author: Wood, J.

text:
    *Henry Pelton v. Solomon Platner, who sues for the use of James E. Chapman.
    No presumption is raised here, that a justice’s court in Michigan is, or is not a court of record; if material to the issue, the laws of Michigan must he proved.
    Courts, not of record, arc not within the act of Congress, providing for the authentication of judicial proceedings.
    Courts, not of record, are within the provisions of the constitution of the United States, and their proceedings may he proved hy the certificate of the justice and the clerk of the county, with the seal, etc., or by an examined or sworn copy.
    A judgment against property must show the property of the defendant was attached; service on the property of a stranger gives no jurisdiction.
    In Ohio, a judgment in rem converts the property; beyond this, it is not even evidence of debt.
    Poreign judgments, where there was personal service, are only prima facie evidence of indebtedness, and the defendant may contest their justice.^»
    ^Judgments of other states, whether in rem or in personam, have the same " force and effect here as where rendered.
    This is a writ of error to the court of common pleas of Lake county.
    Tho judgment sought to be reversed was in an action of debt, founded on the certified transcript of a judgment by a justice of the peace, in the State of Michigan. All the material facts are disclosed in the following bill of exceptions:
    “Be it remembered that, on the trial of this cause in the court of common pleas of Lake county, at the June term thereof, 1844, the said Solomon Platner, for the use of James Chapman, to maintain the issue on his part, offered the following paper in proof, to wit:
    “ In Justice’s Court — Before Henry Hewitt, Esq., a Justice of the Peace. Solomon Platner v. Henry Pelton. Attachment issued, December 20,1837; returnable, December 31, at one o’clock,
    P. m. Summons returned duly served, by 0. Hatch; fee, $1. Served on one drag-tooth and one pair of hames, one iron bolt, etc. Plaintiff declares against defendant in assumpsit, for goods, ware» and mei’chandise, house rent, fire-wood, stabling horse, grain, etc., as per bill in court. To plaintiff’s damage, $100, or under. Defendant not in court, and, according to statute, cause continued to March 27, 1840, at one o’clock p. m. At the adjourned day, plaintiff in court; defendant not appearing, cause for trial. The court, after hearing the evidence for plaintiff, found for him damages, $38 62, with costs. Court fees, $1.69; constable, O. Hatch, $1; constable, on garnishee, 87 cents; printer’s bill, $3, etc.”1 *Then follow, in the bill of exceptions, the certificates of the justice and the clerk of the county, thus:

      “ State of Michigan, County of Calhoun:

    I do hereby certify that the above is a correct transcript from the judgment rendered by Henry Hewitt, Esq., a justice of the peace of said county, at the time of the rendition of said judgment. That the docket of said Henry Hewitt is new in my possession, in pursuance of the statute in such cases'made and provided; that the said Henry Hewitt having died, while holding the office of justice of the peace, the books and papers of said Hewitt were duly transferred to me, a justice of the peace, according to the laws of the state, in such case made and provided, and that the said books and papers are now in my possession, in pur-# suance of said law.
    “ Francis W. Sherman, Justice of the Iteace.”

    “ State of Michigan, Calhoun County Cleric’s Office:

    I, Jno. W. Van Horne, clerk of said county, do hereby certify that Francis W. Sherman, whose name is subscnb«d to the cer* tifieate of the proof or acknowledgment of the annexed instru. ment, and thereon written, was, at the time of taking such proof or acknowledgment of the annexed instrument, an acting justice of the peace, in and for Calhoun county, sworn and duly authorized to take the same; and, further, that I am well acquainted with the handwriting of said justice, and verily believe that the signature to the said certificate of proof or acknowledgment is genuine.
    In testimony whereof, I have hereunto set my hand, and affixed the seal of said county, the 8th.day of December, 1843. [seal.] “ Jno. W. Yan Horne, Clerk.’

    The plaintiff in error objected to this evidence, but the same was admitted by the court; and, no other proof being given, the court gave judgment for the defendant in error.
    It is assigned for error:
    1. That the transcript set forth in the bill of exceptions ought not to have been received in evidence.
    2. That the judgment was given for the defendant in error, when it ought to have been given for the plaintiff in error.
    Lapham & Sterling, for plaintiff in error:
    We contend, on the part of the plaintiff in error, that the transcript, admitted in evidence on the trial of the cause in the court below, being a record of proceedings in attachment, in the State of Michigan, against a non-resident who had no notice of the pendency of the suit, ought to have been rejected.
    Admitting the proceedings to have been strictly conformable to the statute of Michigan, the judgment has no further *effect than to bind the property attached, and is no evidence of indebtedness; it does not operate, in any measure, in personam. No action can be sustained upon the judgment in another state, because the defendant was not personably amenable to the jurisdiction. The following authorities, we think, fully sustain this position:
    Bissell v. Briggs, 9 Mass. 462; Teilbun v. Woodworth, 5 Johns. 37; Taylor v. Phelps, 1 Gill & Johns. 492; Shumway v. Stillman, 6 Wend. 447; Jacobs v. Hull, 12 Mass. 25; Story’s Conflict of Laws, 461; Serg. on Attachments, 112-114; 1 Dall. 375 ; Bells v. Death. Add. 265; 3 Mason, 151; 4 Wash. C. C,; Kilby e. Kilby, Kirby, 119; 6 Conn. 508; 2 Yerg. 484; 2 Vt. 263; Rogers v. Coleman, Hardin, 413; 1 Paige, 299, 305; 1 Dev. 488.
    But if we admit the rule of law to be otherwise, the proof should have been rejected, because it does not appear by the transcript that any service was made of the writ; that is, it does not appear that any property-belonging to the defendant was attached; and no other service could have been made but by attaching property, and that the property of the defendant. The notice of an attachment should state to whom the property belonged. 3 Moore (Ky.), 293; Iron v. Allen, Hardin, 44.
    It will readily be seen that a rule, admitting the legality of proceedings under such a return as this transcript shows, would enable designing persons to establish doubtful, or even groundless claims against non-residents, by proving nominal attachments on property which might be any other person’s property than the defendant’s, or even the property of the plaintiff himself, and, in the absence of the defendant, easily make out a prima facie case, and thereby obtain record evidence of indebtedness against any person whom he might choose to make defendant. I/aw, justice, and sound policy are against such a rule.
    And, further, the transcript does not show any disposition made of the property which the officer returned that he did ^attach, and we think that a further suit can not be sustained on the judgment, were there no other objection, until the property shall have been disposed of, and the proceeds applied on the judgment.
    The transcript ought not to have been admitted as evidence antil the statute of Michigan had been produced and proved, to enable the court to determine whether the proceedings were conformable thereto, the court before which the proceedings were had being of limited jurisdiction. See 19 Johns. 33; 9 Mod. 95; 2 Wils. 16; 1 Saund. 73, 74; 5 Cranch, 173; S. C., 1 Pet. C. C. 30; 8 Cow. 311.
    E. Hitchcock and Wilder, for defendant in error:
    The authorities in the different states are numerous and conflicting, but we believe the correct rule is, and ought to be, that when there has been personal service upon the defendant in the original action, the decision is final and conclusive, and the evidence of indebtedness furnished by the record conclusive evidence in any other state. But in those cases where no personal service is made the defendant does not appear, and the cause is commenced and process served, in no other manner than by attaching property, that the adjudication of the court upon the cause of action furnishes, by its record, prima facie evidence of indebtedness, throwing the burden of proof upon the defendant, and leaving him to impeach it, and the original demand, by competent testimony, if be seeks to avoid it.
    It is claimed by the plaintiff in error that this was a judgment in attachment; that there was no personal service upon him; but this we deny. We say the record shows there was personal service upon him. There is no pretense in the case that the plaintiff in error did not, at the time the original suit was commenced, reside in Michigan, and within the jurisdiction of the court.
    *The language of the record in this particular is: “Attachment issued December 20, 1837; returnable December 31, at one o’clock, p. m. Summons returned served, by O. Hatch; fee, $1.” There was, then, not only an attachment, but a summons issued and served. It must have been for and upon the defendant. It would bo a singular position to assumo that the property, after it was attached, was summoned. Summoned for what? To appear in court and defend? There are many of the states in which an attachment for property is ordinarily a part of the mesne process accompanying the summons, and in which the sorvice consists in seizing property and summoning the defendant. This we suppose is the law of Michigan, and was the course pursued in the case before us.
    If we are correct in this position, here is an end of the case. But if we aré wrong, and this is said to be a judgment in attachment only, then we say that the record is, in itself, admissible, and prima facie evidence of indebtedness. We are aware that the decisions in New York and Massachusetts are against us.
    The doctrine, however, for which we contend has, as we understand it, received the sanction of the Supreme Court of the United States, and in Vermont, Pennsylvania, Kentucky, Indiana, Illinois, and Ohio. Betts v. Droth, Addison, 265; Rogers v. Coleman et ux., Hardin, 413; Prim v. Higgins, 1 Litt. 274; King v. Van Guilder, 1 Chip. 59; 1 Pet. C. C. 74; 1 Ohio, 260; Curtis v. Gibb, 1 Pennington399, 406.
    So, in Tennessee, they have held that a decree in chancery from another state may be inquired into when there has been no actual notice. Note in 1 Star. Ev. 215.
    Of course,-the decree was not regarded as a nullity.

      We understand this to have been the uniform doctrino in Ohio-In the case cited from 1 Ohio, 260, the court say: “In such cases we have considered, the record as prima facie evidence, and permitted the defendant to impeach its justice,” etc.
    We claim no more; and why now, alter the rule has been thus settled and acted upon for so many years, in this state, seek to change it?
    *But to present the case in another view. Wo submit that this judgment has the same force and effect here that it has in the state where rendered.
    The constitution of the United' States provides, “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state; and the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
    The act of Congress of 1790 provides for the manner in which records shall be authenticated, and then says they “shall have such faith and credit given to them, in any court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken.”
    It would be difficult to use language more clear, distinct, and less likely to bo misconstrued; but, until it had received a construction from the Supreme Court of the United States, in the cases in 7 Cranch, 481, and 3 Wheat. 234, its construction in the different states was as various as the states are numerous. Since these cases, now decided, however, there has been more uniformity in the state courts, all, with the exception of perhaps New York, now holding that no plea to a suit upon a judgment from another state is good, unless it be such as would be allowed to the same judgment in the state whore rendered, “thus,” to use the words of Chief Justice Parker, “establishing an identity in operation and effect between judgments rendered in the courts of the same state and courts in other states. There can be, therefore, while these decisions stand, no further doubts as to the effect of the judgments of the courts of our state in those of another.” 17 Mass. 546; 5 Ohio, 545; 6 Ohio, 43; 7 Cranch, 481; 3 Wheat. 234; 2 Dallas, 302.
    Our own court, in 5 Ohio, 545, say that nil debet is a good plea in that case, which was upon a justice’s judgment from Pennsylvania, because it is a good plea in Pennsylvania. This, and this only, is the ground upon which they sustain the plea. They then say, farther, that, although a justice’s judgment *is not embraced in the act of Congress of 1790, it is embraced within the provisions of the constitution. “ It is a judicial proceeding, to which full faith and credit are to be given.” See also Wright, 127; Ib. 347; Ib. 349; in each of which cases the same doctrine is maintained.
    Of what the law is, then, in Ohio, as to the force and effect here of judgments from other states, there’ can be no doubt if oft-repeated uniform decisions of the Supreme Court, not only upon the circuit, but in bank, could settle it, and not only that this question is at an end, but that it is also in like manner decided that the rule applies to the records of the court that rendered the judg ments and made the records before us.
    This judgment has the same (orce and effect here that it has iu Michigan; and what is that ? At least- that it is prima facie evidence of indebtedness.
    This precise point was decided in Kentucky, as we claim the law to be. 5 Litt. 349, 350. See also 1 Pennington, 399, 406; 2 Leigh, 175, 176.
    It is urged by the plaintiff in error that no action can be sustained on the record until it is shown that the property attached is legally disposed of, and the proceeds applied upon the judgment. No authorities in support of this position are cited; we therefore presume none could be found by the counsel.
    But in the case in 6 Wend., cited by the plaintiff to another point, the original action was commenced in Massachusetts, by attachment of property; the defendant afterward appeared; judgment was rendered against him; execution was issued and not returned ; suit was then brought on the judgment in New York. The question now.under consideration was thus raised, strengthened by the issue of the execution; but the objection was overruled, and judgment rendered for plaintiff.
    It is further urged by the counsel opposed to us, that the record was not admissible in evidence, because it does not say, in so many words, in the form of an allegation in pleading, that the property attached was the property of the defendant. *It is not believed that it is necessary for the officer, in his return, to aver that fact as a part of his return. In practice, it is not done in this state, either on attachment or on execution; but even if necessary, it is clear it is not the custom in this state, nor in any other, so far as we know, for the justice to transcribe into his docket the full return of the officer. If the property attached was not the property of Pelton, he should have plead and proved that fact, and that by the law of Michigan, if it be so, that the court, for that reason, had not jurisdiction of the cause. The mistake into which the counsel have run in all this case is, that they seek to throw upon us the burden of proof, when the law casts it upon them.
    P. Hitchcock submitted an argument on the same side.
   Wood, J.

The first assignment embraces the whole ground of inquiry. The second is a mere corollary. Under the first assignment two questions naturally arise : 1. Is the transcript of the Michigan justice properly certified? 2. Is it prima facie evidence of debt?

As to the mode of authentication of the records and judicial proceedings of other states, they are provided for by an act of Congress, passed A. D. 1790; but it has been decided in our own court that neither the act of Congress, nor*the provisions of the constitution of the United States, as to authentication, extend to any other than courts of records. In 5 Ohio, 545, it is said by this court that other evidence of the official character of the person who certifies the transcript of the justice than his own certificate, has invariably been required — usually the certificate of the clerk of the county, with the seal of the court; and it is held in that case, that, although justice’s courts in Pennsylvania are not of irecord, and are consequently not within the act of Congress, that they are within the provisions of the constitution of the United States, as judicial proceedings, and admissible in proof, when duly certified by the justice, with the additional certificate *of the clerk of the county. The transcript would appear, in the ease at bar, to bo fully within the principle decided in 5 Ohio, 545, provided a justice’s eourt in Michigan is not a court of record. In some of the states they are, and in others not, and no presumption can be legitimately raised that they are either the one or the other. This court is not bound to take notice, ex officio, of the laws of other states, and it is no enviable task to keep paco with the Solons of our own. When a question depends on the laws of a sister state, in our courts, such laws are a part of the e ridence in the case, and, like another fact, must be proved by him who holds the affirmative.

When the plaintiff below offered this evidence, it was a fact incumbent on him to show that the court of a justice of the peace in Michigan was not a court of record, and that the papers offered were duly certified within the adjudication referred to in 5 Ohio, 545. As no such evidence was given, the transcript was improperly received.

Was the transcript prima facie evidence of debt? On this question there have been numerous adjudications, by no means always consistent with each other. At Westminster foreign judgments, where there has been personal service or notice, are held to be prima facie evidence merely of indebtedness, and the defendant is let in to contest their justice and propriety. 3 Sim. 545. The same rule prevails in the United States. Story’s Conflict of Laws, 508; 3 Cow. 520; 5 Wend. 148; 6 Ib. 447.

Foreign judgments, in rem, in regard to personal property, are held to be conclusive in eases where the court have jurisdiction, so far that the same question can not be again litigated. 7 Cranch, 433; 4 Ib. 141, 434; 7 Wheat. 471.

Judgments in the courts of our sister states, under the constitution of our federal government, are not, however considered foreign judgments, but as having the same credit, validity, and effect in any other state they have in the state where rendered. Spencer v. Brockway, 1 Ohio, 259; 13 Peters, 312. And where the defendant is shown by the ^record to have had full notice, in an action upon the record in another state, nil debet is a. bad plea, for the record imports absolute verity. Whether proceedings are in personam or in rem, if there was jurisdiction over the person in one case, or over the thing in the other, and such jurisdiction be proved, the same effect will be given, in Ohio, to a judgment rendered in Michigan, that would be given to it there. 13 Peters, 312.

In Ohio, we are of the opinion that a judgment before a justice of the peace against property, and no service on the person, appropriates the property only. That execution can not issue on such judgment against the other property or person of the defendant for any implied balance, nor could an action be sustained upon it as being prima facie evidence of debt. When it has converted the property it is functus officio, and vitality remains to it no longer for any purpose. But in such judgments, rendered in the common pleas, our statute has made express provision that the judgment shall stand, and execution issue thereon as in other cases. Swan’s Stat. 93, sec. 11.

It is laid down in several cases of high authoi’ity that, if a creditor attach the goods of his debtor, in the hands of the bailiff, factor, trustee, or garnishee of such debtor, on recovering judgment, the goods may be lawfully applied to satisfy it, and the bailiff, sued, shall be protected by the judgment; but if the goods are insufficient to satisfy the judgment, and the creditor bring suit upon it in any other state, ho must fail, because the defendant was not personally amenable to the jurisdiction of the court rendering the judgment. 9 Mass. 462; 5 Johns. 3, 85, 86; 1 Gill & Johns. 492; 6 Wend. 447; 12 Mass. 25. And to give jurisdiction of the person to the court, in any case, the defendant must have had due notice of the suit. 1 Caine, 466; 2 Dall. 302; 6 Pick. 232.

But if the court here or elsewhere have not jurisdiction of the person, nor of the subject matter, its proceedings are wholly void. Such judgments are as waste paper. They are no protection to those who seek to enforce them; nor are they prima facie evidence of debt. Evans v. Instine, 7 Ohio, 275.

*The record of a judgment must show service or it will not be presumed, either in our own courts or elsewhere. Let us look at the service in the record in question, and see whether any jurisdiction over the person or property was acquired by the Michigan justice. Tho constable returns that ho has made service by attaching a drag tooth, one pair of hames and bolt, but it is nowhere returned that they were the property of the defendant in the attachment; and without such return, and without such were the fact, there is no service, and on valid judgment can be rendered upon it. At least such is the law here, and if such judgment has any greater effect in Michigan the plaintiff, in the court of common pleas, utterly failed to show it.

In Evans v. Instine, 7 Ohio, 275, the court say, “without inquiring as to the effect of a judgment in foreign attachment where the property of a defendant has been taken by virtue of the writ, we are clear in the opinion that where the property of a stranger has been levied upon, such services does not so far give any court jurisdiction, as that a judgment rendered can be of any effect.”

But it is insisted a summons was issued, and that the record shows it was duly served; and therefore it is shown the defendant below had personal notice. The words of the record are, “ attachment issued,” etc.; “summons returned duly served,” etc.; and “costs on garnishee, fee eighty-seven cents.”' This summons was, therefore, I presume, a garnishee-process served od some debtor of the defendant, in attachment, to compel his attendance and answer; but no further notice is taken of either the summons or garnishee in the record. If such judgments bind property in Michigan, we would give them the same effect here. If they would bo prima facie evidence of debt there against the defendant, wo would hold them to be so here; but before the courts here can give them any such effect, the law of Michigan must be proved. Thomas v. Robinson, 3 Wend. 367; 10 Ib. 75; 2 Mass. 45; 8 Ib. 35. We are, therefore, of the opinion the court of common pleas erred in admitting the transcript in evidence.

Judgment reversed.


source: Caselaw Access Project

author: Birchard, J.

license: Public Domain

text:
    *The Ohio Life Insurance and Trust Company and others v. Urbana Insurance Company and others.
    The return of a sheriff, as to the description of property levied upon, can not be amended so as to prejudice other liens intervening between the time of levy, and the date of the amendment.
    If an amendment be made, the lien will only operate as to third persons from the date of the amendment.
    An execution in favor of A. was levied upon the northwest quarter of section 35, but in the sheriff’s return it was described as being levied on the southwest quarter of that section. An execution in favor of B. was afterward levied upon the same land, and correctly described in the sheriff’s return.
    Held, that the return upon the execution of A. can not be amended so as to affeot the priority of B.’s lien.
    This is a bill in chancery from Logan county, the object of which is to establish priorities of lien, and have distribution of the proceeds of a master’s sale of mortgaged premises.
    From the papers in the case, these facts appear:
    James M. Workman, prior to the year 1838, owned in fee .simple the northwest quarter of section 35, township 3, range 14, subject to a mortgage of §400, made to the Ohio Life Insurance and Trust Company.
    Judgments were recovered against Workman in the following order:
    1. Strong and Blachley, July 3, 1838.
    2. Urbana Insurance Company, October 16; 1838.
    3. Executor of Skiles, July 3, 1839.
    4. Urbana Insurance Company, October 23, 1839.
    Executions issued on these judgments, and were returned levied, as follows:
    1. Urbana Insurance Company (2), on the northwest quarter of section 35, January 14, 1840.
    2. Urbana Insurance Company (4), on the northwest quarter of section 35, January 14, 1840.
    3. Strong et al. (1), southwest quarter of section 35, June 9,1840. *4. Executors of Skiles (3), southwest quarter of section 35, June 12, 1840.
    At April term, 1841, Strong and Blachley procured an order of court for the sheriff to amend his return, and the sheriff amended tho same by erasing the word southwest, and inserting the word northwest, and like erasures arid alterations were made in the appraisement and the printed advertisements.
    At the April term, 1843, the executors of Skiles procured an order for amendment, which was made in like manner.
    On all the levies, numerous writs of sale were issued, and largo bills of costs incurred, prior to the orders of amendments; and the amendments were made without notice to any parties whatever.
    The question is, as to the distribution among these judgment creditors, alter satisfaction of the sum due on the mortgage.
    B. Stanton, for the executors of Skiles:
    The mortgage of the Ohio Life Insurance and Trust Company is the eldest lien upon the lands sold by the master, and their original claim is entitled to preference over all other creditors in the distribution of the purchase money.
    The bill of review is a separate and distinct proceeding, and the mortgage lien does not attach to the costs adjudged against the plaintiff in review. The lien upon the lands for costs originated with and is founded upon the decree. This case, therefore, must he postponed to all-others in the distribution.

      The principal question in the case arises out of the amendment, of the sheriff’s return to the executions in the cases of the executors of Skiles, and Strong and Blachly, survivors, etc.
    If the court had power to authorize these amendments, these-cases are entitled to precedence of the case of the Urbana and Champaign Mutual Insurance Company, otherwise they are not.
    The power of courts to amend their process, and to authorize-the amendment of the returns of their officers, according to the truth, I had supposed was too well established to admit *of any controversy. Questions of this description are always addressód to the sound discretion of the court, and may be granted- or refused, without subjecting the decisions to review, or reversal, by an appellate court. Though the appellate court may think the* discretion of the inferior court has been injudiciously exercised, the decision is, nevertheless, final and conclusive, unless the inferior court has transcended its powers, or violated some established principle of law.
    I would refer the court to the following authorities, in support of the power exercised by the court in this case. Fowble v. Reyburg et al., 4 Ohio, 57; McIntire v. Rowan, 3 Johns. 144; Williams v. Rogers, 5 Johns. 163; Cramer v. Van Alstyn, 9 Johns. 385; Thatcher v. Miller, 11 Mass. 413; Smith v. Daniel et al., 3 Murph. (N. C.) 128; Sawyer v. Baker et al., 3 Greenl. (Maine,) 29; Rucker v. Harrison, 6 Munf. (Va.) 181.
    It is always presumed that an amendment is made according to-the truth. 1. Because it is made by a sworn officer, under the responsibility of his official oath. 2. Because the court will not grant leave to amend, unless the party, shows, by proof of some-description, that the proposed amendment is true in point of fact, and is necessary to promote the ends of justice.
    If it is not true, the officer is liable to the party injured for a false return; and this is the remedy of a party who is injured by an amendment which is not true. But in this case, no room is left-for doubt about the truth of the return as amended. The depositions of the sheriff, and one of the appraisers, prove that the levy was in fact made upon the northwest quarter, that the northwest quarter was appraised, and that the entry on the executions, that-the levy was on the southwest quarter, was made by mistake, and afterward corrected by leave of the court, according to the truth-In fact, there is no pretense that the judgment debtor owned the-southwest quarter, or any other lands, except the lands sold by •the master; and there can be no doubt but this is the land upon which all the parties wore seeking to charge their judgments.
    *1 suppose there can be no doubt about the effect of the amendment after it is legally and properly made. It places the party in the situation he would have been in if the original return had been correct. It restores to him. all that he has lost, or was liable to lose, by the mistake of the officer. The sole object •of an amendment is to cure that which was defective, and make it as though no defect had ever existed. The lien of the party as to other creditors commenced with his levy. If the levy was in fact made upon the right land, the lien created by it can not be .affected by any mistake in entering the levy on the execution. This entry of the levy on the execution is merely the evidence of the time, manner, etc., of making it. The fact itself can not be •changed, or its legal consequences affected, by any error which may have occurred in perpetuating the evidence of it. Other ■creditors are not injured by it; they are in the situation they would have been if no error had occurred. They are not in the ■situation of purchasers or mortgagees, without notice, who make •advances upon the faith of a public record, and who would be injured by the negligence of the officer or the party, if their title ■.should be overreached by an alteration of the record. Their debt existed at the time of the levy, and they must take their •phance with other creditors in securing a doubtful or desperate •claim from the property of a man in failing circumstances. It was their own fault that execution was not issued within the year ■from the date of their judgment, and they can not now be restored to what they have lost by their negligence by taking advantage •of a mistake in the officer.
    If amendments can not reach back, and place a party in the ■-situation he would have been in if no mistake had occurred, they .are useless. If this levy is not to be treated as a levy on the lands sold by the master till the amendment was made, the amendment is useless to us, as we might have set aside our levy, and commenced de novo, as well as to amend. At the last term of the Supreme Court in Logan county, Strong and Blaebly, survivors, etc., obtained leave to amend their judgment by striking out the name of a plaintiff, to make it conform *to the ■executions under which they claim in this cause. If they can avail themselves of this amendment, and overreach our lien, we suppose we can avail ourselves of the amendment to the sheriff’s return, and take precedence of the Urbana and Champaign Mutual Insurance Company; and if we are postponed to this, we take it for granted that Strong and Blachly will bo postponed to us.
    James & McNemar, for the Urbana Insurance Company:
    If the prior liens of the Urbana Insurance Company aro to be postponed, it must be by matter of strict law, and the alteration in the other liens sustained as amendments to prevent a failure of justice. The claim made by these creditors is not entitled to any special favor in a court of equity; and if any of the judgments have superior merits, those of the Urbana Insurance Company, which are shown to be for the purchase money of the land in question, would seem to have the preference.
    The mode of making the amendments in question, by a mutilation of the original entries, is very objectionable. The proper course would be by a reindorsement, reciting the order for correction, as shown in the case of Fowble v. Reyburg, 4 Ohio, 45. But by the sheriff’s statement on file, the court can see the time and manner of making the alteration.
    We do not deny the power of' courts to permit sheriffs to amend their returns, and even by parol evidence.; but it is not permitted whore the sheriff has omitted to make a return in writing, or where it would contradict a fact set forth in the return, or where the sheriff is a party. In these cases the power was improperly exercised, because there was no ambiguity in the levy, no apparent mistake, and nothing in any part of the proceeding to show that the northwest quarter was really taken, but misdescribed. There was nothing to amend by.
    In making a levy on land, the sheriff does not go upon the land, nor does' he, by any act of notoriety, show that he seizes *and appropriates the land to satisfy an execution. By simply writing and signing a return upon a writ, he creates a legal lien upon land anywhere within his county. Emerson v. Upton, 9 Pick. 170. “He should be bound, then, by the official stamp which he gives to his proceedings, there being no other guard or check upon him.” Ib. Theso lions were made at the sheriff’s office in Bellefontaine, and as they consisted simply of an indorsement on the writs, how can thoy be treated as acts> except by the language used at the time? They were certainly not levies on the northwest quarter of section 35, in the month of June, 1840; and as the levy exists only by force of the return, it follows that the northwest quarter was not bound by any levy in favor of Strong, or of Skiles, until the dates of the several alterations made by the sheriff, under the leave to amend. The date of the alterations being both more than one year from the rendition of their judgments, the elder liens of the Urbana Insurance Compavy became the better liens.
    The fact sworn to by one of the appraisers, that they wont onto the northwest quarter, and actually viewed and valued that quarter, and not the southwest quarter, can not affect the case. The appraisement is no part of the levy, and it can neither aid nor injure the sheriff’s return; at any rate, the sworn certificate of the appraisers shows that they valued the southwest quarter» Their valuation was subsequent to the sheriff’s act of levy, and they were not accompanied by him.
    We may concede that the sheriff may have thought he was levying on the land in question when he levied on the southwest quarter, but his intention is to be known only from his expression of it in his official return. The authorities cited by the complainants merely show that, in proper cases, the courts will make-amendments. It will be found on an examination of all the cases in which amendments of writs and of returns have been granted, that the effect of them, when any change has been made, has been limited to the parties to the suit in which the amendment was granted. The previously acquired ^rights of persons, not parties to a suit in which an amendment is made, can not be-affected by any such amendment.
    In Massachusetts, several cases are found in which this point has been so ruled, and from the cases it also appears that the fact of amendment, and the time of making it, are inquired into-in collateral proceedings. In Williams v. Brackett, 8 Mass. 240, it was decided that the sheriff can not be permitted, in a suit between other parties, to change his description of land in his-return of an attaobment'made by him in a former action, so as to make the description apply to other lands of the debtor.
    It has also been held (Putnam v. Hall, 3 Pick. 445) that the rights of a subsequently-attaching creditor will not be affected by the amendment of a mistake in the first attaching creditor’s writ,, though appearing manifestly on the face of the writ to have been •occasioned by a mere slip of the pen.
    The case of Emerson v. Upton, 9 Pick. 167, is very analogous to the one before the court. This case was a writ of entry to recover possession of a piece of land under the following facts:
    On May 23, 1826, the defendant, Emerson, had conveyed a piece of land to Stickney, and taken a mortgage for the purchase •money, which mortgage was not placed on record until May 22, ■1827. Tbo tenant, Upton, had sued Stickney for a debt at the common pleas for June, 1827, and the officer who served the writ returned, under date “of June 6, 1827,” that ho had attached the land of Stickney. At the September term of the common pleas, the officer, on motion and affidavit, had leave to amend his return, ■by substituting March for June as the date of his attachment. The tenant having obtained judgment against Stickney at the December term, 1827, took out execution, and had it levied within ■thirty days upon the land as Stickney’s property.
    The court decided that the amendment, carrying back the attachment to a date preceding the recording of the mortgage, should not prejudice a title acquired prior to the date of the •return as it stood before the amendment.
    *And in delivering the opinion, used this languago:
    “We do not interfere with the rights of the court of common pleas, to allow the officer to alter his return ; from the evidence on which the court acted, we presume they had sufficient ground to be satisfied that the attachment was made on the 6th of March. JBut they did not decide on the effect of the amendment, nor could they, so as to bind this court upon any question arising out of the proceedings, which might affect the rights of third persons. The whole matter appearing to us of record, the original return, and the subsequent amendment, we must decide upon the legal effect upon the plaintiff’s title, and we are satisfied that the title is not impaired by the attachment as proved. A different decision, we •apprehend, would be productive of great mischief. We do not find, in any of the cases cited, any intimation that an amendment of an officer’s return will have the operation to defeat the rights •of a third party, which would be valid without such an amendment. The cases from our own reports show only, that the return of an officer is conclusive, but what shall be considered his return, is not determined.”

      To the like effect, we cite Haven v. Swan, 14 Pick. 27; Johnson v. Hay, 17 Pick. 106; Hovey v. Wait, 17 Pick. 196.
   Birchard, J.

Without undertaking to decide whether or not the court rightly permitted the amendment, under the circumstances which appeared in proof, we find no difficulty in coming to a conclusion, that the amendments thus made, admitting them to be proper as between the judgment debtor and creditor, can not operate injuriously to any right lawlully acquired between thetimo of the levy and the amendment. It would be a bad precedent, in judicial proceedings, to permit one, not a party to a suit, without a day in court, to be deprived of an important right bj the decision of any motion whatever. A sound and correct exposition of the law will not permit it. The authorities cited by counsel seem to sustain this point.

*The liens acquired, therefore, by the four levies upon the northwest quarter of section 35, will take priority according to tho dates of each, the dates of each amendment to be regarded the date-of the levy, for all purposes of distribution.

Decree accordingly.


text:
    Champion and Lathrop v. Timothy Griffith.
    The mere indorsement, upon a note, of a stranger’s name in blank, is primi* facie evidence of guaranty.
    But if made at the time of execution by the other party, or in pursuance of an intention to become responsible, it is an original undertaking; and such-person will be held as a maker of the note.
    Such intention may be proved by parol.
    The rule is the samo whether the instrument be negotiable or not.
    This is a motion to set aside a nonsuit, from the county of Franklin.
    The action was assumpsit. In the first count of his declaration the plaintiff declared, “for that, whereas, the defendant and one-Thomas BridgmaD, on March 28, 1837, made their joint and several promissory note, in writing, and then and there delivered the-same to the plaintiff; and thereby then and there promised the plaintiffs to pay them, or order, four months after the date of said promissory note, the sum of $100, for value received.”
    A count was added for money had and received. Plea, non assumpsit.

    On the trial, the following note was offered in evidence :
    “ Columbus, March 28, 1837.

      “ Four months after date I promise to pay Champion and Lathrop, or order, $100, for value received.
    “ Thos. Bridgman.”
    *On the back of the note was indorsed the name of the defendant, “T. Griffith,” in blank; also the names of “ CbampioD and Lathrop,” the plaintiffs, which appeared to have been erased.
    It was also in proof that, some time before suit brought, Griffith, received from Bridgman fifteen dollars, to be applied on the note. No other evidence being adduced, the court directed a nonsuit.
    E. Backus, for plaintiff, in support of the motion, contended:
    That a note of this description, the signatures not being disputed, furnishes, of itself, presumptive evidence that tbe defendant put his name upon it at the time of its execution; and where a person, not originally a party to such a note, puts his name upon it in blank, at the time of its execution, he becomes, by relation, a party, and may be proceeded against as maker. And it is unnecessary, for the plaintiff’s recovery, that he should give any further evidence of the intention of the person so indorsing, to-bind himself either as surety, or maker, with the other- promisor. The law presumes that, and if the presumption be wrong in fact, the person so indorsing has the right, and it is incumbent on him to show, that his indorsement was made with a different intent and moaning ; and this may be shown by parol testimony.
    These positions are fully sustained by the decision of this court, in the case of Bright v. Carpenter and Schuer, 9 Ohio, 139.
    That case was an action of assumpsit against the defendants, as makers of a promissory note precisely like this, Carpenter’s signature being at the foot of the note, and Sehuer’s being indorsed on the back of it in blank. Upon the trial, the note was offered1 in evidence, and objected to as being the note of Carpenter, Schuer being guarantor only. The plaintiff then offered to prove hovr Schuer’s name came upon the note, for the purpose of repelling the presumption that be was an indorser, and for the purpose of showing that his name was signed thereon at the time of its exoeution. Schuer objected *to the competency of the evidence. And the case was reserved for the consideration of the admissibility and effect of the evidence. The court held that if a person not a party to the note, sign his name to such paper at the time of its execution, without prescribing the limits o! his responsibility, he authorizes the holder to treat him as maker, and is as much bound as if his name was written under that of the principal ; that whore a person not originally a party to the note signs his name upon it in blank at the time of its execution, he becomes by relation a party, and may be proceeded against as maker, and that the note itself furnishes presumptive evidence of this relation by the application of the rule that a contract is construed most strongly against the party bound ; and the parol evidence offered by the plaintiff was unnecessary for his recovery, and gave judgment for the plaintiff.
    The plaintiffs are also fully sustained in the positions taken by them in the case of Moies v. Bird, 11 Mass. 436. This case is like the one above referred to. One-B. Bird made his promissory note, payable to the plaintiff (Moies), or order, one year after date. Upon the back of the note was the name of A. Bird, the defendant, who alone was sued as maker. And the court held that the indorsement in blank by the defendant was the samo in effect as if his signature had been upon the face of the note, under the signature of B. Bird, the other promisor, and that the effect would be to make the defendant a surety for the other promisor, unless fho indorsement was explained by evidence, and proved to have been made with some different intent and purpose, and it was incumbent on the defendant to prove some different intent or meaning of his signature.
    If the plaintiffs are right in their positions, then the nonsuit •ought to be set aside, and if this be done, they ask judgment on the note, as it is understood the defendants have no evidence to offer.
    *S. Brush, for defendant, contra:
    ri he nonsuit was right, because:
    1. As the case stood the plaintiffs had not proven their partnership as alleged in the declaration, and I know of no law dispensing with such proof.

      2. The fair legal presumption, arising Irom the facts proved, was, that the promissory Dote in question was made and delivered by the maker, Bridgman, to the plaintiffs, and by them indorsed to defendant. That the defendant then collected and received from the maker the sum of about fifteen dollars, and returned the note to the plaintiffs, omitting to erase his name.
    The only circumstance militating against such presumption is the fact of the possession of the note by the plaintiffs.
    The erasure of plaintiffs’ names on the back of the note is nothing, as it could as well be done in the one ease as the other.
    The order of the names, though not proven, is of no avail, because it is a frequent occurrence in indorsements in blank, to put a later indorsement over, or nearer the top of the paper than the former. It was done in the two cases hereafter cited from 17 and 24 Pick.
    No dates appear to the indorsement, and no proof when either was made.
    If the indorsement of plaintiffs’ names was made last, for the purpose of being negotiated, it could easily have been shown by the person to whom negotiated. And it is the duty of plaintiffs, and not of defendants, to explain the facts necessary to their recovery.
    The presumption claimed by us is in accordance with the usual course of business, and the contrary, to say the least, a very rare case. Then add to that the fact that defendant collected, and received from, the maker, part of the amount of tho note, and the weight of the evidence on this point is with the defendant.
    *What right had defendant to collect money on the note cf the maker, if not the owner of the note ? How could he make such collection, if not the owner of the note, and in possession thereof?
    If I am wrong in my conclusions as to the correct presumptions arising from the facts proven in this case on this point, the only inference loft is, that defendant put his name on the back of the note to enable the plaintiffs to get the note discounted, that the plaintiffs then indorsed the note and negotiated the same.
    In such case the defendant is clearly to be held as an indorser merely, and entitled to all the privileges of an indorsor. In this I am sustained by the cases of Pierce et al. v. Mann, 17 Pick. 244, and Austin v. Boyd, 24 Pick. 24.

      In the last-cited case the name of the payee, as well as the defendant’s name, appearing on the bank of the note, the plaintiff was permitted, and, of course, required before recovery to prove,, by parol, the circumstances under which ho had written and erased his name. No such evidence was given in this case. The-cases cited are precisely similar, except in. those cases, the payee wrote his name over the defendant’s, although after the defendant’s indorsement, which proves that the place where indorsed is not evidence of the time of indorsement. "
    If we are right in either view we have taken of this point in the-ease,judgment must be rendered for defendant; as in the first, view, the plaintiffs have no right of action, and never had, agains-4 defendant on this note; and in the last they can not recover under this declaration, nor without proof of demand of the maker and' notice to the defendant.
    3. The only remaining point in the case, and the point upon which the ease turned, and the nonsuit was granted, is:
    Is the name of a person, not a party to negotiable paper, appearing upon the back of such paper in blank, without any evidence to show how it came there, to bo presumed to have been put there at the time of the making of the note, or subsequently, or-if no presumption arises either way?
    *Upon examination of the cases decided in Massachusetts,, the result will bo found to be, that where a person, not a party to a promissory note, puts his name on the back at the -time of the-making of the note, he is to be considered as a joint promisor or surety; but where a person, not a party, puts his name upon the back of a promissory note, after the making thereof, he is to be considered as a guarantor only, and there must be a consideration-for bis promise.
    The case of Tenny v. Prince, 4 Pick. 385, “ was upon an indorseinent by the defendant on a negotiable promissory note, given by L. Pierce to the plaintiff, dated December 1, 1820, payable in-twelve months, with interest after six months.
    “ The indorsement was made in blank, about three months before the note became due, and was filled up by the plaintiff as-follows: ‘Eastport, Dec. 1, 1820. Eor value received, I promise-to pay Perley Tenny or order, the within sum, 1824.65, in twoLve months from date, with interest after six months.’ ”
    Parker, C. J.: “ We do not think thore was any authority in the plaintiff to make this uso of the signature, because it is inconsistent with the circumstances under which the signature was given. It is impossible to infer an original promise to pay this note, coeval with its date, from a signature put upon it nine months aiter. Nor does the case of Moies v. Bird, 11 Mass. 436, relied upon by counsel for complainants in this case, support it; for though the signing of Bird was two or three days after the note-was made, there were facts from which an agreement to be responsible from the beginning was justly inferred.”
    The learned judge then decides that the signature was a guaranty “which might be enforced, if made upon legal consideraration, and not otherwise.” But the courts of Connecticut have repeatedly held otherwise.
    In Bradley v. Phelps, 2 Root, 325, it was determined by the-highest judiciary in that slate that such indorsement was not an engagement that the note should be paid in all events, but *that the indorseo or payee, by the use of due diligence, should be able to obtain payment of the maker.
    But if a warranty of any kind was intended, the courts of Connecticut have invariably and uniformly declared that the contract is conditional; not that the maker should pay the note at maturity, or that the indorser should pay it, but that it is collectible by active diligence.
    And in the case of Beckwith v. Angel, 6 Conn. 324, Hosmer, C. J., says: “And, however courts in the contiguous states have differed from us in the construction of the before-mentioned contract; yet, in one particular, there has been a universal harmony, and that is,in considering indorsements in blank, on notes not negotiable and on negotiable notes when not made by a party, but to insure the maker’s responsibility, as possessing the same legal effect.
    The same doctrine is contained in Swift’s Treatise on Bills of Exchange and Promissory Notes, 342, and the first volume of Swift’s Digest, 431.
    But if the court should conclude to adhere to the opinion of the-Massachusetts courts in preference to those of Connecticut, we say further, that in none of the cases decided in Massachusetts did the point in this case arise, or has the same been decided.
    In the case of Moies v. Bird, parol proof was given by both, parties; by the defendant, principally to show that defendant refused his signature, and only signed to make the plaintiff easy,. but would not be accountable for a farthing upon the note; by the plaintiff, to prove the time of the signature by the defendant, ■and the agreement to sign, at the time of the bargain made by the principal, his brother.
    The judge who tried the cause, and not the full court, held and directed the jury “that if they believed that the plaintiff conveyed his land to B. Bird, upon the expectation of security by the ■name or indorsement of Abraham or William Bird, as guarantor of B. Bird’s notes, and had obtained the defendant’s indorsement upon the note in question, in consequence of that agreement, they might find for the plaintiff; and that the ^indorsement in blank, by the defendant, was of the samo effect as a signature upon the face of the note, under the name of B. Bird, would be; in which case the defendant would be considered as a surety for B. Bird in the same promise, unless the indorsement had been explained by the evidence and proved to have been made with some ■different intent and purpose; and it was incumbent on the defendant to prove some different meaning or intent of his signature.”
    Now, what is the just inference from the language of the learned judge? It seems to me to be this: When it appears in evidence that the signature was, at the time of the making of the note, or in the language of the chief justice, in Tenny v. Prince, “ thero wore facts from which an agreement to be responsible from the -beginning may be justly inferred,” the legal presumption arising from such fact or facts is, that the defendant intended to become a joint promisor and surety; and if, in reality, there was some ■different meaning intended, such as a guaranty of payment by the maker, or that the note could be collected from the maker, etc., the defendant must prove it.
    And I am sustained in my views by the practice of learned counsel in that state, both in that and the subsequent case of Tenny v. Prince, where the plaintiff proved the time and circumstances of the signature.
    And the judge, in using that language, could not have intended that it was incumbent on the defendant to prove the time of his •signature, as that was in evidence, by the testimony of John .Eaton, sworn for the plaintiff. Then, in Massachusetts, this point •has never come up for decision, but the uniform practice has been, as we claim the rule to be, for the plaintiff to prove when the defendant’s signature was made.
    But this point has been decided in the case of Beckwith v. Angel, 6 Conn. 317, already cited. Peters, J., says : “ The undertaking of an indorser is always collateral, unless made otherwise by. special agreement. But the defendant was not an indorsor, because he was neither promisee or indorsee. Palmer v. Grant, 4 Conn. 389. His contract was, therefore, ^necessarily special, and whatever the parties chose to make it. Had it remained blank, it must have been considered, prima facie, a guaranty or nothing. This depended on the inducement and intention with which the defendant wrote his name; and the question now is, could these be proved by parol?” Three of the judges decided they could, while Hosmer, C. J., was of a contrary opinion. No ■difference of opinion, however, existed as to the prima facie effect of such an indorsement.
    Upon this point, then, the weight of authority, so far, by the practice in Massachusetts and decisions in Connecticut, is with the defendant in this case.
    Has the law been changed in Ohio ?
    The case of Greene v. Dodge and Cogswell, 2 Ohio, 430, wasprocisely similar to the present. It is true, in that case, the indorsement made in blank was subsequently filled up as a guaranty. Why was this so done? For the reason that the practice had always been to consider such indorsements as guaranties. The court say: “ The mere lact of writing their names upon the note, would not subject the defendants.”
    As I understand that decision in full, it is in cases like the present, the prima facie presumption, that the indorsement would be a guaranty. It is true, the question decided was only where the character of a guarantor was claimed, not “ ascertained.”
    At the same time, an opinion was given as to the character of such indorsements, which, obiter dicta, we claim to be as good authority as similar opinions in other cases, and no more. The next case, and the one chiefly relied upon by the counsel for the plaintiff in this case, is the case of Bright v. Carpenter and Schuer, 9 Ohio, 139. In that case, there is one loose sentence, perhaps incorrectly reported, which I apprehend to have been the cause of all the doubt in the case on this point. “The parol evidence offered by the plaintiff is unnecessary for his recovery.” That-•question did not arise in the case. It was not necessary to decide it; and if that remark is correctly ^reported, which I do not believe, it was a mere obiter dictum, and not binding in this case.
    In that case, the counsel for the plaintiff believing the law to be as I have supposed, offered evidence to prove when, and circumstances under which Schuer’s name came upon the back of-the note. In the same case, the defendant’s counsel, believing the law to be as laid down by Chief Justice Hosmer, in Beckwith v. Angel, objected to the evidence, as tending to contradict a written •contract.
    Two questions wore before the court, and were decided.
    1. As held in Massachusetts, that whore the name of a person, not a party, appearing upon the back of a promissory note, if placed there at the time of its execution, he is to-be considered as ;a joint promisor, etc.
    2. That the plaintiff, in such case, might introduce parol proof •of the time and circumstances of the signature.
    The next and last case is that of Parker v. Riddle, 11 Ohio, 102, 108. The court there say: “All unite in opinion that the name of the payee, in blank, appearing upon the face of tho note is not a guaranty, but an indorsement; while the name of a per-son, out of the note, appearing upon it, would be a guaranty.”
    I admit that it was not necessary to decide that point, and the ibove may also be considered as obiter dicta, but it is the united •obiter dictum of the whole court. It is also in accordance with the decisions of Connecticut, and the practice in Massachusetts and •Ohio, and not conflicting with the decision in Bright v. Carpenter and Schuer, to wit:

      Prima facie, a guaranty, in the language of Judge Peters, •already cited, subject, however, to be controlled by proof to the contrary.
    Since writing the above, I find the last point above made, • clearly decided in the following cases, to which I ask the particular attention of this court: Dean v. Hall, 17 Wend. 214; Seabury v. Hungerford, 2 Hill (N. Y.), 80; Hall v. Newcomb, 3 Hill (N. Y.), 233, 234. Those cases are precisely similar to the present, and the old-cases reviewed; *and it was held, that the defendant was to be considered as an indorsor, entitled to notice, •and not a joint maker, or guarantor.

      E. Backus, for plaintiff, in reply:
    It is true that the language quoted from the case of Moies v. Bird, 11 Mass., is the language of the judgo who tried the case in his charge to the jury. It is also true that the whole court held that “ the charge of the judge was right.”
    The court will perceive that the practice of the learned counsel in this case is different from what is claimed by defendant. The •case was opened by the plaintiff’s production of the note. We have no further evidence until after the defendant had introduced evidence for the purpose of showing a different meaning to his .signature than that of surety or maker, and then evidence was introduced by the plaintiff to rebut.
    Decisions of other courts may be found establishing and giving various different characters to a signer on the back of a note, such as the present — different from that given by this court in the case of Bright v. Carpenter. They have been held to be nothing at all; they have been held as guarantors, and as indorsers, and as makers. And for the purpose of establishing, in Ohio, their character, the case of Bright v. Carpenter was reserved. It was fully argued and deliberately determined that it was that of surety, and that the party might be sued as maker; and that the note itself furnished sufficient evidence of the fact, subject to be l’ebutted by evidence from the defendant. The case of Parker v. Riddle does not affect the ease. That case was upon diffoi'ent paper — it was. not mercantile paper, and the parties were different; the suit was brought by an indorsee against the payee of a note not negotiable. And the court in delivering their opinion on that case do not even allude to the case of Bright v. Carpenter, and could not therefore have intended to affect or alter that decision.
    *1 did not suppose, at the time of the trial, that the partmership of the plaintiffs was disputed, as it was a fact resting within the knowledge of at least half a dozen members ol the bar, including the counsel for the defendant, who were present at the trial. And the court would not have nonsuited the plaintiff upon this technical ground, oven after motion made for that purpose, but would have allowed the plaintiff to prove, as he was ready to do, the partnership. In fact, the nonsuit was not granted upon that ground at all, but upon the sole and only ground that the name ol the defendant appearing upon the back of the note, and the plaintiff offering no evidence to show hoW and under what circumstances it was put there, he was to be considered as guarantor and could not be sued as maker.
   Wood, J.

Did the court err in nonsuiting the plaintiff? An examination of the authorities has led us to the opinion that no-error was committed. The note was not shown .by the proof to-be the joint and several note of the defendant and Bridgman, and, therefore, it did not support the cause,of action as laid. The authorities cited, to show that the undertaking of Griffith was original and not collateral, are cases where the name was indorsed upon the note at the time of its execution or in pursuance of an agreement to be responsible from the date of the note. In the case at bar it was not shown when Griffith’s indorsement was made, but, from the (acts in evidence, it is fair to presume that bis name was indorsed on the note, not at the time, but after its execution by Bridgman. We think it is a question of intention between the parties, and therefore hold:

1. That the mere indorsement upon a note, of a stranger’s name in blank, is prima facie evidence of guaranty.

2. To charge such person as a maker, there must be proof that his indorsement was made at the time of execution by the other-party, or, if afterward, that it was in pursuance of an agreement or intention that he should become responsible from the date of the execution.

*3. Such agreement or intention may bo proved by parol..

4. 'The rule is the same whether the instrument be negotiable or not. Motion overruled.


author: Lane, O. J.

text:
    The Bank of the United States v. Covert, Singer, and others.
    Different -debts, secured by the same mortgage, are to be paid from the mortgage fund in the order in which they fall due.
    It makes no difference that the notes secured by mortgage were negotiable. Nor will the priority of assignment change the order of appropriation.
    In chancery from Hamilton county. Bill and cross-bill reserved to determine a question of appropriation of moneys made by a sale of mortgaged premises.
    The case is stated in the opinion of the court.
    The reporter was furnished with no arguments.
   Lane, O. J.

This is a question of appropriation of moneys made by the sale of mortgaged premises.

The Bank of the TJrlited States brought its bill against Singer and Covert for foreclosure of certain tenements on Lower Market street, which, it is admitted, must be first paid from the sale.

Singer and Covert mortgaged a lot on Sycamore street to Dunlap, which is admitted to bo the first incumbrance.

Afterward, in 1839, they mortgaged both lots to Healey, for seven-notes ; one.for $1,800, payable in three years, and six for $216 eachi payable at intervals of six months, the first of which became due on January 9, 1840. This mortgage ^contained a condition that Singer and Covert might pay the note for $1,800 at any time after one year, and that when paid, all the small notes not due should become void.

The condition of the mortgage is in these words:

“Provided always, that if the said Enion Singer and Joseph B. Covert, or either of them, their executors, administrators or assigns, shall well and truly pay, or cause to be paid to the said Patrick Healey, his executors, administrators or assigns, the sum of $3,096, according to the tenor and effect of seven several promissory notes, of even date herewith, drawn by said Singer and Covert in favor of said Healey; one for $1,800, payable to said Healy or order, three years from date; and the other six for $216-each, drawn by said Singer and Covert in favor of said Healey or order, and payable in six, twelve, eighteen, twenty-four, thirty, and thirty-six months from date; and also the premium that may bo paid by the said Healey, for the insurance on the said premises, of any sum of money not exceeding $1,200, ior the further security of the above sums of money, then these presents shall be void: Provided, also, and it is hereby declared to be the understanding of the parties, that if default be made by said Singer and Covert, in the payment of any one of said notes at the time the same is-made payable, the said sum of $1,800 shall, from the time of such default, be considered as due, and may be proceeded on accordingly for collection. The said Singer and Covert have the privi■lege of paying said $1,800 at any time after one year from date, «and, when paid, the smaller notes not then due are to be canceled, -«interest being computed up to time of payment.”

In July, 1840, Healey assigned the four small notes, last payable, ■to Murray, and the benefit of the mortgage. In December, Healey «assigned to West a lion of $1,000 on the large note, and afterward assigned a lien on the remaining $800 to Eleazer Ezekiel, all with .the similar benefit of the mortgage. The two small notes first duo appear to have been paid.

*All these facts appear from the bill, cross-bills, and answers, and the only litigation is, whether Murray, the holder of the lour small notes, or West and Ezekiel (or their assignees), the holders of the large note,-are-entitled to be preferred.

Where a mortgage is given to secure money payable, by installments, it obviously should be applied, first, to pay the sums first due; for the obligation to j>ay the first may be enforced against the property before any default in later payments.

In this case, the note for $1,800 became due in three years, and .as much sooner as a failure occurred to pay any one of the smaller notes. The first failure proved, occurred in the neglect to pay the note held by Murray, duo January, 1841. Thus both the note then payable and the large note became due together, and both ahould be satisfied by the sale.

This view settles the case, unembarrassed by many considerations urged by the defendants’ counsel. It is of no moment that the notes are negotiable, because the rights, here acted upon, accrue not under the notes, but under the mortgage. Nor is Murray ■permitted to rely upon priority of assignment, because his rights •depend on the deed, which affects him with notice, by expressing .all conditions. Decree accordingly


author: Read, J.

text:
    Willis Hawes, Commissioner of Insolvents, v. Malinda Cooksey and George James, Assignee in Bankruptcy.
    An order for the maintenance of an illegitimate child is not subject to tho act of bankruptcy, and the putative father can not he discharged from the order, by taking the benefit of the bankrupt act.

      "Where the putative father applies for the benefit of the insolvent act, and is afterward declared a bankrupt under the act of Congress, his effects, in the hands of the commissioner of insolvents, will be applied to the satisfaction of the order of the court in favor of the mother, notwithstanding the bankruptcy.
    She has preference over the assignee in bankruptcy.
    • This is a bill of interpleader from Muskingum county, filed by the commissioner of insolvents, against Malinda *Cooksey, a creditor of Morgan, an insolvent debtor, and James, his assignee in bankruptcy.
    The facts stated in the bill, are these:
    On March 15,1842, Morgan applied for the benefit of the insolvent act, and made an assignment of his effects to the commissioner.
    Malinda Cooksey appeared before the commissioner and proved her claim, consisting of a judgment in her favor at March term, 1842, for $100 to be paid down, $25 half yearly for six years, in all $400, and $42.23 costs. No other claim was proved.
    Morgan afterward applied for the benefit of the bankrupt law, and at June term, 1842, of the district court, was declared bankrupt.
    Morgan’s effects, in the hands of the commissioner of insolvents, are claimed by Malinda Cooksey, the creditor, and also by James, his assignee. To determine the right,' this bill is brought.
    This agreed statement was filed: “ It is agreed by the parties that this case shall be heard and decided by the court, upon the facts stated in the bill, and the further facts agreed upon by the parties, as follows: At the Marcn term, 1842, of the court of common pleas of Muskingum county, in a proceeding under the act of the general assembly, entitled ‘ an act for the maintenance and support of illegitimate children,’ charging Washington Morgan, the insolvent and bankrupt mentioned in the bill, with being the father of the bastard child of the above-named Malinda Cooksey, an order of filiation was duly made by that court, adjudging that Morgan should stand charged with the maintenance of such child, in the sum of $400, payable as stated in the bill, and also with payment of the costs of prosecution, taxed at tho sum mentioned in the bill. Whereupon the common pleas required Morgan to give security to perform such order, which he refused to do; and, thereupon, he was by order of that court, on March 15,1842, committed to the jail of said county, from which ^imprisonment he was discharged by the proceedings had before the complainant,, as set forth in the bill.
    “ Morgan was declared bankrupt in June, 1842, and George James-was duly appointed his assignee in bankruptcy. The notice of the filing of Morgan’s petition in bankruptcy, being a voluntary application, was, on May 7, 1842, for the first time, inserted in tho newspaper designated by tho district court for that purpose, agreeably to the rules in bankruptcy adopted by that court, which rulosare to be considered as in evidence. The petition for bankruptcy was filed before, and with the commissioner, May 3, 1840. The-defendant, Malinda Cooksey, is the only creditor who proved a claim before the complainant. No claims whatever have been proved before the commissioner in bankruptcy, or before any other-officer under the bankrupt act.
    “ Tho schedule in bankruptcy, and the insolvent schedule, are to-be considered as in evidence.”
    The case was argued by Jambs and Beard, for tho assignee in-bankruptcy, and by Goddard and Convers, in behalf of Malinda Cooksey.
   Read, J.

The chief question in this case is, whether the provision of the statute providing for the maintenance of illegitimate-children, comes within the operation of the general bankrupt law of the United States. Although tho point has been made in argument, we have decided this case without intending to express any opinion as to the constitutionality of the bankrupt act.

That law sounds in contract, and discharges only from obligations to pay money arising out of agreements express or implied,, on surrender of the property of the bankrupt.

The voluntary portion of tho act, in terms, extends only to debts-owing.

The payment of money, compelled by the statute, for the support of illegitimate children, is an enforcement of moral duty resulting from a wrongful act of the person charged. Not in *the nature of a debt owing, or due on contract. The putative father, under tho statute, is charged with the maintenance-of his illegitimate child, in such sum or sums, to be paid in such amounts, at such times, in such manner, as the court shall order and direct; and that he give security for performance, and that, on neglect or refusal to give such security, he be committed to the. jail of the county. The money thus to be paid and secured, is not a •debt due to the mother, or other person, but only a mere charge •of maintenance. If the child die, the obligation to pay ceases. It is not within the power of the mother to discharge the obligation. If she fail, even from shrinking delicacy to expose her guilt, to secure the child the maintenance provided by the statute, the overseers of the poor may. The statute has not left the performance ot this duty by the putative father, to depend upon the disposition of the mother to hide herself Irom the cruel scrutiny of a public •examination. It is intended not directly for her benefit, but that of the child, and to cast the duty of its support upon the father, ■and to prevent it from falling upon the public. True, the order ■of the court usually directs the money secured by the statute, to •be paid to the mother, and leaves its application with her. Sho may apply the money to defray her lying-in expenses, and to her ■own support whilst in charge of the child ; this e'omes within the ■meaning and spirit of the law, as the child’s nurture and sustenance depends mainly upon her.

It is contended that the prosecution under the statute is a civil proceeding, and therefore the money directed to be paid under it ■must be regarded in the light of a debt.

It is sometimes called a quasi criminal proceeding, that is, it'is the enforcement of a moral duty arising from a criminal act, not prosecuted under the forms of a trial for a criminal offense. The act of the putative father is a crime against the peace and good ■order of society, and when accomplished through the medium of seductive arts, involving the highest turpitude. The statute does ■not contemplate the punishment of the criminal act itself, but only the enforcement of the moral duty of maintaining the child, consequent upon the act. From the nature ^of the proceeding, therefore, it can not be argued that the money awarded is a civil ■debt.

It would be just as wise, and just as competent, to extend the ■operation of the bankrupt law to discharge a father from the support of his legitimate child, as to discharge the putative father from the support of his illegitimate child. The duty in each case in-morals, and by the law of nature, is of equal obligation. The only difference is, that the policy of the law for the welfare of society, has adopted a different mode in each case, to enforce the'same duty. In the one case, the law recognizes the relation of' parent and child, and enforces the duties of the parent, by virtue of the marriage contract: in the other, the law can not recognize the relation of parent and child through the marriage contract, but seizes upon the fact of parentage, and enforces the natural duty of maintaining the child, which, otherwise, under the general policy of the law, except for the statute, would be regarded as a duty of imperfect obligation. With equal sense it might be applied to discharge men from the support of their wives, and thus the bankrupt law, which was designed to discharge persons from obligations to pay money arising out of contracts, express or implied, upon the surrender of their whole property, that they might commence life, as it were, anew, having been lifted from beneath a hopeless weight of debt, and apply their future earnings to their own, and the support of their families, would be perverted to the destruction of the whole domestic obligations.

Whatever may have been some of its evil consequences, it was not the design of the bankrupt law to overturn all society by discharging men from the performance of those moral and natural duties which constitute the foundation of the whole social fabric.

The bankrupt law is not omnipotent to discharge all obligations to pay money of whatsoever character, but only such as arise out of contract, express or implied. Congress has no power to pass a bankrupt law for any other purpose, nor has it been attempted. *The punishment of crimes and offenses, the adoption of police regulations, the enforcement of moral and natural duties,, and the preservation of the domestic relations are inherent, sovereign state rights, not delegated to the general government. Within, their several territorial limits the states may adopt their own mode of accomplishing these several ends, violating no constitutional principle. They may declare penalties for offenses, for the' enforcement of moral and natural duties, for the preservation of the domestic relations, and direct1 their collection by action of debt. But because the money directed to be paid as a penalty may be denominated á debt, or be directed to be collected in-an action of debt, it does not come within the operation of the bankrupt power authorizing Congress to discharge the obligation. It is the nature of the obligation to pay the money, not the name of the obligation, nor the form or mode of collection, or enforcement, that determines whether it comes within the opera»* tion of the bankrupt law.

Morgan then not being discharged from the moral and natural duty enforced by the statute, of maintaining his illegitimate child,, the remaining question is, who has acquired a right to the money in the hands of the commissioner of insolvents?

Morgan applied for the benefit of the insolvent law of the state, prior to his application for the benefit of the bankrupt law. No other claim was presented or proven before the commissioner of insolvents, and none whatever before the assignee in bankruptcy;, indeed, the whole design of Morgan appears to have been merely to discharge himself from the charge of supporting his illegitimate child. The statute for the relief of insolvent debtors vested this whole claim, at the time Morgan applied for its benefit, in the commissioner of insolvents as trustee tor the benefit of creditors. Hence, there being no other creditors, the commissioner hold thin: money solely for Malinda-Cooksey, to be applied under the order of filiation. The bankrupt law not discharging this obligation,, and not superseding the state law, will not withdraw this money from the action of the state law, which had first seized upon it and appropriated it to be applied in discharge of an obligation *not within the operation of the bankrupt'law, and not discharged by it. It is true that when the bankrupt law comes legitimately in conflict with a state insolvent law, it supersedes it, and draws all moneys, claims, and rights to itself. But that is not this ease. In this case the bankrupt law has no application whatever, no power, no existence; the state law has full power, full force, and has seized upon the fund and vested it in the hands of the commissioner, to be applied under the order of the court.

It is therefore decreed that the money in the hands of the commissioner of insolvents be paid over to Malinda Cooksey, as ordered by the court of common pleas, for the maintenance of her illegitimate child. Decree accordingly.


author: Lane, C. J.

text:
    Harmon Wheeler v. Elijah Lucas.
    Where a plaintiff appellant does not recover more in the Supreme Court than he did in the common pleas, judgment must go against him for costs.
    This is a writ of error from Ashtabula county.

      Lucas sued Wheeler in slander. Ho recovered in the common pleas a judgment of four dollars. Ho appealed, and recovered a judgment, in the. Supreme Court, for $2.14. The Supremo Court adjudged that each party pay his own costs.
    Wade & Ranney, for plaintiff in error:
    The object of this writ of error is to reverse the judgment so far as the costs in the Supremo Court are concerned, and to have a judgment entered against the plaintiff below for all costs *that accrued in that court. It is only necessary to refer the court to section 126 of the practice act. Swan’s Stat. 683. It is provided, “that if the plaintiff appealing shall not recover a greater sum in the Supreme Court than in the court of common pleas, exclusive of costs and interest which may have accrued since the rendition of the judgment in the court of common pleas, he shall pay all costs that may have accrued in the Supreme Court in such case.” See also Waters v. Lemon et al., 3 Ohio, 72.
    No argument was submitted on the other side.
   Lane, C. J.

We think the judgment is erroneous. The statute regulating our practice, Swan’s Stat. 687, sec. 126, requires a judgment against a plaintiff for the costs of the Supreme Court, if he appeals, and recovers no larger verdict than in the common pleas.

The judgment of the Supreme Court will be reversed, and judgment hero entered, that the defendant recover the costs of the Supreme Court. Judgment accordingly.


text:
    Diantha Lincoln v. James Bishop, Jr.
    Application for a writ of error in term time must he made in court, and its allowance entered upon the minutes.
   Lane, C. J.

In this ease, a writ of error to the Supreme Court of Richland county was allowed, during the last term in bank, by two judges, at chambers. Under the act regulating our practice, such writ can not be allowed during term, except in court. Soon the circuit, where the Supreme Court is sitting in a county, a writ of error on a judgment in that county can not be allowed, unless made in court and its allowance entered upon the minutes. A case occurred some years since, *where, during the term in bank, an allowance was made, out of court, by the four judges, but was afterward dismissed for that irregularity. Ohio Railroad ■Co. v. State of Ohio, 10 Ohio, 360. Writ quashed.

Bartley, (or plaintiff in error.

Stewart, for defendant in error.