ling the bonds when they had them in their possession, on the ground that where one of two innocent parties must suffer a loss from the default of a third, the* loss must be borne by the party who by trusting the third person has put into his hands the means of causing the loss; provided that the confidence reposed, was the proximate cause of the loss. In the present case the extraordinary confidence reposed by the board in Davis was the proximate cause of the loss, which must fall either on the board or on Sinton: Ross v. Doland, 29 Ohio St., 479; Decamp v. Hanna, 29 Id., 471; Ingham v. Primrose, 7 C. B. (U. S.) 82; Young v. Grote, 4 Bing., 253; Bank v. Wentworth, 5 Ex. Ch. D. L. R., 96.
    The English cases in which the court refused to apply the principle we contend for, are all distinguishable from the case at bar.

      V. The defense of ultra vires in the re-issue, of these bonds is'not tenable.
    First. Because it did not increase the issue beyond twenty thousand dollars, the limit of the law.
    Second. Because purchase by the board before maturity •was not authorized by the law and a re-issue has only brought the board within the law.
    Third. Because the board is ¿stopped to deny the validity of the bonds which on their face purport to have been issued in September, 1869, as part of the original issue of $20,000.'
   Martin, J.

It is admitted that the board had issued bonds to the full amount authorized by the statute before Davis delivered the bonds in suit to Sinton. It is also admitted that the bonds in suit had been previously redeemed and lifted by the board with intent thereby to extinguish them. If the board is still liable upon them, it must be because of their continued vitality since the original issue, or because their delivery to Sinton was under such circumstances as to amount in law to a re-issue. For delivery or its equivalent is essential to every obligatory instrument. The important facts are, that when redeemed by the board, and when delivered to Sinton, the bonds were not due; that they were then uncanceled, and that they were accepted by Sinton from Davis as private owner and without inquiry.

Payment by anticipation, it is claimed, did not extinguish them, and produced no other effect than that of a discount or purchase by a stranger. Reliable authorities in support of this, as a general proposition, are cited by counsel. It must be conceded that notwithstanding the purchase or redemption of his own note by the maker before maturity he may re-issue it, o.r so conduct himself in respect to it that he will be estopped to defend as against an innocent purchaser. But the statute, by providing for an annual tax, and the sale of the old school property, and the application of the fund of an uncertain amount to the erection of the new building, fairly contemplates payment in advance, and therefore authorizes it. But as we understand the doctrine, it has no application to the' facts of this case. A natural person has unrestricted power to issue and re-issue. Such is not the case with this board. In State v. Powers, 38 Ohio St., 54, McIlvane, J., defines school districts under our system “as mere subdivisions of the state for political purposes, as mere agencies of the state in the administration of public laws.” And again he says: “ The district is organized as a mere agency of the state in maintaining its public schools, and all its functions are of a public nature.” In the same connection that eminent Judge further remarks: “ Many of the powers and franchises of municipal corporations are of a private and local character, essentially different from those of mere political subdivisions of the state, commonly called quasi corporations.”

By general statute school boards are authorized under precise limitations and conditions precedent to issue bonds for certain specific purposes. That power was not invoked in this instance. And the only authority is that recited in the bond, viz: the special act of May 7th, 1869. By that act they were authorized to issue bonds not exceeding in the aggregate $20,000. In September, 1869, they had issued to the full amount. Their authority was then exhausted. There can be no pretence of any further or other authority to issue. In executing this authority an incidental re-issue would of course be unimportant. The same paper could serve successive turns whilst the authority was in existence; but when the sales in the aggregate reached the prescribed limit the authority was at an end; and the board then had no greater right than a stranger to create an indebtedness by bond or otherwise under the statute. It follows that when the bonds were redeemed in 1874 tti^y" were extinguished and incapable of re-issue. No new bond could be issued for want of authority; and for the same reason a retired bond could not be re-issued, and payment by antiei'pation was extinguishment in law. Of the authorities ¡referred to, some relate to corporations at common law, whose powers rest in prescription, others to trading corporations, whose capacity within the general scope of their business is about as free as that of a natural person; and others again relate to municipal corporations in exceptional situations, or when the power to contract the debt is conceded, and the right to give a commercial security therefor is questioned. They throw but little light on the question under consideration. The general rule, however, is well settled that such power must be conferred and strictly pursued. Other cases relating to the irregular exercise of the power are not in point. This view disposes of the case. But if this conclusion is wrong, the case presents another view which we consider as controlling. - The only ground which can plausibly be suggested for a recovery is the alleged negligence of the board in not seeing to it that the bonds were canceled. It is supposed to rest on the maxim that whenever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it; The claim is, that by reason of that neglect the board is estopped to deny a reissue of the bonds. In McKinzie v. Steele, 18 Ohio St., 38, Judge. Welch lays down the rule as follows: “ To work an estoppel there must be prejudice to the party setting it up, and also fraud or bad faith — or their equivalent, gross negligence — in the party to be estopped.” At the outset we are met by the obvious objection that an estoppel concerning an alleged dereliction of a public officer is a novel mode of supplying a total want of statute power for purely public purposes. Waiving this objection we fail to discover in this record the slightest evidence of any negligence on the part of the board. In 1874 the treasurer reported the redemption of the bonds, and the board by formal order required him to canceFthem by punching or defacing the signatures. He was the accredited custodian of the paper. So far as known at that date his fitness, both as to character and com petency, was above suspicion. He was presumably the equal of his associates, and it was especially appropriate to intrust him with .that duty. As a matter of probability before the fact, there was no ground to suspect any irregularity, much less a meditated embezzlement and criminal use of the paper. To require such unreasonable suspicion as between public officers in the discharge of routine duties would prove impracticable; and to declare it a legal duty, with the consequences claimed by counsel, would be to entail on taxpayers onerous liabilities for the private frauds and the crimes of delinquent officials. But grant there was some omission or negligence on the part of the board, was it of such a gross character, the equivalent of bad faith or fraud, as to bring it within the rule? Clearly not. Again, it was not the proximate cause of Sinton’s loss. His loss did not result as the natural and probable consequence of the alleged omission of duty. The direct and only cause was Davis’ crime. And in committing it he did not pretend to act as treasurer or director, or in any manner as agent of the board; nor did he so act. He acted, and professed to act solely for himself, and for his own advantage. And Sinton so understood it and trusted him accordingly.

But a conclusive answer to this claim of estoppel is found in the fact that Sinton is not an innocent holder. The bonds disclosed on their face that Davis was one of the directors; and as such might well have possession of the-paper without the right to dispose of it on his private account. Under these circumstances the duty of inquiry was put upon Sinton. And having taken the bonds without inquiry he was guilty in law of contributory negligence, and is not entitled to the position of an innocent purchaser. He dealt for his own gain with Davis alone, and trusted him at his peril; and we know of no principle of law that entitles him now to look to the taxpayers for reimbursement. 'In this connection I refer to the remarks of Judge Dickman in Strong v. Strauss, 40 Ohio St., 89, and of Judge Banter in Moores v. Bank, 15 Fed. Rep., 121.

Judgment reversed.


text:
    Darst v. Phillips.
    The special proceeding provided by section 535á Revised Statutes, authorizing courts to vacate their own judgments rendered at a previous term, for fraud practiced by the successful party, is a cumulative remedy and does not exclude or limit the right of a party by original action to impeach a judgment or enjoin its collection for such fraud.
    Error to the District Court of Lucas County.

      C. F. France and F. H. Rhoades, for plaintiff in error:
    The court will observe that all the defenses set forth were defenses to the note which could have been in an answer in that suit. There is no averment of either great or irreparable injury, or of facts which show such injurjq or of the insolvency of Darst. No discovery is asked — no averment that they have no legal remedy.
    The defendant then had an adequate remedy at law, Rev. Stats., § 5854, therefore equity will not interfere. Abbott v. Hughs et al., 3 Ohio, 278, 279; Weyer v. Zane, Id., 305, 306; High on Injunction, §§ 129, 130, 131 ; Sanchez v. Carriaga, 31 Cal., 170-172; Crandall v. Beaur, 20 Wis., 639; Stokes v. Knars, 11 Id., 389-391; Truley v. Wanzer, 5 How., 141-143; Smith v. McIver, 9 Wheat., 532-534; Critchfield v. Potter, 3 Ohio, 519 ; McWhorter v. Armstrong, 16 Id., 188.
    The comity which one court owes to another of concurrent jurisdiction should always prevent the one from lending itself as an instrument in permitting a contempt by the former on the other.
    We submit, then, that no court can rightfully enjoin a party from proceeding in a suit in another court of the state having equal power to grant the relief sought. Grant v. Quick, 5 Sand., 612, 613 ; Ind. and Ills. R. R. Co. v. Williams, 22 Ind., 198-200; Macy v. Lloyde, 23 Id., 60, 61; Bennett v. LeRoy, 5 Abb. Pr., 55; Gregory v. Perdue, 29 Ind., 66-69; Coleman v. Barnes, 33 Id., 93, 94; Anthony v.
      Dunlap, 8 Cal., 26, 27; Rickett v. Johnston, Id., 34-36; Revalk v. Kramer, Id., 66-71; Chipman v. Hibbard, Id., 268-271; Phelan v. Smith, Id., 520, 521; Graham v. Toomey, 9 Id., 77; Uhlfelder v. Levy et al., Id., 607-614 ; Bentley v. Dillard, 6 Ark., 79-84; Engles v. Lubeck, 4 Cal., 31, 32; Dutil v. Parcheco, 21 Id., 438-442; Platto v. Duester, 22 Wis., 460-462; Endter v. Lennon et al., 46 Id., 299-300; Wells Res Adj., § 460; Willard’s Eq., p. 347; The Bank of Bellews Falls v. The B. & R. R. R. Co., 2 Williams, 471; Loomes v. Loomes, 3 Casey, 233-236; Mussleman’s Estate, 15 P. F. Smith, 480; Critchfield v. Potter, 3 Ohio, 519, 523, 525; Snediker v. Parsons, 2 Barb. Ch., 107, 108; Minor v. Webb, 10 Abb. Pr., 284; Bowers v. Tallmadge, 16 How. Pr., 325; Arndt v. Williams, Id., 244; Hunt v. Farmers’ L. & T. Co., 8 Id., 416-418; Merrill v. Lake et al., 16 Ohio, 374-405; Brown’s Appeal, 66 Pa. St., 155-157; Smith v. McIver, 9 Wheat., 532-535; Commissioners of Warn Co. v. M. & C. R. R., 35 Ohio St., 154.
    The court of common pleas of Williams county having acquired jurisdiction both of the subject matter of the actions and of the persons of the defendants, that court was entitled to adjudicate all the rights of the parties in that action, and no other court having only the same powers had any jurisdiction to interfere. Merrill v. Lake, 16 Ohio, 406; State v. Railroad Co., 35 Ohio St., 154-157; Pugh v. Brown, 19 Ohio, 202-211; Ex parte Bushnell, 8 Ohio St., 599-601; Keating v. Spink, 3 Id., 105.

      Dodge & Raymond, for defendants in error:
    The provisions of section 5354, enlarging the powers of courts of law, is merely cumulative, and, without express language to that effect, does not take away-or diminish the original powers of a court of equity which may well be invoked to restrain an unjust levy (which is here the gravamen of the complaint) in the county where such levy is threatened to be made, where the parties reside, and can be served with process. We understand this to be an elementary principle stated in all text books, affirmed by tbe Supreme court of Ohio in regard to the statute in question, and by the highest courts of other states in regard to similar statutes. 1 Story’s Equity Jur. (10th ed.), § 64; Cram v. Green, 6 Ohio, 429; Long v. Mulford, 17 Ohio St., 484; Coates v. Bank, 23 Id., 415; Miller v. Longacre, 26 Id., 291; 14 Federal Rep., 886; Ryan v. Boyle, 33. Ark., 778 ; Babcock v. McCamant, 53 Ill., 214; Crawford v. Thurmond, 3 Leigh, 85; Lambert v. Mallett, 50 Ala., 73.
   Martin, J.

Darst took judgment in the common pleas of Williams county against Phillips and others as makers of a promissory note with warrant of attorney attached. There was no service of process or notice. Execution was issued to the sheriff of Lucas county, who levied it on the goods of the judgment defendants. Thereupon they brought the original action in the common pleas of Lucas county, setting out several defenses to the note, one of which was that it had been paid before the judgment was taken, and averring that Darst fraudulently obtained the judgment, and praying for injunction and other relief. '

The defendant demurred to the jurisdiction. The district court, on appeal, overruled the demurrer and granted a perpetual injunction. The object of the present proceeding is to obtain a reversal of this judgment.

In the-first place it is claimed that section 5354, et seq., Revised Statutes, afforded an adequate remedy at law, and that it was exclusive. By those sections it is provided that a court of common pleas, a district or superior court, may vacate or modify its own judgments after the term, for (amongst other causes) fraud practiced by the successful party in obtaining them, and for taking judgments on warrants of attorney for more than was due when the defendant was not served or notified. The proceeding is required to be by petition brought within a limited time after the rendition of the judgment, and provision is made for an injunction to suspend process on the judgment.

In our opinion this statutory remedy is merely cumulative. It is not disputed that courts of equity, prior to the statute, had jurisdiction to impeach judgments for fraud, and enjoin proceedings thereon. It is a fundamental principle that when such courts have once been legitimately vested with jurisdiction they retain it, notwithstanding courts of law subsequently acquire jurisdiction by statute or otherwise, unless the legislature abolish or restrict it. 1 Story Eq., 64. This principle is distinctly recognized as applicable in respect to the remedies provided by our practice act in Long v. Mulford, 17 Ohio St., 484, where it is held that “ what would have been a good cause of action to sustain an original bill is a good cause of action under the Code.”

In Coates v. Chillicothe Bank, 28 Ohio St., 415, it is held that the provisions of the statute for the vacation of judgments for fraud do not abridge or qualify the right to maintain an original action impeaching a judgment for fraud. Judge Day, in announcing the opinion, intimates that such an action is maintainable in all cases where an original bill might, before the statute, have been sustained, and states that Long v. Mulford, supra, is regarded as so holding by his brethren. The bench and bar of the state have so understood that ease, and, as we think, correctly. We are satisfied with the rule, and consider it definitely settled.

In the case at bar, therefore, the judgment defendant had an election to proceed under the statute to vacate and enjoin, or by orginal action for injunction.

In the next place it is objected that the common pleas of Lucas county had no jurisdiction of the action. Under the act for its organization a court of common pleas in this state has general original jurisdiction at law and in equity. An action to enjoin process from a judgment on the ground of fraud is within this jurisdiction, and is within the jurisdiction of the particular court where the fraud is properly laid. Either of several courts, according to special circumstances, may have jurisdiction in a particular case. Darst was duly served with process and appeared for the purposes of his demurrer. Is the fraud properly laid? The fraud charged was one upon the court-as well as upon the judgment defendants. It amounts to this, that the steps evidencing the jurisdiction and cause of action were falsely and fraudulently simulated without the knowledge of the defendants or opportunity for knowledge, and that Darst was at the time subjecting their property to seizure by the sheriff of Lucas county. The vital fact is that there was no cause of action. The payment of the debt revoked the power and left the cognovit without any support, and there was no jurisdiction actually acquired.

This fact courts of equity may for some purposes consider, and is undoubted cause for impeachment and injunction. And we do not forget that a judgment, until reversed, must be deemed valid, because it is the sentence of the law on the record of the facts (3 Blackstone Com., 395), and, therefore, it is immaterial whether the facts be true or false.

The remedy sought in the case at bar operates, in contemplation of law, on the person, and-we think it is clearly available to the judgment defendants. Miller v. Longacre, 26 Ohio St., 291, referred to in the briefs, was an action brought in the common pleas of Union county to enjoin the enforcement of an execution issued from a judgment rendered in the common pleas of Marion county: The action was sustained. It appears that the primary action was upon promissory notes, and there had been a second trial under the statute then in force. Both judgments were given for the plaintiff therein, the first being larger than the second. The execution issued from the first, the credi-. tor claiming, for certain reasons, that it was valid as against some of the defendants. The court held that, as no objection to the jurisdiction was made until after answer, the relief could be granted. In that case the trial court giving the judgments had undoubted jurisdiction, and there was a good cause of action, and no fraud was practiced. The points of the ruling were waiver and the' general jurisdiction of the common pleas. The case illustrates the favor with which the general jurisdiction' is regarded even in cases where another common pleas court could more appropriately administer the remedy.

It will be observed that the ease at bar is distinguishable from one of fraud practiced on the trial; from a case to enjoin a pending action ; to impeach a judgment for error; to restrain an execution erroneously issued, as in Miller v. Longacre, supra, and from a variety of other eases supposed to be analogous, and in respect to which many authorities have been cited. And in many cases the nature of the relief required, as also the necessity for new parties, is such that a simple impeachment of the judgment is inadequate," and an original action is indispensable.

Judgment affirmed.


text:
    Bank v. Butler.
    The owner of a domestic note left it with a bank for collection, and if not collected to fix the liability of an indorser. It not having been paid at maturity, the bank, according to a general usage of the place, handed it to a reputable notary for presentment and protest:

      Held, That the notary was the sub-agent of the owner, and the bank is not answerable for a default of the notary in making presentment for payment, whereby the liability of the indorser was released.
    Error to the District Court of Gallia County.

      Samuel A. Nash, for plaintiff in error.
    Whether a bank which holds a note for collection, and exercises due care in selecting a notary to whom it is sent for demand, notice, and protest, can be made answerable for the default of the notary, is a question that was, by our text-books and judicial decisions, almost unanimously answered in the negative, until the political element in the old court of errors, in New York, out-voted the supreme judges and the chancellor, in the case of Allen v. The Merchants’ Bank of New York, 22 Wend., 215. Previous to that decision the courts of New York, with the courts of other states, had held that the law applicable to agents for collection in general, applied equally to Banks; that where the nature of the business in which an agent is engaged requires for its proper and reasonable execution the employment of a sub-agent, the principal agent is not responsible for the defaults of a sub-agent, provided a proper sub-agent was selected. Smedes v. Bank, 20 John., 373; 15 Wend., 484; 3 Hill, 560; Fabius v. Mercantile Bank, 23 Pick., 332; Dorchester & M. Bank, 1 Cush., 177 ; Warren Bank v. Suffolk Bank, 10 Id., 582; Tiernan v. Com. Bank of N., 7 How., (Miss.), 648; 7 S. & M., 592; 34 Miss., 41; Ætna Ins. Co. v. Alton Bank, 25 Ill., 243; 4 Rawle, 384; 6 Conn., 528 ; 1 Pet. R., 25; 6 Harris & J., 148 ; 12 Conn., 304; 4 Whart., 105; Baldwin v. Bank of La., 1 La. An. Rep., 13; 17 La., 566; 2 Rob., 296; Bellemire v. Bank U. S., 4 Whar., 105; 8 Md. 530; Stacy v. Dane Co. Bank, 12 Wis., 629; Ang. & Ames on Cor., § 250; Story on Agency, 201, 2; Paley on Agency, 9; Guelic v. National Bank of Burlington (Iowa), decided June, 1881, Reporter, Aug. 24, 1881, 237; Britton v. Nicolls, 104 U. S., 757.
    A notary is a public officer.
    In Ohio no one connected with a bank as officer, stockholder or otherwise, can be appointed notary public. Vol. 1, Rev. Stat., Sec. 111. Why? Because he is a public officer, appointed by.the state to transact certain business with and for the bank. If the bank is responsible for the acts of the notary, this provision of the law is without meaning. It assumes that the bank is not liable for the negligence of the notary, and for that reason prohibits any one connected with, or interested in, the bank from holding the office. There is no prohibition in the Statutes of New York as in ours, and the notary public, at least by the city banks, is advertised as one of the officers of the bank. It is admitted that the bank would be liable if it employed one of its own officers, even if a notary. 1 Daniels on N. Inst., 280; 38 Mo., 60. So, as stated above, the legislature in prohibiting any person connected with a bank from being commissioned as a notary assumes, that in Ohio the bank is not responsible for the negligence of the notary, and intended that such construction shall be placed on its statutes.

      W. H. C. Ecker and D. B. Hebard, for defendant in error.
    Section 3176 Rev. Stats, provides that the indorser shall have notice of non-payment. The services of a notary public are not required by this section to make demand or to protest a domestic note or bond. Any person can serve the notice on the indorser, which will fix the indorser’s legal liability to pay the sam'e.
    Now, under the law of the case and the undisputed testimony of the plaintiff, as shown by the record in this case, we say that John C. Vanden was the agent of the bank, and not the agent of Wm. F. Butler, the owner of the note.
    The bank was the agent of Wm. F. Butler, defendant in error, and that agency could not be delegated to another agent and compel Mr. Butler to accept him and.his acts. 1 Parsons on Contracts, (6th ed.), 83, 84, 87, 89; Broom’s Legal Maxims, 755, 756.
    The real question is, was the notary the agent of the bank? That he was, see 1 Daniels on Neg. Inst., 277, 278, 279; Walker v. Bank of N. Y., 5 Seld., 582; Ayrault v. Pacific Bank, 47 N. Y., 573 ; Downer v. The Madison County Bank, 6 Hill, 648; Reeves v. The State Bank of Ohio, 8 Ohio St., 466; Allen v. Merchants Bank, 22 Wend., 215 ; The Bank of Utica v. McKinster, 11 Wend., 473 ; Bank of Utica v. Smedes, 3 Cow., 662 ; Anderson v. Drake, 14 John., 114; Commercial Bank v. Union Bank, 19 Barb., 391; Indig v. Brooklyn City Bank, 16 Hun, 200; Montgomery County Bank v. Albany City Bank, 3 Seld., 459.
   Martin, J.

In May, 1876, Butler, the owner of a promissory note payable June 17, 1876, made by one Croninger, who was insolvent, and which was indorsed by a responsible indorser, left it for collection with the First National Bank of Gallipolis. It was dated at Gallipolis and no place of payment was named in it. When he left it he told the president of the bank that he, the president, understood it, and that he should take legal steps to collect it; and he testified that he then supposed the bank officers would do what was necessary to be done in making the collection. It was not paid when due and was handed to a reputable notary residing at Gallipolis for demand and protest. Croninger at that time resided with his family on a farm some three or four miles from Gallipolis. Shortly before and for a long time he had resided in Gallipolis. The notary failed to made demand but protested the note and gave notice. Butler reimbursed the bank the amount of the notary’s fee, and sued the indorser who was adjudged released on account of the notary’s negligence. The bank had no agreement for compensation as collecting agent, nor any expectation other than the incidental advantage pertaining to such service.

The original action against the bank was brought by Butler in the common pleas of Gallia county, counting on the notary’s negligence and alleging that he had placed the note in the bank for collection and had directed it to collect or legally protest the same. On a trial in the common pleas, Butler took judgment. A bill of exceptions was allowed; and the district court on error affirmed the judgment. To obtain a reversal of that affirmance the case is here.

The only question that need be noticed is whether the notary, under the facts stated'-, was the agent of the bank or the sub-agent of Butler.

In Reeves v. Bank, 8 Ohio St., 465, the plaintiffs, Reeves, Stevens & Co., left for collection with the Commercial Bank of Toledo — a branch bank of the State Bank of Ohio — their draft, duly indorsed by them, for $500, on Buckingham & Co., of New York, which was forwarded to the American Exchange Bank of New York,-and was paid and credited to the Commercial Bank. The Commercial Bank failed, and its assets, by force of the statute, passed into the custody of the State Bank. When the draft was paid to the American Exchange Bank it had no notice that it was not the property of the Commercial Bank, its apparent owner, which was then apparently solvent. The action was against the State Bank as representative of the Commercial Bank counting on the averment that the Commercial Bank was the sub-agent of the plaintiffs, and that the proceeds of the draft was their money. The essential points ruled were, that the Commercial Bank was responsible to the owners, of the draft for the conduct of the New York bank and for the proceeds of the draft immediately on its collection, and that the New York bank was the agent of the Commercial Bank, and not the sub-agent of Reeves, Stephens & Co.

Admissible deductions from the opinion and the authorities quoted and approved are:

(1) That the Commercial Bank in taking the draft for collection agreed to collect it. That whilst it impliedly agreed to transmit it to a reliable correspondent, this was simply incidental to the principal object in view.

(2) That the acceptance of the draft for collection was prima facie evidence that the service was not regarded as gratuitous; and that it was one of many similar transactions yielding an aggregate profit, and therefore evidence of a valuable consideration.

(3) That the Commercial Bank was under the responsibility of the general engagement when it necessarily engaged the services of its correspondent at New York; and that its correspondent was of its own selection, and was a mere instrument used by it in carrying out its contract.

(4) That a collecting bank is liable not only for a default of its own officers, but also for that of its correspondent in the absence of an agreement, express or implied, with the owner varying such liability.

These rulings and inferences of that well considered case are to be kept in mind in reaching a conclusion in the present case. The question is one of interpretation of the contract. It has proved to be difficult of solution, and has led to an irreconcilable conflict in the authorities.

The opposite view is to the effect that the collecting bank, though liable for the default of its own officers and common agents, yet when a duty in course of collection is necessarily entrusted to a sub-agent, the risk of negligence rests upon the owner of the paper, in the absence of an agreement for compensation (other than the incidental advantage of the service), indicative of an intent to warrant against loss from negligence of such sub-agent.

In our view of the facts of this case the judgment here must be the same, no matter which doctrine as to the general rule of law should be accepted. And we have endeavored to set forth the principles already adjudicated in this state with sufficient clearness to avoid misunderstanding as to the scope and effect of our decision. All the authorities agree that the general liability, whatever it may be, incurred by a bank in taking for collection commercial paper, foreign or domestic, may be varied by agreement, express or implied, of the parties. In this case it is sought to charge a bank at Gallipolis, to which a note was delivered for collection dated at Gallipolis, and not made payable at any particular place, for the negligence of a resident notary, whereby the liability of a responsible indorser was released.

No complaint whatever is made of the bank or its conduct in the business, except as it may be held to be responsible for the acts of the notary as its assumed agent. And thus, as has been stated, the only question is whether the notary was the agent of the bank or the sub-agent of Butler.

In this state the office of notary public is established by statute (Rev. St., sec. 110, et seqi). Careful provision is made for the appointment of the officer. He receives a commission, and is required to give bond and take an official oath. He is also required to have an official seal, and keep a register which is declared a public record, with provision for its perpetual preservation. One of his duties is “ to receive, make and record notarial protests,” and his instruments of protest are declared prima facie evidence of the facts therein certified. All bankers, cashiers, tellers or clerks of banks are disqualified to hold the office; and directors, stock-» holders, attorneys, agents and all other persons holding official relations to any bank are incompetent to act as notary in' instances where such bank is interested. The policy of the act is to secure competent and disinterested service, and to encourage the employment of a notary as an independent officer free from bias. But the statute does not require a protest. It renders it inconvenient to dispense with the services of a notary, and as an inducement to employ him, as well as for convenience, makes his act prima facie evidence of demand and notice. In his petition Butler avers that he directed the bank to collect the note or legally protest it. He had the right to dictate the mode of fixing the indorser’s liability, or of waiving the performance of that duty altogether. Strictly taken, this direction divested the bank of discretion to select a private agent, and made the notary his own agent. The case, however, should not now, if at all, turn on such a construction. It should appear that such was in spirit the direction actually given, or was the natural import in the circumstances stated of the delivery of the note for collection.

Before the passage of the act referred to, a notary frequently sustained a double relation in making a protest, acting both as public officer and as an officer of the bank, or its agent or attorney under its private employment. But under the statute, bankers throughout the state have, generally, if not altogether, discontinued private employment and relied solely on the notary as an independent officer. We think that under our legislation and in the circumstances stated, a bank’s customer in the act of delivering for collection must be held to contemplate the preference given by a protest and to direct the employment in due course of a notary ; and that the bank in taking the paper for collection agrees to collect it if paid, and if not paid to hand it to a reputable notary in season. We think this may be said to be the natural import of the act of delivery by the one and of taking by the other, especially in a jurisdiction where the notary can act only as an independent public officer. Whatever were the duties of the bank they are not involved here. No complaint is made in respect to them.

This case differs widely from the Reeves Case, supra. In that case the customer of course was indifferent as between distant reputable correspondents. The draft was endorsed to the bank and forwarded and treated as its own, and as pointed out by Judge Bbestkerhoit, the consideration for its undertaking was not only the incidental advantage usually arising from the temporary possession of the fund, but also the advantage of having it in Eastern exchange, which to a certain limit- it was required bj1- its charter to have, and which at that time commanded a premium.

In Hoover v. Wise, 91 U. S., 208, the doctrine is very broadly announced that a mere collecting agency is responsible for all agents employed in the course of collection; and that such agency has all the rights and is subject to all the liabilities of an independent contractor; and Reeves v. Bank, supra, is cited and approved on the supposition that it is in point.

In Britton v. Niccolls, 104 U. S., 757, the defendants were bankers at Natchez, Miss., and received for collection (through a bank in Illinois as agent for transmission only) two promissory notes, both dated at Natchez, with no place of payment named in either. They were handed to a reputable notary for demand and protest. He failed to make demand but protested the notes and gave notice. The action was to recover for the notary’s neglect whereby a responsible indorser was released. The Statute of Mississippi relating to notaries was in substance the same as that of this state. Thus that case is on all fours with the one under consideration.

The court held the action not sustainable. Judge Field in delivering the opinion of the court thus states the conclusion arrived at. “It is enough here that the notary was not in this matter the agent of the bankers. He was a public officer whose duties were prescribed by law, and when the notes were placed in his hands in order that such steps should be taken by him as would bind the indorsers if the notes were not paid, he became the agent of the holder of the notes. For any failure on his part to perform his whole duty lie alone was liable ; the bankers were no more liable than they would have been for the unskilfulness of a lawyer of reputed ability and learning to whom they might have handed the notes for collection in the conduct of a suit brought upon them.” The decision does not purport to subvert the general rule adopted in Hoover v. Wise, supra, and must have beeu regarded as in harmony with it and as consistent with legal analogies.

In Gearhart v. Boatsman’s Savings Inst., 88 Mo., 60, the sole question was as to the liability of the defendant for the default of the notary as to giving notice to an indorser of a note which the defendant had received for collection. It appeared that the defendant had appointed the notary and required him to give bond for the due performance of his duties. At that time there had been no authoritative adjudication in Missouri as to the general rule of law on the subject. The action was sustained. The opinion, without announcing a general rule, concludes thus: “ The defendant having appointed the notary by the year and required a bond for the. faithful performance of his duties made him its agent and an officer of the bank. * * * The notary in this instance was not acting in the character of an independent officer in discharge or execution of a duty devolved upon him by law, but as the agent of the defendant.”

Judgment reversed.