author: Judge Lane :

text:
    Lessee of Drake and Wife v. Ramsay and others.
    Conveyance made by infant feme covert may be disaffirmed, whilst action of ejection is not barred by the statute of limitations.
    This was a motion for a new trial, made by the plaintiffs, in an action of ej'ectmont. The cause was adjourned from the county of Hamilton. The facts are stated in the opiniqn of the court.
    Caswell and Starr, for plaintiffs.
    Storer, for defendants.
   Opinion of the court, by

Judge Lane :

*In 1795, Francis Kennedy contracted to purchase lot No. 406, in Cincinnati, into the possession of which he entered and. died. After his death, Symmes leased the lot to the widow for life, and conveyed the reversion to the children. Mrs. Drake is one-of those children, born in 1791, married in 1811, and attained majority in 1812. In 1807, the widow and children united in a conveyance of the lot to the defendants and those whose estate they held, but Mrs. Drake, if she then executed the deed, did not acknowledge it until 1809, when, having attained the age of eighteen, she acknowledged the instrument, probably under the' mistaken belief that she possessed the requisite power to convey. The lot was sold at its full value, and the whole was the subject of a family arrangement between the mother, the heirs, and the-guardians of such as were minors. By this arrangement, the evidence showed the mother was to have the use or interest of one-third the money during her life; that this sum was comprised in a note given to her by Anderson, one of the purchasers, the interest of which was paid to her until her death, in 1816.

After Mrs. Kennedy’s death, the heirs, including Drake and his-wife, met and divided her property, and appointed one of their number a trustee to collect the note from Anderson ; in 1818 and 1827, the trustee paid to Mr. Drake his share of the note, and took receipts which are severally stated to be in part and in full of Mrs. Drake’s share of Mrs. Kennedy’s estate.

It was shown, in proof, that Mr. and Mrs. Drake, at all times-since their marriage, have resided within eight or ten miles of Cincinnati. They have not been heard to complain of any unfairness in the sale, or even to speak of the transaction; except, that in 1827, Mr. D. being applied to for a release, declined, saying, “ he would look into the business.”

Upon this state of "facts, the jury were instructed by the court-to return a verdict for the’defendants ; to set aside which and obtain a new trial is the object of this motion.

It is conceded by counsel in this case, that the deed of Mrs; Drake, having been executed during her minority, is voidable, and that when she attained full age, she possessed *the power of resuming the estate. The questions which the parties intend to present, depend upon the effect and operation of deeds by infants, and the mode in which the law permits them to be rendered void.

What is necessary to avoid an infant’s deed? Chancellor Kent, 2 Com. 195, notices it as “remarkable” that so much uncortaintj/ rests upon this question at this day. That so late as 1818, thij present Lord Lyndhurst, and the present chief justice of thi¿ common pleas, while sergeants, conducting the case in 8 Taunt, 36, should treat the matter as so unsettled; one affirming tha/i every such contract binds the adult until avoided; the other insisting that no such contract possesses any validity, until after confirmation. The chief justice who tried the case, treats the contract as valid, until some act of disaffirmance is shown, but other cases seem to be decided on the supposition that until affirmance, the contract is void. Co. Lit. 51; 1 Greenl. 11; 11 Johns. 539; 14 Id. 124; 11 Serg. & Rawle, 305, cited by Kent, ut supra. But to us it appears, that the word voidable, ex vi termini, shows that such a deed transmits the title; and that after vesting it, it continues in the grantee until divested by some act of the maker of tbe deed. Some oí the books apparently suppose that the act of avoidance must be of equal solemnity with the act of grant. 4 Day, 51; 14 Johns. 124. But I can not find it to be expressly decided, except'in case of feoffments, where a peculiar feudal principle renders it necessary; we believe that an entry, suit, or action, a subsequent conveyance, an effort to restore parties to their original condition, or any act unequivocally manifesting the intention, would render the avoidance effectual, and that the institution of, ^this suit is an act fully possessing this character.

But it is strenuously urged that the power of disaffirmance must be executed in a reasonable time,” in some short period after the infant becomes of age. The- eases cited, do not appear to us to establish this proposition, nor do we believe it supported by any sound reasons. The power to rescind contracts at law and chancery from the omission of one of the parties, strikes us as not analogous to this; there the contract is already void, if the party elect to consider *it; here it is not void, until made so by the act of the party. The right to abandon in cases of insurance is regulated by mercantile securities, and governed by rules peculiar to itself. The ease of Cecil v. Salsbury, 2 Vern. 224, related to a power to retract an offer, which must have been exorcised during 'the pendency of a suit, and was accompanied with acts recognizing the offer after the infant attained age. The-case in 2 Term, differs from the present in this, that it is the example of a privilege, not created by law, but originating in contract, to be •exercised on, not after, he attained full age. And in the case, 6 Com. 498, so strongly relied upon by the defendants, we find, if we may trust to a digest (for the original is not now accessible to us), that thirty-five years had elapsed from the making of the •deed to the attempted avoidance; a period longer than the statute of limitations, and of itself sufficient evidence of confirmation, without adverting to other circumstances connected with the possession of the note for‘the purchase money. In our opinion, lapse of time may frequently furnish evidence of acquiescence, and thus confirm the title, but of itself, does not take away the right to avoid, until the statute of limitations take effect. In this position we are countenanced by decisions of the most respectable courts. In 11 Johns. 539, twelve years; in 14 Johns. 124, eleven years had •elapsed from the time of the sale; in 4 Day, 57, fifteen years had •expired; and in a case reported in 3 Marsh. —, the term of twenty-eight years intervened before the deed was avoided.

We are, therefore, led to the conclusion that since the statute of limitations does not yet operate, the plaintiffs possess the right to disaffirm the deed of Mrs. Drake, unless they have extinguished this privilege by something amountiug to a confirmation. I am prepared to admit this effect may follow, either an express recognition of the validity of the deed, or from any act done undér a knowledge of their rights, which demonstrates a willingness to be bound by the contract; or by continuing, after acquiring such knowledge,' to enjoy any benefit, profit, or privilege, under the contract, after the infant has attained full age.

*But I look in vain, through this transaction, for evidence of any such assent. There is no satifactory proof that Mrs. Drake was apprised of her rights that she know she possessed the power to disaffirm; but the testimony raises the suspicion that she believed she was bound to convey, because it was said the land was sold by order of court. Besides,'she has at all times been under such disabilities that no binding ratification could be made except by deed. It does not appear that Drake knew his wife was ever a proprietor in the lot; the receipt of his share of the purchase money happened long after the sale, when the debt was embodied in the note from Anderson to Mrs. Kennedy, to which his wife was entitled as heir ; and neither his receipts, nor any other act in proof, lead to the belief that he knew from whence it arose, •or that he claimed it in any other character.

Kew trial granted.


source: Caselaw Access Project

author: Judge Wright

license: Public Domain

text:
    William Fleming and others v. James T. Donahoe and others.
    Previous to the statute of frauds, enacted in 1810, a trust might be created in real estate by parol, and established by parol evidence.
    Case upon facts.
    This ease was adjourned from the county of Hamilton. It was a bill in chancery, claiming to set up a trust in a deed of conveyance for real estate. The case made in the bill is this: Robert Fleming, the ancestor of the complainants, in 1808 held the equitable estate in a lot in Cincinnati, the legal title being in John Cleves Symmes, who, by the direction of Fleming, conveyed the lot to his daughter Mary. The bill set forth that Mary was a cripple, that the conveyance to her was a trust for the use of herself and father during his life, and'if she survived, for her use during her life. The father died in 1815. Mary married Donahoe and had a living child, which died a few days old. In 1820, Mary Donahoe herself died. The trust attempted to be set up existed altogether in parol. One of the defendants demurred, others answered denying the original creation of *the trust. Contradictory testimony was taken, and the cause came to be heard on the demurrer as to the defendant that demurred, and as to the other defendants, on the answers and proofs.
    Storer and Fox, for complainants.
    N. Wright, for some defendants; V. Worthington, for some, and' Caswell and Starr, for some.
   Judge Wright

delivered the opinion of the court:

The counsel for the complainants urge, in support of the bill: That inasmuch as it is admitted by the demurrer that the elder Fleming paid the purchase money for this lot and took a deed to his daughter Mary, and so vested in her the fee, that a trust resulted to her father.

It is a general rule that when a father purchases land and takes a deed to a child, it is prima facie an advancement to the child, the law presuming such to be the intention of the father. But this presumption may be rebutted, and wherever it expressly appears that the parent intended that the conveyance should not bo considered such, then the child takes a trust estate. 2 Mad. Ch. 112; 2 Johns. Ch. 51; 11 Johns. 107. The declarations of both the father and daughter set forth in this case are, perhaps, sufficient to rebut the presumption of law, that the conveyance to Mary was an advancement by her father.

But is there a resulting trust springing out of the facts set forth? If one pays the money for land purchased and takes a deed to another, a trust results, by implication of law to him who paid the money, because he is deemed the real purchaser. Thin is analogous to a feoffment at common law, where the use followed,the consideration. 2 Atk. 150; 3 Stark. Ev. 1040. Where-an estate is purchased in the name of A., and the consideration money is actually paid at the time by B., there is a resulting-trust in favor of B., provided the payment of the money be clearly proved. The payment of the money at the time is indispensable-to the creation of the trust. 4 Kent’s Com. 300, and the cases *there cited. Lord Hardwick said, that a resulting trust arising by operation of law existed: 1. When the estate was purchased in the name of one person, and the consideration came from another. 2. When a trust was declared as to part, and nothing said as to the residue, that residue remaining undisposed of remained in the heir at law; and he observed that he did not’ know of any other instances of a resulting trust, unless in cases of fraud. 4 Kent’s Com. 300; 2 Atk. 71; 1 Johns. Ch. 582; 2 Johns. Ch. 405; 5 Johns. Ch. 1; 3 Lit. 399; 1 Cruise Dig. 311; Sug. Vend. 443.

To apply these authorities to the case in hearing, it is obvious that a resulting trust must arise, if at all, at the time the conveyance is made, and be certain. What is the state of things here ?' There is no pretense that those who seek to set up this trust ever-paid any money. Instead of a resulting trust the bill seeks to-make an estate for life to one with a remainder for another. The-trust set up in the bill is uncertain, contingent, complicated, and difficult to enforce ; one partly for the benefit of the grantee, and* partly for the benefit of some of the other children, in unequal proportions. A slight variation in the testimony of the witnesses, introduced to prove the trust, might either give the estate to the-two children who survived Mrs. Donahoo, or to such only as survived the father, or to all the heirs of the father. This case-made shows almost anything else than a resulting trust. Indeed the bill itself rests the claim of complainants on the express' declaration of the parties and their understanding at the time the deed was executed.

Does the bill, then, show a case of express trust, of a kind to let in proof, to sustain a decree for the complainant? If it does, it will be sufficient on the demurrer. We are of opinion it does. Proof may be introduced under the bill which might entitle the-complainants to relief.

Another question arises on the ease made. Can a trust in lands-be created by parol, and proven by parol under a conveyance prima facie absolute? It is conceded, as a general principle, that a deed or written contract can not be varied by parol. But is this a case of that kind? The object of the conveyance is not intended to be expressed in the deed. The grant and consideration is only set forth. *No rule of the common law prohibited the creation of a trust by parol. No particular form of .words were necessary to create a trust. It was only necessary to express the interest of the party creating the trust. Such a trust was not ■ considered as varying the terms of the deed, but as setting up an independent contract consistent with it. The practice to go back of the deed to ascertain the real consideration paid is of every • day’s occurrence, and is familiar to all. Before the statutes of frauds and perjuries in England, unwritten contracts touching lands were enforced both at law and in equity. And after the passage of the law, contracts made before were enforced. 2 Showers, 17; 7 Johns. 434, 496; 2 Hayw. 131. The statute of frauds in Ohio was passed in February, 1810. The deed.in this case was executed in 1808. At that time there was no law in Ohio prohibiting parol contracts concerning lands or the creation of trusts in them. It is true at no time could á legal estate in lands in Ohio pass by parol. The creation of a trust in an estate passed by deed, does not conflict with this position.

If we are correct in these views, the demurrer must be overruled.

. The complainants requested us to look into evidence and decree on the merits, if the" demurrer wer.e overruled. We have done so. Cornelius Johnston heard both father and daughter say the deed was made to her because she was a cripple, and he wanted to place her above dependence and want during her life, and that at her death the property was to go to all the children except William. John Cummins heard both say the lot was deeded to Mary because she was a cripple, that she was to hold for life, and . at her death it was to go to such of the children as were not provided for by the father in his lifetime. James Wilson heard the father say Mary was to have the lot for life because 'she was a • cripple, and to prevent its being spent by the family. J. L. Wilson was called to write the old man’s will, when the old man said he ¡left Mary nothing because she was provided for, as she owned the dot. Henry Shane bought part of the lot, and the old gentleman told him frequently and in the presence of the daughter, she was the sole owner, *and he bargained with her and paid her for the part bought. James E. Miller heard the daughter say she held the lot for life, and at her death it was to go to certain heirs, not recollected. Mary Merrel heard her say that her father' deeded to her because she was a cripple, and he wished to afford her a home during her life, not expecting she would ever marry; that she was to have it during her life, and at her death to go to-the heirs. Jane Fleming says it was pretty much understood in the family that the lot was given to Mary because she would never marry or have children, and at her death it was to go to her brothers. Elizabeth Lanphear understood the deed was made to-Mary because she was a cripple and she was to hold it for life. This is all the evidence tending to prove a trust or its extent. "Which of these various declarations are we to take as true?' They are all declarations made long after the deed, and shed little light on the real transaction. No certain trust can be deduced from it. It is probable the whole talk about the rights of any after the death of Mary Fleming rested on the expectation that she would remain single and die without issue, or having conveyed.

The bill is dismissed at complainants’ costs.


author: Judge Hitchcock

text:
    Joseph Powell v. Andrew Harter.
    General issue and special pleas, verdict on the general issue only erroneous..
    This was a writ of error, adjourned here from the county of Delaware. The original cause was assumpsit. They pleaded nonassumpsit, and two special pleas of the statute of limitations, upon which issues were taken. The damages claimed in the declaration were eight hundred dollars. The jury found the first issue •for the plaintiff, and'assessed the damages to eight hundred and fifty-three dollars seventy-five cents. The verdict was silent as-to the special pleas. Judgment, in the common pleas, upon the verdict, for the plaintiff, to reverse which the writ of error is-brought.

      *G. Swan, for plain-tiff’ in error.
    Parish, for defendant in error.
   Judge Hitchcock

delivered the opinion of the court:

Two errors are assigned in this case, to which the attention of the court has been turned:

1. That the jury did not find all the issues joined and submitted 'to their consideration, notwithstanding which the court rendered judgment upon the verdict.

2. That the damages demanded in the declaration are eight ■hundred dollars, and verdict and judgment for a greater sum, to ■wit: eight hundred and fifty-three dollars seventy-five cents.

The question arising under the first error assigned has been determined in the case of Hanly et al. v. Levin, and it is unnecessary again to consider it.

The judgment being for a greater sum than the damages demanded in the declaration is undoubtedly erroneous. If there were no other error in the case this court might, perhaps, after reversing the judgment, enter such judgment as the court of common pleas ought to have rendered. This would be done, however, only upon condition that the plaintiff below remits the excess in the verdict. It would be useless to do it in the present case, as the first error assigned is fatal, and that defect would not be cured.

The judgment must be reversed.


text:
    Miami Exporting Company v. Bank of the United States.
    Interest on money. Rule for calculating it in a particular state of accounts.
    T-his is a bill in chancery, to have an interest account between the parties, and was adjourned for decision from the county of Hamilton. The case is stated in the opinion of th,e court.
    *N. Wright and Y. Worthington, for complainants.
    Caswell and Starr, for defendants.
   Judge Hitchcock

delivered the opinion of the court:

The only question which we are called, upon to decide in this case, at the present time, is as to the mode of computing interest. From an examination of the books it is manifest that different modes of computation are adopted in the different states, and the rule generally adopted by a state is sometimes varied to meet the equity of a particular case.

It is a principle of law that interest shall not be compounded. It is somewhat difficult, however, I might say impossible, where payments are made at different times, to establish a mode of co‘mputation in which, if justice is done to both creditor and debtor, there will not be, to some extent, a compounding of interest. This consequence must be. avoided as much as possible. The present case does not require of us to establish a general rule, and we refrain from doing it.

The facts of this case are simply these: On November 30,1819, a liquidation of accounts took place between the plaintiffs and defendants, when a balance was found due, from the latter to the former, of throe hundred and four thousand and fifty-four dollars forty-five cents, including forty thousand six hundred and nine dollars seventy-three cents interest. On October 4,1820, plaintiffs proposed to pay this debt in eight annual installments, with interest on each installment as it should fall due; the interest to be computed-from December 1, 1818, and the first payment on December 1, 1823. This proposition was agreed to, and eight notes were executed, each note, except the one which would fall due on December 1, 1830, for thirty-eight thousand dollars, and this latter for thirty-eight thousand and fifty-four dollars forty-seven cents. These notes are severally made payable on or before the first days of December, 1823, .1824, 1825, 1826,1827,1828,1829,1830, and all were on interest from December *1, 1819. Large payments were made on these notes in 1821 and theyoarfollowingj'and the whole amount which had been paid was paid before the notes severally became due. On the part of the defendants, it is insisted that inasmuch as these notes were payable on or before a particular day, and payments were made before that day, they have the right to compute interest upon the principal sum up to the time of payment, add the two together, and deduct the payment, and so on, from time to time, as payments were made. Had the interest been due when the payments were made, this rule would not be so objectionable, although we are not prepared to say it would be correct.

In support of the principle contended for, the defendants’ counsel cite 8 Serg. & R. 378; Wash. C. C. 92; 17 Mass. 417; 1 Johns. Ch. 13; 2 Johns. Ch. 209, and a number of other cases. In all these casos I apprehend it will be found that none of the payments-were made until after the debt was due; at least the contrary does not appear to have been the fact. The cases in Sergeant & Rawle, and the one in Washington, are upon judgments. In the case before the court no interest was demandable until the notes themselves became due. To adopt this rule, then, would be doing' injustice to the plaintiffs. It would be charging them with interest before they could be called upon for either principal or-interest.

To adopt what is called the commercial rule would be equally unjust to the defendants. There would not be the same injustice in this case, it is true, that there would be where the payments-had been long delayed and the debt had been even due for a great-length of time. In such case, it might so happen that the payment of interest alone would discharge both principal and interest. The-case cited from 1 Dallas seems to recognize this principle. But it must be remembered, that the notes here were payable on or before a certain day. Although the defendants could not compel payment before the day, yet the plaintiffs might pay before that time and the defendants might be compelled to receive it. They could only be compelled to receive it upon the hypothesis that full payment was made, not only principal but interest. If, then, par- • tial payment only is *made, it would seem to be but just that this partial payment should apply as well to interest as principal..

We have found but one case reported similar to the one now before the court. This case is reported in 3 Cowen, 86. The court say: “Payments made on an installment not due and payable, should be applied to the extinguishment of principal and such proportion of interest as has accrued on the principal thus-extinguished.” For instance, a bond or note is given for the payment of one hundred dollars on or before the termination of one year. At the end of six months a payment of fifty-one dollars fifty cents is made. This is not applied to sink the principal to-forty-eight dollars fifty cents, but the one dollar fifty cents is applied to the interest of fifty dollars for six months, and fifty dollars to sink so much of the principal. At the end of the year there will he due fifty dollars of principal, and the interest on that fifty dollars for one year. This rule of computation is one which, we think, will do justice to the parties litigant in the case now before ihe court. The case will, therefore, be referred to a master to state an account upon this principle.

It is claimed, however, that the case in 3 Cowen is overruled by a case reported in the ninth volume of the same work. By reference to the case in 9 Cowen, it will be found that the decision reported was made by a circuit judge, and we do not readily perceive how such a case can be claimed as being of more force than a decision made by the Supreme Court of the state.


author: By the Court:

text:
    *Wm. Greene v. Graham and others.
    Land purchased with partnership funds and title taken to partners. One dies: Held, that the land was held as tenants in common, and the part of the deceased descended to his heirs, and, being sold under order of court,, purchaser is entitled to partition.
    ■ This case was adjourned from the county of Hamilton. The case is stated in the opinion of the court.
    Fox and Storer, for complainant.
    Haines, for defendant.
   By the Court:

This is a bill in chancery for a partition. The case made is this: Lot Pugh and his son were partners in trade, and purchased the lot in question with the partnership funds, and took a conveyance to the two. Pugh the elder having deceased intestate, his heirs at law released their interest to the son. The personal estate of Pugh the elder being found insufficient to pay the debts, application was made by his administrators to sell his undivided interest in the land in question, to raise a fund to pay the debts, under the statute of Ohio. On this application a sale was made to the complainant, which has been confirmed and a deed made. He now seeks partition. It is objected that partition can not be ordered, because this property, being purchased by the partnership funds, is partnership property, and is not liable to the individual debts of Pugh the elder*. We think these partners took this property as tenants in common, and that the interest of the ■elder Pugh descended at his death to' his heirs at law, subject to 'the right of his administrators to dispose of it, under the law, to pay his debts. No objection is made to the regularity of the proceedings by the administrators, or the sale or conveyance to the -complainant. He appears to us to have a legal estate. It is not with the defendants to avoid a partition by setting up a possible claim in the creditors of the copartners. We do not decide upon their claims, if they have any; but we leave tl}em, if there are -any, to assert their own rights.

The partition is ordered to be made by three commissioners, to report to the next term in Hamilton county.


text:
    *Graham, for use of Barr and Lodwick, v. Bank of the United States.
    Where party bids in property on sale or execution to'protect a previous purchased title, third persons interested may consider the bid as money in the party’s hands, and hold him accountable in an action for money had and received.
    This cause was adjourned here from the county of Hamilton. It was an action for.money had and received, in which a verdict was found for the plaintiff for six hundred ninety-one dollars forty-two cents, and the defendant moved for a new trial. The state of case was as follows: One Shipley recovered a judgment against Graham, in whose name this suit is brought, June 21,1821, for three thousand six hundred and ninety-eight dollars seventy-seven cents. As collateral security for the payment of this judgment, Graham assigned to Shipley two judgments, one against one Snyder and another against one Schenck. In October, • 1826, Shipley received on the judgment against Schenck one thousand one hundred and eighty-eight dollars twenty-three cents. In October, 1828, he assigned to the Bank of the United States his judgment against Graham, and the two judgments held as collateral security, the bank being distinctly informed in what right and character Shipley held the judgments against Schenck and Snyder. Execution on Shipley’s judgment against Graham had been levied on certain lots, which, after the purchase by the bank, were sold by the sheriff and bid off for the bank for three thousand one hundred and twenty-nine dollars forty-five cents, which sum the sheriff returned as made, and the court ordered a deed to the bank, which was executed by the sheriff. In September, 1829, the bank received one thousand seven hundred dollars on the judg-ment against Snyder, assigned by Shipley in the manner stated. The amount received by Shipley from Schenck, and the amount received by the bank from Snyder, with the amount bid. for the property seized on Shipley’s execution against Graham, exceeded the whole amount of Shipley’s judgment six .hundred and ninety-one dollars forty-two cents, for which the verdict was rendered, and to recover which the suit was brought, Barr and Lodwick having purchased from Graham the residuum in these claims remaining mfter Shipley’s judgment was satisfied.
    *In March, 1826, Graham and wife conveyed to the Bank of the United States a great variety of real property under various stages of incumbrances, among the rest the property upon which Shipley’s execution was.levied in payment of debts due from Graham to the bank. Shipley’s judgment, with the collat-eral security judgments, was purchased by the bank, to aid in protecting the title purchased from Graham. For that purpose the sale on Shipley’s judgment was made, and the property bid in by the bank. No money was in fact paid to the sheriff, the bank being the only party interested, and the property sold having been previously purchased for the bank, subject to Shipley’s execution. The question for decision was, whether upon this state of facts the plaintiff was entitled to recover.
    V. Worthington and N. Wright, for plaintiffs.
    Caswell and Starr, for defendants.
   Judge Wright

delivered the opinion of the court:

It is urged in favor of a new trial that the three thousand one hundred and twenty-nine dollars forty-five cents ought not to have been considered as money in the defendant’s hands, because no-money was in fact received, nor was that sum the price of the real estate acquired by that sale; that the party acquired no title-by the purchase, and the sale divested Graham of no interest, the object of the bank being to protect the title acquired from Graham by the deed in 1826 against the claims of others. If it were-necessary to consider the question whether anything short of the actual receipt of money would sustain the action for money had. and received, we should find little difficulty in deciding that that-which was equivalent to money, or had been available to the-party as such, would sustain the action. In our view of the case that question can not arise. If the plaintiff Graham had a right to a credit on the judgment against him for the amount bid by the bank, receipted for by it as money, and returned by the sheriff as so much made on the execution, then the six hundred and ninety-one dollars forty-two Scents received in money from Schenck on the judgment in favor of Graham, beyond what was due the bank, is so much money actually received to the use of the plaintiff.

But it is said this credit ought not to be allowed Graham: 1. Because it was not available to the bank. 2. Because it only perfected the title to the land conveyed in the deed of 1826, and. the • party is estopped by that deed from setting up that claim.

Why was this not available to the bank ? It was perfectly acquainted with the situation of the judgments and land when it took the deed and the assignments. The release gave to the bank the land subject to all the incumbrances. With full knowledge of its rights it availed itself of the execution- for the purpose, as-proved and even now claimed, of perfecting and disincumbering the titl e. It placed the incumbrance in the market, and in the competition of an auction, valued and bid it in at the price named. If any other person than the bank had bid in the land, no one would have questioned the right of Graham to the avails of it. Without applying to the court issuing the execution to set aside the sale for any reason -whatever, the bank holds the deed as essential to its own title, and asks to be permitted to look back of its - receipt and the return of the officer, and to consider the judgment-■open, so as to enable it to collect of the collateral security nearly ■seven hundred dollars, more than sufficient to satisfy the judgment, and to hold it free from accountability ! If the incumbrance had been a mortgage, would not the bank have been bound to satisfy it; and having done so, could it call upon Graham to refund? Neither will be pretended. Suppose the bank the trustee of Graham, and this suit a bill for an account, would not equity compel an account? Perhaps some other person actually bid on the property within one dollar of what the property was struck off at, and was only deterred from the purchase by the conviction of the determination of the bank to buy, and the utter hopelessness of the competition. There is no claim of mistake, or of misrepresentation by Graham to induce the purchase. The whole transaction originated with the bank for its own benefit. Conceding, then, to counsel that, in this action, the plaintiff only recovers what *in equity and good conscience he has a right to, it seems to us he has such right to the verdict on the case made. Does the deed operate an estoppel? It contains no covenant of warranty, and even in a suit at law would not be construed to estop the party. But considering this suit as a bill inequity, how does it comport with the principles which govern courts of equity to set up an estoppel ? The charge to the jury was the most favorable for the defendant. The jury were instructed to inquire if the purchase had availed to the bank the amount of the bid, and if not, to deduct the deficit from the sum received from Schenck. They have found that the bid availed the bank to the .full value. If there was an error in this chai-ge, it seems to us the bank can not complain of it. The charge is not, however, objected to. In our opinion the verdict not only accords with the law and evidence, but with the justice and equity of the case.

Motion for a new trial overruled.


author: By the Court :

text:
    James McMillen v. State of Ohio.
    Indictment for having in possession counterfeit blank bank notes must specifically describe them.
    This was a writ of error to the court of common pleas of Hamilton county, allowed on the 10th of December, and made returnable to the court in bank. The plaintiff in error has been convicted, with William Stephens, upon an indictment in these words-' “ That the said William Stéphens and James McMillen on February 14, 1831, with force and arms, at the township of Delhi,, in the county of Hamilton, did feloniously have in their possession two hundred counterfeit bank notes not filled up, and the signatures not being thereto affixed, which counterfeit bank notes were intended to be filled up with forged writing and signatures, in imitation of the true and genuine bank notes, of the president, directors, and company of the Bank of the United-States, given for the payment of ten dollars each, the said W. Stephens and J. McMillen, then and there having said counterfeit bank notes in their possession for *the purpose of disposing-of the same with a fraudulent intent, contrary to the form of the statute,” etc. '
    Error assigned, that the papers charged to be bank notes in? blank, ought to-be more specially described and set out in the indictment.
    G-. Swan, for plaintiff in error.
   By the Court :

An indictment for forgery must describe the instrument alleged to be forged specifically. In an indictment for larceny it is enough to set forth that bank notes of a general description, to a specific-amount in value, were stolen. It is not the specific character of the notes, but the theft, that constitutes the essence of the crime. In a prosecution for forgery it is different. The forged instrument must be set out, that* the court may determine advisedly whether the fabrication of it,constitute the crime inhibited by the-law. All the precedents are so, and so are the authorities. 6 Term, 162; 1 East, 180; Arch. C. L. 19. The judgment must be reversed.


text:
    H. Bittle, Supervisor of Highways, v. James Hay.
    Where supervisor sues for penalty for obstructing road, there can he no judgment against him for costs; in such case, appeal lies from judgment of justice to the common pleas.
    ■ This cause came before the court upon a writ of error to the common pleas of Hamilton county.
    The plaintiff in error, in his character of supervisor, brought a suit against the defendant for obstructing a highway. The justice gave judgment for the plaintiff for two dollars penalty and costs. The defendant appealed to the court of common pleas, where the appeal- was sustained, and, upon trial, a verdict was found for the-defendant, and judgment given that he recover of the plaintiff his costs. To reverse this judgment the writ of error was brought. The errors assigned were: 1. The general *error. 2. That the court of common pleas had no j urisdiction. 3. That the suit, was originally commenced before a justice of the peace, from/ whose judgment the law gave no appeal.
    Storer and Fox, for plaintiff in error.
    Este, for defendant.
   By the Court :

The law in force when these proceedings took place, indeed, it is not essentially different now, directs that the supervisor shall' collect, by suit, all fines and forfeitures accruing for violations of the law regulating the opening of roads, unless the collection of the particular fine is otherwise pro vided for. The section under which the action is brought subjects the person who obstructs a public road to not less than two, nor more than ten dollars penalty, and authorizes a supervisor to sue for and recover the amount before any justice, unless some other person may have sued for and recovered the same. The judgment we are asked to reverse is for the defendant, and awards against the supervisor that he pay the costs. In respect to the costs, this is erroneous. Section 66 of the judiciary act of February 18, 1824, vol. xxii., provides for the case, and under it the judgment for costs must be reversed.

Upon full consideration, we think the appeal from the judgment of the justice to the common pleas was well taken by the •defendant. The judgment of that court should have been for him, but without costs. It must be reversed as to costs, and affirmed as to the residue.


text:
    *Henry Arnold v. Jonathan Flattery.
    "What sufficient proof to sustain a road laid out and used for many years.
    This cause was adjourned from the county of Fairfield. It was an action of trespass, in which a verdict was found for the defendant, and a new trial moved for, upon the ground of the admission of irrelevant testimony. The following state of facts was agreed by the parties:
    The declaration in this ease, lays the trespass to have been committed on the southwest quarter of section No. 1, township 15, range 19. The plea alleges that the defendant was a supervisor of a certain highway passing through and upon said tract of land, and that he entered upon- the same, within and upon said highway, in the lawful discharge of his duty as supervisor, to repair said highway, and that he committed no unnecessary injury, etc. Replication : That there was not a public highway passing through and upon said tract of land, leading from Lancaster, in said Fairfield ■county, to Granville, in the county of Licking, as alleged in the j)lea, etc. Upon which the defendant took issue.
    Upon the trial, the defendant offered in evidence, a book styled, “Records of Roads — Fairfield County;” admitted by the plaintiff to be the record book of roads for said county, containing the following entry:
    “ To the honorable commissioners of Fairfield county, now sitting in the town of Lancaster, June session, 1806 : We, the persons appointed by order issued out at November session, 1805, to view and survey a road from Mount Yernon, on Owl creek, by Gran-ville, on Licking, to Lancaster, do report that, in pursuance of the said order, we have viewed, surveyed, and do now return for public use, the same; the courses and distances are as follows, to wit: from the south end of Market street, in Mount Yernon, thence” .(here follow the several courses and distances to the termination of the road), “at the north end of Second street, in the town of Lancaster,” to which are appended the following names: James Wells, Moses Powell, Robert McCleland, viewers; Thomas Cissna, ■surveyor.
    *Then follows a-draft or plat of a road from Mount Yernon, •on Owl creek, by Granville, on Licking, to Lancaster, and also the following entries:
    “Recorded, May 21, 1816. Michael Garaghty, secretary to commissioners.”
    “ These certify that the above draft is agreeable to the courses .and distances expressed in the foregoing report. Thomas Cissna, surveyor.”
    The defendant further gave in evidence, by parol, that he was supervisor, etc.; that upward of twenty years ago, a road was laid out by the above-named viewers and surveyor, which road after•■•~rard was known by the name of the Granville road, leading from Lancaster to Granville; that the road so laid out passed along the western boundary of said quarter section, and partly on that adjoining.
    After the record was read to the jury, and the parol testimony aforesaid was given, the plaintiff moved the court to overrule the admission of the record, unless accompanied with other documentary proof of. the petition for the road, the appointment of the viewers, their report, and the proceedings of the commissioners confirming .and establishing the road, etc. But the court allowed the evidence to go to the jury, with leave to the plaintiff to move for a new trial, in case the verdict should be against him; and instructed the jury that the record offered was of itself sufficient proof of the establishment of the road. Other evidence was offered by the plaintiff, tending to prove the trespass to have been committed on parts of the land different from that upon which the road was laid out, as proved by the parol evidence. But the court overruled -the evidence, as being inadmissible under the issue.
    It was also proved that the road laid out as aforesaid was subsequently opened and used; but that at or near the corner of said tract of land, the road as opened, instead of passing along the line of the land, as laid out, diverged, and passed angularly through it; that the road thus opened-was used for a number of years, and improved as a public highway, during which time the land remained unimproved; that subsequently the plaintiff entered upon the land and made an inelosure, including that part through which the road *passed, as opened, at the same time opening a passage for public use along the line where the road was proved to have been laid out. Also, that the defendant afterward, as supervisor, entered upon the line of the road as first opened, and removed the fencing by which it had been shut up, which was the act of trespass for which the suit is brought.
    H. Stanbery, for the new trial.
    H. H. Hunter, against it.
   By the Court :

Where a road has been laid out in the manner jirescribed hy law, opened and used many years, it can not be allowed that it shall be suddenly closed by any individual through whose land it passes, on the hypothesis that the road used does not exactly follow the courses and distances of the recorded survey. Nor can it be required, after the lapse of many years, that-to sustain a public road every preliminary step directed to be. taken in establishing it must be proven by existing papers or records. In this case the court admitted the record and parol proof of the opening and using the road. The record was admitted to establish the fact that the road had been applied for and ordered; the proof of the opening and use, to show where it was actually opened and used. We think that in this there was no error. A new trial must be. refused.


author: *Judge Lane

text:
    A. Baldwin v. Western Reserve Bank.
    Where, after judgment against principal and sureties, the surety requests the-creditor to give the principal time, he can not be relieved because time was given.
    This cause was adjourned from the county of Trumbull. The-case is stated in the opinion of the court.

      Yan R. Humphrey, for complainant.
    Whittlesey and Newton, and Pease, for defendant.
   *Judge Lane

delivered the opinion of the court:

In 1818, Norton borrowed about eight hundred and fifty dollars from the Western Reserve Bank, for the payment of which he-procured Baldwin and Wheaden his indorsers.

Judgment was recovered in 1819 against Norton and his indorsers, in three separate suits, executions for which were in the hands of the sheriff in February, 1820. These several executions-were stayed by the agent for the plain tiff. On the 3d of May a conveyance of real estate was made to Perkins. On June 5, 1820, he executed a writing in the nature of a declaration of trust, in which it was agreed that if the title should prove good no further steps.should be taken to enforce collection until the land should be sold and the avails applied in payment, and tha't no sale should be-made" if Norton should pay one thousand dollars per annum:

The arrangement made in this wise was calculated to embrace the security, not of this debt only, but of another debt of Norton, of about three thousand dollars, on which Whittlesey and Remelewere indorsers.. If Norton should pay the one thousand dollars per an,num, the share of that debt to which Baldwin and Wheadenwere indorsers, which would be extinguished by it, would be about three hundred dollars per annum.

The matter rested in this situation until 1827, when the bank, brought their sci.fa. to revive the judgment against Baldwin and Wheaden, Norton having died in the interim. To enjoin this and. all further proceedings on the judgment, Baldwin and Wheadenhave brought these separate suits in chancery, claiming a discharge from liability and the entry of satisfaction, because time-has been given to the principal without their consent.

That time was given is not a matter of dispute. This suit was reserved under the impression that it presented the question whether, after the judgment against the surety, his relation, as-surety, does not cease, and his claims upon the creditor, arising-from such relation, are not extinguished.

But the question does not arise here. In February; 1820, whilestthe executions were in the sheriff’s hands, a letter was written by complainants to the bank, asking a stay of the execution! against them, and using this language: “Wewould hope, at least, that Judge Norton might, with his property, pay what was mentioned or expected, viz: fifty dollars every sixty days, for one year, or to that amount; or whatever it might be, we wish he might do.”

In our opinion this letter plainly shows a request by the sureties to pursue the property of Norton as far as it could be made available; that some arrangement had been contemplated between .all concerned, by which Norton could pay three hundred dollars in one year, which these sureties desired to carry into execution. These terms necessarily imply a suspension of the existing process against the defendants, and the extension of credit to Norton •for some of the debt for a period longer than a year.

These conditions seem to be met by the proceedings in May ■and June. All Norton’s real estate was taken by the deed and . appropriated toward the payment of his debts, and the present plaintiff’s liabilities were provided for equally with Norton’s other indorsers. The evidence leads us to believe that this was the arrangement into which the plaintiffs desired the defendants to enter; the suits, therefore, afford no reason to raise the question intended to be reserved in this case.

The bill, as framed, rests the claim for relief upon the position ■that the defendant gave time to the principal without consent of the sureties. In this aspect there is no dase made for relief upon the facts; but as the facts show a trust fund created and an agreement. that steps should not be taken to collect the debt until the trust fund was exhausted, we are content to retain the bill, to in-quire into the condition of that fund, and appropriate it to satisfy the just claims of all the parties.

Judge Hitchcock, being a stockholder in the Western Reserve .Rank, did not sit.


text:
    *Petatiah Bliss v. David Long.
    Bond, on appeal, must he for double the amount of debt and costs in the common pleas. Costs taxed against the appellant are not to he included.
    This case was adjourned from the county .of Cuyahoga. No-arguments were submitted.
   Judge Wright

delivered the opinion of the court:

During the trial of this cause, after part of the evidence had! been given to the jury, the plaintiff, who was the appellee, discovered that the bond given oh the appeal was not in double the-amount of the judgment in the court of common pleas, and moved to quash the appeal. The court on the circuit have frequently decided that to perfect, an appeal under our statute required a bond in at least double the amount of the judgment. XJpon the-authority of these decisions the court quashed the appeal, but gave-the appellant leave to move to reinstate the cause, which motion-being made was removed for decision here. The majority of the court are disinclined to disturb the construction which has been given to the act of the legislature regulating appeals. The penalty of this bond is not in double the amount of the judgment below for damages and costs. It is urged in support of the motion, that the penalty of the bond is large enough to cover twice the amount of the damages and the costs properly taxed against the defendant, and a cost bill is presented, certified by the clerk of the common pleas, which shows the amount of the whole,costs in the case. By this it appeai-s that the sum of six dollars and five cents-had been adjudged against the plaintiff- at October term, 1828,. before the final judgment, is included in the costs taxed against the defendant, and carried into the judgment. This is evidently a mistake of the clerk. If it be corrected, and that item is struck out of the judgment, the bond will be exactly double the amount of the remaining costs and damages, and the appeal-will have been well taken. The difficulty is, that this court can not give to the-certificate of the clerk validity to control or vary the record of the-court below. The taxation of costs, however, *is the act of the clerk, and follows the rendition of the judgment, though it is-carried into the record, and forms part ot it. We have no doubt of the power of the court to revive these taxations of costs, and to -order a retaxation when necessary to correct errors. This whole proceeding is posterior to the judgment, although it has relation to the judgment, and forms part of it. The appeal in this case will, therefore, be reinstated for the present, to afford the appellant the opportunity to apply to the court of common pleas to cor-reet the taxation of costs in this case, and procure the evidence of the correction for this court; and if that shall be produced, the appeal will be reinstated.

This bill of costs presented here is one of the many evidences of a practice, in some parts of the state, to tax in the bill all the costs of the case on each side. The judgment is, that the party recovering shall recover his costs expended, etc. It is his recovery' of the costs he is supposed to have paid out as they occurred, and which the judgment, in terms, restores to him. A majority of the • court are of opinion that this mode of taxation is not warranted by law; that the clerks should keep the costs occasioned by each party distinct, and carry into the judgment only that occasioned -by the party recovering the judgment.


text:
    Sampson Mason v. Thomas Embree.
    Court will not bear cause without process and pleadings.
    This cause was adjourned from the county of Clark. The case is stated in the opinion of the court.
    No counsel on either side.
   By the Court:

This cause came before the court upon an agreed statement of ■facts. There are no previous pleadings, no bill, no process. In fact, the case is submitted to the court as arbitrators, to settle the rights of the parties.

*The first question is, whether the court will take jurisdiction in this way. The parties may waive process, and appear in •court. But when once in court,- an issue must be made up. Wo ■are not willing to try a case unless there be such issue. We reverse judgments of the court of common pleas, where pleadings are waived; and consistency seems to require that we should not ■adopt a practice which we will not recognize in that court.


text:
    J. and E. Green v. W. Green.
    In issue of chancery to try the validity of a will, the defendant has the affirmative, hut his .answer is not to be read. Depositions taken may he read under circumstances.
    This cause was adjourned from the county of Fairfield. It was an issue out of chancery, to try the validity of a will. The defendant, in chancery, moved the court to order that the affirmative of the issue might devolve upon him; that his answer, and the deposition in chancery, might be read on the trial.
    Swan and Hunter, in support of the motion.
   Judge Hitchcock

delivered the opinion of the court:

Section 18 of the “ act relating to wills and codicils,” passed February 26, 182d (22 State Laws, 1213), enacts, in substance, that any person interested may, within two years after probate had, by bill in chancery, contest the validity of any will; and that when the bill is filed, an issue shall be made up, whether the writing produced be the last will and testament of the testator or not. The statute itself having prescribed the issue, it must be followed.

The defendant, in chancery, has the affirmative of the issue to be tried. He affirms that the paper writing is the last will and testament of the testator. This fact is denied by the complainant. In the case before the court, an order must be made, so as to make the issue conform to that prescribed by the statute.

*The answer of the defendant can not be read by him on the trial of' the. issue. In truth, no answer is necessary, for the law prescribed the- mode of determining the litigation after hill filed. The depositions which have been taken in chancery may be read on the trial of the issue, provided the deponents are not within the jurisdiction of the court at the time of trial. They will be subject, however, to every exception which' might be made to-them, if offered in chancery. The motion of the defendant is overruled as to reading of the answer, but sustained as to the depositions, with the foregoing restrictions.

The following is a copy of the order made in this cause:

“It being made to appear to the court that the complainant in this case seeks to set aside a certain paper writing, purporting to-be the last will and testament of Timothy Green, late of the county of Fairfield, deceased, which has been admitted to probate according to the statute in such cases made and provided, it is ordered that an issue at law be made up between the parties, to try the-validity of said will, and transmitted to the Supreme Court of said county, next to be holden therein, to ascertain, by the verdict of a jury, whether said writing is the last valid will and testament of the said Timothy Green or not; and that, in making the said issue, the respondents file a declaration affirming the said paper writing to be the last will and testament of the said Timothy Green. And the said complainant shall plead to the said declaration that the-said paper writing is not the last will of the said Timothy Green, deceased. It is further ordered that either party may use, on the-trial of said issue at law, any of the depositions properly taken, and now on file in this cause, which contain relevant and competent evidence, provided the witnesses, whose depositions are-offered at the trial, are deceased, aged, infirm, or without the jurisdiction of the court, as depositions taken de bene esse are allowed to be read in cases at law. It is further ordered, that the motion of the respondent for leave to read his own answer in evidence be-denied, and that this cause be continued.”


text:
    *Samuel Kazer v. The State of Ohio.
    Two persons indicted separately for the same arson, one convicted and judgment passed, the record is not admissible evidence against the other, when on trial.
    This was a writ of error adjourned from the county of Delaware. The case is stated in the opinion of the court.
    Parish, for plaintiff.
    G-. Swan, for defendant.
   By the Court :

Kazer was indicted in Union county, for burning a store of J. & A. Admonson. Samuel Johnson was indicted for the same offense, at the same time, separately from Kazer. Johnson was tried, convicted, and sentenced to be imprisoned in the penitentiary. On motion of Kazer’s counsel, the venue was changed to Delaware county, where he was afterward tried, convicted, and sentenced to be imprisoned in the penitentiary.

On the trial, the state introduced J. Admonson as a witness, who was asked by the prosecuting attorney, if he had seen the defendant in the store three weeks before it was burned, and what he saw and heard during that time. This question was objected to by the defendant’s counsel. The objection was overruled, and the witness testified, that the defendant, about three weeks before the store was burnt, was in the store, and saw about fifty dollars in specie, in possession of the witness. The witness further stated that he had gotten from a negro named Samuel Johnson, who had been convicted and imprisoned in the penitentiary, for burning the store of J. & N. Admonson, a note for twenty dollars, payable to Samuel Johnson, purporting to be signed by the same Samuel Johnson, in the handwriting of the defendant. This testimony was objected to by the defendant’s counsel, and admitted by the court.

After the prosecutor had given some evidence to the jury, of a concert between James Terry, Samuel Johnson, a negro, and the 'defendant, in burning the store, the prosecutor offered in evidence an exemplification of the record of the ^conviction of Samuel Johnson for this offense, which was objected to, but received, and a bill of exceptions was signed by the court. The defendant was found guilty by the jury, sentenced by the court to ten years’ imprisonment in the penitentiary, and judgment against him for costs. To reverse this judgment this writ of error was brought.

The court see no objection to the question put by the State to Admonson, whether the defendant was in the store three weeks before it was burned, and what he .saw and heard there. The testimony given by Admonson, that Johnson, who had been convicted of this offense, had a note in his pocket, written by the defendant, is an immaterial fact, and from which neither the guilt nor innocence of the defendant could be inferred. The giving it in evidence by the state shows that the prosecutor had been unjustifiably anxious for the conviction of the defendent; that he was willing to have his guilt inferred from a circumstance that should form no part of the premises in coming to such a conclusion. A person in the penitentiary has a note in his pocket written by A.; therefore A. is guilty of aiding and assisting the prisoner in the commission of the offense of which he has been convicted. Nothing could be more illogical.

The plaintiff in error relies principally on the admission of the record of the conviction of Johnson.

In admitting this record, the court erred. The record of a conviction is evidence whenever the fact of the conviction becomes on trial material. It is the best evidence of that fact, as where the prosecutor makes the convict an important witness. Whenever he is offered to testify, the record of the conviction may be produced. In this cause, the conviction of Johnson was not material, although Johnson and the defendant had conspired to burn the store. Johnson might have been convicted, and the defendant be not guilty; or acquitted, and the defendant guilty. They might have agreed to burn the store, and the agreement be not consummated. The store, notwithstanding such conspiracy, might be burned by others.1 Johnson might have been convicted on insufficient testimony. The defendant was not confronted with the witnesses who testified against Johnson; he had no *op. pórtunity to cross-examine thorn. Can ho, then, be bound by the inferences drawn by the jury in that caso? A juror who tried Johnson would have been rejected, lest he should be influenced by what he heard, and the opinion he then formed.

The rule, that the verdict and judgment, to be evidence, must be between the same parties, is the same in civil as in criminal •cases, and for the same reason, that no person shall be bound by a judgment but him who has had an opportunity to be heard in the cause concluded by the judgment. 1 Starkie, 191.

A conviction or acquittal, on an indictment for an assault and battery, is not evidence for or against the defendant, on a trial of a •civil suit for the same. 1 Starkie, 171. The parties áre not the same; the evidence may not have been the same. It must be mutual; if the conviction would be evidence against the defend.ant, an acquittal would have been evidence for him. It is manifest •an acquittal of Johnson could not have been evidence for the deiendant.

J udgment reversed.


author: *Judge Wright

text:
    *Methodist Episcopal Church of Cincinnati v. John Wood.
    Member of a religious corporation, having no individual interest, is a competent witness where such corporation is a party.
    .Answer to a bill of discovery introduces new matter, not responsive to the bill, defendant can not read it on trial.
    .In suit by corporation, its legal organization can not be questioned, unless upon plea in abatement.
    •Conveyance for lands of religious incorporated society, made to individual trustees, instead of the corporation, the individual grantees are trustees for the society, and on sale receive the proceeds to its use.
    The seceders from the Methodist Episcopal Church, who have organized a separate conference and reject the office of bishop, are not entitled to any portion of the property of the society from which they seceded.
    Tried in Hamilton county, June, 1831, before Judges Hitchcock ■and Wright.
    This was an action of assumpsit, commenced on August 17, 1829, for money had and received. Issue, non assumpsit. On. the trial of the issue to the jury, the case made by the evidence was this: The members of the Methodist Episcopal Church of Cincinnati had been incorporated under the “ act for the incorporation of religious societies,” passed February 5, 1819. See 17 •Ohio L. 121. The corporation had purchased certain ground for a burying yard, which was deeded, on March 1, 1825, to the then-trustees by name. This ground being intersected by the line of the canal, was rendered unsuitable for a burying yard, and was, by a resolution of the corporation, ordered to be sold, and new •ground to be purchased for that purpose. The defendant was-treasurer of the corporation, and as such, from time to time, received of the proceeds of said sale four thousand three hundred’ and twenty-three dollars and, ninety-eight cents, and had, in like manner, paid out three thousand eight hundred and fourteen dollars and seventy-one cents, leaving a balance in his hands on March 7, 1829, of five hundred and nine dollars and twenty-seven-cents, for which, with interest, the suit was brought.
    On January 9, 1827, “ the members of the Methodist Episcopal Church of Cincinnati, for the time being,” were, by legislative act, created a body corporate, by the name of “ the Methodist Episcopal Church of Cincinnati.” Subsequent to this act of incorporation the defendant, still being treasurer, became dissatisfied with-the government and discipline of the church, and, with a large number of other members, withdrew from the society, formed another society, with a different name, established rules for its government, built a church, and conducted worship as a distinct body of Christians. After the secession, at the annual election on May 4, 1829, the remaining members of the *Protestant Episcopal Church elected a board of trustees from their own body, who, on May 7, 1829, appointed one Lawrence treasurer, in the room of the defendant, whose term of service had expired. The new treasurer, before suit brought, demanded of the defendant the money in his hands.
    In the progress of the trial, O. M. Spencer, Esq., a member of the Protestant Episcopal Church was called as a witness for the plaintiff. The counsel for the defendant objected to his admission as incompetent, on account of his interest as a member of the corporation.
    By the Court :
    The competency of the witness depends upon the answer to the-question whether he has, at this time, an actual subsisting inter-est in the event of the suit; and whether the verdict to be rendered in this case can hereafter be used by the witness in support -of any claim of his own ? " The interest, to disqualify a witness, must be certain; one merely contingent or expectant affects only -the credit. That the witness offered is a m-ember of a charitable or pious corporation does not, of itself, render him incompetent to testify in a suit brought by such corporation. If this witness, as an individual, is to gain or lose by the event of this suit, the party objecting to his evidence must prove that fact. In cases where corporations of a public nature, comprehending the divisions of the state, or institutions for charitable or'pious, purposes, such ■as counties, towns, school districts, religious or charitable societies, .are parties to the record, or interested, the members of the corporation, having no individual interest, are competent witnesses. But where corporations of a private nature, instituted for special purposes and private emoluments, such as banks, insurance, turnpike, and canal companies, bring suit, the interest of the corporators is direct, and they áre incompetent to testify in support of their claim. Phil. Ev. 36-57; 3 Johns. Cas. 83; 9 Johns. 222; 1 Day, 35, 270; 7 Mass. 398; Swift’s Ev. 57.
    The plaintiffs having read in evidence to the jury certain *parts of the answer of the defendant to a bill of discovery filed in chancery against him in aid of this suit, the defendant’s counsel now offered to read in evidence the residue of the answer and the bill. This was objected to by the plaintiff’s counsel.
    By the Court:
    The bill, if it contain any facts useful to the defendant, is evidence for him against the plaintiff. The answer of the defendant is evidence for him, so far as it is responsive to the call in the bill for discovery, or connected necessarily with the responsive matter, or explanatory of it. So far as the answer in such a case sets •up matter not responsive to the call of the bill, or is not necessarily -connected with, or explanatory of it, it can not be used in evi-dence by the party making it.
    Starr and Hammond, for the defendant,
    in summing up, made .the following points:
    1. That the plaintiffs have not shown a compliance on their part, with the provisions of the act incorporating religious societies, without which they have no corporate rights, and can not maintain this action.
    2. That the deed for the ground, from the sale of which the' money in question was received, conveyed the title to .the individual grantees only, and so vested no interest in this corporation for the proceeds.
    3. That the money in question belonged to the defendant and the Other individuals of the church, jointly, and so the defendant is not liable at law.
    4. That the defendant, and his associates, who separated from the Methodist Episcopal Church, retain their corporate powers, and as such, have a right to retain this money.
    N. Wright and Lewis, contra.
   *Judge Wright

charged the jury:

If the defendant intended to object the want of capacity in the-plaintiffs to sue, he should have pleaded that matter specially, in abatement or bar. He has pleaded the general issue. This admits the capacity of the plaintiffs to sue in the corporate character they have described for themselves. 1 Peters, 386, 450; 4 Peters, 591; 1 Bos. & Pul. 40; 1 Mass. 482, 484; 1 Saund. 340, n. 2.

The ground assumed by the defendant, in the second proposition, must be sustained, if at all, upon strict law; in this equitable action, it is entitled to no favor. The defendant was one of the .trustees of the church, managing its concerns under the corporate powers acquired, or supposed to be acquired under the act of 1819, incorporating religious societies. 17 Ohio L. 120. The purchase was made by order of the trustees, with the means of the1 society. By the same authority it was sold, and the defendant received the money on the authority of an appointment emanating from the same source. The corporation had new powers imparted., to it under the act of February 9, 1827 (25 Local Laws, 85), in which the defendant was one of the trustees. For more than two years after the taking effect of this act, the defendant continued, under its authority, to receive and pay moneys for the corporation, as such. Having become dissatisfied with the government of the church, he seceded, and now seeks to retain the funds which came into his hands under the authority; not upon the ground of error in himself and his co-trustees, in taking the conveyanee of the ground bought with the corporate means, to themselves, individually, instead of the corporation 1 The question,, here, is not one of legal title to the land, but to the money raised by the sale of it; and the simple inquiry, under the issue, is,, whether the defendant, upon the facts disclosed, and the legal assumption taken in his behalf, has a right, in equity and good conscience, to retain the money received by him against the very authority under, and by virtue of which, it came to his hands ? We-think he has not. But if the question did touch the legal right to the land, we are not prepared to say the *law would sustain ■ the defendant’s claim. The “ act securing to religious societies a-perpetuity of title to lands and tenements, conveyed in trust for meeting houses, burying grounds, or residence for preachers,”’ passed on January 3, 1825 (23 Ohio L. 9), provides that such land, not exceeding twenty acres, that had been, or thereafter might be,. conveyed to any person or persons, in trust for the use of any religious society, should descend, in perpetual succession, to such, trustees as should from time to time be appointed by any such religious society, according to its rules, etc. This act was intended to remove all difficulty arising from defective conveyances, and seems to us amply sufficient to effect the object, whether the trust be secret and implied, or expressed in the conveyance. The case in hearing is, we think embraced within its provisions.

It is urged, further, that even if this property were held by the corporation existing before the act of January 9, 1827, no power is given by that act to the present plaintiffs to sue. That act incorporated the members of the Methodist Episcopal Church of Cincinnati, for the time being.” Section 4 (25 Local Laws, 86)-provides, “ that all estate, real and personal, now holden and possessed” by the church, be vested in the corporation thereby provided, and empowers the trustees to dispose of it, and to receive-the proceeds for the benefit of the corporation. We are not able-to discover any defect of authority in the plaintiffs under the act.

If this reasoning be correct, it seems fatal to the third objection raised in this defense; because, if this property belonged to the corporation, as such, the individual interest of the defendant or his associates, joint or several, is at an end. The whole interest they have is as corporators, not as individuals. No reasoning-will be required of us to prove that an individual corporator may be made liable at law, to the corporation of which he is a member, in the same way that any other individual would be.

The fourth and last .objection of the defendant presents the inquiry, whether the members of the church, including the defendant, after their secession, retained the corporate' powers of the church from which they seceded ? This assumption *would have rested on more plausible ground if the case made had shown the defendant and his associates, after the separation, holding themselves out as the Methodist Episcopal Church, and exercising under such claim the corporate powers of that church. The conceded points show an entire different state of things. The efforts of the dissatisfied members are not directed, within the church, to effect a reformation in its government and discipline, according to the usage of the society, to conform it to their wishes. They moved off in a body of several hundred, and associated themselves, not as the Methodist Episcopal Church, but, as is now claimed for them in argument, a persecuted body, forced from the church by the intolerable tyranny of its government. The body of persons, thus separated, agreed upon articles of association, differing essentially from the rules governing the Methodist Episcopal Church. By these articles of association they have since conducted their affairs, and, conducted worship as a distinct church, denying all accountability, alike in the spiritual and corporate power of the Methodist Episcopal Church.

In this state of facts it is difficult to perceive the ground on which the claim is now advanced, that they remain the Methodist Episcopal Church. Those remainiug in that church have continued to exercise the corporate functions in conformity with the provisions of the act of incorporation; and against a b'ody who have acted openly upon other principles, and continued so to do until this time, they must be held, in this action, the corporation. The office of treasurer, held by the defendant under the corporation, has expired, and another has been elected to the place, to whom he refused to pay over the money received as treasurer. It is not shown, or pretended even, that the defendant was treasurer when the suit was brought, appointed in any way whatever. We can discern no legal right in him to retain this money.

There was a verdict for the plaintiffs, and judgment, by consent of parties, for the amount, without costs.