author: Hitchcock, J.

text:
    The Lexington Fire, Life, and Marine Insurance Company v. George W. Paver.
    The party holding the affirmative of an issue is entitled to open and close the evidence and argument. If anything remains to be proven affirmatively by a plaintiff, he must always open.
    In cases where the testimony upon any particular issue leaves it doubtful whether the affirmative of that issue is sustained, it is a safe and proper oourse for the jury to find against the party holding the affirmative.
    In an action upon a policy of insurance, if it shall appear that any matter in reference to a description of the property, and which would increase the risk, is not made known by the insured, such concealment will avoid the policy. It is otherwise if the matter concealed could in no way increase the risk.
    ■The court is not hound to instruct the jury upon hypothetical propositions: which are in no shape connected with the issues joined between the-parties.
    This is a writ of error to the Supremo Court of Hamilton county.
    The original action was covenant, commenced by Paver on-May 12, 1843, against the company, on a policy of insurance, signed by plaintiffs in error, dated January 31, 1843, insuring the-steamboat Ellon Dale, against fire only, lost or not lost, for two-months. Amount insured, $2,000; boat valued at $3,000.
    The declaration avers a loss by fire on March 1, 1843, also notice and abandonment thereof, to the plaintiffs *in error, March 13, 1843. To this declaration there are eleven pleas filed, all of which were traversed by the defendant in error, and issues joined.
    The case was submitted to a jury, at the last term in Hamilton-county, who returned a verdict, finding all the issues specifically for the defendant in error, and assessed his damages at $2,480. Whereupon, a motion was made for a new trial, which was overruled by the court, and judgment entered upon the verdict.
    The plaintiff in error then tendered a bill of exceptions, which-was signed and sealed by the judges of the court, and made part of the record. This bill of exceptions is of great length, containing a very considerable share of the testimony which was given on the trial. It would be useless to recapitulate it at length, it not being necessary for the proper understanding of the points-decided. The following statement will be sufficient. It shows, that on the trial, the plaintiffs in error claimed the right to open and close the evidence and argument of the case, on the ground that the burden of proof was on the defendant, on all the issues joined, and that the plaintiff’s declaration was admitted. The-court awarded the opening and close, however, to the defendant in error, and declined to hear the defendant’s counsel upon the subject.
    After the testimony was closed, the court charged the jury that-the plea of the defendants, that the plaintiff fraudulently caused his boat to bo burnt, charged the plaintiff with a crime, and that, they ought not to find a verdict for the defendants on that plea, Tinless the evidence that the plaintiff did burn his own boat was -so strong as to satisfy them of the fact beyond a reasonable •doubt.
    The defendants’ counsel asked the court to charge the jury, that if they should find that the steamboat was seaworthy, but that her hull had been the hull of a keel-boat built at Pittsburg, ■of which fact the defendants were ignorant at the time of issuing the policy, and a knowledge of *which would have caused •them to refuse the risk, and said fact was not communicated to them, it was a concealment of a material fact, and avoided the policy. This instruction the court refused to give.
    Also, to charge that if plaintiff, at the time of effecting the insurance, represented the boat to be a good steamboat worth more than $3,000, and the defendants were thereby induced to take the risk and issue said policy, and the steamboat was not a .good steamboat, nor worth $3,000, the policy did not attach, and the plaintiff could not recover. This instruction the court did mot give, and said they would not give or refuse the same; that the language “ good steamboat,” as applied to insurance law, was indefinite, and that they did not know what it meant in reference to such law, and if the counsel would inform the court what it meant, the court would charge upon it; that a good steamboat would depend upon all the circumstances, such as her class and .her trade. To the charge as given and the refusal to give, as ■prayed for, the counsel for defendants excepted.
    After verdict, the defendants’ counsel moved for a new trial, for the reasons assigned in the charge and refusals to charge as .above; also, because the court refused to permit the defendants to open and close the argument; also, because the verdict was .against the weight of evidence. This moti on for a new trial was •overruled.
    The plaintiffs in error claim that the court, in the trial of the ■cause, erred in the following particulars, viz:
    1. In not permitting the defendants below to open and close before the jury.
    2. In the charge given to the jury as stated in the bill of exceptions.
    3. Because said court refused to charge as requested by the defendants’ counsel, as stated in the bill of exceptions.

      4. Because the court overruled the motion for a new trial, as shown by the bill of exceptions.
    *5. Because the judgment was given for the plaintiff, when it should have been given for the defendants.
    6. Because the verdict was contrary to evidence.
    7. Because the declaration is insufficient, in not averring the boat was completely provided with master, officers, and crew.
    Taft, Key & Mallon. for plaintiffs in error, submitted the following authorities:
    2 Stev. N. P. 1798, 1807; 3 Chit. Gen. Pr. 872, 875; 2 Phil. Ev., C. & H. Notes, 479; 1 Greenl. Ev., secs. 74-76; 1 Stark. Ev., 6 Am. ed. 539; Mercer v. Whall, 48 Eng. Com. L. 464; Heckman v. Ferrie, 3 M. & W. 517 ; Barrel v. Wickham, 25 Eng. Com. L. 354; Smart v. Ingal, 14 M. & W. 97; Pearson v. Coles, 1 Moo. & R. 206; Weidman v. Khor, 13 S. & R. 24.
    Fox & Lincoln, and A. N. Riddle, for defendant in error, submitted the following authorities:
    2 Greenl. Ev. 328; 1 Phil. Ins. 249, 250; 4 East, 590; 7 Ohio, 284; 2 Phil. Ins. 5, 40; 8 Pick. 14; 11 Ib. 227; 3 Mass. 331; 8 Ib. 322; 15 East, 208; 8 Conn. 459; 1 Phil. Ins. 214, 249, 250, 309, 310, 316, 317, 632, 642.
   Hitchcock, J.

Before proceeding to consider the errors assigned in this case, it is necessary that we understand fully the •issues made up by the parties, and which were submitted to the jury for trial. The record shows that the defendants below, after craving oyer of the declaration, filed no less than eleven special pleas, no doubt supposing they were all proper and necessary for the protection of their rights in the case. The first plea is, that at the time of effecting the insurance, the plaintiff did represent the said steamboat Ellen Dale to these defendants otherwise than the same really was, and so as to cause and induce the said ^defendants to effect said insurance at a lower premium than they would otherwise have done.”

“ 2. That the plaintiff did cause the said steamboat Ellen Dale to be represented to the defendants otherwise than it really was, in matters material to the risk assured by the defendants,” and thereby induced the defendants to effect the insurance, which otherwise they would not have done.

“3. That plaintiff caused said boat to be represented to the defendants otherwise than the same really was; that is to say, that said Ellen Dale was of the value of $3,000 and upward, when in truth the value of said boat was less than $800, and that the same was unknown to the defendants; that the same was material to the risk,” etc.

4. That the plaintiff concealed facts material to the risk assured, and that without such concealment the defendants would not have assured, etc.

5. That the plaintiff concealed facts material to the risk, to wit: That the hull of said steamboat had been the keel of a keel-boatr that the bottom thereof was constructed of thin, red-oak plank, without sheathing; that she was more light and fragile than steamboats usually are; was nearly worn out; that the planks of the bottom were worm-eaten, “ and also many other facts material to the risk.”

6. That the plaintiff, intending to defraud the defendants, did cause said steamboat to be overvalued in and by said policy, by representing to the defendants that the same was worth $3,000, when the true value was less than $800, and by said false and fraudulent representations induced the defendants, to whom the true value of the boat was unknown, to fix the value thereof at $3,000, and insure thereon the sum of $2,000.

7. That the plaintiff concealed from defendants *the value of said boat, in this—that knowing that the defendants had no knowledge of the value of the same, except as they arrived at such knowledge from the survey and report of one Joseph Pierce, and well knowing that the valuation of the same, made by the said Joseph Pierce, in and by said report, to wit, $3,000, was far greater than the value thereof, viz., less than $800; yet the plaintiff concealed the same from the defendants; that the said concealment was material to the risk, and that the insurance was obtained by the concealment.

8. That the loss by fire was caused by the fraudulent and willful act of the plaintiff; that the plaintiff caused said boat to be burned and destroyed, with intent to cheat and defraud the defendants.

9. That the plaintiff caused said boat to be represented to the defendants to be worth $3,000, although of less real value than $800, as was well known to plaintiff, although unknown to the defendants, and did thereby induce the defendants to value said boat at $3,000, and to insure thereon $2,000, with the intention of causing the boat to be destroyed by fire, for the purpose of defrauding the defendants.

10. That from the time of effecting the insurance to the time of the destruction of the boat, the same was unseaworthy.

11. That the said boat was unseaworthy in this, that she was unfit and unsafe to navigate the southern rivers, by reason of the slender and feeble timbers and planks of which she was constructed ; by reason of worm holes in her bottom ; by reason of the fragile character of her original construction; by reason of the rapid deterioration she had undergone; by reason of injuries she had received ; by reason of the bad character and incompetency of her captain; and by reason of many other defects.

The foregoing is the substance of the several pleas. They may all have been necessary and proper; but it really seems *to us, to say the least, that there is some little repetition in them ; and we should doubt whether some of them would well boar the test of a demurrer. The plaintiff below, however, replied to each plea specifically, traversing all the facts set forth.

The first error assigned is, that the court refused to permit the defendants below to open and close the testimony and the argument. The rule upon this subject, as recognized by this court, is this, that the party having the affirmative of the issue, shall •open and close. Where, by the pleadings, it is apparent that no evidence is required from the plaintiff, the defendant ought to open ; but if any, no matter how slight, proof is required of the ■plaintiff, he must be allowed to go forward. In this case, however, there was not á single issue to be determined; but eleven separate and distinct issues, in some of which, at least, the plaintiff had the affirmative. Take, for instance, the tenth plea, which is, that the boat was unseaworthy. This plea is traversed by the plaintiff below, by the affirmation that she was seaworthy. And “the same is the fact in some of the other pleas. Looking at the whole case, the court entertained the opinion that the plaintiff should open the case. We are not prepared to say that there was anything wrong in this. And even had there been a mistake, I •should be unwilling to hold that this was an error in law, for which a judgment should be reversed. There is no such uniform practice in this state as would induce me to say it had become a principle of law.

The second error assigned is, that the court erred in charging the jury, as set forth in the bill of exceptions.

The charge given, as appears from the bill of exceptions, which is complained of, is this: “That the plea of the defendants, that, the plaintiff fraudulently caused the said steamboat ‘ Ellen Dale ’ to be burnt, charged the plaintiff with a crime, and that they ought not to find a verdict for the defendant on that plea, unless the evidence that the plaintiff did burn his boat was so strong as to satisfy them *of the fact beyond a reasonable doubt.” I arprehend that it will not be insisted that the court erred in saying that the plea, in charging the-plaintiff below with burning his own boat, charged him with a crime. And it is a question worthy of grave consideration, whether a man should be found guilty of a crime, let the charge be made against him either in a civil or criminal proceeding, if there be doubt whether or not he is guilty. It is the duty of the jury in all cases to find the truth of the fact presented to them. Bat if, after hearing all the evidence upon the point, it still remains doubtful where the truth lies, what is to be done? We have always held, that under such circumstances, it is the duty of a jury to resolve the doubt in favor of him against whom the charge is made. For instance, after hearing all the evidence, if it remains doubtful whether a plaintiff has sustained his cause of action, that doubt must acquit the defendant; and so if a defendant relics upon a special plea, if it is doubtful whether the plea is sustained, a jury can not, with propriety, return a verdict sustaining the plea. It is said, however, that a jury must decide according to the weight of the evidence. This is true. All the evidence must be considered; it must be deliberated upon ; it must be weighed ; but after all, a decision must be made according to the conviction produced upon the minds of those who have to respond to that evidence. A fact must be proved, either positively or circumstantially, before a jury can be justified in saying that it exists.

It is said, however, that the rule is different in civil and criminal cases; and so undoubtedly it is, to a certain extent. It would bo the duty of a jury to examine more carefully the testimony produced for the purpose of convicting a man of a crime, than the same testimony when introduced to charge him with the payment of a money demand. The testimony should be more clear, more conclusive, more convincing; less liable to doubt and uncertainty. Mr. Greenleaf, in his treatise ,upon evidence, in speaking of a case like the one know before the court, says: “Where the ^defense, is, that the property was willfully burnt, by the plaintiff himself, the crime must be as fully and satisfactorily proven to the jury, as would warrant them in finding him guilty on an indictment for the same offense.” 2 Greenl. Ev., sec. 408. It is true but one authority is cited by the writer to sustain this dictum, but no decided case has been referred to in the argument in opposition to it. And as applicable to the case now before us, there would seem to be some little reason at least in adopting this rule. The plaintiff below was charged in the pleading with all manner of fraud ; with having burnt his own boat; with having effected the insurance, with the fraudulent intent, when the insurance was effected, of so burning her; and tha the, as captain (for the proofs show that he was captain), was incapable of managing her. And now the complaint is, that a rule somewhat'like the one laid down in Greenleaf was prescribed to the jury, to guide them in their deliberations. That the jury were not left to decide the question of guilt upon doubtful evidence. The rule laid down by that writer may not be technically correct, but it certainly is not far out of the way. My understanding upon this subject is,, that in all cases, whether civil or criminal, the jury must be satisfied, must be convinced that the fact is as they find it to be. And how can they be satisfied and convinced, so long as doubts exist in their minds as to the truth of such fact. Under such circumstances, I should not dare to direct a jury that they were bound to find the truth of such fact; but should unquestionably say to-them, that the doubt must operate in favor of him who held the negative of the issue to be passed upon.

What was done more than this, in the case before the court ? The jury were told that before they could find for the defendant below, upon the plea which charged the plaintiff with burning his own boat, they must be satisfied of its truth beyond a reasonable doubt. Will it be contended, that if, after hearing all the evidence upon this point, it still remained doubtful in their minds, whether the defendant in terror actually burned his boat, they were bound, notwithstanding such doubt, to find tie did commit the act? Such a principle would compel a jury, on their oaths, to find the existence of a fact of which they doubted. It would hold them, in their deliberations, to seek, not after the truth, but after the weight of evidence. True, a jury are sworn to return a true verdict, according to the evidence given them in court. But according to my understanding, by taking upon themselves this obligation, they are bound to return a verdict according to the convictions produced in their minds by this evidence.

The objection raised by the plaintiff in error, to this part of the charge, is based rather upon the peculiar phraseology used, than upon any substantial objection to the substance. Now the court instructed the jury, in reference to this particular plea of the defendant below, that if, after hearing and considering all the evidence relative to that plea, it remained doubtful in their minds, whether the plaintiff in error burnt the boat, it would be their duty to acquit him of the charge, there would have been no question but that the instruction would have been correct. Now the instructions actually given do not substantially vary from this. Upon careful examination, I am not prepared to say that any principle of law relative to the rules of evidence, or the duty of juries, was violated by the instructions complained of as being erroneous.

The next error assigned is, that the court refused to charge as requested by the defendant’s counsel, as set forth in the bill of exceptions.

The particular errors pointed out in argument, although not in the assignment, are first: “The defendant’s counsel asked the court to charge the jury, that if they should find that the steamboat was seaworthy, but that her hull had been the hull of a keel-boat built at Pittsburg, of which fact the defendants were ignoant at the time of issuing the policy, and a knowledge of which would have caused them to refuse the risk, and said fact was not communicated to *thom, it was a concealment of a material fact, and avoided the policy.” This was refused.

Now, whether such instructions should have been given, at the request of the plaintiff in error, must depend upon circumstances. There can be no doubt that the utmost good faith is required of him who would effect an insurance upon his property. It is his duty truly to represent the situation and state of that property, so far as is necessary for the information of the insurer. Any concealment of a fact material to the risk, and which, if known, would prevent the undertaking of the insurer, would defeat the policy. More especially, if such concealment was designed to deceive him who takes the risk. "Was it material to the risk in this case, that it should have been made known to the insurers? The hypothetical proposition assumed by counsel is, that had the plaintiffs in error known that the hull of the steamboat had been the hull of a keel-boat, they would not have taken the risk. But in putting this hypothetical case, there is no pretense that the defendant in error had any knowledge of this. And if he had no knowledge that such was the determination of plaintiffe in error, he can not be charged with fraudulent concealment. If, however, there was more danger that a boat built upon the hull of a keel-boat would be burnt than if built otherwise, then it was material that this fact should be made known. If not, I do not so readily perceive how it could be material. That any increased danger existed on this account is not pretended. If it was a singular occurrence'that a boat had been so built, it might, perhaps, then have been necessary that the fact that this boat was so constructed, should have been communicated to the insurers, although I do not see how it should be so considered. But the testimony in the case shows, that boats of the smaller classes were not unfrequently constructed in this manner. This was a boat of the smaller class; and the defendant in error might well suppose that those plaintiffs in error, who were in the habit of insuring, must be acquainted with a fact which seems to have been known to ^others in the same kind of business. Inasmuch as the evidence does not show that the risk was in the least increased, in consequence of the manner in which the boat was constructed, we are of opinion that there was no error in refusing this particular instruction.

It is claimed, in the next place, that the court erred in refusing to charge, as requested by the counsel for plaintiffs in error, “ that if the plaintiff represented, to the defendants, the steamboat, at the time of effecting the insurance, ‘ to be a good steamboat, worth more than $3,000,’ and the defendants were thereby induced to take the risk, and issue said policy, and the said steamboat was not a good steamboat, nor worth ‘ $3,000,’ the policy did not attach, and the plaintiff could not recover.”

The bill of exceptions shows that the court did not give this instruction, remarking that they would not give or refuse the same; that the language good steamboat,” as applied to the law of insurance, was indefinite ; and that they did not know what it meant in reference to such law, and if the counsel would inform tbe court what it meant, that the court would charge upon it; that a good steamboat would depend upon all the circumstances— such as her class, and her trade.

It is insisted, however, that the court was bound to give this instruction, whether it knew what was meant by counsel as a good steamboat, or not. It would, at least, have been kind in the counsel, to have explained their meaning, in using this language in the connection in which it was used. Neglecting and refusing' to do it, it is hardly proper to assign this neglect, on the part of the court, to charge, as requested, for error. As a matter of fact, it is true that a boat may be a good steamboat for some particular trade, and not for another. She may be a good steamboat for a particular class, and yet, not of such a character as, according to' some acceptations of the term, to be denominated a good steamboat. A boat of twenty-five or fifty tons burden would not, in the estimation of one who considered ^tonnage to constitute, in a great measure, the quality of a boat, be considered a good steamboat. But for present purposes, let it be admitted that the-court were bound to charge, without being informed of the meaning of counsel, was there error?

The defendants below have placed their defense upon eleven-special pleas, in which they set up the reasons why they should not be bound by the policy. I have carefully examined these pleas, and in no one of them is there an allegation that the plaintiff below represented the Ellen Bale to be “ a good steamboat,, and worth $3,000.” There is an allegation, and it is repeated in many of these pleas, that he represented the boat to be worth $3,000, and the jury have found the fact that she was worth that much money. "Whether she was represented to be “ a good steamboat,” was not a matter put in issue. And the defendants below, not having chosen to put this matter in issue, but having elected to rely upon other matters of defense, it seems to me they had no right to call upon the court to give any instructions upon this point, and the court might well refuse any.

As to the value of the boat. Under which of the pleas would this charge be claimed? If under any, it must have been the sixth, seventh, and ninth, which are all based upon the hypothesis, that the plaintiff below represented to the defendants, and caused it to be represented to them, that the boat was worth $3,000 and more, when he knew that she was far less valuable. In other words, that the plaintiff fraudulently, and with intent to cheat and deceive the defendants, made this representation. Now what would be the evidence necessary to sustain the issues joined upon the pleas, on the part of the plaintiff in error? Unquestionably, it must he proven that the representation was made that the boat was worth §3,000, and that she was not actually worth that much money. And this was assumed to have been proved, as the foundation of the charge requested. But this would not have been sufficient. There must have been further proof *that the defendant, at the time he made the representation, actually knew that the boat was not of the value represented. Without this proof, there was .no evidence of fraud. And it was not pi'etended, in the hypothetical proposition submitted, that there was any such proof. It would have been improper then, under the state of pleadings, to have given the instructions requested.

The next error assigned is, that the court refused to grant a new trial.

And the reasons assigned for a new trial are, that the court erred in the several particulars before enumerated, and because the verdict was against the evidence.

It is unnecessary to notice the first reason assigned, as we entertain the opinion that the court did not err in the particulars specified during the progress of the trial. In the opinion of the judges who heard the trial, the verdict was not against the evidence; and there is nothing in the bill of exceptions, although all the evidence is not therein specified, which would lead this court, to a different conclusion.

The last error assigned is the general error, and under this it is claimed that the judgment must be reversed, because the declaration is insufficient in not averring “that the boat was completely provided with a master and crew,” in accordance with a covenant contained in the policy of insurance. It would seem be 'rather late to take advantage of a defect of this kind. The policy was made part of the declaration by oyer, and if there had been any variance between it and the declaration, it should have been taken advantage of by demurrer. The declaration shows a title or right in the defendant in error; and, if defectively set out, it is cured by verdict. Beside all this, perhaps no one question was litigated more severely before the jury than the question whether this boat was completely provided with a competent master, officers, and crew.

We are not satisfied that any error was committed by the Supreme Court of the county, and the judgment is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    *Anna Hargraves and Philip Young v. Samuel Miller’s Administratrix and others.
    Where the testimony in a case in chancery is equally balanced, the bill will be dismissed.
    Where the different statements of a witness are inconsistent with each other, or ho is directly contradicted in regard to material facts, his whole testimony will be disregarded.
    This is a bill in chancery, reserved in Hamilton county.
    The case was submitted to the court upon bill, answers, replications, exhibits, and testimony. In the view taken of it by the court, it turned wholly upon questions of fact, which are stated in the opinion of the court. None of the legal questions argued by counsel having been decided by the court, their arguments are not reported.
    King & Anderson, Fox & Lincoln, and T. Ewing, for complainants.
    J. A. Pugh, Stoker & G wynne, and Henry Starr, for defendants.
   Hitchcock, J.

In the view the court take of this case, its decision depends principally upon questions of fact. It is true that questions of law have been argued, which, if certain facts were found to exist, would have an important bearing upon the case.

On April 24, 1816, Maxwell Hargraves and Anna, his wife, leased to the complainant, Philip Young, at an annual rent of $150, a lot of ground situate on the northeast corner of Main and Fourth streets, in Cincinnati, with a house standing on the same, for and during the term of the natural life of the said Anna. The property leased extended eighteen feet on Main ^street, and one hundred feet on Fourth street. The writing, purporting to bo a lease, was signed by Maxwell and Anna Hargraves and by Philip Young, and was attested by one witness, but was not acknowledged.

In pursuance of this lease, Young took possession of the property, and continued in possession until after the death of Maxwell Hargraves.

This lot had been assigned to Anna Hargraves, as a part of her dower in the estate of her former husband, Seth Cutter. On July 26,1831, Maxwell Hargraves and Anna, his wife, sold and conveyed to Samuel R. Miller, for the consideration of $6,000, all her right, title, and interest in and to lot No. 85, in Cincinnati, bounded west by Main street, and south by Fourth street, extending about sixty-six on the former and one hundred feet on the latter. The land formerly leased by Young was a part of the lot so sold. At the time of this sale, F. Lawson, A. Ludlow, Joseph Murray, McChesney & Avery, and Philip Young were in possession of the entire lot, as stated in the deed, as tenants of Hargraves and wife. This deed contains a warrant of quiet enjoyment on the part of Hargraves and wife, securing to Miller the possession, rents, issues, profits, etc., “ saving to the said tenants, now occupying under said grantors, their legal rights.”

Subsequently, Miller, for the consideration of $7,500, transferred his interest, acquired under this deed, to John J. Worthington, Horatio G. Philips, and David Gwynne; Philips and Gwynne having previously become the owners of the reversionary interest in foe. By conveyances between these parties, the legal interest in that portion of the lot, under lease to Young, became vestod in Worthington.

Hargraves died in February, 1833, and soon thereafter, Worthington commenced an action of ejectment against Young, and recovered from him the possession of the leased property. This case was reserved on a motion for a new trial, and was decided in favor of the plaintiff at the December *term of this court, 1834. The court holding that “ a lease for life, by husband and wife, not acknowledged by the wife as the statute requires, is not available against the wife after the death of the husband.” 6 Ohio, 313.

Young then commenced an action against Hargraves’ administrator, upon a covenant of quiet enjoyment in the lease. This case was decided at the December term of this court, 1836. 7 Ohio, 63, pt. 2.

Worthington having recovered in ejectment, commenced another ■action against Young for the mesne profits. That case came also into this court, and was decided at the December term, 1837. 8 ■Ohio, 401. In this suit Worthington recovered $1,030, and one object of the present bill is to compel him to refund the amount .so recovered.

Young subsequently filed a bill in chancery against the present defendants, making the same charges substantially, and praying the same relief as in the present bill. This last case was heard in this court at the December term, 1840. The bill was dismissed, and among the reasons assigned for the dismissal, one is that Mrs. Hargraves was not a party. 10 Ohio, 85.

The bill now under consideration was filed August 2, 1842, and in this bill Mrs. Hargraves and Young are complainants.

It is charged in the bill, that at the time when Miller entered into the contract for the purchase of this property, Hargraves and wife utterly refused to sell upon any other terms than that Young should be secured in the enjoyment of the jmoperty leased to him during the life of Mrs. Hargraves, at the stipulated rent of $150 per year. That Miller well understood such to be their determination, and that he expressly agreed so to draw the deed to be ex-■eeuted to himself, that such right should be secured to Young. That Miller, at the time the deed was executed, represented that it was so drawn, and that they would never have executed it had they known that Young’s *right to the enjoyment of the property during the life of Mrs. Hargraves, was not secured. It is further charged that Miller, by mistake or design, so drew the ■deed that Young’s rights were not protected. That all the defendants were jointly interested in the purchase; that Miller effected the same as well for the benefit of Worthington, Philips, and •Grwynne as of himself. That Worthington, PEilipos, and G-ywnne had full notice of this agreement, and that Young’s rights were to bo protected.

It is prayed in the bill that the deed so fraudulently obtained may be reformed so as to conform to 'the contract between Hargraves and wife, and Miller, thereby securing Young’s rights; that Young may be reinstated in the possession of the property; •that Worthington may be comp elled to refund the amount of the judgment for mesne profits; that an account may be stated of the .¡rents and profits of the leased premises, and for general relief.

The defendants have all answered.

Miller admits the purchase from Hargraves and wife, but denies that Worthington, Phillips, and G Wynne had any interest in, or •any knowledge of his intention to purchase, until after the same was made. He denies explicitly that there was any understanding or agreement as stated in the bill, as to securing to Young any •interest over and above that which was secured by his lease. Says that the deed was explained to and perfectly understood by Hargraves and wife. Denies that any intimation was made by them, or either of them, that Young should be secured otherwise than ho was secured by the deed. Denies all fraud, etc. Since this answer was filed Miller has died, and his administratrix,is made party.

The other defendants admit that they purchased the property of Miller, but deny that they had any notice of any understanding, arrangements, or agreement between Hargraves and wife, and Miller, otherwise than appears from the face of the deed. If there was any such agreement as set forth *in the bill, they claim that not having any notice thereof, they are innocent purchasers without notice.

A question has been raised in argument whether the answers •of the defendants in this case can be considered as evidence, inasmuch as the complainants did not call upon them to answer under oath. Under a late statute a complainant may, if he think proper, dispense with the oath of the defendant by so stating in his bill, and in such case the answer is not evidence. But this bill was filed before the enactment of that law. The defendants are called upon to answer—whether under oath or not is not stated. But the statute then in force required all answers to be upon oath, and by the practice of this court, answers, so sworn, to have been considered as evidence.

The first question presented by the bill and the answer of Miller (and it is the great question of the case) is whether there was any such agreement or understanding between the Hargraves and Miller, as is stated in the bill,—whether there was, in fact, any fraud or mistake in the transaction, on the part of Miller.

In the case referred to in 10 Ohio and which was similar to the one now before us, the court find this matter to be proven as stated in the bill. What evidence was before the court at that time we know not. They may have had the- testimony of Mrs. Hargraves, or the testimony of other witnesses, which is not now before us. Taking the testimony as presented to us, there are but three depositions by which it is attempted to prove directly the charge. There are, it is true, the depositions of Carter, Cutter, and Thoms, who testify to conversations they had with the Hargraves, both after and before the execution of the deed to Miller. Carter and Thoms say they were anxious to buy this-land, and that Hargraves and wife refused to sell upon any other terms than that Young should be secured in the enjoyment of his lease during the life of Mrs. Hargraves. Cutter confirms this statement. But neither ^one of these witnesses had any knowledge of the contract with Miller. Admitting that it was competent to prove the declarations of Hargraves and wife, before the execution of the deed, certainly their declaration, subsequent to its execution, must be excluded. This kind of evidence is all objected to.

Joseph Murray, a witness examined by complainant, proves the whole case, not only as against Miller, but as against the other defendants. His deposition was taken at St. Louis on October 17, 1843, and there was no cross-examination. He states that he made the contract with Miller,—that Miller was informed of the determination of Hargraves and wife to sell upon no other conditions than that Young should enjoy the property by him rented, during the life of Mrs. Hargraves. That Miller agreed to purchase upon these terms, and that such provision should bo made in the deed. That Miller called upon him frequently before the contract was closed, he acting as the agent of Hargraves, who was his father-in-law. That Worthington called frequently upon him, upon the same business. Stated that it made no difference whether ho or Miller purchased. That he was acting for Phillips and Gwynnc, and that they were partners. That Worthington was present in the office when Miller was drawing the deed, and knew all about it. That Worthington, Phillips, and Young, knew all about the terms upon which Miller purchased. He also states-what took place when the deed was executed. If this witness is to be relied upon, nis testimony neutralizes the answer of Miller, to say the least of it. But is it to be relied upon ? We have the deposition of this same witness, taken in February, 1839, in the suit of Young v. Miller and others, at a time when the transactions, relative to this purchase of Miller, must have been as fresh in his recollection as they could have been three years afterward. But in this deposition of 1839, some of the most material facts stated in the subsequent deposition are entirely omitted. When this first deposition was taken, the witness *was cross-examined. Besides this, there is evidence conclusive in our minds to show, that at the time of this purchase by Miller, and at the time of drawing or making out the deed, Worthington, instead of being in the office with Miller, was not in Cincinnati; nor was he there during the whole time of the negotiation. Instead of any understanding or arrangement between Miller and Worthington previous to the purchase, one witness testifies that when Worthington learned that Miller had purchased, he was very much dissatisfied, and that there was quite a controversy between them. Besides, in order to get the land from Miller, Worthington was compelled to pay him $1,500 for his bargain. Although this witness tells of what took placo at the time of the execution of the deed, it is clear that he was not present, and, of his own personal knowledge, could have known nothing about it. It seems to us, that when a witness is thus inconsistent with himself, and when he is thus flatly contradicted by others, that his testimony should have no weight with the court.

The other two witnesses relied upon by the complainant, and who testify as to the contract, are Hannibal and Hercules Hargraves, one of whom is a witness to the deed. They are the sons of Maxwell and Anna Hargraves. They concur in the statements which they make. Both say they were present when this deed was executed. They state explicitly, that their father and mother at all times refused to sell this property upon any other terms, than that Young should be secured. They say that this matter was talked over at the time of the execution of the deed, and that Miller insisted that ample provision was made in it for his security. They state further, that their mother was unwilling to execute the deed to Miller, and that she never would have done it but for the threats of their father, who they say was a violent man. That she was very much afflicted about it, and cried for a full month before, and for a number of months after it was executed. They say further, that Judge Henderson, the magistrate who took the acknowledgment, *was excited by liquor when he came to the house to do the business, and that he soon became so drunk that he did not know anything.

Judge Henderson has been examined by the defendants, and entirely contradicts the statements of these two witnesses. He says that Hercules Hargraves was not in the room at all, during the time business was being transacted. That Hannibal was not present until he called in to subscribe his name as a witness. That not one word was said about securing to Young any other rights1 than his legal rights. That he carefully explained to Hargraves and wife, when together, and to the wife, when separated from her husband, the contents of the deed; that they seemed to understand it and its effects, and appeared to be satisfied therewith.

Here, then, we have the testimony of Hannibal and Hercules Hargraves, confirming the contract as stated in the bill; and the testimony of Milter and Henderson disproving it. And taking the whole together, it can not bo said that this testimony is affirmative in its character upon the one side, and negative on the other. So far as the number of witnesses is concerned, the testimony is equally balanced; and under such circumstances, if there is no other circumstance or testimony to control the case, the bill should be dismissed.

But Miller is a party to the suit, and, of course, although his answer is evidence, still it may be thought that the same reliance should not be placed upon that answer, as upon the testimony of a disinterested witness. Henderson is a disinterested witness, and he confirms the statements made in the answer. Is this evidence overcome by the testimony of Hannibal and Hercules Hargraves.

We have before us a deposition of the former, taken and road in evidence, on the trial of the caso of Young against these defendants, which has been referred to. That deposition is variant from the one taken in this case. It contains no statement relative to the intoxication of Henderson, nor as *to the unwillingness of Mrs. Hargraves to execute the deed. Both these witnesses state that she was unwilling to execute it; that she was induced to do ■it from fear of her husband; and that she wept about it for a ■month before, and for months after it was executed. It is pretty clear, from the other testimony in this case, that two weeks did •not transpire from the time Miller first engaged in the negotiation ■for this purpose before the deed was executed.

■It is further in proof, that when these witnesses went before the .magistrate to give their depositions, the questions to be propounded, and the answers to be given, were reduced to writing, not by the witnesses themselves, but by some other person; and that the depositions were made out principally, by copying these questions and answers.

There is also the testimony of a number of witnesses, who give these two Hargraves a bad character, and say they would not believe them under oath. Others say they would believe them. Under all these circumstances, we have no hesitation in saying, that we place more confidence in the answer of Miller, and the testimony of Henderson, than in the testimony of these two men.

But it is claimed for complainants, that there is something suspicious in the circumstance, that by the terms of the deed, the legal rights of the tenants should be saved. Upon examination of the deed, I do not discover anything so very singular in this. In the body of the deed there is a statement that certain persons, naming them, are in possession under Hargraves and wife. Then follows a covenant for quiet enjoyment, and in connection with this, the legal rights of the tenants are saved. This clause, I suppose, was introduced rather by way of exception, in favor of the covenantors, than for the purpose of securing any right to the tenants.

The testimony of Thoms, Carter, and Cutter is relied upon as strong circumstantial evidence, to show the fixed determination of Hargraves and wife not to sell, unless Young was secured. But, on the other hand, Henderson ^testifies that when Hargraves called upon him, to request him to attend at his house, to take the acknowledgment of the deed to Miller, he (Hargraves) stated to him, that his wife never had, and never would execute the lease to Young. Blachly says that he negotiated with Hargraves and wife for the purchase of this property. That when he first applied to them, $3,000, or $3,500, was talked of as the price; although no definite price was named. That they afterward advanced to $6,000, stating that Young’s lease was not valid, and he supposed it was for this reason that the price was increased. Ho says further, that at no time did they intimate to him a desire that Young should be secured in anything beyond the legal effect of his lease.

If these people were, in fact, so extremely anxious to secure Young, it is, to say the least of it, strange indeed, that they should have neglected to do it while they had the power.

Under all the circumstances, we are of opinion that the complainants do not make a case entitling them to relief, and the bill is therefore dismissed, with costs.


author: Hitohcock, J.

text:
    William Lewis, Trustee of the Mechanics and Traders’ Bank of Cincinnati, v. Robert R. McElvain.
    The act of March 8, 1845, “ to authorize “William Lewis, trustee of the Mechanics and Traders’ Bank of Cincinnati, to commence and prosecute suit against the debtors of said bank,” is a valid and constitutional act.
    Under said act, suits may be-prosecuted at law against a debtor of said association, although such debtor is a stockholder in the association.
    This is a writ of error, directed to the court of common pleas of Hamilton county.'
    The original action was assumpsit, brought by the plaintiff *as trustee, etc., against the defendant, upon a promissory note, made by .the defendant for twenty dollars, and discounted at the Mechanics and Traders’ Bank of Cincinnati. The declaration is special.
    To this declaration the defendant plehded, issues were joined* the case submitted to a jury, and a verdict returned for defendant, upon which judgment was entered.
    On the trial of the case a bill of exceptions was allowed, which is as follows:
    Be it remembered, that on the trial of this cause, the plaintiff put in evidence the promissory note of defendant, payable to the order of Wm. Surtees. It was also proved that Surtees, at the time said note was executed, was cashier of said Mechanics and Traders’ Bank, and an authorized officer thereof; that said note was discounted by the said Mechanics and Traders’ Bank, from the funds .thereof and’for its use; and that the proceeds thereof, to wit, nineteen and 50-100 dollars were paid to defendant, and that the same was discounted for the term of ninety days. It was also in evidence that said note, with other assets of the bank, was, on July 29, 1844, assigned by general assignment, but not indorsed by Surtees as cashier, by the stockholders, at a general meeting, to William Lewis, the plaintiff, as trustee for the payment of debts of the institution, for the benefit of the concern, and that said debts exceeded the assets between $25,000 and $30,000. Plaintiff also gave in evidence a special act of the general assembly of the State of Ohio, authorizing him to sue as such trustee, the printed act being, by consent of counsel, used for this purpose. See 43 Local Laws, 308. A copy is also hereto appended, marked exhibit A. It was in evidence upon the part of the defendant, that the said Mechanics and Traders’ Bank of Cincinnati was not a bank incorporated by any law of this state; but that the same was an association of individuals formed for the purpose of doing'business under the name and style aforesaid; that the stock '^thereof was divided into shares of ten dollars each; that defendant was a stockholder or partner therein to the extent of three shares, being thirty dollars, and that he had paid said stock or shares in full. That said bank loaned money, in small sums, to mechanics and business men of limited means. That in October and November, 1838, and in Januaiy, 1839, as also in January, 1840, said bank issued certificates of deposit, of which one of the latter dates, as a specimen of such issue, was put in evidence as follows: “ This certifies that D. A. James has deposited in the Mechanics and Traders’ Bank of Cincinnati -two dollars, payable to his order hereon in current bank notes, on return of this certificate.” Signed by the president and cashier, and indorsed in blank. Defendant also proved that said certificates of deposit circulated in the community as and for money; and were received and passed as money'; that they were received at the counter of said bank, and that they wore paid out there in November and December, 1838, in January, 1839, as money, and also in January, 1810. It was proved by plaintiff, on cross-examination, that said certificates had alwaj's been redeemed on presentation; that a fund certain had been set apart for their redemption ; and that those still in circulation were at par with the city banks; and that said certificates wore paid out and received as money by said bank from December, 1838, until the assignment in 1844, in the ordinary business of the institution. But there was no evidence that any other issues were mado than those previously mentioned in the years 1838,1839, and 1840. And the testimony being closed, the plaintiff, by his counsel, asked the court to charge the jury, “That William Lewis, as trustee of the Mechanics and Traders’ Bank of Cincinnati, may have and sustain an action at Jaw against one who was a stockholder in said bank, upon a note given by such'stockholder, for money borrowed of the bank, notwithstanding he was a partner in the association so named.” Which charge the court refused; but instructed the jury that if they should find that the defendant was *a stockholder or partner at tho time the note was given, and that it was given for a loan of the partnership funds; and that no settlement of the concerns of said association had been made, and no settlement between them and the defendant, the plaintiff could not recover at law, but would be bound to resort to a court of chancery. That if the note was for a balance struck, or amount found due between defendant and association on settlement, the remedy would be at law.
    And the said 'plaintiff, by his counsel, further asked the court to chai’ge the jury, thatprior to the passage of the act of 1839, the loaning of money and issuing certificates of deposit, payable to order, and indorsed in blank, though designed, calculated, and intended to circulate as money, did not constitute the Mechanics and Traders’ Bank an unathorized bank within the provisions of the act of 1816;” which charge the court refused to give, as stated above, in the language therein set forth; but instructed the jury, that under the act of 1816, and prior to the act of 1839, the issuing of real certificates of deposit was not illegal and would not make tho association an unauthorized bank. But if they found from the evidence that the paper issued by the Mechanics and Traders’ Bank was not bona fide certificates of deposit, but that the paper was merely put in that form for tho purpose of enabling them to circuíate it as money or currency, that the bank calling it a certificate of deposit would not make it such, but that it would have the effect of, and be a “ bill,” within the letter and spirit of the law of 1816, if they were issued to circulate and be redeemed as such, no matter what tho form.
    And the said plaintiff, by his counsel, further asked the court to chai’ge the jury, “ That after the passage of tho act of 1839, the Mechanics and Traders’ Bank of Cincinnati only became an unauthorized bank, within the provision of the act of 1816, upon tho issue thereafter of certificates of deposit, as prohibited by the said act of 1839 ;” which charge the court refused to give in the language specified *above; but instructed the jury, as above, that a real certificate of deposit was not illegal under the law of 1816, although intended to circulate as money or currency, and that such issuing, prior to the taking effect of the act of 1839, was not illegal, but if the paper that they issued was not certificates of money really deposited, but a mere shift and device for putting them in circulation, that they would come within the provisions of the act of 1816, as above stated.
    And the plaintiff further asked the court to charge the jury, “ That if the jury find that the said bank did issue such certificate of deposit for circulation, prior to the passage of the act of 1839, but did not make any such issue after the passage of said act, and before the time that the indebtedness of the defendant accrued, that the evidence of such indebtedness is not void under the acts of 1816 and 1824;” which charge, in the language therein stated, the court refused to give; but in addition thereto, and as a part thereof, instructed the jury in substance as above given.
    And the said plaintiff further asked the court to charge the jury, “That section 4 of the act of 1845 (as set forth in exhibit A), enabling Wm. Lewis to sue, as trustee of the Mechanics and Traders’ Bank, for the benefit of the creditors and stockholders, and prohibiting the defense that such institution was an unauthorized bank, and that its contracts are void from public policy, does not impair any legally acquired or existing right of any debtor of said Mechanics and Traders’ Bank. That the legislature had full power to enact it, and that it is in full force and effect; and, further, that this suit is not for the benefit of said Mechanics and Traders’ Bank.” Which said charge the court refused to give; but instructed the jury, that thej1' should find that the Mechanics and Traders’ Bank, at the time this note was given by the defendant, was an unauthorized bank, that no recovery could be had on it. That so far as the legislature had undertaken to give legal validity to notes and other instruments, which before the passage of said act were void, the act itself was a nullity. And this note, if void in the *hands of the Mechanics and Traders’ Bank, would bo equally so in the hands of Lewis, their-trustee, notwithstanding the passage of said act.
    To all which refusals of the court to charge as prayed for, and each of them, and to all and each of the charges so given as aforesaid by the court, the plaintiff, by his counsel, excepts, and prays this, his bill of exceptions, may be signed and sealed by the court, which is done accordingly.

      Upon this record nine errors have been assigned, but all are substantially embraced in those two—that the court erred in refusing to instruct the jury as requested by the plaintiff, and also in the instructions actually given, as set forth in the bill of exceptions.
    Brough & Zinn and Charles Fox, for plaintiff in error.
    Taet, Key & Mallon, for defendant in error.
   Hitohcock, J.

It will be seen by the bill of exceptions that the Mechanics and Traders’ Bank of Cincinnati was an unauthorized banking company, if not within the act of 1816, prohibiting “ the issuing and circulating unauthorized bank paper,” still within the law further to amend that act, passed on January 27, 1839. Swan’s Stat. 140. Whether, by its action, it was brought within the former law, is not very material, so long as it is within the latter. By section 9 of the act of 1816, all bonds, notes, bills, or contracts, negotiable or payable at such bank, or made for the purpose of being discounted at such bank, are declared to be void. This law was in force at the time the note now in suit was made, and the note was made for the purpose of being discounted, and was actually discounted at the Mechanics and Traders’ Bank. For this reason it is insisted by defendant’s counsel that it is void, and that no action can be sustained upon it. If the question depended alone upon the law of 1816, the position assumed by counsel for defendant would not bo controverted.

*But on March 8, 1845, the general assembly passed an act entitled an act “ to authorize William Lewis, trustee of the Mechanics and Traders’ Bank of Cincinnati, to commence and prosecute suits against the debtors of said bank.” 43 Ohio L. 308.

In the preamble of the act it is recited, that certain persons associated together in the year 1838, by the name of the Mechanics and Traders’ Bank of Cincinnati, for the purpose of carrying on business according to the articles of the association, in the city of Cincinnati, and that many persons are indebted to the association by bonds, bills, notes, etc., and that owing to the large number of the associates, and to doubts entertained as to the right of said associates to recover the debts so due, “ whereby the association is unable to meet its own obligations, and whereas, said Mechanics and Traders’ Bank has ceased to transact business, and for the purpose of winding up its affairs and liquidating its debts, has assigned its assets to Wm. Lewis as trustee, for the benefit of its creditors and stockholders,” etc.

In section 1, authority is given to Lewis, as such trustee, in his own name to commence and prosecute all necessary suits in law and chancery against any and all persons, etc., who are indebted to said bank, and to receive in such suits the amount which may be found due and owing; and it is further provided, “that suits may. in like manner, be prosecuted upon any notes, bonds, or bills, and all parties thereto, which may have been payable, or negotiated to said institution or any authorized officer thereof, and also against all delinquent stockholders of said institution, for the balance due upon their subscription for stock in such company.”

By section 4 of the act, it is declared that “ it shall not be lawful for the defendant or defendants ” in such suit, “ to plead, set up, or insist upon, in defense, that the notes, bonds, bills, or other written evidences of such indebtedness, are void on account of being contracts against, or in Violation of any statute law of this state, or on account of their being contrary to public policy.”

There can be no doubt of the intention of the legislature in the enactment of this law ; and if within the scope of their constitutional power, it is a law which can be enforced, being in accordance with the strict principles of justice. It provides a mode by which an insolvent association may be enabled, in part, to pay its own debts, by authorizing it to collect debts due to it. It is, in fact, a law peculiarly i'or the benefit of the creditors of the institution. And it requires nothing from the debtors, which they would refuse to perform, if they had a due and proper sense of moral obligation. For, although under the law of 1816 contracts made with similar institutions are declared to be void; still there is nothing immoral in such contracts, although they were supposed to be inconsistent with public policy.

It is urged, however, that this law is unconstitutional and void, inasmuch as the effect of it is to give validity to contracts which were, by the law in force when they were entered into, null and void. There was a time when it was dangerous for the courts of this state to inquire as to the constitutionality of legislative enactments. And the journals of our legislature will show that at least two judges have been impeached for this high offense. But we have fallen upon different times. Supremacy seems to bo claimed for the court, instead of the general assembly. And scarce a case has been presented to us, dependent upon legislative enactments, in which it is not claimed that the constitution has been violated. I am no advocate of legislative supremacy, nor do I doubt the power and the duty of this court, in a proper case, to declare a law unconstitutional. I do not believe, however, that the general assembly will over pass a law with the intention of violating the constitution. Nor can I ever consent to declare one of their acts void on this account, unless it is palpably both against the letter and spirit of that instrument. So long as there is any, the least doubt upon the subject, the law must be enforced.

*Now, what provision of the constitution of Ohio is violated by this law? Certainly it violates no contract. Its very object is, that contracts may be enforced. But it is said to be a retrospective law, or a law retrospective in its character. I find nothing in the constitution prohibiting the enactment of retrospective laws. The enactment of ex post facto laws is prohibited, not retrospective. Such laws may be impolitic, but with this, as a judgo, I have nothing to do. This law interferes with no vested rights. It merely compels men to do justice. Still, it is my duty to say that I have doubts of the propriety of enforcing laws similar to this, but have at length yielded those doubts in a ease decided at the present term of the court. I allude to the case of Johnson v. Bentley et al.

That was a suit brought against the defendants, charging them, as stockholders of an unauthorized bank, to receive the amount of certain bills and notes put in circulation by the company as money, which notes and bills were put in circulation previous to March, 1840. It will be remembered that, by section 23 of the act of January 28,1824, “ regulating judicial proceedings where banks and bankers are parties,” etc., it is provided “ that no action shall be brought upon any notes or bills hereafter issued by any bank, banker, or bankers, and intended for circulation;” but all such notes and bills “shall be held and taken in all courts as absolutely void.” This applies to unincorporated banks alone. The phraseology of this section is somewhat different from that used in section 9, before cited, of the act of 1816, which declares notes or bonds given for the purpose of being discounted at an unauthorized bank null and void, but there is no difference in substance and effect. The act of 1824 declares that all notes and bills put in circulation by such bank or banker “shall be held and taken in all courts as absolutely void.” If a note or bill is to be held absolutely void by all courts, is it not void everywhere? There certainly is no other tribunal which can enforce its payment. And well may it be *said that a contract is void which can not be enforced. The section further declares that no suit or action shall be brought upon such note or bill. Now, taking these two provisions of law together, and I can perceive no difference between a note or bill given to or issued by an authorized bank—all were void.

By the act of March 23, 1840, this provision of the act of 1824 was repealed. Swan’s Stat. 141. And the court held in the before-cited ease of Johnson v. Bentley et al., that inasmuch as this provision was repealed, the bills and notes were left as under the law of 1816, and that although void by the law of 1824, still that the plaintiffs could recover—in other words, that the repeal of the law of 1824 set up or gave validity to notes and bills which were uncollectible when issued. Such, at least, is the effect of the decision.

Having so held, I can not see with what propriety we can refuse to enforce the law of 1845, authorizing. Lewis to sue as trustee. The only difference, as it seems to me, is, that this law operates in favor of those who have acted as unauthorized bankers, or rather in favor of their creditors, while the other, in its effects, operates against them. Apply the principle to the case now under consideration, and see the operation. At the time the Mechanics and Traders’ Bank issued their bills for circulation, those bills wore void under the act of 1824. In 1840 the general assembly repealed this provision in the act of 1824; and we say, according to the decision in Johnson v. Bentley et al., that the members of this association are liable jointly and severally for the whole amount of bills which they have put in circulation. The same general assembly, by another Jaw passed in 1845, authorizes this association, through a trustee, to sue for and collect debts due to it, and prohibits the debtors from insisting, in defense, that the written evidences of indebtedness were void. Shall we say this latter enactment is void ? It seems to me we can not, unless we disregard the oath that is upon us to administer equal ^justice to all. Admitting the validity of this act of 1845, a question is made whether, inasmuch as tho defendant in error was a member of this association, or partnership, an action at law ean be sustained against him by tho trustee. The court of common pleas held that such action could not be sustained, and so charged tho jury. This is ono of the errors complained of.

There is no doubt of the rule upon this point, as it exists at common law. Ordinarily, partners can not, in their partnership name, sue a copartner for a debt due the firm, in a court of law, but must resort to chancery. But wo suppose that so far as this association is concerned, that this rule is changed by the act of 1845, before referred to, and that tho effect of that act is to authorize the trustee to prosecute suits against all the debtors of the association, whether stockholders or not, in the same manner as if the association had been incorporated, and its concerns had been placed in like manner, in the hands of a trustee. To adopt the construction contended for by defendant’s counsel, would almost, if not entirely, defeat the objects of the law. If the law is sustained, and we think it must be, it should be so construed as to effect, not to defeat those objects. -And if so construed, it may operate to afford some relief to the creditors of this institution, while it can do no injustice to its debtors.

UjDon full examination, we are of opinion that the court of common pleas erred in deciding that the act of 1845 was void, and in holding that a suit at law could not be sustained to enforce the collection of a debt due from a member of the association.

For these errors, without examining the others assigned, tho judgment of the court of common pleas is reversed, with costs; and the case remanded for further proceedings


author: Birchard, C. J.

text:
    The State of Ohio, on relation of David R. Kemper, v. Lyman Beecher; The Same v. Calvin E. Stowe; The Same v. D. H. Allen.
    Proceedings ean not ho had under tho statute regulating writs of quo warranto to oust an officer, where the cause of ouster originated and existed more than three years prior to the time of filing the information.

      These three cases were reserved in Hamilton county, and arise under the act regulating writs of quo warranto.

    The three cases depend upon the same pleadings, and were submitted to the court upon such of the issues as set up the statute of limitations as a bar to the information.
    From the information it appears that the Lane Seminary was incorporated by an act of the legislature, passed February 11, 1832. Section 3 of this charter, among other things, requires that all the professors, tutors, teachers, and instructors in said institution shall be members of the Presbyterian Church, in good standing, under the care of the general assembly of that church in the United States.
    The information states that the defendant, Lyman Beecher, who is not a member of the Presbyterian Church, specified in the charter of the Lane Seminary, did, on May .11, 1835, usurp and intrude, and from that time until the commencement of this suit, hath usurped and intruded into, and now unlawfully holds and exercises the office of professor of theology, in said seminary, without any legal appointment or qualification, or due warrant of law.
    This information was before this court at its last term, and was then, as was also the act incorporating the Lane *Seminary, considered and construed. The information has not since been in any way altered.
    Since the last term of the court, the defendants have filed a new set of pleas; but those only are,.considered by the court which interpose the statute of limitations as a bar of further proceedings. These are the third, fourth, fifth and sixth.
    3d Plea. This sets forth the appointment of Dr. Beecher as professor of theology, with the express understanding that he should after become a member of the Presbyterian Church, according there to the charter; that ho did afterward unite with the church, and was on December 26, 1832, inaugurated into office, entered upon its duties, and has since held the office and performed upon its duties, and still does, by virtue of said ajjpointmont, and, so he in fact saith, this suit was not commenced within three years next after the cause of ouster in the information mentioned. This plea concludes with a verification, and to this is added a special traverse of any intrusion into, or unlawful holding of said office, before or since May 1, 1845.

      Replication. The replication denies all the facts stated in the pica, alleges that the defendant is not now, and was not at the commencement of the suit, a member of the Presbyterian Church, as required by the charter, and says the suit was commenced within three years next after the cause of ouster mentioned in the information. Issue is joined to the country.
    4th Plea. This plea sets forth the same facts as the last, relating to the appointment of Dr. Beecher, his inauguration, and his entering upon the duties of professor, etc., and adds, “ and so the defendant in fact saith that this proceeding was not commenced, nor was said information filed, within throe years next after the cause of ouster in said information mentioned, arose and accrued.” This plea also concludes with a verification, followed by a special traverse, as in the third plea.
    Replication. The state, protesting that the facts stated in the *plea are an insufficient bar, denies them; alleges that the defendant is not now, and was not at the commencement of the suit, a member of the Presbyterian Church, as required by the charter of the seminary, and says, that the information was filed within three years after the cause of ouster therein mentioned, accrued. Issue joined.
    5th Plea. The defendant protesting that he is a member of the Presbyterian Church, etc., that he did not on May 1,1845, or before or since, intrude into the office of professor—that he does not hold and exercise, and has not at any time held and exercised said office, without legal appointment, or qualification, or legal warrant— nevertheless says this proceeding was not commenced within three years next after the right of the defendant to hold said office accrued. This, like the last plea, concludes with a verification, and a special traverse, of the intrusion, or unlawful holding and exercising said office, before or since May 1, 1845..
    Replication. Protesting that the matters set up in the plea are insufficient as a bar; says the defendant never had any right to hold said office.
    6th Plea. Defendant protesting that he is a member of the Presbyterian Church, etc.—that he did not, on May 1,1845, usurp and intrude, and has not before or since intruded into, and usurped said office—that ho does not hold and exercise, and has not at any time held and exercised said office without legal appointment, or qualification, and duo warrant of law, nevertheless says this proceeding was not commenced, etc., within three years next after the cause of ouster, mentioned in the information, arose and accrued. This also concludes with a verification and a special traverse.
    Replication. That the proceeding was commenced within three years next after the causo of ouster mentioned in the information accrued. Issue.
    Wrights & Miner and Fox & Lincoln, for the relator.
    *S. P. Chase, Henry Starr, and C. L. Teleord, for defend-
   Birchard, C. J.

The testimony presented in these cases shows that these three defendants are entitled to hold their several professorships, unless the convulsion, which in 1838 separated the Presbyterian Church into two great divisions, has disqualified them. Which of those two bodies now constitutes the true general assembly of the Presbyterian Church in the United States, within the meaning of the act incorporating the Lane Seminary, is a question that we can not be required to determine in these proceedings. Eaeh'division claims to be the true genoi-al assembly, and, for purposes of distinction, one is called the Old School General Assembly, the other the New School General Assembly. It is one of those unfortunate schisms of a respectable body that is to be lamented, but probably not to be healed, or likely in any manner to be benefited by the intermeddling of rude hands. Wo do not, therefore, in the least regret to find these cases so presented that we can not, with propriety, be called upon to investigate the merits or demerits of either the exscinding or exscinded divisions of these respected and venerated bodies. The precepts of Him whom they both profess to worship, and who spoke as never man spake,” will be a sure guide to harmony and peace,-and it is to be hoped, that at no distant day, the influence of those precepts will restore unity and Christian fellowship between the churches of the two general assemblies, together with a spirit of fraternal harmony, so that being again united by a common faith and common rules of religious government, there may be no disposition or occasion to invoke the aid of the civil tribunals, in a controversy alien to the objects of all Christian association, and which should never have been permitted to disturb the prosperity or endanger the usefulness of the Presbyterian Churches of the United States

These defendants have, since the unfortunate separation, caused by the exscinding resolutions of the general assembly, *adhered to that division of the church known as the New School Assembly. They are among its most -valued public teachers, both in precept and example; and if it be true that to thus belong to that body, disqualifies them for the professorships which they respectively fill, the cause of disqualification occurred more than three years prior to. the commencement of these proceedings. Hence, the question arises, admitting it to be a cause of ouster, can they be reached under our statute, and ousted by these j>roceedings ?

These suits were instituted under the act passed March 17,1838 (Swan’s Stat. 769), and fall within the first class of cases enumerated in section 1 of the act: “ The unlawfully holding and exercising of office in a corporation created by the authority of this state.”

The defense presented by the plea is made under the provision of section 26, page 775, of the statute, which reads thus :

“ Nothing in this act contained shall authorize any proceeding,” etc. “Nor shall any proceeding be commonced under this act, against any officer, to oust him or her from office, unless such proceeding shall be commenced within three years next after the cause of such ouster.”

This language seems to us sufficiently explicit, and to admit of very little doubt as to the intention of th.e general assembly in employing it. We can not hesitate in coming to the conclusion that the right to proceed by quo warranto, is denied after the lapse of three years from the time the right to prosecute first existed. Any other construction would practically annihilate this portion of the statute, and leave a large class of cases without any bar. There is, in our estimation, no propriety in considering each day’s continuance in office without the requisite qualification of a new cause of ouster. Such a refinement of construction can not be allowed, because its tendency is destructive to the letter and spirit of the law. It would extend the application of this remedy to all officers who originally entered upon office without authority, notwithstanding an incumbency of more *than twenty years. The legislature never intended that this process should be used for such a purpose. Their object was to secure peace after a certain period, and to allow no one to question a right, in this form, that he had acquiesced in for three years, and the exercise of which, for that period, bad been so harmless as to give no occasion for complaint.

In Ohio v. Granville Alexandrian Society, 11 Ohio, 9, it was said that “ if the proceeding is against an officer, to oust him from office, it must be commenced within three years after the'cause-of such ouster shall have arisen.”

We can see very little of the analogy discovered by counsel between the action for false imprisonment, and this proceeding. It is true that a bar of the statute of limitations would not be good as to that portion of the imprisonment subsequent to the six years. The case cited from Angelí, to that effect, is undoubted law. The reason of that decision is, that each day’s continuance of the body of a person in custody, is a distinct trespass, and may be treated as such. The other cases cited in support of the relator’s views, seem to have still less application, and need not be further noticed..

But it has been said, “ It can not be that because a man has. been permitted to usurp an office for which he has not the qualifications required by the charter, he may continue to usurp indefinitely, because three years have elapsed since the first aggression.”

It is quite a sufficient answer, to state in reply, that this remedy in such a case is forbidden in decisive language. But it by no méans follows that because it is denied there is no remedy. If these defendants are usurpers, the trustees of Lane Seminary have ample power to make a new cause of ouster by removing them from their professorships, and electing others to fill their places.

It is the stranger only, whose hands are quieted by operation of the statute. Judgment for defendants.


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    *Samuel Martin v. The State of Ohio.
    On a trial for murder, where one of the panel summoned by the sheriff is excused on his own application, it is not error in the court to refuse to order the sheriff to summon another in his place, before exhausting the panel.
    The defendant is entitled to only twenty-three peremptory challenges.
    The attorney appointed by the court to assist tho prosecuting attorney need; not be sworn, nor give bond.

      "When a juror states that he is on principle opposed to capital punishment, and that his opinion will influence his decision against the law and the evidence, he may be challenged by the state for cause.
    This is a writ of error to the court of common pleas of Clermont -county.
    The plaintiff in error was indicted for murder in the first degree, elected to be tried in the court of common pleas, and being tried in that court, was convicted of murder in the second degree, at the October term, 1846. Pending the trial, the following bill of exceptions was taken :
    Be it remembered, that on Saturday, October 13, A. D. 1846, William Howard, Esq., prosecuting attorney for said county, in open court, moved the court to appoint an assistant prosecuting attorney in this case, which motion was then and there resisted by Shepherd F. Norris and John Jolliffe, counsel for the defendant ; and the court having heard the remarks of said Norris in opposition to said motion, and while the said Jolliffe was addressing an argument to the court, against the propriety and expediency of making such an appointment, and before he had concluded the same, the president judge (on behalf of the court) informed the said Jolliffe that they would hear no farther argument on ■that subject, and said court would not further hear the said Jolliffe in support of his said objection ; to which proceeding, at that time, the said defendant, by his counsel, excepted. And the said court, then and there, appointed *John W. Lowe, a counselor at law of this court, as such assistant prosecuting attorney, who accepted said appointment and appeared in said cause, in behalf of said State of Ohio, in all subsequent stages of said prosecution, and argued the same to the jury, without having, at any time, given any bond or taken any oath of office, as such assistant prosecuting attorney, or otherwise taken his oath of office when 'he was first admitted to the bar.
    After the panel of thirty-six jurors had been made up, and after twelve of said panel had been challenged by said defendant, and five of said panel had been accepted by said defendant, as jurors to try this case, one of the jurors of said panel, viz., George MeLefresh, Esq., asked the court to excuse him from said service on •accounfof ill-health, which the court then and there did. The «defendant, by his attorneys, then and there, in open court, immediately after the said discharge of the said juror, and before any other step or proceeding was had or taken in said case, moved the court to instruct the sheriff to call some other suitable person as juror, in the place and stead of said juror discharged as aforesaid, and to make up the full complement of said panel; but the court then and there overruled said motion, and did not- and would not permit any other person to be called as a juror in said ease, and none other was called at any time thereafter, and said panel, in fact, was not filled up at all; to which, at the time of said proceedings, the defendant, by his counsel, objected, and asked the court to note the point; and just as the jury were about to be sworn to try the issue, etc., the defendant, by his counsel, objected to the swearing of the same, and then and there informed the court, in open court, that the defendant excepted to the jury as illegal, and to their being sworn as aforesaid, because the panel of said jury contained thirty-five men only, to challenge from, and not thirty-six; but the court then and there directed the jury to be sworn, and they were then and there sworn. After the said defendant had peremptorily challenged twenty-three jurors of said panel, there remained one juror only, viz: P. Lewis; and defendant, by his said counsel, then and there, and before the jury were sworn to try, etc., claimed the right to challenge the said ¥m. P. Lewis as a juror, peremptorily; but the court overruled said challenge, and the said ¥m. P. Lewis was sworn as a juror, and sat as a juror in said ease.
    And also, that the jurors who were summoned on said array, together with such of the bystanders as were called in to supply the places of such as did not attend, were each asked by said John W. Lowe, Esq., whether he was conscientiously opposed to the infliction of capital punishment in cases of murder; and whether, if they had such scruples, would such scruples influence them to disregard the law, and the testimony of the case, which question was asked, as aforesaid, of each and every person who was called to the bar, to fill up said (alleged) array, and by two of them was answered in the affirmative, to wit, by John Wagoner and William Moretón; the said Wagoner stated that he was in sentiment opposed to the infliction of capital punishment, and that his opinion, he apprehended, would influence him against the law and evidence in the case he was challenged by the state, and for that cause set aside. Said Moreton answered, that he was also opposed to tho infliction of capital punishment in any case, and if sworn as a juror in such case, his said opinion would influence his decision against the law and evidence ; that he would prefer obeying the law of G-od to the laws of sinful man: for this cause he was also challenged and set aside. The defendant, by his counsel, objected to said interrogatory, but the court overruled said objection, and permitted said interrogatory to be put as aforesaid. After the jury' was sworn as aforesaid, the State of Ohio offered evidence which tended to prove that the deceased, at one time, had a certain linen purse tied with a wax-end, which was fastened to such purse ; and after the whole of the evidence on both sides of tho case was through, and while the counsel for the state was arguing said case to the^ jury, he declared that a certain string attached to said ^alleged purse was, in fact, a part of a wax-end, which fact was then and there denied by the opposite counsel, who also objected in open court, to any such statement or argument being made to the jury, upon the ground that there was no evidence whatever before the jury, by the testimony of any witness or witnesses, that the said string was-or was not, in fact, a part of a wax-end; but the court told the jury that they might decide, by inspection of said string, whether it was or was not a wax-end.
    To which opinion and proceedings the defendant, by his counsel, excepts, and prays that the bill of exceptions may be signed by the court, and ordered to be made a part of the record; all of which is now tendered accordingly.
    Upon tho bill’of exceptions, errors are assigned as follows:
    1. The defendant was not allowod thirty-six jurors from which to make his challenges.
    2. The court erred in overruling the challenge of Wm. P. Lewis.
    3. The court erred in permitting John W. Lowe to act as assistant counsel, without being sworn and giving bond.
    4. The court erred in permitting interrogatories to be propounded to the jurors, as stated in the bill of exceptions.
    5. The court should have heard the counsel of Martin in opposition to the appointment of Mr. Lowe as an assistant prosecuting attorney.
    6. The court erred in permitting the jury to decide, by evidence of inspection merely, whether the string said to be attached to the parse was a wax end or not.
    7. The general error.
    John Jolliefe, for plaintiff in error.
    William Howard, for the state.
   Birchard, C. J.

The first assignment of error presents this single question: Did the court err in not placing a bystander on the list of persons summoned, in the place of *George McLefresh, one of the original thirty-six, who was excused on account of ill-health, before exhausting the remainder of the thirty-six? This point is settled by section 12 of the act directing the mode of trial in criminal cases (Swan’s Stat. 726), which provides that the jurors summoned, or such of them as are not set aside on challenge, together with so many of the bystanders having the necessary qualifications, as will make up the number of twelve; or, if the whole array be set aside, twelve of such bystanders as may not be set aside on challenge, shall be a lawful jury for the trial of the prisoner. Under this section we think the court was not required to delay proceedings till the sheriff had named the bystander whom he should first call when the entire array should be exhausted. That it was lawful for the court to proceod and ascertain whether a jury of twelve could be made up from those duly summoned, without resorting to the bystanders, as is ordinarily done in filling a panel for the trial of a civil issue.

A different course has sometimes been practiced on trials for -capital offenses in this court, but not as a matter of right, nor where it would seriously impede the progress of business. But in all such cases the jurors have been called in regular order, beginning with the first on the list, and going through with the whole in regular order, and exhausting it before calling the name of a bystander. It is not error to pursue either course as convenience may require.

The second question made is, was there error in overruling the challenge of William P. Lewis? The plaintiff had challenged peremptorily twenty-three persons before he made this challenge; and upon what ground he could claim a right for a further peremptory challenge, we can not tell. The statute gives the right to challenge peremptorily twenty-three and no more.

The third cause assigned for error is that the attorney appointed to assist the prosecuting attorney in conducting the trial was not sworn, and not required to give bond. The statute requires nothing of the kind. The nature of the ^duties which were to be performed did not require it. And had the court yielded in this respect to the plaintiff in error, they would at least have done a very useless thing.

The fourth inquiry is, were the interrogations propounded to certain jurors, two of whom are challenged for cause by the state, proper ?

It can not be maintained that one is a suitable person to serve on any jury, who has imbibed such prejudices on any matter to be litigated on the trial, as would induce him to disregard the law and the facts governing the case. A trial before such persons can not be a fair trial. A man who would disregard his oath to save his conscience, is not fit to be trusted anywhere. One who has such strong prejudices, that he can not do what he knows to be right, when it conflicts with his peculiar theories, or whose mind is so obscured by his own peculiar notions, that he can, with a conscience void of offense, make the law of his country bend to his-own will and accommodate its provisions to his own visions of morality, ought never to be allowed to sit as a juror. If insane-on the particular subject to be inquired into, he is, as to that subject, no better than if altogether demented.

But was it right to question the juror upon his voir dire to-establish this cause of challenge? Nothing is more common than to allow any one to make use of the person offered as a juror to prove his own incompetency. In such cases leading and direct questions are always allowed to be propounded. The court are triers of the question of competency, and there is no danger in permitting such examination, because the court are to judge and pass upon the testimony after hearing it. The fact may as well be established by the person called as a juror as by the oaths of others. It is no reason why either party should be denied the privilege of using a person as a witness, that such person is expected to serve on the jury.

The next question is, should the court of common pleas have heard a further argument against the appointment of *John W. Lowe-to assist the prosecuting attorney in conducting the prosecution?

The bill of exceptions shows that the court of common pleas made the appointment while one of the plaintiff’s counsel was addressing an argument to them, against the “propriety and expediency of such appointment,” having previously informed him that they would hear no further argument on that subject. What the grounds were, upon which it was sought to prove this supposed impropriety or inexpediency—what doubt existed that could possibly be removed by argument, does not appear, and upon what fact it was sought to base an argument, we are not informed. The exception seems to have been taken under the impression that when a man is placed upon trial for the crime of murder, he can not be prosecuted unless the attorney who may be selected on behalf of the Btate to aid in conducting the proceedings, is one that is perfectly acceptable to him. We know of no-reason why the state has not the same right to enjoy its preference-in selecting counsel, that is exercised by every other suitor. Nor can we see how the plaintiff was prejudiced by the refusal to hear his counsel’s argument on a matter where he had no right to be-heard at all. The subject was one on which his counsel could not offer an argument, except as amicus curies, without a departure from the rules of propriety, and the respect duo from counsel te the court. It was very disrespectful to the court to persist in making an argument after the notice given by the president judge.

Again, it is alleged that the court erred in informing the jury that they might examine the string with which a certain linen purse was tied, and “ decide by inspection whether it was or not in fact a wax-end.” It would be strange indeed, if, when it becomes material to establish a fact of this nature, a rule should be adopted,, excluding the highest evidence of which the fact was susceptible, the evidence of one’s own senses. Yet as this bill of exceptions shows, the court were requested by the plaintiff’s counsel to enforce such a rule *upon the jury, and we are called upon to find that they erred in not complying, we are bound to believe the point has been seriously presented in both courts; and yet to yield to such objections, however, pertinaciously persisted in, would be trifling with justice. In the whole record, there is nothing which can be reached by the general assignment. Judgment affirmed.


text:
    Samuel Gamble and others v. Samuel H. Warner and Wife.
    A summons was issued against three defendants, and the return of the sheriff was in these words: “ Served by leaving a copy of this writ at the residente of the within-named defendant.” Held, that it was not a good service as to all or either of the defendants
    This is a writ of error to the Supreme Court of Pickaway ■county.
   Birchard, C. J.

From tne record in this case, it appears that the original action was assumpsit. The summons was issued against Samuel Gamble and two other defendants, and judgment was rendered against them all by default.

The error assigned in the court below presented the simple question whether or not all the defendants are duly served with process.

The indorsement of service upon the back of the writ is in these words:

“November 10, 1846. Served by leaving a copy'of this writ at the residence of the within-named defendant.

M. H. Alkire, Sheriff.

“Service, 35 cents; mileage, 75 cents; copy, 20 cents. Total, $1.30.”

^Section 3 of the practice act (Swan’s Stat. 650) provides that “when the sheriff or other officer shall return the summons or other process served, the defendant or defendants shall be considered as being in court, and may be proceeded against accordingly.”

The return “served,” under this statute, would have been a good return, had nothing been superadded, and upon the circuit we .thought the residue of the sheriff’s indorsement might be rejected as surplusage; that what is added after the word “ served,” was placed there to indicate the manner of the service, as being mado by copy and not by reading, and that the omission to add the letter s to the word defendant was to be regarded as false grammar, which, if not surplusage, should not be held to vitiate the return. This view of the case is also strengthened by the fact, that the sheriff did not return that any of the defendants were not found, or not served as was his duty, if such was the fact. On the other hand, the first section of the act which prescribes the manner of serving a summons, requires a copy thereof to be personally served on the defendant, or left at his usual place of residence, at any time before its return. And the act regulating fees of sheriffs (Swan’s Stat. 391) gives for the service of a summons and return, where only one defendant is named therein, thirty-five cents; and for each additional defendant, twenty cents; and for each copy, ten cents per hundred words. There are in this summons over two hundred words; and if the writ was duly served on all the defendants, the sheriff made a mistake against his own interests, in taxing fees to the amount of his taxable fees for two copies and two services on additional defendants, which would be -eighty cents besides traveling fees. The fees taxed upon the back of the, summons are but the legal fees for service upon one defendant. It is very true that we could not reverse the judgment, if the sheriff bad returned no taxation of costs. Yet this •circumstance has some weight, when we are considering an indorsement of this character. It is a grievous thing to deny a party, or to ^deprive him of his day in court, therefore ■courts ought to be cautious, and not move without a certainty that they have acquired jurisdiction of the defendant. The peculiar form of the sheriff’s indorsement is such, that taken altogether, it is left doubtful in our minds whether actual service was made upon all the defendants, or only upon one of them; and if upon one only, there is doubt as to which one. Considering the ■serious consequences to the defendants, of having a judgment rendered against them without an opportunity to defend themselves, we are, upon more mature reflection, unwilling to reject any part •of the sheriff’s return as surplusage. Taking it entire, without rejecting any part, and it is doubtful on a point which should be certain, free from doubt.

,T. H. Geiger, for plaintiffs in error.

Olds & Miller, for defendants in error.

The judgment of the Supreme Court, and of the court of common pleas, are therefore reversed.

Cause remanded to the common pleas for further proceedings.