author: Wood, C. J.

text:
    Michael May v. The State of Ohio.
    A letter added to a word in an indictment,„in pencil mark, before the indictment is found by the grand jury, does not vitiate the indictment.
    It is no variance between the note offered to the jury and the one set out in. indictment, that in the latter, the letter “s” is added to the word “promise,” the sound and sense being the same.
    Experts, who never saw the officers of a bank write, may be called to prove the note counterfeit.
    This is a writ of error to the court of common pleas of Portage county, made returnable in bank.
    It appears from the record the plaintiff was indicted, tried, and convicted of uttering and publishing a ten-dollar forged and counterfeit bank note, purporting to have been issued by the Lafayette Bank of Cincinnati to one Henry C. Hawkins, with intent to defraud, etc., at the November term of (he court of common pleas, of Portage county, 1845 — the plaintiff knowing the said note to be forged and counterfeited — and sentenced *to three years’ imprisonment, at hard labor, in the penitentiary. ,
    The record shows that, 'after verdict, motions for a new trial and in arrest of judgment were submitted to the court, and both overruled. The reasons for the motion for a new trial do not appear in the record. The reasons relied upon in arrest of judgment, were: 1. That the instrument alleged, in the indictment, to be forged and counterfeited, and set forth in words and figures, appeared to be set forth, in part, in pencil marks. 2. That it appears, from the indictment, that the offense was committed on a subsequent day to the one on which the court was holden, and there is no averment of the continuance of the session up to that day.
    Three bills of exception were taken during the trial. From the first it appears that the letter “s” had been added with a lead

      pencil to the word “promise,” in the description of the note, so as to make the word read “promises; ” and the prosecuting attorney, to maintain the issue in behalf of the state, offered, in evidence to the jury, the note which he claimed to be the one set out in the indictment, in these words : “ The Lafayette Bank of Gincinnati promises to pay," etc. This evidence was objected to by the plaintiff in error, on the ground of variance, but the objection was overruled, and the note permitted to go in evidence to the jury.
    In the further progress of the trial, the prosecuting attorney inquired of a witness his belief as to the genuineness of the note, the witness never having seen either the president or cashier write, ánd having no knowledge oftheir handwriting, but that acquired in receiving and paying out bills, purporting to have been issued by the bank, and to have been signed by Gano and Taylor, whose names appeared to the note in question, as president and cashier; and the witness having no personal knowledge that any of said bills had ever been paid by the bank. To this question the plaintiff in error objected, but the court overruled the objection, and permitted the question to be put, and the answer to go to the jury. To this ruling of the court a second exception was taken.
    *In the further progress of this trial, one Marvin Kent was called upon as a witness for the prosecution; that, on the same day on which it was alleged the plaintiff passed tho note to Hawkins, the plaintiff came into the store of witness, distant about ten rods from the store in which Hawkins acted as clerk, and asked witness if he had any Pennsylvania money to exchange for Ohio money; that witness replied he had, and the plaintiff offered him a ten-dollar bill on the Lafayette Bank, for which the witness gave him Pennsylvania money. Witness inquired of the plaintiff if he had any more he wished to exchange, and was answered by the plaintiff that he had not, but his comrade had. Witness then-desired plaintiff to tell his comrade to call in. The plaintiff then left the store, and in about an hour afterward, the'other man came in. The witness was theh asked by the prosecuting attorney what became of the ten-dollar bill passed by plaintiff to him. To this question the plaintiff objected, unless it could be shown the bill went into the possession of the plaintiff. The court overruled the objection, and the question was put, and the answer given, that the man who came last into the store redeemed the bill; which answer the court permitted to goto the jury. The witness” was then asked if that bill, which was not produced, was not. counterfeit. To this question the plaintiff objected. The court overruled the objection; the question was put, and the answer of the witness permitted to go to the jury, and a third exception taken.
    On this record, the counsel for the plaintiff have assigned for error: 1. That the indictment is insufficient. 2. That it does not appear the court was continued from day to day, from the 3d to the 5th day of November, 1845, on which last day said offense is charged to have been committed. 3. That the letter “s”is added to the word promiseJ in lead pencil marks, wherever the same occurred in the description of the alleged counterfeit bank note in the indictment, and is invalid, as without it there is a variance between the note offered in evidence and that set forth in the indictment. 4. The word “ the," as it occurs *in the instrument offered in evidence, is omitted in the note set forth in the third count of the indictment, and the court erred in permitting it to be received in evidence, generally, under such indictment. 5. The court erred in admitting the testimony of witnesses who had no knowledge of the handwriting of the persons whose names were alleged to be forged, other than that acquired in receiving and paying out notes purporting to have been signed by said persons, to prove the signatures of the note in question were forged and counterfeited. 6. In permitting the witness, Bent, to be asked what become of the bill alleged to have been passed by the plaintiff to the witness, without showing that the plaintiff was in any way connected with the disposition of it. 1. That the court permitted the witness to be asked whether said bill was genuine, the same not being produced nor traced to the possession of the prisoner.. -8. That the judgment was given in favor of the state, when it should have been given for the plaintiff in error.
    Bierce & Wolcott, Spalding & Bat, and E. M. Stanton, for plaintiff.
    Bobert F. Paine, for the state.
   Wood, C. J.

The first assignment of error goes to the sufficiency of the indictment. It ,is not contended that any alteration was made in it by the prosecutor, after it was returned into court by the grand jury. The fact we suppose to be, that in looking over the form of the indictment, before the same was submitted to the grand jury, the pleader added the letter “s” to the word promise, to avoid all question of variance, when the note should be offered in evidence, as the word in the note is promises. The question, then, is, does this letter “5” in pencil marks, vitiate the indictment? No encouragement should *be given, it is true, to a departure from well-established forms in criminal jfieading, but it is the substance of the form, and not its shadow, to which it is important to adhere. The court might not feel disposed to tolerate the practice of drawing an entire indictment with a lead pencil, because it is more liable to be effaced and obliterated-than if drawn with ink; but there is no statute in Ohio, nor any rule of common law, nor any principle of ordinary sense, that will avoid an indictment merely because one letter in the whole indictment is added to some one word in pencil, and that letter making no difference, neither in sound, sense, nor effect, in the word to which it is joined. An indictment is usually written, but it may be printed; and is, nevertheless, valid. It is commonly drawn with black ink ; but if written in red, blue, or yellow, who is bold enough to say that it is such a departure from usage that it vitiates the indictment? Wo apprehend no one. Why, then, should a single letter, in a legible pencil mark, have such an effect?

The second assignment is founded on the supposition that there is a repugnancy in the record fatal to the judgment of the court of common pleas. In the caption, it is stated the court of common pleas was begun and holden on November 3, 1845; and, in the indictment, it is averred the offense was committed on the 5th of the same month ; and as the record does not expressly aver the continuance of the court from day to day, from the 3d to the 5th day of November, it is insisted that the record shows the finding of the indictment before the offense was committed. If. this bo so, there is a repugnancy not to be overcome. It is, however, a rule of law, that the whole term of a court of record is to be considered as but one day, except in special cases, and for the purposes of justice, particular days of the term will be regarded; but never, when it will work injury or effect wrong.

But the record taken altogether, shows no apparent inconsistency. The caption is in these words, so far as it is material: “At a term of said court, begun and held at the court-house, *in the town of Bavenna,” etc., “on November 3, 1845.” Then follow the proceedings before a justice of the peace, copied into the record, which, among other things, shows a warrant issued fcr the plaintiff by said justice, the return of the constable, that ha had the plaintiff in custody, and an order of the justice, made on the 6th day of November, that the plaintiff be retained in custody until disposed of by the grand jury of said county, then in session. The record then proceeds thus: “Afterward, at the same term aforesaid, the jurors of the grand jury,” etc., “returned into court their bill of indictment against Michael May.” The record therefore shows, with absolute certainty, that.the indictment was found after the offense was committed, when the whole is taken together, and no continuance of the court from day to day need appear in the record; because the whole term is, in law, but one day, and it does appear that the term continued until after the indictment was returned into court.

The third assignment of error is the admission of the note in evidence. It is supposed there is a fatal variance between the note described in the indictment and the one offered to the jury-in support of it. The note is set out in hme verba, which binds the pleader to a literal copy, according to the older authorities; but the rule of late has been much relaxed. This assignment may, however, be considered as substantially disposed of, by what has already been said in relation to the first assignment. With jthe letter “s” in pencil marks, there is no variance, if that letter is held to form part of the indictment; and we incline to the opinion that it does. But if not, the sound and sense are, in substance, still the same. Indeed, the grammatical construction of the sentence is the same. Bank is a collective noun; its verb may be singular -or plural; promise or promises, is all the same in substance, sense, and sound; and the note is sufficiently, in our opinion, described, to go in evidence to the jury. Stevens v. Stebbins, 3 Scam. 26; Quigley v. The People, 2 Scam. 302.

The fourth assignment is based upon the supposed error of the court in admitting the note to go in evidence, when it ^varied from the one described in this, that the word “the” is upon the note offered, thus, The Lafayette Bank of Cincinnati; and in the one described it is omitted, thus, Lafayette Bank of Cincinnati. Rules of evidence are the same in civil and in criminal proceedings ; and, at the present day, courts are not confined to the rigid rule of idem sonans; but the inquiry is, whether the variance be material or immaterial; and it can not, with any propriety, be insisted that the word the either adds to or detracts from the force,, effect, or validity of the notes of the bank, or its obligation to redeem them.

As to the fifth assignment, it can by no means be sustained. The law permits experts to be called to testify to the genuineness-of handwriting, though they have never seen the person write. Indeed, any person who has been accustomed to see, receive, and pay out bank paper may be called to prove its character, though his knowledge is entirely derived from his observation of the-paper only, and its currency in the community, and he may never have seen the officers of the bank who signed the bill write, nor know, personally, that the bank ever redeemed one of the bills he has seen in circulation. Cowen and Hill’s notes to 3 Phil. Ev. 1334-1337.

The sixth assignment is not tenable. The evidence given was such as to lead to the impression that the plaintiff and his comrade perfectly understood each other, and were engaged in a common criminal enterprise, and that the act of the one was the act of both. It was, therefore, competent for the prosecutor to put any inquiry that would show the part taken by either in the passing or the redemption of the bill, to establish the plaintiff’s-guilt, to ascertain where the bill was, and its identity. The evidence would have been competent, if the bill had passed into the hands of a perfect-stranger, in order to trace it to the hands of the prosecutor, and identify it on the trial as the note uttered and published by the plaintiff.

The seventh assignment is, that the court permitted the question to be put “ whether said bill was genuine, the bill not being produced nor traced to the possession of the prisoner.” *On this assignment, it is sufficient to say that the bill of exceptions does not show that any answer was given to the inquiry. Whether legal or illegal, therefore, we are left entirely in the dark whether the answer was such as probably to influence the jury either against or in favor of the prisoner. This witness may have testified, from anything that appears, that the notice was genuine, and other testimony not set forth may have convicted the pi'isoner.

We may, therefore, dismiss the case with the application of that most appropriate maxim, lex non curat de minimis, and by affirming the judgment. Judgment affirmed.


source: Caselaw Access Project

author: Birchard, J.

license: Public Domain

text:
    Thomas U. White v. The State of Ohio.
    Section 5 of the act for the protection of the Ohio canals, was intended to prevent persons from traveling on the "banks of the canal, without regard to its safety, except in the excepted cases, and in cases of urgent necessity.
    That, to prevent vexatious prosecutions, and to insure prompt action in cases requiring it, a discretion is vested in the officers having charge of the-canal, and exclusively authorized to institute the prosecution.
    In cases of error to the Supreme Court, no writ of error is required "by the-statute; if allowed in bank, the official signatures of the judges to the allocatur, or a copy of the journal entry; if by two judges in vacation, their official signatures to the allocatur, furnished to the clerk of the county, is the proper way of officially informing him of the allowance of the writ.
    This is a writ of error to the Supreme Court for the county of Fairfield.
    On April 11, 1842, Samuel G-. Foster, as superintendent of the Hocking canal, made complaint before a justice *of the peace against plaintiff for having, on that day, driven a horse and buggy on the towing-path of the canal. Plaintiff was arrested upon the complaint, tried, eonvict-ed, and fined five dollars and the costs. From this judgment he appealed to the court of common pleas, in which a declaration in debt upon the statute was-filed against him. To this he interposed a plea of nil debet, with a notice, in substance, as follows:
    That he would give in evidence, on the trial, that at the place on said towing-path where he entered upon the same with his-said horse and buggy, a common public highway, laid out by act of the general assembly, over which all persons were accustomed) to pass with carriages, etc., crossed the said canal. That, at the-time when, etc., the bridge across the said canal, over which said highway passed, was founderous, and then unsafe, and impassable, to be passed over. That he, being then, etc., passing along said highway, and desirous of crossing said canal, was, by reason of the founderous state of said bridge, unable to cross said canal at that point; wherefore, he drove bis said horse and baggy on and along said towing-path to the nearest practical point for crossing-said canal, to get upon said highway on the opposite side of said canal, doing no unnecessary damage. And that the only passage or way from, the point where said highway so crossed the canal, to the point.where plaintiff did so cross said canal, was along said towing-path so passed over by him. On motion, this notice was stricken from the files, as constituting no bar to the action.
    The cause was submitted to the court upon the issue joined, and upon the evidence, judgment was rendered against the plaintiff for five dollars and costs.
    A bill of exceptions was taken during the progress of the trial, showing that plaintiff offered to prove the facts set forth in the notice, with only this variation, “that the route taken along the towing path was the nearost route to regain the highway, and that there was no other way of regaining it on the opposite side of the canal, except by .going back, and taking a circuitous route,” and that ■ the court overruled the evidence.
    *A writ of error was prosecuted in the Supreme Court, and the following errors were assigned :
    1. That the court of common pleas erred in striking out the special notice.
    2. In overruling the testimony.
    3. In giving judgment for the state.
    At the November term, 1843, the cause was heard, and the judgment affirmed. An allocatur, signed by all the judges, appears upon the transcript; but no writ ever issued.
    The error assigned, that the Supreme Court affirmed the judgment of the court of common pleas.
    Stanbnry & Van Trump, for plaintiff.
    Hunter & Garaghtz, for defendant.
   Birchard, J.

Section 5 of the statute for the protection of the Ohio canals (Swan’s Stat. 174) is in these words : “ Hvery person who shall lead, drive, or ride any horse, ox, or ass, mule, or other animal, upon the towing-path, or the bank opposite the towing-path of any canal, authorized by the laws of this state, except for the purpose of towing boats, or other floating things, upon the waters thereof, and except for the purpose of conveying articles to and from said canals, in order to their transportation on the waters of the same, or their delivery at their place of destination, shall forfeit, for every such offense, the sum of five dollars, and pay all damages consequent upon such offense, over and above said forfeiture.”

Section 37 of the act confers the power to prosecute in the cases provided for by section 5 exclusively upon certain officers in charge of the canals, as members of .the board of public works, resident engineers, superintendents, etc.

^Section 135 gives a right of action to the party injured against any such officer who shall institute a suit without probable cause.

In coming to a conclusion upon the merits of this case, it is important to bear in mind the mischief provided for, as well as the remedy. The state had learned, by the experience of some fifteen years, that people, especially in seasons of heavy traveling and bad roads, were in the practice of avoiding the deep mud of the roads, by traveling upon the banks of the canal, and not unfrequently, without regard to consequences, selfishly looking to their own convenience, to the exclusion of all care for the safety of the canal, or for the injury done to the state. By intrusting to the officers in charge of the public works, the exclusive right to prosecute for violations of the law, the legislature intended that the law itself should not become an instrument of mischief in the hands of every evil-disposed or litigious person, enabling them to prosecute for every casual or harmless act of riding or driving upon the banks of the canal. But that the power to prosecute should be used at the discretion of the officers named, to prevent the mischief to be remedied, whenever, in their judgment, the public interest required. The subject is of such a nature that a law, less general, would, in many instances, fail in securing the necessary protection. Hence, we may suppose, were employed the absolute terms which are to be found in section 5. To avoid the evil of frequent vexatious prosecutions, and to secure prompt action when meritorious causes exist, the discretion to prosecute or omit it, is confided to sworn and competent officers, who act under the responsibilities imposed by section 135. Can the court interfere with this discretion, in a case coming within the letter of the law? This is a question of some importance, yet we are not prepared to say that the record makes it incumbent upon us to pass upon it. Admitting, for argument, that a court might interfere, by refusing to render judgment in a case strictly within the letter, but not within the spirit, of the act, it does not follow that the judgment of *the Supreme Court, affirming the judgment of the common pleas, was erroneous. The notice which was stricken out, and the bill of exceptions, do not show a case of absolute necessity for traveling upon the towing-path. They only show that it was the nearest route. By implication, the notice, and in terms the proof offered, show that a practical route, a little more circuitous, could have been taken. They therefore only show that the plaintiff’s convenience, not his necessities, induced him to do the act which the superintendent of the canal regarded as a violal’on both of the letter and spirit •of the law. In our opinion, the object of the act was to prevent men from making a mere matter of personal convenience paramount to any consideration of safety to the public interest. The design was to punish those who, to avoid a little inconvenience, or •to save a few moments’ time, would do acts tending to endanger a great and important public work.

No writ of error, having issued from the court in bank, to the Supreme Court of the county, a question arises, whether this court has jurisdiction of the case. In cases where writs of error go from the Supreme Court to the courts of common pleas, the cause is not considered before the former until after the service of a writ, with a citation to the opposite party, or an appearance entered, with a waiver of notice.

The writ from this court to the court upon the circuit is, however, a creature of the statute. Swan, 690. Section 2 authorizes the court in bank, or any two judges in vacation, to allow such writs, requiring them to be prosecuted within one year after the rendition of the judgment complained of.

Section 3 makes it the duty of the clerk of the Supreme Court of the county where the judgment sought to be reversed was entered, on being officially advised of the allowance of such writ, to make out an authenticated transcript of the record, on which the plaintiff in error shall enter an assignment of errors, with a prayer for a reversal, and forthwith transmit it to the clerk of the court in bank, to be by him entered on the docket of said court.

The clerk of the county is further ^required to issue a citation, which must be served twenty days before the sitting of the court in bank. This seems tobe all that is required by statute to give the court in bank jurisdiction. The clerk of the county must be officially informed of the allowance to entitle him to act. In what manner he shall be so informed, seems to be indicated by the statute. If the allocatur is by the court in bank, the official signatures of all the judges, or a majority of them, to ■the allocatur, or a certified copy of the journal entry, is the proper way of officially advising him. If allowed by two judges in vacation, their official signature to the allocatur is all that is required.

Judgment affirmed.


text:
    Joseph Watson v. Wilson N. Brown and Aaron Fuller, Partners, etc.
    Under the provisions of the act of 1816, to prevent the circulation of unauthorized hank paper, demand and notice are not necessary to charge the drawers of a hill of exchange.
    A hill of exceptions should contain enough to show that the matter, wherein the court of common pleas is alleged to have erred, was material to the issue.
    This is a writ of error, directed to the court of common pleas of Montgomery county.
    The declaration contains four counts upon two bills of exchange. The plea was the general issue.
    The cause was submitted to a jury, and verdict rendered for the plaintiff below, upon which judgment was entered.
    *This writ is brought to reverse that judgment, for certain supposed errors appearing in a bill of exceptions, of which the following is a copy :
    “ Court Of Common Pleas, Montgomery county, April terra, 1843. This cause came on for trial; and, the jury being impaneled and sworn, the plaintiff, to sustain his action, offered in evidence the bills of exchange of which these are copies, and their protests:
    “ Dolls. 500. Washington Bank, Miamisburg, .July 8, .1840.
    “ Matthew T. Miller, Esq., Philadelphia, sixty days after date, pay to the order of Joseph Watson, Esq., five hundred dollars, and charge this institution.
    |500 “ Edw. D. Jones, Gash."

    Indorsed: .
    “ Pay to the order of C. P. Huber, July 8, 1840. Joseph Watson.
    “Pay to the order of Lewis Hásselman, July 8, 1840. C. P. Huber.

      “Pay to John Treon or order, July 8, 1840. Lewis Hasselman.
    “Pay to Wilson N. Brown and Aaron Fuller, partners under the firm of Wilson N. Brown & Co., July 8, 1840. John Treon
    “Wilson U. Brown & Co.”
    “ Be it known that, on the date hereof, at the request of N. Brown & Co., the holder of the original bill of exchange, of which a true copy is above written, I, Edward Hurst,' notary public for the commonwealth of Pennsylvania, by lawful authority duly commissioned and sworn, residing in the city of Philadelphia, presented the same to a clerk at the place of business of Matthew T. Miller, the drawer, and demanded the piayment, which was not obtained, and answer made that it would not be paid. I therefore duly notified the drawer and indorser *of the non-payment of the same. Thereupon, I, the said notary, at the request aforesaid, have protested, and do hereby protest, against the said drawer and indorser of the said bill, and all others concerned, for all exchange and re-exchange, costs, damages, and interests, suffered and to be suffered in want of payment thereof; thus done and protested, in the city of Philadelphia, aforesaid, the 9th day of .September, 1840. In testimonia veritatis.

    [l. s.] “ Edward Hurst, Notary Public.”

    Then follows the copy of the second bill of exchange and protest, similar in terms to the preceding :
    “To the-offering of these bills of exchange in evidence, to support the plaintiff’s cause of action, the defendants, by their counsel, objected, for all the reasons hereinafter set- forth; but the bills were permitted to go in evidence, reserving the questions of law for the charge of the court; and, the plaintiff’s testimony having closed:
    “ The defendant, by his counsel, moved the court to charge the jury:
    “ 1. That, when the consideration of any agreement is in violation of a statute, no action can be maintained upon it by either party.
    “ 2. That persons may avoid their contracts by alleging their own criminality, provided it conflicts with some positive statute of the state-.

      “ 3. That an action can not be sustained in the courts of a state, entered into in violation of the laws of the state.
    “ 4. That, if a penalty be annexed to the transaction, the transaction is just as much null and void as if it were positively prohibited by the statute.
    “5. That the law is the same, if the transaction be prohibited by statute, although it is not expressly declared that the contract is void.
    *“ 6. That if, from the testimony in this case, the jury are of opinion that the Washington Social Library Company, otherwise called the Washington Bank, was an unauthorized banking association, under the act of January 27,1816, and that the draft in controversy was drawn by E. L. Jones, a cashier, in the transaction of this illegal business of banking, then the transaction and making of the draft of said association was illegal, and that an action can not be sustained upon said draft.
    “7. That if, from the testimony, the jury are of opinion that ‘The Washington Bank’ was an unauthorized banking association, under the act of January 27, 1816, and that the draft in controversy was drawn by E. L. Jones, a cashier, in the transaction of this illegal business of banking, and that Joseph Watson was the payee and indorser of this draft, that this indorsement was an illegal act, which subjects him to a penalty and prevents a recovery upon the paper against him; because a person may allege his own criminality, provided it consists in some positive statute of the state.
    “8. That, if the jury are of opinion, as to the facts as stated in fourth and fifth requests to charge, then this draft is illegal and void.
    “ 9. That section 3 of the act of January 27,1816, not only renders illegal all notes issued or made by said bank for circulation, commonly known as bank notes, but every contract made as a bank.
    “ 10. That section 11 of the act of January 27,1816, insisted upon by plaintiff’s counsel, does not apply to the suit on this draft, but is a remedy confined to an action against a defendant as a stockholder, shareholder, or partner, in said bank.
    .“ 11. That, if the jury are satisfied from the pi’oofs that the Washington Bank, which appears as the drawer of these bills, was the same institution as the Washington Social Library Company or Corporation of Miamisburg, and that the said institution was, at the date of those bills, exorcising banking powers, and drew these bills by its cashier, as a bank; that then *the defendant and plaintiff, being both indorsers of the bills, were, by such indorsement, liablo to the penalties of the statute in such case provided, and engaged in an illegal act, and the plaintiff can not recover of the defendant upon the said indorsement of the defendants; that the public statute providing such penalties, and the act of incorporation of the Washington Social Library Company, being the public laws of this state, the plaintiff is presumed to have notice of the unauthorized character of such bank and the drafts drawn by it.
    “ 12. That, when a note is protested in Philadelphia, the immediate indorsers of the holder, residing in Cincinnati, and the other prior indorsors in Miamisburg, in this county; and when there is nothing proved from which it appears that the holder was ignorant of the residence of any of the indorsers; and when the due and ordinary course of mail from Philadelphia to Miamisburg, was not through or by the way of Cincinnati; it is not sufficient notice to the defendant at Miamisburg to inclose a notice for the defendant, Watson, by mail, to the immediate indorser, to forward the same notice from the holder, on the same day when received by him from defendant, by mail, from Cincinnati to Miamisburg; that the immediate indorser of the holder, on receiving notice, from the holder, of the dishonor of the bill, might himself give notice to his prior indorser, including Watson, the defendant, in order to charge them, and would be allowed one day for the service or sending of such notice, or such immediate indorser might rely on the notice from the holder at Philadelphia to Watson. But, if the immediate indorsor chose to rely on the notice from the holder at Philadelphia to Watson, that notice would only avail him, if regularly made by the holder, or notary acting for the holder, and addressed and sent directly to Watson, by the due and ordinary course of mail, from Philadelphia to Miamisburg—
    “Which said several matters of charge the court refused; but charged the jury that, notwithstanding the principles claimed, yet the plaintiffs were entitled to recover upon said draft or *bill of exchange, so offered in evidence. To which opinion the defendant excepts, and prays the court to sign and seal this, his bill of exceptions, and that it be made part of the record in this cause; and it is done accordingly.”
    Upon -which bill of exceptions the following errors were assigned :
    “1. That the said court overruled the demurrer to the second and fourth counts of the said amended declaration, when the same should have been sustained, and judgment thereon rendered for the said Joseph Watson.
    “ 2, That’the court permitted the said bill of exchange, offered in evidence by the said Wilson N. Brown & Cp., to go to the jury, when the same should have been excluded, for want of sufficient notice to the said Watson and indorser.
    “ 3. That the court refused to charge the jury, as requested, upon the several points set forth in the said bill ef exceptions; but charged that the said plaintiff was entitled to recover of the said Watson.”
    Odlin & Schenck, for plaintiff:
    We claim that, inasmuch as the association which issued these bills of exchange, was an illegal association, acting in violation of ' law, the instruments are void. Being a void, illegal transaction, a court will not lend its aid, but leave the parties as they are. 1 Saund. 306 ; Bayley v. Tabor, 5 Mass. 286 ; Wheeler v. Russell, 17 Mass. 258; Farrar v. Barton, 5 Mass. 395 ; Hall v. Mullen, 5 Har. & J. 193; 4 Dall. 298; 6 Binn. 321; 4 Serg. & R. 159; 1 Binn. 118; 4 Dali. 269.
    The evidence of protest is not sufficient. Except in some states, under their peculiar statutes, the statement of the notary *in his certificate that he made demand and gave notice, is not sufficient evidence, without stating in what manner the one was made and the other given, that the court may judge of their legality. Smith v. McManers, 7 Serg. 477; 6 Serg. & R. 484; 4 McC. 57.
    Stoddard & Haynes, for defendants:
    Paper of the description of these bills of exchange, though issued by a company, associated as an unauthorized banking association, is not void. On the contrary, the act of 1816 expressly provides for the collection of such paper, and makes all the stockholders and officers of the association liable to be sued upon it, in their individual capacity.
    The demand and notice were sufficient, and the notarial seal sufficient evidence thereof, though this was not all the evidence adduced. On this point, in addition to cases cited by plaintiff’s counsel, see Halliday v. McDougal, 20 Wend. 81; 19 Amer. Jur. 138; Triplett v. Hunt, 3 Dana, 128.
   Birchard, J.

The record shows that, after the court of common pleas overruled the demurrer to the second and fourth counts, the defendants plead issuably to the action, and.went to trial. This, according to the course of decision in this court, was a waiver of the demurrer, and disposed of the firpt cause assigned for error. The provisions of the recent statute, do not apply to cases tried in the court of common pleas prior to its taking effect. The act was not intended to, and can not have any retrospective operation.

The second assignment can not be maintained. It is no objection to a particular item of evidence, that, unsustained by other proof, it is insufficient to entitle a party to recover. If it has a tendency to support the issue, it is admissible, and should not be ruled out. The question of its sufficiency, taken in connection with all the proof in evidence to the jury, will ^remain open, to be tested on demurrer to the whole evidence on trial, by the court, or by a verdict of jury, under instructions of the court.

The third assignment presents two inquiries:

1. Did the court err in refusing to instruct the jury as requested ?

2. In giving the instruction stated in the bill of exceptions?

We will consider these in their order.

On a careful examination, the record will not be found to disclose any fact showing that the plaintiff could have been benefited by the instructions requested, if the court had complied and given them in charge, in the words proposed by counsel, or that ho has been at all prejudiced by the refusal of which he complains. For aught that appears, the thirteen propositions were entirely out of the case, and may be considered abstract propositions. The bill of exceptions docs not profess to contain all the evidenco that was submitted to the jury. It contains nothing making the instruction requested applicable to the issuo, but what appears on the face of the bills of exchange. They both purport to have boon made by the Washington Bank, at Miamisburg — an illegal association, doing business as a banking institution — in violation of the acts of 1815 and 1816. It may be admitted that the paper was sufficient to show this; but it by no means follows that tho court erred in refusing to give the instructions. The prohibitions of those statutes are against paper designed and intended to be put in circulation as money. It does not affect suits brought upon the promissory notes, bills of exchange, and other contracts executed and entered into by tho illegal association. Porter v. Pumroy et al., decided this term.

So far from making void such instruments, section 11 of the act of 1816 (Swan’s Stat. 137) imparts to them a peculiar vitality, by making all persons interested in the illegal association liable, jointly and severally, in their individual capacity, for their payment.

*And section 13 entitles the holder to recover without proof of presentment and demand of payment, at tho place where made payable.

Tho charge of the court, by implication, admits tho correctness of tho principle contained in the thirteen propositions of the plaintiff, as general propositions, and denies their application to this ease.

. As before stated, if the court were right in this, it could not help the plaintiff’s case; and if wrong, it could not have prejudiced it.

It remains to be considered whether the proof given was sufficient to justify the verdict.

The protest and proof of notice are said to have been insufficient. Admitting that the merit of the case depended entirely upon this proof, it may well be doubtocf whether there was sufficient evidence of demand and notice. Tho bill, it is true, is a foreign bill, and the more recent doctrine is, that tho notarial certificate of a foreign notary, when introduced, is evidence of tho facts stated in it. Yet, as will be seen by the cases referred to in argument, the authorities upon the point are conflicting; and I have been unable to find in the decisions of the United States court, whose decision I would regard as conclusive upon tho question, any case in which the certificate of the notary has been held sufficient, when it did not contain a statement of the facts showing tho manner and time of giving tho notice. Without, however, determining the question'whether the proof of demand and notice, according to the usages and customs of merchants, was sufficient, we are of opinion the case may be disposed of, because the evidence just’fied the instructions which were given.

All banking institutions of this state are creatures of the law. By statute, their charters are general laws, of which the courts are bound to take notice. It follows that they were bound to take notice that the Washington Bank was an unauthorized institution, and that a demand at the place where payable, was not necessary to entitle the holder to recover the amount of *these bills of exchange. Watson was the payee and first indorser. He also was bound to know that no demand was .required, and that be needed neither demand nor notice to enable him, if a bona fide holder, to collect them of the association. He had no right to expect the bills would be paid if presented, and therefore no right to claim exemption from liability for want of demand and notice.

Upon the examination of the whole record, we think there was no error in the instructions given, and none in the refusal com- . plained of. Judgment affirmed.


author: *Hitchcock, J.

text:
    *John Bodkins v. William C. Taylor.
    A party whose name appears upon negotiable paper, is not a competent witness to impeach its consideration.
    This is a motion for a new trial, reserved in Pickaway county.
    The action is assumpsit upon a promissory note signed by the ’ defendant, for the sum of $100, made payable to John T. Bichardson, or order, on or before the 1st day of March next after the date thereof, and bearing date September 27, 1837, and indorsed in blank, without recourse, by Bichardson, on May 11, 1838. The suit is in tho llame of Bodkins, as indorser, against Taylor, the maker of the note.
    Tho defendant pleaded the general issue, and gave notice that, on tho trial, ho would prove that said note was given for a patent right, which was void, so that the note was without consideration, and that Bodkins, when he took the assignment of the note, well knew it was given without consideration.
    The case was submitted to tho court at the last term, in Pick-away county, and the court found the issue for the plaintiff, and entered judgment accordingly.
    A motion was then made to set aside the judgment, and for a new trial, on tho ground that the court erred in rejecting certain evidence which was offered on the trial; and that motion was reserved for decision in bank.
    John L. Green and H. H. Hunter, in support of the motion.
    Finoii & Jones, contra.
   *Hitchcock, J.

On the trial of this case upon the circuit, the deposition of John C. Bichardson was offered in evidence by tho defendant to prove tho facts set up in the notice attached to tho plea of tho general issue. This deposition was objected to, and tho objection sustained by the court, on the ground that any person whoso name appeared upon negotiable paper could not be a witness to impeach the consideration. The only question now presented for consideration is whether the court erred in ruling out the testimony.

We very well know that this is a vexed question, and one upon which tho decisions of courts in England and the United States have been as various as upon any other question that could well be named. Any person desirous of ascertaining how various the decisions have been in this country, will find all tho eases referred to in a note to Greenlcaf’s Evidence, 385. Tho same question has been before this court at the present term, in tho case of Troon v. Brown et al., and the court have determined in that case to abido by the ancient rule, as established in the case of Waltcx v. Shelley, 1 Term, 296. That decision is decisive of this case.

The motion for a new trial is overruled.


author: Read, J.

text:
    Thomas B. Kyle v. Sylvester Green.
    An indorser of a promissory note may, by special agreement, waive notice of demand and non-payment.
    If the indorser contract with the indorsee that he will be responsible for the payment of tho note, if the maker prove unable to pay it, after being prosecuted, and his property exhausted, an action may be sustained against the indorser without proof of notice that the maker has failed to ’ pay.
    This is a motion for a new trial, reserved in the county of Miami.
    *Tho grounds urged for a new trial are, that the court erred in their charge to the jury, and that the verdict of tho jury was contrary to evidence.
    The action was brought upon a promissory note for $207, executed by one Daniel Ferran to the defendant, given September 1, 1837, and by him assigned to Kyle, with several other notes.
    Kyle executed to Green the following receipt and agreement, respecting said notes:
    “ I have received of S. Green the following notes, by assignment from him, and I agree to sue the respectivo makers of the notes, if collection can not be made otherwise, and use all due diligence to collect the notes from the makers before said S. Green shall become liable for any of them.”
    The declaration contains four counts.
    The ordinary count of indorser against indorsee. This count varied by the averment that the maker had been proseoutod tore-turn of execution “ no goods,” etc., and common counts.
    Verdict for the plaintiff. This is the second verdict in the Supremo Court (or plaintiff, a new trial having been once granted. There was also a verdict for plaintiff in the common pleas.
    The following is the memorandum of facts and charge of the court, furnished to sustain the motion for a new trial:
    On the trial of this cause, plaintiff having introduced the paper herewith marked A, subscribed by Kylo, and the promissory note herewith, and proved the recovery of judgment on said note against Ferran, the maker; the returnof“no goods” by the sheriff, and also a request by Green to Kyle to be lenient to Ferran, as hereinafter stated, rested his ease. And thereupon the defendant moved the court for a nonsuit, on the ground that the plaintiff had failed to prove the notice to Green, averred in his declaration; that he had prosecuted the maker of said note, obtained judgment on the same, and that “ no goods,” etc., had been returned by the sheriff.
    No testimony *of such notice having been adduced, the defendant insists the court erred in overruling his motion.
    It was also in evidence that after the instrument above referred to, as subscribed by Kyle and marked A, was subscribed, and the trade between Kyle and Green concluded, some conversation <3f the following purport was had: Green said to Kyle, “Now you need not jump upon the makers of the notes at once. There is Ferran ; ho is honest, and will pay. If you will call on him at times, along, you will be able to get it in small sums,” etc. Kyle replied to this, “ that he would do with the notes the same as if they were his own.” The above conversation took place immediately after the trade had been concluded, and before the parties had separated. Mr. Morris,' one of the witnesses, testified “that Kyle would not agree to indulge any of the makers of the notes, at Green’s above-named suggestions. That he, Morris, drew the instrument A; that the object of the parties in having the instrument drawn, was to save Green harmless from his liability to suit on demand and notice merely, and to compel Kyle to sue the makers before looking to Green.” Ferran was Green’s brother-in-law, and Green had sot him up. Two terms of court were suffered to elapse by Kyle before he brought suit against Ferran.
    In charging the jury, the court said, in regard to the above-named paper signed by Kyle, that it obviated any necessity of notice to Green of a demand upon the makers by Kyle; that Kyle was bound by it to sue the makers immediately, unless the jury were satisfied, from the evidence, that Green had given Kyle leave to defer prosecution by suit, and authorized him to exercise the same discretion which.ho might, had the paper been wholly his, without any connection whatever with Green. That if the evidence proved such a latitute to have been given by Green to Kyle, then Green would be liable if Kyle had exercised that discretion honestly and properly. That two terms of court had been suffered' to elapse between the receipt of the note by Kyle and the commencement of suit against Ferran, which would be fatal to the plaintiff unless the *jury found the delay was at the request of Green, and it was for the jury to say whether such were the fact.
    R. S. Hart, in support of the motion:
    The declaration, in this case, averred that the plaintiff had prosecuted the maker of the note, and obtained a return upon the execution of “no goods,” etc., of which the defendant had duo notice.
    It is claimed by the defendant that, under this declaration, it was incumbent on the plaintiff to prove notice to the defendant of these facts, no matter what may have been the agreement between them, at the time of the assignment of the note.
    It is further claimed by the defendant, that there was nothing in the pretended agreement, made at the time of the assignment of the note, which obviated the necessity of demand and notice.
    If either of these positions is correct, it follows that the court erred in its charge to the jury; that the verdict of the jury was wrong, and that a now trial should be granted.
    The court is referred to the following authorities; Chit. PI. 330 ; Ib. 321; Lewis v. Brewster, 2 McLean, 21; Parker v. Riddle, 11 Ohio, 102; 2 H. Black. 336; 1 Selw. N. P., 4 ed. 324; Brown v. Maffoy, 15 East. 216; Chit, on Bills, 472, 473, marg. paging ; Conn, v. Gano, 1 Ohio, 486.
    William J. Thomas, contra:
    We think the charge of the court correct in view of the facts of the case, and are satisfied with the finding of the jury. The opinion of^he one, and the actions of the others, are sustained by the following authorities, on which we rely, and to which we direct the attention of the court: 19 Johns. 69; 4*Cow. 173 6 Cow. 626; 1 Wend. 457 ; 14 Wend. 231; Chit, on Bills, 10 Amer. ed. 441, 442, n. 1, 2.
   Read, J.

As to the fact whether the jury found contrary to evidence:

The jury found in accordance with the evidence; and, if the charge of the court was correct, the facts warranted the verdict.

The charge of the court was correct. Green wraived demand and notice by the agreement. It will bear no other construction. Kyle was to sue the makers and use all due dilligence to collect the notes before Green became liable. Green was not to becomo liable on demand and notice of non-payment; but, after suit brought, and failure to collect, or due diligence. Why, then, notify Green ? That he might discharge the note and pursue the maker? It was expressly contracted that Kyle should sue the maker, and use due diligence; and, on failure to collect, Green would be liable. But it is said Kyle should have sued the makers immediately, and that he suffered two terms of the court to pass without suit. This is true, had not Green told Kyle to delay and “ not to jump on the makers at once;” Kyle, in reply, told him ho would “ use them as his own.” With this verdict, how can Green complain, when Kyle did the very thing designed? Such a defense is neither good in morals nor law.

But it is argued, although the attention of the court does not appear to have been directly called to that point, that Kyle should have given notice to Green of failure to collect on execution, to render him liable. To support this, reference is made to the law merchant and guaranty. The answer to this is, that the parties, made a law to themselves by their contraot, which governs this case. Green by its terms, was to be liable after suit and failure, or due diligence to collect. Green’s liability *to be sued commenced immediately on such failure, not on failure and notice, and the law will not add notice.

Motion for new trial overruled, and judgment on the verdict.


text:
    Thomas B. Kyle v. Sylvester Green.
    Where an indorser of a note has indemnity to protect him against his liability he is not entitled to demand and notice of non-payment by the maker, to make him liable as such indorser.
    This is a motion for a new trial, reserved in Miami county.
    The case is the same as the preceding one, between the same parties, with only this difference, that the note on which the suit was instituted came to Green from one Hall, on the purchase of a tract of land, and Green had bound himself to make a deed to Hall on the payment of the note.
    The following is the statement of facts, and of the charge of the court, to which exception is taken:

      “ On the trial of this cause, at the June term of said court, for the year a. d. 1843, the plaintiff, Kyle, introduced in evidence a promissory note, indorsed by John II. Hall to Sylvester Green, and indorsed over by Green to Kyle, the plaintiff, — J. and R. Moore-being the makers, and the note being payable to John H. Hall or order. Kyle offered no evidence -whatever to show demand of makers or notice to Green in time to constitute due diligence, but introduced the title bond by Green to John H. Hall, hereto attached, and showed that Green had received the said note by indorsement from Hall in *part consideration for the deed contemplated by said title bond.
    The defendants showed that Green held the note about twenty-five days or a month after it matured, before he made a demand of the makers ; that the makers, who were at that period merchants in Troy, had some $500 worth of personal property in their hands when the note matured and for some twenty-five days thereafter, and real estate of the value, some $900, at the maturity of said note, and until the 22d of December following. There was no evidence that Green had given Hall notice of demand and nonpayment. The note was indorsed to Green in June, matured September 1, 1839, and was not sued upon until August 15, 1840, and until after two terms of the Miami common pleas had transpired.
    The makers of the note were called, and testified that Green did not demand the payment of the note until some twenty or twenty-five days after it was due. That Kyle called for the pay shortly after obtaining the note, and not receiving the pay, he requested the makers to secure it, to which they replied that they could pay it in a short time. The note was not secured. The makers testified that they eould have secured it had they been pressed to do so, but did not say whether they would have secured it or not.
    The makers had failed by December 22, 1839, but continued .to pay small demands up to the spring of 1840. Had suit been brought on the note at the first term of the Miami common pleas, occurring after Green had obtained the note of Hall, the makers would not have owned any real estate at the judgment term.
    There is pending in the Miami common pleas a bill in chancery, in which Hall sues Green for a deed.
    On the foregoing testimony the court charged that the title bond, under the circumstances, was a complete indemnity to ■Green, and that the title to the real estate could not be called out ■of Green’s hands whilst the note remains unpaid. In other words, that Hall could not exact a deed from Green before the *note was paid. That this indemnity, thus existing in Green’s hands, absolved Kyle from the obligation of making demand of payment of the makers, and from giving notice to Green of non-payment.”
    R. S. Hart, in support of the motion:
    For the defendant we insist that the court erred in their instructions to the jury. "We maintain that Hall was entitled to demand and notice, in the usual sense of those words. If this be so, the title bond is not a complete indemnity. Hall indorsed the note to Green, agreeing to pay it, as appears by the title bond itself, “ on the maker’s failing to pay it at maturity, or in a reasonable time thereafter.” Hence, we insist:
    1. That if this agreement takes the case out of the operation of the law governing ordinary commercial indorsements, it amounts to no more than this, that it is a collateral undertaking to pay the note, and that upon such construction Hall is entitled to demand and notice, as guarantor.
    2. That with respect to his remedy over against the makers of the note, he is entitled to demand and notice, in the strict sense ■of the words.
    In support of these propositions, we submit the following authorities: Chit, on Bills, 8 Amer. ed. from 8 Lond. ed., marg. p. 353, 355; Story on Bills, 109; 2 H. Black. 336; Nicholson v. Gouthit, Ib. 609; Clegg et al. v. Cotton, 3 Bos. & Pul. 239; Warrington et al. v. Furber et al., 8 East, 242 ; Phillips v. Hetling et al., 2 Taunt. 206 ; Bridges v. Berry, 3 Taunt. 130; Smith v. Becket, 13 East, 187; 8 Taunt. 92; Cory et al. v. Scott, 3 Barn. & Ald. 619; 1 Term, 405; 1 Bos. & Pul. 652; Brown v. Muffrey, 15 East, 216.
    These are all English authorities, and establish fully the positions for which we are contending. A reference to a few American, and chiefly Ohio authorities, will show that the law is the same here as in England. Green v. Dodge, 2 Ohio, *440; Lewis v. Brewster, 2 McLean, 21; Foot et al. v. Brown et al., Ib. 369; Hanks v. Crittenden, Ib. 557; Parker v. Riddle, 11 Ohio, 102; Bright v. Carpenter, 9 Ohio; Champion et al. v. Griffith, 13 Ohio, 228.
    William J. Thomas, contra,
    cited the following authorities: Chit, on Bills, 10 Amer. ed. 231, 440, n. r and 2; 7 Wend. 165 ; 17 Ib. 214; Murray v. King, 5 Barn. & Ald. 165.
   Read, J.

By the agreement between Green and Kyle, Kyle was barred from making demand upon the makers, and giving •notice of non-payment to Green. Green can not complain that Hall had no notice from Kyle. He should have given Hall notice himself, if he desired it to be done. He had released Kyle from that obligation. But so far as Green is concerned, he is indemnified by his bond, as he is not bound to make a deed for the land until the notes assigned by Hall are paid. But Green insists that the bond is no indemnity, because Hall is discharged from the payment of the note, as be was not notified of the demand and non-payment of the makers; and, therefore, that he can not collect it from Hall, and that a court of equity would compel him to execute a deed to Hall, upon the ground that Kyle and himself had so conducted themselves respecting the note as to make it their own, and a payment to that extent by Hall. If this be the fact, it is the fault of Green. It was the duty of Green to see that the liability of Hall was fixed by notice of demand and nonpayment, if it were necessary. If it were not done, Green can not complain of Kyle. If Green has so conducted respecting the note as to lose the amount, the fault and the loss are his. Whether he has or not, we do not decide in this case. But, if he has not, the land is an indemnity, and the court did not err in their charge to the jury.

Motion for new trial overruled, and judgment for defendant.


text:
    *John H. Hall v. Sylvester Green and another.
    J EL indorsed lo S. G. a note against M., in consideration whereof S. G. agroed to convey to J. H. a certain tract of land on payment of said note. S. G., by his own laches, failed to collect the note of the maker, and neglected to take the necessary steps to charge J. H. as indorser. Held, that G. had made the note his own, that it should to regarded as payment, and that he was bound to convey.

      This is a bill in chancery, reserved in the county of Miami.
    The bill states that, on June 18, 1838, Green gave to Hall a title bond for certain real estate, binding himself to convey the same to Hall on the payment of certain notes then indorsed by Hall to Green (among which was one fpr $325, signed by J. & R. Moore, dated April 30, 1838, and payable six month’s after dato, to Hall or order), by the makers thereof; or, on failure by the makers to pay tho same at maturity, or within a reasonable time thereafter, then on payment of the same by Hall; that all of said notes had been due upward of eighteen months; that Hall had never been notified of the non-payment of any of them; that whether all had been paid or not of his own knowledge he did not know ; but he had been informed that Green and one Kyle, to whom he had indorsed the note against the Moores, had given the Moores time upon it; that it was not paid, and that the makers were insolvent, and that Green refused to execute a deed, though demanded. The prayer of the bill is, that Green may be decreed to convey either to Hall or to said Dye, the other defendant, to whom. Hall has assigned said title bond.
    Green answers, admitting the agreement, the indorsement of the notes in pursuance of the agreement, and the terms of the agreement as stated in the bill, but denies that he ever extended the payment of the Moore note, or that Kyle had done so with his knowledge; admits that the note is not paid, and assigns that as the reason why he does not convey the land.
    *The proof shows that soon after Green procured said note, he indorsed it to Kyle, giving him discretionary power as to the manner of collecting it, and binding himself to pay it if tho makers did not; that Kyle, depending upon the promises of the Moores, neglected' to sue till they became insolvent, and that the note has never been paid.
    R. S. Hart, for complainant:
    The court is referred to the following authorities: Story on Bills, see. 109; 8 East, 242; 2 Taunt. 206; 3 Barn. & Ald. 619; 2 Ohio, 440; 2 McLean, 21; Ib. 369; Ib. 557; 11 Ohio, 102; 13 Ohio, 228.
    Morris & Parsons, for defendants.
    No argument was submitted on the part of the defendants.
   Birchard, J.

This case presents for our consideration but one question. By the contract, which is made part of the bill, Green obligated himself to convey the land therein described, in consideration of certain notes then assigned and indorsed by complainant to Green, among which was a note of J. & R. Moore, dated April 31, 1833, for $325, due six months after date, and payable to Hall.

The deed was to be made by Green, on the payment of said notes by the makers; and, on their default, payment was to be made by complainant.

The defendants rely solely upon the fact that the note of the Moores remains unpaid by them and by complainant.

The substantial question is, who shall sustain the loss of this note? The facts concerning the note, as we gather them from the proof, are these: Green made no demand of the note until *some time after it fell due, and then the maker put him off with a promise to pay, at some short day, a part of it. Soon after, it was sold to one Kyle, who, at Green’s request, managed it as he would a note of his own, trying to coax the makers to pay, and receiving promises of payment at a future day, and in this way suffered two terms of the court to pass without suit; by which means only it became uncollectible of the maker, who failed in the meantime, so that it is a total loss to one of the parties. The note of the Moores must be considered as having been delivered as a conditional satisfaction of the amount due upon its face; and the conditions of the contract as a guaranty of its payment, on condition that the due course, in order to its collection, should be taken. Had it been duly presented and dishonored, and reasonable notice given, and the regular steps pursued to collect it, the loss would have fallen upon the complainant. This not having been done, it must fall upon the holder, and bo regarded as payment. By his own laches, he made the note his own, and discharged complainant from all liability for the loss sustained. See the authorities cited by counsel.

Let a decree be entered for the complainant.


text:
    John Kirk v. The State of Ohio.
    A court or judge has no right to communicate with the jury respecting the charge of the court, after the jury has retired, except publicly, and in the presence of the accused. To do so is good cause for a new trial.
    This is a writ of error to the court of common pleas of Cuyahoga county.
    The record shows that, at the May term, 1845, the plaintiff was indicted for an assault with intent to kill, tried, found guilty, and sentenced to three years’ imprisonment in the penitentiary.
    The error complained of, as disclosed in the bill of exceptions, is as follows:
    *“ That, after the jury was charged by the court, and had retired, one of the associate judges of the court went into the jury room, at their request, and explained the charge of the court to them, the court having temporarily adjourned; neither the attorney for the state nor for the defendant, nor the defendant himself, being present at the time, nor having any notice of the same.”
    This defendant moved for a new trial, for the causes stated in the bill of exceptions, which motion was overruled.
    The writ is sued out to reverse the judgment of the court, the error assigned being the refusal to grant a new trial.
    Bolton & Kelley, for the plaintiff.
    •F. T. Backus, for the state.
   Read, J.

The constitution declares “ that, in all criminal prosecutions, the accused hath a right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face; to have compulsory process for obtaining witnesses in his favor; and, in prosecution by indictment or presentment, a speedy public trial by an impartial jury of the county or district in which the offense shall have been committed; and shall not be compelled to give evidence against himself, nor shall be put twice in jeopardy for the same offense. Thus careful has been the constitution to secure the pure and impartial administration of criminal justice, and to guard the accused from the possibility of oppression and wrong, under the forms of a criminal prosecution. It is his right to have a public trial, that he shalL meet the witnesses face to face, before the public; and that all that can be said or preferred against him, and all that can be said or urged in his favor, shall be in the hearing and presence of the public. The ^witnesses shall give their testimony in public, and the court shall declare the law in public; and the jury are sworn to render their verdict according to the law and the evidence thus publicly given. In no other way can the jury be advised of a fact or principle of law touching the case of the accused. It is his right thus to have everybody know for what he is tried and why he is condemned, and to witness the manner, tone, and temper of his prosecution, that he may be subjected to no other influence than truth and law, and that mercy which construes every doubt to his benefit. The court charged with his trial, have no right to hold any communication with the jury touching his case, except in the presence of the prisoner, and before the public. The court can not secretly communicate to the jury what they have said respecting the law of the case. It is the right of the accused to know and have the public know, that the court communicate no new principle of law which had not been before publicly declared, nor is he at all bound to trust to the court or judge in this matter. It is his great privilege, and no power can impair it.

What a complete prostration, then, is it, of the constitutional rights of the accused, that a single judge, during the temporary adjournment of the court, should go to the jury-room to explain to them what had been the charge of the court 1 It is not claimed that this judge acted from any other motive than a mistaken notion of duty. But this fact in no sense impairs the rights of the accused.

Judgment reversed, and cause remanded for further proceedings.


text:
    Jacob Hare v. The Lessee of Origin Harris.
    When a deed calls for natural objects, and an older surveyed line, under the mistaken supposition that they correspond, if it turn out that they do not correspond, and the elder line can only be found by ' compass and chain, while the natural objects are clearly identified, the latter must govern.
    This is a writ of error to the Supreme Court of Franklin county, returnable in bank.
    *The original case was in ejectment, and was tried at tho December term, 1844, of the Supreme Court in Franklin county, and a judgment rendered for the plaintiff. To reverse this judgment, this suit is brought. During the trial a bill of exceptions was taken, which discloses tho whole facts of the case, and is as follows:
    Be it remembered, that on the trial of this case in the Supreme Court of tho State of Ohio, in and for Franklin county, at the December term thereof, a. d. 1844, the plaintiff, to maintain tho issue upon his part, gave the following evidence, to wit:
    1. A deed from John Falkner to Jacob Hare, dated March 2, ISIS, the description wherein is as follows:
    “A certain tract of land situated in township 5, range 22, and section 39 of the refugee tract, so called, in the county of Franklin aforesaid, containing fifty (50) acres, and bounded as follows, to wit: Beginning 100 polos south of the northwest corner of said section No. 39, in the west line of said section ; thence south 50 poles with said line; thence east 160 poles; thence north 50 poles; thence west 160 poles, to the place of beginning.”
    2. A deed from. Edward Livingstone, administrator of John Falkner to Jonathan Tipton, dated March 1, 1823, the description wherein is as follows: “ JBoing part of section 39, township 5, range 22, refugee tract, beginning at Jacob Hare’s southwest corner to two beeches, a red oak and sugar trees, in the west boundary of said half section; thence south with the section line 113 poles, to two white oaks and a beech northwest corner of the widow’s third part; thence east with the north boundary 160 poles, to a stake in the half-section line; thence north with the said line 113 poles to a white oak, to Hare’s southwest corner; thence with Hare’s line 160 poles to the beginning — containing 113 acres, be the same more or less.” 4
    3. A deed from said Jonathan Tipton and wife, to James ^Harris, dated February 21, 1831, the description wherein is as follows, to wit: “Part of tho west half section 26, in township 5, range 22, of the Eofugee Tract, so called, bounded as follows, to wit: ‘ Beginning at a small dogwood, beech, and white ash, southwest corner, to said James Harris’ tract of 75 acres; running from thence west 53 poles and 20 links, to two white oaks and a beech in tho section line; thence north with said line 113 poles to two beeches, a red oak and sugar; thence 53 poles and 20 links, to two small white oaks and a beech ; thence south 113 poles, to the beginning, containing 38J acres, more or less.’ ”
    4. Jonathan Tipton to Bichard Holmes, dated November 2, A. d. 1820, the description wherein is as follows: “Part of section 39, Township 5, range 22, in the refugee tract, so called at a white oak, Jacob Hare’s southeast corner; thence south 113 perches, to a stake in the half-section line; thence west 106 2-10 perches, to a post; thence north 113 perches, to a post in Jacob Hare’s south line; thence east along said lino 106 2-10 perches, to the beginning ; containing 75 acres, more or less.”
    5. Bichard Holmes and wife to Harvey Adams, dated April 10, a. D. 1826; the description is the same as in the above deed.
    6. Harvey Adams and wife to James Harris, dated February 14, A. n. 1828, tho description wherein is as follows: “Beginning at two small white oaks, and a beech on the south boundary of Jacob Hare’s tract, and northeast corner of Jonathan Tipton’s tract; running from thence with said Haro’s line east 106 poles and 5 links to a white oak, southeast corner of J. Hare’s tract; thence south 113 poles to a post; thence west 106 poles and 5 links to a small dogwood, a beech, and white ash, southeast corner to said Tipton’s tract; thence north with his line 113 poles to the beginning, containing 75 acres, more or less, being part of lot No. 39, the west half of section 26, in township 5, of range 22, in the refugee tract, so called.”
    *7. James Harris to Origen Harris, dated May 1, A. d. 1839, the description wherein is as follows: “In the county of Franklin, State of Ohio, on the west half of section 26, township 5, and range 22, in the refugee lands, to wit: 50 acres to be taken off the north end of a tract of 113J acres, which the said James Harris holds by two deeds; the one from Harvey Adams and wife for 75 acres, recorded in book 9, page 318; and the other from Jonathan Tipton and wife for 38J acres recorded in the same book, page 212. ' Now, the 50 acres hereby conveyed, are to be taken off the north end of the 113-J acres by a direct line parallel with the side lines thereof.”
    It was admitted that both parties claimed under John Falkner, as the common source of title.
    A plat which is hereto annexed was also given in evidence, and it was proved that the land in controversy is the strip between the land marked on said plat as “ Hare’s,” and the 'tract marked “ Harris’,” being two rods and fourteen poles in width.
    It was proved also that the stakes called for at Hare’s corners were not to bo found.
    It was also proved that the distances called for in Hare’s line from 1 to 2, and from 4 to 3, would terminate at the points 2 and 3.
    It was also proved that the corner trees of the tract marked Harris’ land, at A, C, F, and D, and the marked lines from A to C, are still found, and clearly identified.
    It was proved further that in running out said tract marked “Harris’” on the plat, by the said administrator of Falkner, With a view to the conveyance thereof to the said Tipton, the lines were run, and the corners made and marked, as represented in the said plat, and the intent was to join said Hare’s line and land, and that no line was intended north of said corner trees at A and C. It was further proved that the lines of said several tracts, as represented on the plat, are correctly laid down.
    And it was further proved that said Hare, about nine years ago, built a fence on the said line from A to C, which is *still standing thereon ; and that, previous to that time, no fence had been erected by any one on said line.
    The point near C, a white oak, is about two rods from the section line. One of the marked trees at A, is some short distance from the others, and west of the section.
    It' was also proved that the object of the calls was to join Harris’ 50 acre tract, and Hare himself said that he had no claim to any land beyond the 50 acres; and that his beginning corner was 150 poles from the northwest corner of the half section. And no further evidence having been given, the case was submitted to the court, and argued by counsel; and the court were thereupon of an opinion, that the plaintiff was entitled' to recover the premises in dispute, and so found; whereupon the said defendants moved the court for a new trial, upon the ground that the opinion of the court was contrary to the law and the evidence in the case — which motion the court overruled, and therefore the defendant excepted to the opinion of the court, and prayed that his bill of exceptions in that behalf might be allowed, which is accordingly done.
    The plaintiff assigns for error :
    1. That the matters contained in said record are not sufficient in law to maintain said action.
    2. That the opinion and judgment of the court on said case, were contrary to the law and evidence.
    3. That the court erred in overruling the defendant’s motion for a new trial.
    4. That said judgment was given for the lessee of said Harris, when, by the laws of the land, it ought to have been given for the said Jacob Hare.

      *Swayne & Bates, for plaintiff :
    1. The plaintiff is estopped from denying .that the corner and line described in the dower’s deed to Tipton as Hare’s, are so, and also from claiming i}ny other line. Ho claims under this deed, and is concluded by it. Young v. Buckingham, 5 Ohio, 490.

      “ A party tracing his title through a regularly executed deed, is concluded by its recitals." Scott v. Douglas, 7 Ohio, 228, pt. 1; Dougglas v. Scott, 5 Ohio, 194 ; Kinsman’s Lessee v. Loomis and Wood, 11 Ohio, 478; McChesney’s Lessee v. Wainright, 5 Ohio, 455; Com. Dig., Estoppel, 77, a 2; 1 Salk. 285; 4 Port. 85; 9 Wend. 289; 17 Mass. 432; 3 Coke, Jr. 352, b; Hart’s Lessee v. Johnson, 6 Ohio, 89 ; 7 Johns. 245.
    2. Course aijd distance must yield to natural or fixed objects. Alshire’s Lessee v. Hulse, 5 Ohio, 535 ; Wright, 170, 576 ; 6 Mass. 131 ; 3 Pick. 401; 9 Conn. 661 ; 4 Mon. 32 ; 6 Wheat. 583 ; Graham v. Adams, 2 Binn. 109 ; Pet. C. C. 496; 3 J. J. Marsh. 420.
    3. If the line 2-3 corresponds with the courses and distances called for in Hare’s deed, it does not with those called for in Tip-ton’s.
    The line A F would still be too short. The plaintiff might, with the same propriety, claim to extend the northern terminus of that line still further, in order to make 113 poles in length, instead of 110J.
    4. The deed to Tipton calls to begin at certain trees at A, “ southwest corner of Jacob Hare's land," and runs thence south. To give the plaintiff what he claims, it would be necessary to disregard his deed and the marked trees at A, and begin at a point two rods and fourteen links further north — a point not called for in the deed, and never marked or designated as a corner. Can this be done ?
    5. Tipton’s deed shows that the line for which we contend, *had been run, marked, and established as Hare's, before he bought. It was then notorious, and is recognized in his deed as Hare’s. His land was run off accordingly. This shows that it was the intention and understanding of the parties, that Tipton’s land should extend north to that line, and no further. ■ The same corners and line are recognized as Hare’s, in other deeds, in the plaintiff’s claim to the title.
    Upon what "ground, then, of justice or law, can the plaintiff now claim to establish the new line for which he contends ?

      G. Swan, for defendant in error :
    It appeal’s to us that every principle of justice and law requires the call for the trees to be rejected — not the corners of Haro’s line. 'To establish the calls for the trees, and reject those of Hare’s corner, would bo: 1. To make calls of record to yield to those not of record. 2. To make the less certain prevail over tho more certain. 3. To make three distinct calls yield to two; for, if Hare’s two shall bo rejected, of necessity the call to run with his line must also be rejected.
    But the law is settled that, where two calls equally fit two objects — the one of record, the other not — those of record shall govern. Mosely v. Caldwell, 1 Bibb, 86 ; 2 Wheat. 321; 7 Wheat. 10.
    The defendant is not estopped by anything contained in his ■deed. The authorities cited do not sustain tho proposition. A •survey made by a sworn officer, and recorded, does not create an ■estoppel; much less a mere private survey. Blake v. Dougherty, 5 Wheat. 359; Read v. Longford, 3 J. J. Marsh. 420 ; Baker v. Talbot, 6 Mon. 182 ; 2 Marsh. 185 ; 4 Bibb, 399; McNiel v. Dickson, 1 Marsh. 366; Dorr v. Batts, 4 Bibb, 422.
   Birchard, J.

The record presents a question of boundary, and the several assignments of error may be reduced to a simple ^question : Did the court, upon the evidence, render tho proper judgment ? It is apparent, from the bill of exceptions, that ■the intention of Falkner’s administrators, under whom Harris claimed title, was to convey all the land up to Hare’s land. The ■deed, however, under which tho lessee claimed, gives this description of the land : Beginning at Jacob Hare’s southwest corner, to two beeches, a red oak, and sugar trees, in the west boundary of •said half-section, thence south with the section line 113 poles to two whito'oaks and a beech, northwest corner of tho widow’s third part; thence east with the north boundary 160 poles to a stake in the half-section line ; thence north with the said line 113 polos, to a white oak to Hare's southeast corner; thence with Hare's line to the place of beginning.”

The two beeches, red oak, and sugar tree are found to be two rods and fourteen-hundredths from Hare’s southwest corner, and are ■clearly identified, while that corner of Hare's is only to be found by course and distance.

The white oak called for as being at Hare’s southeast corner is also the same distance from the corner, which can only be found by course and distance, and the white oak is now found and identified. The line actually run between the white oak and the two beeches, red oak, and sugar tree, is found to be two rods and fourteen-hundredths from Hare’s line, and to give to Harris two rods less than the length of the lines called for in the deed ; while if Hare’s line is brought down to it, his side 'lines are that much, longer than called for by his deed.

Upon the circuit, I thought the lessee of Harris entitled to this small strip of land, and the chief judge, with some hesitancy, finally concurred with me. A re-examination, with more time to deliberate, has satisfied me of my error, and it is with pleasure that it is in my power to aid in correcting it.

The plaintiff in ejectment can only recover upon the strength of his own title. The weakness of his adversary’s title is no aid to him. The deed here in question called for natural objects and a marked line, also describing them as Haro’s corners and ^Hare’s line. The natural objects and the marked line are found — they are identified; while Hare’s lines and corner have nothing certain by which they can be identified, and their position, as found by course and distance, are such as makes it certain that Falkner’s administrators, when marking the corners and lines of Harris, were mistaken in supposing the line of Hare to correspond. Under the rules of construction, well settled and applicable to a case like this, it is very certain that Harris takes, by his grant, nothing beyond the line so defined; that the less certain ■calls for course and distance, or a call for a recorded or older line, only to be found by a resort to a compass and chain, must yield to calls for natural and fixed objects, which are certain and identitified. See the authorities cited by plaintiff’s counsel.

Judgment reversed.


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    The State of Ohio, for the use of David T. Morgan, v. Thornton Meyers, Jacob Roush, and others.
    In an action 6n a sheriff’s hond, for neglect to sell property levied upon, the rule of damages is the value of the property.

      This is an action of debt on a sheriff’s bond, reserved in Meigs county.
    No exceptions are taken to the pleadings, but tho court is to render judgment as it shall determine the law, upon tho following agreed statement of facts:
    *The agreement states all the facts specifically and at length. The main fact is simply this : Myers, as sheriff, issued upon some personal property to satisfy an execution in favor of Morgan. All the property levied upon was not forthcoming on the day of sale, but some part of it was lost by tho neglect of the sheriff; and the matter submitted is, for what amount shall the sheriff be liable — the whole amount of the judgment or the value of the property lost by his neglect ?
    Arius Nye, for plaintiff.
    William Wall, for defendants.
    The case was submitted without argument.
   Read, J.

The question is, for what amount shall execution issue in favor of the person injured by neglect or failure to sell property levied upon, on judgment, recovered in an action of debt upon the sheriff’s official bond — the whole amount of the original judgment, or the-value of the property lost to the judgment creditor by such neglect?

By levy, the judgment creditor secures the entire property so soizcd in execution, to bo sold as the statute directs, and the proceeds to be applied in satisfaction of his judgment. The sheriff is by law made responsible for all property levied upon, and to safely keep, sell, and apply the proceeds under his execution. If not so safely kept and applied, to what extent is the judgment creditor injured ? To the extent of the value of the property thus lost. For what amount, then, shall execution issue in favor of the creditor suffering such injury by the neglect of the sheriff or judgment upon his official bond? The statute says on such “judgment execution may issue for such sum as it may be ascertained will be sufficient to indemnify tho ^person so suing.” The indemnity sufficient to do this is the value of the property lost by the sheriff’s neglect. How, then, can it be claimed that tho recovery must be for the whole amount of the judgment, when it is larger than the property lost? This would not be indemnity for loss, but satisfaction of the judgment. The statute only authorizes indemnity. Upon what principle, then, can it be claimed that the recovery should be for the whole amount of the original judgment, when the loss is less? Not upon any principle of justice or right, and could be authorized only from motives of public policy, by statute, as a penalty. .

It is true, upon amercement, the recovery is for the whole amount of the judgment, with a penalty; but that provision of the statute is highly penal, and oftentimes extremely harsh, arid is never applied by the court, except forced by the most rigid construction, and forms not, in our minds, the slightest criterion as to the amount to be recovered on action of debt upon á sheriff’s bond. But to give the amount of the original judgment, as claimed in this action, would be even harder than the statute of amercement, as that leaves him to have execution upon the original judgment for his own benefit, while this would compel him to satisfy it beyond what he had lost, and then leave him to shift as ho best might. This court, not being compelled by statute to such an act, refrain, and permit execution under the judgment, for the jmnalty in the bond, to issue for the value of the property lost, to the amount found in the common pleas, as agreed by the plaintiffs to this suit.

Judgment accordingly.


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    *Samuel J. Browne v. The City of Cincinnati.
    Benefits conferred may be set off against the value of property appropriated for public use.
    This is an aetion on a case reserved in the county of Hamilton.
   Wood, C. J.

This was an action on the case brought against the city for the appropriation of the plaintiff’s property under tho ordinance of the city council, to the public use, in tho widening of Lower Market street. The jury, under the direction of the court, returned a special verdict that they assessed the value of the land taken, with the improvements and interest, up to ’the first day of the term, exclusive of the benefits conferred, at $4,697. They also assessed the benefits conferred upon the plaintiff, by widening Lower Market street, at $2,318.

The only question now arising is, for what sums judgment shall be entered, and is settled by the case of Symonds et al. v. City of Cincinnati, decided at the present term of this court. It was held in that case, and the reasons of such opinion are fully given, that the rule of damages was the real loss or injury sustained, and that'any substantial benefit conferred in making the improvement, might and should be deducted from the value of the property, in assessing the plaintiff’s damages. Judgment will be entered according to this rule, with interest to the first day of the term when the cause was tried in Hamilton county.

Read, J., dissented, for the reasons given in the case of Symonds et al. v. City of Cincinnati.


author: Hitchcock, J.

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    *Alfred Avery, for the use of Charles Sawyer, v. Latimer and Fell.
    A promissory note, payable to a person or bearer, is negotiable by delivery.
    A sealed bill or note,, in the same form, is only negotiable by indorsement.
    This case was submitted to the court in Licking county, and reserved for decision here.
    The declaration is upon a sealed bill, executed by defendants to Alfred Avery, for $300, payable, with interest, to the said Avery or bearer, on or before the 1st day of June next after the date thereof, and dated on April 6, 1842.
    The defendants pleaded the general issue, and a special plea in bar. This second plea alleges that before the commencement o'f the suit, A. Avery, for a valuable consideration, sold, negotiated, and delivered said single bill to one Charles Sawyer, who, in pursuance thereof, has ever since held the same in his own right, etc.
    To this plea the plaintiff demurs generally.
    J. B. & W. Stanbery, and C. C. Converse, for plaintiff:
    The demurrer is designed to present the question whether, under our statute, making certain instruments negotiable, a suit can be maintained by the holder of a note payable to bearer, in the name-of the holder, without an indorsement by the payee on the note, or, in other words, whether the legal title to such paper vests in the holder by mere delivery, without indorsement. Swan’s Stat. 587 ; 1 Chit. PI. 213, citing 1 Saund. 276 a, n. 2; Bullet v. Scribner, 1 Blackf. 14; McNitt v. Hatch, 4 Blackf. 531; Carew v. Northup, 5 Ala. 367; 4 Bacon’s Ab., title Merchandise, 689-696.
    *L. Case, for defendants:
    The defendants submit that it is a fundamental maxim of the law that the plaintiff must have the legal title to the subject matter of suit. 1 Chit. PI. 2-4; 1 Wend. 27; 9 Conn. 94.
    Here the legal title to the paper sued upon has been legally transferred from the plaintiff. Such instruments were transferable by delivery, at the time of the passage of our law, which is simply declaratory of what the law was at the time of its enactment. 2 Burr. 15, 24; 1 Salk. 126; Crawley v. Crowther, 2 Trem. 257; Show. 255 ; Grant v. Vaughn, 3 Burr. 1576; Bank of Kentucky v. Winter, 2 Pet. 326; Ballard v. Bell, 1 Mason’s C. C. 243; Bradford v. Jenkins, 2 McLean, 132; Byington v. Giddings, 2 Ohio, 228; Rhodes v. Lindsley, 3 Ohio, 51; 7 Ohio, 237; 1 Black. Com. 75; 2 Burr. 1226; 3 Kent’s Com. 73; Davis v. Herrick, 6 Ohio, 66; 4 Kent’s Com. 445; Esp. 88; 1 Wash. 170; 1 Munf. 487; 1 Show. 161 ; 1 Cranch, 389; Bank of St. Clairsvilie v. Smith et al., 5 Ohio, 222.
   Hitchcock, J.

The defense relied upon by the plea demurred to, is, that the plaintiff has no legal title to the bill declared upon ; and, by the argument, it seems to have been the intention to have presented the question to the court, whether a promissory note, payable to bearer, is negotiable by delivery, so as to transfer the legal interest therein to the bearer. ■

- Our statute “ making certain instruments of writing negotiable ” (Swan’s Stat. 587) provides, “that all bonds, promissory notes, bills of exchange, foreign aDd inland, drawn by any sum or sums of money certain, and made payable to any person or order, or to any person or bearer, or to any person or assigns, shall be negotiable by indorsement thereon, so as absolutely to*transfer and vest the property thereof, in each and every indorser successively.” A law similar to this has been in force in the state from a very early period. If this wore a recent act, and we were called upon to give^a construction to it, we should unquestionably say that a promissory note, payable to any person or bearer, could not be negotiated except by indorsement thereon. But a contrary practice has prevailed from the time, as well as before the time, of the enactment of the statute. And this ¡practice was introduced upon the supposition that, by the law merchant, which is a part of the common law, such notes were negotiable by delivery. No inconvenience results from this usage, and it would hardly be consistent or proper for us to change it, because it does not exactly accord with our ideas of a proper construction of the statute.

But the difficulty in this case is, that the instrument declared on, is not a promissory note. Tt is an obligation under seal, and said paper does not come within the description of commercial paper. Such paper was not negotiable by the English statute, either by indorsement or otherwise. It is, however, within the provision of our statute, which makes it negotiable paper. But it must be negotiable as the statute directs, and that is by “indorsement thereon.” It is said, however, that it is alleged in the plea that it was negotiated for a valuable consideration. But how negotiated we are not informed, and herein the plea is defective. It does not show that the instrument has been negotiated in such manner as to vest the property in the holder, which could be done only by indorsement thereon.

The demurrer is sustained.


text:
    *The State of Ohio, for the use of Joseph V. Smith, v. Russell N. Fuller and others.
    A town marshal, acting as constable, and levying an execution, makes himself liable for the debt, if he leave the property in the possession of the judgment debtor, and it is removed.
    Neither is lie permitted to advertise it for sale, and on the day of sale, by agreement with the debtor, substitute other property.
    This case is reserved from Meigs county, on an agreed statement of facts.

      The action is debt upon a bond given by the defendant, Fuller, as principal, and the other defendants as his sureties, conditioned for the diligent and faithful discharge of his, the said Fuller’s, duties as marshal for the town of Pomeroy.
    The declaration avers, in substance, that an execution in due form came into his hands in favor of said Smith, against' one John Sharpnack, etc., and' that he neglected and refused to execute the same within the time prescribed by law.
    A further breach assigned, is, in substance, that, during the life of the execution, he levied it on a boat-bottom, the personal property of the defendant, in execution, of greater value than the debt, which he neglected and refused to sell.
    The third breach is substantially the same, with this variation: that ho permitted said property to be removed out of the county and lost.
    There is a pica of the general issue with notice of special matter, the substance of which may be seen in the agreed state of facts made part of the case.
    “ On August 14, 1843, the bond, in the declaration described, was duly executed by Fuller and his co-defendants. Fuller, at the time of its execution, and thence until the commencement *of this suit, was the acting and duly qualified marshal of the town of Pomeroy, and as such has the rights, and was subject to the liabilities provided by the charter of said town of Pomeroy, and the act regulating incorporated towns. Smith, on July 31, 1843, obtained the judgment mentioned in the declaration, and on • November 8, 1843, caused execution to issue thereon, which came, .into the hands of Fuller for execution. Fuller, on November 8, 1843, levied the execution on a boat-bottom, the property of Sharpnack, lying in the Ohio river, at the bank, in the town of Pomeroy, of sufficient value to pay the judgment, and advertised the same for sale according to law. The boat was never recovered from Sharpnack’s possession by Fuller, and before the day of sale, was removed by the judgment debtor from the jurisdiction of the the marshal, and from the state, and was not present on the day of sale, before which time other property of the said Sharpnaek- was substituted by him- for the boat, of equal value, and sufficient, at two-thirds of the appraised value, to pay the debt and costs, and was accepted and appraised at his request, and offered for sale by the marshal, but did not sell for want of biddors, and remains unsold, for want of bidders, in the hands of Fuller. On the day when the boat was offered for sale, the agent of Smith called on Fuller, and told him that he was prepared to bid on the boat, and was told by Fuller that the boat was removed, and that other property of equal value would be offered for sale instead of the boat; and Smith’s agent went away without attending to the sale.”
    John Welsh, for plaintiff.
    Arius Nye, for defendants.
   Birchard, J.

From the agreed statement, it appears that the marshal neglected his duty, and that each of the three breaches of the bond is well assigned.

*It was his duty to take possession of the property levied upon, to advertise and sell it. It would be dangerous to permit constables and sheriffs to tamper with judgment debtors against whom they have executions, and to release levies by substituting other property between the time of advertising and day of sale. Such a practice would tend to the introduction of gross abuses. This officer, acting as a constable, had no authority to do so — no right to make a levy upon property and leave it in the possession of the judgment debtor, except at his peril. Ho had no right, after advertising it for sale, to substitute other property and offer it for sale under such advertisement. When he took such responsibility upon himself he became liable for the amount due upon the execution. The act passed January 19, 1848 (vol. 41, p. 10), has no bearing'upon the facts contained in the agreed statement. Judgment will be entered against him for the penalty of his bond, and execution be directed to issue for the amount of Smith’s demand against Sharpnack, and for the costs.