author: Peck, J.

text:
    John Rossman v. Noah C. McFarland.
    In 18-42, the Bank of Hamilton assigned all its effects to three trustees, McC., M., and C., among which was a joint and several note of McC. & J. as principals, and R. as surety, for §900. After its maturity, the makers gave a new note of like character, and by way of renewal, to assignees, at ninety days. The last note was not paid at maturity, and was retained by the assignees for several years, ¿luring which period the principals became insolvent. The assignees then transferred it to F., fo^collection merely. F. brought suit thereon against R., and on the trial R. offered to prove that the bank made the assignment with intent to prevent the bank commissioners from closing up its affairs, under the acts of February 25, 1839, and March 23, 1840, which testimony was ruled out by the court. Held—
    1. That such proof -was properly excluded by the court.
    2. That an action might be maintained on said note, in the names of the assignees, against R., although one of them was also a maker of the note.
    3. That there was no such suspension of a right of action upon the note in the hands of the assignees as authorizes the court to hold the note assets in the hands of the trustees, or either of them.
    The case of Bigelows. Bigelow, 4 Ohio, 138, does not apply to cases of joint and several notes, where only one of the makers becomes trustee to a payee.
    In error to the district court of Butler county.
    This suit was brought in the court of common pleas of Butler *eounty, to recover judgment against John Rossman, upon a promissory note which reads thus:
    “ $900.00. Hamilton, March 8, 1842.
    “Ninety days after date, we, or either of us, promise to pay to the order of the assignees of the Bank of Hamilton, at their office in Hamilton, nine hundred dollars, for value received.
    “McCleary & Johnson,
    “John Rossman, security.”
    The plaintiff declared specially on the note, and added the common counts. Plea — the general issue.
    The cause was appealed to the district court, which on submission, a jury being waived, rendered a finding and judgment in favor of the plaintiff.
    During the trial, a bill of exceptions was taken to the finding and rulings of the court, from which it appears that in February, 1842, the Bank of Hamilton made an assignment of its effects to Andrew McCleary, John M. Millikin, and Jesse Corwin, as its general assignees. Among the effects thus assigned was a note made by McCleary & Johnson, as principals, and John Rossman, the plaintiff in error, as surety. On the 8th of March, 1842, this note was renewed by a note for nine hundred dollars, payable at ninety days, made by McCleary & Johnson, as principals, and plaintiff in error 'as surety, payable “ to the order of the assignees of the Bank of Hamilton.” This note remained in the actual possession of the assignees from its date until the year 1852, when, without consideration, and merely for the purpose of collection, it was, by said assignees, assigned to N. C. McFarland, the defendant in error. McFarland brought suit against Rossman upon the note, in the court of common pleas. Judgment was given in favor of Rossman, and McFarland aj>pealcd to the district court, where judgment was rendered against Rossman for the balance due upon the note.
    *The suit was brought for the sole benefit of the assignees.
    The firm of McCleary & Johnson, the principals in said note, was composed of Andrew McCleary and Samuel Johnson. McCleary was also one of the assignees of the bank. McCleary and Johnson were both persons in good credit, and amply able to pay the note, from 1842, when the note was given, until 1846, when they both became, and have since remained, insolvent.
    Rossman offered to prove that the assignment so made by the Bank of Hamilton to its assignees, was made with intent to prevent said banking institution from being closed up by the bank commissioners of the State of Ohio, under the act entitled “ an act providing for the appointment of a board of bank commissioners, and for the regulation of banks within the State of Ohio,” passed February 25, 1839, and the act amendatory thereto, passed March 23, 1840. This evidence having been objected to by defendant in error, the objection was sustained.
    A motion for a new trial was made in the district court, by the plaintiff in error, which was overruled.
    To reverse said judgment of the district court, this petition in error was filed.
    The plaintiff in error now claims that the district court erred in sustaining the objection to the evidence, and in not treating the note, under the evidence, as paid.

      James Clark and Thomas Millikin, for plaintiff in error, insisted:
    1. The district court erred in refusing to receive evidence that the general assignment made by the Bank of Hamilton was made in fraud and in violation of the act providing for the appointment of bank commissioners, etc. Swan’s Stat. (1841) 133, sec. 20.
    The evidence was offered for the purpose of defeating the title of the defendant in error to the note. The statute expressly declares such assignments to be “unlawful” and *“ absolutely void as against tho'operation and provision of said acts.” No title can be acquired by an assignment which is in violation'of law. Modintock v. Cummins, 3 McLean, 161. The sole question is, whether the legislature intended to prohibit such assignments either expressly or by implication. Smith’s Merc. Law, 647.
    The district court, in rendering judgment in this case, necessarily passed upon the title by which the defendant in error held the note. If the note had not been assigned to the defendant in error, he clearly could not have recovered, though he had a complete equitable title to the note. For the same reason, if the title of the assignees of the bank was acquired in a manner and for a purpose forbidden by a public law, it was void.
    The distinction is between a mere private fraud and an act done in violation of a public law enacted for the public welfare. It is conceded that any mere private fraud between the assignor and assignee of a negotiable instrument, can not be set up by the maker to defeat the title of the assignee; but it is otherwise if the assignee acquired his title in violation of some public law. In the latter case the assignment is void, as to everybody, on the ground of public policy.
    2. The district court erred in not treating the note as paid.
    In. June, 1842, when the note matured, McCleary was still one of the assignees of the bank. If he had resigned his trust before the maturity of the note, perhaps a different question might have arisen, for then it might be said payment could not have been made to him. But when this note matured, McCleary was the one by whom, and to whom., it was to bo paid. In default of actual payment, he could not sue himself. The same hand was to receive and pay, and payment is therefore conclusively presumed: McCleary was entirely solvent when the note matured, and for four years afterward, during all which time he, as assignee, held the note. It is true, there were two other ^assignees besides McCleary, but the trust was strictly a joint trust, and payment to one was payment to all. 2 Greenl. Ev., sec. 518. The two other assignees could not have sued without joining McCleary as co-plaintiff. The right of action being thus gone, the law says the note shall be treated as assets in the hands of the trustees. See Stephens’ Adm’r v. Gaylord, 11 Mass. 257; Winship v. Bass, 12 Mass. 199; Salk. 306, 296; -v. Du Rhone, McNaughton Select Eq. Cas. 180; Cox (N. X), 15-3.
    The same principle was held in Bigelow v. Bigelow, 4 Ohio, 138. See also Com. Dig. 337.
    3. Admitting that we are wrong in claiming that the note should be treated as paid, yet we think there can be no doubt, as the right of action against McCleary, the principal in the note, was suspended by the act of the assignees in holding the note until its maturity, that this discharged Rossman, who was merely the surety. See Bank of Steubenville v. Leavit, 5 Ohio, 207.
    The surety had a right to pay the note and sue the principal. He had a right under the statutes then in force, to notify the holder of the note to put it in suit. Swan’s Stat. (1841) 878;
    He had a right to proceed in equity to compel the principal to pay the note. Burge on Surety, 378.
    But all these rights were rendered unavailable ; for the holder was the maker of the note, and could not sue upon it.

      N. G. McFarland, argued:
    1. It is claimed that as the assignment made by the Bank of Hamilton, is declared “unlawful,” and as it is in violation of a public statute, that therefore no rights could pass to the assignees. But in order to determine this question, we must look at the true intent of the act. Against whom is it unlawful ? And when is it to be so held? Evidently only as between the bank commissioners and the bank or its assignees; for such assignments “ shall *be hold absolutely void as against the operations and provisions of said acts.” Did the legislature intend that if the bank commissioners never appeared to claim the assets, that thereby the debtors of the bank should all be released from.liability ? This is the position taken in the argument submitted on the other side. But suppose it to have been proved that the assignment was made in fraud to prevent the bank commissioners from closing up the bank. It is a well established rule, that none but the defrauded can take advantage of it. There is no fraud practiced on Rossman that he can complain of. And whether the bank has exceeded its powers, or violated law, is not a question that can be inquired into in this collateral way. See Banks v. Poitiaux, 3 Rand. 136; Grand Gulf Bank v. Archer, 8 S. & M. 151; Chester Glass Co. v. Dewey, 16 Mass. 94; Gilman’s Dig. 84; Voorhes v. Receivers of Circleville Bank, 19 Ohio, 463.
    The' defendant, in an action upon a promissory note, is not allowed to contest the plaintiff’s title to sue, except for the purpose of protecting himself from a subsequent suit in the name of some one having a better title to sue, and who has not acquiesced in the suit commenced. . Hackett v. Kendall, 23 Vt. (8 Wash.) 275; Varner v. Lamar, 9 Ga. 589.
    But especially does the defendant below not stand in a position to dispute title. By the very terms of the note sued on, he has accounted with the assignees in that capacity, and consequently is estopped from denying such capacity and ownership. 2 Greenlf. Ev. 127, 129; 1 Saun. P. & E., 46, 49; 2 Phillips Ev. 125 ; 1 Chitty’s PL 308.
    2. But it is said that the court erred in not treating the note as paid.
    No act of the parties having occurred after the giving of the note, which would discharge the surety, what is the nature of the contract entered into by him when this note was given ; and has it any binding validity ? And here counsel for plaintiff in error seem to be laboring under *a total misapprehension. They treat the note as though it were joint only, whereas it is joint and several, which, in many respects, makes the rights of the promisors very different. Here is a distinct and several obligation on the part of Rossman to pay this note to the assignees. They are not willing to take McCleary & Johnson. Rossman says, I will pay it. Not that he will pay, if the others do not, as a guarantor, or as an indorser if duly notified, but absolutely, as a several maker of the note. Hence all the authorities cited by counsel on this branch of the case, are inapplicable, as there is not one of them that contemplates such a contract as is here made. True, McCleary can not sue himself; but what legal objection is thereto McCleary, Millikin, and Corwin suing Rossman? None whatever. His contract is with them, to pay the note io'them.
    It is well settled that a creditor, where the contract is several, may resort, first, to the surety for the payment of his debt, without applying to the principal. Geddis v. Hawk, 1 Watts, 280; 5 Ohio, 104; 13 Conn. 412.
    All the payers of a joint and several promissory note are principals, and their relation to each other does not affect their liability to the payee. Carson v. Hill, 1 McMullen, 76; Bull v. Allen, 19 Conn. 101; 13 Id. 412.
    The sureties of a note are liable, although the note is void as to their principal, because she was a feme covert when it was signed. Smyley v. Head, 2 Rich. 590.
    The assignees, then, could have supported this action against Rossman; and if there is anything to prevent, it is a technical !egal objection <3nly, which is disposed of by the indorsement of the note to the defendant in error. That he can sustain the action, though the payees might not, is clearly established by authority.
    It is not a valid objection to a suit against a surety upon a promissory note, that it is brought for the benefit of the principal in the note and two others as executors of an estate. Hampton v. Shehan, 7 Ala. 295. A case quite analogous to the one at bar, because this suit is not brought *for the benefit of McCleary, he having no personal interest in it.
    See also American Bank v. Doolittle, 14 Pick. 123; Smith v. Lusher, 5 Cow. 688; Smyth v. Strader, 9 Port. 446; Norton v Downer, 15 Vt. 569
    Where a note is made payable to two of the makers, their indorsement will pass the property in the note. Pitcher v. Barrows, 17 Pick. 361.
    3. But it is said the right of action was suspended. If there never was a right of action on this note, there never could have been a suspension of that right. But the law of 1850 (Swan’s R. S. 250, sec. 183) preserves the right to this action in the name of the corporation. See Stetson v. City Bank of New Orleans, 2 Ohio St. 167.
    4. It is further argued that Rossman had a right to pay the note and sue the principal, or to notify the holder to put it in suit, or proceed in equity to compel the principal to pay the nóte; and that those rights were all unavailable, for the holder was the maker, and could not sue upon it. I admit that he had all these rights, but deny that one of them was unavailable. They were all at his command. Suppose that he had notified the holders in writing, under the statute; could they not have sued him alone upon his several agreement to pay it? This will not be denied. What obstacle was there in the way of Rossman proceeding in equity to compel the principal to pay it, or to pay it himself, and then sue McCleary & Johnson? It appears to me none. If Rossman had notified the holders in writing to sue, true they might have sued him alone at law, or gone into equity for the settlement of the whole matter; but he would immediately have had his remedy against the principals.

      Clark & Millikin, for plaintiff in error, in reply:
    It is claimed by defendant in error that the plaintiff in error is estopped from denying the character of the assignees, having treated them as such assignees. But the ^doctrine of estoppel does not apply when the party stands in a character which is against the policy of the law. The capacity which we are estopped from denying must be one which the law will tolerate.
    Much is claimed by the defendant in error from the fact that the promissory note sued upon is several as well as joint. The case of Chandler’s Ex’rs v. Shehan, 7 Ala. 251, is directly in point, and, with the authorities cited in it, clearly establishes the following propositions, peculiarly applicable to the case before the court-: 1. Where one of several joint trustees, with a surety, executes a joint and several promissory note to himself and his co-trustees, the amount of the note, when it falls due, if it still remains in the hands of the trustees, and if the maker still continues to be one of the trustees, becomes assets in the hands of the trustee who is maker, and is treated as if paid to him ; 2. In such a case, the trustees who are not makers, can not sue their co-trustee and his surety, even in equity; 3. A payment by one of several joint trustees to his co-trustees, of a debt due from him to all the trustees, will not discharge him from his liability to account to the beneficiaries of the trust.
    To the position that if Rossman had notified the holders of the note to sue upon it, in pursuance of the “ act for the relief of sureties and bail,” an action might have been commenced against him alone, we reply : 1. When a surety has given notice under the-statute, a suit against him alone is not a sufficient compliance with it. Sterling v. Buttles, 2 Ohio, 304. 2. We have already shown that no suit, either at law or in equity, could have been sustained by 1he assignees, or any of them, against either principals or surety, on the note in question, because it had become extinguished by payment, eo instanti that it fell due.
   Peck, J.

The only points relied on for the reversal of the judgment in this case, are : 1. The improper exclusion, *by the court below, of testimony offered by the plaintiff in error; 2. That the original note, of which the note sued is a mere renewal, was in law paid, and consequently that the note in suit was without any consideration to support it; 3. That even if the note in suit was, at its inception, a valid note, it having been retained by the payees until alter its maturity, should have been treated and regarded by the court below as paid off and discharged.

1. Did the court below err in excluding the testimony offered by plaintiff in error?

The object of the plaintiff in error was to show that the assignees acquired no title to the note by its transfer to them, and could confer none on their assignee, who received it merely for collection. The 29th section of the act relating to bank commissioners, etc., in Swan’s Statutes of 1841, page 133, reads as follows:

“ It shall be unlawful for any banking institution, or any company or society exercising banking powers in this state, to make an assignment or transfer of any of ;ts real estate or personal property, or any of its rights, credits, moneys, or effects whatsoever, with intent to hinder or prevent such institution, company, or society from being closed up by the bank commissioners, under this act, or the act to which this is an amendment, or for the purpose of avoiding any of the provisions of said act; but all such institutions, companies, or societies, shall be subject to the operation and j>rovisions of said acts, notwithstanding such assignment or transfer; and all assignments and transfers with intent, or for the purpose aforesaid, shall bo held absolutely void as against the operations and provisions of said act.”

' The statutes of 1839 and 1840, creating a board of bank commissioners, and authorizing them, under certain circumstances, to close up the business and distribute the assets of banking institutions among the creditors, were ^enacted for the safety and protection of the public; and the 29th section, above quoted, was especially required to render effective the salutary provisions of those statutes. As a general rule, it is undoubtedly true, that where a statute, designed for the protection of the public, prohibits in express terms the making of a contract, such contract is absolutely void, whether the thing contracted for is malum in se, or merely malum prohibitum.

But where the law which prohibits the contract, at the same time also limits the effect, or declares the consequences which shall attach to the making of it, the general rule does not apply.

The 29th section declares all assignments made by banking institutions, with intent to prevent the interference of the commissioners, unlawful; and if this were all, the general rule might possibly be applied; but in the latter part of the section, the legislature has seen fit to declare what consequences shall follow the making of such an assignment, by the words: “ But all such institutions, companies, .or societies, shall be subject to the operations and provisions of said acts, notwithstanding such assignments or transfers; and all assignments or transfers, with intent or for the purpose aforesaid, shall be held absolutely void as against the operation and provisions of said acts.” The statute, then, does not stop with the prohibition, and leave the courts to adjudge the assignment void for all purposes, as a thing prohibited for the protection of the public, but provides that the institution shall still be subject to the operation of the law, and then declares that the assignment “ shall be held absolutely void as against the operations and provisions of said act.” In other words, if the exigency should arise, the bank commissioner’s may take possession of, collect and distribute the assets, as if no such assignment had been made.

The intention is manifest. The assignment was to present no obstacle to the interference of the commissioners. As against them, it was to be void, if they had cause to, *and did interfere; but not void as to others, unless the commissioners, in the discharge of their duties, should vacate and annul it.

The mere fact that the bank had made the assignment, with the intent specified years before, but which was not followed by any action of the board of bank commissioners, would not vacate or annul the assignment to McCleary and others; and proof of it was very properly excluded by the court. Its introduction could not, in law, have availed the plaintiff in error, and its exclusion has not, in law, injured him.

Did the court below err in finding upon the facts; proved and admitted, that the note sued on was valid and subsisting, as against plaintiff in error ?

It is claimed that the original note delivered to the assignees (McCleary being one of the makers), on its maturity in their hands, became and was assets in the hands of McCleary, though not, in fact, paid; and that its subsequent surrender was not, in law, a sufficient consideration to support the note sued on. It is also insisted, that even if the note sued on was valid at its inception, still, on its maturity in their hands, it, in law, 'became assets in the hands of McOleary, and should have been regarded by the court as paid.

These results are claimed on the authority of the case of Bigelow v. Bigelow., 4 Ohio, 138, which, on principle, is not distinguishable, it is said, from the case at bar. In that case, a debtor of an intestate had been appointed administrator; whereby the right to sue and the obli•gation to pay centered in one and the same person ; and it was held that, inasmuch as the administrator could not sue himself and thereby collect the debt, it became assets in his hands; and the court intimate that the rule should be applied to trustees generally. The court say the debt was not thereby extinguished; but it was a “quasi” release at law, because the administrator could not sue himself, and a personal action, once suspended, is always suspended. • *The authority of this case is somewhat shaken, and its practieal application limited, in the subsequent cases of Hall v. Pratt, 5 Ohio, 72, and Miller v. Donaldson, 17 Ohio, 265. In Hall v. Pratt, Wright, J., dissents from much of the reasoning, and especially questions the universality of the maxim, that personal actions once suspended are always suspended; while in Miller v. Donaldson, Avery, J., remarks, that the holding a debt in such case to be assets in the hands of an administrator, is a mere fiction of law which can' not be allowed to work injustice. In that case, a mortgagor who had been qualified and had acted as executor of the mortgagee, had failed to pay the debt while in office, and the court permitted a foreclosure of the mortgage after his removal, at the suit of an administrator de bonis non; thus showing, clearly, that the debt was not discharged by his appointment to and acceptance of the trust, and was not, in equity at least, to be regarded as paid. It is not pretended that either the original note or the renewed note was-ever in fact paid to the bank or its assignees; and to hold it paid under this fiction of law, would work injustice toward the bank and its creditors. The case of Bigelow v. Bigelow, is plainly distinguishable from the case at bar in this: The debt duo to the estate, in, that case, was the sole debt of the administrator, and was held to be assets in his hands, because he could not sue himself, and the estate would therefore lose it unless the fiction were resorted to; while in. the case at bar, the note is not the sole promise of McClear/, nor the. joint obligation of himself and Rossman, requiring all the makers to be joined in a suit upon it; but is the joint and several note of McCleary, and Johnson, and Rossman. McCleary could not sue himself and the other makers, but he and his co-assignees could, at any and all-times, have sued the other party to the note. The necessity, therefore, did not arise for resorting to and applying this legal fiction. This proposition is too plain to require the citation of author- ■ ities to support it, *as the mere statement carries conviction to every legal mind. “Where two or more are bound jointly and severally, and one of them makes the obligee his executor, the obligee may, notwithstanding, maintain an action against the other obligor. Bradford et al. v. Williams, 4 How. (U. S.) 576; Cook v. Cross, 2 Levinz. 73; 5 Bac. Abr. 816, Tit. Oblig. D. 4. These authorities, if authorities are required for so obvious a proposition, establish that an action may be sustained by the payees of a joint and several note or obligation against one of the makers, and that it is no objection to a recovery that one of the makers, who is not sued, is a .a plaintiff in the cause. But it is said, inasmuch as Rossman, inter ■partes, is the surety for McCleary & Johnson, who would in law be .’bound to reimburse him the money he is compelled to pay, that 3£eCleary, as one of the assignees, should not be permitted to remover money from him, upon the recovery of which he (McCleary) ■would be forthwith bound to refund. It is true, that if McCleary 'had the sole beneficial interest in the money when recovered, the Jaw, whieh discountenances circuity of action, would exempt Ross-man from liability upon the note. But in the case at bar, the ■money, when collected, belongs to the three assignees, in trust for ■.the bank .and its creditors, and not to McCleary in his own right. The.-assignees were not bound, nor was McCleary as assignee, bound to-reimburse Rossman. As between Rossman and the assignees of the bank, he by his contract had bound himself severally to pay, if required, and could not have claimed exemption if sued by them at any time after the maturity of the note. Hampton v. Shehan, 7 Ala. 297; Webster v. Randall, 19 Pick. 13.

It is hardly necessary to notice the objection that there was no legal consideration for the note sued on. We hold that the note ,for the renewal of which it was given, was, at the time of the reinewal, a valid and .subsisting note, and was therefore a sufficient consideration for ithe ¿renewal. A moral obligation, arising out of a pre-existing liability *which had been discharged by a mere fiction of law, would of itself support the promise.

The long period during which the note remained in the hands of the assignees after its maturity, without any effort on their part to collect it, and the solvency of the principals for several years after the note became due, and their subsequent insolvency, were circumstances proper for the consideration of a court or jury, as raising a presumption of payment. The court doubtless did so consider them in trying the issues submitted. They are not, however, so significant and conclusive, that a reviewing court would be warranted in acting upon them.

Judgment affirmed.

Brinicerhoer, C. J., and Sutlife and Gholson, JJ., concurred.

Scott, J., having formerly been of counsel, did not sit in this case.


source: Caselaw Access Project

author: Sutliff, J.

license: Public Domain

text:
    John Ash v. James Ash and others.
    Where a testatrix, having no child, made her will, and afterward had- a living child, which she survived; Held, under the 40th section of the act of March 25, 1840, relating to wills (Curwen, 690)—
    1. That the birth of the child revoked the will.
    2. That the fact that the testatrix survived the child did not revive'the will.
    In chancery. Reserved in the district court of Knox county.
    The complainant, John Ash, filed his bill in chancery to set aside the last will of his sister, Mary Ann McClain, wife of the respondent, Upton McClain, which had been duly admitted to probate, by the probate court of Knox county.
    *The ground on which it was sought to set aside the will, was that the testatrix, at the time she executed the same, had no children, and that she afterward had a child born alive;
    The case was tried in the district court, on an issue out of chancery, on an agreed statement of facts, and a verdict returned in favor of the validity of the will. The contestant filed a motion for a new trial, on the ground that the court erred in their charge to the jury upon the law of the ease. That motion was reserved for decision in the Supreme Court.
    It appears from the bill of exceptions in the case that the testatrix had no children at the time she executed the will, and that she afterward had a child born alive, which child she survived.
    It also appears that the will was duly executed, and that the only question made in the case was that of revocation. The only point in controversy seems to have been the construction of the 40th section of the act relating to wills, passed March 25, 1840. Curwen, 090. That section is in these words:
    “ If the testator had no children at the time of executing his will, but shall afterward have a child living, or born alive after his death, such will shall be deemed revoked, unless provision shall have been madeforsuch child by some settlement, orunless such child shall have been provided for in the will, or in such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption of such revocation shall be received.”
    It is admitted that no provision was made for said child, by settlement or otherwise, and that no mention of the child was made in the will. By the terms of the will, the whole estate is given to the husband. On the trial of the case, the court instructed the jury “ that the birth of said child did not, in law, revoke said will, the child having *died before said testatrix; and that the verdict upon the proof, if they believed it, and upon the admission before them, ought to be, as a matter of- law, in favor of the validity of the will.” To which ruling of the court, John Ash excepted. The verdict being in favor of the validity of the will, in accordance with this ruling of the court, the complainant moved for a new trial, on the ground that the ruling of the court and the verdict were contrary to law.

      Sapp & Smith, and Vance & Smith, for complainant.

      M. S. Mitchell, for two of the respondents.
   Sutliff, J.

The right of the plaintiff to a new trial depends solely upon the correctness of the judicial construction of the statute, given in charge to the jury by the district court.

It is insisted, on the part of complainant, that there are two contingencies expressed by the statute, either of which is intended to be a revocation of a will made by one having no child at the time of its execution:

1. Where the testator shall, after the execution of the will, have a child living, or a living child.

2. Where the testator shall, after Ms death, have a child born alive.

It is urged by the other party that the true meaning of the statute is, that to effect a revocation, a child of the testator must not only be born after the execution of the will, but must survive the testator, or be in life after his death. The provision, according to such construction, would, as now expressed, be regarded an ellipsis; and that, if what is implied were fully expressed, it would read as follows: “ But shall afterward have a child living," after his death, “ or born alive after his death.”

To best understand the true meaning of the statute *under consideration, it is heeessary to consider what was the law upon the subject prior to the adoption of the statute.

By the civil law, it was held that the birth of a child, after the execution of a will by one without children, was such a change in the domestic relations of the testator, after the execution of his will, as to constitute an implied revocation of the will.

By the common law, perhaps both marriage and the birth of a child were necessary to constitute such implied revocation.

But, in this state, prior to the statute of 1840, the subject had been long governed by legislative enactment. The act of 1816 (2 Chase, 929, sec. 3), provides as follows: “ That any last will or devise so made, or any clause made thereof, shall be revocable by the testator’s destroying, canceling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or instrument of writing, made as aforesaid, or where the testator had no child at the time of executing such last will, or codicil, and shall afterward have a child, or children — in either case, such last or codicil shall be void and of none effect, and the estate of the decedent shall descend according to the act regulating the course of descents and distribution of intestate estates.”

The act of 1824 (2 Chase, 1305, sec. 5,) was as follows: “That any will and testament, or any clause thereof, shall be revoked by the testator destroying, canceling, or obliterating the same, or causing it to be done in his presence, or by subsequent will, codicil, or instrument, made as aforesaid, or when the testator had no child at the time of executing such will, and shall afterward have a child, and in either case, such last will or codicil shall be void.” The law of 1831 (3 Chase, 1786, see. 5,) was in the same words as that of 1824.

Nor were these provisions peculiar to our own state. In Virginia, Kentucky, Connecticut, Indiana, and Illinois, it has been provided by express legislation, that the subsequent *birth of a child shall be regarded a revocation, where. the testatrix had no child at the date of the will.

But the phraseology of the statutory provision of 1840, in this state, varies from the previous statutes. After the words “ shall afterward have a child,” as expressed by the statutes of 1824 and 1831, there are added, in the statute of 1840, the words “ living, or born alive, after his death.” Does this change in the phraseology of the previous statutes, by that of 1840, change the previous law upon the subject in this state? It is a well-established rule, that in putting a construction upon a revised statute, the mere change in tho phraseology does not work a change in the established interpretation of the former statute, unless it evidently appears- that such change was intended by the legislature. Taylor v. Delancy, 2 Caines’ Cases, 143; Yates’ case, 4 Johns. 359; Douglass v. Howland, 24 Wend. 45; Gaffray v. Colvill, 6 Hill, 574; Doremus v. Harrison & Whitman, 26 Ala. 326; Moore v. Bunker, 9 Foster, 431.

Under the application of this rule of construction, as well as by the more obvious meaning of tho language, from its present grammatical construction, we think -the statute of 1840, so far as applicable to the ease at bar, in no respects differs from the previous statutes of 1816, 1824, and 1831.

We hold the legal construction of the provision of the statute of 1840, under consideration, to be, that where a person having no child living at the time of. executing a will, after its execution has a child living, such will is thereby revoked ; and the will so being revoked, the fact of the testator or testatrix surviving the child, can not revive the will, or make it operative.

For the reasons expressed, a new trial must be granted.

Brinkerhorr, C. J., and Scon? and Gholson, JJ., concurred.

Peck, J., was absent.


author: G-holson, J.

text:
    *Richard Harrison and Thomas Wiley v. King, Carey & Howe.
    1. While good practice requires that, upon an application for an order of attachment to a court or judge in an action for a debt not due, the affidavit should set forth the facts and circumstances, and not merely the words of the statute, yet, if a court or judge think proper to act upon an affidavit stating the ground for an attachment, substantially in the language of the statute, it is a matter of form or practice not affecting any substantial right of the defendant, and not a proper cause for reversal upon a petition in error.
    2. Upon like principle would stand any variation from • the language of the statute which did not affect the substance of the particular ground upon which the order of attachment was granted.
    3. The affidavit and order of attachment constitute no part of ,the pleadings in the action, and the grounds for an attachment should not be stated in the petition. This rule applies as well in case of an action for a debt not due as in other actions.
    4. The proper mode for the defendant to meet the charge made in an affidavit for an attachment is by motion. In a like mode, a subsequent attaching creditor should be heard as to any question of priority between him and the plaintiff. He can not properly be made a party in the action on the ground of an interest acquired by the levy of his order of attachment upon the same property upon which the attachment of the plaintiff has been levied. If he be improperly made a defendant, there is no error in dismissing him from the action.
    5. A court of error, before reversing the decision of an inferior court upon a question of fact involved in a motion to discharge an attachment, should be satisfied that it was clearly erroneous.
    Petition in error. Reserved in the district court of Belmont county.
    An action was brought by King, Carey & Howe, in the court of common pleas of Belmont county, against Richard Harrison and Thomas Wiley, on the 11th February, 1854, upon a note signed “ Richard Harrison & Co.,” due March 27,1854, for $1,404, payable to King, Carey & Howe. The petition stated that Harrison and Wiley signed the note as partners, under the style of Harrison & Co.
    At the time the action was brought, an application for an order of attachment was made and allowed, and an *order of attachment issued, but against Richard Harrison only. The ground of attachment as shown in the affidavit filed with the petition was “ that the said Richard Harrison is about to remove his property, or a material part thereof, and which will have the effect of hindering and delaying the plaintiffs in the collection of their debt.”
    There was no statement in the petition as originally filed, as tc the fact of an attachment being allowed, or as to the grounds of an attachment. There were no facts or circumstances stated in the affidavit showing how the removal of the property would hinder or delay the plaintiff, or that the removal was under such circumstances as to disclose a fraudulent intent.
    To the original petition a demurrer was filed by Thomas Wiley, on the ground that the note was not due when the action was commenced. This demurrer was sustained. The action was dismissed as to Thomas Wiley, and leave was given to the plaintiff to amend his petition.
    The amended petition of the plaintiff states the execution of the note by Harrison alone, and that Wiley was not a partner, having been fraudulently represented by Harrison to be his partner. The petition also states the ground for attachment, to wit, that Harrison was about to remove his property, or a material part thereof, to the effect of hindering and delaying the plaintiffs in the collection of their debt. Annexed to the petition is an amended affidavit, in which it is stated “that the said Harrison, at the time of the commencement of this suit, was about to remove his property to tho effect of hindering and delayingthe plaintiffs in the collection of their debt, and that the said Richard Harrison was then and now a nonresident of the State of Ohio, and that said defendant was preparing to remove his property to the effect aforesaid.” This affidavit was sworn to by the counsel of the plaintiffs.
    The next step in the proceeding was a motion by Thomas Wiley to be made a party defendant, upon the ground *that he had an interest in the controversy, which interest is stated in the motion. The interest claimed was that Wiley had obtained an order of attachment on the 13th of February, 1854, and caused it to be levied on the same property on which had been levied the attachment of the plaintiffs. The property, it was alleged, would be exhausted by the claim of the plaintiffs, if the same were sustained. It was also alleged that there was a valid defense to the action of ihe plaintiffs, the nature of which, however, was not disclosed.
    It is to be inferred from the record that Wiloy was made a defendant. He moves the court to set aside the petition and order of attachment, upon the ground of the insufficiency of the affidavit. He also files an answer which is the denial of the truth of the statement contained in the petition as the ground for an attachment.
    The plaintiffs then move the court to discharge Thomas Wiley from being a defendant, on the ground that he was improperly made a defendant, having no interest in the subject-matter in controversy between the plaintiffs and the defendant, Harrison.
    The two defendants, Harrison and Wiley, now appear and demur to the petition, upon the ground that no facts are stated to entitle the plaintiffs to sue before the note became due.
    A motion is now made on the part of the defendant, Harrison, to discharge the order of attachment, upon the ground of the insufficiency of the affidavit, and also upon the ground that the evidence in the answer and deposition of the defendant shows that the fact relied upon for supporting the attachment is not true.
    The answer and the deposition of Harrison contain a denial of the truth of the charge alleged in the affidavit of the plaintiffs.
    On the 19th of May, 1855, an order was made overruling the demurrer to the petition of the plaintiffs, dismissing Wiley as defendant, and overruling the motion of Harrison to ^discharge the attachment. To. this action of the court exception is taken, and a bill of exceptions allowed and signed. On the same day a judgment in favor of the plaintiffs in the action is entered.
    The bill of exceptions shows that on the motion of the defendant, Harrison, to discharge the attachment, his answer and deposition were read in evidence, and also the several affidavits in the case on behalf of the plaintiffs; which “was all the evidence in the cause.”
    A petition in error was filed in the district court by Richard Harrison and Thomas Wiley, and the errors assigned are:
    1. That the court erred in overruling the demurrer to the amended petition.
    2. That the court erred in overruling the motion of the defendant, Harrison, to discharge the order of attachment.
    3. That the court erred in sustaining the motion to dismiss Wiley from the ease as a party defendant.
    I. That the court erred in giving judgment against the defendant, Harrison.

      The questions arising upon this petition in error have been reserved from the district court to this court.

      B. jS. Oowen, for plaintiffs in error.

      O. J. Swaney, for defendants in error.
   G-holson, J.

The grounds of attachment first stated in the code apply in cases where the debt or demand for the recovery of money is due or has accrued. The mode of obtaining an order of attachment upon thosé grounds is by an application to the clerk, and filing in his office an affidavit, showing the nature of the plaintiff’s claim, that it is just, the amount which it is believed the plaintiff ought to recover, and the existence of some one of the grounds for an attachment.” As to the manner in which the ^grounds for an attachment shall be shown, the code is silent.

Prior to the adoption of the code, a plaintiff was allowed to obtain a capias ad respondendum upon grounds and in a manner very similar to those prescribed by the code for obtaining an order of attachment. The sufficiency of an affidavit for a capias ad. respondendum was very fully considered by the Supreme Court, in the case of Hockspringer v. Ballenburg, 16 Ohio, 304. It was held in that case that an affidavit substantially in the language of the statute was sufficient, although the ground stated involved a charge of an intent to defraud, and no facts or circumstances were set forth. It was strongly yet vainly pressed upon the court in that case, that no man could know as a fact another’s intent, but only the facts and circumstances which disclosed it, and that when the affidavit alleged an intent in the words of the statute, it was simply an allegation of an inference or belief.

From an examination of the code it appears that very similar grounds are stated for the provisional remedy of an order for arrest and for that of an attachment. But in the former case, after the provision for establishing the grounds, it is added: The affidavit shall also contain a statement of the facts claimed to justify the belief in the existence of one or more of the above particulars.” The very natural conclusion would follow that what was so, expressly required in the one case would' not be necessary in the other; and we believe the usual practice since the code, in ordinary actions, has been to state the grounds for an attachment, in accordance with the rule sanctioned in the case of Hockspringer v. Ballenburg. With this practico we do not think it would be proper for this court now to interfere.

But there is a class of grounds for an attachment provided by the code to which different considerations would seem to apply. In certain cases an order of attachment may be obtained in an action brought before the debt is *due. The attachment is to be granted by the court, or by a judge thereof. No specific form of showing the existence of the grounds is pointed out. In like language as in an ordinary case, the plaintiff is required to make an oath in writing, showing the nature of his claim, that it is just, when the same will become due, and the existence of some one of the grounds for attachment enumerated.” We think, however, that in this class of cases proper practice would require that something more than a mere repetition of the' language of the code should be presented to a judge. He ought to be placed in a position to act intelligently in the exercise of the power and discretion conferred by the code. A court or judge, before allowing an attachment in an action for a debt not due, might very properly require a statement of facts and circumstances, such as ordinarily evince and disclose an intent, purpose, or effect in the disposition of the property, injurious to the rights of creditors, and not act upon what might very probably bo mere relief, or an inference hastily drawn.

In the present case the affidavit certainly disclosed no such facts or circumstances,- and the order might, and we might say ought to, have been refused. But the order having been allowed, the question whether the action of the judge, in granting it, or in refusing to discharge it upon the ground of the insufficiency of the affidavit, can be reviewed or corrected, is quite different, and is controlled by other considerations. When a statement is required, in no proscribed form, as a predicate for the action of a court or judge, and as a step in a remedial proceeding, conclusive upon no right of the party, whether that statement shall be more or less definite and specific, must be regarded as a matter of practice, resting in the discretion of the court of original-jurisdiction, and not a proper subject for inquiry in a proceeding in error. The same principle applies to the variation in the affidavit from the language of the statute. While it would have been bettor to follow that language, we can not say that the difference between to *the effect of” and which would have the effect of,” is substantial and material. The gravamen of the charge is the removal of property and the consequent injurious hinderance and delay to the creditors in the collection of their debt; and we must understand the words “hinder and delay ” contained in the affidavit, as used in an injurious and not in an innocent sense. , Still less sustainable is the objection that the charge of a hinderance and delay is limited to the particular creditors, and is not extended to creditors generally. Indeed, we see no reason to suppose that a single creditor, if there were only one, is not as much entitled to protection from the fraudulent conduct of his debtor, as any number of creditors. It would bo a novel defense to a charge of intent to defraud a particular creditor, that there were other creditors whom there was no intent to defraud.

A sufficient charge, or one which must now be deemed sufficient, having been made to sustain the order of attachment, had the same remained unanswered, there are two further inquiries: 1. Who was entitled to meet and repel the charge ? 2. Whether there was error in the decision of the court as to the fact of the truth of the charge.

In the ordinary cases of attachment, the grounds upon which they are obtained constitute no proper part of, and should not be embraced in, the pleadings in the action.. Neither the affidavit nor the order of attachment are pleadings admitting of an answer. The attachment is a special proceeding ancillary to the action, but so independent of it that an order in the attachment proceeding may, when final, be the subject of a petition in error during the pendency of the action.

The mode provided for the defendant to attack the order of attachment is a motion to discharge. Upon a motion, or by an application disconnected from the pleadings in the action, other creditors having orders of attachment levied upon the property must be heard, as to any question of priority, in the satisfaction of their respective judgments. ^Inextricable confusion would result if any other course were admitted. We see no reason to suppose that a different rule applies in the case of actions for debts not due. Indeed, the code provides that the same provisions shall apply in both cases (section 236). It is true, in the latter case, the action falls with the attachment.' But the proper course to produce this result is by a motion to dismiss, and not by a defense. It is the affidavit which sustains the attachment, and not averments in the petition. In the one, most of the facts stated must be verified as a matter of knowledge; in the other, mere belief will suffice. A defective affidavit could not be sustained by statements in the petition. A defendant has, undoubtedly, the right to attack the affidavit upon motion, and there is no propriety in allowing the same thing in answer to the petition. This course is better for the defendant — ■ he can act at once if he desires to relieve his property from the levy, and is not bound to wait for the framing of an issue upon the pleadings, and, it might be, for a trial before a jury.

We are satisfied, therefore, that there was no error in overruling the demurrer to the amended petition of the plaintiffs. For like reasons, there was no error in dismissing Thomas Wiley as a defendant in the action. His only -interest was as a subsequent attaching creditor, and any question of priority between him and the plaintiffs in this action could be properly settled upon motion —a course which the code clearly contemplates. Code, sec. 225. Such an inquiry is connected with the special proceedings in attachment, instituted by the different creditors, and not with the action brought by the one who first obtains an order of attachment, and in connection with those proceedings, their respective rights ought to be adjudicated.

The right of the defendant, Richard Harrison, to move to discharge the order of attachment, is expressly secured by the code, secs. 228, 229. He had the right to move upon the insufficiency of the affidavit of the plaintiffs, or upon his own affidavit, the affidavit of others, and upon ^papers and evidence in the case. If he took the latter course, the right was given to the plaintiffs to oppose the motion by affidavits and other evidence in addition to that on which the order of attachment was made. A motion of the latter description appears to have been made and decided by the court. The bill of exceptions shows that affidavits on the part of the defendant — being his own, one in the shape of an answer, and the other of a deposition — were read, and also the original affidavit of the plaintiffs and the subsequent one of their counsel.

An examination of these papers shows that, as evidence, if they may be so called, they are of a most unsatisfactory character, bsing, for the most part, mere general statements on the one side, and as general denials on the other. The particular facts or circumstances are not disclosed, and it is difficult to ascertain how the court was able to Arrive at a satisfactory conclusion. But there was offered on both sides what the code declares, to be proper evidence, and we are called upon to review the decision of the court below as to the credibility of the witnesses and the weight to be given to their statements. We may very reasonably conclude from the different phases of the complicated controversy, bringing the parties so frequently before the court, that the judge who decided the motion had advantages in forming an opinion which we do not possess. We certainly are not in a condition to say that the decision was right, or that we would have decided in the same way; but we are equally unable to say that it was clearly erroneous. We should be able to do so, to justify a reversal of a decision, upon a question of fact, and must therefore affirm the judgment.

Brinkerhofe, O. J., and Scott and Sutliee, JJ., concurred.

Peck, J., was absent.


author: Gholson, J.

text:
    *Chauncey Coston v. Cyrillus Paige.
    1. The ground for an attachment maybe stated in the affidavit in the language of the statute, without specifying more particularly the facts intended to be alleged.
    2. The charge thus made, if denied by the defendant, must be sustained by the plaintiff to the satisfaction of the court; upon the plaintiff, by the denial, is thrown the burden of proof.
    In error to the district court of Defiance county
    The case is sufficiently stated in the opinion of the court.

      Murray & Leland, for plaintiff in error.

      Garter <& McKim, for defendant in error.
   Gholson, J.

This is a petition in error to reverse the judgment of the district court of Defiance county. The case has been submitted without argument, and under an agreement between the parties. The allegations of error in the petition extend to the action of the court in refusing to discharge an order of attachment obtained by the plaintiff, and also to certain rulings upon the trial. The affidavit for the attachment was alleged to be insufficient, and, at the same time the truth of the charge was denied, and counter-affidavits of the defendant and others were offered in evidence. There were also offered and read additional affidavits on the part of the plaintiff.

The affidavit contains one of the grounds authorized by the statute, and in the language of the statute. The objection chiefly relied on, that the circumstances from which an intent to defraud is inferred, are not set forth, has been already considered during the present term, in the case of Harrison and Wiley v. King, Carey & Howe (ante, p. 388). There has been a difference of practice in the *state; but for the reasons stated in that case, we do not feel disposed to hold insufficient the more liberal rule as to the character of the statements in an affidavit — a rule sanctioned, we think, as well by the decision of the court in the case of Hockspringer v. Ballenburg, 16 Ohio, 304, as also from an implied legislative recognition.

We have examined the affidavits as to the truth of the facts charged in the affidavit. In assigning the reasons for his decision, upon that part of the motion, the judge of the court of common pleas appears to have supposed that, the charge being made, it must be disproved by a clear preponderance of evidence, thus assuming that the burden of proof in such a case was thrown on the defendant. To this reasoning we can not assent. If the charge be made by the plaintiff and denied, and nothing appears, to authorize greater credit to be given to the statements of the plaintiff than to those of the defendant, the attachment ought to be discharged. When the charge is made and denied, the burden of proof is, we think, thrown on the plaintiff, and he ought to satisfy the court that the charge he has made is well founded.

We have felt bound to look at the affidavits from a different point of view from that taken in the court below, and considering that the plaintiff was bound to make good his charge, to inquire whether the decision of the comrt, in sustaining it, was clearly and manifestly wrong. There is doubtless some discrepancy in the statements of the different persons who gave affidavits, but there is this clear advantage on the part of the plaintiff, that distinct and positive acts and declarations are charged, which are not met by the defendant; while the statements in his affidavits are, to a great extent, not matters of fact, but of belief in the good conduct and intention of the defendant. This -appears to have been felt by the defendant, for it is shown that he desired to produce rebutting evidence, which was refused by the judge, and is one of the grounds of error alleged in the petition. In. this, there may possibly have *been injustice done to the defendant, but it is a matter resting entirely in the discretion of the judge who heard the motion. Undoubtedly, before a motion of this kind is brought on, and heard, each party should be required to file his affidavits for the inspection of the other party, so that he may not be taken by surprise. But if, without this precaution, the hearing of the motion is brought on, and the affidavits for the first time offered and read, whether there shall be a postponement for other affidavits, is to be determined by the judge who hears the motion, and his action, one way or the other, can not bo assigned as matter of error.

"We have examined the two bills of exceptions taken to the ruling of the court in the rejection of evidence. One of these is governed by the principle just declared. It was clearly a matter of discretion — the allowing the party to state matters as rebutting' testimony which should have been stated upon his examination in chief. If any case can justify a strict application of this rule, it is when applied to the examination of the parties to the case as witnesses. The other bill of exceptions is taken to the ruling of the court that a certain question and answer were irrelevant. Only the question and answer are set out in the bill of exceptions. No other evidence is stated, so that the connection of the evidence claimed to be competent might be seen, and the court of errors placed in a position to decide whether the evidence was properly rejected. We can not, therefore, allow this exception. The judgment must be affirmed.

Brinkerhoee, O. J., and Scott and Sutliee, JJ., concurred.

Peck, J., concurred as to second proposition of the syllabus, but dissented as to the first.


author: Scott, J.

text:
    *Elisha Hardy v. Weaver A. Turney.
    Under the act of February 24, 184.8, amendatory of the “act to regulate the practice of the judicial courts,” passed March 12, 1845, it is error for the court, upon the trial of a cause to a jury, to refuse, on the application of a party, to reduce to writing the charge of the court upon points of law involved in the case, before the jury retire to consider of their verdict.

      In error to the court of-common pleas of Marion county. Reserved in the district court.
    The case is stated in the opinion of the court.

      O. Bowen, for plaintiff in error.

      P. Bunkar, for defendant in error.
   Scott, J.

The original action in this case was brought by Turney, the defendant in error, to recover of Hardy, the plaintiff- in error, for the price of a gold watch and chain, sold to the wife of Hardy, for $50.50. The action was assumpsit under the former practice, and the case was tried by a jury, at the June term of the court of common pleas, 1853, and a verdict and judgment rendered against Hardy. On his petition in error, the-case comes before us, by the reservation of the district court.

From a bill of exceptions taken by the plaintiff in error during the progress of the trial, it appears, among other things, that after the evidence on both sides had been closed, the plaintiff in error asked the court to give certain specified instructions to the jury, upon points of law arising in the case, some of which wore given as requested, and others materially modified. “The counsel for the defendant thereupon, before the jury had retired to consider of their verdict in the case, applied to, and requested, the court to reduce to writing the charge of the *court upon the several points of law involved in this case, and particularly upon the foregoing points, upon which the said defendant’s counsel had requested the instructions as above stated ; which application and request of said defendant’s counsel, the court refused to grant; and would not, before said jury retired to consider of their verdict, reduce to writing its charge upon the points of law aforesaid, n ir was the same reduced to writing until after the verdict of the jury had been returned into court.” This refusal of the court was excepted to at the time, and is now, among other things, assigned for error.

Can the refusal of the court to comply with this request of the defendant below, be justified ?

The statutory provision, in force at the time of the trial, and which must determine this question, is found in “an act to amend an act entitled ‘an act to regulate the practice of the judicial c ¡ urts.’ ” It reads thus:

“In all cases tried to a jury, the presiding judge shall, on the application of either party to the case on trial, before the jury retire to consider of their verdict, reduce to writing the charge of the court upon any point of law involved in the case, and such charge shall remain on file, among the papers in the cause.” 2 Curwen’s Stat. 1433, chap. 855.

The language of this statute is imperative, and its purpose apparent. It was, no doubt, intended to guard, as far as possible, against a misapprehension by the jury, of the law of the case as charged by the court, and to secure to the parties the benefit of a full and fair bill of exceptions. For these purposes it gives either party a right to ask that the judge shall reduce to writing his charge upon any point of law involved in the case, before the jury retire to consider of their verdict, and it withholds from the court all discretion to refuse the application. “ The judge shall,” etc.

It may be, that, in this case, the bill of exceptions, ^though not reduced to writing till after the verdict was returned, fully and fairly presents the instructions given by the court, to which counsel at the time took exception, yet that security against mistake which the statute awarded to the party as a right, was denied him. And, for this reason, without passing upon other errors assigned, we reverse the judgment of the common pleas, and remand the case.

Brinkerhoee, C. J., and Sutliee, Peck, and G-holson, JJ., concurred.


author: Brinkerhoee, C. J.

text:
    Highland Carter v. Sarah A. Krise.
    On the trial of the issue prescribed, by the act of February 2, 1824, 11 for the maintenance and support of illegitimate children,” the defendant, by virtue of the provisions of section 310 of the code of civil procedure, is a competent witness in his own behalf.
    Reserved in the district court of Ashland county.
    The case is sufficiently stated in the opinion of the court.

      P’ulton, McCombs & McCarty, for plaintiff in error.

      ,.Kenney, Porter & Osborn, for defendant in error.
   Brinkerhoee, C. J.

In a proceeding in the court of common pleas of Ashland county, under the act of February 2,1824, “ for the maintenance and support of illegitimate children,” the plaintiff in error was found to be the father of a bastard child. On the trial, the plaintiff in error offered himself as a witness. He was objected to as incompetent; *the objection was sustained by the court; and [403 to this ruling he took an exception. To reverse the order and judgment of the court of common pleas, the plaintiff in error filed his petition in error in the district court, and, with a view to the detennination of the question thus presented, the case was reserved for decision here. Other questions are presented in the record, but we think none of them are worthy of particular consideration; and wo shall confine ourselves to this question only: Is the defendant, in a proceeding in bastardy, a competent witness on the trial of the issue prescribed by the statute ?

Section 310 of the code of civil procedure prescribes that:

No person shall be disqualified as a witness, in any civil action or proceeding, by reason of his interest in the event of the same, as a party, or otherwise,” etc.

The sections immediately following make certain exceptions to this general provision, none of which are claimed to apply to the question under consideration.

Section 604 of the code is as follows:

Until the legislature shall otherwise provide, this code shall not affect proceedings on habeas corpus, quo warranto, or to assess damages for private property taken for public usos; nor proceedings under the statutes for the settlement of estates of deceased persons; nor proceedings under statutes relating to dower, divorce, or alimony ; nor to establish, or set aside a will; nor proceedings under statutes relating to apprentices, arbitration, bastardy, insolvent debtors; nor any special statutory remedy not heretofore obtained by action; but such proceedings may be prosecuted under the code whenever it is applicable.”

At first blush, it might be supposed that this section excluded proceedings in bastardy from the application of the general rule established by section 310; but it has been settled by this court, in Atlantic and Great Western R. R. *Co. v. Campbell, 4 Ohio St. 583, that section 604 “ has reference to the, forms of proceedings ” only, “ and not to the competency of witnesses.” And accordingly in that case it was held, that in a proceeding to assess damages for private property taken for public uses,” the owner of,the land was a competent witness. So in Hobbs v. Beckwith, 6 Ohio St. 252, it was held that the provisions of section 604 of the code had “reference to proceedings under” the bastardy act “strictly,” and not to proceedings to review them on error, and that hence a petition, in error, and not certiorari, furnished the proper mode of review.

The question before us, then, depends altogether upon the inquiry, whether a proceeding in bastardy is a civil or criminal proceeding. If it is a civil proceeding, section 310 of the code applies, and the defendant is a competent witness.

As the laws of no two states, probably, are entirely the same on the subject of bastardy, the adjudications made in other states afford' no conclusive solution of the question. In Indiana (6 Blackf. 1), North Carolina (Busbee’s Law, 244), Connecticut (2 Conn. 357), Kentucky (7 J. J. Marshall, 584), Maine (36 Maine, 486; 37 Maine, 546), and in New Hampshire (11 N. H. 156), where the whole proceedings seem to bo very closely analogous to those prescribed by our own statutes, the proceeding is held to be a civil one.

In South Carolina (1 Spear, 48), Georgia (3 Kelly, 534), and in Pennsylvania (4 S. & R. 449), the proceeding is a criminal one. But in all of these last-named states, the proceeding is by indictment ; and in the case last cited, where the executive of the state had pardoned the offense after conviction, such pardon was held not to apply to the order for maintenance consequent upon the conviction.

In Massachusetts, however, where the forms of proceeding in the ease are somewhat similar to those in this state, in a question as to-whether a civil or a criminal court had ^jurisdiction of the proceeding, it was held to be criminal. This holding, however, was mainly on the ground that ancient,statutes of that commonwealth had classed, bastardy among crimes and offenses. 6 Pick. 104.

It is certainly true that none of the forms and modes of proceeding under our bastardy act are analogous to proceedings in criminal cases. And yet the most of the incidents to such a proceeding are such as belong to proceedings strictly civil. It is, or may be, prosecuted in the name of a private party only — the mother of the child, or the township trustees. On a bond of indemnity being given that the child shall not become a public charge, the proceeding maybe compromised and discharged by the mother of the child. It is prosecuted neither by information nor, indictment. It is no part of the duty of the attorney for the state to prosecute it. The ■defendant after conviction is entitled to all the benefit of the act for 'the relief of insolvent debtors; and, I suppose, it will not be claimed that at any stage of the proceeding he can be the subject of pardon by the executive.

But, after all, this question can properly be determined only by looking into the essential nature, aim, and object of the proceeding. Does it aim to punish the defendant? or is it in its nature simply a remedy to enforce the discharge of a civil and moral duty. It is clearly the latter, and that only. It is the duty of every man who becomes the father of a child to contribute to its support, and ■to save the public from the burden of its maintenance. This duty the statute aims to enforce. There is nothing punitive about it. Hawes v. Cooksey and Jameg, 13 Ohio, 242; Marston v. Jenness, 11 N. H. 156.

If any crime be involved in the accusation against the defendant, it must consist in the act of illicit intercourse by which the bastard child was begotten; and of this crime the parties are equally guilty, whether paternity do or do not result; and yet, by our law, there is no crime where there is no paternity, unless the parties live and cohabit in *a state of adultery or fornication, and then they may be prosecuted under another statute, by information or indictment, and punished by fine and imprisonment.

Finally, the code commissioners, and the legislature in the adoption of the code, by expressly excepting the mode of proceeding in bastardy from the operation of the code — which is exclusively a “code of civil procedure” — and by thus recognizing the necessity of such special exception, in order to accomplish that end, do thereby recognize its essential character as a civil proceeding.

We are of opinion that the court below erred in holding the defendant to be incompetent as a witness in the case.

Judgment reversed, and new trial awarded.

Scott, Sutliee, and G-holson, JJ., concurred.

Peck, J., dissented.