author: Woox>, C. J.

text:
    In Bank.
    Dec. Term, 1846.

    Elisha S. Frost vs. Jared A. Lowry.
    If A obtain goods of B by false pretences, and give therefor an accepted draft upon C — an accommodation acceptor — it is no defence to an action of replevin instituted by B against a stranger, in whose possession the goods are found, that the draft had not been previously returned to A.
    This cause comes into this Court by a Writ or Error to the Supreme Court of Lucas County, made returnable in Bank. ■ i
    The original suit was replevin, commenced in the Court of Common Pleas by the defendants against the plaintiff in error, and verdict and judgment in their favor. A bill of exceptions was taken, during the trial in the common pleas, from which the following facts appear:
    One Nathan L. Stout, on the 6th day of July, 1843, purchased of the Lowrys, defendants in error, in the city of New York, a bill of goods amounting to the sum of $ 1,565.38, for which he gave, at the time of such purchase, his draft, payable in six months, to the order of the defendants ip error, accepted by A. A. Eustaphieve.
    While contracting for the goods, Stout represented himself as entirely free from debt, and as the owner of property, real and personal, in his possession, worth from two to three thous- and dollars; all of which statements were utterly false, he being, at the time of such purchase, indebted in large amounts, and owning no property of any description whatever. The goods were left in the possession of the defendants in error and shipped by them for Logansport, in the State of Indiana. On their way, in a warehouse at the city of Maumee, they were taken by the plaintiff in error, Frost, as sheriff, by virtue of a writ of attachment issued against Stout, at the suit of Thomas C. Rockhill, who had claims against him to a large amount.

      The defendants in error having discovered Stout’s fraud, sent to Maumee, found him there, tendered to him the draft, with Eustaphieve’s acceptance erased, but saying to him, they wished to keep it till the trial, if he was willing; that he could take it, however, if he desired. Stout replied, it was just as well, and that the draft might remain in the hands of the attorney for the defendants in error, subject to his order. They, the defendants in error,-then explained their claim to the plaintiff in' error, Frost, and demanded the goods, which were refused. A writ of replevin was then sued out, the goods replevied, and the rigl^t of property and possession is the controversy which followed in respect thereof.
    On the trial, the defendants in error surrendered the draft, with the acceptance canceled, to the Court, to be disposed of as the Court should direct.
    It was proved on the trial by David B. Stout, brother of Nathan L., that Eustaphieve had, probably, no funds in his hands to meet his acceptance, and that Nathan L. Stout was present at the time of the replevin and made no objection. Other-facts appear. in the bill of exceptions, but they áre not material.
    The Court were asked to charge the jury, amongst other things, that if the goods were obtained from the .defendants in error, by Nathan L. Stout, by fraud, they could not rescind the contract without tendering back to Stout the acceptance of Eustaphieve.
    This instruction was refused, and exception taken. Other instructions were asked and refused, and exception, likewise, taken, as well as to the entire charge of the Court, as given to the jury.
    The Supreme Court on the circuit, on a writ of error, affirmed the judgment of the Common Pleas, and the plaintiff now seeks, by the prosecution of this writ, to reverse the judgment of the Supreme Court.

      T.’Ewingf ior the Plaintiff in. Error.
    The' bill - of exceptions- in this cáse' shows, that .on the 6th. day of July,, 1843,' Nathan L. Stout purchased of J. & A. ■Lowry, in New York, á .quantity of goods, amounting in' value to $1,565.. 38; that, at the. time of-the purchase,'he falsely represénfed himself as a merchant' in business, free' from debt; that he gave for the goods, -at the timé, his own draft, for .the amount, payable in-. Six months and accepted by Alexander' A. Eustaphieve'. The, goqds were delivered' to him and the boxes • .containing- them marked 'with his name, and. directed' to Lo■gansport,.-Indiana. ■ On their way to. that .place,-ánd while in a warehouse at Maumee -City-on the 1st of August, 1843, - the goods were seized by Elisha- S. 'Frost, sheriff of Lucas county,. on an-attachment in favor of Thomas C. Rpckhill, of Philadel-. phiá,'against..said Nathan L-,Stout." On the 9th of August,J.. & A. Lowry, having ascertained 'that the. representations' of said ¡Stout, as to.-h.is. situatioh',.and-property, were 'false, and that he.was in fact.insolvent, came' to Maumeé-;City, tendered back to'.said Stout- the.draft given.by himfpr the goods having first eyased the acceptance of Eustaphieve — and demanded thé goods.: S'tout 'being'unable to redeliver them,'J..& A. Lowry sued out their writ of -replevin and took, them from the cus.-to.dy of the Sheriff. On the trial, of the; cause, tlie draft afore.said. was brought into" court, -with the acceptance of Eustaphieve erased, and' held"to be disposed of as the Court might direct. The. Court instructed 'the jury, that the plaintiffs were entitled to recover, 'and- sealed a bill of exceptions, setting forth the above fact's,.among others'which are unimportant as regards ' the question.' which we propose to raise on this' motion. The ' fraud practiced by Stout upon. J.-&. A. .Lowry, in the'purchase of the goods',-made the-contract voidable at their option,- but not vpi'd per'se. ' The draft which had-been given them in. exchange for the goods, was not whát Stout had represented it. The acceptance was all right, but the drawer was not a solvent person, as had been falsely represented. They, therefore, had a right to avoid the contract.
    But to do this, according to a very plain principle of law, they must have restored the draft with the acceptance upon it, in the same condition in which it was when they received it. The draft with the acceptance of Eustaphieve upon it, was precisely the same in law as a note of Eustaphieve for a like sum with the indorsement of Stout. The case then is, perhaps, a little simplified, and brought more directly within the authorities, by considering this draft as the note of Eustaphieve, indorsed by Stout, which has been given to Lowry in payment for the goods. Then, when the vendors seek to avoid the contract and reclaim the goods, because of the insolvency' of the indorser, they strike out the name of the maker of the note, and offer to return it so canceled. It is exceedingly difficult to conceive for what fair or honest reason this erasure was made, and it is left in the case wholly without explanation. We have the simple fact, and must endeavor to find the law that arises from it.
    This case is much like that of Coolridge v. Bingham, 1 Metcalf, 547. Bingham bought goods of Coolridge, and gave him in payment a note drawn by G. C. Whitney in favor of G. Whitney for $306 at four months, and purporting to be indorsed by G. Whitney and D. M. Whitney, but the indorsements were forged. The plaintiff never returned or offered to return the note, but brought assumpsit for goods sold, and it was held that he could not recover.' That in order to rescind the contract, he must first place the other party in Statu quo — he must restore what he had received. The rule of law is precisely the same where the party defrauded in part, but who received any thing of value, chooses to hold void the contract and retake the goods, he must restore whatever he has received, in whole or in part, as payment or to secure payment.
    It is contended, however, inasmuch as the goods in the case at bar had passed out of the custody and control of the fraudulent purchaser, and were replevied from the sheriff who had taken them in attachment, that an offer to restore the acceptance was unnecessary prior to the replevin; or even subscquently ; and Stevens v. Austin, 1 Pick. Rep. 557, is cited in support of the position. That was the purchase of a wagon; the contract was fraudulent on the part of the purchaser, and he obtained a bill of sale of the wagon by fraud; possession was not delivered to him, and he took away the wagon without the consent of the owner, and sold and delivered it to the defendant, who had notice of the fraud and trespass. The money and note which he gave for the wagon were not tendered back before suit, but brought into court on the trial to be disposed of as the court might direct. It was held, that the plaintiff could recover without making the offer of restoration.
    The decision was right, but placed by the learned Judge upon the wrong ground. The wagon never having been delivered, or gone out of the possession of the owner with liis consent, he had a right to his action of trespass against the fraudulent vendeé for taking it; and he need not have tendered back any thing, for he never parted for a moment with the possession of the property, and its taking was an actual rather than a constructive trespass. The Court, however, seem, by the reported case, to have excused the tender, simply on the ground that the property had passed' out of the hands of the fraudulent vendee; that the defendant, who knew of the fraud, had no right to claim a tender as to himself, for he was entitled to nothing, and could not set up a want of tender or restoration to the fraudulent vendee, because it was res inter alios, with which he had no concern. Now, this position, with all due deference, is wholly untenable, if it be applied to an actual though fraudulent purchase, accompanied with delivery of possession. The purchase, because of the fraud qf the vendee, is not void, but voidable at the option of the vendor. The purchaser sells the goods and delivers possession to a third person, who .has notice to charge him; his title, like that of the first purchaser, is good, until the vendor take measures to avoid it. It is defeasible just as the title of the first purchaser was defeasible, and not otherwise; and until the vendor take the necessary steps to avoid it, it is good; and it will not do to say that the steps necessary to avoid the title of the first purchaser, or an act done by the original vendor, confirming his title, are res inter alios. , They are not so; for there is that privity in estate, or more strictly, dependency of title, which makes those acts, according to the very strictness of the law, operative on the title of the last vendee. Suppose the original vendor receive full payment of his fraudulent purchaser, or give him a release for the price of the goods, or do any act which may release him, can it be for a moment doubted that the vendee, with notice of the fraudulent purchase, is released also, although these things are res inter alios acta ? And is it not equally clear, that neglect of the vendor to do an act necessary, as between him and his fraudulent purchaser, to avoid the contract, is equally necessary as against the vendee of that purchaser. Can it be for a moment held, that he can enable himself to bring and sustain suit against the vendee of his purchaser, with- , out placing himself in a situation to make void the sale to his purchaser ?
    But it is very true, after a transfer by the fraudulent purchaser, he can neither say nor do any thing which will impair the title of his vendee. He must be merely passive, and cannot aid the vendor by his admission or acquiescence to sustain his action, for it is not by assent or acquiescence, or agreement with the fraudulent purchaser, after he has parted with the property, that the original contract of purchase is to be avoided, but by the exercise of a legal right existing in the vendor, at and from the time of the sale, by reason of the fraud to avbid it.
    Now, all acts done by the fraudulent purchaser, previous to the last transfer, affect his title to the property, and through that title affect the vendee who has notice — and all acts done by the first vendor to affirm the sale, to waive objection to the fraud, to qualify or disqualify himself to take advantage of it and regain his property, bear also on the last vendee and confirm or destroy his defeasible title. Under these circumstances, then, the offer to restore the consideration, if any, paid for the goods so obtained by fraud, must be made, if the vendor would avoid the sale; but, in this case, to whom ? To ‘ the sheriff having in his hands the attachment, as I think, for he had seized upon all the title which the fraudulent purchaser had in the goods, and he held it bona fide — and the purchaser had in the goods a full title, or a right to receive in their stead, by and for them the acceptance of Eustaphieve; or, at any rate, that acceptance should have been shown to be in the possession and power of the vendors when they came to reclaim their goods, and they should have held it .uncanceled, at all times ready to be disposed of as the court might direct, and subject to be taken by the sheriff in attachment on the surrender of the goods. This they failed to do. They erased the acceptance, released Eustaphieve, and brought back the mutilated paper, utterly worthless, and-in that condition offered to restore it. What guaranty have we, what assurance had the court and jury, that they did not release Eustaphieve for a price ? And the burden of proof was not upon the sheriff to show it. The plaintiffs had canceled the acceptance of Eustaphieve; the presumption is, that they did it on payment of the draft.
    Under these circumstances, we contend that the plaintiffs in replevin could not sustain their action, and that the Court erred in refusing so to charge the jury.

      E. Lane and M. R. Waite, for Defendants in Error.
    We do not understand the counsel for the plaintiff in error, as denying that this is a case coming within the general principle, that a fraudulent purchaser of goods acquires no title as against the vendor, and has no interest which can be seized by attachment or on execution, but they seek to reverse the judgment of the Common Pleas; because, at the time of suing out their writ to recover the possession of the goods from the sheriff, the defendants in error were not in a situation to rescind the contract and restore Stout to all the rights transferred by him to them in the purchase.: On the part of the defendants in error, we freely admit, that the contract cannot be rescinded in part and enforced as to the remainder, but that all parties must be 'restored to their original rights; so that the only question to be considered, in this part of the case, seems to be, whether the erasure of the acceptance of Eustaphieve, before the replevin, will take away the right of the defendants in error. to reclaim the possession of their goods.
    In the first place', then, let us see what' was the situation of the parties when the contract was concluded. An ordinary transaction of the kind would be this : The vendors would contract to sell the goods, and the vendee agree to give therefor his draft on Eustaphieve, and after the draft was delivered, the acceptance would be obtained by the vendors. All Stout could claim, then, upon a rescission of the contract, would be'the return of his draft without the acceptance; for, when he concluded the contract on his part, the acceptance had not been procured, but was a subsequent act of the vendors themselves. It may be true that there was, previous to the sale, an agreement by Eustaphieve to accept, but the nature of the transaction is in no way changed by such an agreement, for the acceptance did not in fact take place until after Stout had closed his part of the contract, and constituted no part of the rights which he transferred to the vendors. If Eustaphieve gave his acceptance on account of funds of Stout in his hands, the right to receive those funds was, by the acceptance, transferred to the defendants in error, and, upon a rescission of the contract, must be restored to Stout. This is not done by a redelivery of the draft with the acceptance uncanceled,, but by a release of the obligation of Eustaphieve to pay to the defendants in error instead of Stout. The effect of the draft is simply to transfer the indebtedness of Eustaphieve from Stout to the defendants in error, and any thing which annuls that transfer, restores Stout to all his rights.
    One of the counsel for the plaintiff in error insists, that the acceptance is precisely the same in law as the note of Eustaphieve with the indorsement of Stout, and says that the case is a little more simplified and brought more directly within the authorities by so considering it. The latter part of the proposition is undoubtedly true, but the difficulty consists in making the acceptance a note. A note would be an agreement to pay Stout, which he, by his indorsement, transfers to the defendants in error. The acceptance is an agreement to pay a debt to the defendants in error, at the request of Stout, and is made to the defendants in error personally, and after the rights of Stout, so far as he himself was concerned, had been transferred. Upon the note, Stout could maintain an action by the mere redelivery to him by the defendants in error. Upon the acceptance, he can only maintain an action upon the order of the defendants indorsed upon the draft. It is true, the acceptance may be evidence of an indebtedness from Eustaphieve to Stout, which would give Stout a prima facie right to recover in a proper action, but it is not an instrument upon which he can sustain an action.
    But, there is another view of the case equally strong for the defendants in error. Here, in fact, are three parties to the contract — 'the defendants in error, the sellers, contracting to sell — Stout, the purchaser, contracting to buy and to give his draft on Eustaphieve for the purchase price, and Eustaphieve, the drawee of the draft, agreeing to pay if the sellers will deliver the goods. This is' the situation of the parties when the goods are sold. The vendors wish, however, to avoid the contract and take back their goods. To do this, they must restore all parties to their original rights, and the question is, hov it shall be done. It is clear that the obligation of all parties to pay.for the goods, must be canceled; and Eustaphieve, as one 'of the parties to the contract, has rights as well as Stout. The draft cannot be given to Eustaphieve, because by his acceptance he is allowed to charge the amount of the draft over to the account of Stout, and to give it to him, would be entrusting to him an evidence of payment which he had never made. It cannot, in justice to Eustaphieve, be delivered to Stout with the acceptance uncanceled, because one of the inducements to the acceptance was a sale of the goods; and, when that sale is rescinded, fair dealing would require that the ceptance should be canceled. Stout is not injured by canceling the acceptance, because if Eustaphieve accepted in consideration of a previous debt, that debt is not canceled by the erasure of the acceptance, nor is any evidence of the debt which existed before1 the contract was made, thereby destroyed. Eustaphieve is not benefited, because if he owes a debt to Stout, he must still pay it, and that, too, six months sooner than he would otherwise have been compelled to do. All parties, then, by canceling the acceptance, are restored to their original rights, and injustice is done to no one.
    But again, as between the defendants in error and the sheriff, this question of the rights of Stout is res inter alios acta, with which the sheriff has no concern, and wholly irrelevant to the issue between the parties. Such is the language of the Court in the case of Stevens v. Austin, 1 Met. Rep. 557, where this precise question was argued and decided, if not necessarily, before the Court. It is true, that case might have been decided upon other grounds, but it is sufficient to say that it was decided upon this. As the authority of the case is, however, doubted by the counsel for the plaintiff in error, it may be well to consider how far the doctrine there laid down, is in accordance with principle. To a certain extent the sheriff has an interest in the question. He has a right to inquire whether we are in a situation to rescind our contract; but as to the question of the rights of Stout to which he must be restored, Stout is the only party to be consulted. If Stout is satisfied with his situation, the sheriff must be, for he claims only what belongs to Stout.
    But, one of the counsel contends, that aftér the attachment, if the defendants in error desired to rescind the contract, they should have delivered the draft with the acceptance to the sheriff, “ because,” to use his own language, “ all the rights, cred-1 its, moneys and effects of Stout, were, by the operation of ‘ law, transferred to the attaching creditors by the service of f the writ.” To the extent of Stout’s interest in the goods, this proposition is true, but no farther. If Stout had a lien on, or any other interest, direct or indirect, in the goods, that interest is subjected by the attachment. But such is not this case. The object of the counsel, however, seems to be to reach by this attachment the debt from Eustaphieve to Stout, which he supposes to exist. Admitting, for the sake of argument, that Eustaphieve is indebted to Stout, let us see how the attaching creditor would be benefited by the possession of the .draft and acceptance. The paper, if he had it, would show that Eustaphieve had promised to pay the defendants in error $1,565.38 for Stout, in six months after date, and is prima facie evidence, as the counsel contends, that Eustaphieve is indebted to Stout in that amount; but, until that draft is indorsed by the defendants in error, or in some other manner legally transferred to the sheriff, Eustaphieve cannot be compelled to pay that money to any other person than the defendants in error themselves. A mere delivery of the draft to the sheriff, gives him no right to collect the money, and anything more than a simple delivery to the sheriff, as the representative of Stout, would put it out of the power of the defendants in error to do the very thing they were striving to do — that is, rescind the contract in tolo, and make that draft and acceptance of no effect whatever.
    The counsel contends, that the acceptance contains evidence of the, indebtedness of Eustaphieve to Stout. Admit that it does, and how would the attaching creditor be benefited by the possession of the paper ? He could not sue Eustaphieve upon it and collect the money. It is not even a promise upon which suit can be brought, but evidence which can be used to show an indebtedness. But by subjecting the evidence of the debt to the process of the Court, he does not subject the debt. Suph an argument, when properly stated, would be simply this: that the possession, by the attaching creditor, of the evidence of a debt, will enable him to collect that debt for his own benefit; or, in other words, that-the service of the garni'shee process upon a witness who can prove the existence of a debt from Eustaphieve to Stout, subjects that debt to'the power of the attachment.
    Again — it is apparent from the evidence, that Eustaphieve was but an accommodation' acceptor. Stout went to New York - totally insolvent, and having not a-dollar of his own in the world. He carried with him between one and, two hundred dollars in ¡money belonging to other persons ; and while there, he purchased a stock of goods on credit, amounting to between five and six thousand-dollars. Nowj where has Stout obtained the funds which he has placed in the.hands of Eustaphieve ? His brother who sent him to make this purchase in Buffalo, does not know, and we doubt if any one else can tell. With such a body of proof, no jury would hesitate to say that .Eustaphieve accepted this draft wholly for the accommodation of Stout. If so, then no one is injured by erasing his acceptance; and who so good a judge of this as Stout himself? Stout-could not enforce such an acceptance; and if Stout cannot, most certainly the attaching creditors will not be allowed to do it.
    Upon principle, then, as well as authority, we contend that Stout is the only person who will be allowed to judge of his rights under the contract — that he is the only mail we are compelled to deal with, and that if he is satisfied, the sheriff and attaching creditor must be.
    If we are correct in this position, is there not an end of the case ? When the draft was tendered back to Stout, the acceptance was erased, and he, by his silence, has given an implied assent to this act of the defendants. He knew how far his rights had been injured by this proceeding, and, so far as the case shows, was perfectly satisfied.

      Spink Sf Hopkins, in reply.
    The first inquiry that presents itself, from the facts in this case, is, whether the vendors of the goods in ‘controversy had, under any circumstances, the right to rescind the contract ?

      The rule upon that subject seems to be, that where the fraud extends to the whole transaction, embracing the entire consideration, the sale is absolutely void, and may be so treated by the vendor; but where any portion of the consideration is paid or secured, the contract is voidable only upon certain conditions, to be performed by the vendor.
    In the case of Coolidge v. Bingham, 1 Met. Rep. 550, the Court say: “ The plaintiff founds his claim on two grounds. £ In the first place, his counsel contend that he had a legal right ‘ to rescind the contract, set out in the special count, without £ restoring, or offering to restore, the note therein-mentioned to £ the defendant.
    ££ This right, we think very clearly, cannot be maintained. £ A contract cannot be rescinded by one of the parties, for the £ default of the other, unless both of them can be put in the £ same state as before the contract. It cannot be rescinded as ‘ to one party, and remain in force as to the other. It must be £ rescinded, in toto; and if the party rescinding has received £ property of any value, however inconsiderable, under the con- ‘ tract, he must restore it to -the other party.
    ££ This rule of law is well established, and is not controverted ‘ by the plaintiff’s counsel;. but they contend that the note £ received by the plaintiff is worthless, and may be treated as a ‘ nullity. There is, however, no proof that the note is worth- £ less. It is unquestionably good as against George C. Whit- £ ney, the. maker; and if it had been restored to the defendant, ‘ he could maintain an action against him, notwithstanding the 4 forged indorsements. It is true that, eventually, the note £ may become of no value, either by the death or insolvency of £ the maker, or otherwise, but this possibility does not excuse 1 the plaintiff for not returning it. He must, if he undertakes 1 to rescind the contract, either restore the note, or prove £ clearly that, in no event, can it be of any value. This he has 1 failed to do, and cannot, therefore, be allowed to treat the ( note as a nullity.”

      The same principle is recognized, in Potter v. Titcomb, 22 Maine Rep. 300, and in 12 Ohio Rep. 363 ; 3 Conn. Rep. 483 and 488; 2 Conn. Rep. 371; 2 Wheaton 13, and 3 Ohio Rep. 235.
    Was the acceptance oif Eustaphieve of any value ? If so, then the Lowrys were bound to return it to Stout, if they desired to rescind before the attachment, and, if after, then to Rockhill or the sheriff; because all1 the rights, credits, moneys and effects of Stout were, by operation of law, transferred to the attaching creditors, by the service of the writ.
    “ An acceptance,” says Chitty on Bills, 174, “ is an engagement to pay the bill according to its tenor;” and on page 183: “ An acceptor without consideration is liable, if the bill is in. the hands of a third person for a valuable consideration.”
    For aught that appears from the bill of exceptions, Eustaphieve was abundantly able to pay the amount of the bill drawn on him — was untainted with the fraud of Stout, and, by presumption of law, in possession of Stout’s funds, to meet the draft. “ A bill of exchange imports that a debt is due from the ‘ drawee to the drawer, which is assigned to thé payee of the ‘ bill; and if the drawee accept, this is an acknowledgment, on ‘ his part, that he has funds of the drawer in his hands to the ‘ amount of the bill.” 21 Wend. 502.
    This acceptance, then, was of some value, and of a value equal to the goods purchased of the Lowrys.
    Stout had an interest in the goods equal to their full value, subject to the right that the vendors had, to rescind the contract, by returning him Eustaphieve’s acceptance, in order that he might draw his money, deposited with Eustaphieve, to meet his draft. When the goods were attached, all Stout’s interest passed to Rockhill, but it did not in any way affect the rights of the Lowrys. The same right to rescind existed as to Rockhill, as had previously existed as to Stout, and by tendering bim Eustaphieve’s acceptance, with the freight and charges advanced by Rockhill, he would have been entitled to the goods.

      ; As the case is presented by the- bill ol exceptions, one of three propositions, is true —'
    First: 1 That the Lowrys have got the goods and the. money ' of Eustaphieve; or,
    Second: By a .collusion between Stout and- the Lowrys, the money has ■ been drawn from Eustaphieve and paid- over to Stout.; or, ' '
    Third;' By a like fraud, it', has been retained between the Lowrys and Eustaphieve. . > ' •' ■
    'In either, event, it is a fraud upon Bockhill, and deprives him' of his legal right to the proceeds, either of the, goods attached or the- draft, their equivalent. . ’' ■'
    , From a Careful examination of .all the authorities upon this subject, as'well those cited by the defendants’, counsel ás the books generally, we. -have been unable to- find, 'any where,' a single case where the Court have held that a vendor- might rescind a contract, where the whole, or -any part of the consideration'had been-'paid, without a restoration of, or an offer,to restore, the amouiit paid. • '
    ' .That the'vendorj in the case at bar-, had- 'the right to rescind this contract by restoring Eustaphieve.’s acceptance, uncanceled, we freely' admit;.but having failed 'to.do 'so,, and having destroyed the' draft-, they have forfeited their right to rescind, and ■consequently.their right to recover. -It.iá claimed-.by:the-defendants; that the' case of Stevens v. Austin, 1 Pick. 557, is .in point, and it is relied- on by them as settling the' principle in the present case. " .In the one cited a part of the'consideration, was paid, but yet- it differs from the one under' consideration in a-very important particular'. . Instead of being an. effort to rescind a cdntractj as in the present case; it is clear that; no contract'was ever made, and upon that view alone can the decision be reconciled with the whole 'current-of authorities. - A preliminary agreement had been entered into,- and money paid upon it, but no delivery of the .property. -
    In a sale of .chattel property,; a delivery is. not only .an essential:, but an indispensable requisite-; yyithout.it, the right of property cannot be divested, and the owner may reclaim it wherever it may be found, even in the hands of a bona fide purchaser. If, however, as in our case, the possession had been delivered by the vendor to the vendee, a different rale would prevail, and an actual purchaser, for a valuable consideration, would be protected. The reason of this rule, and the distinction taken above, is fully recognized and illustrated in the opinion of Chief Justice Savage, in Root v. French, 13 Wend. 572. '
   Woox>, C. J.

One question only is raised upon this record by the counsel for the plaintiff in error: whether, under the circumstances of the case, the defendants in error could legally rescind the contract for the purchase of the goods, without the return of Eustaphieve’s acceptance- to the purchaser, Nathan L. Stout ? A determination of this one question, decides whether the Supreme Court erred or not, on the circuit, in affirming the judgment of the Court of Common Pleas, in refusing to charge the jury, that, without such return, the defendants in error were entitled to recover.

The evidence clearly shows, a most infamous fraud had been perpetrated by the purchaser of the goods. Under the false representations made as to his property and circumstances, by Stout, it is certainly right to presume, the defendants in error relied, at least, as much on his responsibility as the drawer of the bill, as on the acceptance of Eustaphieve, of whose ability to pay, nothing, in fact, is shown.

Where goods are obtained by fraud, the purchaser acquires no lawful possession as against the vendor, for the reason that his assent to the delivery was procured by such means. To say the least, such contract is voidable. It may be disaffirmed, and the goods reclaimed.

It is nevertheless true, to enable the vendor to repossess himself of the goods, he must restore the vendee to his originá! rights. The consideration paid must be returned — the security given must be tendered back, or delivered up to be cancelled. But, if this be waived by the vendee, no other person has,the right to complain, and such appears to us to be the case at bar. The bill'was left; by the consent of Nathan L. Stout,, with the attorney, subject to .Stout’s order; with, the acceptance erased1 What reason has either the plaintiff in error, Frost, orBockhili the attaching creditor, to complain Of this ? They had neither property in, nor lien ■upon this acceptance, and Stout had the perfect right to waive its return, or to receive the bill without it, and the result, in our view, Would be precisely’the same ' — the rescission of the contract.

But suppose this were not so - — useless anf! idle ceremonies are neither favorites.of the law, nor, required by common .sense; and if the withholding of the acceptance can,' in no event, be of prejudice to Stout, its return is, by no means necessary to enable the defendants in error to reclaim the property.

From the^evidence of David B. Stout,. Eustaphieve w.as, doubtless, an accommodation acceptor, with no funds' to. meet this liability; and when the bill was,returned, and the acceptance erased, the condition of' Nathan L. Stout was no worse than .with an accommodation acceptance in han'd.

. But, if the bill were in fact drawn upon funds in the hands of Eustaphieve, and .accepted by híni upon the strength of such' funds, the erasure of the-acceptance makes his (Stout’?) condition no worse. No debt’- — no obligation,has been discharged, by the acceptarice, without payment, and the. acceptance being destroyed, the same!;'funds remain, subject to Stouf's order, in Eustaphi.eve’s hands.

The case cited from 1 Metcalfe, 547, is by no means analgous to thjs. There, B bought goods of C, and gave in payment a note, with two forged indorsements upon it, but the-name of the'maker was not a forgery: The note was not tendered back, but assumpsit' brought’ for the goods sold, and it was held the plaintiff could .not recover, . .-The case was 'dpubtless correctly decided; for-Bingham, .the1 defendant, had the right to the return of the note, that he’might avail himself of the maker’s responsibility, whose name whs' genuine; and, without it, he was not restored to his original rights. But had the names of all the parties to the obligation been false, it is by no means certain its return would have been considered necessary, to enable the plaintiff to have recovered.

Where nothing of value is received, nothing need be returned.

Judgment Affirmed.


source: Caselaw Access Project

author: Wood, C. J.

license: Public Domain

text:
    Jacob Reed vs. The State of Ohio.
    When the regular jury has been discharged, and there are cases yet undisposed of, the Court of Common Pleas is authorized to empannel a jury of bystanders, to try such causes.
    On the trial of a person charged with passing counterfeit bank notes, it is competent to prove he has passed other counterfeit paper, without producing it, if it be out of the jurisdiction of the Court.
    The existence of a bank whose paper is alledged to have been Counterfeited, may be proved by reputation.
    This is a Writ op Error to the Court of Common Pleas of Lucas county, made returnable before the Supreme Court for the county of Wood, and reserved for decision in full Bank.
    It appears from the record, that the plaintiff in error was tried at the July term of the Court of Common Pleas, 1846, for the county of Lucas, for uttering and publishing, as true and genuine, a counterfeit bank note, of the denomination of twenty dollars, on the Yates County Bank, knowing the same to be counterfeit, with the intent to defraud one Whittaker, &c. The record also shows his conviction and sentence to the Penitentiary for the term of six years.
    A bill of exceptions to the opinions of the Court is made a part of the record, from which it appears, that, the jury being called, the plaintiff in error challenged the array, and in support of such challenge, showed to the Court, that, on a previous day of the same term, the regular jury summoned in obedience to the statute was discharged, a new venire issued by order of the Court, and by virtue of which process the then jury was empanneled. Such challenge to the array was overruled by the Court.
    In Bank.
    Dec. Term, 1846.
    Evidence was then given, by the attorney for the State, tending to prove the passing of the bank note described in the indictment by the plaintiff in error. One Dobbin was then called as a witness, who testified that, on the same day with the passing of the bill to Whittaker, another note was passed to him by one Wood, in the presence of the plaintiff in error, and for their joint benefit; that said note was, on the day after the passing thereof, left by the witness with a magistrate at Detroit, in the State of Michigan, to be used in a prosecution against said Wood in that State; and that said Wood was convicted in September, 1845, and the bill remained in the hands of the proper authorities at Detroit.
    The witness was then asked by the counsel for the prosecution, by what bank said note purported to be issued, and whether or not said note was counterfeit. To this question the witness answered, giving a description of the bill, and his belief that the same was counterfeit. To the admission of this evidence, and the question proposed, the counsel for the plaintiff in error objected; but the objection was overruled, and exception taken.
    The attorney for the State then called a witness to prove that there was, by general reputation, such a bank as the Yates County Bank, located at Penn-Yan, in the State of New York. This was likewise objected to; but the Court permitted this evidence to go to the jury, and the counsel for the plaintiff in error excepted to this opinion.
    The counsel for the plaintiff in error then insisted that reputation alone was not sufficient evidence of the existence of the bank, without other proof, but the Court held otherwise; and this opinion of the Court was also excepted to.

      On this record, the errors assigned are —
    First: The ruling of the Court that the jury was properly empanneled.
    Second : That the Court permitted improper evidence to go to the jury.
    Third: That the Court erred in permitting evidence to be given to the jury, of the counterfeit. character and contents of the note proved to be in the State of Michigan.
    Fourth: That the Court erred in permitting evidence to go to the jury, of the general reputation of the existence of the Yates County Bank; and, upon these assignments, prays this Court to reverse the proceedings of the Common Pleas.

      Young and Waite, for Plaintiff in Error.
    First: We claim that the Court erred in permitting evidence to be given of the contents of the absent note, and of its counterfeit character.
    We do not claim but that evidence may, under certain circumstances, be given to the jury, of the possession by the prisoner of other notes of a similar description with that in the indictment; but to warrant such proof, the bills must themselves be produced, or their absence accounted for, as in other cases where secondary evidence is admissible. 2 Phil. Ev'., Cowen and Hill’s Notes, 464.
    The fact that the note in this case is in another State, does not change the general principle, certainly not without proving that some efforts have been made to obtain it, 3 Dess. Eq. Rep. 290, and the cases there cited, viz: Amber, 249; 3 Term Rep. 160; 1 Ves. sen. 234; Ibid. 387 and 503; 2 Ves. sen. 38.
    We see nothing in this case which should take it out of the general rule. Indeed, the reasons why the primary evidence should have been produced are peculiar. It was not simply the contents of the paper which were to be proven, but the additional fact of its counterfeit character. This was matter of opinion alone, which could only be proved from an inspection of the paper itself. But one witness was permitted to form that opinion. No opportunity was allowed to rebut his testimony. Surely, then, this is not a case in which to relax the rule.
    Second: The evidence of the existence of the Yates County Bank, by general reputation, was improperly admitted and was wholly insufficient for the purpose for which it was introduced.
    It was going much further than the case of Sasser v. The State of Ohio, 13 Ohio Rep. 453. That case only decided, that the existence of a foreign bank might be proved by those who knew it had an existence, from dealing with it or otherwise. But in the case at bar, the testimony was hearsay testimony in its simplest form, unattended with any of those circumstances which make it receivable in evidence in a court of justice.

      Henry Stanbery, (Attorney General,) for the State.
    First: The first error relied upon is, in the admission of evidence as to the note testified to by Dobbins. This witness stated, that on the same day of the passage of the note upon which the indictment was founded, another note was passed by one Wood, in the presence of the defendant and for their joint benefit, which note was also counterfeit. This other note was not produced at the trial, but it appeared that it had been made the foundation of a prosecution against Wood in the State of Michigan, and was filed in that case — which case had resulted in Wood’s conviction.
    There is no question, that the passage of other counterfeit paper, about the time of the passing of the paper on which the indictment is founded, is proper to establish the scienter. The objection made is only for its non-production.
    I doubt very much if, in any case, it is necessary to produce the note in order to let in such proof, for, it seems to me, the rule as to primary and secondary evidence does not apply. The point of inquiry is not as to the very contents of the note, but, simply, whether it is counterfeit or genuine. The witness is called on to testify as to a matter of skill and judgment rather than of memory alone. It .is of little consequence what the contents of the note may be, for the material matter is, that it is counterfeit. The best, or at least the legal evidence on that point, is the opinion of a witness who has seen the note, and, therefore, had the opportunity of forming an opinion. Nor does it appear to be at all necessary that the note should be before the witness or offered to the jury at thé time of the trial. This is necessary when the contents are the matters to be proved, for they speak for themselves, and appear upon inspection ; but it is quite otherwise upon the question of genuine or counterfeit, for that is a matter of skill to be made out by the opinion of experts.
    I do not find that this question has ever been decided by this Court. In May v. The State of Ohio, 14 Ohio Rep. 467, the question was raised, but not decided. The decisions of other courts have not been uniform.
    But if, ordinarily, it is necessary to produce the note, I claim that a sufficient ground was laid for secondary evidence:
    1. Because it appeared that the note was out of the State. Boone v. Dykes, 3 Monroe, 532; Bailey v. Johnson, 9 Cowen, 115.
    2. Because it was in the custody of the law, in Michigan, and could not be withdrawn. This note was the essential thing upon which the conviction of Woods, by the court in Michigan, was based. It is very certain no one was authorized to withdraw it from the files, and that the court would not have allowed it to be withdrawn. It comes within the rule laid down in Roscoe’s Crim. Ev. 8, as a paper in deposit in a foreign country, and not legally removable from its place of deposit.
    Second: It is next claimed, that the Court erred in allowing proof by general reputation, of the existence of the Yates County Bank.
    I consider this question settled by the case of Sasser v. The State of Ohio, 13 Ohio Rep. 453.
   Wood, C. J.

The first assignment for error has been left untouched by the arguments of counsel; for the reason, doubtless, that it was not supposed that it could be pursued with success. They are by no means mistaken in their opinion. If such were not our conviction, we should, however, without hesitation, reverse these proceedings. For, while in civil cases we are not astute, in searching for errors not expressly raised on the record, but consider our duty as discharged when we dispose of the case made by those who represent1 the parties in interest, in criminal prosecutions a different rule prevails. The Court, then, in the administration of criminal justice, are, at least, quasi counsel for the accused; and, in revising the proceedings of an inferior tribunal, will overlook no substantial defect in the record, though not expressly assigned, any more than permit on trial an improper conviction to be obtained by false issues presented through the forms of pleading, and by the unskillfulness of counsel. Though not relied upon by counsel, it furnishes no reason why the assignment under consideration should not receive a passing remark from us.

This question has before been raised upon the circuit, and for its correct solution we must refer to the statute, and, if the forms and spirit of the law have been pursued, it is believed to afford sufficient protection to secure the innocent from convic tion when accused, and this Court should be careful to devise no new modes of escape for the guilty, which will cheat the State of its victim and baffle the efforts at justice.

The statute provides for a challenge to the array when the jury is not summoned in obedience to its provisions; Swan’s Stat. 493; but the same act provides, that when by absence, sickness,1 challenge, or otherwise, there are none remaining of the regular pannel, the Court of Common Pleas may order the sheriff to return a jury of bystanders. This is precisely what was done in the case at bar. The pannel first summoned were not absent from sickness or challenge, it is true, but they were otherwise absent, having been duly discharged by the Court at a previous day in the term, doubtless because the accused or the State was not ready to proceed with the trial, and another pannel selected from the bystanders. It is oftentimes convenient, and a saving of expense, that this authority should exist in the Court, and we think it is expressly conferred. It has been so held on the circuit.

The second assignment is, the admission of improper evidence to the jury, in general terms; but, as the third and fourth define particularly in what the objections consist, and ■embrace all the opinions of the Court covered by the exceptions which remain, when they are disposed of, the case is at an end. And first, as to the testimony of Dobbins: This witness was called to prove the scienter, or guilty knowledge of the accused. The note was, it is true, not passed by him, directly, in Detroit, but by Wood, in his presence, and for the joint benefit of both; and this fact tended to show that they were jointly engaged in a criminal enterprise. This note was counterfeit. It purported to have been issued by the same bank as the note described in the record on which the indictment in the case at bar was predicated, and it is no longer an open question whether the uttering and publishing of other counterfeit paper, about the same time, is competent evidence, as tending to prove a knowledge of the base character of that, for the passing of which, the accused is on trial. The authorities are numerous in favor of the legality of such testimony.

It is said, however, the note must be produced' on the trial, if in existence. There would be force in the argument, in other cases; in this, it has been answered by the Attorney General, that it is not the contents of the note, but its counterfeit character, that is the subject of inquiry, and, that, to let in such proof, the rules, as to primary and secondary evidence, do not apply. But if the note was in court, or, without great inconvenience and delay, could be produced, in our opinion, it should not be dispensed with. It would then afford to the accused the opportunity to contradict the proof, as to the character of the note — and it should be produced on the trial if within the jurisdiction of the court and the reach of the prosecution. In the case at bar, such was not the fact. The note was in a foreign jurisdiction, if not destroyed, and there is no authority known to the law, by which its possession could have been obtained, and the evidence was, therefore, properly admitted. In 14 Ohio Rep. 467, the same question was raised, but the case was disposed of on other grounds.

The remaining assignment is, that the existence of the bank from which the notes purported to have been issued, was permitted to be proved by general reputation.

It has been decided by this Court, in 13 Ohio Rep. 453, that it is not necessary,to produce the charter of a foreign bank to prove its existence, in a prosecution against one for having in his possession forged and counterfeited bank notes; and this case, by analogy, may be considered as settled by that.

The existence of such corporation may be proved by one who, of his own knowledge, is acquainted with the fact, or by one who has seen or handled its notes, currently passing in the community as the notes of such an institution, or by general reputation; and there is, certainly, no subject on which general reputation is less likely to err, for any considerable period. But the rule springs from necessity, and the absolute impossibility of conviction, in frequent cases, without its adoption. Indeed, if it be not so, the counterfeiters of bills of distant banks may hold a general jubilee and set the laws at defiance.

Another point might have been made on the trial, which would have presented more difficulty — whether it was competent to the prosecution to prove the conviction of Wood in Michigan, by parol ? But no exception is taken to the admission of such proof.

The judgment and proceedings of the Court of Common Pleas, are affirmed.


author: Hitchcock, J.

text:
    In Bank.
    Dec. Term, 1846.
    The City of Cincinnati vs. Jacob Rice.
    The prohibition of “ common labor” upon the Sabbath, in the act for the prevention of immoral practices, embraces the business of “trading, bartering, selling or buying any goods, wares or merchandise.”
    (The ordinance of the city of Cincinnati, prohibiting such “ trading,” &c., ow Sunday, is-void as to those who conscientiously do observe the seventh day of the week as the Sabbath.
    This case comes before this Court by Writ of Error to the Court of Common Pleas of Hamilton County.
    The case made upon the record is this: Jacob Rice, the defendant, was brought before the Mayor’s Court of Cincinnati, on the 27th of August, 1845, charged with a violation of one of the ordinances of the city, in selling goods upon the first day of the week, commonly called Sunday. Upon the hearing, the defence relied upon was, that the defendant was a Jew, and conscientiously observed the seventh day of the week as a Sabbath. This fact was admitted, as appears by the transcript from the Mayor’s Court. The Mayor did not consider this as any defence, but found the defendant guilty and assessed a fine against him of ten dollars, for which judgment was rendered, together with costs.
    To reverse this judgment, the defendant removed the case to the Court of Common Pleas by certiorari, in which court the judgment of the mayor was reversed and judgment entered against the city for costs.
    To reverse this latter judgment, this writ of error is prosecuted, and the error assigned is, that the Court of Common Pleas erred in reversing the judgment of the Mayor’s Court.

      Samuel M. Hart, for Plaintiff in Error.
    First: The first question arises upon the phraseology of the ordinance, whether the defendant was a common laborer, as appears by this record, within its true intent and construction. His counsel argued, that the term “ common labor,” meant a man’s usual occupation, of what kind soever it might be, and that the ordinance should be construed just as though it had said, “ trading, bartering or selling, or buying any goods, wares or merchandise, or .at any other common labor.” Against this interpretation, however, there are many reasons to protest:
    1. The terms “labor” and “laborer” have meanings well ascertained in law, applicable to occupations and men, quite different from the occupation of the defendant and from himself. In Blackstone’s chapter “ Of the Civil State,” we find not only the degrees, but the occupations of all private citizens marked out as the law has fixed them. “ The rest of the £ commonality,” says Sir William, “ are tradesmen, artificers £ and laborers, who, as well as all others, must, in pursuance of £ the statute 1 Henry V, chap. 5, be styled by the name and £ addition of their estate, degree or mystery, and the place to £ which they belong or where they have been conversant, in all £ original writs of actions, personal appeals and indictments, £ upon which process of outlawry may be awarded, in order, as £ it should seem, to prevent any clandestine or mistaken outlaw- £ ry, by reducing to a specific certainty the person who is the £ object of its processI Bla. Com. 407. Therefore, to describe Jacob Bice as a “ laborer ” and not as a “ tradesman,” in an indictment where description is required, would be bad upon a plea of abatement; Arch. Crim. PI. 26. Nor is this distinction made by the common law a whit plainer than that existing in the very nature of things. If one were to call a man, whose business is merely buying and selling, a laborer, it would shock any, the most ignorant man’s sense of propriety. And to prevent the least doubt, the ordinance speaks not of “ labor ” only, but of “ common labor,”— that in which we may suppose the vast majority of mankind to be habitually engaged, as distinguished from mechanical or other labor, requiring the exercise of intellect and skill.

      2. Although the term ££ common labor,” in the act of 17th February, 1831, (Swan’s Stat. 255,) should be supposed to embrace all sorts of employment, the term cannot have that extensive signification in the ordinance; for the ordinance itself specifies bartering, trading, selling, &c., as quite distinct from common labor; and “ all words,” as Lord Bacon says, “ wheth- £ er they be in deeds or statutes, or otherwise, if they be general, £ and not express and precise, shall be restrained unto the fit-c ness of the matter and the personBacon’s Maxims, Regula X. And Blackstone tells us to resort to the context whenever the phrase is doubtful, ££ with which (the context,) it may be of £ singular use to compare a word or a sentence, whenever they £ are ambiguous, equivocal or intricate. 1 Black. Com. 60.
    3. If we so construe this ordinance as to insert the word ££ other ” before the words ££ common labor,” thus torturing its language to make’bartering, trading, selling, &c., common labor, we shall turn the whole ordinance into ridicule. For, be it observed, that when we have thus converted bartering, trading, selling, &c., into common labor, we have converted sporting, rioting, quarreling, hunting, shooting, &c., into common labor likewise. Let him that runs, read :
    ££ That any person of the age of fourteen years or upwards, £ who shall be fohnd, on the first day of the week, commonly £ called Sunday, sporting, rioting, quarreling, hunting, fishing, £ shooting, trading, bartering, of selling, or buying any goods, £ wares or merchandis’d, or at any [other] common labor, works £ of necessity and charity excepted, shall be fined in any sum £ not exceeding twenty dollars.”
    The plain rules of grammar do not admit the interpolation, without entirely destroying the sense of the section.
    ■ Fourth: If, by “common labor,” the city council meant any business-in which a man is ordinarily, from ■ day to day, employed,' as our opponents argue, then a lawyer, a physician, a steamboat captain, a music master or a circus actor, is a common laborer in Cincinnati, though certainly no where else.— W e' need not dwell upon the manifest absurdity of this notion, but call attention to the second section of- the ordinance, which, according to Blackstone, will be ££ of singular use ” to explain the first section. That declares, “ if any tavern, coffee house 4 or restaurat keeper, shall sell or barter any spirituous liquors 4 on the first day of the week, commonly called Sunday, (ex-4 cept to travelers on a journey,) such tavern, coffee house or c restaurat keeper, or other person so offending, shall, for the £ first offence, be fined any sum not exceeding twenty dollars, 4 with costs of suit; and for a second offence shall, moreover, £ forfeit his license.” Now, if the city council had, by the words 44 common labor,” intended the ordinary occupation of any man, it is obvious that the keepers of taverns, coffee houses and restauráis, would themselves be common laborers; and as there is no exemption made for an Israelite in those employments, the second section of the ordinance would be inconsistent with the first.
    Upon the whole, we can see no pretence of argument for any such interpolation as our opponents desire, nor for any construction of the ordinance which amounts to such an interpolation.
    Second: The second proposition of the defendant’s counsel is, that this ordinance contravenes the act of the Legislature, 44 for the prevention of certain immoral practices,” passed February 17th, 1831. Swan’s Stat. 255.
    That act declares, ££ that if any person of the age of fourteen £ years, or upwards, shall be found on the first day of the week, 4 commonly called Sunday, sporting, rioting, quarreling, hunt-4 ing, fishing, shooting, or at common labor, (works of necessity 4 and charity only excepted,) he or she shall be fined in a sum 4 not exceeding five dollars, nor less than one dollar: provided 4 nothing herein contained shall be construed to extend to those 4 who conscientiously do observe the seventh day of the week 4 as the Sabbath; nor to prevent families, emigrating, from 4 traveling; watermen from landing their passengers; superin4 tendents or keepers of toll bridges from attending and super- £ intending the same; or ferrymen from conveying travelers
      ‘ over the waters, or persons removing their families, on such £ days.”
    The second, section declares, “ that if any tavern keeper, £ or other person, shall sell or barter any spirituous liquors on ‘ the first day of the week, commonly called Sunday, (except £ to travelers on a Sunday,) such tavern keeper, or other per- £ son, so offending, shall be fined in a sum not exceeding five £ dollars.” Swan’s Stat. 256.
    In reference to this matter, it was argued below that, wherever the State had legislated, the city could not legislate. We might admit, for the purpose of this case, so much of the ordinance as follows the terms of the statute to be void; and thus we should leave trading, bartering, buying and selling upon Sunday, as offences not created by the statute, and not therefore exempted from city legislation. 'One part of an ordinance may be void, and the remainder effectual. Rogers v. Jones, 1 Wend. 260; Rex v. Faversham Fishermen’s Company, Q Term Rep. 356; 2 Kyd on Corp. 155.
    But we assert that an ordinance is not void merely because the State may have enacted a law upon the same subject. In Roger v. Jones, the Supreme Court of New York decided the very question. Per Woodworth, Justice, delivering the opinion of the Court: ££ It is said, that the bylaw of a town or a cor- £ poration is void, if the Legislature have regulated the subject £ by law. If the Legislature have passed a law regulating as to £ certain things in a city, I apprehend the corporation are not £ thereby restricted from making further regulations. Cases of ‘ this kind have occurred, and never been questioned on that £ ground; it is only to notice a case or two out of many. The £ Legislature have imposed a penalty of one dollar for servile £ labor on Sunday, the corporation of New York have passed £ a bylaw imposing the penalty of five dollars for the same ‘ offence. As tó storing gunpowder in New York, the Legisla- £ ture and corporation have each imposed the same penalty. £ Suits to recover the penalties have been sustained under the £ corporation law;” 1 Wend. 261. Our very case, it will be observed, is here cited as an illustration.

      And this power must belong to a municipal corporation by the very nature of-its establishment.
    Third: But, it was argued in the Common Pleas, although the Legislature might pass a law to prohibit people from trading on Sunday, the city council has no such power.
    Upon the contrary, we maintain that this subject of Sabbath observance, this prohibition of trade on particular days, is peculiarly within the province of municipal government. It is a part of the minor morals, if we may indulge the term, which can never be wisely controlled by a Legislature, overrun with more important business, and unacquainted with the temper of people in different neighborhoods. And if any line of distinction can be drawn between powers of general legislation and of municipal legislation, that line will leave this subject to such bodies as the city council. But we need no speculation upon principles here. The eighth section of the charter of Cincinnati declares:; “That the said city,council shall have power, £ and it is hereby made their duty to make and publish, from £ time to time, all such ordinances as shall be necessary to se- £ cure said city, and the inhabitants thereof, against injuries by £ fire, thieves, robbers, burglars, and all other persons violating £ the public peace; for the suppression of riots and gambling, £ and indecent and disorderly conduct; for the punishment of £ all lewd and lascivious behavior in the streets and other pub- £ lie places of said city, and for the apprehension and punish-c ment of all vagrants and idle persons. They shall have £ power, from time to time, to make and publish all such laws £ and ordinances, as to them shall seem necessary, to provide £ for the safety, preserve the health, promote the prosperity, and £ improve the morals, order, comfort, and convenience of said £ city, and the ^inhabitants thereof;” Digest of Ord.' 10,11. We can scarcely imagine a larger delegation of power over subjects of this character. Under terms far less extensive, the Supreme Court of the United States decided that the city of Philadelphia could accept a devise for the purposes of education ; (Vidal v. Gerard’s Executors, 2 How. 187, 189, 190;) and education upon a peculiar and questionable system.

      Fourth: Lastly, it was contended below that this ordinance violates the constitution of Ohio.
    And in this place we are referred to the third section of the eighth article. .We there find, in our bill of rights, the declaration, “ that all men have a natural and indefeasible right to ‘ worship Almighty God according to the dictates of con- ‘ science; that no human authority can, in any case whatever, ‘ control or interfere with the rights of conscience; that no ‘ man shall be compelled to attend, erect, or support any place ‘ of worship, or to maintain any ministry, against his consent; ‘ and that no preference shall ever be given, by law, to any re- ‘ ligious society or mode of worship, and no religious test shall ‘ be required as a qualification to any office of trust or profit.” Swan’s Stat. 35.
    Now, the ordinance in question clearly does not violate a Jew’s right to serve God according to his own judgment. How it should have this effect, one can easily see; for, although the Israelite’s religion teaches him not to buy and sell on Saturday, surely there will be no attempt to say that it enjoins him to buy and sell on Sunday. His conscience forbids him to violate the Sabbath of his people, but it does not compel him to violate the Sabbath of others. In The Commonwealth v. Wolf,- 3 S. & R. 50, it was indeed urged that there may be Jews who “make ‘ it a point of conscience to show, by plain, open, unequivocal ‘ acts, that the Christian institution of Sunday is abhorrent to £ their minds.” But the Court answered that, “ the invaluable ‘ privilege of the rights of conscience ” was never designed to shelter those persons who took pleasure in showing “ their con- ‘ tempt and abhorrence of the religious opinions of the great ‘ mass of the citizensand a very proper, answer it was.
    But we are told that we have, by means of this political regulation, given a religious preference. To test the charge, let us consider similar cases, and cases of municipal legislation.

      Mayor of New York v. Slack, 3 Wheeler’s Criminal Cases, 237. Cities may forbid, by penalty, burials of the dead within their corporate limits; even in ancient burial grounds. Now, we all know that some religious sects consecrate their places of interment, and deem it wrong ever to use the ground for other purposes. But these sects must yield to a sanitory regulation, and abandon the old graveyard, with all its holy attributes and recollections, for some new place of the dead. Moreover, burial grounds may be, and have been, appropriated to public use, for squares and streets, under our constitution. Yet how absurd would it be to argue that, in either of these examples, a political regulation had given the preference to religious societies which do not consecrate their places of interment over those which do.

      Permoli v. The First Municipality, 3 How. 589. Cities may forbid, by penalty, the exposal of a corpse, at public prayers for the dead, within their corporate limits. This regulation was enacted by the council of New Orleans, as early as 1827, to prevent the spread of contagious diseases; and all the Catholics were compelled to carry the bodies of their deceased relatives to the Obituary Chapel, outside of the city, for the last rites of their church. But shall we be told that here is a preference, by political regulation, to those sects which have no prayers for the dead over those which have ?
    We might here stop. The proposition cannot be enforced more strongly than its own terms enforce it, by ever so many arguments and illustrations. No preference has been given to the Christian Church, nor to the Christian mode of worship at all; and no preference has been given to the individual Christian over the individual Jew, which could be avoided in the nature of things. For, if Saturday had been chosen, the Jewish professor would have been preferred; if Friday, the follower of Mohammed. And so through all the days of the week; for travelers tell us that each day is holden sacred by some sect or people on earth. But some day must be chosen, and why not the Sabbath of the vast majority of our citizens? The fact that the Jew, if he abstain from work both Saturday and Sunday, will have fewer days in which to amass wealth than the Christian, proves nothing to this question. For the Catholic has his holidays, by the observance of which he also is 'prevented in the race to get rich. It would, at most, furnish an argument that Saturday, as well as Sunday, should be kept sacred by the whole people, a point to which we have alluded already, but cannot now discuss.

      Brough fy Zhnn, and E. R. Norton, for the Defendant.
    It is argued for the city, that the exemption only extends to common laborers, and not to common labor, and that defendant being a tradesman, is not exempted, although a conscientious Sabbatarian, &c.
    We set out with the proposition, that the Court should endeavor so to construe this ordinance as to- make it harmonize with natural justice, and with the constitution and laws of the State. Acts in pari materia are to be construed together, and in such manner as, if possible, to give effect to each. Bodge v. Gridley, 10 Ohio Rep. 176; Ibid. 452; 2 Mass. Rep. 143 ; 9 Cowen, 437.
    And the construction which we suggest, and upon which we respectfully insist, is that which distinguishes the acts, specified into two classes — thus :
    First: Pastimes and Offences.— Sporting, rioting, quarreling, hunting, fishing and shooting.
    Second: Lawful Avocations.-— Trading, bartering, selling, buying, &c., or any common labor.
    That the phrase “ any” has relation to trading, &c., and has the same signification as though the word other occurred directly after it. “ Trading,” &c., or any other common labor, &c.
    That the words “ trading, bartering,” &c., are but so many specifications of kinds of common labor, and the words “ or at any common labor ” thrown in to save time, as it were, by grouping all under the generic phrase.
    The exception in the second section is, then, as broad as the enacting clause, and is pertinent and sensible, and the law harmonizes with itself, and with the higher law of the Constitution ánd the State Legislature. . '
    On the other hand, the construction for which the counsel for the city contends, as being that upon which the judgment of the Mayor undoubtedly was grounded, is, that the acts enumerated should be classified into —■
    First: Pastimes and offences, and lawful avocations; thus, sporting, rioting, quarreling, hunting; fishing, shooting, trading, bartering, buying or selling, &c.
    Second: .Common labor. And that the latter aloné is excepted by the proviso, and all of the former class indiscriminately swept within the. operation of the penalty. .
    Before Considering the objections to this view, we beg leave to quote another general rule, of the highest authority, as ,to the construction of statutes. ' It is in , the language of Chief Justice Marshall, in United States v. Fisher ei at, 1 Cond. S. C. Reports, 425. . • • '■
    Where rights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, the “legislative intention must be expressed with irresistible clearness,” to induce a court of justice to suppose a design to effect such objects.
    There is not a word in this lucid passage but is pregnant with meaning and force, in respect to the argument we are about to submit.. If we can show that rights are infringed — that fundamental principles are. overthrown — that the general principle of the law is departed from, in the construction contended for on the opposite 'side, will not this Court, too, say the legislative intention must be expressed with irresistible force, before we can suppose such an intention ? And ■ is it so expressed in the view they present? Place the emphasis upon the word any —■ “ or at any common labor ”;— and the réading we insist upoii is, in point of fact, the plain, natural and common-sense reading of the clause.
    It is admitted by plaintiff’s counsel, .that the term “ common labor/’ in the act of 1831, may embrace all sorts of employment; yet it .cannot have that extensive signification in the ordinance, because that enumerates, “bartering, trading,” etc., before using the comprehensive phrase. If the greater includes the less, then the enúmeration here spoken of is-mere surplus-age; it is merged in the comprehensive phrase. On the other hand, if the- enumeration is used with the intent to take it out of that phrase; then it is an infringement of rights — an infraction of fundamental principles, and a departure from the general system of the, law; and, therefore, not only is the intention to be most clearly manifest, but the power so to legislate must be equally apparent.
    As to the extent of this phrase “ common labor,” let it, in the language of Lord Bacon, “ be restrained unto thé fitness of the matter and the person.” The proposition of plaintiff’s"' counsel is, that “ common labor ” is that in which we may suppose the vast majority of mankind to be habitually engaged, as distinguished from mechanical or other labor, requiring the exercise of intellect or skill, and that' such “ common labor ” is protected under the proviso. According to this argument, a dozen wood sawers, or as many street pavers, might pursue their avocations, in the immediate vicinity of a place of worship, on the first day of the week, and, if they had conscientiously observed the preceding day, they would be justified in so doing. Nay, farther; the defendant himself, and others of his persuasion, might do the same thing, although their usual avocations on other days of the week were widely different, and rest themselves with perfect security upon the saving clause of the city ordinance. Yet if one of them, instead of this, pursues his ordinary avocation on that day, without infringing upon the rights or consciences- of .others, he becomes amenable to the penalty of the law. Now, to what result does "this reasoning lead us 1 “Common” labor, upon the first day of the week is’protected. Why so ?' Because he who performs it, conscientiously observes .the seventh day of the week as the Sabbath, and the constitution will not permit his right of conscience to be restrained.— All very well; But the Israelite, whose ordinary avocation is-merchandising, may not pursue it on the first day of the week. Why ? Does he not conscientiously observe the seventh day ? Certainly. Can you restrain his right of conscience? No. What then ? . Why, his ordinary avocation, in the eyes of the city Fathers, is not “ common laborand though he have a conscientious right to saw wood, or pave streets on that day, he has no such right to pursue his ordinary avocation, if it be any other than such common employment.
    The proposition we submit, is, that, the phrase “ common labor,” i¿ to be construed in reference to the man himself, and that the “ common labor ” of every one is that which pertains to his ordinary avocation. The drayman, the mechanic, the farmer, the clerk, the merchant, the physician, the attorney, the judge and the divine, all labor in their respective callings. It is all labor, and we are all laborers. Whether it be physical labor alone, or of the, physical and intellectual powers combined, it is still labor — still the result of the primeval sin and curse, “In the sweat,of thy brow shalt thou eai: thy bread.” And it is all “ common labor,” because it is labor common to our respective pursuits in life. And this, we contend, is the correct construction of the phrase “ common labor,” as well in the ordinance as in the statute.
    The argument which is based upon the relative provisions alike of the first and second sections of the ordinance and the statute, and a comparison between the keeper of a tavern or coffee house, and a merchant or mechanic, following his usual occupation, is utterly unsound. The one is exercising a calling which the law has claimed and exercised the right and power to control, from the very organization of the State; one in which he has no rights save what he acquires from the law itself, and in which he may be restricted; the other is in the enjoyment of a natural and indefeasible right. True, that in the exercise of it he is subject to tlm well settled and defined principles of law that govern the intercourse of men; but his calling cannot be singled out and struck down because it is not sufficiently “common” or menial in its "character.

      But, it is asked, what is the office of the word “ common,” prefixed to “labor,” if it be not- thus to distinguish between classes and grades of employment. The answer is, that as the statute describes an offence and affixes a punishment, it contemplates the existence of a motive to do evil in the transgressor. The man who observes the seventh day of the week, and quietly goes about his ordinary avocations on the first, is not in motive or design, which is the language of the criminal law, a transgressor; and this, because he Is engaged in that which is, with him, “ common labor.”
    Again, the inquiry is made, why, -if the city council Intended to include the ordinary occupation of a citizen, in the words “ common labor ” used in the proviso, did they insert thq prohibition against bartering, selling, &c., in the first section? We answer, that the office of the whole ordinance, taken together, is to prohibit all from either buying or selling, who afe not protected by the saving clause. Though under the statute and ordinance both, as we construe them, the Israelite is permitted, on account of, his religious faith, to vend his wares on the first day of the week, and there is no power to prohibit him from so doing; yet it is perfectly competent to prohibit a traffic with him on that day, by any others than those who hold a like religious faith. His right to sell, if that be his usual occupation, his “ common labor,” and the right of others holding to like faith and observances, to buy, are matters which cannpt be restricted. The right of others to vend merchandise on that day, even as an ordinary occupation, is restrained by the statute, but the traffic of those not Israelites, and so amenable to the general laws in regard to the Sabbath, with such as are permitted to vend, is not restricted by the statute; and the office of the prohibition is to remedy this omission, and nothing more. To this end it is competent; beyond this, it has no power.
    The ground we assume as to the relative positions of the ordinance and the statute, are not fully or fairly statéd by plaintiff’s counsel. We submit this proposition, and conceive it to be well settled law, that where the act of á corporation, either by express words or necessary implication, contravenes the letter or spirit of a- statute law of the State, upon the same it is necessarily void. Marietta v. Fearing, 4 Ohio Rep. 432.
    The policy of this statute is to require a due observance, of the first day of the week as a Sabbath. Yet it is marked by a great and distinctive principle, and that' is, that its provisions shall not be operative upon those who conscientiously observe the seventh day instead.
    For the purpose of the argument, let it be conceded, that within the policy of the law, a municipal corporation has the power, within its jurisdiction, to legislate upon the same subject, and in so doing, to increase the punishment, or embrace other offences against the Sabbath than those which are named; does it follow, by parity of reasoning or correct legal conclusion, that such corporation has also' a right to infringe the principle of the law, by substituting a saving clause widely different, and far more restrictive than that which the statute contains ? Most assuredly not. Such a doctrine is too absurd in theory to be maintained by the Courts, as it would be too dangerous in practice to be submitted to by the citizen.
    The counsel for the city has labored to controvert this position, by a citation of authorities, all of which fall within the first, without impairing the latter point. In Rogers v. Jones, i Wend. 260, it was held, that the Legislature of New York, having fixed a fine of one dollar for servile labor on Sunday, the corporation of the city of New York might increase it to five dollars; and this is said to be a case in point. Not so. The increase was within .the policy of the. law; and we are not advised that any rights were impaired. In like manner, the ordinance now under consideration increases the maximum penalty of the statute from .five to twenty dollars; but that is not adduced as a violation of the statute. So as to penalties for storing of gunpowder, cited in the same case. The Legislature had never acted upon the subject. The principle is not shaken.

      But the learned counsel lays stress upon the phraseology of the statute. “ Nothing herein contained shall be construed,” &c. “ A simple exemption from the force of that statute, not ‘ from liability under any other statute, or any municipal ordi- * nance.” The technicality is a mere grasp at a straw; a quibble unworthy the case or the counsel. Is hot the statute an existing law of. the State ? Does it riot, by its very exemption, declare a great principle, and fix the rights of the citizen under it ? And may a municipal corporation restrict the one and infringe the other, because not prohibited in express terms from so doing? Most certainly not.
    We submit, then, that if the construction which is claimed by the city be put upon the ordinance, that it is in letter and in spirit repugnant to and contravenes the general law of the State; not because the corporation has legislated upon the same subject, but because in s.o doing it has undertaken to restrict the proviso of the statute, and limit the rights of the citizen, which the constitution has guarantied, and the statute confirmed unto him; and that insomuch as it does so, it is null and void.
   Hitchcock, J.

The complaint which was the foundation of the proceedings in this case, was based upon an ordinance of the city of Cincinnati, “for.the prevention of certain immoral practices.” The first section of this ordinance is as follows:

“ Be it and it is hereby ordained, by the City Council of Cincinnati, that any person of the age of fourteen, years or * upwards, who shall be found, on the first day of the week, * commonly called Sunday, sporting, rioting, quarreling, hunt- ‘ ing, fishing, shooting, trading, bartering or selling, or buying any goods, wares or merchandise, or at any common labor, 1 works of necessity and charity excepted, shall be fined in any * sum not exceeding twenty dollars.”

In the second section is found a proviso, as follows:

“ Provided, nothing contained in the first section of this or- dinance, in relation to common labor, shall be construed to £ extend to those who conscientiously do observe the seventh £ day of the week as the Sabbath.”

It may, for present purposes, be admitted, that the city council, under the general proviso delegated in the city charter, had power to pass this ordinance, provided the same does not contravene the constitution or some positive legislation of the State. But it is insisted by defendant’s counsel, that, by a proper construction of the ordinance, a man whose ordinary business is to sell and buy goods, wares or merchandise, and who transacts such business on the first day of the week, is within the proviso, if he conscientiously observes the seventh day as a Sabbath. That, in thus transacting his ordinary business; he is but in the performance of ££ common labor.” It is further argued, that unless such be the proper construction, the ordinance does, in fact, contravene a positive law of the State.

The words of the ordinance are, ££ trading, selling or buying any goods, wares or merchandise, or at any common labor,” provided, that the prohibition “ in relation, to common labor, shall not be construed to extend,” &c. Taking the phraseology of the first section, together with .the .proviso, it might, perhaps, be concluded, that it was intended to make a distinction between ££ trading, buying or selling,” and ordinary or ££ common labor.” And, in construing the bylaws or ordinances of a corporation, or in construing a statute, it is generally safe to adopt the most obvious meaning of the law to be construed. But if such construction will defeat the operation of sorpe other existing statute, such other construction should be adopted, if it can be done without doing violence to the language, that both may have effect.

In the first section of the ££ act for the prevention of immoral practices,” it is enacted, “ that if any person of the age of £ fourteen years, or upwards, shall be found on the first day of £ the week, commonly called Sunday, sporting, rioting, quarrel- £ ing, hunting, fishing, shooting or at common labor, works of £ necessity or charity only excepted, he or she shall be fined in £ a sum not exceeding five dollars, nor less than one dollar: { provided, nothing herein contained shall- be construed to ex- tend to those who conscientiously do observe the seventh day of the week as the Sabbath,” &c.; Swan’s Stat. 255. It will be seen, that the city ordinance, before referred to, is upon the same subject matter with this section of the statute, and it is an exact transcript of the same, with the interpolation of the words “ trading, bartering or selling, or buying any goods, wares or merchandise,” previous to the words or at common labor.” , -

Now, how is this general law of the State usually understood and construed ? Does it admit or license “ trading, bartering or selling, or buying any goods, wares or merchandise,” on the first day of the week, while ordinary labor is prohibited ? Can the merchant keep open his store, and vend his goods on this day, while the farmer is compelled to abandon his ordinary occupation ? Such has never been understood to be the meaning of the law. But, if trading or merchandising is prohibited on this day, it is only because the transaction of this description of business is considered to be within the meaning of the terms “ common labor.”

It seems to be admitted by counsel for the plaintiff in error, that, in giving a construction of the general law of the State, and in carrying that law into effect, “ trading, bartering or selling, or buying goods, wares and merchandise,” must be held to be common labor; and such is, undoubtedly, the proper construction of the statute. -But it is claimed that, when the same words are used in an ordinance of the city of Cincinnati, they should be held to have a different meaning. There may be force in this reasoning, but it seems to me, if adopted,' it will lead us into difficulty.

Here we have a general law of the State, in which it is admitted that the phrase K common labor/’ includes within its meaning, “ trading, bartering or selling, buying,” &c. We then have a city ordinance, in which these identical words are used, and we are called upon to say, that they are-not included in the term “ common labor,” because, in connection with them, these latter words are introduced. It seems to me that it will n°t do; that although, by giving the construction to this ordinance contended for by plaintiff’s counsel,’we may shut up the shops of the Jewish merchants in Cincinnati, on the first day of the week, we shall open the shop-doors of the whole mercantile community, in every other part of the State.

Besides, by giving the ordinance the construction which seems to me to. be the proper one, that ordinance is rendered perfectly unobjectionable, as there can be no pretence that it is contrary to a statute law of .the State.

The judgment of the Court of Common Pleas is affirmed, with costs.