author: Birchard, C. J.

text:
    John Tiernan and others vs. Joseph S. Fenimore.
    One of the sureties in an appeal bond was present at the clerk's office when it was handed to the clerk for his approval, and when it was, with the consent of his surety, taken away to procure another, the first being deemed insufficient 3 another was procured and the bond afterwards filed with the clerk, after which the two procured indemnity from their principal: Held that such a state of facts did not constitute a defence under a plea of non est factum, verified-by affidavit.
    This is a Writ of Error to the Supreme Court of Scioto County.

      The defendant in error brought suit upon an appeal bond, signed by Watson, Tiernan & Blake. The plaintiffs in error filed a plea of non esl factum, to the truth of which Tiernan made affidavit, and also a plea of nil debit. The cause was tried by a jury, pending which, a bill of exceptions was taken, and a verdict rendered finding the issue in favor of the defendants below. A motion was made for a new trial, which was overruled and exceptions also taken. From this judgment a writ of error' was prosecuted in the Supreme Court of the county, and errors were assigned,
    1st. That the Court of Common Pleas erred in instructing the jury as prayed for by defendants below.
    2d. In refusing to instruct as requested by plaintiff below.
    3d. In refusing the new trial.
    The cause was heard at the last term in the county, and the judgment of the Common Pleas reversed. The journal entry recites that the cause was reversed for the 1st and 2d errors assigned.
    This writ is prosecuted to reverse the judgment of the Supreme Court; and it is assigned for error that the Supreme Court erred on both points, and also in reversing the judgment of the Common Pleas.
    The bill of exceptions is as follows :
    Be it remembered that on the trial of this cause in the Court of Common Pleas of Scioto county, at the April term, 1846, before a jury, the said plaintiff, to maintain the issue bn his part, produced the bond in the plaintiff’s declaration mentioned, being an appeal bond in the sum of $3,800, given in a case wherein said Fenimore was plaintiff and John Watson was defendant in the the Common Pleas of Scioto county, signed by said Watson, John Tiernan & Plenry Blake. Said bond had also the names of said Watson, Tiernan & Blake, in the body of the instrument, and in it there had been the name of John Clark written, but it was then erased.
    The plaintiff then called to the stand Andrew Crichton, Jr., who testified that he was one of the subscribing witnesses to said bond; that the signature of John Tiernan to said bond is in the hand writing of the said John Tiernan; that the said bond was signed and acknowledged by the said John Watson & Tiernan as their act and deed ; that he thinks that the plaintiff was present and objected to the sufficiency of the said John Tiernan as security ; that the name of John Clark was not in the said bond at the time the same was signed and acknowledged by the said John Watson & John Tiernan ; that the said bond is in the hand writing of him, said witness, and the name of John Clark in said bond was stricken out and the name of Henry Blake inserted by said witness, but witness cannot state what time it was done.
    The said plaintiff then called to the stand John R. Turner as a witness, who testified that he was the Clerk of the Court of Common Pleas of Scioto county aforesaid, and that he was a subscribing witness to the signature of Henry Blake to said bond ; that said bond, in the identical form that it now is, was presented to him as an appeal bond, and by him was approved and filed December 22d, 1837 ; that witness recollects to have required other security upon said bond when it was first presented to him, on account of the supposed insufficiency of said John Tiernan.
    The said plaintiff then offered and read said bond in evidence to the jury.
    The plaintiff then read in evidence the record of the Supreme Court of Scioto county, in the case of Fenimore against Watson, showing the recovery of a judgment by the plaintiff of <$2,191 72 and costs.
    The plaintiff then read in evidence an execution issued upon said judgment, and a return thereon of no goods or chattels, lands or tenements whereon to levy.
    The plaintiff then read in evidence to the jury the record of a mortgage from John Watson to said Tiernan & Blake, upon certain real estate in Portsmouth, to indemnify them as sureties in said appeal bond; copies of all which records, papers, &c., are made part of the bill of exceptions.

      The plaintiff then recalled John R. Turner, who further ’ testified, that since the rendition of said judgment in the Supreme Court of Scioto county, Ohio, he had conversations with said John Tiernan, in which said John Tiernan stated to the witness that he expected that the securities of the said John Watson would have to pay the amount of said judgment, that he wished witness not to urge the bringing a suit upon the appeal bond, for that he, the said John Tiernan, was making an arrangement with John Watson; and that the matter would be settled without any further expense, as he was now satisfied the sureties would have to pay .it. It was also admitted that the other subscribing witnesses to said bond, were non-residents of Scioto county, aforesaid.
    And the plaintiff having closed his evidence to the jury, and the defendants not offering any evidence to the jury. The said defendant, by his attorney, moved, the Court to instruct the jury.
    1st. That an alteration or erasure of a bond in a material part after execution by any of the obligors, will render the bond void as to him or them, unless such alteration or erasure was made in the presence and with the assent of the obligor, sought to be charged, or he has given a subsequent assent, under circumstances amounting to a re-delivery of the bond.
    2d. That the erasure of the name of the co-obligor, which was in the bond at the time of the execution and delivery to the Clerk by a party sought to be charged, or the addition of other obligors without his assent, is such a material alteration as will avoid the bond.
    3d. That if the jury believe from the evidence, that the bond on which the suit was brought, was signed and sealed and presented to the Clerk of the Court by the said John Watson and John Tiernan as his security, for his approbation and acceptance of the same, as a bond in appeal, and was by him rejected, the plaintiff in the suit being present and objecting to the reception of said bond; and after such rejection the word between the name of Watson and Tiernan was erased, and the name of John Clark subsequently written and erased, and the name of Henry Blake inserted to the bond so altered and amended, without the knowledge or consent of the said John Tiernan, or in the absence of proof of such knowledge and consent were afterwards approved by said Clerk, that then such erasure and alteration of said bond rendered it void as to said John Tiernan, and the plaintiff cannot recover in this suit.
    4th. That if the jury is satisfied that the bond was executed by Watson and Tiernan, and delivered to the Clerk as the appeal bond in the case, and was- refused and rejected by the Clerk, no subsequent act of either the Clerk or Watson, could make it the bond of Tiernan, unless Tiernan assented thereto, and assented under such circumstances, as to amount to a re-delivery of the bond." Which instructions aforesaid, moved by the said defendant, the Court gave to the jury, and thereupon the plaintiff excepted to said opinion of said Court, giving said aforesaid instructions to the jury. And the said plaintiff, by his attorney, thereupon moved the Court to instruct the jury, that if the jury were satisfied from the evidence that the said bond is signed and sealed with the hands and seals of the obligors, and that no erasure and interlineations had been made therein since the delivery and approval thereof by the Clerk, that the jury must find for the plaintiff. Which said instructions, sought by the plaintiff, the Court refused to give to the jury, and thereupon the plaintiff excepted to such refusal, and prayed the Court that his bill of exceptions as well in regard to the said instructions given, as the instructions aforesaid by the said Court refused, might be allowed, which is accordingly done, and upon his motion the same is allowed, and is ordered to be made a part of the record in this cause.

      O. F. Moore and Le Grand Byington, for Plaintiffs in Error.
    C. O. Tracy, for Defendant.
   Birchard, C. J.

It is necessary in order to test the correct- ’ ness of the judgment which we are asked to reverse, to examine the actual state of the facts presented by the bill of exceptions. The bill shows that the following evidence was before the jury, at the time the President Judge of the Common Pleas was called upon to instruct them on matter of law: 1. An appeal bond in form identical with the one declared upon. 2. That the appeal had been prosecuted to effect, and judgment recov ered by the appellee, and the issuing of an execution against appellant and a return of nulla bona thereon.

The only litigated fact in the way of a recovery by Fenimore, concerned the validity of the bond itself. Upon that point the proof was all introduced by the obligee named in the bond. The obligors offered no evidence.

The subscribing witness proved the signature of Tiernan and that the bond was signed and acknowledged by Watson and Tiernan as their act and deed, that the plaintiff was present and objected to the sufficiency of Tiernan as surety. That the name of Clark was not then in the bond, but that the bond was in his, witness’, handwriting, that Clark’s name was written and stricken out, and Blake’s name inserted by him, but at what time he could not state. Turner, the Clerk of the Court of Common Pleas, says, that he witnessed the signature of Blake, that the bond in the identical form that it now is, was presented to him, and by him received, approved and filed as an appeal bond, December, 22, 1837. That when first presented he required other security on account of the supposed insufficiency of Tiernan.

The plaintiff below also offered the certified copy of a mortgage deed from Watson and wife to Tiernan and Blake, dated May, 15, 1841, conditioned to secure the payment of the judgment against Watson, and also to save harmless and indemnify the said Tiernan and Blake of and from all damages and costs, by reason of their having become thé security of the said John Watson, upon the appeal of the said suit from the Scioto Common Pleas to the Supreme Court. Turner being again called, testified that after the rendition of the judgment in the Supreme Court, in a conversation he had with Tiernan, he stated to the witness that he expected the securities of the said John would have to pay the amount of said judgment, that he wished witness not to urge the bringing of a suit upon the appeal bond, that he, Tiernan, was making arrangement with Watson and the matter would be settled without any further expense, as he was now satisfied the securities would have to pay it.

Upon this state of the evidence, under the charge of the Court, the jury found a verdict for the defendants, and the Court, when requested, refused to grant a new trial. Did the Court err? The paramount object of all Courts is to render exact justice, as between the parties litigant. This should be effected in all cases without any departure in the application of principles from established law, for any such departure renders the law uncertain, and whatever tends to such uncertainty, tends also to render every man’s rights unsafe. Upon these facts, in evidence, it appears to us there was no reason why the plainliff below should not have had a verdict and judgment for the amount due in equity upon the appeal bond. Tiernan first offered to become sole security for the appeal, was present when the Clerk of the Court refused to receive him without an additional security; stood by in silence and allowed the bond to be taken away for the purpose of procuring an additional security, who would be satisfactory to the Clerk. After that security was obtained and the appeal perfected according to his original intention, we next find him looking to his own indemnity, by taking a mortgage, reciting that he and Blake were securities on this very obligation. And finally he intercedes with the Clerk for delay, on the ground that he and his co-security must eventually pay the judgment.

A verdict returned in the face of such evidence in our opinion ought not to stand. And because the Court of Common Pleas refused to set it aside and grant a new trial, their judgment was rightly reversed.

But it is said that the Court acted upon erroneous views and gave wr0DS reasons upon the circuit for the reversal of that judgment. That may or may not have been the case. I know not how that fact is. The judges who held the Court upon the circuit recollect that their views of the case were then in accordance with our present views, yet the Clerk of the Court in certifying under the statute, the causes of reversal, has stated the finding to be that there was error as alleged in the first two assignments of error, omitting the third.

The entry in this particular is probably an oversight either of the clerk or counsel in making up the journal. And it is not improbable that remarks may have fallen from the judge delivering the opinion which contributed thereto. The instructions given to the jury by the Court of Common Pleas were a proper subject of comment, when viewed in connection with the facts of the case. Take for instance the first instruction, “ That an alteration or erasure of a bond in a material part after execution, by any of the obligors would render the bond void as to him unless such alteration or erasure was made in the presence and with the assent of the obligor sought to be charged, or he has given a subsequent assent amounting to a re-delivery of the bond. As an abstract proposition this may be good law. Still if rightly understood it was not a principle applicable to the facts. It would have been as well to omit giving it, and wrong to give it as a principle that might control their verdict. If the Court intended the jury should receive it as strictly applicable to the facts in evidence, the Court did not half perform its duty, for in that aspect it would tend to mislead nine persons out of ten. The phrase “after execution by any of the obligors ” in common parlance means after the signing of the bond. A jury under this charge would naturally so infer. In a legal sense the word execution implies signing, sealing and delivering. It is the delivery which completes the execution and gives validity to a deed.

Now the proof showed that there was no delivery before the insertion of Blake’s name. Delivery had been tendered in Tiernan’s presence, and the clerk refused to accept it and required further security. If this was the fact, (and that jury would have so found if they had been made fully to prehend the law of the case, there can scarce be a doubt,) then the Court should have told them that, if the bond was thus taken from the clerk’s office in order that Blake’s or some other person’s name might be inserted, who would be satisfactory to the clerk, and Tiernan stood by, and by silence expressed his assent, it was a matter of no moment whether he was present or not when the insertion of Blake’s name was made. That in law he should be deemed to have authorized the insertion of the name and the subsequent delivery of the bond to the clerk. When this abstract proposition was presented to the Court, and claimed to be the legal proposition upon which the merits of the defence turned, it would have been proper, and we think the Court should have called the attention of the jury to the evidence, and submitted to them to find whether the recitals of the mortgage deed the conversations proven by Turner, connected with his conduct when the bond was first offered and rejected, did not show that the bond as finally filled up, was delivered with Tiernan’s assent, and if so that they should find for the plaintiff.

The second, third and fourth propositions given in charge to the jury, are such that what has been said in reference to the first, is applicable to them. They are abstract propositions, artfully worded, and although they may be, in a legal sense, very good law, when understood and applied by legal minds to a state of facts to which they would be applicable, yet therewas very little in the proof to call for the instructions, and being given as propositions governing their finding without such explanations as would show the jury how little bearing they had upop the true merits of the defence, sufficiently accounts to us for an erroneous verdict.

Judgment affirmed.


source: Caselaw Access Project

author: Read, J. Hitchcock, J.,

license: Public Domain

text:
    The State of Ohio vs. Samuel Medary and others.
    The sureties in a bond limited in its recital and condition to the faithful performance by the principal, of his duties as a member of the Board of Piiblic Works, cannot be made liable for his defalcation in not accounting for money received as an Acting Commissioner.
    This is a Writ or Error to the Court of Common Pleas of Franklin county.
    The original action was Debt. The declaration states that Timothy G. Bates, now deceased, by a joint resolution of the General Assembly, passed March 16, 1839, was appointed a member of the Board of Public Works of Ohio, for the term of four years from April 1, 1839, and on said 1st April, appointed by said Board an Acting Commissioner thereof. That after-wards, on the same 1st April, the defendants and Bates made their joint and several writing obligatory to the plaintiff, in the sum of $30,000, subject to a condition which, after reciting that Bates had been duly appointed and qualified by the General Assembly at its session of 1838-39, a member of the Board of Public Works for the term of four years, was conditioned that Bates should faithfully discharge the duties of his said office, and account for all moneys intrusted to him as such officer; which bond was approved by the Governor.
    That Bates then entered upon the discharge of the duties of his said office of Acting Commissioner, and continued in such office and to act as such Acting Commissioner from thenceforth until the 1st April, 1842.
    That during the continuance of his said office, and whilst Bates acted as such Acting Commissioner, a large sum of the public money of said plaintiff was intrusted to and received by him, in virtue of his office, to be by him disbursed and accounted for, as such officer, but that he failed to disburse and account for §5,582 84 thereof, and converted the same to his own &c. use,
    There was a demurrer to the declaration, which was sustained in the Common Pleas, and judgment given for the defendants. This is assigned for error in this Court.

      Henry Stanbery, Attorney General, for the State.
    The point relied upon by the defendants is, that the condition of the bond recites that Bates had been appointed a member of the Board of Public Works by the Legislature, and provides for the faithful discharge of the duties of that office, and that he should account for all moneys intrusted to him as such officer, whereas he is charged in the declaration as an Acting Commissioner of the Board, and for the non-payment of moneys received by him as such Acting Commissioner.
    The statute in force at the time was the act of March 5, 1839, entitled “ an act to abolish the Board of Canal Commissioners and to revive the Board of Public Works.” Swan’s . Stat. 760.
    The second section of this act creates a Board of Public Works, consisting of five members, to be appointed by joint resolution of the General Assembly, who shall be denominated the Board of Public Works; and that this Board upon their organization, proceed to elect a president and fix the number of Acting Commissioners, not exceeding four of their number.
    The third section vests the charge of all the public works in the State in the Board of Public Works, and invests this Board with all the powers and duties of the Board of Canal Commissioners.
    The 4th section provides that the Board shall enter upon the discharge of the duties of their office on the 1st April, 1839.
    The 5th section requires each member of the Board, previous to entering on the discharge of the duties of his office, to take an oath of office, and that each Acting Commissioner, before he shall receive into his hands for disbursement any public money, shall execute a bond to the State of Ohio, in the penal sum of $30,000, with two or more freehold securities, to be approved of by the Governor, conditioned for the faithful discharge of the duties of his office and for the faithful accounting for all moneys, intrusted to him as, such Commissioner.
    The 13th section gives the Acting Commissioners a salary of $1,500, and the president of the Board a per diem of $3, while engaged in official duty.
    It appears very clearly from these sections, that an Acting Commissioner is at last but a member of the Board of Public Works; it is all one office. Four out of the five members may be Acting Commissioners, or acting members.
    A member of the Board who is not an Acting Commissioner is not required to give bond ; it is only in his character of Acting Commissioner that the bond is required ; for it is only in that character that any money is intrusted to him for disbursement. But although a member of the Board may not be an Acting Commissioner, yet the converse is-not true, for an Acting Commissioner must be a member of the Board. It is not a distinct or different office. It is all one office, but requiring active duty. Only one oath of office is required of a member of the Board, and not one for a member and another from an acting member. The oath as member, covers all the duties passive or active, of the acting member or the passive.
    So too the bond given by a member, covers all the duties of his office, as well those which appertain to a member simply, as those which appertain to an acting member.
    The pleadings admit that Bates, before he gave this bond, was duly constituted an acting member of the Board of Public Works. He was then required by the statute to give an official bond before he should receive any of the public money. The declaration next alleges that the bond was made. The penalty, the obligee, and the condition are all in exact conformity with the statute, and the only objection taken is that the recital only refers to his appointment, by the Legislature, as a member of the Board, and not to his being charged with the duties of an Acting Commissioner.

      The statute does not require the bond to be given in the character of Acting Commissioner.
    But if the letter of the statute were that way, I do not that this bond would be considered valid; Barrett v. Reed, 2 Ohio, 412; The State v. Bowman, 10 Ohio, 447; The State v. Findley, 10 Ohio, 53.
    The distinct ground on which the State relies is, that there are not two offices, one of member of the Board and another of Acting Commissioner of the Board. On the other hand the defendants must show the contrary.
    No one can read the act of 1839 and say there are two dis-tint offices — one office created by the Legislature and another created by the Board itself. Simply it is all one office, and that office is that of member of the Board of Public Works, amongst which members, by their own act, after their organization, there is to be a distribution of powers and duties.
    Now suppose that the act did not use the terms “Acting Commissioners,” but provided that the Board upon its organization, should fix and designate which of its members should have the immediate superintendence of certain of the public works and should receive public money to disburse on such works, and give bond for the faithful discharge of the duties of his office, and the payment of all moneys intrusted to him. This is exactly what the act of 1839 does provide for, except that it also designates such member, with such duties assigned to him, an Acting Commissioner. But if the terms “Acting Commissioners” were not used, would there be even a plausible argument that these specific duties, imposed or fixed upon certain members of the Board, created them new officers ? Certainly not. Such new duties would merely be imposed on the member in virtue of his office. Can it then be contended that the name Acting Commissioner, creates a new office ?
    It is argued, for the defendants, that the duties and powers of an Acting Commisioner, are greater than that of a mere member, not fixed and designated- as Acting Commissioner; that he must give bond, may receive public money, and that he gets a large salary.

      All this is true. But does it all make a new office ? We say ' it does not. At last it is the same office, with additional duties and additional compensation, to those which belong to the office of the other members, not charged with active duties.
    The provision of the 5th section of the act of 1839, as to the oath of office, is conclusive as to this idea of two distinct offices, or of a double office, and it affords a true key to the proper determination of this question.
    Two things are required to secure the public for the faithful discharge of official duty of their officers, an oath from all, and a bond from such of them as by the arrangement of their duties should be intrusted with public money.
    Now if the statutue contemplated two distinct offices, one of simple member, and the other of Acting Commissioner, we would of course find that each, as such, should make an oath to discharge the duties of his particular office. But what is the provision ?
    “That each member of the said Board of Public Works, shall, previous to entering upon the discharge of the duties of his office, take an oath or affirmation to support the Constitution of the United States, and of the State of Ohio, and faithfully and impartially to discharge the duties of his office.”
    This is the preliminary oath, to be taken by all the members of the Board, before they enter upon the discharge of any official duty — before they can fix or designate any acting member, for that is one official act.
    Now here is one oath for all the members, and binds them all to discharge the duties of their office. One oath and one office.
    Does this oath cover the official duties of a member who is subsequently fixed upon as one of the Acting Commissioners ? No one can deny that it does, and consequently the duties of Acting Commissioner are incident to the only office which the law recognizes.
    But it is said, as a question of intention, it cannot be supposed that these defendants had any idea of becoming bound for the duties of an Acting Commissioner.- Precisely the contrary is manifest from this bond, for the condition is word for word, in the terms which the law requires to be by an Acting Commissioner. The defendants undertake to answer for all moneys which shall be intrusted to Bates, in virtue of his office. Now they are bound to know the law, and must have known, that he could not receive a dollar of money, except when charged with the duties of an Acting Commissioner.
    Constable’s bond given to Township Trustees, held good, though statute provided it should be given to Township Treasurer. Barrett v. Reed, 2 Ohio Rep. 412
    Statute requires that the bond of County Treasurer should be conditioned for the payment, according to law, of all moneys which shall be received in his official capacity. A bond conditioned that the Treasurer should faithfully discharge all the duties of his office, held valid. Ohio v. Findlay, 10 Ohio R. 53.
    Statute provides that County Treasurer shall give bond with four or more freehold securities. A bond executed by the sureties and not by the Treasurer, held valid. Ohio v. Bowman, 10 Ohio Rep. 44T.
    Bond given by Deputy P. M. to P. M. General held valid, though no statute authorizes the taking of such a bond. Post Master General v. Early, 12 Wheat. 136. (Cited 10 Ohio Rep. 449.)
    The statute requires the Receiver of public moneys to give bond with sureties. A writing, not sealed, given by a Receiver and sureties, held valid. U. S. v. Linn, et als. 15 Peters, 240. (Cited 10 Ohio Rep. 451.)
    Bond given by a Purser in the Navy, not specifying his official character, held good, though no such bond authorized by statute. U. S. v. Tingey, 5 Peters, 115.
    2. It is next claimed that Bates ceased to be an officer by the act of March 23, 1840, and a new office was created by that act.
    This is clearly an error. Bates was not legislated out of one office and into another by the operation of that act, and the resolution passed the same day. He was simply continued and in office, and such is the express language of the act resolution.
    3. It is said that if the act of 1840 did not legislate Bates out of office, yet it imposed more extended liabilities than the act of 1839 — in this, that by the act of 1839 there were to be four acting members, whereas by the act of 1840, the number was reduced to three — by which the public money was divided into three parts instead of four — and so Bates would be intrusted with more money under the new law than under the old one.
    If there were anything in such a fanciful point, the answer is, that the old law did not require four acting members. It was not a part of this contract that there should be that number of acting members. It was optional with the Board, under the act of 1839, to appoint four, or any lesser number.

      Swan Sf Andrews, for Defendants.
    This suit is brought on a bond which recites that Timothy Bates was appointed by the General Assembly, a member of the Board of Public Works for the term of four years, and its condition is, that Bates shall faithfully discharge the duties of his said office, and account for all moneys intrusted to him as such officer, according to law.
    The bond and its condition is correctly recited in the declaration ; but instead of averring that moneys did come into his hands as such member of the Board of Public Works, and that he failed to disburse and account for the same as such officer, the declaration proceeds to aver as follows:
    That Bates was appointed by the Board of Public Works, an Acting Commissioner.
    That Bates entered upon the discharge of the duties of his said office of Acting Commissioner; that moneys came into his hands in virtue of his said office of Acting Commissioner, and at he failed to disburse and account for the same as such of-There is no ambiguity in the terms of the Bond — no doubtful word or expression which can enlarge its condition by construction.
    Now if the powers and duties of a member of the Board of Public Works and Acting Commissioner are not identically the same ; and if “ member of the Board of Public Works ” and “ Acting Commissioner ” are not synonymous terms designating, under the statute, the same office and the same duties and powers, then it is clear that the declaration is bad; for the declartion treats the condition of the bond as providing for the discharge of the duties of the office of Acting Commissioner, and the breach is assigned on that office ; whereas the bond and its recitals are limited to a member of the Board of Public Works.
    That the powers and duties of a member of the Board of Public Works and Acting Commissioner were distinct and different, is obvious.
    By reference to the statute, (Swan’s Stat. 760,) it will be seen, that the Board of Public Works are invested with deliberative and legislative duties relating to the Public Works of the State. A member of the Board of Public Work, by virtue of his appointment to that office, formed a constituent part of the Board of Public Works.
    An Acting Commissioner of the Board of Public Works was a fiscal and executive officer in all that related to the Public Works of the State, appointed by the Board from its own members. Thus: The Board appointed subordinate officers and prescribed their duties. Swan’s Stat. 760, <§> 45.
    The Board had general superintendence of the Public Works of the State, &c. <§> 46.
    These powers and duties devolved on the members of the Board of'Public Works as such.
    An Acting Commissioner as such could not exercise these powers nor were they duties incident to his office.
    Now the declaration claims that a bond by a member of the Board of Public Works as such officer, conditioned to discharge the duties of that office, is forfeited because the officer did not perform duties which as a member of the Board of Public Works he had no authority to perform and was not bound to perform.
    Bates did not become an Acting Commissioner by being appointed by the General Assembly a member of the Board of Public Works, any more than a member of the House of Representatives becomes the Speaker by being elected a member. Neither the powers nor the duties of Acting Commissioner devolved upon him by that appointment. So that he might in compliance with the condition of this bond “faithfully discharge the duties of his office of a member of the Board of Public Works and account for all moneys in trusted to him as such member of the Board of Public Works,” yet fail wholly in his duties as Acting Commissioner, and fail to account for moneys intrusted to him as Acting Commissioner.
    The declaration itself is founded upon this precise idea; and hence the recital of the bond and its condition is attempted to be enlarged so as to cover as well the duties which devolved upon Bates by virtue of his appointment by the General Assembly to the office of a member of the Board of Public Works, as the duties which were devolved upon him by virtue of his designation by the Board an Acting Commissioner — duties wholly different and distinct.
    We understood the counsel on the other side, in his argument below, to concede that the powers and duties of a member of the Board, and an Acting Commissioner are' distinct; and that those which devolve by law upon an Acting Commissioner, cannot be exercised by a member of the Board by virtue of his appointment by the General Assembly. Whether now-conceded or not, it is obviously true. But Mr. S. contended that the designation of an Acting Commissioner by the Board was simply a distribution of the powers of the members of the Board; that the Acting Commissioner, by being designated as such, acquired no powers and performed no duties other than as a member of the Board of Public Works, and by virtue of the powers and duties devolved upon him by his appointment by the General Assembly.
    This position assumes what is not true in fact; for the Board as such, or a member of the Board as such, clearly could not exercisé the powers of an Acting Commissioner. When, therefore, they designate or appoint an Acting Commissioner, they do not distribute their own powers nor their own duties. Their power consists simply in designating the Acting Commissioner, as the power of the General Assembly, under the law, consists in designating the members of the Board of Public Works, and in both cases the law points out their powers and duties.
    To hold that the Board or its members distribute powers and duties which they did not themselves possess, and as such could not exercise, is confounding the difference between the power of appointment and the official powers and duties of the officer appointed.
    To overrule the demurrer it is necessary for the Court to decide that when it is said in a sealed instrument that Bates is appointed by the General Assembly a member of the Board of Public Works, and that sureties will be responsible for the duties which devolve upon him as a member-of the Board, it means that the sureties will not only be responsible for the performance of duties which a member of the Board is bound to perform by virtue of his appointment to that office by the General Assembly ; but will also be responsible for the performance of duties which Bates could not perform, and was not bound to perform by virtue of his appointment to that office by the General Assembly.
    We add a few authorities upon the rules adopted by Courts in the construction of bonds and contracts executed by sureties :

      Bell v. Bruen, 1 Howard’s U. S. Rep. 184, 186; Arlington v. Merricke, 2 Saund Rep. 403 ; Liverpool Water Works Co. v. Harpley, 6 East. 507; Wardens &fc. v. Bostock, 2 Bos. & Pull. 175Laidley v. Evans, 2 Bing. Rep. 32 ; Pepin v. Cooper, 2 Barn. & Aid. 431; Myers v. United States, 1 McLean, 495 ; Milton v. Stewart, 9 Wheat. 702.
   Read, J.

The recital in the condition of the bond is that ga^eg was ¿u]y appointed a member of the Board of Public r . . . and the condition, in substance that he should faithfully discharge the duties of such office, and account for all moneys intrusted to him as such officer. The breach assigned is that he failed to account for moneys which came into his possession as one of the Acting Commissioners of said Board. It is contended that the breach is broader than the condition, and that the declaration seeks to make the sureties liable for a default of their principal not within the letter of the bond. It is replied that the duties of Acting Commissioner are embraced within the scope of the duties of a member of the Board, and are included in the words of the condition of the bond. But it is conceded, that as a mere member of the Board, Bates would have no control of the public money, and as such nono by law could come into his possession. To authorize him to receive and disburse money, he must be both a member of the Board and an Acting Commissioner designated by the Board itself. The duties, then, of a member of the Board merely, stops short of the receipt of money. To receive money requires in addition that he should be an Acting Commissioner. There is then a difference in power and duty in being a single member of the Board, and a member of the Board and Acting Commissioner. This embraces only the duties of a member of the Board; and to make it embrace the duties of Acting Commissioner also, it must be enlarged beyond its letter. Now if the condition of the bond had been for the faithful performance of the duties of Acting Comsioner, there might be plausibility in the argument that i't included all the duties of a member of the Board, as no one could be an Acting Commissioner who was not a member of the Board. These two are inseparable. But one may be a member of the Board and not an Acting Commissioner. Now one thing is perfectly clear, that the duties and powers of a member of the Board, and the duties and powers of an Acting Commissioner, are different and distinct, and the risk and liability of sureties for one or the other are also entirely distinct. In the one instance the risk and liability of the sureties, would be as merely nothing, and in the other might be of great hazard and peril. The duties of a mere member of the Board are those judgment and deliberation, the other, of pecuniary accountability. How then can a bond conditioned for the performance of the duties of an office, of merely a moral nature, be extended and embrace a liability to account for money ? But it may be said, in this instance, if the bond do not embrace the latter, it embraces nothing; and that the officer who took it failed in intelligence. The reply to all this is, that the bond speaks for itself ; and the law is that it shall so speak ; and that the liability of sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond, and if the words will not make them liable, nothing can. There is no construction, no equity against sureties. If the bond cannot have effect according to its exact words, the law does not authorize the Court to give it effect in some other way, in order that it may prevail. It is not like a grant, where every thing is construed most strongly against the grantor, and where the intent governs, and will be sought after from the object, or extrinsic facts, to give such construction to words as to carry into effect the intention of the parties.

But it is argued the office is the same, and the designation of Acting Commissioner is a distribution of duties. This is not so. It is the union of distinct duties and powers in the same person. The letter of the bond includes one class of these duties and powers, and it is attempted to extend them to embrace a different class. The fact that no one is eligible to be designated as Acting Commissioner but a member of the Board, no more ■ makes a member of the Board an Acting Commissioner, than the fact that no one but a voter is eligible to a seat as a member of the General Assembly, constitutes every voter a Representative. It is not a case of distribution of powers and duties, but a designation of the person to exercise and discharge certain powers and duties. Without such designation, no person would be authorized to act; so that the Board of Public Works is divided so far as duties and powers are concerned, into mem- ’ bers of the Board and Acting Commissioners. The members of the Board qualify by taking the prescribed oath — the Acting Commissioners by executing the prescribed bond. The one embraces motive and judgment, the other, in addition thereto, the faithful accounting for money. The fact that but one oath is required, does not prove that they are one office. The statute says, that no one shall enter upon the duties of a member of the Board until he has taken an oath, and that no one shall enter upon the duties of an Acting Commissioner until he has executed bond; but the fact that no one is eligible to be designated as Acting Commissioner but a member of the Board, and no one can act as a member of the Board until he has taken an oath, does not prove that because there is but one oath, there is but one office, for the reason that an office may exist whose duties are guarantied by bond and not oath, as in the present instance; and that distinct offices may unite in the same person, the duties of which are guarantied in different modes.

The duties and powers of a mere member of the Board and of an Acting Commissioner being wholly distinct, a majority of the Court are perfectly clear that a bond limited in recital and condition to the duties of a member of the Board, cannot be extended to embrace and render the sureties liable for the defalcation of an Acting Commissioner. A mere member of the Board has no authority to receive money. This is a principal duty of an Acting Commissioner. Hence a bond limited to a member cannot be extended to embrace the defalcation of an Acting Commissioner.

We therefore affirm the judgment of the Court below.

Hitchcock, J.,

dissenting. Not concurring in the opinion expressed by the majority of the Court, I deem it proper to state the reasons which have brought me to a different conclusion.

The original action in this case is an action of debt upon bond. The bond was intended to be in conformity with the 5th section of the act of the 5th of March, 1839, “ to abolish the Board of Canal Commissioners, and to revive the Board Public Works; ” Swan’s St. 760. It bears date on the 1st of April, 1839, and was approved on the 20th day of the same month by the Governor of the State. The defendants are sureties in the bond for Timothy G Bates, principal. The com dition is “that whereas Timothy G. Bates, has been duly appointed and qualified, by the General Assembly of the State of Ohio, during its session of 1838 and 1839, as member of the Board of Public Works of the State of Ohio, for the term of four years. Now if the said Timothy G. Bates, shall faithfully discharge the duties of his said office, according to law, and shall faithfully account for all money entrusted to him as such officer, according to law, then and in that case this bond to be void, otherwise to be and remain in full force and virtue,” &c.

The declaration recites the appointment of Bates as member of the Board of Public Works for the term of four years, from and after the first day of April, 1839, that on the day last aforesaid he was designated by the Board as Acting Commissioner thereof; that afterwards he gave bond, with defendants as his sureties, and sets forth the substance of the bond and of the condition. It is further alleged that Bates, in virtue of his office, received large sums of money, to wit: the sum of fifty thousand dollars, that he has failed to disburse and account for said money, and that $5,582 84 remains in his hands, unaccounted for.

To this declaration there was a general demurrer, which was sustained in the Court of Common Pleas, and judgment entered in favor of the defendants. To reverse this judgment this suit is now prosecuted.

Although a variety of questions have been incidentally discussed in the present case, yet the question upon which the case turns, is narrowed down to this: did Bates, when he received the money, as stated in the declaration, receive it as a member of the Board of Public Works, or did he receive it in some other capacity. Counsel for defendants insist that although he was a member of that Board, yet that he did not receive it suc'n member, but as an officer of a different character, that ’ . as Acting Commissioner of that Board, and such is the opinion of a majority of the Court. Or perhaps it is more proper to say that the simple question raised in the case is, whether the bond in controversy is a void instrument. It was intended to be a statutory bond, and by those who, at the time of its execution, administered the government of the State, was supposed to be in conformity with the statute upon the subject. This opinion, it seems to me, was well founded, and I am brought to this conclusion by a careful examination of the statute.

Before proceeding further, it may be well to remark, that there is no difference of opinion as to the law relative to sureties. They cannot be bound beyond the scope of their understanding. Yet in ascertaining the extent to which they are bound, the same regard must be had to the intention, as derived from the language used in an instrument, as is the case in the construction of all other instruments ; I Ohio Rep. 170 ; 5th do. 176. Nor does the fact that the condition of a bond is more comprehensive in its terms than is required by the statute, vitiate the instrument; 10 Ohio R. 51.

As before remarked, the ground of defence is that Bates, the principal, did not receive the money specified in the declaration as member of the Board of Public Works, but as Acting Commissioner ‘of that Board, and it is insisted that the office of member of the Board of Public Works, and of Acting Commissioner, are separate and distinct offices. And further, that under the law it was not required that a member of the Board, as such, should give bond, that a bond was to be given only by the Acting Commissioner. To me it seems that there is but one office, and that when the Legislature speak of Acting Commissioners, they have reference only to the duties to be performed by different members of tho Board,' and those duties must, under the law, be performed by members of the Board; None other than a member can be Acting Commissioner.

By the first section of the act of March 5th, 1839, a pre-existing law, establishing a Board of Canal Commissioners, is re'pealed, and that Board abolished. (Swan’s Stat. 760.) ous to this time, the canals and other public works of the State had been under the charge of a board, sometimes called the Board of Canal Commissioners, sometimes the Board of Public Works. Some of the members of the Board were merely advisory members, others were denominated Acting Commissioners.

In the second section of the aforesaid'act, it is enacted, “ that for the purpose of promoting and maintaining a general system of internal improvement within this State, and of uniting all the various branches under the same supervisors and direction, there shall be created a Board of Public Works, consisting of five members, tobe appointed by joint resolution of the General Assembly, who shall be denominated the Board of Public Works,” &c. It is further provided that the Board shall upon their organization proceed to elect a President, who shall keep an office at Columbus, and “ that said Board shall have the power to fix the number of Acting Commissioners, not to exceed four of their number.”

The third section is as follows, “ the charge and superintendence of the canals of this State, of that part of the national road, which has been or may hereafter be completed, and received by the State, and all other works of internal improvement that have been or may be undertaken, in whole or in part, by the State, shall be and they are hereby vested in said Board of Public Works; which Board is hereby invested with all the powers, and required to perform all the duties, heretofore conferred upon the Board of Canal Commissioners, and superintendant of the national road, by the laws of the State now in force, and such other duties as may from time to time be in-joined upon it, by the present or any future Legislature, and shall from time to time present to the consideration of the General Assembly, such objects of internal improvement as they shall judge the public interest may require.”

By the fifth section, the members of the Board are required to take the necessary oaths of office, and it is further required that before an Acting Commissioner shall be allowed to receive any money for disbursement, he shall give bond with security, &c.

Throughout the whole of this act the members of the Board of Public Works are spoken of, are treated as Commissioners, and in no part of it are any peculiar duties prescribed to be performed by those denominated Acting Commissioners. The general duties to be performed by the entire Board are specified, and all the members belong to, and constitute a part of the Board. For the superintendence of distinct parts of the works, different individuals must be designated, but in such superintendence the individual superintending, acts in no other capacity than as member of the Board. His authority is not derived from any appointment of the Board, but from his appointment by the General Assembly. All were in fact Acting Commissioners, if we except the President who was to keep his office at Columbus. The Board was constituted of five members, one of which was to be President, and power was given to this Board to “ fix the number of Acting Commissioners, not to exceed four of their own number.” The Board could fix the number, but if the number fixed was less than four, it had not power to say who should in fact be the Acting Commissioners. In this respect the Board was powerless. Looking at the statute in all its parts, I can have no doubt that the General Assembly intended, notwithstanding what is said in the second section, about fixing the number, that all the members of the Board, exclusive of the President, should be Acting Commissioners. It was so understood by the authorities of the State at the time, and therefore the bond now in suit was executed in the form in which it is set forth in the declaration. A member of the Board of Public Works, and an Acting Commissioner, as he was one and the same person, held but one and the same office.

That it was the intention of the General Assembly that all the members of the Board, with the exception of the President, should be Acting Commissioners, is more fully manifested by the 12th section of the act, which provides that each one of the Acting Commissioners should receive a salary of fifteen hundred dollars per year, and the President a per diem allowance of three dollars while engaged in the duties of his office. But no compensation is provided for any member of the board who is neither President nor Acting Commissioner. Such compensation would undoubtedly have been provided had it not been well understood that ample provision was already made.

In pursuance of the intention of the General Assembly the four members of the Board of Public Works, appointed in March, 1839, proceeded to discharge their duties as Acting Commissioners. I infer this from the fact that at the next session of the General Assembly, that body enacted a law, of which the following is the 6th section, “ The General Assembly now in session, shall designate by joint resolution, three out of the four acting Commissioners, now in the service of the State, that shall be retained in office, with the term that each shall hold his appointment,” &c. (Swan’s Statutes, 764.)

Now, although the phraseology of this statute is somewhat obscure I can come to no other conclusion with respect to its meaning than such as is before stated. If I am correct in this it follows that Bates, the principal in the bond now in suit, was an Acting Commissioner, not in virtue of any appointment received from the Board of Public Works, but in virtue of his appointment as a member of that Board. He received no other appointment; by the law he could receive no other. There was in fact but one office. As a member of that Board he executed his bond, with the defendants as his securities. As a member of that Board he received the moneys of the State, and the defendants as his securities undertook that he should account for it. This he has failed to do, and it seems to me that upon every principle of law and justice, the defendants as his securities, should in conformity with the legal effect of their undertaking, be made responsible for the defalcation. well understood the nature and extent of their undertaking, and they ought not to escape from its obligation by any mere technical objection.

In my opinion the Judgment of the Court of Common Pleas should be reversed.


text:
    Alexander Gordon vs. Horatio N. Kearney.
    A. G., in Pittsburgh, drew upon his debtors in Zanesville for $114 04, subject to his own order, and indorsed the draft to W. M. &> Co., Exchange Brokers at Pittsburgh, who indorsed and sent it to 1*1. N. K., an Exchange Broker at Zanesville, for collection, who received the money upon it. Before the payment of the draft. W. M. & Co. failed and were indebted to PI. PT. K. in a sum larger than the amount of the draft, which indebtedness grew out of their dealings as Exchange Brokers. When the latter received the draft he had no notice that A. G. was its owner, but had such notice before the money was paid.
    Held that H. N. K. might retain and apply the proceeds of this draft on his own account against W. M. & Co.
    This is a Writ of Error to the Court of Common Pleas of Muskingun County.
    The original action was Assumpsit, brought to recover the proceeds of a bill of exchange. It was submitted to the Court of Common Pleas, on an agreed statement of facts; and judgment was rendered for defendant, to reverse which this writ is brought. The error assigned is, that the judgment was given below for the defendant.
    The agreed statement is as follows:
    It is agreed by the parties that the following affidavit of J. Gardner Coffin, signed by him, and taken on the 12th day of June, 1848, and hereto attached, be received as if the same were his deposition, taken by the plaintiff in this cause, upon due notice to the defendant, but in his absence, and without any cross-examination. •
    It is further agreed, that the following statement shall be taken as testimony in the case, on the trial thereof: That on the 22d day of March, 1848, Messrs. Warrick Martin & Co., then and for several years previous thereto, exchange and money brokers in Pittsburgh, in the State of Pennsylvania, enclosed in a letter of that date, addressed to the defendant, then and for several years previous thereto, an exchange and money broker in Zanesville, Ohio, a certain bill of exchange, drawn by the plaintiff, payable to his order, and indorsed by him, to said Warrick Martin & Co., and by them indorsed to the defendant, of which bill and the indorsement thereon, the following are copies:
    [$114 04.] Pittsburgh, March 18th, 1848.
    Thirty days after date, pay to the order of myself, one hun dred and fourteen dollars four cents, value received, and charge the same to account of
    Very Respect’ly Yours, &c.,
    ALEXANDER GORDON.
    To Messrs. J. B. & S. L. Cochran, >
    Zanesville, Ohio. 5

      Indorsed —
    “ Alexander Gordon,”
    “ Pay to H. N. Kearney, Esq.
    Warrick Martin & Co.
    That said letter, with its enclosure, reached Zanesville on March 25th, 1848, where it was received by the clerk of the defendant, the defendant himself being absent at Pittsburgh, where he was also on the 24th March, 1848, and on that day, at Pittsburgh, in person, advanced and paid to Warrick Martin & Co., on account, the sum of $70 37, with which he was then credited in his account on their books.
    For several years prior to this, there had been very frequent correspondence, and transmitting, between the defendant and Warrick Martin & Co., growing out of their business as such brokers, as aforesaid, running accounts being kept between them, then, and during that period. Warrick Martin & Co. had frequently, from time to time, forwarded to defendant notes and bills for collection, and upon receiving payment thereof, the defendant credited Warrick Martin & Co. in their account on his books, with the amount collected, and the same was from time to time paid to Warrick Martin & Co., upon their checks, or by remittances. Statements of accounts were from time to time transmitted by one party to the other, showing how the accounts stood between them.
    On the llth day of February, 1848, Warrick Martin & Co. were indebted to the defendant, on their account with him, in a balance of $162 70, and so continued indebted until the 24th day of March following, when their indebtedness was increased $70 37, the amount on that day advanced and paid to them by defendant, at Pittsburgh, as above mentioned. And on the 18th day of April, their indebtedness was increased by the further charge of $3 24, for premiums, making in the whole the sum of $ . The defendant made no other advances or payments to Warrick Martin & Co., after the llth day of February, 1848, than those above mentioned.
    On the 7th day of April, 1848, the defendant received an order from Warrick Martin & Co., (who in the meantime, having failed, had suspended business,) directing him to return the bill to the plaintiff, which the defendant declined to do. He claimed that according to the course of dealing between himself and Warrick Martin & Co., he had a right to retain the bill until the balance of accounts due to him from them was paid, he having then, on the 7th day of April, for the first time received notice that any other person than themselves claimed any interest in the bill, or its proceeds.
    On the receipt of the bill by the clerk of the defendant, it was by him presented to the drawers, who accepted it, and the same was afterwards, on the 20th day of April, 1848, paid by them to the defendant, and the amount thereof, $114 04, passed to the credit of Warrick Martin & Co., on his books, the defendant claiming to retain the money on account of the balance due from them to him on the account current them, as above mentioned. No consideration was paid by defendant for said bill, other than that which arose from the character of the dealings between him and Warrick Martin & Co., as before stated, and of which the plaintiff had not notice, other than the fact that Warrick Martin & Co. were exchange and money brokers, as before stated. No credit was given by Kearney to said Warrick Martin & Co., for said bill, until the payment thereof. Plaintiff knew that Kearny was an exchange and money broker, as before stated.
    The affidavit of Coffin, referred to in the agreed statement, stated that he was the clerk of Warrick Martin & Co., that the bill of exchange was left with them for collection simply, and that they had no interest in it or in its proceeds.
    Upon this agreed statement and affidavit the Court ruled the law of the case to be in favor of the defendant, and gave judgment accordingly.

      George James, for Plaintiff in Error,
    relied upon the case of Lawrence et. al. v Stonington Bank, 6 Conn. Rep. 521.

      C. C. &f T. Corners, for Defendant,
    cited the following authorities :

      Barnet et. al. v. Brandao, 6 Man. & Grang. Rep. 630 ; Bolland et. al. v. Bygrave, Ry. & Mood. Rep. 21; Rosanquet et. al. v. Beedman, 1 Stark. Rep. 1 ; Scott et. al. v. Franklin, 15 East’s Rep. 428; Jourdain v. Lefevre, et. al., 1 Esp. Rep, 66; Bank of Metropolis v. New England Bank, 1 Howard’s Rep. 231 ; Hodgson v. Payson, et. al., 3 Har. & Johns. Rep. 339.
   Birchard, C. J.

This case presents the single question whether a party entrusting commercial paper before due, with another, under such circumstances as to enable him to deal with the apparent rightful owner, and he does so deal, can retain the paper or its proceeds, by proving his original equity. The bill in question when it came to the hands of the defendant, bore evidence upon its face that it was the property of Warrick Martin & Co. They were its apparent owners; the public had a right to so treat them. That firm were brokers, living in Pittsburg, and doing business with the defendant, also a broker, residing in Zanesville. Each firm had been in the habit of crediting the other for sums of money received in this way, and remitting balance. This bill took the usual course, and the defendant having a balance of account against the persons from whom he received it, retained it to offset and liquidate that balance.

It looks like a case of hardship for the actual owner of the bill to lose it for the bare error of entrusting its collection to irresponsible money brokers. It would be equally a case of hardship if the defendant should be compelled to lose the amount, when, but for the credit by this means given to War-rick Martin & Co., ho would probably have taken measures to secure the balance of account due him. The rule in such cases is, that where one of two persons must sustain loss, he shall be the sufferer who placed the means of imposition in the hands of the wrong doer. Between two innocent persons, he shall suffer who incautiously gave the means of obtaining the false credit.

It is admitted by the counsel for the plaintiff in error, that if we follow the doctrine of the Supreme Court of the United States, in the case of the Bank of the Metropolis v. The New England Bank, 17 Pet. R. 174, we must sustain the judgment below. In that case it is said to have been "long settled that wherever a banker has advanced money to another, he has a lien on all the paper securities which are in his hands for the amount of his general balance, unless such securities were delivered to him under a particular agreement.” In that case the paper bore prima facie evidence that it was the property of the Commonwealth Bank. It was in fact the property of the N. E. Bank, but the Bank of the Metropolis received it from the former without notice that they were not the owners, and the Court say “ if an advance of money had been made upon this paper to the Commonwealth Bank, the right to retain it for the amount, would hardly be disputed.”

“ We do not perceive any difference in principle, between an advance of money, and a balance suffered to remain upon the faith of their mutual dealing. In the one case as in the other credit is given upon the credit of the paper deposited.”

This case appears to be decisive of the question presented by the agreed case, and it is sustained' by the English cases, to which we have been referred, and is also sustained by reason as well as authority. A loss must be borne by one of the parties. The misplaced confidence of the plaintiff has occasioned the-loss which he sustained. It was his want of caution in trusting commercial paper in irresponsible hands, as the apparent true owners, which enabled Warrick Martin & Co. to deal with and transmit it as their own. He was not bound to do this, he might have pursued the usual and safe course by sending it to an attorney of Zanesville for collection, or to the defendant. Or by proper inquiry he might have ascertained the responsibility of Warrick Martin & Co., and their mode of doing business. Having neglected this, he cannot compel the defendant who is guilty of no fault, to bear the consequences of his want of caution in placing his own property in hands unworthy of trust.

Judgment affirmed.

Read, J., dissented.


author: Hitchcock, J. Birchard, C. J.,

text:
    Zalmon Fitch vs. Harrison Mendenhall and others.
    Where there is the lien of a judgment, not sustained by levy within the year after rendition of the judgment, but older than the lein of a mortgage, the mortgagee cannot protect himself against the prior judgment lien, by the purchase of a junior judgment levied within the year.
    This is a Bill in Chancery reserved in Cuyahoga County.
    The case made in these pleadings is in substance as follows:
    The bill avers that on the 5th of May, 1838, Hutchinson, Bingham & Co., mortgaged to the Bank of Cleveland certain property in tho City of Cleveland, known as the “ Stone Mill ” property, to secure $19,500 00 secured by sundry notes. April 10th, 1839, no part of said debt being paid, said Bank, for the sole purpose of enabling said H., B. & Co., to raise money on the security of said premises to pay off said debt, and for no consideration whatever, but on the express condition that the same should not be used except on the actual receipt for the use of said Bank of at least $20,000 in cash, executed a release of said mortgage and delivered the same to said Bingham, at the same time, and as part of the same agreement, for the purpose of removing existing incumbrances upon said Mill property, and the “Warehouse” lot mentioned below, said Bank advanced to said H., B. & Co., the further sum of $10,000, with the express agreement that said H., B. & Co., should give her a mortgage upon both parcels of said land, subject only to the lien of such mortgage, as should be given to raise money as aforesaid, if any should be raised. The advance was used to remove incumbrances, and with the previous debt amounted to more than the value of both parcels of property. Bingham took said mortgage and the release thereof to New York, for the express purpose of raising money as aforesaid, and on the 23d of April, 1839, said H., B. & Co., executed and delivered to the Tenth Ward Bank, a mortgage on both said lots to secure ostensibly $35,000, which mortgage was delivered on the express agreement by said Tenth Ward Bank, that said Bingham should thereon receive for the use of Bank of Cleveland not less than $20,000. To obtain the same, and induce said Bingham to violate his express instructions, not to deliver the same until the actual receipt of said sum, said Tenth Ward Bank fraudulently and deceitfully promised to advance to him said sum of money in a few days thereafter; and thereupon, confiding in such promises, he delivered the same, but said Tenth Ward Bank refused to advance the money, and have ever since refused, and on the same 23d day of April, 1839, fraudulently caused said mortgage to be recorded. Said mortgage is charged to be wholly fraudulent and void, and in a suit commenced by the assignees fhereof, against said H., B. & Co. and said Banks, to enforce the same, and heard in this Court at the September term, A. D. 1845, the same was adjudged to be fraudulent and void, and the bill was dismissed, and threby the premises were discharged from all lien by reason thereof.
    April 30, 1839, H. Mendenhall recovered judgment against said H., B. & Co., which was affirmed in this Court on appeal, August 7, 1839, for $4,982 20; March 12, 1840, $2,000 was paid thereon. Also, April 20, 1839, Petrie and Root recovered judgment against saidTI., B. & Co., for $1,991 39, on which was paid, March 25, 1842, $500. Said judgments are at law liens upon said lands, but in equity subject to the original mortgage to said Bank of Cleveland, and to the right of the parties to execute the parol agreement to mortgage said property to secure the $10,000 advance, &c. Said judgments were levied on said lands, Sept. 10th, 1845, and the same were duly offered for sale. April 10th, 1839, said H., B. & Co., in pursuance of the parol agreement aforosaid, signed and sealed in due form of law, and on the 15th of May, 1839, acknowledged and delivered to said Bank a mortgage deed of the aforesaid premises, to secure the sum of $33,220 00 exclusive of interest, (including said advance of $10,000, and said debt of $19,500,) of which no part had been paid. The Bank failed ^^2, and the special commissioners on the 2d of July, 1844, and transferred to the complainant said mortgage, and all their demands and securities against said H., B. & Co.
    May 12, 1840, the Commercial Bank of Lake Erie recovered a judgment against said H., B. & Co., in Cuyahoga Common Pleas, for the sum of $4,828 04, which was levied on said premises, July 10th 1845, and was bona fide, and for value, sold and transferred to complainant, October 27, 1845. At the February term, 1845, in Summit county, one Hannah Hutchinson recovered a judgment against said A. S. Hutchinson for $6,859 00, which was levied on said premises February 26th, 1845, and on the 2d of September, 1845, was for value, and in good faith, sold to complainant. No part of said judgments has been paid. January 31, 1845, complainant filed his bill to sell said premises under the mortgage of April 10th, 1839, and at the September term of this Court, 1845, obtained a decree finding due him $43,209 60, and ordering, in default of its payment, the sale of the mortgaged premises, and that execution issue for the surplus after such sale, which decree was remanded to the Court of Common Pleas for execution. The bill charges that by reason of the fraud, &c., alleged, the first mortgage was not discharged, and its lien not removed in favor of said judgment creditors, and that the senior judgments not levied within one year, are to be postponed to the junior judgments first levied. The object of the bill is to set aside the release of the first mortgage, and to set up and establish said original .mortgage, and thus enforce its original lien upon the “ Stone Mill ” property; and to enforce the lien of the junior judments on the “ Warehouse ” property, abandoning the lien of the second mortgage thereon, and for general relief.
    The supplemental bill filed May 31, 1848, sets up that the decree for the sale of said mortgaged premises was remanded to the Common Pleas, and an order of sale issued, and that on the 26th of July, 1846, said premises were duly sold to complainant on his bid for the “ Stone Mill ” property of $23,700, and for the “Warehouse” lot of $8,700, leaving a balance due on said decree of about $ 13,200 00; and afterwards, to wit, on the 23d day of July, A. D. 1846, an execution was for the colection of such balance, and the same was levied on the aforesaid premises, the lien whereof, it is insisted, is paramount to that of said senior judgments.
    The answers substantially admit the material allegations of the bill except as to the transactions between the Bank of Cleveland, said H., B, & Co., and said Tenth Ward Bank, after the execution of the first mortgage. As to these matters, the answers aver that the release of said first mortgage was not in fact delivered to said Bingham, but that about April 1,1839, he visited New York city for the purpose of raising money from said Tenth Ward Bank, (same being then in process of organization,) for carrying on their business and repaying in part their loan to the Bank of Cleveland — that soon after, saidH., B. &, Co., supposing the arrangement in New York completed, applied to said Bank of Cleveland for aid, and said Bank, relying upon their representations, and upon information received from the agents of said Tenth Ward Bank, and upon report, discounted for them $10,000 to remove incumbrances, (which was so applied,) and on the '10th of April, executed the release, and the same was delivered absolutely, and not conditionally, and was forthwith recorded — that on the same day, H., B. & Co. executed to said Tenth Ward Bank separate mortgages upon said two parcels of property, and caused the same to be recorded, and procured from the Recorder a certificate that the premises were free from prior incumbrances, which with said mortgages, was forthwith forwarded to said Bingham in New York, all with the knowledge of said Bank of Cleveland. On receiving said mortgages, said Bingham found them unsatisfactory, and having learned that he could only obtain money from said Tenth Ward Bank by taking its stock, and then procuring a discount of said H., B. & Co’s notes to be secured by the stock, he returned to Cleveland to perfect the papers. On his return, he communicated this information to the Bank of Cleveland, and on the 23d of April, 1839, said H., B. & Co. executed to said Tenth Wm'd Bank, a new mortgage on both porcels of said property, secure the payment of $35,000, and caused the same to be recorded at that date. With this mortgage, said Bingham rerurned to New York, and May 3, 1839, closed his arrangement with said Tenth Ward Bank, delivered to her said mortgage, and received her certificates of stock to the amount of $35,000, and her written agreement to discount said H. B. &. Co’s, notes to the amount of $20,000, to run one year, on receiving as collateral security $25,000 of the stock certificates, $5,000 to be discounted when the Bank should commence discounting, and the same sum every fifteen days thereafter. Immediately thereafter, said Bingham returned to Cleveland, and informed said Bank of Cleveland what had been done, and thereupon, said H., B. & Co. assigned said stock certificates as collateral security to said Bank of Cleveland, whose officers did not then object that the condition of said delivery of said release had been violated, but accepted said stock as such security, and afterwards received and placed upon record the mortgage set up in the bill — that it was then expected that said Tenth Ward Bank would commence discounting about the 1st of July, 1839, and during that month said Bingham received from said Bank of Cleveland $12,500 in the certificates of said stock, and with it, and two notes of said H.,B. & Co. of $5,000 each, went to New York to procure $10,000 of the discount agreed upon. He found the Bank not ready to do business, and left both notes and stock with one Isaac Schuyler, to procure the discount when it could be done, and took for the same a receipt, which, on his return, he gave as collateral security to said Bank of Cleveland, together with an order on said Schuyler for said stock, which they, with a full knowledge of the facts, accepted, and which, together with the remaining $22,500 in stock certificates originally deposited with them, they still retain. The answers insist that said Bank of Cleveland and said complainant, have, by their acts, confirmed the action of said Bingham, and are thereby precluded from setting up said original mortgage against said senior judgments.

      Hitchcock, Wilson S/ Wade and Reuben Wood, for Complainant.

      Bolton Sf Kelley, Foot Sf Hoyt, Bishop Sf Backus, for Defendants.
   Hitchcock, J.

The controversy in this case is between a mortgagee or the assignee of a mortgagee and judgment creditors, as to which has the prior lien upon the premises named in the pleadings. The defendants, Mendenhall, and Petrie & Root, recovered judgments against Hutchinson, Bingham & Co. on the 30th April, 1839, which were liens on these premises. At this time there was no other incumbrance than the mortgage to the Tenth Ward Bank. That mortgage having been declared fraudulent and void by a decree of this Court, these judgments operate as a lien preferable to the mortgage of the bank of Cleveland of the 15th of May, 1839. The complainant having, as the assignee of this last mortgage, procured a decree for the sale of the mortgaged premises, and having at the sale purchased them in, now seeks to avoid the prior liens of the judgment creditors in a variety of ways.

The first ground upon which he seeks to produce this effect •is, by setting up the mortgage to the bank of Cleveland, which was released the 10th of April, 1839, for the reason that the release was procured by fraud. It is not pretended, at least in argument, that there was any fraud on the part of Hutchinson, Bingham & Co. to whom the release was executed. The only fraud imputed is to the Tenth Ward Bank. This question must be settled by the evidence in the case.

The testimony is not voluminous, and relates principally to transactions which transpired in April and May, 1839, relative to the mortgage referred to in the bill. From this testimony it appears that Hutchinson, Bingham & Co., in 1838 were indebted to the bank of Cleveland in the sum of nineteen thousand dollars and more, to secure the payment of which, they executed a mortgage to the bank on what is called in the pleadings the Stone Mill property.” Hutchinson, Bingham & Co. had property in the city of Cleveland which is denominated in the bill, the “ Ware Hoúse property.” In the first part of April, 1839, there were outstanding judgments which were liens, upon this “Ware House property,” and H., B. & Co. being anxious to relieve it from these incumbrances, and to carry on their business, applied to the bank of Cleveland for assistance. They supposed that they might procure money at the East upon the pledge of real estate, provided the same was unincumbered, and the Tenth Ward Bank was spoken of as an institution in operation or about to go into operation, from which such money might be obtained. The Bank of Cleveland was anxious to obtain payment of the debt from Hutchinson, Bingham & Co., and was willing to assist them, if by so doing they would eventually receive such payment and re ceive it at an earlier period than payment could be enforced by proceeding upon the mortgage. Eventually an arrangement was made, by which the Bank of Cleveland agreed to make an additional advancement of ten thousand dollars with which the incumbrances upon the “Ware House property” were to be removed ; also to release their mortgage upon the “ Stone Mill property,” Hutchinson, Bingham & Co. agreeing to pay to the bank of the money which they might obtain by a pledge of the same property, twenty thousand dollars, and to execute another mortgage upon the “ Stone Mill property ” and the “Ware House property” to secure the balance that would still remain due. This latter mortgage however to be subordinate to any lien PI., B. & Co. might create upon the property in effecting a loan at the East.

It is claimed by the complainant that there was an express agreement, that no mortgage should be made by H., B. & Co., unless upon the loan and receipt of at least twenty thousand dollars. Upon this point the testimony is not clear, but leaves it doubtful whether there was any such agreement, although it is manifest that the Bank of Cleveland would not have entered into the arrangement, but for the expectation of receiving that amount of money. In consequence of this arrangement, in the early part of April, 1839, the ten thousand dollars were ced, the incumbrances removed, and the mortgage of 1838 released. A new mortgage was executed upon both pieces of property by H., JB. & Co., and forwarded to Bingham, who was then in New York, attempting to negotiate a loan. He found, however, that this could not be effected with the Tenth Ward Bank, except by taking stock, and then pledging the stock to secure the payment of the loan, but there was some difficulty about the mo'rtgage and other papers which he had received, and he returned to Cleveland. When at Cleveland, he procured the necessary alterations in the mortgage and other papers, and as he thinks, informed the officers of the Bank of what he had done, and of the only mode by which he expected to procure money. After which he returned to New York, completed the arrangement with the Tenth Ward Bank, took thirty-five thousand dollars of its stock, and as collateral security for its payment, delivered the mortgage upon the “ stone mill property,” and the “ ware house property,” in Cleveland. Having done this, he proposed to borrow twenty-five or thirty thousand dollars upon a pledge of this stock. The Bank, however, refused the loan, and in fact was not in a situation to make it. This transpired the latter part of April, or early in May. The mortgage to the Tenth Ward Bank was recorded on the 23d of April, 1839, and on the 30th of the same month the judgments of the defendants were rendered. The Tenth Ward Bank eventually, and as part of the original agreement, agreed to loan H., B. & Co. twenty thousand dollars, upon the pledge of twenty-five thousand dollars of stock, five thousand to be advanced as soon as the Bank should commence discounting, and five thousand at the end of each fifteen days thereafter. . It was then expected that the Bank would commence discounting on the first of July next following. After making this last arrangement, Bingham returned to Cleveland, and informed the officers of the Bank of Cleveland of what he had done, and of his prospects. The officers were disappointed and expressed dissatisbut eventually took a mortgage on the before mentioned in Cleveland, to secure the indebtedness of H., B. & Co., to the Bank, and also received the stock of the Tenth Ward Bank as further security. In July following, Bingham received $12,500 of this stock from the Bank of Cleveland and took it to Ne.w York, expecting to pledge the same for ten thousand dollars, part of the loan agreed upon. The Bank, however, had not yet got into operation, and he left the stock with Lane Schuyler, to hand the same over to the Bank, and to receive the money, when the Bank should commence discounting. Schuyler subsequently received upon a pledge of this stock, $6,500, in money, and $3,500 in stock; but no part of the money ever came to the possession of H., B. & Co., or of the Bank of Cleveland, Schuyler claiming the right to apply it upon claims which he had or pretended to have upon H., B. & Co.

By a decree of this Court, heretofore rendered, the mortgage to the Tenth Ward Bank has been declared to be fraudulent and void.

Upon examination of this testimony, I do not find that the Tenth Ward Bank had any communication with the Bank of Cleveland upon this subject, nor is there any pretence that it held forth any inducements to the latter to procure it to execute this release. In fact, the release itself was executed before any arrangement was made with the Tenth Ward Bank. In all the transactions relative to this business, the Bank of Cleveland contracted alone with H., B. & Co., and H., B. & Co., with the Tenth Ward Bank. The fraud of the Tenth Ward Bank, so far as there was any fraud, was upon H., B. & Co. The Bank of Cleveland undoubtedly suffered in consequence of this fraud; not however, from giving any credit to assurances made to it, by the Tenth Ward Bank, but from giving credit to the assurances and promises of H., B. & Co. The consideration for which the release was executed failed. Or rather, the expectations which induced the execution of the release were never realized, and probably at the time Bingham returned to Cleveland, in April, and informed the officers of the Bank that he could effect ,a loan in no other way than by the purchase of stock, they might by instituting proceedings, have compelled the of a new mortgage, or have avoided the release. Possibly this might have been done, upon his return in May with the stock of the Tenth Ward Bank.

This, however, was not attempted. On the contrary, the Bank of Cleveland took a new mortgage, and also as additional security, $35,000 of the stock of the Tenth Ward Bank. Thereby affirming, instead of disaffirming, what H., B. & Co. had done. And no attempt was- made to avoid the release. Neither did the complainant, who upon the sale of the assetts of the Bank of Cleveland, became the assignee of the debt due from H., B.' & Co., attempt to set up the mortgage of 1838, but filed his bill to foreclose the .mortgage of 15th May, 1839, procured a decree, and had the premises sold under that decree. Under these circumstances, after this apparent acquiescence, and after this delay, it seems to the Court that it is now too late to attempt to avoid the release and set up the mortgage of 1838.

The next ground upon which the complainant attempts to waive the prior lien of these judgment creditors, is that he is a purchaser of judgments which were junior, in point of time, to the judgments of the defendants, but upon which executions were issued, and levied upon said premises. The facts appear to be these. On the 12th of-May, 1840, the Commercial Bank of Lake Erie recovered a judgment against H. B. & Co., for the sum of $4,848 04. An execution was issued and levied upon the premises, July 10th, 1845. After the-levy was made, the complainant purchased in this judgment, as he says, bona fide, “ and for value.” The amount of this value is not stated. In like'jmanner, a judgment was recovered in Summit county in February, 1845, by Hannah Hutchinson, against AmosS. Hutch inson, one of the firm of H., B. & Co. Execution was issued and levied upon the premises, and on the second of September, 1845, this judgment was purchased in by the complainant. At the time these judgments were purchased in, the complainant had a bill depending to foreclose the mortgage of the 15th May, 1839. Here is an attempt to tack junior judgments to a mortgage, in order to overreach a judgment which has a prior lien to the mortgage.

As this principle of tacking has never been recognized, under our jurisprudence, I suppose that the complainant, as the assignee of these judgments, is placed in no better situation than would be the creditors themselves. Now the rights of creditors and mortgagees, under such circumstances, as in the present case, are settled by this Court in the case of Brazee et al v. Lancaster Bank, 14 Ohio Rep. 318, in which it was decided that “ as between an older judgment, not sustained by levy within the year, an intervening mortgage, and a junior judgment, sustained by levy, the older judgment must be first satisfied.” The same principle has been recognized and affirmed in subsequent cases.

The next and last cause for relief is, that the complainant, after having purchased in the premises, under his decree for the sale thereof, caused an execution to be levied on the premises, to satisfy the balance due upon the decree, after the first sale. The facts are, the defendant, at the September Term of this Court, 1845, obtained a decree finding due to him $43,209 60, and ordering, in default of payment, the sale of the mortgaged premises, and that execution issue for the surplus, if any, after such sale. The premises were sold, and purchased in by the complainant,!;at $30,009 60, leaving a balance due upon the mortgage of $13,009. To collect this balance, an execution was issued, at the suit of complainant, and levied on the same premises, which were already his, by previous purchase. This levy was made on the 23d of July, 1846, and by virtue of it, complainant claims that he occupies the situation of a junior judgment, sustained by levy within the year. There is some ingenuity, and certainly entire novelty, in this effort to defeat prior judgment liens. But there is one difficulty in the way. It was the duty of the complainant to have made these judgment creditors parties to his bill for foreclosure; and not having done so, their rights are not affected by his decree, in ever shape he may place it. If they had been made lipón the sale of the premises, the Court would have directed, in the distribution of the avails, that their judgments should have been first satisfied. It was their right to have them first satisfied, and they are not to be deprived of that right, in consequence of the neglect of the complainant to give them notice, by making them parties to his bill for a foreclosure.

1till dismissed.

Birchard, C. J.,

dissenting. I could for myself find sufficient in the facts and conduct of the parties to justify me in decreeing that the release of the original mortgage should be cancelled in equity. The debt of $19,500 was, in equity and law, a valid lien upon the Stone Mill property, and but for the arrangement that was entered into with H., B. & Co., these respondents could never have received one cent from the avails of that property. They stand then in no better condition than H., B. & Co., as against them, all my brethren would go with me in avoiding the release of that mortgage, but for the sup.posed subsequent ratification by the Cleveland Bank. The acts since done, to my mind, ought to be viewed in reference to 'the condition of things, and the situation and intentions of the parties. The proof is clear that the officers of the Cleveland Bank were dissatisfied with the arrangement made with the Tenth Ward Bank, not that they ratified the conduct of II., B. & Co., in reference to the property. If, then, their conduct ratifies the proceedings and works a satisfaction of the mortgage, it does so contrary to the intention of the parties. Whereas the rule in equity is to consider that as done only, which the parties intended should be done, and which of right ought to have been done. Now in the situation in which the Bank of Cleveland was placed, by the entire failure of the condition upon which the release of their older mortgage was given, and the ten thousand dollars in addition advanced, I can see reasons abundant why it should struggle to obtain further security, an<^ no necessity attributing in equity to those acts, an object entirely different from actual intention.

This point being ruled against me, I am not disposed to enlarge upon it, or to go into a minute examination of the particular facts and apply to them the well settled legal principles which would seem to sustain my views. Indeed other and important business renders that course impracticable, and I know not that any valuable public object would be advanced by so doing. Taking that point as rightly settled by the majority, against me, and the residue of the conclusions of the Court in the case are such that I can concur with them. Still, were this one point to be held with me, I should work out a final result different in important points from that now arrived at.


author: Avert, J.

text:
    Rhoda M. Stearns vs. Abraham Cox.
    In an action of slander, the plaintiff may give evidence of the speaking of other words to prove the malicious intent of the defendant.
    If a witness is offered to give evidence that is admissible for one purpose, but is rejected because offered by the counsel for a different purpose, he ought not by the mistake or misapprehension of the counsel, to be rejected, when again offered on the correct ground.
    This is a Writ of Error to the Court of Common Pleas of Marion County.
    The facts of the case are stated in the opinion of the Court.

      Rowe 8f Durfee, for Plaintiff in Error.
    J. H. Godman, for Defendant.
   Avert, J.

The action in the Common Pleas was Case, for a malicious prosecution, with counts in the declaration for slanderous words spoken.

The prosecution complained of, and which was before a Jus- iN Bank. tice of the Peace, was for the crime of Perjury, and the words De j8fge,m alleged to have been spoken, charged the same crime upon the plaintiff.

The plea was the general issue, with a notice of justification.

The verdict and judgment were against the plaintiff.

Upon the trial the plaintiff sought to give in evidence a transcript from the docket of Philip Hubbert, a Justice of the Peace, of the proceedings before him, in the prosecution for Perjury, but the evidence was rejected. To this the plaintiff’s counsel excepted. He also excepted to the charge made by the Court, and to the refusal of the Court to charge as requested by him. But the decision in this case is not founded upon either of the above mentioned errors, but upon two other causes of error, appearing in the bill of exceptions. I shall notice these only.

And first. The plaintiff for the purpose of proving malice, offered a witness to testify that on a specified day, and more than a year before the commencement of this suit, the defendant had charged the plaintiff with stealing divers articles from him. But the Court decided that such evidence was not proper, and refused to permit the witness to testify on that subject.

In this we think there was error. There is perhaps no case in which it would be proper in an action of slander, to exclude all testimony offered for the single purpose of proving malice. In the case before the Court there existed much stronger reason than in most other cases, for proving express malice. The witnesses who had testified on the part of the plaintiff, to the words charged as slanderous, were the Justice of the Peace who tried the cause, and a man by the name of McNeal, not a lawyer, but one who had at times been called upon to assist parties litigant before a Justice of the Peace. The words were spoken about the time of instituting the prosecution, and when the defendant was seeking advice and directions how to proceed for that purpose. In such a case it was important, if not indispensible, to show that malice, and not the desire to bring an offender to justice, formed the motive for proceeding in the prosecution. To prove the existence of this necessary ingredi- ’ ent in slander, both the acts and declarations of the defendant ■ may be given in evidence. Words not actionable have, I believe, been universally held to be admissible for that purpose. But words actionable in themselves, which were not included in the declaration, were once regarded as inadmissible. So a distinction was sometimes taken between words of that character, spoken before the suit for slander was brought, and those spoken afterwards. But for some time past, the distinction in this respect, between words actionable and those not actionable, seems to have been very generally overruled, as well as that between words spoken before and after suit commenced. Starkie’s Evidence, vol. 2, 869, and the cases there referred to. The introduction of the actionable words, it is true, would not bar a suit subsequently brought to recover damages for the speaking of the same words. When they are so introduced, however, it is not for the purpose of enhancing the damages; they are of course not admissible with that view, but only to show the intent, with which the slanderous words stated in the declaration, were uttered by the defendant. For this purpose they have been heretofore admitted by this Court.

The second error was the rejection of another witness offered by the plaintiff. By the bill of exceptions it appears that to show the plaintiff’s bad character, the defendant had proved reports against her, and amongst them one raised and sworn to by George W. Boyce. To support her good character and prove the falsehood of said reports, the plaintiff offered divers witnesses, and amongst others one William Boyce, to prove that the report raised and sworn to by said George W. Boyce, he had admitted not tojre true; the Court then asked the plaintiff’s counsel whether they called said William to impeach said George, to which they replied that they did not, and disclaimed all intention of impeaching him, but to prove the statement made by him was false. The Court then ruled that the testimony was incompetent for that purpose, and could only be given to impeach said George. The plaintiff’s counsel then offered the same testimony to impeach the said George, and the Court ruled that plaintiff’s, counsel had made their election and disclaimed all intention to impeach Boyce, and for reason excluded his testimony. Afterwards when the plaintiff’s counsel were recalling their rebutting testimony they recalled the said William Boyce, and stated that they did so for the purpose of impeaching said George W. Boyce. But the Court rejected the testimony. This does not strike us as a case where the doctrine of election applies ; or as a case where the counsel should be prevented from having the benefit of testimony, because of a mistake or misapprehension as to the true principle upon which they were entitled to it, when after-wards they place their claim upon the correct ground.

That the testimony was admissible, cannot be denied; that it was proper in one of the aspects as claimed by the counsel, seemed to be conceded by the Court. For one of the purposes then, for which it was offered, it ought to have been allowed. In rejecting it there was error, and for the two errors herein pointed out, the judgment is reversed.