author: Rannet,' J.

text:
    *Thomas McGovney et al. v. The State of Ohio, for the use of Wesley Lee’s Administrator.
    The act of March 23, 1840, to provide for the settlement of the estates of deceased persons, does not extend to estates in the course of settlement when it took effect.
    The bonds of executors and administrators taken in such cases, are governed by and must be prosecuted under the laws in force when they were entered into.

      The undertaking of a surety can not he extended beyond the terms of the contract into which he has entered.
    An executor’s bond, describing the testator as James L. Findley, can not, by parol evidence, be made applicable to the estate of Joseph L. Findley.
    Error to the court of common pleas of Adams county.
    The plaintiffs in error, defendants below, were sued in the court of common pleas of that county as the sureties of James Findley and John Patterson, on an executor’s bond. The declaration sets forth that one Joseph L. Findley, by his last will and testament, appointed John Patterson and James Findley his executors, which will was proved in the court of common pleas of that county on August 10, 1839, when the executors named appeared, wore duly appointed and qualified, and took upon themselves the execution of the trust, and at the same time entered into bond with the plaintiff's and one Fields Marlott as their sureties in the penal sum of $2,000, conditioned as follows: “ The condition of the above obligation is such that if the above-bound John Patterson and James Findley, executors of the last will and testament of James L. Findley, deceased, shall faithfully perform all and every of the duties required of them by law, as such executors, then the above obligation to be void and of no effect; otherwise to remain in full force and virtue in law;” which bond was approved and accepted by the court. The plaintiff then avers that “the name, James L. Findley, in the condition of the aforesaid recited bond, was, by clerical mistake, inserted instead of the name of Joseph L. Findley, *and the name, James L. Findley, was.intended for Joseph L. Findley, in the condition aforesaid.”
    After the execution of this bond, it is charged that the executors entered upon the discharge of their duties, received large sums of money belonging to the estate, for which they have failed to account, and have converted to their own use, leaving the debts of the estate unpaid; that Lee, in his lifetime, on February 7, 1848, recovered a judgment against Patterson, the surviving executor (Findley being dead), before a justice of the peace, for about the sum of $100, which remains in full force and wholly unpaid.
    Patterson and Marlott were not served with process, but as to them the sheriff returned “ not found.”
    The defendants below craved oyer of the writ, and demurred specially to the declaration, and, on hearing, the court of common pleas overruled the demurrer, and gave judgment against the defendants for the amount of the bond, with leave to take out execution for §104.14 and costs of suit; to reverse which this writ of error is prosecuted. The questions arising upon the record aro fully stated in the opinion of the court.
    J. McCormick, attorney-general, for plaintiff, maintained:
    1. It does not appear that Lee, during his lifetime, or his administrator since his death, ever presented the claim on which the judgment was obtained, for allowance, rejection, or reference, according to law (Swan’s Stat. 354, see. 90), nor does it appear that the suit on the claim was instituted within six months after its rejection by the executors, if by them it was rejected. See also Stat. 373, sec. 182. The statute requires the creditor to demand payment, and this requisition is not dispensed with, although the claim has been reduced to judgment. The declaration does nob aver a neglect to pay upon demand,, and hence I conceive the court erred in overruling the demurrer.
    2. The statute requires executors to give bond to the %tate. The condition is that the executor will, in accordance with law, execute the will of Ms testator, and no other person. If the court accepted a bond with any other condition than that prescribed by law, it was a mere act of assumption, and void. The declaration avers the execution of an illegal bond, and the subsequent,averment of the clerical error will not heal the prior averment.
    Even if this were not so, a court of law can not correct the error or mistake.
    This case does not come within Fisher v. Butcher, 19 Grisw. Ohio, 40,6.
    I insist that the action in the court below can not be maintained ; and I rely upon the authority of the State v. Medary et al., 17 Grisw. Ohio, 565.
    E. P. Evans, for defendant:
    The main question presented for consideration in this case is, “ can a party in declaring on a written instrument, by averment, correct a mere clerical error in such instrument?” I maintain that he can, and refer the court to the following authorities: Day v. Brown, 2 Ham. Ohio, 345; Carr v. Williams et al., 10 Wilcox’s Ohio, 305. The mistake averred in the declaration is a latent ambiguity, and admits of parol evidence to apply the bond to its proper subject matter. 3 Stark. Ev. 1020, 4 Amer. ed.
   Rannet,' J.

Among the variety of reasons assigned by the plaintiffs in error, why their demurrer to the declaration should have been sustained, and of the errors assigned, why this judgment should be reversed, two only are relied upon by their counsel, in argument.

First. It is claimed that the declaration is bad, as it does not show that the claim of Lee was ever presented to the executors, and allowed or disallowed by them, and that the presumption from the lapse of time between the accruing of the action *and the commencement of his suit, is that the claim was barred ; and that it is not averred that payment of the judgment was demanded before the commencement of this suit. To sustain this position, we are referred to sections 90 and 182 of the “act to provide for the settlement of the estates of deceased persons.” Swan’s Stat. 354, 373. By the first of these sections, a creditor is required to commence suit within six months after his claim is disputed or rejected by the executor or administrator, and on failure to do so, ho is “ forever barred from maintaining any action thereon.” By the last, it is provided that after the creditor is entitled to the payment of his debt, and the same has been allowed or liquidated by judgment, award, or order of distribution, he may sue the bond of the executor or administrator, if he neglects, “ upon demand made, to pay such claim.”

This case does not require us to put a construction upon these sections. A recurrence to the dates will plainly show that they have nothing to do with the case. The bond in suit was entered into on August 10, 1839. The act referred to took effect ón November 1, 1840. Section 247 repeals all previous laws upon the subject, but with the following saving clause: “ Provided, however, the repeal of said acts shall not affect any act done, or any right, liability, or estate, accruing or accrued, or any suit, matter or proceeding, had, or commenced; but the same shall be determined, and remedies for the same had, and all estates in the course of settlement by an executor or administrator, at the time this act takes effect, shall be settled under said acts.” The “ liability ” upon this bond had then “accrued;” the estate was in the course of settlement, and of course'the “remedies” upon it must be sought under the laws then in force; and we think the plaintiff, so far as this point is concerned, clearly within their provisions.

The second position relied upon by the plaintiff’s counsel is, that the bond is insufficient to secure the performance of the ^duties of the executors of Joseph L. Findley, James L. Findley being named in the condition.

To this it is replied that the name of James was used instead of Joseph by a mistake of the clerk; that it was intended as a bond for the executors of Joseph D. Findley, and that the averments of the declaration are sufficient to apply it to his estate, and to charge the defendants for the default of his executors. From the face of the bond it does not appear that the defendants became sureties for the executors of Joseph L. Findley. The question arising is, can this be shown by averment and proof outside of it? Can a bond, not appearing to have any connection with that estate, be shown to have such connection by parol?

The defendants are sought to be charged for the default of others. By positive law, this can only be done when the obligation exists in writing. They are mere sureties, and, as such, may demand to be brought strictly within the terms of the obligation before they are charged. It is true, that a contract falling within the statute of frauds may be enforced, if plainly made out in all its terms, from any writing of the party, or even from his correspondence. But, as stated by Mr. Greenleaf (1 Greenl. Ev. 318), “ it must all be collected from the writings, verbal testimony not being admissible to supply any defects or omissions in the written evidence.”

The rule to be applied to the undertaking of sureties is very clearly and satisfactorily settled. The Supreme Court of the United States, in the case of the United States v. Boyd, 15 Pet. 208, thus states it: “This court held, in Miller v. Stewart, 9 Wheat. 702, that the liability of a surety is not to be extended, by implication, beyond the terms of his contract; that his undertaking is to receive a strict interpretation, and not to extend beyond the fair scope of its terms, and that the whole series of authorities proceeded on this ground.” See also Sprigg v. Bank of Mount Pleasant, 14 Pet. 208. In Evans v. Bradley, 17 Wend. 422, the Supreme Court of New York hold this language: “Where there is no ^'uncertainty upon the face of the instrument, or where, in cases of doubt, we have ascertained the true meaning of the contract, the liability of a guarantor or surety can not be extended by implication or otherwise. The case must be brought strictly within the terms of the guaranty, or the guarantor will not be liable. The cases speak a uniform language upon that subject.” And again, in Hunt v. Smith, 17 Wend. 180, Judge Cowan says, the terms of the guaranty must be exactly pursued or the guarantor is not liable at all.” This court has been equally explicit upon the subject. In the case of the Bank of Steuben-ville v. Carroll’s Adm’rs, 5 Ohio, 214, it is said that “no principle is bettor settled at the present day, than, that a surety can not be further bound than by the terms of his undertaking.” In the case of The State v. Modary et al., 17 Ohio, 565, it is thus forcibly stated : “The bond speaks for itself, and the law is that it shall so speak; and that the liability of sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond, and if the words will not make them liable nothing can. There is no construction, no equity against sureties. If the bond can not have effect according to its exact words, the law does not authorize the court to give it effect in some other way, in order that it may prevail.”

The principles settled in these authorities would seem to be decisive against the validity of this bond, and to supersede the necessity of further inquiry. But the case of Grant v. Naylor, 4 Cranch, 224, decides the very question now under consideration. It was an action of assumpsit, brought upon a letter of guaranty, addressed by the plaintiff in error to John and Joseph Naylor & Co. The name of the firm for which it was intended, was John and Jeremiah Naylor & Co., who advanced goods upon it, and the principal having failed to pay, brought this action against the guarantor to recover the amount. The court held that the plaintiff below could not be admitted to prove, by parol testimony, that it was intended for, and was an assumpsit to John and Jeremiah Naylor & Co. C. J. ^Marshall, in delivering the opinion of the court, says: “That the letter was really designed for John and Jeremiah Naylor, can not be doubted; but the principles which require that a promise to pay the debt of another shall be in writing, and which will not permit a written contract to be explained by parol testimony, originate in a general and wise policy, which this court can not relax so far as to except from its operation cases within the principle.”

“Already have so many cases been taken out of the statute of frauds, which seem to be within its letter, that it may well be doubted whether the exceptions do not let in many of the mischiefs against which the rule was intended to guard. The best judges in England have been of opinion that this relaxiug construction of the statute ought not to be extended further than it has already been carried, and this court entirely concurs in that •opinion.

“ The letter itself is not a written contract between Daniel Grant, the writer, and John and Jeremiah Naylor, the persons to whom it was delivered. To admit parol proof, to make it such a contract, is going further than courts have ever gone, where the writing is itself the contract, not evidence of the contract, and, where no pre-existing obligation bound the party to enter into it.”

T?e are of opinion that the bond in this case can not, hy parol evidence, be made applicable to the estate of Joseph L. Eindley, and that the court of common pleas erred in overruling the demurrer filed to the declaration.

Eor this cause, the judgment of that court is reversed.


source: Caselaw Access Project

author: Caldwell, J.

license: Public Domain

text:
    *John Lyon v. Levi Fish.
    A defect in the conclusion of a plea can not be reached by general demurrer.
    Where a return has been made on an ^execution issued by a justice of the peace, of “no goods in the township” where the justice resides, with a suggestion that “there are goods of the judgment debtor” in another township of the same county, an execution issued to any constable of either of the two townships, although not strictly in accordance with the statute, is not therefore void.

    Error to the court of common pleas of Cuyahoga county. Reserved by the Supreme Court in that county for decision here.
    Lyon, the plaintiff below (and plaintiff in error), sued in trespass, and complained of Pish, “constable of the township of Brooklyn, in Cuyahoga county, for that on October 20, 1846, at Brooklyn, in the county of Cuyahoga, etc., the said defendant, being a constable of the township of Brooklyn, etc., and assuming to act as such constable, without lawful authority, with force and arms, took and carried away “ the plaintiff’s goods and chattels, to wit: One two-horse lumber wagon, of the value of $80 ; eight tons of hay, of the value, etc.; and the corn grown on six acres of land,” etc.
    The second count charges a trespass and taking by defendant as said constable of the same property, at the same time, at Parma, in said county.
    Defendant filed a plea of the general issue and two special pleas.
    The first special plea avers that as to the wagon, the plaintiff ought not to have his action, etc. That on October 20, 1846, fm. J. Case, caused an execution to be issued in his favor by Benjamin Sawtell, a justice of the peace in Brooklyn township, against said Lyon for $40 debt and costs, which, *by the judgment of said justice, Case had previously recovered against Lyon; that the execution was on October 20, 1846, delivered to defendant as constable of Brooklyn township, to whom it was directed, and on the same day was returned ‘ no goods or chattels found whereon to levy,’ but with a suggestion indorsed thereon ‘that Lyon had goods in Parma township»;’ that on October 24, 1846, said justice issued an execution on said judgment, directed ‘to any constable of Brooklyn or Parma townships,’ which came to the hands of said Fish as constable, and that on the 26th October, he levied said execution on said wagon, advertised and sold it at Parma to Case, the judgment creditor, and made due return of the writ; that it did not satisfy the writ; and the plea concludes :
    “ Whereupon he prays judgment as to so much of the cause of action in said declaration mentioned, as relates to said wagon, if the said plaintiff his action aforesaid against him ought to have or maintain,” etc.
    The second special plea is substantially the same, and after reciting the facts, and a sale of the property on the execution at Parma, concludes thus:
    “ Afterward, before the expiration of thirty days from the date of said last-mentioned writ, made due return thereof with his doings thereon, to the said justice, according to the precept thereof, etc., and as to all the other matters alleged against him in said declaration, he says he is not guilty thereof in manner and form, as the said plaintiff hath therein alleged against him, etc.
    “Joseph Adams,
    “ Defendants Attorney.”

      “ P. S. Let it be supposed that the last special plea has a verification in the place of the, ‘ etc.,’ in the fourth line from the bottom, and in place of the last ‘etc.,’ that the plea concludes to the country or any other form to accommodate the replication.
    “Yours truly, J. A.”
    To these two special pleas, the plaintiff filed a general demurrer.
    There was no averment in either of the pleas, as to the residence of any of the parties to the judgment before the justice.
    *The court of common pleas overruled the demurrer, and sustained the special pleas, and entered judgment “ that the said Levi Fish go hence without day and recover of the said John Lyon his costs,” etc.
    The principal errors assigned are :

      First. That said special pleas do not answer the whole declaration.

      Second. That there is no proper form of conclusion to said special pleas.

      Third. That the court of common pleas erred in sustaining the defendant’s justification, as set up in his special plea above pleaded.

      Fourth. That the court of common pleas erred in sustaining the second writ of execution issued by the justice, and set out in said defendant’s special pleas, it having a double direction ; being directed to Brooklyn and Parma townships, when, in fact, the statute only authorizes magistrates to issue writs of execution directed to one township at a time.
    Lynde & Castle, for plaintiff:
    The defendant, in his special pleas, does not pretend to answer the declaration, only as to the wagon, and is silent as to any of the other property charged to have been taken.
    In the second place, the defendant has adopted the old and long exploded course of pleading ; in short, for a conclusion to his plea: “Let it be supposed that the last special plea has a verification in the place of the ‘etc.,’ and that it conclude to the country or any other form to accommodate the replication,” which form we conceive is wholly insufficient for a special plea.
    The third and fourth exceptions depend upon the construction of sections 90 and 91 of Swan’s Revised Statutes, page 522. Section 90, we conceive, gives a construction to be followed by the cases supposed in both sections, and that section distinctly expresses it to be the duty of the magistrate to issue his writ of execution, to any constable *of his own township, or to any constable of the township where the defendant resides, in the same county. Now this does not authorize a magistrate to issue an execution with a double direction to one or the other township, but should be directed to one alone, nor do we conceive that an execution with such double direction would be anything but utterly void.
    Joseph Adams, for defendant.
    No argument came to the hands of the reporter.

       See sections 90, 81 of the act of March 14, 1831, of justices of the peace and constables, defining the powers and duties in civil cases. Swan’s Slat. 522.

   Caldwell, J.

The declaration charges the defendant with forcibly seizing upon, and appropriating to his own use, certain personal property belonging to the plaintiff; viz : one wagon, eight tons of hay, and six acres of corn standing on the ground. Tho defendant plead the general issue, and also two special pleas, the substance of which two special pleas is the same, namely, that so far as the wagon, in the declaration mentioned, is concerned, that he, defendant, levied upon it, and sold it, as a constable of Brooklyn township, Cuyahoga county, by virtue of an execution issued by Benjamin Sawtell, a justice of the peace of said township, on a judgment rendered by said justice, in favor of one William J. Case, against Lyon, the plaintiff; that an execution had been previously issued on 'this judgment, and returned ‘ no goods of the judgment debtor, in Brooklyn township,’ with a suggestion that he had personal property in Parma township ; and that thereupon an execution was issued to any constable of Brooklyn or Parma townships, which execution was placed in defendant’s hands, by virtue of which he levied upon and sold the wagon, and applied the proceeds on the judgment. To these pleas there was a general demurrer. The court of common pleas overruled the demurrer, and gave judgment for the defendant. And the only question raised in the case is as to the sufficiency of these pleas. It is said that the special pleas do not answer the whole declaration. This is only true of the. first plea; the second plea, after answering ^specially as to the wagon, traverses generally tho trespass to the other property mentioned in the declaration. The demurrer being general to both pleas, it is sufficient if either be good. The next objection is that there is no proper conclusion to tho pleas. The second special plea, in place of the verification or averment, has simply the term etc.’ The plea is clearly defective, wanting a proper conclusion, but the defect, being merely of form, can only be taken advantage of by special demurrer. See Swan’s Stat. 687, sec. 5. Another objection urged against the special pleas is, that the writ of execution, under which the defendant justifies, is directed to any constable of Brooklyn or Parma townships. It is said that the justice should have confined the process to any constable in one or other of' the townships; but that he could not give it the double direction, to any constable of either township, and that, being so directed, it was therefore void. The section of the statute making provision for a case such as the present, provides (Swan’s Stat. 522, sec. 91) : “ When the constable shall make return) that sufficient goods and chattels can not be found in the township where the justice resides, who issued the execution, and it shall be suggested to the justice, that the party against whom the same issued, has goods and chattels within any other township in the same .county, it shall be lawful for the justice to issue execution to any constable of the township in which the justice resides, or of the township where such goods and chattels may be found,” etc.

Now we suppose that the direction of the statute, when strictly applied, is that the process shall be directed to the officers of one or the other of the townships. The defendant, however, who was a constable of Brooklyn township, was one of the persons to whom, in contemplation of the statute, the process might be directed. He was embraced within its direction, it came into his hands, he executed it, and the object of the law and the requisitions of the process were fully complied with, and the execution, we think, was as valid as if directed to him alone. The defect in the writ (if such it could be ^called) was merely formal, which will never be allowed to render process void. We see no error, whatever, in the proceedings of the court of common pleas.

The judgment will therefore be affirmed.


author: Eanney, J.

text:
    Robert Harper v. Isaac Graham.
    "Where a party recovered a judgment against another who was insolvent, and the plaintiff afterward agreed to receive from him the sum of $550 on the judgment, and the payment of $100 for attorney’s fees, which sums wore paid accordingly, and a receipt in full given for the judgment, although both sums amounted to much less than the judgment: Hold, that a satisfaction of such judgment would, from this state of facts, be ordered to be entered.

    Certiorari to the court of common pleas of Butler county.
    Isaac Graham recovered judgment against Robert Harper, at the September term, 1844, of Butler common pleas, for $1,716.86, and plaintiff’s costs, $52.99; the defendant’s costs taxed at $19.91.
    Harper was then residing in Arkansas. Graham procured a certified transcript of the judgment, and forwarded it to Paschal *& Ogden, attorneys at law in Arkansas, for collection. Harper was notoriously insolvent. Divers propositions of compromise were submitted and considered by Graham’s attorneys, on the one part, and Harper on the other; and, finally, on .March 4, 1847, it was proposed by Graham’s attorneys and agreed to by Harper, that—
    Harper should pay on the judgment.......................... $500 00
    The attorney’s fees of Paschal & Ogden and
    Floyd.................................................$100 00
    The costs of Graham in the judgment............ 52 99
    Cost of the transcript................................. 3 50
    - 156 50
    ■ $656 50

      —which was to be received in full satisfaction and discharge of the judgment. Harper paid to said attorneys $656.50 in specie, and they delivered up to him the transcript of tho record, with the following indorsement:
    “Received of Robert Harper $656.50, in specie, in full payment and discharge of the foregoing judgment, remaining of record in the court of common pleas, in Butler county, Ohio. Given under our hands, March 4, a. d. 1847.
    (Signed,) “Paschal & Ogden,
    “Vm. W. Floyd,
    “ Attorneys for plaintiff.” ■

    Paschal & Ogden wrote to Graham by letter, dated March 14, 1847, stating, in substance, that they had made the best settlement with Harper in their power, and that they leave their acts to his (Graham’s) ratification ; that Harper was preparing to go to the Rio Grande ; that they had no process for arresting debtors; that Harper had proposed to pay $500, and that they agreed to take $556.50—Harper paying their fees and Floyd’s fees, $100; that they refused to give a release; that they believed none of Graham’s rights to a future action were waived; 1. Because a judgment can not be released except under seal; 2. Because to sustain a plea of payment in *money, the payment must have been in full of principal, interest, and costs.
    They advise the acceptance of it, and suggest to let the matter sleep until Harper releases his property, or gets under way; and they add :
    “But if you fear that your rights will be prejudiced, and wholly dissent from the settlement, return to us the draft, and we will return the money to Harper, and place everything in statu quo. We did with this business as we should with our own; and believing your statements about him, we feel no conscientious scruples about reserving for you a future right. Wo trust you will be satisfied.”
    They inclose a draft for $550, with a statement showing the manner in which the money was appropriated, and also a copy in substance of the receipt upon the transcript of the record, given by them to Harper.
    The affidavit of Graham shows that he received the check for $550, with a full knowledge of all the facts, and appropriated the same to his own use by entering in his own handwriting, on the execution docket, in Butler common pleas, in the said case of Isaac Graham v. Robert Harper, “ money paid, $550.” The excuse offered for not returning the check and disavowing the settlement was, that his (Graham’s) counsel in Ohio wore of the same opinion with the counsel in Arkansas, “That his acceptance of a part of said judgment without legally authorizing any person to satisfy the same under seal, would not preclude his further proceedings to recover the balance.”
    Prior to the compromise and payment by Harper, in March, 1847, Ployd, one of the attorneys in Arkansas, who aided Paschal & Ogden in the compromise, wrote to Graham, in Ohio, advising him that it would be best to compromise with Harper, by taking less than the whole amount. Graham replied by letter that he would not take less than the amount of the judgment, interest, and costs, and this instruction was communicated *to Paschal & Ogden, but the witness, Ployd, the attorney, does not remember whether or not Harper was informed of this.
    Graham, in an affidavit filed on the motion to enter satisfaction, states that he wrote to Paschal & Ogden that he would sooner lose the whole debt than accept $500, but that he would accept $580, and proper security for the residue of his claim.
    In the letter of Paschal & Ogdon, of March 14, 1847, before referred to, and which was offered in evidence by Harper on the motion to enter satisfaction, there is this statement: “ Through a gentleman at Clarksville, he (Harper) proposed to pay us $500, etc. We showed Harper and his attorney our letters, and refused to give a release.” None of the witnesses testify that the letters were shown.
    The depositions of Turner L. Green and W. W. Ployd show that Harper was considered entirely insolvent; that Harper raised said money tbi’ough the assistance of friends; that the settlement was made in entire good faith, and intended as a complete discharge of the judgment; that Graham’s attorneys considered they had made an advantageous settlement for their client. Green, who was Harper’s attorney, swears that the attorneys for Gi’aham distinctly asserted “their full and complete power to compromise the judgment; ” that Harper so understood it—otherwise he would not have paid a dollar; that Graham’s attorneys stated that if the receipt they had given was not satisfactory to Harper, they would sign any receipt that would satisfy him.
    Harper presented his transcript of the record, thus receipted, to the clerk of the court of common pleas of Butler county, who copied the receipt on the margin of the record of the cause. Graham afterward caused an execution to be issued upon the judgment, to collect the balance of the judgment; whereupon Harper filed in said court of common pleas, his motion to sot aside the execution and to have satisfaction entered upon said judgment. The cause was submitted to the ^associate judges, at the February term, 1851, who overruled the motion “ upon the ground that the testimony adduced did not show a good accord and satisfaction,” to which Robert Harper excepted.
    The writ of certiorari is sued out to reverse said decision.
    The errors assigned, are :
    1. That tho court erred in deciding that the payment by Harper of $500 on the judgment, $56.50 for plaintiff’s costs, and $100 for Graham’s attorneys’ fees, did not constitute a good accord and and satisfaction.
    2. The court erred in deciding that the testimony did not show-sufficient grounds to authorize an entry of satisfaction on said judgment.
    3. The court erred in overruling Harper’s motion.
    Thomas Milliken, for plaintiff:
    Do the facts show a valid accord and satisfaction? It appears to have been generally held, that the payment and acceptance of a less sum than the debt can not be insisted on as a satisfaction; but the courts will avoid this rule whenever they can, and there are many exceptions to the general rule. Brooks v. White, 2 Met. 285; Kellogg v. Richards, 14 Wend. 116; 5 Johns. 269; 14 Wend. 119; Blinn v. Chester, 5 Day, 360; Brooke v. White, 2 Met. 285 ; 2 Greenl. Ev., sec. 48; 20 Johns. 78 ; 1 Amer. Com. L. 137; 5 East, 230; Reynolds v. Pinhowe, Croke Eliz. 429; 14 Wend. 117; 2 Greenl. Ev., sec. 28; 20 Johns. 76; 15 Mees. & Wolsby, 23, reversing Cumber v. Wayne, Strange, 426; Slofford v. Bacon, 1 Hill, 538.
    The case at bar comes within acknowledged exceptions to the general rule.
    1. It was a benefit to Graham to receive the money without suit, and to prevent a writ of error, by which the judgment might have been reversed.
    *2. The money was paid at a different place than that contemplated by the parties.
    3. Harper paid the attorney’s fees of Paschal & Ogden and Floyd, $100; the plaintiff’s costs in the transcript, $52.99; cost of the transcript, $3.50. Here was not only a technical, but a substantial consideration.
    Graham was bound to pay his own cost in the transcript, if the same could not bo made of Harper. Swan’s Stat. 405, sec. 51. The attorney’s fees, and the cost of the transcript, Hai’per was not bound to pay, and it was a substantial benefit to Graham to have them paid by Harper.
    Graham recognized the payment of his attorney’s fees and the costs of the transcript, as a separate and independent consideration ; for with a full knowledge of all the facts, he entered upon the exécution docket of Butler county a credit of $550, the amount of the draft, instead of $656.50, the amount actually paid.
    4. Harper was insolvent—this is admitted. The money was raised through the assistance of friends. This is a technical consideration at least.
    The evidence of the debt was the certified transcript; this was not only receipted, but delivered up to Harper, which of itself implied a release. See Bouvier L. Dic., tit. Release.
    In relation to the authority of Paschal & Ogden to make the settlement, there can be no question. I. admit the record shows no authority to make the compromise; but the facts show a full and complete ratification, and that, too, after taking the advice of counsel.
    Ratification once made with full knowledge of all the material circumstances, can not be recalled. Story on Agency, 291, 293; Palmerston v. Huxford, 4 Denio, 167.
    A principal can not ratify a part and repudiate the balance— ratification of part confirms the whole. Farmers’ Loan and Trust Co. v. Walworth, 1 Comst. 447; Story on Agency, 299, 300.
    *A subsequent ratification is equivalent to an original authority. Story on Agency, 293, 294.
    As Graham acted with his eyes open, the court will not stop to inquire whether he acted wisely or not, or whether he will be gainer or loser by the decision which he made. The fact that Graham and his attorneys secretly intended to violate a solemn agreement, to take refuge under a legal technicality, and thus harass an unfortunate debtor, will not make the ratification less complete and effectual. 1 Comst. 447.
    John R. Lewis, for defendant:
    The proposition, that “the payment and acceptance of a less sum than the debt can not be insisted on as a satisfaction, is a well-established rule of law, announced in most of the authorities cited for plaintiff.
    The case of Reynolds v. Pinhowe, which is the only case directly in point, cited by the counsel for the plaintiff on this branch of the case, is, to say the least, of doubtful authority. The case is very meagerly reported, and stands alone, unsupported by any. other authority. Though not expressly overruled, I find no instance in which it has been confirmed, and indeed in the same volume of reports (Cro. Eliz., case 74, Dixon v. Adams), the principle is decided directly contrary to the case of Reynolds v. Pinhowe; In that case J. S. and J. D. were obliged to Adams in £40, and thereupon he sued J. S. in the Queen’s Bench, in which suit Dixon became bail. Adams recovered, and upon a scire facias against Dixon (the bail) had judgment against him, and he, without other process, paid the condemnation, and Adams, in considerations inde, assumed to Dixon to deliver unto him the principal obligation, and a letter of attorney to sue it against J. D.; and for non-performance hereof the action was brought, and upon non assumpsit pleaded, and found for the plaintiff, he had judgment; and thereupon error brought, because it was not a sufficient consideration. And so it was held by the whole court, for Dixon had *not done any act whereto the law would not have compelled him.
    ; But leaving these cases in which the rule has been admitted to exist, and the exceptions to it pointed out, I turn to those cases in which the point has been presented directly to the court, and how runs the current of authority ? •
    In the case of Seymour v. Minturn, 17 Johns. 175, where the question was directly raised, the court say, “ The cases of Harrison v. Wilcox & Close, 2 Johns. 449; Fitch v. Sutton, 5 East, 232; and Cumber v. Warn, 1 Strange, 426, are decided authorities to show that the payment of a loss sum of money than the real debt, will be no satisfaction of a larger sum without a release by deed.” And again, “ Where there is an agreement upon an adequate consideration, to pay a sum certain, the promisor can not avoid that agreement by an agreement to receive a less sum.” In the case of Harrison v. Wilcox, cited above, the question was directly decided, and the court there say, “ The caso of Fitch v. Sutton, and the authorities there cited, go to show that the payment of the twenty-one dollars and fifty-five cents in this case, without a release by deed, is no bar to the demand, and that the promise to look only to Close is a nudum pactum. Dederich v. Leman, 9 Johns. 333; Watkinson v. Inglesby, 5 Johns. 391; Mechanics’ Bank v. Hazard, 13 Johns. 357.
    1. But it is said this case is taken out of the general rule. It was a benefit to Graham to pay without suit. Certainly no more benefit can accrue from payment without suit on a record, than upon payment without suit upon a bond which has been decided not to be a good accord and satisfaction. 9 Johns. 333; 13 Johns. 337.
    2. “ The money was paid at a different place,” etc.
    I admit that where a less sum has been paid at a place different from that where the defendant had, by his contract, bound himself to pay it, it has been held to be a good accord and satisfaction; but the case is widely different from that where a debtor absconds from the jurisdiction where a judgment *has been obtained against him, and his creditor has been compelled to follow him to enforce payment.
    But it is said that inasmuch as that part of the money paid by Harper was appropriated to the payment of costs and attorney’s fees, that this formed a substantial consideration for relinquishing the balance of the judgment. The evidence of Turner L. Green, taken by Harper, shows that the whole sum paid was considered a payment on the judgment. After testifying to the first offer of $500, he says, “ Graham’s attorneys thought the sum too small, but finally they agreed, or rather Paschal agreed, if Harper would pay the amount over and above $500, sufficient to pay the cost of the suit had in the court of common pleas, Butler county, Ohio, and attorney’s fees, to wit, fifty dollars, or some such sum, to Paschal & Ogden, and fifty dollars to W. W. Floyd, which said costs and fees amounted to the sum of $156.50, that they would compromise the debt.” The import of this language clearly is, that the $500, together with so much more as was necessary to pay costs and fees, was to be paid by Harper on the judgment. But we need not be technical in the construction of language; there is no escaping from the fact that here the payment of a less sum in money is set up as a discharge from a judgment for a greater amount.
    As to the evidence of the debt being delivered up, it is sufficient to reply, that the record of the judgment still subsisting and iu force, is the evidence of the debt, and the delivery of a mere copy certainly can not operate to discharge it.
    But it appears further, from the evidence, that the compromise-was not only made without authority, but that Harper knew that it was so. In the letter of Paschal & Ogden to Graham (offered in evidence by plaintiff in error), they state, “We showed Harper and his attorney our letters, and refused to give a release !” He therefore acted with his eyes open, and the court will not strain the law in favor of a debtor who had once absconded, and, when on the point of doing so again, ^compromised a claim with attorneys in a way which he knew was against the express directions of their client.

       Where, in an action of trespass against five, the plaintiff accepts a note from two, payable at a future clay, in satisfaction of the trespass, as to the two, but not to operate as a satisfaction as to the other defendants, the causo of action is satisfied aud discharged as to all. Ellis v. Bitzer, 2 Ohio, 89.
      An accord, on mutual promises to perform, is not good if there bo no performance before action is brought. Erost v. Johnson, 8 Ohio, 393.
      Accord and satisfaction may be given in evidence under the general issue in assumpsit. Stewart v. Saybrook Tp., Wright’s S. C. 374.
      The plea of accord, etc., with George E., agent, is not sustained by proof of an accord with John E. Chappell v. Phillips, Wright’s S. C. 371; sec 13 Ohio, 79,

   Eanney, J.

Did the court of common pleas err in refusing to order the execution in this case to be set aside, and satisfaction to be entered on the judgment ? It can not be denied that'the plaintiff’s attorneys did agree to receive in full satisfaction of the judgments the sum of ¡1656.50 ; that it was paid in specie, in pursuance of the agreement, they giving a receipt specifying that it was in full payment and discharge of said judgment then remaining of record in Butler county. These acts of the attorneys were fully ratified and confirmed by the principal, the plaintiff in the judgment, and are-just as effectual as though done by him. This was done, it is true, with the mental reservation on the part of both client and attorneys, that it would not effectually bar a recovery for the balance of the judgment: first, because the release was not under seal; and, second, because the payment was not as large as the amount of the judgment. B.ut it is not pretended that any such intimation was given to Harper. On the contrary, it is not denied that he raised the money and paid it with the full confidence that it relieved him entirely from the judgment, and that the transaction was really what it seemed. Harper was at the time residing in the State of Arkansas, and was entirely insolvent. The question now presented is, whether the plaintiff can, by means of this subterfuge, obtain tbe payment of a part of his debt, and for the technical reasons above stated, in the face of his positive agreement, refuse to enter satisfaction upon his judgment.

It was very early settled as a rule of the common law, that the payment of less than the sum due upon a liquidated demand, although agreed to be received in full satisfaction, could not be insisted upon as such, because there was no valuable consideration to uphold the agreement to relinquish the balance. But if the party to whom the money was coming executed a release, under seal, for the same debt, he was ^effectually barred, although he should have received nothing upon it. The rule and the reason were purely technical, and often fostered bad faith. The history of judicial decisions upon the subject has shown a constant effort to escape from its absurdity and injustice. Hence, w.e find the Supreme Court of the State of New York, in the case of Kellogg v. Richards, 14 Wend. 116, holding the following language in respect to it:

“ The rule that the. payment of a less sum of money, though agreed to be received in full satisfaction of a debt exceeding that amount, shall not be so considered in contemplation of law, is technical, and not very well supported by reason. Courts, therefore, have departed from it on slight distinctions.”

The Supreme Court of Massachusetts; in the case of Brooks v. White, 2 Met. 285, speak of it in no less explicit terms. They say:

“ This rule which may obviously be urged in violation of good faith, is not to be extended beyond its precise import; and whenever the technical reason for its application does not exist, the rule itself is not to be applied. Hence judges have been disposed to take out of its application all those cases where there was any new consideration, or any collateral benefit received by the payee which might raise a technical legal consideration, although it was quite apparent that such consideration was far less than the amount of the sum due.”

A moment’s attention to the cases taken out of the rule, will show that there is nothing of principle left in the rule itself. One of the earliest cases is Reynolds v. Pinhowe, Cro. Eliz. 429, where, after judgment for £5, the plaintiff on receipt of £4, assumed to acknowledge satisfaction of the judgment before a given day; and this was held good upon the ground that it was a benefit to the plaintiff to receive the money without suit or charge, and to prevent a writ of error, by which the defendant might have avoided the whole judgment. The authority of this case has been questioned, but 1 find it relied on in the very recent case of Sibner v. Tripp, 15 Mee. & *Welsb. 22, and conclude that it is regarded as good law in England now.

In Pinnell’s case, 5 Co. 117, it was held that the payment of a- less sum before the debt foil duo, would discharge it, and this reason is given : “ Peradventure parcel of the sum before the day it fell due, would be more beneficial to him than the whole at the day; and the value of the satisfaction is not material.” Another case tallen out, is thus alluded to in Co. Lit., 212, b : “If the obligor pay a lesser sum, either before the day, or at another place than is limited by the condition, and the obligee receiveth it, this is a good satisfaction.”

In Boyd v. Hitchcock, 20 Johns. 76, the debtor gave a note to the creditor for a less sum than was due, with security, and this was held a valid discharge, for the reason, as the court say, “here was a beneficial interest acquired, and a valuable consideration received by the plaintiffs, when they agreed to accept less than the whole demand.”

So in Kellogg v. Richards, before cited, it was held that the receipt of the note of a third person for less than the amount due, would be a good accord and satisfaction ; and the same thing was held in the case of Brooks v. White, before cited.

Again, it is well settled by a great number of authorities, that the receipt in satisfaction of any other article than money, will be effectual, no matter how small the value as compared to the debt. Blynn v. Chester, 5 Day, 360.

As stated by Alderson, B., in Sibner v. Tripp, 15 Mee. & Welsb. 37 : “ If you substitute for a sum of money a piece of paper, or a stick of sealing wax, it is different, and the bargain may be carried out in its full integrity. A man may give in satisfaction of a debt of £100, a horse of the value of five pounds, but not five pounds.” In this case it was held that the acceptance of the negotiable security of the debtor himself, by the creditor, was in law a satisfaction of a debt of greater amount. This decision was made as late as 1846, and the learned judge from whom I have quoted, ventures to intimate in respect to the whole subject, that “ the courts might very *well have held the contrary, and have left the matter to the agreement of the parties.” We see, then, that the payment of a less sum than is duo, the day before a debt falls due, will discharge it—payment at another place than is stipulated will .do so — the delivery of a collateral article of any value will do so—the acceptance of the debtor’s note with security, the note of a third person, or even the negotiable note of the debtor himself, will do so ; and yet the payment of as much money in hand as is called for by such note, will have no such effect!—although it is demonstrable that the Utmost the creditor can get from such note can not exceed the amount that he gets in hand in the other case, without trouble, delay, or expense. It may seem to some persons, not having a great veneration for those institutions of antiquity, for which no reason can bo given, that a rule so effectually undermined, and having neither rhyme nor reason to support it, ought to be at once overruled and the whole matter placed upon the footing of reason and common sense. Especially, as the exigencies of modern commerce frequently compel the most deserving men, with the aid of friends, to compromise their debts for less than the amount due—an operation mutually beneficial to both debtor and creditor, as the creditor gets a part, where otherwise he would lose the whole, and the debtor is left free to commence again with tlie hope of better success. These considerations will necessarily arise whenever it becomes necessary to decide the general question. In this case we aspire to nothing higher than to follow in the footsteps of the sages of the law, and hold this one of the cases “taken out” of the rule. This money was payable at the clerk’s office in Butler county, or to the plaintiff, residing in the same county. It was paid in Arkansas-It is true it might be said that this was not so beneficial to the plaintiff, as though it had been paid to him in Butler county. This may be, but still it does not prevent it from being at a different place, which is all the rule seems to require. Again, Harper was bound to pay the judgment, but he was not bound to pay Graham’s lawyers. He did pay them $100 in *the settlement that was made, and this separately from the amount paid upon the judgment. Graham so treated it himself, for he indorsed only $550 upon the judgment, instead of $656.50, the amount actually paid by Harper. Harper thus discharged a debt due from Graham to his attorneys, and this was a “ collateral benefit received by Graham, which raises a technical legal consideration” for the promise of Graham to discharge this judgment; although both sums paid fall far short of the amount of the judgment. But this circumstance, it is agreed in all the cases, is not at all material. I am aware that this is exceedingly technical and unsatisfactory reasoning, but its justification is found in the fact that the plaintiff seeks to escape from his solemn engagement, by which he has obtained money from the defendant by the aid of a technicality; to prevent the consummation of such a. fraud, he is met with technicalities nearly as absurd as that upon which he insists. The reason and common sense (and I trust I may soon say the law) of the whole matter is this: The plaintiff had a judgment against an insolvent man. He had a right to dispose of it to whom he pleased and for what he pleased, as well as he had any other article of property he owned. He did dispose of it to the defendant in the judgment, .and received his pay in full according to agreement. By this disposition, in the absence of fraud or unfairness, he ought in honor, justice, and law, to be bound, and we think under the circumstances of this case, in any view of it, either technical or substantial, he is bound.

It follows that the order of the court below is erroneous, and the same is reversed, and the cause remanded with instructions to enter satisfaction upon the judgment.


author: Spalding, J.

text:
    *James H. and Jacob Ash v. John Marlow.
    "“A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the oifense with which he is charged,” is a good definition of the term “ probable cause.”
    ■« Probable cause ” is a mixed question of law and fact. The court must leave the facts with the jury, with instructions as to what is probable cause.
      Proof that the examining magistrate “hound the accused over to court” is not conclusive evidence of “ prohahle cause.”
    If the defendant, in an action for malicious prosecution, would take shelter under the “ advice of counsel,” he must be prepared to show that ho communicated to such counsel all the facts bearing upon the guilt or innocence of the accused of which he had knowledge, or by reasonable diligence could have ascertained.
    A court has power to correct “ bills of exceptions ” at any time during the trial term.
    Error to the court of common pleas of Knox county.
    *In the common pleas, Marlow, plaintiff below (now defendant in error), brought an action of trespass on the case, against Jamos H. and Jacob Ash, for malicious prosecution. The declaration avers that James H. and Jacob Ash falsely and maliciously, and without any reasonable or probable cause, prosecuted the said Marlow before a justice of the peace, for having willfully and maliciously burned, or caused to be burned, four sacks of wheat, the personal goods, etc., of said James H. and Jacob Ash, and that said justice required said Marlow to enter into recognizance in. $1000 for his appearance before the court of common pleas, to answer said charge; that said James H. and Jacob Ash appeared as witnesses before the grand jury, but that no indictment was found, etc.
    The plaintiff below recovered judgment for $250, and costs..
    Motion for new trial overruled.
    Upon the trial in the court below, sundry bills of exceptions were sealed, upon which the assignment of error has been made. The errors assigned are as follows :
    1. The court erred in receiving the deposition and testimony contained in the bill of exceptions marked “A.”
    2. The court erred in receiving the testimony in bill of exceptions marked “ B.”
    3. The court erred in their charge to the jury contained in bill of exceptions “ C.”
    4. The court erred in receiving the testimony in bill of exceptions “ D.”
    5. The court erred in allowing the amendment to be made to bill of exceptions “A,” and contained in bill of exceptions “ E.”
    6. The verdict and judgment were against the law and the evidence.
    7. The judgment was given in favor of said John Marlow, whereas it should have been given in favor of J. H. Ash and Jacob Ash.
    The matters shown in the bills of exceptions, so far as material, are sufficiently stated in the opinion of the court.
    *Delano, Sapp & Smith, and Yance & Smith, for plaintiffs:
    The court erred—

      First. In improperly admitting evidence.

      Second. In their direction to the jury on the law of the case.
    Wo will first consider the ruling of the court upon the evidence:

      Bill of Exceptions “A.” 1. The notice was not sealed up and returned with the deposition. This the statute requires. Wright, 632, 156.
    2. The notice was improper, as it was a notice to take depositions in this and two other cases. It should have been a notice in on© case. Stat. 321, sec. 1. Exceptions to the deposition need not be filed, 'as proper notice must be proved before a deposition can be read.

      Bill of exceptions “ D.” This shows that Marlow was permitted to give parol evidence imjneaching the transcript of a justice, by him introduced, showing that the criminal prosecution against him was commenced August 4,1849. He proved by parol that the prosecution was not commenced until the last of October. This was erroneous. Douglass v. Wickison, 19 Conn. 489; Fry v. Hoyt, 12 Conn. 491; Steinberger, Adm’r, v. Steinberger, 19 Ohio, 106.

      Bill of exceptions “ E.” After the trial was through, the court made an order on the journal explaining away bill of exceptions “A.” This the court could not do. 43 Stat. 80, sec. 3.

      Bill of exceptions “ G.” 1. The court were too stringent in their definition of probable cause. The judge says: “I therefore adopt these definitions of reasonable or probable cause as in substance identical, and as applicable to that question in this case, and instruct you that the facts and circumstances in proof, and relied on by the defendants in this case to show the existence of reasonable or probable cause for prosecuting the plaintiff, must be facts and circumstances so strong in themselves as to lead and persuade an impartial, ^ingenuous, and reasonable man of common capacity, to believe that the plaintiff was guilty of burning the stacks.” Sutton v. Johnston, 1 Durn. & East, 308, 493; Smith v. McDonald, 3 Esp. 7; Ulmer v. Leland, 1 Maine, 183; 2 Greenl. Ev. 454, 455; 11 Ad. & El. 489; 3 Bing. N. C. 950; 5 Watts & Serg. 438; 4 Iredell, 389 ; 3 Hawks, 66.
    2. The court erred in not instructing the jury that the facts proved did or did not amount to probable cause. 1 Maine, 138, 139; 27 Maine, 266. See also 24 Pick. 84, 85; 1 Durn. & East, 309; 2 Stark. Ev. 912; 1 Term, 545; 1 Wilson, 232; 2 Moore, 80; 2 Starkie, 167; 4 Taunton, 616; 2 Taylor, 123; 2 Browne, 42; 3 Wash. C. C. 31; 4 Ib. 82; 4 Munf. 59; 7 Iredell, 280.
    3. The court erred in not directing the jury that the binding over of the plaintiff below by the justice was conclusive evidence of probable pause, and a complete defense, unless the integrity of the magistrate’s proceedings were attacked. Reynolds v. Kennedy, 1 Wils. 232; Hob. 226; 6 Mod. 262; Hard. 195; Whiting
      v. Peckham, 15 Mass. 243; Wiltram v. Gonan, 14 Maine, 362; 8 Watts, 240; 4 Munf., (Va.) 462.
    4. We claim-that the court erred in their instruction as to the advice of counsel.
    After the main charge had been given, at the request of the plaintiff’s counsel, the judge instructed the jury as follows: “If ■after the advice of counsel, and before the delivering of the warrant, any new material facts came to the knowledge of the defendants, tending to lessen the probability of the plaintiff’s guilt, and which were not communicated to the counsel for his further opinion, then the advice previously given could be no protection to the defendants for thus delivering the warrant, and further prosecuting the plaintiff.” Stone v. Swift, 4 Pick. 389.
    Henry B. Curtis & Mitchell, Miller & Dunbar, and Morgan, for defendant:

      *Bill of exceptions “A.” The notice produced was identified by Dunbar, a witness sworn, and that will do.
    It is objected that the deposition contained matter that was incompetent.
    A general objection to a deposition on the ground of incompetency of the testimony contained in it, when part is competent, is bad. Beebe v. Bull, 12 Wend. 504.

      Bill of exceptions “ B>.” The point made is this : The transcript of the justice shows the issuing of the warrant “August 4, 1849,” and its return of service, “ October 30.”
    The questions put to the witnesses (the Scotts), in Indiana, are as to the statements made by the defendants below, or one of them, while in Indiana in October, 1849, as to the commencement of the prosecution. And the answers show that at that date, according to the defendant’s statements, the prosecution was not commenced, but would be as soon as they got back to Ohio.
    It will be seen by proofs, that the warrant was not delivered to the constable for execution until October 26; at which time the defendant, who had been in Indiana, was present.
    The court, in charging the jury, held that the testimony now excepted to, was “ not sufficient to contradict ” the record of the justice. So far as counsel had claimed the evidence for this purpose, it was distinctly overruled.
    The evidence was, with special instruction, permitted to remain to the jury for other purposes claimed by the plaintiff below.

      Bill of exceptions “ G.”
       No exception, in fact, was taken to the charge of the court, until after the verdlet was rendered by the jury ; nor until after the motion for new trial had been made. And, although on its face the bill does not specifically show when the exception was taken; and, although ingeniously dated “ November term, 1850,” yet, that it was long subsequent to the rendition of the verdict, is shown by the Adates in the transcript of the journal entries,, and the filing of the several papers, viz : date of trial in transcript, December 23, 1850 ; date of filing motion for new trial, December 23, 1850 ; date of filing bill of exceptions “ G,” January 24, 1851. It is further shown to have been subsequent to the verdict and motion for new trial, by the fact that the misdirection of the judge was not assigned as one of the causes for now trial.
    “Exceptions to the charge of the court to the jury can not be taken after the verdict.” Anderson v. Hill, 12 Smede & Marshall, 679; Brutton v. Mitchell, 3 Barr, 44; Read v. McAllister, 8 Wend. 109.
    We also object to several of these specifications, upon the ground that no special request was made to the court, by the plaintiffs in error, to charge the law to be as claimed, on the particular point. It has been decided at this term, in the case of Jones v. The State of Ohio, that, to hold the failure of the court to charge upon particular points of law arising in the case a ground of error, the court should have been requested to instruct upon the point. The same doctrine is held in Law v. Merrills, 6 Wend. 268; 6 Cranch, 233; 2 Pet. 15.
    We will, however, proceed to consider the several specifications made, and see if this exception be well taken. And,
    1. As to whether the court erred in their definition of probable cause.

    We refer to 12 Conn. 229; Willis v. Noys, 12 Pick. 324; Munn v. Dupont, 3 Wash. C. C. 37; Wilmouth v. Monfort, 4 Wash. C. C. 82; Stowe v. Crocker, 24 Pick. 86 ; Merriam v. Mitchell, 1 Shep. 439; Harle v. Hawkins, 5 Humph. 357; Paris v. Starke, 3 B. Mon. 4; Foshay v. Ferguson, 2 Denio, 617; Rice v. Ponder, 7 Iredell, 390.
    Smith v. McDonald, 3 Espinasse, cited for plaintiffs, is cornmented on in 2 Stark. Ev. 495, note h, and is overruled in 3 Mo. 350, Greenleaf’s Overruled Cases, 337.
    2. The second objection to the charge of the court is, that “ the court erred in not instructing the jury whether the facts *relied on, to make out probable cause in law, do or do not amount to probable cause.”
    This question has been repeatedly made to the courts of England and of the United States; and it has been invariably determined that, although there are some cases in which a judge may be expected to tell the jury whether or not the defendant had probable cause, yet, when it consists partly of matter of fact, and partly of matter of law—and especially when the facts are, in whole or in part, deductions and inferences from circumstances, or are contested—the question is, properly, and we may add necessarily, loft to the jury, under tho general instruction of the court, upon the law. James v. Phelps, 11 Adol. & Ellis, 483; 39 E. Com. L. 150; McDonald v. Rooke, 2 Bing. N. C. 217; 29 Eng. C. L. 312; Taylor v. Williams, 2 B. & Adol. 845; 6 Bing. 183; Wineberger v. Shelly, 6 Watts & Serg. 336; Francis v. Smith, 1 Penn. St. 234; Nash v. Ord, 3 Brev. 94; Paris v. Waddell, 1 McMullen, 358; Pomroy v. Golly, Geo. Decis. (pt. 1) 26; Dodge v. Brittain, 1 Meigs, 84.
    3. The third exception to the charge of the court is, that the court erred in not instructing the jury, that the binding over by the magistrate was conclusive evidence of probable cause.
    The cases cited distinguish in unequivocal terms between the judgment of a court of final jurisdiction, and a binding over by an examining court.

    In Johnston v. Sutton, 1 Tenn. 505, 506, the ruling of the court in Reynolds v. Kennedy, is considered, and much qualified and weakened.
    Whitney v. Peckham, 15 Mass. 243, next cited by plaintiffs, was an action for malicious prosecution, in a case of assault and battery. The alleged prosecution was before a magistrate, who, under the laws of Massachusetts, had final jurisdiction to try and determine the ease. The justice found the party guilty, and assessed a fine against him; but, on appeal, *he was acquitted. It was held, that the justice “having final jurisdiction” in the ■case, and having found the plaintiff guilty, there was conclusive evidence of probable cause.

    In the case cited from 14 Maine, 362, the justice had final jurisdiction, and that fact was relied upon by the counsel in the case, and doubtless influenced and controlled the decision of the court.
    4. We come now to consider the fourth specification of error in the charge of the court below—that the court erred as to the advice of counsel.

    It is conceded, that to shield one’s self by advice of counsel, a full, clear, and distinct statement of the facts, known to the prosecutor, must be made.
    Can it then be pretended, that, after receiving this advice and taking out the warrant, and new material facts have come to his knowledge, the prosecutor will be protected against a subsequent delivery of the writ and arrest of the defendant, under the shield of advice obtained before the new matter came to his knowledge ?

      Bill of exceptions UE.” It is contended by counsel for plaintiffs in error, that the court had no power to correct a mistake in their record, made at the same term, if it happen to be in a bill of exceptions.
    It has been the frequent practice of the courts of this state to correct mistakes, or misstatements, in bills of exceptions. 10 Wend. 254.
    We also refer to the following authorities:
    “The inferior court, at any time during the term, may supply a defect or omission in a bill of exceptions, by statement on the record.” Givens v. Bradley, 3 Bibb, 195.
    *“ If a bill of exceptions is taken to the ruling of the judge admitting certain evidence, yet, if no evidence is given under the ruling, the bill ought to be given up.” Bunting v. Allen, 3 Harrington, 299.

       “ The question of probable cause is a mixed proposition of law and fact: whether the circumstances alleged to show it probable or not probable are true, and existed, is a matter of fact; but whether, supposing them true, they amount to a probable cause, is a question of law. It therefore falls within the legitimate province of the jury to investigate the truth of the facts offered in evidence, and the justice of the inferences to be drawn from such facts; whilst at the same time they receive the law from the judge that, according as they find the facts proved or not proved, and the inferences warranted or not, there was reasonable and probable ground for the prosecution or the reverse; and this rule holds, however complicated and numerous the facts may be.” Broom’s Legal Maxims, 45, citing Johnstone v. Sutton, 1 T. R. 544, 545, 547; Blanchford v. Dod, 2 B. & Ad. 179; Reynolds v. Kennedy, 1 Wils. 232; James v. Phelps, 11 A- & B. 483; Panton v. Williams, 2 Q. B. 169, 194; Peck v. Boyes, 7 Scott, N. B. 441; Michell v. Williams, 11 M. & W. 205; Bushell’s case, Vaugh. 147; and see Pangburn v. Bull, 1 Wend. 345; Masten v. Deyo, 2 Wend. 424; 7 West. Law Journal, 397.
      To sustain a suit for malicious prosecution, it must have been malicious without probable cause, and have been ended. Benjamjn v. Garee, Wright's S. C. 450 ; Anderson v. Buchanan, Wright’s S. C. 725. A defendant may show the charge true, as probable cause, even though the prosecution alleged to ba malicious was unsuccessful. Ib. 725. If a justice of the peace be sued for maliciously issuing execution, evidence must be given of his acting without authority; it will not be presumed. Perry v. Gilleland, Wright’s S. C. 38.
      Where an affidavit was made charging crime, which charge was the subject of an action for malicious prosecution, and the declaration stated the substance in general terms of the affidavit, as dated on or about 24th of May, the affidavit date, 16th May of the same year, is competent evidence. Potts v. Eider, 3 Ohio, 70. ■ Case will lie for falsely and maliciously suing out a writ of attachment against the plaintiff’s effects, to their injury, though it be admitted they were indebted to the defendant. Sperry v. Warner, 9 Ohio, 103.
      A creditor’s false affidavit that his resident debtor absconds, is not probable cause for issuing an attachment against his effects. Ib. 103.
      See Murray v. Long, 1 Wend. 140; Gorton v. De Angelis, 6 Wend. 418; Burlingame v. Burlingame, 8 Cow. 142; Murray v. Long, 1 Wend, 420; Candler v. Petit, 2 Hill, 315.

       Geauga Iron Co. v. Street, 19 Ohio, 300.

       On the trial of an indictment for barratry, the order of a magistrate, requiring a person complained against by the defendant to be recognized for his appéarance before a court of competent jurisdiction, is not conclusive evidence of probable cause for making the complaint. Commonwealth v. Davis, 11 Pick. 433.

   Spalding, J.

The several bills of exceptions will be noticed in their order.

In bill of exceptions “A,” we find that the deposition of one-Levi Marlow, introduced by the defendant' in error, was objected to because the notice was not sealed up and returned with the deposition.

The bill shows that the notice was found among a large quantity of depositions on file in the cases that said paper referred to, and the certificate of the magistrate showed the deposition to have been taken under “ the inclosed notice.”

The proper service and transmission of the notice was proved by the oath of one of the attorneys.

The objection, if available in any case, was not well taken in this instance, as the strong presumption was that the notice had been inclosed in the deposition by the justice, and had become detached by constant handling of the papers.

It is objected that the notice, when produced, was found to-cover more than one suit. It certainly gave notice to the party of an intention to take depositions in the suit then on trial, and it is difficult to see what inconvenience could arise from taking, on the same day, and at the same place, other depositions between other plaintiffs and the same defendants, if there was sufficient time to perform the whole work. If the rights of the party were-prejudiced by reason of the attempt to take too many depositions within a short space of time, the showing of that fact would have had weight with the court. In this case, the defendants paid no attention to the notice. They did not appear at all, and, of course had no reason to object that too much was sought to be done.

These formal objections, however, should have been noted upon the depositions, within the rules of court, to have *entitled them to any regard. They came too late, after the jury was impaneled.

This bill of exceptions “A” also shows that the deposition was permitted to go to the jury, although objected to by defendant’s counsel as containing incompetent evidence.

By a subsequent entry upon the journal, the court corrected an error that had intervened here, and show that the deposition was-not, in fact, read as evidenee-in-ehief, at all, and but a single paragraph as rebutting testimony.

In bill of exceptions “B,” it is said that plaintiff’s counsel, on cross-examination, put a question to the witness on the stand, upon-an assumption that had no existence in the testimony in chief. The language was this : “You have stated that John Marlow said it must have been the Scotts that had burned the wheat, and yon have also stated that it was pretty much in the mouth of everybody that it was the Scotts. I now ask you what reasons were mentioned by any of the persons alluded to, for suspecting the Scotts ? ”

It is objected that the witness had said nothing about any conversation except the one he himself had with John Marlow.

Wo have but a small portion of the testimony given to us in the ' bill of exceptions, but, upon the supposition that the counsel for plaintiffs in error is correct in his statement of what the testimony was, there could be no impropriety in allowing the question to be put. The witness was on his cross-examination, and consequently much latitude was allowed to the examiner. But aside from that, he had said that Marlow threw suspicion on the Scotts. The attorney of Marlow might, with propriety, inquire, what reasons were given at the time for such suspicions.

The charge of the court is contained in bill of exceptions “ C.” The judge gives sundry definitions of the term “probable cause,” as laid down by distinguished jurists, and then, after directing the jury to ascertain how far the facts are proved, says: Apply to them the test, the rule of law which I have laid down to you. Ask yourselves conscientiously—‘Are the *facts and circumstances that we have found, so strong in themselves as to warrant an impartial, ingenuous, and reasonable man, of common capacity, with the caution usually exercised by such a man in the defendant’s situation, but not under the influence of any improper motive, to believe the plaintiff guilty of the crime charged against him?’ If they are sufficient to warrant that belief, in such a mind, that conclusion, when deliberately arrived at by you, will terminate your labors; and you will return to this court your verdict of not guilty.

“ If your conclusion on the facts relied on to show the existence of reasonable or probable cause, shall be adverse to the defendants, your deliberations will proceed.”

We have examined this whole charge with some care, and really can see no just cause for complaint by either party.

The judge has been somewhat diffuse in giving his views on “probable cause,” but they do not substantially differ from the sensible and concise definition laid down by the court in Munn v. Dupont, 3 Wash. C. C. 37. “What, thon, is the meaning of tho term ‘probable cause?’ We answer, a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.”

We are content to adopt this last, as the definition of what in tho law constitutes “ probable cause.” There is no force in the objection that the judge did not instruct the jury that the facts relied on by defendants below, did, or did not amount to probable «ausc. “Probable cause ” is a mixed question of law and fact; and if the facts are contested, the court must leave them to the jury with instructions as to what is “probable cause.” It is insisted, in the third p[ace, that the judge committed an error in refusing to instruct the jury, that the “ binding ,over ” by the magistrate was conclusive evidence of probable cause. It is sufficient to say, that it is the opinion of this court that the judge went far enough when he said to the jury, that after an exhibition of the affidavit, warrant, and ^transcript of the justice’s docket, showing that the accused was bound over to court, it was incumbent on the plaintiff below to show affirmatively that there was no reasonable or probable cause for the prosecution. The notion could not be countenanced for a moment, that a “ binding over to court” by an examining officer merely, should be taken as conclusive evidence of probable cause. It was claimed in behalf of defendants below, that they acted under the advice of counsel in prosecuting the plaintiff. It appeared that the warrant was taken out on August 4, 1849, but the arrest was not made under it until the 30th day of the following October. The judge instructed the jury that “ if, after the advice of counsel, and before tho delivery of the warrant, new and material facts came to the knowledge of the defendants, tending to lesson the probability of the plaintiff’s guilt, and which were not communicated to the counsel for his further opinion, then the advice previously given could be no protection to the defendants for thus delivering the warrant and further prosecuting the plaintiff.”

This is the fourth specification of error in the charge of the court, and we are clearly of opinion that the instruction was right. If, under the advice of counsel, a person swears out a warrant against his neighbor, and, before he causes the arrest, shall ascertain his innocence of tho charge, it will be difficult to see by what system of ethics he can be justified in'depriving that neighbor of his liberty, even though he was protected by professional advice,, in taking out the warrant.

In bill of exceptions “D,” it is said that John Marlow gave in evidence a transcript of a justice of the peace, showing that the criminal prosecution against him was commenced on August 4, A. d. 1849; that he then gave parol evidence tending to show that Jacob Ash had made declarations in Indiana, in the month .of October, setting forth that he had not then commenced his prosecution against Marlow, but should do so on his return to Ohio. This, it is claimed, is impeaching a record by parol evidence.

The objection is really too trifling to merit serious refutation, *but it is very much in character with the rest of the case, as presented by plaintiffs in error. It became important to show that between the issuing of the warrant in August, and the arrest of the accused persons in October, the defendants below had become possessed of information that should have exonerated the plaintiff below from the charge preferred against him. The transcript of the justice was not impeached. The parol testimony was entirely consistent with the facts set forth in that documents It only served to show that Jacob Ash treated the prosecution as commenced at the time of the arrest, and not at the date of the warrant.

In bill of exceptions “E,” complaint is made that the court caused an entry to be made on the record, doing away with the-force of bill of exceptions “A.”

This matter has been already noticed. The court retains full control over every part of its record until the close of the trial term, and may, on any day and at any moment, cause corrections to be made, to comport with truth and justice, as well in bills of exceptions as in their own journal, which is signed every morning by the president judge. We are satisfied that the trial below, although excessively tedious, was nevertheless fair in every particular, and that the rulings of the court were consonant to law.

The judgment will be affirmed, with costs.