source: Caselaw Access Project

author: Judge Wood:

license: Public Domain

text:
    Benjamin R. Jenkins v. Charles S. Clarkson.
    A security for the payment of money is not discharged by giving notice to the creditor to proceed against the' principal, unless such notice be given in writing, agreeably to the statute.
    .A proposition by the creditor, that if the debtor will pay a part of the debt immediately, the whole being then due, he will give time for the balance, accepted by the debtor and carried into effect between the parties, is not such an agreement to give time as discharges the security.
    From Hamilton county.
    'This action is on a sealed note dated November 11, 1823, forth© amount of five hundred and seventy-one dollars thirty-seven and tone-half cents, payable on or before the ,20th day of January following. The note was made jointly by Peter Clarkson and the defendant, to I. & B. R. Jenkins, or order, and, by them indorsed to •I. Jenkins, and by him to the plaintiff. The plea filed is non est factum, and notice that the note was signed by the defendant as ■security for Olarkson, and, after it became due, the defendant •■urged the plaintiff to proceed and collect it of the principal debtor, ■who then and for a long time afterward was solvent, and had am,.ple means to pay it, and that unless the plaintiff did so proceed, he, the defendant, should not consider himself bound for its'payment; that the plaintiff refused to collect the note of the principal until he beeame totally insolvent, and now seeks to obtain payment of the defendant. The case was tried on the last circuit, and the facts set up in the notice proved. It was also proved, that in the early part of 1825, I. Jenkins, one of the firm of I. & B. R. Jenkins, called on the agent of Peter Clarkson, the principal, and said to him, if Peter would pay one hundred and fifty dollars he should be indulged a while longer, but for what period did not appear. David Clarkson, as the agent of Peter, thereupon paid the amount required.
    The court instructed the jury: 1. That the facts set up in the notice, if proved, constituted no defense to the action. 2. That notice by a surety in a note to the holder, after it became due, to proceed against the principal, and a refusal, until the principal became insolvent, would not discharge the surety, unless such notice was in writing. 3. That an agreement to delay, payment of the remainder for a while, for a considerable time, or for a reasonable time, on condition that the defendant would then pay part of a debt due, and payment accordingly, and a delay to collect the balance for a year, or *more, would not discharge the surety, though such agreement was made without his consent.
    The jury, under this instruction, found a verdict for the plaintiff for the amount due on the note. The defendant’s counsel filed a motion for a new trial, and urged, as reasons to sustain it: 1. That the verdict is against the evidence. 2. That the court erred in charging the jury, as secondly and thirdly above stated, on the law of the case.
    Fox, for the plaintiff.
    Wright and Walker, for the defendant.
   Opinion of the court, by

Judge Wood:

Of the first point made in the motion it is unnecessary to take any notice, because the verdict is clearly sustained by the evidence, if the instruction given by the court to the jury was correct. Did the court err, then, in giving to the jury the law of the case ? It is claimed by the counsel for the defendant, that, independently of any statutory provision, if the surety notifies the creditor to proceed against the principal debtor, and ho refuses to do so, and the principal becomes insolvent, the surety is thereby discharged. Paine v. Packard, 13 Johns., is cited as an authority. It is true the facts set up in the special plea in that case bear a very close analogy to those stated in the notice in this; but Chancellor Kent, afterward, in Johns. Cases, 555, doubted the authority of the former case; and Platt, who concurred in the decision, three years after, in King v. Baldwin, says he is convinced that decision was erroneous. The case of Fulton & Matthews, 15 Johns. 433, would seem to establish the principle as laid down in Paine v. Packard, and in the absence of our own statute, might require of us a more minute, careful, and extended investigation of all the authorities, and the i*easons on which they are founded, before rejecting its authority. From the arguments of counsel and the opinions of the court, in the cases referred to, no inference can be drawn that in New York there is any statutory enactment on this subject. The presumption is there is none, or it would clearly have been adverted to. It is the common law, they decide, to give such and such rights to the surety. But has the common law anything to do with the point now before us? For more than ^twenty years our statutes have contained, in substance, this provision: That when any person or persons shall, hereafter, become bound, as surety or sureties, by bond, bill, or note,” etc., “ and shall apprehend that his or their principal debtor or debtors is, or is likely to become, insolvent,” etc., “to require, by notice in writing, his or their creditor or creditors forthwith to put such bond, bill, or note,” etc., “in suit; and, unless the creditor or creditors,” etc., “ shall, in a reasonable time, commence an action on such bond, bill, or note, and proceed, with due diligence, in the ordinary course of law,” etc., “such creditor or creditors,” etc., “ so failing to comply with the requisitions of such surety or sureties, shall forfeit the right, which he or they would otherwise have, to demand and receive of such surety or sureties the amount,” etc.

Since this statute was passed, the common law rule has not been in force in this state; and it is unnecessary to inquire what its provisions are, for it has given place to the statute, and is repealed by it, if any such rule existed, as that which would discharge a surety, who gave the creditor notice to sue the principal by parol, if the creditor did not proceed accordingly. The statute of Ohio requires the notice to be in writing. It was neither proved nor claimed on the trial that any written notice was given.

In the next place, we are to consider whether the argument, as proved, to extend the time for the payment of the balance due on the note, discharged the surety ?

The case of Beaver v. Butler & Hull, Wright, 363, cited by counsel, differs from the one at bar, in this: that it was definite in its terms, and for anything that appears in the report, might have been founded on a new and good consideration to extend the time for the delivery of the deed. The time was extended beyond the time fixed by the contract for its execution, until the obligee should demand the deed agreed to be delivered. This demand defined its limits. In Reddish’s Ex’ors v. Pentheuse et al., the judge who presided on the trial, instructed the juiy that if time was given by the creditor to the principal, without the consent of the surety, it was a defense to the action. In 5 Ohio, 214, the plaintiff, without the consent of the surety, took the warrant of attorney of the principal debtor, entered up judgment against him, with an agreement on record to stay ^execution for eighteen months, and the security was holden to be discharged. These decisions are believed by this court to be correct, and not to contravene what is believed to be the substance of all the leading cases: That the contract to delay payment, in order to discharge the surety, must be a valid one; it must be definite in its terms, founded on a good consideration — such a one as the principal debtor would enforce, and which would tie up the hands of the surety, prevent him from paying his principal’s debt, stepping into the shoes of the creditor, and prosecuting the principal debtor himself. Such a contract, and such a one only, will discharge the surety, if made without his consent. It deprives him of his right to pay the debt the moment it is due, and to look himself to its recovery, and he ought in justice to be no longer obligated. There is, however, but a trifling analogy between such an agreement and the one proved on the trial of the case before us. In the ease at bar, there was no new consideration averred or proved, and the terms of the contract were indefinite. The plaintiff said to the defendant, pay me one hundred and fifty dollars of a debt you owe me, and I will wait awhile, a considerable time or a reasonable time, for the balance. Could the principal debtor enforce such a contract, after paying the one hundred and fifty dollars ? He has only done what the law would compel him to do, without any such contract. The law, indeed, would compel him to do more— to pay the whole amount of his debt, and not merely a part, and such payment is to the benefit and not to the prejudice of the surety. There is, there can be, no consideration for such agreement good and valid in law. Could the principal debtor, we say, enforce it? How long must the plaintiff wait for the balance? Awhile longer ? What limit- does the law fix to this contract, as proved? It is said by counsel to be a reasonable time, and a reasonable time, in a case like the present, would be extremely difficult to determine. It may be a moment, an hour, a day, or a year. Who can determine it, and on what evidence can it be determined? None was given; and if such a contract were valid in other respects it must be void, because no man can tell from the proof what it is, and it can not, therefore, be enforced. If, then, the principal debtor could not enforce it against the creditor, it follows that the principal could not enforce it against the surety, had he paid the debt and prosecuted his principal for it.

*It is said that the contract was executed; that the one hundred and fifty dollars was paid, and the plaintiff waited awhile longer, and that on the principles which govern in executed contracts, the plaintiff can not now say it was not valid. It is extremely difficult for us to perceive any analogy between this and the class of cases referred to. How the immediate parties to this contract considered it, is of little moment. If the surety has been deprived of no right, if he has been left perfectly free to manage his concerns with his principal in his own way, if his hands have not been tied, why should he complain? And with what justice can he avoid the payment of this debt?

It is also said this transaction took place in Kentucky; that a parol notice is there valid, and that the defendant in that state, in equity, would be entitled to relief, and ought, therefore, to be relieved at law here, the principles of equity in relation to principal and surety having been adopted by courts of law in their fullest extent. On this point we will occupy but a moment. A most conclusive answer to the argument is, that there was no evidence to show that the notice was given in Kentucky on the trial of the cause, nor is there such evidence with the papers now before us. The action is brought in our court; and from all the circumstances connected with the transaction, it is more probable, in the absence of express proof, that the notice was given in Cincinnati than Kentucky. The lex loci then governs the case. The motion for a new trial must be overruled, and judgment entered on the verdict.


author: Judge Wood: Judge Hitchcock,

text:
    Henry Raguet v. Peter Roll.

      Scire facias on mortgage to charge lands with execution.
    An obligation, a part consideration of which is to forbear .a criminal prosecution, is void. In a scire facias on a mortgage, the same defense may he set up that could be set up against the obligation, which the mortgage is given to secure.

      Qucere: If a mortgage to secure the payment of money does not remain an executory contract.
    Reserved in the county of Hamilton.
    The mortgage bears date on the 16th day of October, A. D. 1826. It was executed by the defendant to the plaintiff, and conditioned for the payment of five hundred dollars in three years. To this scire facias a special plea is filed, and a replication taking issue on the facts it sets up.
    The plea states that at the time of the execution of the mortgage, the plaintiff threatened the son of the defendant with a criminal prosecution for larceny, in taking the money, *goods, . and chattels of the plaintiff, while a clerk in the plaintiff’s store, unless the defendant and his son would pay him one thousand dollars; whereupon it was agreed that, in consideration, the plaintiff would not commence said prosecution, but would endeavor to suppress all investigation, the defendant would pay the plaintiff five hundred dollars, and that said mortgage was executed in pursuance of such agreement.
    The cause was tried by a jury on the last circuit, and a verdict found for the defendant. The counsel for the plaintiff moved for a new trial, and assigned the following reasons:
    1. That the verdict is against the law.
    •2. That the verdict is against the evidence.
    3. That the cour.t erred in admitting evidence to sustain the defendant’s plea. This motion was reserved for decision in this court.

      Fox, for the motion.
    Starr and Caswell, against it.
   Opinion of the court by

Judge Wood:

On the trial, the testimony was amply sufficient to justify the jury in finding a verdict for the defendant; or, in other words, in finding the facts setup in the special plea true. The second point, therefore, made in the motion, may be laid out of view as overruled, and it. only remains to consider whether the facts set up in the plea constitute a legal defense to the action; if so, judgment must be entered on the verdict; but if they do not, the motion must be sustained, or the judgment arrested.

Are the facts set up in the plea a bar to the action ?

• The law has been long settled in England, and in many of the states, of this Union, that an executory contract, founded on an agreement to compromise, stifle, or conceal a felony, can not be enforced. Chit, on Con. 219; 2 Kent’s Com. 366; 116 Mass. 368. Kent says, the consideration of an agreement must not be repugnant to law, sound policy, or good morals. Ex turpi contractu actio non oritur; and no person, as far back as the feudal ages, was permitted to stipulate for iniquity. That contracts are illegal when founded on a consideration contra bonos mores, or against the principles of sound policy, or founded in fraud, or in contravention *of the positive provisions of some statute law. In action upon a bond given for compounding a prosecution for perjury, it was argued in Support of the action, that no averment could be admitted of the bond having been given for such a consideration, because it did not appear in the condition. But to this.it was answered by Lord Chief Justice Wilmot: “That the manner of the transaction was to gild over and conceal the truth; and whenever courts of law see such attempts made to conceal such wicked deeds, they will brush away the cobweb varnish, and show the transactions in their true light. This is an agreement to stifle a prosecution for willful and corrupt perjury — a crime most detrimental to the commonwealth ; for it is the duty of every man to prosecute, appear against, and bring offenders of this sort to justice. This is a contract to tempt a man to transgress the law; to do that which is injurious to the community; it is void by the common law, and the reason why the common law says such contracts are void, is for the public good.” Collins v. Blautem, 2 Will. 341,^ cited in Com. on Con. 62. On the trial, the plaintiff’s counsel conceded the application of these principles, where the contract is executory, but ingeniously and ably argued, that the mortgage was1 not of that character. What we understand by an executory contract is where something remains in fieri, for if all the conditions are performed, it is executed, and not executory. This mortgage is conditioned for the payment of five hundred dollars. Its operation is to secure a lien on the land it covers for that amount. The condition is a contract under seal — a covenant to pay. The amount has not been paid, and this scire facias is instituted to charge the lands with execution for its recovery. Something, then, remains in fieri — the payment of the money. To obtain such payment, the plaintiff calls on the court to aid him to enforce this contract. The contract, then, is executory, for the plaintiff is yet to receive the reward of his promise to endeavor to stifle the prosecution. But suppose we are wrong in this view of the case, and that the original contract was executed in giving the mortgage, and suppressing the prosecution; the law is, in executed contracts, that the parties are to be left precisely as they are found. The law lends no aid to either plaintiff or defendant. The plaintiff may possess his mortgage, he may receive the amount of money in its ^condition secured, but he must do so without the aid of the law.

It is now said, however, that such contracts are lawful in Ohio, because no statutory provision makes them unlawful. This argument is answered by the court, in a case between these parties, in 4 Ohio, 418. The principles laid down by Kent, before cited, and in 2 Har. Ev. 87, are fully recognized; that “ any contract, the consideration of which is to conceal a crime, or stifle a prosecution, is necessarily repugnant to public policy; and it is a settled rule of law, that all contracts, whose consideration is contrary to public policy, are void.” The court say further, “ it is unnecessary to inquire, whether such contracts are positively prohibited by law; or whether it is in all cases the legal or moral duty of an individual cognizant of the commission of a crime, to make a disclosure to the proper authorities. Admitting the existence of cases, where silence would be excusable, it by no means follows, that an express contract, to conceal the offense, or smother a prosecution, must be sanctioned by law, or enforced by the judicial tribunals of the county.” As a general rule, it may, however, ba truly said, that public policy requires of every individual citizen, as a civil duty, to assist, as far as is reasonably within his power, in the administration of criminal justice, and when any agreement is calculated to prevent the faithful discharge of this duty, public policy declares it void.

It is said, that the agreement to. stifle the prosecution, is not the only consideration, but that the mortgage was given to secure the amount honestly due, for stolen property, also. This may be so, but in Croke. Eliz. 199, and Sid. 38, cited in Com. on Con. 34, it is said, “if one of the considerations is unlawful, that vitiates the whole, and the plaintiff shall recover for nothing.” This rule is certainly very properly applied to the present case, where a part of the consideration is clearly illegal, and no part of it, from any evidence we have heard, to be distinguished from the rest; the entire agreement must be considered void. The motion for a new trial is overruled, and judgment must be entered on the verdict for the defendant.

Judge Hitchcock,

dissentient:

Whether a mortgage be an executory or an executed contract is not a question necessarily involved in the decision of *this case. If it were, there would probably be some difference of opinion in the court.

This is a proceeding under the act of January 2,1810, “providing for the recovery of money secured by mortgage.” The rules prescribed by that statute must govern the case. At the close of section 1, it is provided, that “ upon the return of the scire facias it shall be lawful for the defendant or defendants to come in and plead payment, or satisfaction for all or any part of the money demanded by the plaintiff or plaintiffs, or any other legal plea in bar, or avoidance of the deed or money therein demanded, as the case may require, and thereon the parties shall proceed to issue and trial as in other cases. 1 C. S. 645. From this I infer that the legislature intended, that to a scire facias upon mortgage, the defendant, notwithstanding the form of security and of action, might plead any plea which would operate as a bar to a suit brought upon the instrument, to secure the payment or performance of which the mortgage was executed. This is the only rational construction, as it seems to me, which can be given to this clause of the statute.

The simple question then is, whether the facts, stated in this plea are sufficient to bar an ordinary suit brought for the recovery of the money, to secure the payment of which this mortgage was executed. This question was fully considered in a case between these same parties, 4 Ohio, 400, in which it was held that facts similar to those here pleaded constituted a bar to an action upon a promissory note. "Upon the authority of that case, taken in connection with the statute'before referred to, I am induced to concur in the opinion that the motion tor a new trial be overruled.


author: * Judge Hitchcock

text:
    Lafayette Benefit Society v. William Lewis.
    A contract to pay more than six per cent, per annum interest, can not be enforced in the courts of law of Ohio, under the laws in force in November, 1832.
    Reserved in the county of Hamilton.
    This is an action of assumpsit, upon a promissory note in which there is a judgment by default, and the only question now to be considered is as to the amount of damages which the plaintiff is entitled to receive.
    The case is submitted without argument.
   * Judge Hitchcock

delivered the opinion of the court:

The note, which is the foundation of this action, is in the following words: “ Cincinnati, November 20, 1832. One year after date, we jointly and severally promise to pay to the order of the Lafayette Benefit Society of Cincinnati, ninety-eight dollars and twenty-five cents, for value received; but if not promptly paid, then we further promise to pay two and one-half per cent, per month until paid.”

This note was signed by the defendant and two others, and not being paid according to its terms, the plaintiff now seeks to recover the principal, together with interest, at the rate of two and one-half per cent, per month, or thirty per cent, per year.

Whether he is entitled thus to recover, must depend upon the construction of the statute of the state “ fixing the rate of interest.” This is a subject upon which the legislatures of the several states of the Union, with, perhaps, one or two exceptions, have acted; and this course of action is in accordance with the practice of the civilized world. Many, it is true, have doubted the policy of laws of this description; but none, I believe, have the hardihood to deny that it is within the appropriate sphere of legislative action, unless where such action is prohibited by constitutional provisions. But with the policy of this or any other law, the court have nothing to do. Duty requires us to ascertain what the law is, and having ascertained, to declare it, regardless of consequences.

The law now in force, fixing the rate of interest,” was enacted January 12, 1824, 29 Ohio Stat. 451, and provides “ that all creditors shall be entitled to receive interest on all money, after the same shall have become due, either on bond, bill, promissory note, or other instrument of writing; on contract for money or property ; on all balances due on settlement between parties thereto; on money withheld by unreasonable and vexatious delay of payment; and on all judgments obtained from the date thereof; and on all decrees obtained in any court of chancery, for the payment of money, from the day specified in said decree for the payment thereof; or if no day be specified, then from the day of the entering thereof, until such debt, money, or property is paid, at the rate of six per cent, per annum, and no more.” At the last term of this court, this case was under consideration, and a majority of the judges holding the coijrt decided, that in a case like *the present, the plaintiff would be entitled to recover interest according to the terms of the contract. At least I so understand the decision, although it is said that after the principal sum is due, no more than six per cent, can be charged; and in the case before the court, by the terms of the contract, no interest at all was to be charged, if the principal was promptly paid; but if not promptly paid, then interest at the rate of two and one-half per cent, per month. The decision sustains the position, that in all cases, interest can be collected according to the terms of the contract. Since that contract for the payment of interest, however unconscionable, must be enforced in a court of law. Reddish’s Ex’rs v. Watson, Holcomb, and others, 6 Ohio, 510.

Had the decision been made by a full court, we should have considered ourselves bound by its authority; but as there wore only three judges present, and one of those dissenting, it seems to us proper again to reconsider the subject, and to inquire as to the correctness of this decision.

In construing statutes, it is proper to look to the old law, the mischief and the remedy, and so to construe as to carry into effect the intention of the law-making power, in removing the mischief, and applying the remedy, so far as it can be done consistently, with the phraseology of the statute to be construed. The law in force, in this state, at the time of the enactment of the statute of January 12, 1824, was the act of December 29, 1804, entitled “an act fixing the rate of interest, and for preventing usury.” 1 Chas. Stat. 484. The act of January 12, 1824, is a literal copy, so far as it goes, of that of December 29, 1804, with this exception, that in the former, decrees in chancery for the payment of money, are put upon the same footing, as to interest, with judgments at law, whereas in the act of 1804, decrees in chancery are not noticed. Butin the act of 1804, there is this additional clause: “And if any person shall demand or receive more than six per cent, per annum, on any contract, debt, or demand whatever, such person shall forfeit the whole amount of the debt, on which such illegal interest was charged or received, on due proof thereof being made, before any court having jurisdiction thereof, the one-half thereof to be paid into the county treasury, for the use of the county, and the other to the informer, or the person prosecuting.” If there is a prohibition in the law of 1804, against receiving interest *at a greater rate than six per cent, the same prohibition is contained in the law of 1824. In both, it is declared .that “ all creditors shall be entitled to receive interest on all money,” etc., “ at the rate of six per cent, per annum, and no more" The right to receive this much, is in both statutes explicitly, and in the same identical words, declared, and it is as -explicitly declared that “ no more ” than this shall be received. In the law of 1804, for the violation of this prohibition, a penalty is provided. And herein consists the only difference between the two acts; the act of 1804 contains a sanction, while that of 1824 does not. In other words, for a violation of the former, a penalty might be inflicted, while the latter may be violated with impunity. The wisdom of passing any law, without a sanction to enforce its observance, may well be questioned, although that the moral obligation of the citizens, is as strong to obey one as the other, can not be questioned. And certainly no court will disregard a law, because those who offend against its provisions are not to be punished.

It will be observed that by the law of 1804 a contract, providing for a greater rate of interest than that therein proscribed, is not declared void, although a penalty is inflicted upon such as shall demand or receive a greater rate. By the construction put upon that act a contract, stipulating the payment of a greater rate of interest than six per cent., was not void. Such contract might be enforced so far as to compel the payment of the principal sum and interest at the rate of six percent., but “no more.” In no one instance within my knowledge was it held that the reservation of •a greater rate vitiated the contract. At the same time if any individual presumed to demand or receive a greater rate, and suit was brought against him, under the statute, he was liable to the penalty.

It was with a view to, and in consequence of, this construction that the court say, in the case of Smith v. Parsons, 1 Ohio, 236, at page 239, “ the state may, for instance, pass laws preventing usury, and fixing the interest of money, should such a law enact that the lender may receive from the borrower six per cent, interest or more; and should an after contract contain an express promise to pay ten per cent., such a contract, although voluntarily made for the payment of a specific sum, would be void in part, and, in many of the ^states the obligation of the contract would be entirely destroyed.” In speaking of “ many of the states,” reference is had to those states where, by express enactment, usurious contracts are declared to be void.

Such, then, was the law of 1804, as understood by the courts of the state. What were the mischiefs complained of? Not that the usurer was prevented from enforcing his unconscionable bargains; but it was supposed to be unjust to empower an individual who had himself sustained no injury to prosecute another for the re.covery of a penalty. True there were then, as there are now, those who could declaim upon the injustice of usury laws; but the only mischief complained of by the community at large was the one which has been specified; and to remedy this the law of 1824 was enacted.

And what was the change made by this new enactment? It has already been pointed out. It was merely the re-enactment of the old law, excepting the penal clause, with an alteration of the title to make it conform to the body of the act. In truth it was nothing more-than the repeal of the penal clause of the act of 1804. The act of 1824 received a construction by this court, on the circuit, immediately after its passage — a construction concurred in by all the members of the court. It was held, as under the former law, that by suit in court “ no more ” than six per cent, interest could be recovered, let the rate reserved in the contract be what it might beyond that amount.. So far as the contract contained a promise to pay a greater rate than this, it was held to be void, but no further. As the words of the new law were identically the same with the corresponding part of the old, the court could not see upon what principle a different construction could be put upon them. Upon the propriety of this construction there was no difference of opinion with the members of the court until after the year 1830 at least; and this circumstance accounts for the fact that no case previous to that time was either reserved for the court in bank or reported. This construction was well understood, and that it was in conformity with the intention of the legislature we have reason to believe; otherwise the subject would not have remained unacted upon for the term of ten years. The law itself would have been explained by the legislative authority, and expressed in words with respect to which there could be no controversy.

Was this a correct construction of the law ? In the case of Reddish’s Executors v. Watson, Holcomb, and othei-s, it is decided it was not, 6 Ohio, 519. In this case, the judge, in delivering the opinion of the court, s.ays, “ a law like ours, prescribing a rate of interest where money due is withheld, and the parties have omitted to fix the rate in their contract, furnishes no rule for the contract; it merely supplies the rule of compensation in eases where the parties have omitted to agree upon one for the unreasonable and vexatious delay of payment.” — p. 516. But is this a fair inference from the words used ? It seems to me not. Had such been the design, how easy would it have been to express that design. It might have been done in explicit terms, and in the use of as few words as are contained in the present law. The law purports to fix the rate of interest, not for a particular class of creditors, but for “ all creditors.” And it fixes the rate of interest upon “ all moneys.” True, it speaks of “ money due,” as did the act of 1804, and that of 1799, preceding it; but it is for’this reason, the collection of money can not be enforced until it is due, and, when collected, the interest attaches at the rate prescribed by the statute.

The judge again says, “ the act does not purport to prescribo the rate of interest for money, before the same shall fall due. It speaks only of interest to be allowed after the same shall become due.” As before remarked, it is similar in this respect to the acts upon the same subject, of 1799, and 1804. In the case of Brockway v. Clark, 6 Ohio 50, the same judge says, “ until the year 1824, we had a statute fixing the rate of interest at six per cent, per annum, and providing punishment for usury. This law was held to make void so much of contracts as stipulated for more than the legal rate of interest.” If under the law of 1804 so much of the contract as relates to the excess of interest, over and above six per cent, per annum, was void, why should it not be void under the law of 1824 ? In both, the rate is fixed at six per cent, and in both it is declared that “no more” shall be received. In neither is there any express prohibition against making a contract for the payment or receipt of a greater rate of interest than six percent., although under the act of 1804, if any man shall “demand or receive ” more than this, he is subjected to a penalty. It is not the making of the contract, but the receipt of the money which constitutes the offense.

*It seems to me that the error of the judge consists in the assumption, that inasmuch as there is no prohibition against contracting for the receipt of a greater rate than six per cent, therefore such contract is obligatory and may be enforced. But so long as the law prescribes that the “ creditor shall be entitled ” to receive “ no more ” than this rate, I do not feel authorized to allow him at the rate of fifteen, twenty, or thirty per cent, per annum.

In the case of Reddish’s Executors v. Benham, etc., reliance seems to be placed upon the title of the act. The title to the act is no part of the act. It may sometimes aid in the construction. When taken in connection with other parts, it may assist in removing ambiguities, where the intent is not plain. But where the words of the enacting clause are clear and positive, recourse must not be had to either title or preamble. 2 Cranch, 386. In the act now under consideration, the words of the enacting clause are clear and positive. There is no room left for construction, there is no appearance of ambiguity, unless this law is to be construed in connection with the positive laws of other states and countries, upon the subjects of interest and usury. But if we resort to title, I do-not feel the force of the argument drawn therefrom. In the law of 1804, the legislature prescribe the rate of interest, and in addition they prescribe that if any person shall demand or receive a. greater'rate, such person shall be subjected to a severe penalty and they entitle this law, having the double object in view, “ an act fixing the rate of interest, and for preventing usury.” In 1824, they have the same subject again under consideration, and they conclude to continue so much of the previous statute as relates to-fixing the rate of interest, and to discontinue that part of it which relates to the punishment of those who shall offend against its prohibition. They act accordingly, and entitle their law,- “ an act fixing the rate of interest” merely. Here is a change in the title; and the reason of the change is obvious. It is that the title may conform more precisely to the body of the act. But it does not follow to my mind, that because the words “ and for preventing usury” are omitted in the title to the act of 1824, therefore, it was-the intention of the legislature to legalize usury.

But suppose the subject had never been acted upon by the legislature before the passage of the law of 1824 — that body *then say all creditors shall be entitled to receive on all moneys due,”' etc., “ interest at the rate of six per cent, per annum, and no-more.” Can it be doubted that, if any person presumed to receive a greater rate of interest than this, such person would be thought to have violated the law? Should it be contended that the intention of the law was to allow creditors to receive six per cent, interest when no rate was agreed upon, and as much more as they thought proper to secure by express contract ? Should it be insisted, that in saying that no more than six per cent, should be received, it was intended that more might be received, provided a debtor could be induced to promise to pay more ? Before these positions could be successfully maintained, it does seem to me that the meaning of the language must be changed. Mew rules of construction must be introduced, and new principles adopted. Mow we are bound to give the same effect to the words used in this act fixing the rate of interest as if this were the first statute enacted upon the subject, if it can be done consistently with the well known, rules of construing statutes.

The object of this statute was to apply a remedy to the existing mischief. As before remarked, the mischief in the old law was, that it created a forfeiture of the debt for the violation of its provisions. The only change made was in removing this feature. And this change can hardly require a change of construction as to that part of the law which remains. It never could have been the intention of the legislature to remove all restriction from the usurer; otherwise that intention, would have been clearly expressed.

Since this law provides expressly that “ no more” than six per cent, per annum shall be received by a creditor as interest, we are unwilling so far to disregard it, as to allow that creditor, by a judgment of this court to receive thirty per cent., as claimed in this case.

We are satisfied with the construction which was put upon this law immediately after its enactment, believing it to be in strict conformity with the intention of those by whom it was enacted. The case of Reddish’s Executors v. Watson, et al., is in contravention of that construction, and we do not feel ourselves bound by its authority.

Judgment will be entered in favor of the plaintiff for the *prin■cipal of the note, together with six per cent, interest from the time it fell due

Judge Wood dissented.


author: Judge Hitohcook

text:
    Lessee of the City of Cincinnati v. Commissioners of Hamilton County.
    A special verdict finds a dedication of grounds for public uses, made by proprietors, laying out a town where no county was established, and that the county, when organized, came into possession of the dedicated grounds, and occupied them for a court-house and jail, with the consent of the people of the town; and further finds: “ That in so occupying said property, it was strictly in accordance with the object had in view by the ■original donors,” it is a finding of the right in the county.
    'This is au ejectment reserved in the county of Hamilton. The -object of the action was to recover the possession of a certain piece of ground, situated in the city of Cincinnati, bounded on the east by Main street, on the north by Fifth street, on the west by Walnut street, and on the south by an alley, running from Walnut to Main street.

      Upon the trial of the ease at the May term of this court, 1835, the jury returned the following special verdict:
    The jury find: 1. That the original proprietors of the town of ■Cincinnati did dedicate the property in dispute for public uses.
    “ 2. That the county came into the possession, with the consent and approbation of the people of the town, and did occupy it with the consent of the people of the town, up to the time the stone ■court-house was burnt, in 1813 or 1814.
    “ 3. That in occupying said property, it was strictly in accordance with the objects had in view by the original donors.
    “ 4. That so soon as said property was appropriated to private use, ■so soon was the object of the original grantors perverted and departed from.

      “ And if upon these facts, the court is of opinion the law entitles the plaintiff to recover, then we find the defendants guilty. But if, on these facts, the court is of opinion that the law is with the defendants, then we find for the defendants.”
    B. Stores., for defendants:
    A great deal of discussion has been saved by the finding of the jury, and the admissions on the part of the plaintiffs and defendants, that are necessarily involved in the facts stated in the special verdict.
    *The right to dedicate, a dedication made, and that such dedication divests the proprietor of all his interest in the estate, is, it seems to us, clearly established. What is the effect of such dedication must always be determined by the purpose for which it was made, qualified or explained, of course, by the situation of the community, and the locality of the place where the grant or appropriation is to be enjoyed. '
    In the present case the jury have found that the original proprietors of the town of Cincinnati dedicated the property claimed by the plaintiffs to public uses.
    2. That the county came into possession with the consent and approbation of the people of the town, and occupied and enjoyed the property, with the consent of the people of the town, up to the time the stone court-house was burned in 1813 or 1814.
    3. That in so occupying said property, it was strictly in accordance with the objects had in view by the, original donors.
    4. That as soon as said property was appropriated to private uses, so soon was the object of the original grant perverted and' departed from.
    Upon those facts the court are now asked to decide for whom is the verdict upon principles of law. We insist it is substantially a verdict for the defendants.
    In the first place, it must be conceded that if the original proprietors dedicated the property for the use of the defendants, even if the use itself should be perverted, the estate can not revert to the donors. A court of equity can alone correct the evil, and decree that the purpose intended by the dedication shall be substantially pursued.
    In the case of Barclay et al. v. Howell’s Lessee, 6 Peters, 50T, the Supreme Court of the United States say, “if this ground had been dedicated for a particular purpose, and the city authorities had appropriated it to an entirely different purpose, it might afford ground for the interference of a court of chancery, to compel a specific execution of the trust, by restraining the corporation, or by causing the removal of obstructions. But, even in such a case, the property dedicated would not revert to the original owner. The use would still remain in the public, limited only by the conditions imposed in the grant.”
    The doctrine of the dedication of land to public uses *depends upon the same principles as a grant to an individual; the only difference is, that in the one case no grantee need be named; in the other, it is essential. In both, the act of cession estops the-donor or grantor, and he is forever rebutted.
    There is no such thing as a conditional dedication, as to title merely; the whole right must pass, as the whole control over the estate is given up by the transfer to those who are to enjoy it. Cincinnati v. White, 6 Peters, 413.
    If such is the condition of the original proprietors, let us inquire, in the second place, in what particular is the situation of the present plaintiff made to differ. If the city had the estate, and dedicated it to the county for public purposes, the rule already referred to must certainly hold; for all that can be claimed, in one view of the case, is, that the city sustains such a relation. If the county held by the permission of the city merely, and the right to the property was in the city at the time the occupancy commenced, then the application of the principle we have before stated is manifest.

      But it is found that the occupation, though commenced with ¡the consent of the people of Cincinnati, was in strict conformity with the object had in view by the original donors. The occupation being by the county, and for public purposes, it could not have been for the immediate benefit of the city, and the idea that the donation was ever intended to be for the city, is thereby precluded.
    We can not imagine that the dedication could be to the city, •while the use was secured to the county; nor can we conceive Jhow the city could permit, even if the property was given to her citizens, its exclusive use to be enjoyed by a body in which she .had no direct interest or participation.
    It is urged, however, that the term public uses must be construed to mean the purposes of the town, or the people of the town. This assumption is predicated upon the opinion of this ■court, in the case of Brown v. Manning, 6 Ohio, 298. On examining that case, it will be found that the'faets were peculiar.
    The question was, not to whom, as donees, the property was appropriated, as the donation was proved, and its effect only disputed. A public square was laid out, lots sold, and streets bounded ■ upon it. The dedication was notorious, and acquiesced in by the original donors for several years: They attempted to resume ■their former estate, and their right to do *so was questioned, in chancery, by one of the purchasers of the lots. It was held that the dedication once made could not be recalled, that the property inured to the public, and was forever lost to the first proprietor.
    The court, among other things, decided, in this case, that the term “ public square” must mean a square for the benefit of the town, and could not be extended to embrace any other construction. Suppose it is granted, for a moment, that the expression alluded to must be thus limited, how does it affect the present case? Here the jury have found-, that the dedication was made for public purposes, and that the property was occupied until 1813, in strict accordance with the intention of the donors. The term “public purposes ” has an extended meaning; it must, to give any effect, be explained by the situation of the projected town, where the dedication is made ; and in this view, the use of public ground for •a court-house and jail, would seem as consistent with the original intention of the proprietors, as any other public purpose whatever.

      Cincinnati was regarded as already the seat of a county, when the dedication was made; and it was natural to reserve for the county an eligible site for the public buildings.
    We have thus presented the only point which, it seems to us, is involved in the verdict. If a motion is made for a new trial, it can only be argued at bar, as the evidence adduced at nisi prius is voluminous, and can not be embodied, without great difficulty, in the record; besides, the evidence offered on trial has not been noted in the case.
    I leave the case, then, with the further remark, that, as it is competent for a chancellor to compel the original donor, if he attempts to resume his estate, to releasd it to the public, that the purposes for which it was granted may be enjoyed; it is only competent, on the other hand, we conceive, as a corollary from the reasoning referred to, for the donor, if his dedication should be perverted by the public, to ask the aid of a court of equity, to restore the uses to their appropriate purposes. No action of ejectment can be brought, as the title is gone forever from the donor.
    Reynolds’ Lessee v. Commissioners Stark Co., 5 Ohio, 201; Smith v. Huston, et. al., 6 Ohio, 101.
    Hammond and Worthington, for plaintiff:
    This is an ejectment, and comes before the court upon a special *finding, by the jury, upon a trial, in Hamilton county. The question is, whether the plaintiff or the defendants are entitled to judgment, on the finding.
    It is found as follows :

      “ We, the jury on our oaths, do find,
    “ 1. That the original proprietors of the town of Cincinnati did dedicate the property in dispute for public uses.”
    Let us examine the extent and effect of this finding.
    When was the town of Cincinnati laid out? What were th© public uses for which the dedication was made?
    The finding of the jury being general, resort must be had, for these facts, to public history, and to official records.
    It is, we conceive, matter of public history, that the town of Cincinnati was first laid out in the early part of the year 1789. The state of the county, at that time, is also matter of history — its legal condition, in reference to municipal law and municipal jurisprudence. There were no county locations, no county rights, to which the dedication could possibly refer. At that time, the whole territory comprehended one county — the county of Washington was proclaimed July 27, 1788.
    The county of Hamilton was proclaimed January 2, 1790. Swan’s Land Laws, 494. The dedication for public uses, in general terms, must be understood and interpreted for the public uses-of the town. By reference to the certified copy of the town plat, among the papers, and the explanatory notes accompanying it, the fact appears, that the dedication was made “ for public uses,” in terms. The note is in these words: — “ The town lots given for public uses are numbered and painted with red ink.”
    There was then no public use but that of the town. In Brown v. Manning and others, 6 Ohio, 298, this point, we claim, was fully decided. The doctrine of dedicating town lots for public uses, was elaborately discussed by counsel, and as elaborately considered by the court. This appears from the numerous authorities referred to by the judge who delivered that opinion. The result of which clearly is, “ that a dedication, in terms, ‘ public square,’ accompanied with private conveyances referring to the public square, is valid, and inures for the benefit ‘of the inhabitants of the town.’ ”
    The verdict' here finds, that the property in controversy was dedicated “ for public uses.” These can only be for the town. It follows, that the dedication is valid — that the town *was the beneficiary, and must, consequently, have had the original right. Every position taken, by the judge delivering the opinion of the court in Brown v. Manning, et al., strongly sustains this dedication, as made for the benefit of the town of Cincinnati.
    The second finding of the jury, also, sustains this position, incontrovertibly. It runs thus:
    “ 2. That the county came into possession with the consent and approbation of the people of the town, and occupied and enjoyed the property with the consent of the people of the town, up to the time the stone court-house was burned, in 1813 or 1814.”
    Here, the use of the county is expressly referred to the consent of the town. The occupation, for a jail and court-house, was recognized as a public use by common consent. There was no assent to aught but a public use, mutual to the town and to the county. And of this, the jury find:

      “ 3. That in so occupying said property it was strictly in accordance with the objects had in view by the original donors.”
    That is: it was strictly in accordance with the objects of the original donors, that the town should permit the county to occupy the lots granted “ for public uses,” for the public use of a courthouse and jail. But this permission or consent, of the town, vested the county with no right beyond the legitimate “public use.” And so the jury find:
    “4. That as soon as said property was appropriated to private uses, so soon was the object of the original grant perverted and departed from.”
    The whole finding of the jury is not so full as could be wished. No exception is taken to it by the defendant’s counsel, and it plainly concludes the proposition, that, up to the burning of the stone court-house, in 1813 or 1814, the county occupied the ground in question for a court-house and jail. Subsequent to that period the county removed the court-house and jail, and rented the ground upon private leases, reserving rents to the county as landlord. In doing this, the jury find the grant was departed from. •Conceding this fact, “ the grant was perverted and departed from,” what is the legitimate result?
    The jury find, that “the object of the original grant [was] perverted and departed from.” What “ original grant ? ” It*matters not whether the departure was from the original grantors to the city, or from the original grantors from the city to the county.
    What was the consequence of the departure from this grant? Most certainly it could not invest those who departed from it with a higher estate than they before possessed. Who made the departure? The county. The consequence, then, would seem to be," upon the hypothesis of the counsel for the county, that a forfeiture of the estate was worked. Who can take advantage of that forfeiture? who can make gain or loss by it? Is this the privilege of the original donors, the founders of the city? That is not pretended. The case of Brown v. Manning et al., already referred to, is decisive against that. The dedication for “ public use” divested the donors of all claim. It invested the donees with title for the legitimately contemplated uses, and these the donees can not forfeit to the original donors. The donees are invested with a trust they can not forfeit. Such is the established doctrine of the American cases, fully recognized and forcibly illustrated in the -case of Brown v. Manning et al., decided at the last term of this •court and already repeatedly noticed. And such is the doctrine of the cases there cited by the counsel on both sides and the judge who delivered the opinion.
    The county ceased the public use of the grounds in controversy, .removed the public buildings, subdivided the ground, and made .permanent leases of it as a private landlord. In doing this, the jury say, “ the original grant was perverted and departed from.” What is the consequence of this perversion and departure? We ■say it reinvests the city with possession, to be again disposed of for “public use.”
    The county has no original right. The right of the city was perfect for public uses, not for private uses. The city yielded a public use to the county. The county “ perverted and departed from it.’-’ Consequently the city may, nay, is in duty bound, through its official agents, to resume the use and again direct it to its legitimate objects.
    The city may assert its rights in an action of ejectment. It is not driven to a bill in chancery. The law invested the county with the naked legal title, subject to the rightful use. See 1 Chase •Stat. at Large, 202, sec. 4, of the enactment of Dec. 6, 1800.
    *In Cincinnati v. White, 6 Pet. U. S. 431, the Supreme •Court of the United States expressly decide, in reference to a different dedication, that of the Cincinnati common, made by these same dedicators, in the same act of dedication, under which the •city claims, in this case, that it was not necessary to sue a bill in chancery. That where the right of possession, of use, was in the ■claimant, under a dedication like this, he could maintain ejectment. This accords with the plainest rules of common honesty and of common sense.
    The occupation of the county was neither temporary nor conditional. It was an occupation consistent with a publicly dedicated use, by the permission of the actual cestui que use, who could lawfully permit such occupation. Ceasing to occupy consistently with the use, the permission to occupy could no longer be made •obligatory by the cestui que use, if he sought to do so. Did he refuse to take legal measures to resume the possession, chancery, •on a proper application, would compel him to take those measures. The true remedy is an ejectment, regarding the permission to occupy as at an end. The case is not one of condition, or of forfeiture; but of permission in reference to a public use. The use, being confessedly disregarded, the permission can not be continued. If the right of the plaintiff to have judgment, on the verdict, is not conclusive, it must result from a defective finding. In that case there should be a venire de novo. Enough is disclosed to show that the defendants have no title. It is supposed there-is enough before the court to enable them to decide the whole-case.
    There is no motion for a new trial. No suggestion of such a. motion appears, except in the brief of the defendant’s counsel.
   Judge Hitohcook

delivered the opinion of the court:

The finding of the jury in this case is not as full as could have-, been wished, and it is not, perhaps, improper, according to the-suggestion of the'plaintiff’s counsel, to resort to public history, and to official records to ascertain facts which have not been found by the jury.

The premises in controversy constitute four lots in the city of Cincinnati. Subsequent to the organization of the county of Hamilton, these lots were occupied by the county, for purposes of county buildings, and continued to be so *oceupied, until the-court-house referred to in the special verdict was burnt. After-this accident, the lots were leased to individuals, and the rents were paid to the county. Another fact, which is deemed material, by the plaintiff’s counsel, is, that at the time the town of Cincinnati was laid out, there was but one county in the territory now constituting the State of Ohio, to wit: the county of Washington. The county of Hamilton was not proclaimed, until January, 1790' —whereas the town of Cincinnati was laid out in 1789.

The jury find, in the first place, that this property was dedicated, by the original proprietors of Cincinnati, for public uses. This, if the lands “are used for the object, and in the manner intended by the owner, inures as a grant,” 6 Ohio, 303. The original owner-is thereby divested of his title, although there is no specific grantee-in whom the title can vest. But to avoid any difficulty on this-account, provision was made at an early period of our history, by legislative enactment, vesting in the county the fee in lands appropriated by the proprietors of towns for public uses. On December 6, 1800, a law was enacted by the territorial legislature, 1 Chase. Stat. 201, requiring the proprietors of any town that had theretofore been, or that thereafter should be laid out within the territory, to cause a true and accurate map or plat of such town, to be recorded in the recorder’s office of the proper county — and the same law provides, that the fee of any, and all parcels of ground designated or intended to be for public uses, should, by such recording be vested “ in the county, in which such town is, in trust to and for the uses and purposes therein named expressed, or intended, and for no other use or purpose whatever.” Upon the recording of the plat of Cincinnati, the fee of the lots in controversy, was-vested in the county of Hamilton — not to be disposed of in such a manner as the authorities of the county might, deem most ex-pediment and proper, but in trust for the uses “ intended ” by the-proprietors of the town.

What were these uses? The jury find “ that the county came into possession with the consent and' approbation of the people of the town, and occupied and enjoyed the property, with the consent of the people of the town, up to the time the stone court-house was burned, in 1813 or 1814,” and “ that in so occupying said property, it was strictly in accordance with the objects had in view by the original donors.”

*There is, perhaps, some little difficulty in arriving at a satisfactory conclusion as to the meaning of the jury in this part of the verdict. The inference drawn from it by the counsel for the plaintiff is, that it was in accordance with the object of the-original donors, that these lots might be used for the public use-of a court-house and jail, provided the people of the town would permit. They argue upon the hypothesis that the use “ intended ” must have been the use of the town; and insist that the finding of' the jury, that the property thus used was so used “with the consent of the people of the town,” sustains this position. But is this-a fair exposition of the verdict or of the intent of the jury? We think not. We understand the jury to say, that these lots were dedicated for public use, for the purpose of erecting thereon a-court-house and jail. They had actually been used for this purpose, and the .jury find, “ it was strictly in accordance with the objects had in view by the original donors.” If we are correct in-this exposition of the verdict, then it follows, that this property was “ intended ” for the use of the county, rather than of the town. Counsel insist that such can not be the meaning of the jury, nor could it have been the intention of the donors, because when the> town was laid out there was no other county in the territory than -the county of Washington. The fact is correctly stated, hut it by no means follows that it could not have been intended that this property should be for the use of a county. The same history to which resort is had to prove this fact, will also show that it was ■no uncommon thing for the owner of lands, when laying out a town, to appropriate certain lots for the use of a court-house and jail, in anticipation that at some future period a county would be erected of which the town then laid out would be the county seat; •and it would have been strange if the proprietors of Cincinnati had not appropriated lots “ intended ” for this purpose. The ver-dict of the jury ascertains the fact, that the property in controversy was dedicated for this purpose, and for a time was used for ■this purpose. Upon the principle of dedication, the right of possession was in the county so long as it was thus used; and from the time of recording the map of the town plat, the fee was vested in ■the county, in trust for the uses intended by the donors.

The jury next find, “ that so soon as said property was appropriated to private uses, so soon was the object of the ^original grant perverted and departed from.” Taking this to be the fact and the law, for it seems to be rather matter of law, it by no means ■follows that the plaintiff has a right of action. In this, as in every other action of ejectment, the plaintiff must recover upon the ■strength of his own title. He must show a right of possession, at least a better right than the defendant. It will not do for him to rely upon the weakness of his adversary’s title, unless he can show some right in himself. In the ease before the court, the legal title, the fee of the land, is in .the county. Were we to admit that •a cestui que trust could maintain ejectment againsu his trustee, still the lessors of the plaintiff do not sustain that relation to the de fendants. This property is not holden by the county for their use, -but according to the verdict of the jury, it is holden for the use of .the county itself, for the purpose of erecting thereon public buildings. At least it was so holden while those buildings remained; and if since that time it has been otherwise appropriated it is not •for the lessor of the plaintiff to complain, for she is not thereby curtailed in any of her rights.

In the opinion of the court, the law arising upon the special verdict is with the defendants, and judgment must be entered accordingly.