author: Wood, C. J.

text:
    In Bank.
    Dec. Term, 1846.
    The Receivers of the Bank of Circleville vs. Seymour G. Renick and others.
    In the absence of express legislative provision, the forfeiture of the charter of a corporation can only be established by judicial action, and cannot be inquired into collaterally.
    The Bank of Circleville having done all the law required, previous to the appointment of a Commissioner, by the Governor to examine its vaults, which the Governor neglected to do, a person who has done business with it as a Bank, and admitted its existence by the receipt of its. funds, cannot, in a suit against himself, by the Receivers of the Bank, question the legality of its organization.
    This is a case in Chancery, reserved in the County of Pickaway.
    The complainants have filed an original, amended and-supplemental bill, in which divers matters of equity are set forth, but are admitted by the complainants’ counsel to be unsustained by the proof, with the exception of the following allegations: That in May, 1841, Seymour G. Renick caused to be delivered $4,000 of the notes of the Circleville bank to Robert Larimore, who is made a defendant, to be exchanged for other funds, and returned to the bank, in order to aid in the extension of its circulation — Renick, at the time of the delivery, being the President of the institution. It is averred that Larimore converted a part of this $4,000 to his own use, and that, in the autumn of 1841, Renick, the President, having become insolvent, transferred the claim of the bank against Larimore, as his own personal claim, to his brother, Felix W. Renick, who brought suit upon it in his brother’s name, for his, Felix’s use, and recovered a judgment thereon for the balance due, some sixteen or seventeen hundred dollars. The object of this proceeding, on the equity side of the Court, is, to enjoin Felix W. Renick from the collection of the judgment for his own use, in the name of his brother, and to compel Larimore to pay the amount over to the Receivers of the bank, for distribution amongst its creditors.
    Seymour G. Renick, in his answer, admits that he was the President of the bank, at the time stated in the bill, but swears that the $4,000 advanced, was by way of loan to Larimore, and that, in the advance of the money, he did not act in the capacity of an agent for the bank ; that it was a personal matter between him and Larimore, who was to refund the amount to the respondent, to be used by him, to pay a bill due, or soon to become due, in the other Bank of Circleville. That the $4,000 ■was drawn out of the bank on the check of this respondent, and charged to his account, which showed a balance in his favor, at. the time of the date of the-check, on the books of the. bank, after the check should be paid.
    Felix W. Renick, for his defence, sets up, in his answer, that he is informed, and believes, that said pretended bank never went legally into operation, and that the charter and privileges, thereby granted, ceased and were of no effect, for want of compliance with the provisions of the third and fourth sections of the act of incorporation. Both of the respondents admit the assignment' of the claim, and state the consideration of such assignment was liabilities incurred by Felix W. for his brother; but Felix denies any knowledge of the claim of the bank to the amount of the judgment. Replications have been filed, and testimony taken. ,
    Only so much of the arguments of counsel is published as relates to the question of the legal existence of the bank.

      T. Ewing, for Complainant.
    The answer of Felix W. Renick, sets up by way of defence, “ that he is informed, and believes, that said pretended bank £ never went legally into operation; that the charter and privi- £ leges ceased, determined, and were of no effect, for want of £ compliance with the provisions of the third and fourth sec- £ tions of the charter of said bankand Seymour G. Renick» the President of this same bank, who “ purchased and took hold of it” in February, 1841, testifies thus: “I know the ‘ Bank of Circlevilie, chartered in 1818, did not go into opera- £ tion till the opening of 1840, nor attempt to do business until £ that time. That about that time said bank commenced issu- £ ing bills and notes. The Governor of Ohio never did appoint £ any person to examine the books and vaults of said bank, to £ ascertain whether they had complied with the provisions of £ the fourth section of the bank; and the Governor never did £ give public notice that said bank had complied with the pro- £ visions of the fourth section of the charter of said bank.”
    This defence is set up under circumstances somewhat striking and remarkable.. The president, and principal owner of the bank; who personally knew all about each secret defect in its organization, has taken a portion of its funds and handed them over to a brother, his private creditor, and he himself has be-, come insolvent, so-that no creditor of the bank can have any personal security against him; and now, when those creditors, who knew nothing' of the defects in the organization of the bank, but who received its bills in good faith, do, through the trustees appointed by law to represent their interests, bring suit to recover this money, and apply it to the satisfaction of their claims, this defect in organization is disclosed, and set up as defence by this President and owner of the bank, and his creditor,, who has through him received its funds, is, or is not, as the law may determine, to save and indemnify them in the plunder and spoliation. It could not be the intent of the law to countenance such injustice ; and I will endeavor to show that, rightly understood, the law' does not do it.
    That we may know where the burden of the controversy lies, it is important to understand exactly what is admitted, and ' what is denied by the pleadings; ■ and to this point :
    The answer of Felix W. lie nick admits the charter; it admits, by clear implication, that the complainants had possession of that charter, and acquired rights under it, but avers that the charter, and privileges thereby given, .ceased, determined, and were of no effect, for want of compliance with the provisions of the third and fourth sections of the charter of said bank.
    Now, compliance with the provisions of the third section is abundantly proved. We show, by the statement of Edson B. Olds and P. N. White, that the three thousand shares were subscribed, and fifteen per cent, thereon paid in, and in the vaults of the bank, in gold and silver, and they commenced the operations of the bank as far as permitted by the third section of the act. This is not denied, but it is alledged that they went further, and issued bills without the money having been counted by commissioners appointed by the Governor, and his consequent proclamation. Nay, further, the fact is, and so admitted, that they gave notice to the Governor of their compliance, and ¿sited for commissioners, who were never appointed. The bank, therefore, had complied, as far as action on its part could go, with the provisions of the third and fourth sections, and it was the Governor only, who had failed to comply with his duty. This is upon the face of the matter. Whether there was any thing of it whatever, in' good faith, is extremely doubtful; but those who set up the. bank, and those who managed it, and those who have -received its funds from the owners and managers, cannot be permitted to aver that acts, fair on their face, were fraudulent, to the end that they may extend and consummate the fraud. .
    Then, after the three thousand shares were subscribed, and the $23,000 in gold and'silver were paid in, these corporators had possession of the charter of the bank; they are authorized, by the express terms of the charter, to “ forthwith commence ‘ the operation of said bank, so far as may be necessary, in the ‘ appointment of officers,” &c.; but if they- commence issuing bills, without having first complied with the provisions of the fourth section, they forfeit the charter. That compliance, so far as their action is concerned, consists in giving notice to the Governor, and that notice was in fact given.
    But the spirit and intent of the law was, that they should issue no bills until the Governor made his proclamation. This is admitted. And it is further said, that the charter became forfeited, if having done every thing on their part, and the Governcjr failing to do his duty^ they should issue bills. This is not so. clear; the statute does not say so in express terms. There is room for. construction; and it is proper that the matter should be settled by a direct adjudication on the very point. If the charter, once brought into being, has been avoided or annulled, that fact should be. made known to the people by a' public judicial proceeding, the quo warranto provided by our law, that the violators of the law might not make that violation an instrument of further injustice, and that the innocent and unsuspecting might be put upon their guard. The question of compliance or noncompliance with the requirements of the charter, in putting such bank into operation, cannot be inquired into collaterally, but only on a scire facias or quo warranto, where the State is a party. This I hold to be .clear on principle and authority. . •
    On principle, it is a matter of no moment to the individual who is the debtor of the bank, or who has taken its property as a trespasser, or has got possession of its funds by fraud, whether, in going into operation, the bank did or did not comply strictly with all the requirements of its charter; there is no natural justice or right in them to set up, as a defence against an action for the injury-, any such defect, if it in fact exist. It is a question solely between the sovereign and the corporation, the creator' and the creature; and, as the corporation must, if at all, take possession of its franchise and go into its exercise, in tiie presence of the sovereign who gave it all its faculties and prescribed the conditions of its being, it must be presumed, from his acquiescence in their exercise, without all conditions performed, that those, omitted have been' waived, and our laws have made most ample provisions for the trial) and adjustment of questions such as this. The forty-fourth section of the act of the 23d February, 1816, provides, “that the Supreme * Court shall have full power, on a quo warranto, to hear and * determine all questions touching the violation or forfeiture of ‘ charterswhich provision, that is, the section containing it, is expressly adopted in the first section of the act incorporating, , , this hcinR* • 1 • ^
    The law, therefore, has made ample provision for this examination and adjudication, on the direct issue at the suit, of the State. It would seem, therefore, that the Legislature intended that mode should be adopted; and public convenience and public justice require that it shouldfor the same law must apply to this as to all other banking institutions. The fact that it has been purchased and taken hold, of, by men who chose to use it as an. instrument of fraud, cannot change the law, with respect to it, at least • it cannot be allowed to change it to their advantage.
    We have had some thirty banks in operation at once in this State, and for a period extending through many years. To all these were certain requirements, certain acts in pais, necessary to be performed before they were allowed to go into operation ; but they went into operation, and there is no existing evidence that in all, or in. any of these cases,'all the prerequisite acts-were performed. Those who organized the banks died, and the stock descended to their children. Persons who knew nothing of its organization, but merely knew that the bank was openly and publicly in operation, under a charter, bought and paid their money for the stock; men who wanted money, borrowed it, and gave their notes for its repayment; officers were chosen for these banks, and took charge of their funds. Now, in this state of things, where, millions upon millions are'involved in the legality of these institutions, it is ascertained that some requisite of the act incorporating them has not been complied with. The debtors who have borrowed their money determine not to pay; the presidents who have taken hold, of the bapks seize upon the funds in the vaults, and hand them over to their friends; and Ihey all with one voice answer — the promissor to an action on his note, the officers of the bank and their friends, to an action of trespass or assumpsit, for the cash, or to trover, or even to a bill in Chancery for the assets.. They answer either to the bank itself, or its assignees, who sue in behalf of its, creditors, you cannot sustain your action, for you had not commissioners enough by one who took your subscriptions; you lacked ten dollars of having paid in fifteen per cent, in gold and silver on your capital stock, before you issued'..your notes; you thought you had enough, but I happen to know that you counted French crowns at $1.10 when they were worth but $1.07. This is our plea in bar to your recovery, and for me, who am in Chancery, this is my equitable defence.
    The system of law must be very imperfect which would endure a defence like this; and ours is not chargeable with such imperfection. As I have already said, these questions are all between the sovereign and the corporation only, and that upon a direct issue. No one has a right to raise them collaterally. A corporation, when it brings suit, must, it is .true, show that it is a corporation; and in England and New York, and perhaps some of the other States, it must show it upon the general issue pleaded, and where that is the rule, nul tiel corporation is a bad plea, as amounting to’ the general issue.
    But the act of incorporation and user under it, is all the proof necessary to sustain either issue. Bank of St. Charles v. Barnales, 1 Car & Payne, 569; Utica Insurance Company v. Tillman. 1 Wend. 555 ; Utica Insurance Company v. Badger and others, 3 Wend. 296; see same volume, 301; Bank of Michigan v. Williams, 5 Wend. 478, V. P. 490; Williams v. Bank of Michigan, 7 Wend. 549. 1
    And proof on the other side of a defect or omission in the steps necessary to carry the charter into effect, does not avail. It must be avoided, if at all, on .a scire facias or quo warranto issued by order of the sovereign. Chester Glass Company v. Dewey, 16 Mass. Rep. 101; Commonwealth v. Union Insurance Company, 5 Mass. Rep. 230 ; Centre Road Company v. McConoly, 16 Serg. and Rawle, 144; Hughs v. Bank of Somerset, 5 Lit. 45.
    If it be contended, as I presume it will not, that, this charter was void for nonuser, I would answer, that no such defence is set up in the answer, and if it were, it could not prevail The act of incorporation contemplates a judgment to declare such forfeiture before it is effectual. Section 5, “ shall not be adjudged to be forfeited for nonuser, &c.” See, also, the mode of adjudication provided by the act of February 23, 1816, section 44, adopted in this charter; and see, to this point, 1 Bl. Com. 485; 2 Kent Com. sec. 33, p. 51; Trevitt v. Taylor, 9 Cr. 51; Dartmouth College v. Woodward, 4 Wheat. 663; Society, &fc. v. New Haven, 8 Wheat. 483; Rex v. Armory, 2 Tenn. Rep. 515, 528; 1 Gill and Johns. 1; 2 Blackf. 367; 8 Ohio Rep. 552; Shee v. Bloon, 5 Johns. Ch. Rep. 377.
    And we contend on our part, that if these principles of law do not enable us to sustain our action, as against third persons wholly unconnected with the corporation, the defendant, Seymour G. Renick, is estopped from denying that it was a corporation. In other words, a court of equity will not suffer him to make such defence against his own solemn and public acts, as President of such bank, and that Felix W. Renick, holding through and under him, in privity with him, is also estopped.
    And we claim also, that the proceedings in chancery under which the receivers derived title, and the verdict of the jury, in the case involving the very question of corporation or not, is equivalent to a judgment in rem, and concludes the question.
    & Brush and N. H. Swayne, for Felix W. Renick, one of the Defendants.
    The defendant, Felix W. Renick, relies upon two grounds of defence —
    First: That there never was such a corporation in existence as is assumed by the complainants’ bill.
    Second: If there were such a corporation, that it had no right, legal or equitable, to the fund in controversy.
    First: As to the first proposition —
    The answer makes the issue of nul tiel corporation. The burden of proof rests upon the complainants.

      The legal provisions and the facts upon ■ which this question arises, are as follows :
    On the 14th of January, 1818, the Legislature passed “An act to incorporate the stockholders of the Bank of Circleville 16 Ohio Laws, 70. It provides:
    “ Sec. 2. Be it further enacted, that the capital stock of said ‘ bank shall consist of three hundred thousand dollars, (money ‘ of the United States,) to be divided into six thousand shares, ‘ of fifty dollars each, and the subscriptions towards constitu- ‘ ting said bank shall be opened at Circleville, and at such other ‘ places, and at such other time or times as the commissioners c may direct, under the superintendence of Henry Nevill, John ‘ Ely, John Black, Daniel Ludwig, David Kinnear, Peter Ap1 pie, John Burr, Daniel Turney, Jacob Shoemaker, Samuel c Lybrand, Jonathan Renick and Joseph Hedges, who are here- ‘ by constituted and appointed commissioners, and they or a ‘ majority of them, are hereby authorized and empowered to ‘ keep open the said subscriptions until three thousand shares ‘ of the aforesaid bank are subscribed for, and until directors ‘ are duly elected and qualified.
    “ Sec. 3. Be it further enacted, that so soon as three thousand ‘ shares of said bank are subscribed for and fifteen per centum ‘ paid on each share, said commissioners shall immediately give ‘ four weeks’ notice of the time and place of electing directors, ‘ in the manner provided for giving notice of the payment of ‘ installments by the eighth section of the act to incorporate ‘ certain banks therein named, and to extend the charters of ‘ existing incorporated banks — and the persons who shall then ‘ be chosen, shall forthwith commence the operation of said ‘ bank, so far as may be necessary in the appointment of the ‘ other officers of the bank, and to direct such further install-e ment or installments to be paid, as the interest and advance- ‘ ment of the bank may require; and all payments on shares, ‘ previous to said bank going into full operation, shall be made ‘ the one-half in gold or silver and the other half in bills of the * Bank of the United States or some of its branches, or. in spe- * cie, at the option of the stockholders.
    “ Sec. 4. Be it further enacted, that so soon as fifteen per £ centum on three thousand shares of the capital stock of said ‘ bank is actually paid in, it shall be the duty of the directors ‘ to give notice to the Governor of the State, that the said bank ‘ is ready to commence full operations — and the Governor, ‘ on the receipt of such notice, shall forthwith appoint some ‘ suitable person, not being a stockholder in said bank, to ex- ‘ amine its books and vaults, and if, bn examination, it shall £ appear to the satisfaction of the Governor, that the provisions ‘ of the third section of this act have been complied with, it ‘ shall be the duty of the Governor to give public notice that £ said Bank of Circleville has complied with the provisions ‘ of this section, and is thereby authorized to go into opera- ‘ tion, and it is hereby authorized accordingly: but in case ‘ said bank shall commence issuing bills or notes without first e having complied with the provisions of this section, the char- £ ter hereby granted, and the privileges given, shall cease, de- £ termine and be of no effect, and the stockholders of said bank ‘ shall be liable for the debts contracted, as though this act had £ never been passed.
    ££ Sec. 5. And be it further enacted, that this act of incor- £ poration, and the charter hereby granted to the Bank of Cir- £ cleville, shall not'be adjudged to be forfeited for any nonuser ‘ whatsoever, at any time before the 1st day of January, 1820.”
    On the 16th of August, 1839, Lybrand, Renick, Barr and Shoemaker, (four of the commissioners named in the act,) opened books, at Circleville, for the subscription of stock. Lybrand acted as chairman and E. B. Olds as secretary. Stock was subscribed to the amount of-. Subsequently, Olds gave up the subscription book to George House, who, with others, made further subscriptions to a large amount,££ not under the direction of the commissioners.”
    On the 6th of April, 1840, E. B. Olds and P. N. White examined the books and vault of the bank, and found that three thousand shaves of stock had been subscribed, and that there was, in the vatilt of the bank $23,000 ini gold and silver.’ Olds apd White, at .the time, were not stockholders.
    . No person was appointed by the Governor to examine the books and' vault of-the bank, ancl no 'public notice was given by him according to the prevision’s, of the. fourth section of the charter.
    .' We hold that these proceedings — not; being in conformity to the charter — are a nullity, and that the omission stated is fatal. ‘ , '
    1. ' The charter names twelve ..commissioners,' and “they or • a majority of’ them,” were required, to act. A smaller number could do nothing. They were clothed with no power or authority. whatsoever. The Legislature -confided in the judgment and integrity of the majority, and was specific in requiring the action of. at least that number. If the law had' not expressly ■'authorized a smaller number than the whole-'to perform the duties designated, it would have been,' necessary that all should have been present and acting, though the concurrence of a majority in what was done would have been sufficient. See Young V. Buckingham'et ah, 5 Ohio Rep. 489, and *the authorities there cited.
    The1 four commissioners who opéned the books, having no authority to act, their action was whplly void.
    .‘/Adhere an.act, prescribed by law, is .done by persons who -have no'authority to do-it,- it' is ndt voidable,- but void.” See lOBac. Áb. (Amer. ed.) 374; 3'.Inst. 231.
    . The subscription of stock under such circumstances — as respects the charter and the existence of a corporation under it — is as if it had not been made.
    2. It appears, by the certificate of Olds and ,White, (which it is agreed shall go in evidence,) that $23,000 were in the vault, but it does not appear that a dollar was, or was pretended to 'have been paid in on the stock subscribed. Indeed, it seems .to be' admitted, in the argument of the complainants’ counsel, that the whole proceeding was colorable, merely,' and fraudulent.
    3. The counting of the specie by Olds and White, was unauthorized and of no effect.
    it is not pretended, that either of them had any authority from the Governor, or that they reported to him. No one else, under the charter, could give such authority. The acts of these persons can have no more effect than if they had been done by any other mere, strangers for their amusement or the gratification of an idle curiosity.
    4. Until public notice was given by the Governor, the bank could not go into operation; nor do any act beyond the initiatory steps necessary to prepare it for "corporate existence. The 4th section of the act provided, that upon a given state of facts, it should be “the duty of.'the Governor to give public 4 notice that the Bank of Circleville has complied with the prb4 visions of this section, and is thereby Authorized to go 4 into operation, and it is hereby : authorized, accordingly.”We think it cléar, 'that until this notice was" given, the bank could have no authority whatsoever to.go into operation. The notice was necessary to put life into it and give it a legal ’existence. Without the notice, it could be, at most, but in an inchoate and embryo state. If it , went into operation without such notice being given, its conduct was not under the law, but against the law.' It can claim no rights under enactments which it has violated and set at defiance. It has fulfilled none of the terms which its creator- prescribed as conditions inevitably necessary to its existence. ' . -
    The clause in regard to issuing notes does not militate against this view of the subject. The Legislature seems -to have had two things distinctly in view, and made two distinct provisions accordingly:— . ; •
    ' 1. That the corporation could not exist at all, until certain conditions precedent were fulfilled. ■ . .
    2. If bank notes were issued before those conditions were complied with, that it never should exist. ' . .

      In such case the charter became ipso facto — wholly and forever void. A forfeiture at once ensued as the penalty of the transgression. Whatever may be thought of the other points relied upon, we think the giving of notice by the Governor was indispensable to the existence of the corporation.
    There is a wide distinction between the class of cases where a title is to vest upon the performance of a condition precedent, and those where an existing title is to bo divested, upon a failure to perform a subsequent condition.
    This distinction runs through the law of corporations, as well as that of contracts and devises.
    In respect of both the latter, the condition precedent must be performed, or the title cannot vest. Nothing will excuse performance. Equity cannot relieve. The principle of .compensation does not apply; Wells v. Smith, 2 Ed. Ch. Rep. 86; Scott v. Tyler, 2 Bro. C. C. 431; 1 S. & S. 239 ; 4 Kent’s Com. 125. In regard to corporations, the law is equally well settled.
    In Angel and Ames on Corporations, 502, it is said that, in England, and in some of the United States, the plea of nul tie! corporation is held to be bad on special demurrer, as amounting to the general issue. “ If, however, such plea be answered, £ the replication must set forth specially how the plaintiffs are ‘ a corporation, if the incorporating act requires certain things £ to be done before the plaintiffs can become a corporation.”
    In the Bank of Auburn v. Aiken and Werd, 18 Johns. Rep. 137, the Court say: “The replication was bad; the £ plaintiffs ought to have replied specially, and shown how they ‘ were a corporation; for the act by which they were incorpo- £ rated requires certain things to be done before the plaintiffs £ could become a corporation.”
    “ Where a corporation is created by a statute which requires £ certain acts to be done before it can be considered in esse, £ such acts must be shown to have been done, to establish the £ existence of the corporation. This rule does not apply to a £ corporation which is declared to be such by its very act of ‘ incorporation, and which does not require any acts to be per- ‘ formed to give effect to its charter.” Fire Dep’t of New York v. Kip, 10 Wend. 268.
    The authorities referred to by the complainants’ counsel will be found, upon examination, not to conflict with the views and authorities upon which we rely.
   Wood, C. J.

The important question which first demands the consideration of the Court, is one exclusively of fact, and that is, whether the $4,000 advanced to Larimore by Seymour G. Renick, in May, 1841, was in behalf of the hank, and for its benefit, or a loan of his own funds, on his own private or individual account. If the money was advanced for the bank, Seymour G. Renick had no right to mould the transaction into one of a private nature of his own; and as the claim was a mere chose in action, not negotiable, the bank, by.its Receivers, may pursue it into the hands of a bona fide assignee without notice. If collected by the assignee, the money should be refunded ; if not, its collection should be enjoined, and Larimore decreed to pay directly to the complainants, for the benefit of the institution, that the avails of the judgment may pro tanto discharge the liabilities of the institution.

The allegations of the bill, and the answer of Seymour G. Renick, are directly at issue on the main point, and have, consequently, thrown upon us the necessity of a careful examination of the depositions on file. From them, much curious history has been elicited as to the manner in which this slumbering corporation was revived, but which is irrelevant to the present inquiry. It is certain, however, that Seymour G. Renick took possession of the bank, in February, 1841, as President, owner of a majority of the stock, and, therefore, the controlling director. He was looked upon as the financier of the institution, and was, in fact, the bank itself, as is unequivocally established by the proofs in the case.

His first transaction with Larimore, of which we have any evidence, was on the 17th of May, 1841. He then checked on the bank, in favor of Larimore, for $2,500. This check was charged'to Renick, find .the money, in The bills of the bank, to Larimore, to exchange for currency, and- the currency to be delivered to the bank. Seven days afterwards, Larimore sent to thé bank $2,750, in bills of other banks. This amount was credited to Renick. The depositions of McCulloch and Doney .prove that, when this $2,750 yvas transmitted to the bank, it was accompanied-with a letter from Seymoilr-G. Renick, inclosing his check for $4,000. The letter \yas dated the 22d of May, and'the check, inclosed in it, the 17th of June, and not charged to him on the .books of the bank until that date, though paid;,- as the cashier testifies he believes, some time before. ' The cashier arid Doney both swear, they understood' this money was to be exchanged for the benefit of the, bank. This evidence is corroborated by the fact, that Larimore, after-. wards, paid to the bank $2,000 in Chillicothe paper, for which he had exchanged a like amount of, this .$4,000 of the paper of the Bank of Circleville.. It is true, in- the settlement between. Renick and the bank, in December,-1841, he gave his note for. the money advanced- to, and unpaid by Larimore. But the bank-was, at this time, insolvent,, and Renick had previously become so; and, counsel very properly infer, that he then deemed ,it. more(.convenient to his condition, that Larimore should stand as'his creditor than the bank:' the', former was able to1 pay — the latter could not. The,,depositions^of both Seymour G. Renick and Larimore have been taken, but they are; as directly in conflict as the bill and the answer ;- but laying Larimore’-s deposition aside, ■ as incompetent from interest, it does riot appear that any. note or memorandum was taken by. Renicli for the money advanced to Larimore. On- the contrary, it. is- sufficiently evident there was not.-, This fact is only to be accounted for on the ground, that the advance was not a loan, but thai the transaction was exclusively for the interest of the bank, and so considered at the time. No man lends a large sum of money, for months, preserving, no written evidence of the debt, or, at least, it is not the ordinary mode iri which a banker transacts his business. On the other hand, where large sums are to. be .transmitted, or paper exchanged, for the benefit of another exclusively, nothing is more common; apd we are therefore 'led irresistibly to the belief, from all the above facts, that this advance was not a loan, as set up in the answer. We arrive at this conclusion', even regarding the answer- as strictly responsive'to the bill, because, to the substantial facts, there is far more testimony than the rule in equity requires, in such-cases, to establish it., '

Felix W. Renick appears, hówéver, to be sorely troubled, for the reason, that this- bank had not been legally- organized. He defends on the ground, that a majority of the commissioners named in th'e charter did not attend to open the books .for subscription to the capital stock. The evidence is, that four out of the seven in esse, were present. He claims again, in substance, that the charter was forfeited. In the absénce of express provision, the forfeiture of the charter of a corporation can only be established by judicial action, and cannot be collaterally inquired ipto. He defends, also, japón the ground, that no commissioner was appointed by the Governor, as th'e charter required, to examine into the condition of the bank, count the funds in its vaults and report thereon to the Governor, 'who was to issue his proclamation; giving notice that the law was complied with, and without this, contends the bank had no.legal existence. The evidence -is, the amount of capitál- stó'ck required by law, was subscribed ;■ the per centum', called for thereon', by the 'charter, before commencing business, was in the vault of the bank, in silver and gold, and application made for the appointment of á -commissioner, which appears to have been disregarded. The' bank then had done all ón its part, either truly or falsely,- it had performed every obligation demanded and necessary to its complete organization. That all this Was not done in.- good faith, we aré not judicially informed. Under such circumstances, we are by no' means prepared - to say, eer-? tainly not, as against those who admit its existence by the receipt of its funds and in transacting business with it as a corporation, that they can deny it has acquired rights, as such, and defeat its honest claims, for any act of omission of duty by the executive, if it be such.

The cases referred to, as authorities, by this defendant’s counsel, do not seem to us to apply. They are cases where the plea of nul tiel corporation has been sustained on the ground either of some condition precedent to the organization, to be performed by the corporation and omitted to be done, or where a forfeiture has been established by judicial sanction.

Decree for Complainants.


source: Caselaw Access Project

author:
Birchard, J.
      Hitchcock, J.,

license: Public Domain

text:
    Miner Spicer, for the use of Frederick A. Nash, vs. John Giselman and others.
    It is error to sustain a general demurrer to an entire declaration, containing one good count. ‘
    A joint action, under the 43d section of the act of 1831, “ defining the duties of executors and administrators," (29 Ohio Laws, 229,) cannot be sustained against several heirs or devisees, where there is no joint contract, either express or implied.
    This is a Writ or Error directed to the Court of Common Pleas of Stark County.
    The original action was in assumpsit. The declaration contained three counts. The first count averred, that on the 29th day of December, 1835, Frederick Giselman, deceased, executed to the plaintiff his promissory note for $46, payable January 1, 1839, with interest; that said Giselman, on the first of September, 1839, died, without having paid the note; that on the 9th of September, 1839, administration upon his estate was granted to John Giselman, one of the defendants, by the Court of Common Pleas of Stark County; that on the 6th of September, 1842, said John Giselman filed his final account in the office of the clerk of said court; that at the April term thereof, 1843, he, in due form of law, settled with said court, when there was found in his hands, as administrator, the sum of $469.51, which he was ordered to distribute according to law. It further averred, that after the granting of letters of administration, and before the filing of said final account, the said note was not presented to the said administrator for allowance and payment, and, therefore, was not paid, nor any part thereof; that more than five years had elapsed since the death of the intestate; that the defendants were the heir's at law and distributees of the intestate, and having received assets of the estate of said Frederick, had, by force of the statute in such case made and provided, become liable to pay the plaintiff the amount of money in the note specified, according to the tenor and effect thereof, and being so liable, promised, &c.
    In Bank.
    Dec. Term, 1846.
    The second count was the same in substance as the first, and the third was the usual common count for money had and received, &c.

    The defendant demurred to the whole declaration, and the Court of Common Pleas sustained the demurrer and gave judgment for the defendants; to reverse which judgment, this writ of error was sued out.

      Hand Nash, and Z. Snow, for Plaintiff in Error.

      Belden &f Schaefer, for Defendants.
   Birchard, J.

This suit was instituted under the 43d section of the act of 1831, (3 Chase’s Stat. 1784,) and the question is, can a joint action be sustained against all of the defendants ? It is a general rule, that where there is no joint liability, there can be no joint action.

At common law, this action could not be prosecuted with effect. If it can be done under the statute, it must be because the statute will bear no other construction; for it is manifest that to make one of several heirs liable to an amount equal to an that had descended from his ancestor to a number óf heirs, simply because he had received a sniaH'portion of that anees-' tor’s estate, would be unjust. The proposition is one at which-the mind instinctively revolts. ' _ - .

In a case where a prudent child, after the, settlement of the, estate, takes asmall legacy, say of one hdndred .dollars, and the bulk of the estate is distributed to other- legatees, to a large-amount, who squander it, it would be.hard indeed if a-creditor, who has slept on his right for five years, could afterwards come into-Court with- a, debt sufficient to -sweép.'the-whole estate of. the decedent, and-make .the-prudent legatee’‘responsible for moneys which have bee'n-squandered by the'improvident, and over which he had no control, A-majority of .the Court held, that the Legislature never Intended stich a result;, and,-if. it were necessary, would, unhesitatingly declare that; .if they did intend it, they.,had-not- the capacity of Accomplishing such intention. . The .constitution of, the .State,=as well as- principles-of' natural justice, have interposed insurmountable obstacles.,

These several'; defendants, each in'his- own right, and in severalty, as- heir,'-took whateverwas paid to 'them' by tli'e ;administrador, on the settlement of their ancestor’s estate. Haying so taken,, they canñót be subjected to respond to-any-.creditor of the.’deceased ancestor,, in any form'of a’ction, to an amount beyond what each received.. The 43d section of the statute, by implication, makes that the. extent of the- liability.. But if. this form of action can be resorted to; and a' joint action -can be.máintained.against all the heirs of an estate, or all'the legatees of a- testator; a-joint judgment must bind’all, and each must become-subject to, the' entire payment... T hesitate not-to sav, that the doctrine which will produce'-such a. result is. so monstrous, that it is impossible tó suppose that it lurks' among the enactments of the statute.

Tt is. claimed that it is to be- found in these'words:" “But ■ Such heirs -or. devisees'shall remain liable to the full extent’of' c the assets, by .them received from the estafe of their ancestor-. 1 or devisor, for the payment of all claims.against.the'estate of--. £ such ancestor or devisor; and any writ which could .be brought £ and sustained against such ancestor or devisor, were he alive, ° . / '£ may be brought and sustained against such heirs and devisees, after, the executor or administrator of the ancestor or devisor shall' have made final settlement with the Court, until the asaseis so received by such heirs or devise'es shall be exhausted.”

The first and all important rule to be regarded in construing", a statute, is to have respect to its spirit rather than its letter. Manifestly the framer's of this section ,did not contemplate a violation of the plain rules-of natural justice.' They did not design to give to creditors the right to subject an heir, in any case, to an amount beyond the value ,of the (assets which that heir had received.. , The intent must be borne in mind in giving a construction to’their language; and if, literally ta^en that intent will be defeated, the words of the section must.be departed from., --We have before seen that a joint liability can. not arise from a separate receipt of property, and that a joint action cannot' be permitted when there1 is no joint liability; without subjecting the solvent to the payment of the debts of the improvidént, and that this, cannot be consistently with justice. The very right of the wholé matter would be., to subject each heir to the payment of the ancestor’s debts to the amount of the assets that may have come to his hands; This was. all that the statuté.'meant. Tins could be dope by a separate suit against each; and therefore separate suits; are the- only suits provided for. where there has been no joint reception of the assets. The demurrer was, therefore, well taken .to the first and second counts of'the declaration; and had it been limited to those counts,'there would have been no error,in sustaining it. .The third count is the usual common count for money had and received, &c. To this count the demurrer was not well taken. It furnished no defence. Assuming to answer the whole declaration, and being insufficient'as to a part, it should have been overruled. The Court of Common Pleas in not over- . ruling it erred, and for that error their judgment' must be .reversed, » . •

Hitchcock, J.,

dissenting. Although, I concur in the reversal of the judgment of . the Cpurt of Common Pleas, yet I am constrained to dissent from the opinion of a majority of the Court, so far as that opinion is applicable to the two first counts of the plaintiff’s declaration. These; counts are based upon two promissory notes executed by the- ancestor of the defendants to the plaintiff, which notes are specifically set forth. It is- further stated, that the defendants: are heirs;, that, as such, assets to an amount greater than the sum due on said notes, have come to their hands ;' that the notes were not presented to.the administrators; that the accounts of the administrators had been fully settled with the court, and- the balance remaining in their hands, after- the payment of claims, presented against the estate, have, been'distributed to the defendants, as-heirs, .whereby they became liable, &c.

Whether these'two counts are Sufficient,- depends upon the proper construction of the 43d section of the act-of March 12, 1831, defining' the duties of executors and administrators; (Ch. Stat. 1784;) t This section is as follows: “ Nothing in the pre- ‘ ceding Section contained, shall impair the personal liability of ‘ heirs or devisees for the payment of any claim, against the es- ‘. taté of their ancestor or devisor; but such heirs and devisees ‘- shall remain liable, to the full extent of the assets by them ’• received from the 'estate, of, the ancestor ,or devisor, for the ‘■.payment of all claims against the estate of such ancestor or ‘ devisor; and any suit, which could be brought or sustained ‘ against such ancestor or devisor, were he alive, may be brought ‘ and sustained against such heirs and devisees, after the execu- ‘ tors or administrators of the ancestor or de,visor shall have ' ‘ made final settlement with the court, until the assets so re- ‘ ceived by such heirs or devisees, shall be exhausted: Provided always, that such heirs. or devisees ■ may make any plea or ‘ defence to such suit, which their ancestor or devisor could ‘ make, were he alive and such suit instituted against him.”

.The object of this section.of the law is apparent, and requires no comment. The case now under considération is prosecuted pursuant to it, and it is admitted, .that the averments of the declaration are sufficient. The only objection made is, that .the suit'is a joint suit against Ull the heirs, whereas, , as is insisted, it should .have been a separate suit against one pf the heirs, or, rather, separate suits against each one of the heirs. A majority of the Court adopt this mode of reasoning, and hold such to be the meaning of the, statute. If such be the proper construction, I must confess that I do not well comprehend the force of language. “Any suit which would be brought and ‘ sustained against such ancestor or devisor, were he alive, may be brought-against such heirs - and devisees ,” Not against one of- the'heirs separately,,but-against “such heirs and devisees” collectively. Such' is the . language, and, to my mind, such is the evident intent and meaning of 'the-statute.

But it is objected to this construction, that, after the recovery of judgment, a creditor might enforce the collection of his whole claim, by execution against oné of. .the heirs.- If this be an objection, jt is equally valid as against -the policy of separate suits. In .such case, the whole claim might be collected in one suit and from one of the heirs. ' But in either case, there can be no doubt that all would be liable, to contribution, , •

It is, objected,, that in ordér to a joint liability in-contracts, there must be a joint, undertaking, and-that there.’is not, in the case before the Court,’ any such joint .undertaking. I do not controvert the principle-advanced, but-cannot perceive its applicability to this case... These defendants are not sued,in-their own right, on account of any undertaking or promise of their own, but they are sued in a representative’ capacity, as heirs. This liability does not depend upon their own personal, obligation, but Upon the. fact,, vyhéther they have received any thing by descent from their ancestor, who, during his lifetime, .was under a personal obligation to satisfy , this demand. ■Executors or administrators.represent the estate of their,testator or intestate, and if there is. more than one; all must be sued. . Under the law of 1831, after the executor or ádministrator shall have settled up with the court, he ceases to represent the estate, and the heirs become the representative, as much so as was the .executor or administrator before the settlement. And as it is necessary, where there are more than one éxecutor or administrator, that all should' be sued, so it is necessary, where there are more than,one heir, that ' all should be sued. But neither executor, administrator nor heir can be made liable beyond the amount of assets descended. » ',

Whether a, similar principle prevails in any of our sister Spates, I .do not know, but in England, a man may, by his bond, bind his heirs.as well'as himself; that is, if, upon the face of the bond, the heir is bound, he'will be held, after the death of his ancestor, to the extent that lands shall have descended to him. This is a well known principle of the common law. But it was found that debtprs', with a. view .to defeat their creditors, adopted the .practice of devising> their' lands. This practice induced the passage of the statute of 3 ¡& 4 W. & M., by which it is enacted,', that, as to specialty creditors; such devises shall be déemed .and held to be void; 3 Bacon’s Ab. 461. The statute' further provides, that such creditors may have an action against the heir and heirs and devisees jointly.

So far as I can learn, it was never doubted that the heirs of an obligor might be sued jointly, before the passage of the act of 3 & 4 W. & M., nqr has it been doubted since the enactment of that law, that heirs and devisees could be sued jointly.' That I am not mistaken in, this opinion is, to my mind, manifest from the English precedents. 2 Ch. Pl. 161; Clift. Ent. 243 ; Ibid. 19; Lill. Ent. 145, 529, 53; 2 Rich. C. P. 241; 5 Wentr. 374.

I can see no good reason why this practice, adopted in the English courts, should not be pursued in this State, under 'a statute which is, in a great degree, ánalagous to the lavy binding upon those courts. ' It was the practice adopted by the pleader in the case now under consideration, and, as it seems to me, is consistent with principle and precedents'/ I hold, that the Court of Common Pleas erred in, sustaining the demurrer to the two first counts in the declaration, and, that, for that reason, the judgment should be reversed.


author: Birchard, J.

text:
    In Bank.
    Dec. Term, 1846.

    Michael Morningstar and others vs. Leonard Selby and others.
    A Court of Chancery cannot entertain jurisdiction to set up and establish a lost or destroyed last will and testament.
    The jurisdiction is with the Courts of Common Pleas, or Probate Courts.
    This is a case in Chancery,- reserved in the County of Warren.
    The object of the bill, in this case, was to establish a spoliated will, alledged to have been made by John George Morning-star, deceased, who departed this life April 23, 1844. , The case is very voluminous, much testimony having been taken as to whether the deceased, in fact, made a will; if so, what were its provisions, and whether it was revoked, lost or destroyed; but as the Court, in deciding the case, only passed upon the question of jurisdiction, it is not deemed necessary to furnish an abstract.
    For the same reason, only so much of the arguments of counsel as relates to that question, are inserted.

      T. Ewing, for Complainants.
    I confine myself, in this case, to the question of jurisdiction, and contend —
    First: That a will, lost or destroyed, may be set up by the Court of Common Pleas on bill in chancery.
    1. It may be set up. It is not known to our system of jurisprudence, that a wrongdoer, by the spoliation of a paper, may destroy the title of another and vest his estate in himself. Our courts will not suffer a man to acquire property in the purse which he has got by robbery, or the horse which he has stolen; much less could it be suffered, that, by destroying the more legal evidence of title belonging to another, he should vest that title in himself; that, if he stole a will and destroyed it, he should thereby acquire title to the land passed by that will. In the case of larceny or robbery, the purse or the horse has, by the act, passed into the possession of the felon; he lacks only title. In case of the spoliated will, the spoliator has not one-half this meritorious interest; he has neither title nor possession, unless the law will give him them as a consequence of his act. If this were so, a will might be snatched from the hand of a witness while on the stand proving its execution — it might be burnt in the presence of the court, and thus transfer the title of land of the devisee to himself, as heir, and he might come in next day and set up his title in that very court. Probate of a will lost or destroyed, is taken by the Ecclesiastical Courts in England. See cases in Defendant’s Brief.
    I conclude, therefore, that a spoliated or lost will may be set up. The executors and devisees are not without a remedy.
    2. And it may be done in the Court of Common Pleas.
    ■ Constitution of Ohio, art. 3, sec. 5.-— “ The Court of Com- ‘ mon Pleas, in each county, shall have jurisdiction of all pro- ‘ bate and testamentary matters.” Not sole jurisdiction or all jurisdiction of such matters, but jurisdiction of all such matters. Here is a full grant of power to the Common Pleas of jurisdiction. One branch of that jurisdiction was to set up a lost will, and take and present proof of it. That power, then, was conferred upon the Court of Common Pleas. There is nothing here directing the mode of proceeding to be adopted by that Court, or giving or taking away an appeal to the Supreme Court.
    But the lost or spoliated will may be proved in the Common Pleas.
    3. It may be done by bill in -chancery. The first nineteen sections of the “ act relating to wills,” which provide for the probate, filing and registry of wills, suppose the will to be present in court, and it is not perceived that any provision is to be found therein for the probate of a lost or spoliated will; and the 33d section provides, “ that no will shall be effectual topase < real or personal estate, unless it shall have been duly admitted * to probate or record, as provided in this act.” Here lies the difficulty. Let us see if it is insuperable.
    Our Court has repeatedly holden, that the estate passes by the will on death of the testator, and that a suit brought by a devisee of a foreign will, before record, or of a domestic will before probate, can be sustained if there be registry or probate before trial or hearing of the cause, but it is not effectual until it has had this judicial sanction.
    This provision touches the legal character of the instrument and its effect in a court of law. ' It cannot apply to those cases where fraud or accident, which properly give jurisdiction to a court of equity, are concerned. The negative language is not nearly so strong as that in the 4th section of the Statute of Frauds. And I need not suggest to your Honors, what a multitude of cases are, by uniform construction, taken out of the provisions of that statute. The restriction in the 33d section of the act relating to wills, is analagous to the statute of frauds, and, like it, intended as a prevention, and, like that, it will not be so construed as to countenance or encourage fraud. Courts will not suffer the loss or destruction of a will to defeat the estate of the devisee, but they will require, to give effect to the will, some legal sanction, by the appropriate tribunal, equivaalent to probate in notoriety and solemnity. Every thing should be done as far as, under the circumstances, it may, in pursuance of the provisions of the statute. The Court of Common Pleas has jurisdiction of all probate and testamentary matters. It has, also, common law and chancery jurisdiction. It is the forum designated by the constitution, in which these proceedings should have their initiation. But what should be the form of proceedings ? That is the only question. The proper forum has been chosen ; now for the form of proceeding.
    The law has made no provision in the case of a lost or spoliated will. There is no “ plain, adequate and complete remedy at lawthe jurisdiction, therefore, belongs to the chancei7 s^e ^lat court.
    It is the better and the more convenient mode of procedure. The ordinary probate of a will is not a subject of contest — there are no parties before the court — the witnesses, therefore, few in number, and to a single point, (the execution of the will,) are examined in open court, and their testimony reduced to writing. But where the points in question become numerous, as in the case of a spoliated will, involving the inquiry not only of its due execution, but its destruction, its contents, and the fact whether it was destroyed by the testator, or with his consent, it would be inconvenient to make the court perform the office of a master in examining witnesses and taking down testimony. And besides, such a proceeding ought to be inter parties. The heir should have an opportunity to defend; and the decision ought to have the solemnity of a judgment or decree — it should settle the question between the parties. Such is not the case on application to admit to probate ; Chapman’s will, 6 Ohio Rep. 148; Hunter’s will, 6 Ohio Rep. 449; but such would be the effect of a proceeding in chancery.
    The Legislature has referred contested wills to the chancery side of the court. In case of contest, the testamentary matter is settled there. The will is destroyed, or made valid — its probate annulled or confirmed, according to the decree of that court on issue found. Why, then, in a case of inevitable' contest, of contest ab initio, where the will cannot be produced and proved agreeably to the statute, why resort to the semblance of a probate where it does not tend to protect the rights or guard the interests of any one, and where it will inevitably be a vain and idle procedure ? The question, devisavit vel non, must be asked and answered in chancery. Why, then, should the same tribunal, the true forum for the determination of all the questions which arise, commence and carry on its investigation in an irregular form, when its action in such form could have no other effect than shifting the burden of proof on the final trial of the issue between the parties ? It appears to me that the proceeding should be in chancery, and that the tribunal charged with jurisdiction of the case, has chosen the most appropriate form of procedure.
    We also insist that the Supreme Court has jurisdiction on an appeal from a decree of the Common Pleas, setting up or refusing to set up such will. If the Supreme Court have no jurisdiction of the subject matter, then the appeal must be dismissed — but not the bill. To this we make .no particular objection, but at the same time suppose that there is no defect of jurisdiction.
    The Common Pleas has jurisdiction of all probate and testamentary matters. That does not mean sole or exclusive jurisdiction. The 1st section of the 3d article of the Constitution provides that, “ the Supreme Court shall have original * and appellate jurisdiction in such cases as shall be directed by ‘ law;” and the law (Swan’s Stat. p. 713, sec. 52,) provides that a party may “ appeal from any final sentence or decree pronounced and made in any cause or suit in chancery.” This provision embraces the present case.

      J. R. Sivan, J. W. Andrews, J. Milton Williams, and Bebb &f Campbell, for the Defendants. ,;
    All original proceedings of a judicial kind, relating to probate and testamentary matters, the proof, establishment, recording, &c., of wills, belong exclusively to the Court of Common Pleas, and are regulated by statute.
    Upon this subject, little light can be gathered from English decisions; for the only Court of Probate in England is the Ecclesiastical Court, and that court has no jurisdiction over a will devising real estate. Its jurisdiction is confined exclusively to wills, or such parts of wills as dispose of goods and chattels. As to real estate, devised in the same, or any other will, its probate is no evidence of the due execution of the will.— Hence, in England, when a will is offered in evidence, in an action at law, to prove a devise of lands, the will must be Proved in open court to the jury, before it will be received; and probate thereof duly authenticated, from the Ecclesiastical Court,- will avail nothing. There is, then, no court of probate in England for wills, devising real estate; such wills are established, or defeated by an action of ejectment, or other action at law, in which the question of title is involved. If there have been a multiplicity of suits establishing the will at law, the English chancellor will entertain a bill to quiet the title, after ordering an issue at law, &c. It will be perceived, that the mixed and confused jurisdiction of the Ecclesiastical courts, courts of law and courts of chancery, in England, in regard to probate and testamentary matters, can have but little, if any thing, to do with our system, as established by the constitution and statutes of Ohio. We are unwilling, however, to let the law — the English law, as quoted by the counsel on the other side, from Story’s Equity Jurisprudence — pass, without, at the same time, making some farther quotations from the same work.
    2 Story’s Equity Jurisp. 380, sec. 1445: “ It has already c been stated, in another part of these commentaries, that the c proper jurisdiction, as to the validity of last wills and testac ments, belongs to other tribunals. Where a will respects ‘ personal estate, it belongs to the Ecclesiastical Court; and ‘ where it respects real estate, it belongs to the courts of com- { mon law. But, although this is regularly true, and courts of c equity will not, in an adversary suit, entertain jurisdiction to e determine the validity of a will, yet, whenever a will comes * before them, as an incident in a cause, they necessarily enter-c tain jurisdiction, to some extent, over the subject; and if the c validity of the will is admitted by the parties, or if it is other- ‘ wise established, by the proper modes of proof, they act upon ‘ it to the fullest extent. If either of the parties should after-c wards bring a new suit, to contest the determination of the e validity of the will so proved, the court of equity, which has ‘ so determined it, would certainly grant a perpetual injunc» ‘ tion.”

      Story’s Equity Jurisp. 832, note to sec. 1447: “ The heirs c at law cannot come into equity for the purpose of having an ‘ issue, to try the validity of the will at law, unless it is by ‘ consent, for he may bring ejectment. But, if there be any ‘ impediment to the proper trial of the merits on such an eject- ‘ ment, he may come into equity to have them removed.— ‘ Courts of equity do not seem to have any direct, or original ‘ authority, to establish the validity of a will of real estate per ‘ se, but only as incidental to some other object; as carrying ‘ into effect a trust, marshaling assets, &c. For, if no obsta- ‘ cles intervene, the devisee may sue at law, if he has the legal ‘ estate. If, after repeated trials at law in such a case, the will ‘ is established by a satisfactory verdict and judgment, courts ‘ of equity will then interfere, and grant a perpetual injunction ‘ against the heir, to prevent endless litigation, as it does in 1 other cases.”
    This Court, after reading the above, will probably have a clear view of the jurisdiction of a Court of Chancery in England, to try the validity, &c., of wills; but we will, notwithstanding, submit some further English law.

      Pemberton v. Pemberton, 13 Vesey, jr. 290, was an issue out of chancery, devisavit vel non, and the principal question was this: whether the altération, &c., of one of the duplicates of a will, revoked both ? and, after two trials at law, a third was asked. A third trial at law was granted by Lord Eldon, who says: “ My opinion is hot formed upon the supposition, ‘ that the verdict is wrong, or right; nor does it interfere with ‘ that conclusion, which, upon subjects of this nature, I take to ‘ be entirely with the jury; giving due attention to the.topics ‘ of law, properly stated to them by the judge. That is par- ‘ ticularly proper, in a case where a court of equity is dealing ‘ with a will; as to w'hich, the administration is very different ‘ from that in other cases, upon most of which this Court has ‘ jurisdiction, to determine upon influence of fact, as well as ‘ doctrine of equity. But the authority to declare what is, and ‘ what is not a man’s last will, is denied to this Court.”

      The syllabus of the reporter in this case, is thus: “ A court £ of equity has no jurisdiction to declare what is, or is not, a ‘ man’s last will.”
    <£ There is one case in which fraud cannot be relieved against, ‘ in equity, though a discovery may be sought; that is the case ‘ of fraud in obtaining a will, which, if of real estate, must be £ investigated in a court of common law, and, if of personal ‘ estate, in the Ecclesiastical Court.” 2 Daniels’ Prac. 29.
    If the heir has stolen a will, or any one has stolen a deed —■ for spoliation means nothing less than robbery and pillage — courts of equity, in England, will compel the redelivery of the will or deed, and enforce the most stringént decree possible, as to the property, until the instrument is delivered up. But they do not ££ prove, confirm and record it,” as is prayed in this case. A stolen will stands upon the same footing as a stolen deed.
    But we claim that, under the constitution and laws of Ohio, probate and testamentary matters come within the exclusive jurisdiction of the Court of Common Pleas.
    ££ The Court of Common Pleas, in each county, shall have jurisdiction of all probate and testamentary matters.” Const, of Ohio, Art. in, sec. 5.
    The statute relating to wills, (Swan’s Stat. 992,) after pointing out the mode of proceeding in the Court of Common Pleas, by which wills may be proved, and under what evidence they may be admitted to probate, and providing for their being recorded, enacts as follows:
    t! No will shall be effectual to pass real or personal estate, £ unless it shall have been duly admitted to probate or record, £ as provided in this act.”
    Now, if a bill of chancery is filed, to prove and establish a will, or an issue out of chancery is ordered, to try the validity of a will, and a decree made on the verdict, such suit and proceeding is a testamentary matter. What, then, becomes of the constitution? Such decree makes the will effectual to pass real estate; but where is the admission to probate or record, according to the provisions of the statute relating to wills ?

      But it may be claimed that, if a will be lost, a court of probate has no jurisdiction. It would be a sufficient answer to this to say, that the subject matter is still testamentary, and the constitution and statutes make no exception, in case of a lost will.
    The English Ecclesiastical Court cannot be supposed to have more enlarged powers than our Court of Common Pleas. The Ecclesiastical Reports are full of cases in which probate of a lost will is granted, “ as contained in the depositions of the witnesses.”
    “ And, at this day, it is quite clear that the contents of a ‘ testamentary instrument may be thus established, though the ‘ instrument itself cannot be produced, upon satisfactory proof c being given that the instrument was duly made by the testa- ‘ tor, and was not revoked by him; for example, either by ‘ showing that the instrument existed after the testator’s death, ‘ or that it was destroyed in his lifetime, without his privity or ‘ consent.” 1 Williams’Executors, 209.
    So, in Massachusetts, Davis et al. v. Sigournoy, 8 Metcalf, 487. The syllabus is thus: “Although an unrevoked will, { which is lost or destroyed, may be admitted to probate, upon ‘ parol proof of its contents, yet it will not be so admitted, { unless the evidence of its whole contents is most clear and ‘ satisfactory.” The case was an appeal from the decree of the judge of probate, allowing the will, &c.
    “A codicil, fraudulently destroyed, was established upon parol proof of its contents.” Clark et al. v. Wright, 3 Pick. 67, syllabus.
    So, in Alabama, Apperson v. Cottrell, 3 Port. 51. Held: “ If a will be wholly or partially canceled or destroyed by the ‘ testator, while of unsound mind, probate will be granted of it, ‘ as it existed in its integral state, that being ascertained.”
    So, in Kentucky; Happry’s will, 4 Bibb, 553: “ Probate ‘ may be granted of a copy of a will when the original cannot ( be produced.”

      So, in Graham, v. O’Fallen, 3 Miss. 507: “ A will being ‘ lost or destroyed, probate may be granted upon a copy; also, c where there is no copy, the contents of the will may be pro- ‘ ven, and the will established by the subscribing witnesses, or ‘ others who have read it.”
    A Court of Probate generally hears witnesses, face to face, and the testimony is reduced to writing, under the eye of the Court. A Court of Chancery acts upon testimony without seeing the witnesses, and without knowing any thing about their oral statements, or their manner upon the stand.- We therefore suppose the probate court quite as safe a tribunal to decide upon a lost or destroyed will as a Court of Chancery.
    But it may be claimed, that this is not a case in which a will has been lost, but a case for relief, where there has been pillage and robbery of the will by the defendants. This cannot, we suppose, change the question as to jurisdiction. No such distinction, between spoliation and a lost will, is made by the constitution or laws of Ohio, nor should the jurisdiction of the courts depend upon such a distinction.
    In the case of Hunter’s will, 6 Ohio Rep. 499; Ewing et al. v. Hollister, 7 Ohio Rep., part ir, 140; and Lessee of Swazey’s Heirs v. Blackman et al., 8 Ohio Rep. 5, the reasoning of the Court is founded upon the recognition of exclusive jurisdiction being vested by the constitution, &/c., in the Court of Common Pleas. So, the statute organizing the courts, and defining the limits and extent of their respective jurisdiction, gives expressly to the Court of Common Pleas judicial power to “ take the proof of wills, and to hear and determine all causes of a probate and testamentary nature.” Swan’s Stat. 222, sec. 4.
    It may, we think, be said of the experience of the bench and bar of Ohio, as it was by the Supreme Court of Massachusetts, in 1 Pick. 549, of the bench and bar of the latter State, “ that ‘ no instance had occurred of a will being attempted to be pro- ‘ ved otherwise than by a decree of the probate court.”

      Probate in the Common Pleas being conclusive, (Bailey v. Bailey, 8 Ohio Rep. 239,) suppose the Court entertain jurisdiction in this case, and dismiss the bill by decree on the merits, and the will of Morningstar is afterwards offered for probate, will the decree of this Court oust the Court of Probate of jurisdiction? Does the pendency of this bill prevent the Court of Probate from now acting in the premises ?
    Upon the questions thus presented, we refer the Court to the case of Gaines et ux. v. Chew et al., 2 Howard’s U. S. Rep; 619, where the subject is very fully discussed.

      Smith Probasco, in reply.
    The first point made by defendants’ counsel, is, that this Court has' no jurisdiction of the cause. Without waiving the objection as to the time at which this exception is taken, or the manner of making it, we will proceed at once to consider the argument on that point.
    This assumption rests upon the ground, that the whole jurisdiction in probate and testamentary matters is, by the constitution and laws of Ohio, vested in the Court of Common Pleas, sitting as a Court of Probate. To sustain this view, the third article, 5th section of the constitution is referred to, which declares that the “ Court of Common Pleas shall have jurisdiction of all probate and testamentary matters.” Defendants’ counsel seem to have adopted an extraordinary mode of construing the constitution, when they exclude every other part of the instrument. Leaving out the great leading rule of construction, which is to look to the whole instrument, they have, doubtless, been led into this error. The second and third sections confer upon the Courts of Common Pleas and Supreme Court, chancery powers. What were these powers at the time of the adoption of the constitution? One of them clearly was, to establish spoliated, suppressed and destroyed wills. See 3 At~ kyns, 360; 1 Bay S. C.- Rep. 464 ; Legare v. Ashe, 6 Wend. 173 ; 7 Dana, 90; 11 Wendell, 227; 2 Howard’s U. S. Rep. 619, and numerous other authorities.
    Another of these powers was, to compel an account and distribution of a decedent’s estate. These being matters of equitable cognizance, were never intended by the framers of the constitution to be taken from a Court of Chancery and settled exclusively upon the Court of Common Pleas, as a Court of Probate.
    The Common Pleas having chancery jurisdiction, cannot be divested of any portion of that power, unless by the use of expressions wholly inconsistent with the retention of that power. When the convention declared that the Court of Common Pleas should have chancery jurisdiction, it meant such jurisdiction as was ordinarily exercised by such courts. The fifth section is, therefore, to be construed with reference to this previously conferred power; and although the comprehensive term “ all ” is used, it can only mean, all powers not conferred upon other courts.
    This view of the constitution harmonizes its provisions.— Again, the 5th section declares that the common pleas shall have jurisdiction in matters of probate; but, upon the mode of its exercise, the section is silent. Had the Legislature failed to direct the mode, that Court, from its inherent power, might have prescribed the mode. It might have directed, in all cases where a will was offered for probate, that it should be by proceeding in chancery, or any other convenient mode. If, therefore, the power of the Common Pleas to admit all wdlls to probate, is exclusive, and, when the Legislature fails to direct, may adopt its own mode, we submit to the Court, whether the decree of the Common Pleas, admitting that will to probate, is not binding upon all the parties, and whether the appeal from that decree, to this Court, should not be dismissed ? This conclusion seems to follow legitimately, from the premises assumed by the counsel on the other side.
    That this Court has not entertained such an opinion, in regard to the exclusion of ail other than probate courts from the determination of testamentary matters, is manifest. If they agreed, in this respect, with defendants’ counsel, we ask, upon what principle did this Court entertain the case of Cram et al. v. Green, 6 Ohio Rep. 4*29 ? The account and distribution, by executors, of a decedent’s estate, is, without question, a testamentary matter. Being such, the probate court, according to the argument of defendants’ counsel, had exclusive cognizance of the matter, and no other tribunal could entertain it. That very numerous class of cases, growing out of the fiduciary relations of executors and administrators, have all been improperly decided in equity, if the probate court is an exclusive tribunal. Having attempted to show that the jurisdiction of the probate court is not exclusive, we turn to the statutes, to prove that it has not been so considered in our legislative history. Thus, we have always had a statute providing for an issue of devisavit vel non out of chancery. If the courts of equity are forbidden to entertain jurisdiction of probate matters, how could they try questions of will, or no will, by a jury ? and how could the Supreme Court, on appeal, try the same question in the same manner?
    ■ Again,— if no other than a court strictly probate can decide questions of this kind, how did it happen that the learned gentleman, who drew up our statute of wills, and the Legislature which enacted it, should insert a provision that, if “ there are ‘ not a sufficient number of disinterested Judges of the Court ‘ of Common Pleas to determine upon the probate of a will, or £ to determine any other matter, touching testamentary matters, {intestate’s estates, or the settlement of decedent’s estates,” the Court shall certify the matter up to the Supreme Court, who “are directed to hear and determine the matter,” and make orders in the premises ? See Statute of Wills, (Swan’s Stat.) 994-5, sections 17, 22 to 26, inclusive.
    These provisions are legislative constructions of the constitution. The Court will sustain them, unless they palpably infringe the provisions of that instrument. The mode of contesting a will, and the correctness and constitutionality of that mode, have never been questioned. This Court have uniformly taken jurisdiction of such cases, without hesitation ; its jurisdiction to establish a will is, necessarily, involved in the statute referred to. If the Court possesses jurisdiction in that case, its power in this, cannot be questioned. We are not aware of any judicial decision under the 17th section, but we suppose that that section would be sustained.
    Passing from this point, let us examine the second: that the Court of Common Pleas, as a court of probate, can take the probate and admit to record under our statute a lost or spoliated will.

    This, to us, we must confess, is untrodden ground. After some years acquaintance with judicial proceedings in this State, we have never heard of such an attempt; and no member of the profession with whom we have conversed, can refer to an instance of the kind. The opinion seems to be settled and uniform, that chancery is the only proper form for such a case. Three cases of this kind are now in the Supreme Court. This is a matter dependent very much upon statutory regulation. It is conceded that such a power is exercised by probate courts in some of the States, and by the Ecclesiastical courts in England, in matters of personalty. It would seem, however, that before decisions to that effect in other States are considered as conclusive upon this Court, it should be shown that their statutes in relation to the probate of wills, were similar to ours; and then, only, as an aid in construing our own statute.
    . Does our statute contemplate the probate of a lost or destroyed will before the Common Pleas, as a court of probate7 The Court is restricted to the probate of two kinds of wills, written and nuncupative. It must be conceded that no express power is conferred by the statute to admit a will to record, unless it be produced. Can such power be inferred from the language of the statute ? The Court must decide either that they, as a court of chancery, have jurisdiction to establish this will, or that a court of probate has full and plenary power to do so. If the latter, then an immense amount of labor and expense has been incurred in this case unnecessarily, when, during its whole progress, until the present term of this Court, the question of jurisdiction has neither been mooted nor questioned. The statute no where alludes to the probate and admission to record of the substance or copy of a will, but to the will itself, which is to be produced and proven by the subscribing witnesses. If the will is secreted, process is provided for its production. It is to be filed in the clerk’s office, and recorded with the testimony. A copy of the recorded will is evidence, but not the copy of a copy. Administration with the will annexed,, may be granted, but not with a copy.

    The only provision for recording a copy of a will, is where it has been proven in another State or territory, or where real estate, lying in a county other than the one in which it is proven, is devised by the will. It never could have been the intention of the Legislature to render null or invalid, wills lost or destroyed, before probate. This doctrine would not be claimed a moment by the learned counsel on the other side; and yet, they have made no provision for their probate. They are left, where lost wills and spoliated wills were left, with' courts of chancery. In Alabama,'3 Porter, 51, referred to in defendants’ brief, the Orphan’s Court have, the right, by statute, to direct an issue and summon a jury to try it. Our Court of Probate have not that power; and if in Massachusetts the statute is not express, it must result ex necessitate, to protect the rights of the devisees and legatees, there being no other court which can protect them.
    These views we have thought proper to submit, relative to the proof of a lost will under our statute, before the Court of Probate. We think we hazard nothing in saying, that the general, if not the uniform opinion of the profession is, that it cannot be done, and that the opinion is as universal that chancery has the power, and is the appropriate tribunal to establish a lost or spoliated will. If the matter was doubtful, merely, this Court, after answers and full proof, no objection having been made by demurrer to the jurisdiction, would entertain it. See Underhill v. Van Cortlandt, 2 Johns. Ch. Rep. 339; 1 Ohio Rep. 127; 2 Caine’s Cases in Error; Ludlow v. Simond. These cases sustain the principle, that if there be a remedy at law, and the defendant answers instead of demurring to the bill, and the cause comes on to be heard upon the merits, it is too late to object to the jurisdiction of the Court, on the ground that complainant has a remedy at law.

    In arguing the question, as to the inability of a Court of Probate in this State to administer adequate relief in a case of this kind, we will not be understood, for one moment, as expressing a doubt of complainants having adequate remedy somewhere. Such a doctrine as that, no one will contend for. The learned counsel for defendants have not intimated any such ground of defence in their argument. Such a defence will not be set up. Their position is, that the Court of Probate has ample power and authority to administer relief to complainants on their making proper proof. Certainly, no judicial tribunal, and no lawyer, would doubt the proposition, that where a testator makes a will, with all the requisite solemnities, disposing of his property, and that will has not been revoked, but has been lost, fraudulently spoliated or destroyed, that such destruction or loss would not affect or impair the rights of the devisees under the will. A contrary doctrine would be an insult to public justice. A devise is as sacred an instrument as a deed, bond or any other instrument conferring rights. No rule of public policy can exclude parol proof of its contents, when lost or destroyed, any more than the contents of a deed or bond. Every authority, English and American, admit the rights of devisees under a lost or spoliated will, in the most direct and unequivocal terms. It is true, that their rights are inchoate, and, in one sense, imperfect, until established before a judicial tribunal.
    The language of the Court of Appeals in Kentucky, in George Payne’s Will, (4 Monroe’s Rep. 423-4,) is: “ In law, £ upon the death of the testator, the rights and interests of the
      ‘ legatees and devisees were also completely vested at the in- { slant of the testator’s death, and before "probate. The after ! loss'or destruction of -the will, by accident or fraud, cannot ‘ destroy and divest-those vested rights and'interests. ‘ In this, '< Wentworth, Swinbourne, Toller, and Powell, adjudged cases, c ancient and modern, all agree. The rights and interests of ‘ the legatees ahd" devisees are no more lost and. destroyed than ‘ the rights of a creditor by the accidental loss -of .his -bond, or ‘ Of the purchaser, by the casual loss of his deed. The devi- ‘ sees take as purchasers under a 'loill.”

    Article 1637 of the civil code1 of Louisiana, declares: that “ no testament- can have effect, unless it has been presented to -the judge of,the parish in which ‘ihe testator lived,”' &c. ' The judge shall; order'the’execution of the testament after‘its being opened and proved. ' Neither the courts of Louisiana nor the Supreme Court of the United States, in-2 Howard’s Rep. 619, doubt the rights of devisees under a will lost or destroyed; the only question is, before what-tribunal shallthe proof-bp made? We ask the attention of the Court1 to the authorities ón that point, referred- to'in this.-and our opening argument,-and the decided language of the'Judge delivering the opinion. of this Court, as to the rights of a party under a lost deed, in Lessee of-Blackburn v. Blackburn, 8 .Ohio Rep.- 81; and with these remarks, as we .are resisting a position pot assumed on the other side, we dismiss' this., branch of the subject with, this remark r that jurisdiction is also claimed , under another rule — that of 'advancement/arid'recognition-of title, disposition by parol possession and improvements by complainánts, that the testator would have been, and defendants now' are.estopped, in; eqdity, from setting up á claim to'the real'estate described in the bill. See Buckingham et al. v. Smith / Dille, 10 Ohio Rep. 298 ; 1 Johns.'Ch.-Rep. 350, and cases cited in 10 Ohio Rep.
    Should the Court be of opinion, that, as .a Court of Chancery, they have no jurisdiction to establish this will, they must sáy that a Court óf Probate, has; ,in which eveht,.(if, in'the-opinion of the Court, wé have not made á satisfactory case for a-decree on the other branch of the case, we ask. the 'cause to be continued until the application shall be made to the Court of Probate to prove it. We do this for the reas'on, that should such application fail, which, we do not apprehend; this Court may ultimately settle the rights of complainants, as to improvements, &c. -

       Our statute attaches no penalty to the malicious destruction of a will — it is casus omissus.

   Birchard, J.

Preliminary to the consideration of any of the many questions'which have been so fully litigated in this case,..'we are called upon to determine whether, in Ohio, a Court of' Chancery ha? jurisdiction in matters of probate, and may entertain a bill, the sole object of which is to establish and prove a lost or spoliated last will and testament. For it is manifest, -that, if no such power exists, it ’is not required and' would be improper to pass upon any; of the facts mooted, in this controversy. The sole ■ object of the bill, is tó establish such lost of spoliated will. Upon this question of .jurisdiction, we necessarily have to recur t'o the original source- 'Of all oür pow(er — the constitution of the Staté. Article 3, section 1, vests, the judipial power of the State,£< both as- to matters of law and Equity,” ££ in- a Supreme Court, in Courts of:Common Plea's for £ each county, in justices of' the peace, and insuch other courts £ ,as the Legisláture niay, from- time to time, establish.” -By section 2, the Supreme Court “ has original and appellate jurisdic- tion, - both in common law' and chancery, in such cases as £ shall be directed by law.” .By. the 3d section, the. Courts of Common Pleas, within their respective counties) £<i have common £ law and chancery jurisdiction in all-cáses directed by law.” Section' 5, is' in these words ¡ ££ The Court of Common Pleas, £ in each county, shall have jurisdiction of all probate and tes- £ tamentary' matters, granting .administration, the appointment '£ of guardians, and'such other cases as shall be prescribed by * law;”' , ' ,,,

' From one-or the other of these several sections, the authority to entertain, this bill must be deduced, if not contained there, or. if the spirit of these sections and, the legitimate legislation consistent with them have not conferred it, we shall be forced to say, it does not exist.

That the fifth section authorizes a chancery proceeding in a case like this, is a position that cannot be maintained. Its terms confer jurisdiction of all probate and testamentary matters upon the Common Pleas Courts, and not a word is contained in the instrument in conflict with this general grant of power. “ Expressio unius est exclusio alterius,” is a maxim clearly applicable to this section, so far as matters purely of á probate and testamentary character are concerned. The express grant of power forbids, by inference, an implied one in connection therewith. The jurisdiction is, therefore, exclusive, as to all matters merely probate in their nature. This opinion is not new in this Court. In pronouncing the decision in Hunter’s case, 6 Ohio Rep. 501., Wright, J., commenting upon these articles of the constitution, observes, that they indicate “ a determination to keep the ecclesiastical, common law and £ chancery jurisdictions as separate and distinct as our judicial £ system will permit;” and, again, that the probate of a will ££ belongs neither to the common law nor equity jurisdiction £ conferred upon the Court of Common Pleas, but appertains £ to the ecclesiastical jurisdiction of the English courts, which £ is specially conferred upon our courts of common pleas as £ courts of probate.”

Again, in 8 Ohio Rep. 19, this language is held: “By our £ law, a particular tribunal is appointed to receive probate' of a £ will. It does not signify, that it is not by name a Court of £ Probate — that it is the Court of Common Pleas, with a pro- £ bate side to it. The same court has jurisdiction of both £ chancery and common law controversies, and yet this mixture £ of powers would not avail, as an argument to prove that its £ equity jurisdiction was different in kind from that of courts of £ chancery in England.”

Consistent with these remarks, and the 3d article of the constitution, is the “ act to organize the judicial courts.” Sec. 4. “ The Court of Common Pleas shall have power to examine and taka the proof of -wills; grant letters testamentary thereon, ‘ an<^ to ^ear an<^ determine • all causes of probate. and c testamentary,nature.”’ All the chancery powers of that-court are granted in othér words.

■ The act relating to wills, still keeps.' up and sustains the same separation' of jurisdictions. The probate is of the original jurisdiction ;of that court, and so recognized by the'act iii which the proof is prescribed, the modeof proceeding, and'the effeet of the record.. And in Swan’s Stat/sec. 33, p-996, it is de'dared, that “ no will shall be effectual to pass real or personal estate, unless it shall have .been duly admitted to probate/’; &c., as provided,' by .the act. ' The. act-’ makes no mention of- any method of - establishing a will by. a'chancery-proceeding. The probate is treated as- a; judicial act at law, binding- upon all par-tie's,.and-final and-conclusive upon all parties. There is no ..appeal from the decision, no writ of error or bill of review; no way- of vacating it, exeept the peculiar one-provided by our statute. 9 Ohio Rep. 96; 8 Ohio Rep. 239.

■ .To test the propriety of encroaching, .in any 'manner, upon a jurisdiction so peculiar, and which,'from its-nature,:ought to be exclusive, let us '.anticipate some1 of the difficulties that- might flow from entertaining.this bill. . [

1.'- A decree in chancery is nbt the probate- of a will. Hence, a decree establishing a. will cannot operate to give it vitality and- is utterly powerless, -or else the 33d section of the statute relating to wills .must be taken and held, pro tanto, re-. pealed by', the decree, ' The decree- and the statute would speak 'different language on the’-same subject. One would' say,' the will-of 'MorningjStar. is effectual to pass-real and personal property, without. admission to' probate; as the .act provides; the other, that'it-is of no effect. ’ .The conflict is irreconcilable, and the weaker .in the' contest, must -give' way.

Again; — what would-be the effect, if, after rendering a decree either for oi-against the-validity of the supposed lost-'wifi, a real and different-will should be produced ?. Is the-litigation ' , a bar to its probate-? Does it oust the Courtof Common -Pleas <of jurisdiction ? Might not the will' then be'called for, be produced-, be proved and admitted of record, and would it not be effectual to vest titles according to‘the devises, and bequests of the testator? We think it would,-'because''the chancery proceeding would be regarded wholly coram non ■ judice and void, and because the statute would enforce -its ■ production, and is express as to the effect of' the.-pr.obate.

But.it is urged, that the. spoliation of the supposed will, with intent tp destroy the alledged d'evises to complainants-, affords grounds of equity jurisdiction — that the power to establish -spoliated, suppressed'.and-destroyed vyills-wás one of .the powers known to courts of chanc.ery at. the adoption'of. our constitution, and sundry authorities are cited, to sustain the position, ■A word .as to these; • ' ‘ , . .

■ 1st. The .New York-cases, by .inference, at least, if not directly, make-against the complainant.-''See. 63' of their statute’ (Revised code, voi. 5, p. 66, j confers ;upon the court of chancery the same power to take the proof of, the. execution .and va- • lidity of a lost or-destroyed'will 'arid- to .establish the same, as in the case of lost deeds; and the constitution of the Slate of New York contained nothing -in' conflict'with-the.'act.' "The-".. grant of the power,, however*,, shows that the' jurisdiction was not, then understood as being inherent hi the chancery courts, otherwise we should'have seen' no such specific grant of'juris-' ' •diction. '• .. ' y, '.•■•

All the other cases cited are commented; upon, in the case of Gaines et ux. v. Chew, et al., 2 Howard’s U. S. Rep. 647. Those authorities, carefully.examined,-will show that-:a Court of Chancery has no inherent-poweiy either in England-or America, to establish a lost will. It is 'true; that' the U,: S. Supreme Court did not, professedly, decide ■ the point; ' - They however did decide, that a will must be proved before' a title could be set up, under it, and that, by the general law, a: Court of Probate , must take the -proof, (.page 646;) 'and á. disco'yery was;, ordered--'in."that Case,' ás -it would-s.eem, ‘for no other, purpose thaa.jtp aid th'fe'appropriate, probate tribunal' in establishing the lost will. If we have correctly comprehended the subject, there is no ground to sustain this bill. It is not framed for the purpose of a discovery, in aid of a probate court. Its only basis of relief is under a supposed title, which cannot be made manifest in this Court without showing the will itself, duly admitted to probate, which it seeks to have established, and which cannot here ■ be established; and, should it ever become a matter of probate, there will then be no cause for sustaining the bill, inasmuch as the remedy at law in that event will be plain and adequate.

Again, it is further said, that the remedy must be in chancery, because the statute has pointed out no mode of proving a spoliated will; and we are asked, if there can be so great a wrong as the destruction of a paper divesting another of title,, and vesting it in the fraudulent spoliator, without a remedy ? In general, it may be said, that there is no wrong' without a remedy; and were we to say that this case' was not without a remedy, it would not follow that this is that remedy. It may be that the Court of Common Pleas, by the grant of power in the third article, section 5, of the constitution, is clothed with, general pbwers adequate to give the appropriate relief; if not, the Legislature can clothe those courts with ample power. It is sufficient for us to say that, in either event, this Court will not have appellate jurisdiction, as from a Court of Probate, to revise their decision. Nor till after the will shall have been proved, approved and admitted to record, can this Court act in any manner touching or concerning its validity, and then only in the manner prescribed by statute. That mode of proceeding will not -have-for its object, to establish the will, but to determine whether it may, or may not, have been improperly established by a competent Court.

As the- question' should have boon presented by demurrer to the bill, the expense incurred by respondents has been made in their own wrong.

Bill Dismissed.

Each party to pay their own casts.