text:
    The President, Directors, and Company of the Bank of Wooster v. Hiram C. Stevens, William H. Alden, and William R. Chidester.
    Where a bank takes a bond which is void for usury, with a warrant of attorney to confess judgment annexed, from S., as principal, and O. and A., as sureties, and judgment is taken against all without process or notice, and the bank afterward files a bill in chancery to subject equities of the sureties to the payment of the judgment, the sureties, though ignorant of the usury until after the rendition of the judgment, can not, by cross-bill, allege the usury, and have relief against it, without a tender of the amount due in equity.
    *In such a case, the same allegations and proof are requisite in a cross-. [263 bill that would be required in an original bill seeking to impeach the judgment for usury, and the rights and remedies of the principal and sureties are the same.
    In chancery. Reserved in the county of Medina.
    The facts in the case sufficiently appear in the opinion of the court.

      E. Deane & N. S. Swayne, for complainants :
    1. This cross-bill is an original bill, and is so to be treated for all purposes. Story Eq. Pl. 602, secs. 630, 631; 3 Dan. Ch. Pr. 1746; 6 Welf. Eq. Pl. 123.
    2. This cross-bill is defective in not averring a tender, etc. In this respect it is like any Other original bill. This defect is jurisdictional and fatal. 11 Ohio, 418; 13 Ib. 113; 1 Paige, 429; 1 Blackf. 382; 5 Vt. 279; 1 Clark, 482; 5 Johns. Ch. 137, 142-144; 1 Ib. 367, 439; 7 Paige, 158, 162; 8 Ib. 548; 3 Ib. 532; 4 Bro. C. C. 436, note, etc.; Story Eq. Pl. 602, sec. 630; 3 Dan. Ch. Pr. 1736; Welf. 122; 10 Pet. 521, 522.

      3. There is no difference in principle between a bank in such a case and an individual, where there are usury laws which avoid contracts tainted with usury. 8 Ohio; 12 Ohio, 544; 1 Ohio St. 311, 312.
    4. In such cases the principal and sureties occupy the same position. 3 Ohio St. 305; 7 Paige, 158, 162.

      Canfield, Young & Kimball, for defendants:
    1. The bank had no power to make the contract. 8 Ohio, 257; 11 Ib. 489; 13 Ib. 1. It was therefore a void contract, and chancery will sot it aside without tender of the amount actually received on it. 16 Ves. 125 (top paging), note 2; 2 Ib. 156, and note 4; 9 Ib, 494; 5 Ib. 608.
    *2. The cross-bill is, in its nature, a defense, and a distinction is made in the terms upon which relief was granted, according to whether the usury is shown by a defense or otherwise — the rules applicable to a.defense should be applied. Mitf. Pl. 76; Dan. Ch. Pr. 121; 5 Johns. Ch. 135, 141; 15 Ala. 501; Story Eq. Pl., secs. 392, 393; 1 Story Eq. Jur., secs. 59, 301; 3 Paige, 532; 1 Ib. 429; 1 Foub., ch. 4, sec. 7, note, and ch. 2, sec. 13.
    3. Sureties do not come within the rule governing cases of usury, that what has actually been received shall be paid.
    4. Where the lender comes into a court of equity for relief, and the borrower sets up usury, he is not required to pay principal. 3 Bibb, 207; 4 Bibb, 460; 1 Foub. 25; Willard Eq. 216; 4 Barn. & Adolph. 92.
    The counsel made and argued other questions beside those above stated; but, as the decision of the court does not involve them, they are omitted.
   Brinkerhoff, J.

Hiram C. Stevens, William R. Chidester, and William H. Alden, executed their bond to the Bank of Wooster, with a power of attorney to confess judgment annexed, for a loan of money; Stevens being the principal, and Chidester and Alden sureties; and in March, 1837, judgment by confession, under the warrant of attorney, and without notice or process, was taken against them in the common pleas of Richland county. In October, 1849, suit was brought in the common pleas of Medina county, on the record of this judgment, and a new judgment obtained against the same defendants. In February, 1850, the original bill in this case was filed in Medina county, against the defendants to* the judgment and others, to subject equities of the judgment debtors to *the payment of the judgment. The sureties, in [265-their answer, set up, as a defense to the bill, usury in the bond on which the first judgment was taken, and allege that they were ignorant of such usury until after the rendition of both judgments. After replication, proof tending to establish the fact of usury was-taken, and the case having been' appealed, it was reserved for decision in this court, and is reported in 1 Ohio St. 233.

This court then held, that the contract having been merged in the judgment, and a creditor’s bill brought to obtain satisfaction, th e parties to it were estopped, while it remained in force, .from, averring or proving illegality to have existed in the original obligation, for the purpose of impeaching the judgment, but at the same-time suggested that a cross-bill might be filed to set aside the judg- ■ ment, “ upon such terms as the relation of the defendants to the matter would entitle them to assume.”

The ease having been remanded for further proceedings, the sureties, in September, 1853, filed their cross-bill, seeking to impeach the original judgment for usury in the bond, but without averring-any tender or offer to pay the amount equitably due without the usury, and, whether they can be permitted to do this, or, in other words, whether a tender of such payment is not one of the “terms ” imposed by the relation of the defendants to the matter,” is the-question before us.

If the defendants had filed an original bill to impeach the judgment for usury, such bill would be bad on demurrer, unless it averred a tender of the amount due in equity. If this familiar-principle needs any support, it will be found to be abundantly sustained by the authorities cited by counsel for complainant. And we are of opinion that the same averment is necessary in a cross-bill filed for the same purpose. Fanning v. Dunham, 5 Johns. Ch. *145; Fulton Bank v. Beach, 1 Paige, 433; Story’s Eq. Pl., [266 secs. 630, 398; Welford’s Eq. Pl. 229, 230.

We can see no difference in principle between a case like this, where a bank takes the usurious security, and one w[iere a natural person takes a like-security in states where by law such securities-are declared void. In the one ease the security is void, because the law has never conferred the capacity or power to make such a contract ; and in the other, because the capacity in this respect natur.ally and originally existing, is taken away by positive law. And no difference seems to have been recognized in the adjudicated cases. Fulton Bank v. Beach, ubi sup.; Spalding v. Bank of Muskingum, 12 Ohio, 544; Conant v. Seneca County Bank, 1 Ohio St. 311.

Nor is there any difference, in cases of this kind, between a prin-cipal and a surety in a usurious obligation; their rights and remedies are the same. Selzer v. Brock, 3 Ohio St. 305; Campbell v. Morrison, 7 Paige, 158. This case in no way conflicts with that of Corcoran & Riggs v. Hinton et al., decided at the present term; for in that case the complainants sought relief on a usurious contract .never established at law or merged in a judgment.

Cause remanded to the district court for further pvoceedings.

Bartley, C. J., and Swan, Bowen, and Scott, JJ., concurred.


source: Caselaw Access Project

author: Bowen, J.

license: Public Domain

text:
    Aaron Starkey v. The State of Ohio.
    'The circulating notes of banks of other states are property which may be the subject of larceny, although they are, in amounts, below the denomination . of ten dollars, and, at the time of the felonious taking, their circulation . was prohibited by positive law.
    'The second section of the act of May 1, 1854, to prohibit the circulation of . 267] *foreign bank-notes of a less denomination than 'ten dollars, when considered in connection with the latter clause of the first section of the same act, makes the employment of such bank-notes as a circulating medium, and of contracts predicated upon them, worthless, but saves to the bofia, fide holders of them the right of property therein, and the protection of the law over them, when not used in contravention of its clearly expressed objects.
    Application for a writ of error to the judgment of the probate ■court of Hocking county.
    There is a sufficient statement of facts in the opinion of the court.

      Groghan & Browne, and Hunter & Daugherty, for Starkey.

      The Attorney-General, for the state.
   Bowen, J.

An information was filed in the probate court on the-7th of April, 1856, charging the defendant, Starkey, with stealing a. bank-bill of the denomination and value of five dollars. Not guilty was pleaded, and the trial of the issue, submitted to the-judge of the court, who found defendant guilty, and also found the value of the property stolen to be $4.50, and assessed a fine of $20-against the defendant, and ordered him to pay the costs, and to restore twofold of the amount stolen.

The probate judge signed a bill of exceptions tendered by the-defendant; from which it appears that on the 3d of March, 1856, the defendant stole a bank-note of the denomination of five dollars, issued by the Interior Bank of Georgia, and not made payable at any bank within this state; and that the felonious taking of said note was the cause of his arrest, and of the filing of the information against him.

It is claimed by the defendant that he was wrongfully found, guilty of the larceny imputed to him, and that he should have a writ of error to reverse the proceedings of *the probate judge. [268 He assumes that a person is not guilty of larceny in its legal sense, unless the thing stolen has gome actual legal value. This proposition is undoubtedly true, and does not seem to have been disputed by the court which tried the case; yet it was found that the stolen property was of value. We are referred, in support of the application, to the act to prohibit the circulation of foreign bank-bills of a less denomination than ten dollars, passed May 1, 1854. Swan’s Stat. of 1854, p. 116.

The second section of this act provides: 11 That all bank-bills of a. less denomination than ten dollars, unless issued by, and made payable at one of the banks of this state, in accordance with the laws-of this state, shall not, directly or indirectly, be paid out or received in payment of any tax, debt, judgment, decree, fine, or amercement, or other demand whatever; and all such unlawful paper shall beheld in this 'state to be worthless; and all contracts in relation thereto null and void; and any disbursements, or payments, or exchange for other property of value, made, or attempted to be made therewith, of no effect whatever.”

If the effect of this section be to divest foreign bank-bills of their-value, within this state, and to remove entirely from them, as property, all protection of the law, then it must follow that depredations-against the owners of them must go unpunished. Such, however,. ■we think, was not the intention of the law. It makes the employment of the paper, as a Circulating medium, and as the predicate •of contracts, worthless. It was sought by it to protect the public against what was supposed to be an evil of much mischevious tendency, and at'the same time to secure to the holders of such-notes their property therein, but to impose restrictions against the right -of passing them as money in the ordinary and usual business transactions. It was not intended that if an individual should 269]- *be robbed of, or have stolen from him the bank-notes of .another state, he should be without remedy against the aggressor, and denied the rights of property therein, and of the value thereof, •■simply because they purport, in amounts, to be below the denomination of ten dollars. Such absurdity is not justly chargeable upon the law. The section quoted will not warrant that construction, when considered by itself alone. But the first section of the same .act provides that “ the mere transfer or receiving such unlawful paper bona fide, for the purpose of sending it out of this state for redemption, shall not be deemed a violation of the act.” Thus we ■see that property in the paper is not extinguished. It is expressly ¡saved for one purpose; and from necessity in strict harmony with the law, when not used in contravention of its clearly expressed ■•object, it must continue to be property possessing value, as well within as without the state, for a violation of which, in the hands •of a lawful holder of it, the penalties of larceny may attach.

The writ is denied.

Bartley, C. J., and Swan, Brinkerhoee, and Scott, JJ., con ■curred.


author: Brinkerhoff, J.

text:
    *Gardner Lathrop and wife v. David T. Snellbaker.
    Where a justice of the peace neglects to write out an appeal bond over the name of the surety signed in blank on his docket, and in a transcript from the same, the bond falsely purports to have been written out in time, whereby the plaintiffs fail in their action against the surety, the statute of limitations begins to run from the date of the negligence, and not from the time when the plaintiffs acquired knowledge of it.
    Whether such a state of facts, thus set up in the petition against the magistrate, is a sufficient allegation of fraud — qucere.
    The cases of Kerns v. Schoonmaker, 4 Ohio, 331, and Fee’s Administrator v. Fee, 10 Ohio, 469, followed.
    Error to the Superior Court of Cincinnati:
    The plaintiffs in error, who were the plaintiffs below, filed their petition in the Superior Court of Cincinnati against the defendant in error, who was the defendant below, stating “ that on the 10th day of January, a. d. 1850, the said defendant was an acting justice of the peace in and for the township of Cincinnati, county of Hamilton, and State of Ohio, duly commissioned and sworn; that on said- day the plaintiffs recovered a judgment before said defendant, as such justice of the peace, against Joseph Dupler, for the sum of 181.12 damages, and $9.25 costs; that from said judgment said Dupler attempted to take an appeal to the court of common pleas, of said county, and offered as security for that purpose one David Ichler, who signed his name on the docket of said justice; that said justice made a transcript of his proceedings and judgment in said cause, including what purports to be a copy of the bond of said. Ichler taken by said justice. That the transcript aforesaid was filed by said Dupler in the court of common pleas on the 4th day of February, 1850; that at the November term, 1850, of said court, the 277] ^plaintiffs recovered a judgment on said transcript against, said Dupler for the sum of ninety dollars damages, together with costs. On which said judgment an execution was issued to the sheriff of said county, and returned, ‘ no goods or chattels, lands or tenements,’ etc. That afterward, on the 9th day of November, 1854, the plaintiffs commenced an action before William Chidsey, a. justice of the peace in and for said township and county, against the said David Ichler, as security, as aforesaid; and on the trial of the said last-mentioned case, it was proven in evidence that, although said Ichler had signed his name on the docket of said Justice Snell-baker, the latter had failed to write out the bond, which in his-aforesaid transcript he purports to have copied; so that, in fact, no bond was taken by said Snellbaker in the case wherein these plaintiffs sued Joseph Dupler, as aforesaid. And for the last-mentioned cause, said Justice Chidsey rendered a judgment for said Ichleragainst these plaintiffs for costs, amounting to 11.50. That the neglect or omission of duty by said Snellbaker, as aforesaid, was not discovered by or known to the plaintiffs until the said trial before-Justice Chidsey. And the plaintiffs represent that the said Ichler is solvent, and responsible for the amount for which he intended to-become security, as aforesaid; and that by reason of the neglect and omission of said Snellbaker to draw up a bond, as by law he was required to do .in such case, these plaintiffs are prevented from recovering their claim against said Dupler and Ichler.
    “ Whereupon they ask judgment against the defendant for the-amount of the judgment in the common pleas, and costs before said Justice Chidsey, with interest,” etc.
    To this petition Snellbaker made answer “ that the’cause of actiou mentioned in the said petition did not accrue within one year be-278] fore the commencement of the *said action, and that the said-cause of action is barred by the statute-of limitations,” etc.
    At the April term, 1855, of said Superior Court, the cause came ■on to be heard upon petition and answer, and the court, to whom the issue joined was submitted, found for the.defendant, and had judgment entered against the plaintiffs for costs.
    Upon the record showing this state of facts the plaintiffs assign .for error, “ That the judgment of the said court was for the said defendant, when by law it should have been for the plaintiffs on the issue pretended to be made by the answer in said cause, the said .answer being insufficient in law to bar the plaintiff’s action.”

      W. W. Warden, and Warden & Bankin, for the plaintiffs in error.

      R .B. Warden

    cited Angell on Limitations, sections 3-11, 184, 186, 191, 298, 301, and made an oral argument for plaintiffs in error.

      Tilden, Rairden & Curwen, for the defendant in error,
    cited Kerns v. Schoonmaker, 4 Ohio, 331; Fee v. Fee, 10 Ohio, 469.
   Brinkerhoff, J.

The statute of limitations here properly relied •on, is that of the 18th of February, 1831. A majority of the court, are of opinion that this case is in effect decided by the cases of Kerns v. Schoonmaker, 4 Ohio, 331, and Fee’s Administrator v. Fee, 10 Ohio, 469. We are aware there are conflicting opinions as to ■the soundness of the doctrine declared in the latter case, but we are not now- disposed to review it, even if the fraud relied on in argument to take the case out of the operation of the statute can be held to be sufficiently alleged, which is, at least, very doubtful; and especially as the new statute *of limitations, embodied in the [279 •code of civil procedure, has materially modified the rule as settled in that case, which therefore can be applied to but a remnant of a class of cases remaining to be determined under the old statute. We think therefore that the judgment ought to be affirmed.

Judgment accordingly.

Swan, Bowen, and Scott, JJ\, concurred.

Bartlet, C. J., dissented.


author: Bartley, C. J.

text:
    Latimer, Colburn, and Lupton v. William D. Morgan, Auditor, etc., and Henry P. Bowman, Treasurer, etc., and others.
    The decision in the case of the Exchange Bank of Columbus v. Hines, Treasurer, etc., 3 Ohio St. 1, giving a construction to the 2d and 3d sections of the 12th article of the constitution, an'd declaring unconstitutional and void the 1.0th section of the tax law of April 13, 1852, approved and followed.
   Bartley, C. J.

This is a motion for leave to file a petition, in error, to reverse the judgment of the Superior Court of Cincinnati, in general term, rendered in March, 1857, affirming the judgment of the Superior Court at spoecial term, held by Bellamy Storer, one of the judges of said court. The question presented, is that of the constitutionality of the tenth section of the tax law of April 13, 1852, decided by this court in the case of the Exchange Bank of Columbus v. Hines, 3 Ohio St. 1, which, as it appears, the Superior Court followed. We are now asked to review and ovei’rule this decision, and reverse the judgment of the court below.

*We are fully satisfied with the correctness of the decision in the case of the Exchange Bank of Columbus v. Hines, and feel no disposition to disturb it.

Motion overruled.

Swan, Brinkerhoee, Bowen, and Scott, JJ., concurred.


author: J. R. Swan, J.

text:
    The State of Ohio, ex rel. Moran Brothers, v. The Commissioners and Auditor of Clinton County.
    The commissioners of Clinton county issued tbeir negotiable bonds, with warrants for the interest attached, under the act authorizing the commissioners of Clinton county to subscribe for the stock of the Cincinnati, Wilmington and Zanesville Railroad Company, passed March 1, 1851. Reid, that the holders of the bonds issued to and negotiated by the railroad company were entitled to the interest from the county, and that the county must lo.ok to the railroad company to be reimbursed the amount paid by the county. That it was the duty of the county commissioners, in case the railroad company did not provide for the payment of the interest, to assess a tax sufficient to meet it, and, in default thereof, a holder of a bond, as relator, could enforce the duty of the county commissioners by mandamus.
    The facts are these:
    On the 15th of May, 1851, the commissioners of Clinton county subscribed $200,000, to the capital stock of the Cincinnati, Wilmington and Zanesville Railroad Company, and agreed to pay the same in the bonds of the county at their par value, to be issued to said company on the terms and under the restrictions imposed by the act of March 1, 1851 (49 L. L. 519).
    On the 3d of March, 1852, the commissioners and the railroad company entered into a written agreement to the ^effect that [281 said company would pay all the interest which “shall or may accrue on the bonds which shall or may be issued by the commissioners for the purpose of paying said subscription; and that said company shall be entitled to the dividends of said stock, until the bonds shall be redeemed by the commissioners.”
    On the 23d day of March, 1852, the commissioners delivered to the railroad company 150 bonds of said county calling for $1,000, each; also 80 bonds of said county for $500 each ; and the bonds so issued were received by the company in full payment of $190,000 of said subscription. On the 30th of March, 1854, the auditor, by order of the commissioners, delivered to the company 100 bonds of the county for $100 each; which were received by the company as the balance in full of said subscription.
    The bonds bear date January 1, 1852 ; recite that they are issued by virtue of the act of March 1, 1851, quoting the title of the act; are made payable to the Cincinnati, Wilmington and Zanesville Railroad Company, or bearer, at the Trust Company Bank, N. Y., on the-1st of January, 1867, and call for 7 per cent, interest, payable annually at the same place. ■ '
    They are indorsed by the railroad company; payment of principal and interest is guaranteed by it; and they are made convertible at par into the stock of the company at the option of the holder.
    There was a printed indorsement on the bonds, when issued, in these words: “ Issued to the Cincinnati, Wilmington and Zanesville Railroad Company.”

      All the bonds were afterward sold by the railroad company.
    The railroad company paid the interest falling due January 1, 282] 1853, January 1, 1854, and January 1, 1855; *but failed to provide for the interest falling due January 1, 1856, and January 1, 1857.
    The commissioners of Clinton county, have not at anytime heretofore levied any tax with which to pay the interest on these bonds.
    On this state of facts, the relators, claiming to hold a part of the bonds and coupons of the county, ask' a peremptory mandamus requiring the commissioners of Clinton county, at their next March or June session to levy a sufficient amount of tax to pay the whole of the interest which fell due January 1,1856, and January 1,1857.

      Hunter & Daugherty, for the relators.

      A. G. Thurman, John S. Green, and D. Linton, for the defendants.
   J. R. Swan, J.

I. Is the county ,of Clinton liable for the interest on the bonds, or must the bondholders look to the railroad company for payment. •

The second section of the act of March 1, 1851 (49 Local L. 514), provides as follows : “ The commissioners of said county, for the purpose of paying the stock subscribed under this act, are hereby authorized to borrow the necessary amount of money, for which they shall issue bonds or obligations of the county, in amounts not less than one hundred dollars, which bonds or obligations shall be made negotiable, bearing interest payable annually at such place within or without this state, and at such rate, not exceeding seven per centum per annum, as may be agreed upon; and such bonds or 283] obligations may *be made redeemable at such time as may be deemed expedient by said commissioners; or such bonds or obligations, Or any part thereof, may be issued directly to said company, in payment of said stock, as said company and said commissioners may agree; and all bonds and obligations issued and negotiated by said commissioners, and regular on the face thereof, shall, in the hands of said company, or of any bona fide holder thereof, be deemed and taken, in all courts, and elsewhere, as conclusive evidence of the regularity of everything required by this act to be done, preliminary to the issuing and negotiating such bonds or obligations; provided, however, that before any bonds shall be issued by said commissioners, as herein provided for, said commissioners and said company shall agree in writing that said company shall pay all interest which may accrue on said bonds, and shall, in consideration thereof, be entitled to all the profits and dividends of the stock subscribed by said commissioners, until said bonds are redeemed by said commissioners.”

The proviso of this section relates as well to bonds issued directly to the railroad company in payment of the stock subscribed, as to bonds issued for the purpose of borrowing money to pay for the stock. The bonds, therefore, to whomsoever issued, were required to stipulate on their face for the payment of interest by the county. If it had been intended by the proviso that the bondholders should look alone to the railroad company for interest, the legislature would not have authorized the county to stipulate to pay the interest ; but instead of providing for an agreement, on the part of the railroad company with the county, to pay the interest, all provision for payment of interest by the county would have been omitted, and the statute would have required simply that the railroad company should agree with the bondholders, by indorsement on the *bonds or otherwise, to pay the interest to the bondholders. [284 The third section of the law shows still more clearly that the legislature intended, by the second section, that the county should be liable to the bondholders for the interest, and that the railroad company should be responsible to the county for its reimbursement. The third section is as follows :

“ The faith of the county, and the net profits of dividends upon the stock so-subscribed by the county, shall stand pledged for the payment of the indebtedness and interest which may become due from said county under this act; and it is, moreover, hereby made the duty of the commissioners and the auditor of said county, from and after the contracting of any indebtedness against said county, under this act, to add such per centum upon the tax duplicate of said county, annually, over and above the net profits and dividends aforesaid, to pay the accruing interest arising under this act, and also to provide a sinking fund of such amount as they may deem expedient; and the moneys so levied, when collected, shall be applied to the purpose aforesaid, and no other.”

As the second section contemplates no other mode of paying for the stock subscribed but by the issue of county bonds, either to the railroad company or to dealers in money, the interest required to be raised by the third section necessarily refers to the interest on the bonds.

But it is urged that inasmuch as the railroad company agree in writing to pay the interest on the bonds, and the bonds having been issued to it, the county was not liable to the railroad company for the interest, and the railroad company could transfer no better right than itself possessed.

It is undoubtedly true, that if the railroad company had retained 285] these bonds it could not have enforced the payment *of interest from the county; for if the company had sued the county for the interest, the agreement of the company with the county to pay the interest could have been set up by plea to defeat the action. And such plea would have been effectual for that purpose, not because the mutual agreements to pay the interest extinguished each other, but to prevent circuity of action. The same effect would have followed if the county had issued these bonds to a money dealer instead of the railroad company, and the latter had afterward purchased and held the bonds.

It would be very absurd for this court to assume that the railroad company was exchanging a subscription to their stock for these negotiable bonds with a view of retaining them for the benefit of the stockholders, and at the same time agreeing to. pay the county the interest which might thereafter accrue upon them. It is too manifest to admit of doubt, that the law, the subscription to the stock, the issuing of the bonds to the railroad company, and the authority given to the compiany by section 9 of the law of March 1, 1851, to sell the bonds at a discount, was to effect the single object of raising funds, whereby the company might be able to complete their road. The bonds were made negotiable for the same purpose. The county might have sold them, or they could be issued to the railroad company and sold by it. Any course of reasoning upon the construction of the statute, based on the supposition that the bonds, when issued to the railroad company, wore to be retained by it, would lead to a false interpretation of the statute. The fact, therefore, that if the company retained the bonds it could not enforce the payment of the interest, is supposing a state of things not contemplated by the parties, and can not defeat the real object and intention of the law and the parties, which was this: that the bonds 286] might be sold to *raise money to build the road. Hence the provisions that the bonds should be negotiable — should bear interest; that the faith of the county was pledged for principal and interest; that it was made the duty of the county commissioners to assess-taxes, if necessary, to pay the interest as well as the principal.

We are of the opinion that the law intended that the bondholders-should look to the county for the interest; that she is primarily liable; and that the county has a right to look to the railroad company for reimbursement, the agreement of the company with the county to pay interest being collateral to the stipulation of the county with the bondholders upon the same subject.

II. Objection is made to warrants for the interest being attached to these bonds. The county commissioners were authorized to issue “negotiable bonds bearing interest payable annually.” The bonds stipulate for the payment of the principal “-on the first day of Janu'ary, in the year one thousand eight hundred and sixty-seven, with interest thereon at the rate of seven per centum per annum, payable on the presentation of the proper coupon therefor at said county treasury, on the first day of January next, in the first instance, and thereafter annually, on the first day of January in each and every year, until the payment of the principal sum, as aforesaid.” To the bonds are attached interest warrants for each year’s interest, thus:

“ Clinton county 7 per cent. loan. Interest warrant No. 4. The county of Clinton will pay to the Cincinnati, Wilmington and Zanesville Railroad Company, or bearer, at the treasury of said county, on the first day of January, 1856, seven dollars interest, due on that day on bond No. 8, for $100.
(Signed;) “Bebee Truesdell, Auditor G. G.”

The bond and the interest warrant are in the usual form. It *is for the convenience of the officers of the county and of [287 the bondholders, that interest warrants are attached to the bonds. The possession of the warrants is prima facie evidence that tho holder owns the bonds from which they are detached. The warrants are payable to bearer, and are negotiable by delivery, like an order of the county auditor upon the county treasurer.

III. The relator has made proferí of one of the bonds with couX>ons attached, past due, and has proved that he owns other coupons unpaid. There is no question made as to the genuineness of the coupons or their non-payment. Their possession by the relators is evidence of non-payment. The right of the relators to be paid, is fully established. A judgment on the coupons, in favor of each-■holder, for the purpose of establishing his claim seems to us unnecessary, and would, in cases of this kind, be attended with a formidable amount of costs against the coun.ty.

IY. It is claimed that proof should be made of demand of payment of the coupons before proceeding against the commissioners. It satisfactorily appears that no fund, no provision whatever, has been made for payment at the treasury of the county where the interest warrants are made payable. In such case, even upon a bill of exchange payable at a particular place, no demand is necessary. Conn v. Gano, 1 Ohio, 484.

Y. It is in general the duty of the commissioners of a county to ascertain, as near as maybe, the amount necessary to pay the debts of the county, and to make an assessment for that purpose.. And so in the case before us, it was the duty of the county commissioners to ascertain whether the railroad company would pay the interest, and if not, the county being primarily liable, the board of commissioners should have made provision therefor. The fact, 288] *at all events, could be ascertained in January; and after •default by the railroad company in January, it was the duty of the commissioners, clearly designated by the law, to make an assessment for the interest. The default and the duty exist as to the whole amount of the interest; it is single and entire; and the mandamus must issue accordingly.

Peremptory mandamus awarded.

Brinkerhoee, Bowen, and Scott, JJ., concurred.

Bartley, C. J., dissented.


author: *Brinkerhoff, J.

text:
    Henry Scovern v. The State of Ohio.
    ■In an examination of a complaint made under the act of May 1, 1854, “ to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” it is not necessary to the validity of subsequent proceedings, for the examining magistrate to make an entry on his docket in express terms that he finds “ the complaint to be true.”

    If such finding appears, by necessary implication, to have been made, it is sufficient.
    'The clause in the eleventh section of said act, which directs the magistrate, if he finds the complaint to be true, to recognize the accused, was intended only to direct and inform the mind and control the conscience of the examining officer.
    In order to justify the reversal of a judgment in error, the record must affirmatively show, not only that error intervened, but that it was to the prejudice-of the party seeking to take advantage of it.
    In error to the probate court of Belmont county.
    The facts are sufficiently stated in the opinion of the court.

      M. Pennington and E. E. Kennon, for plaintiff in error.

      G. P. Wolcott, attorney-general, for the state.
   *Brinkerhoff, J.

This is a writ of error brought to re- [289'' verse the judgment of the probate court of Belmont county. A complaint was duly made before a justice of the peace of the-county, by affidavit, against the plaintiff in error, for a violation of the act of May 1, 1854, “ to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio.” , Thereupon a warrant was issued, under which the plaintiff in error was arrested and brought before the justice. Process of subpena was-issued for witnesses on both sides, and oh their being brought in witnesses were on both sides sworn, examined, and cross-examined; and thereupon the said Scovern was ordered by the justice to enter-into recognizance in the sum of one hundred dollars for his appearance before the probate court on the first day of the next term thereof, which was done accordingly. All which appears from the transcript of the docket entries in the case by the justice of the peace filed, together with the recognizance in the probate court, and copied into its record of the case. But there is no entry in the docket of the justice expressly declaring that he found the-complaint to be true.

On this transcript and recognizance an information was filed by the prosecuting attorney, trial had at the June term, 1855, a verdict of guilty rendered, and judgment entered thereon.

It is now alleged for error :

1. That the transcript of the docket entries of the case by the-justice of the peace does not expressly show that he found “ the complaint to be true.”

The eleventh section of said act (Swan’s Rev. Stat. 898), and which prescribes the mode of proceeding in the examining court,, is as follows:

11 Sec. 11. That all prosecutions under this act shall bo in the '290] name of the State of Ohio, and shall be commenced *upon a written complaint under oath or affirmation before any justice of the |)oace of the cpunty in which said offense was committed, or mayor of any incorporated town, village, or city, or by information or indictment, as may be provided by law for the prosecution of offenses, the punishment of which is not capital or imprisonment in the penitentiary; and upon the filing of such complaint with such justice of the peace or mayor as aforesaid, such justice ■of the peace or mayor shall forthwith issue a warrant directed to the proper officer, for the arrest of the person or persons charged with a violation of the provisions of this act, and such officer shall forthwith arrest the person or persons named in said warrant, and bring him or them before the justice of the peace or mayor issuing •said warrant; and upon the return of said warrant served, such justice of the peace or mayor shall proceed to inquire into the truth of ¡such complaint, unless for good cause shown a continuance is granted at the instance of either party, and in case of the continuance of •said action as aforesaid, the defendant or defendants shall enter into a recognizance to the'State of Ohio in such sum as the justice of the peace or mayor may deem reasonable, with security to the acceptance of such justice or mayor, conditioned for the appear.ance of said defendant or defendants at the time fixed for the hearing of said complaint, and in default of such defendant or defendants giving such recognizance as aforesaid, the defendant or defendants shall be committed to the jail of the county to be safely kept until the time fixed for the hearing of said complaint; and if the parties so recognized shall not appear at the time set for ■said trial, the recognizance so given by him or them shall be forfeited by such justice of the peace or mayor, and such officer shall enter such forfeiture upon said recognizance and also upon his docket, and thereupon such justice or mayor shall forthwith pro-291] ceed to collect *the penalty of said recognizance by instituting an action thereon, and proceeding with the same to final judgment; and when the same is collected, after paying the costs of .such collection, such justice or mayor shall pay over the balance to the township, city, or incorporated village treasury, for the support of common schools; and in all- cases of prosecution before justices of the peace or mayors, if such officer finds the complaint to be true, he shall recognize such defendant or defendants to' answer said charge as in other criminal prosecutions of like grades,” etc.

Now, on examination of this section of the statute, it will be seen that it expressly requires one entry — and one only — to be made on the docket of the justice; and that is an entry of the forfeiture of the recognizance of the accused in case of his failure to appear at the time to which the preliminary examination is continued ; and we think the maxim, “ expressio unius est exclusio alterius,” is fairly and forcibly applicable.

The act of March 27, 1837 (Swan’s Rev. Stat. 533), “.defining the powers and duties of justices of the peace and constables in criminal cases,” in its first section provides that every justice of the peace “ is authorized and required, on view, or complaint made on oath or affirmation, to cause every person charged with the commission of a crime, or a breach of the law, to be arrested and brought before himself, or some other justice of the peace of the same county, except as hereinafter excepted. Fourth. It shall be the duty of the justice of the peace, before whom any such person shall be brought, to inquire into the complaint; and every such person either to commit to the jail of the county, or discharge, or recognize to be and appear before the court,- on' the first day of the next term thereof, as the nature of the case may require.”

^Neither under this statute, nor under similar statutes which [292 were superseded by it, has it ever been held that the justice must enter on his docket an express finding that the complaint was true, that there was good, or probable, or reasonable cause for the detention of the accused, or that “the nature of the case required ” such detention; and it had, long prior to the enactment of the “ liquor law,” been the established and unquestioned practice to omit any such entry. And we can perceive no reason that can bo urged in favor of the necessity of such entry in the one case which will not apply with equal force in the other. In the one case he is to commit or recognize the accused party, if he find the complaint to be true ;” in the other, if he find that “ the nature of the case requires it.”

It is said the preliminary examination and finding of the justice of the peace is a substitute, for the finding of an indictment by a grand jury, and without which the jurisdiction of the probate court can not attach. Yery true; but it is a like substitute in pi-osecutions for assault and battery, and other minor offenses, under the act of 1837, as well as under the “ liquor law ” of 1854. Both may be-prosecuted on the information of the prosecuting attorney, based on the transcript of the justice’s docket in the case, without indictment, and tried in the probate court. And if there must be an express docket entry of the finding in the one case, why not in the other ?

"We are satisfied that the difference in the clauses of the statutes to which we have adverted is but a casual difference of phraseology; the intent of hoth clauses being substantially the same. Both are intended to direct and inform the mind, and control the conscience of the examining officer; but the legislature, we think, never intended to make an entry of his finding from the testimony neces21)3] sary to the validity of the subsequent proceedings. If it *had so intended, it would have directed such entry in express terms, as-it has in express terms directed the entry of the forfeiture of the recognizance.

And finally on this point, we think it fairly presumable from what does appear in the transcript, that the justice did, as a matter of fact, find the complaint to be true. A complaint in writing and under oath was duly made, and was before him. A warrant issued, and the accused was arrested and brought into court. Witnesses were subpenaed, appeared, and were sworn and examined. All this was a senseless proceeding, unless it was for the purpose of ascertaining whether the complaint was true. And when he thereupon required the accused to enter into a recognizance for his appearance in the probate court for final trial, the reasonable, as well as legal, presumption is that he found the complaint to be trlie. He could not rightfully make such requirement without such finding; and in the review on error of the proceedings of inferior tribunals acting within their proper jurisdiction, “everything is presumed to be rightly and duly performed, until the contrary is shown.” Broom’s Legal Maxims, 729. And “ acts done which presuppose the existence of other acts, to make them legally operative, are presumptive proofs of the latter.” Ward’s Lessee v. Barrow, 2 Ohio St. 246, 247; Lessee of Coombs and Ewing v. Lane, 4 Ohio St. 148.

These principles are, we think, applied with peculiar propriety in the review of proceedings before justices of the peace. They are a class of officers in the main respectable for their general intelligence, good sense, and uprightness of motive, hut who never can be expected to have had the advantages of a legal training; and whose proceedings therefore, while conducted in general with a conscientious regard to the requirements of law in matters of substance, are always very liable to be deficient in matters *of form. And [294 it would result in consequences highly mischievous, would defeat obvious legislative policy and intent, and practically nullify most salutary laws, were we to permit ourselves to exercise undue astuteness in the scrutiny of their proceedings.

2. It is further assigned for error, and appears in a bill of exceptions embodied in the record, that on the final trial in the probate court, the prosecuting attorney asked a witness to “ state whether or .not it v?as a matter of public notoriety in the town of St. Clairsville that said Creigh was in the habit of getting intoxicated?”— the said Creigh being the person to whom liquor was alleged in the information to have been sold.

3. And, finally, it is assigned for error that, on the trial, the prosecuting attorney asked one Wright (who was a witness on the stand, and was also a minor, to whom liquor was, in the information, alleged to have been sold), “whether a third person had procured him ale to drink from the defendant?”

Both these questions were objected to, the objections overruled, and answers admitted; but what those answers, or either of them were, and whether favorable or unfavorable to the plaintiff in error, does not appear, because neither the answers nor the effect or tendency of them are stated in the bill of exceptions. Therefore, however erroneous these rulings of the court below may have been, it is impossible to say whether the answer to either question prejudiced or benefited the accused. It may have been such as to have either or neither effect.

Now the rule seems to be settled in Ohio, that in order to justify the reversal of a judgment on error, the record must affirmatively show, not only that error intervened but that it was to the prejudice of the party seeking to take advantage of it. Reynolds v. Executors of Rogers, *5 Ohio, 171, 172; May v. The State, 14 [295 Ohio, 467, 468. We are of opinion, therefore, that there is no such error in the proceedings of the court below as to justify the reversal of its judgment.

Judgment affirmed.

Swan, Bowen, and Scott, JJ., concurred.

Bartley, C. J., dissented.


author: *Bowen, J.

text:
    Thomas A. Eagle and others v. Jacob Bucher.
    "When several persons form an association, by the subscription of stock and the adoption of a constitution, to procure gold from, the mines of California, and agree to-send eight persons, to be selected from their number, to labor in obtaining such gold, under an agreement to furnish them with outfits and money for their expenses, and on their return to have an account and division of the articles of value which they may acquire: Held—
    That the persons thus selected to labor for the association, though members, stood also in the relation of employes of the association, and their refusal, after arriving in California, to work together, and the partition among • themselves of the property of the association, without its knowledge or consent, and with a view of aiding their separate and independent labors do not work a dissolution of the association, nor discharge them from obligations to it under their contract.
    ■Such act of separation and abandonment of duty exonerates them from liability to each other, but not to the association.
    It is competent for the association to compel an account and payment by either of the eight, of his earnings while thus working separately, in favor of the other members of the association, or to sue either of them for a breach of his contract, at its election.
    But in taking a decree against one of such laborers, for the proportion of his earnings which is due to the association by the terms of the contract, all of the eight should be excluded from the distribution, except those who render an account, pursuant to the articles of association.
    Bill in chancery. Reserved in Ashland county.
    *In January, 1849, the complainant and defendant formed themselves into a company, which they named “ The Mohicansville Mining Association,” for the purpose of acquiring gold and other articles of value in California. It was agreed that the capital to be -employed should not be less than $800, to be divided into thirty-two shares of $25 each, and that the members should select from their own numbers such men as they wished to send to the gold regions to obtain gold; and that the persons so selected should be ■required to go to the mines and use all honorable means to acquire :as much gold and other articles of value as possible, and return the ■same to the association in Mohicansville within two and a half years from the time they should start. The association was to furnish the equipments and expenses of those who should be sent to the mines. The gold and articles of value which should be acquired, were to be divided as follows: First, The expenses of those who should go to California (over $200 to be advanced by the association to each one of them), was to be first taken out. Second, One-half of the balance to be retained by them. Third,, The remaining half to be divided among the members of the association in proportion to the amount of stock owned by each. If no gold was obtained, th'e stockholders were to lose their stock, and those who went to California were to lose their time.
    There were some thirty subscribers to what they called their constitution, and. about $1,700 paid in as stock. The members then elected eight of their number to go to California, of whom the defendant was one. The whole amount of the money which had been raised as stock, was expended in furnishing these men their outfits .and expenses for the journey, and with implements to use after arriving in the gold regions; and on the 5th of April, 1849, they *left Mohicansville, in Ashland county, for California, by the [297 overland route, and arrived at Sacramento about the 15th of September of that year. On the way they had difficulties and quarrels among themselves, and in four or five days after reaching California they sold out what property was on hand, divided the proceeds among themselves, and each one took his own way. Several of them said “they would not pay a d — d cent to the company;” but Bucher said he would do what was right, provided the rest would. Before the expiration of the two and a half years, David Kauffman, one of the eight, died. The defendant and four others-returned to Mohicansville. The other two remain in California. During the two and a half years no intercourse was had between the association and any of the eight in California.
    Bucher returned home in 1851, bringing with him a large amount of gold, but he refused to pay anything into the treasury of the association, or to give any account of his earnings, or to acknowledge in any way the right of the other members of the association to share with him his earnings. Philip Wertsbaugher, one of the. eight, returned with a small amount of gold, and settled with the association, or at least offered to comply with the constitutional requirements.
    This bill is filed in the names of the other members of the association against Bucher, to compel an account and payment by him pursuant to the articles of the constitution.
    Bucher in his answer offers to refund to the association one-eighth of the $1,700 which he and his seven companions received, deducting therefrom his subscription of stock; but he protests that the-.other members have no legal or equitable claim upon him for any further share of the avails of his labor or enterprise, accruing after 298] he *was abandoned by his associates, and after the design of the association had been defeated by what he claims was its dissolution. He renders an account of what he accuinulated in California, showing himself in possession of $12,130, exclusive of all expenses.
    The cause in the court below was referred to a master to state an account between the parties, who made a report in the premises, to which exceptions were filed by defendant.

      John P. Jeffries, for complainants,
    cited Story on Part., secs. 2, 40-50, 57, 58, 172-174, 276, 277; Gow on Part. 19, 303, 308; Collyer on Part. 14, 15, 17-20, 23, 68, 117-120; 1 Parsons on Contr. 135, note; 3 Kent’s Com. (4 ed.), secs. 33, 34, 43, 53, note; 5 Ves 228; 16 Ib. 56; 17 Ib. 298; 18 Ib. 300; 19 Ib. 459, 461; 7 Mass. 29; 15 Ib. 370; 1 Johns. Ch. 467, 305; 9 Ib. 470; 15 Johns. 525; 1 Denio, 341; 3 Comst. 132; 3 Mason, 138; 6 Pick. 124, 125, 335; 14 Ib. 192; 1 Story’s Eq. Jurisp., sec. 465, note p, 507, 668; 3 Story, 108; 5 Watts, 196; 8 Serg. & Rawle, 103; 15 Ib. 137; Cary on Part., sec. 11; Poth., No. 59, 150-154; 4 Wash. C. C. 234; 1 Swanst. 495; 7 Wend. 57; 14 Ohio, 311; 5 Ark. 270; 1 Sim. 52.

      P. B. Wilcox, on same side,
    cited, in addition, 1 R. I. 430; 20 Wend. 70.

      Levi Cox, for defendant,
    cited 1 Ohio, 94; 3 Ib. 425; 16 Ib. 166; 9 Johns. 470; 14 Ib. 320; 17 Ib. 525; 19 Ib. 538; Parsons on Contr. 130, 131, 171; 5 Dana, 313; 8 Watts & Serg. 262; 1 Whart. 388; Collyer on Part. 94, sec. 110.
    Other authorities cited for defendant: Bisset on Part. 55 (85), and notes; 3 Kent’s Com. 52, 8, 9; 7 Am. Com. Law, 238, 239; 6 Johns. 147; 8 Wend. 442; 14 Pick. 332; Story on Part., secs. 307—309.
   *Bowen, J.

The parties interested in this cause properly denominated themselves an “ association.” Their organization was-completed by the adoption of a constitution, to which they all subscribed. The object of thus uniting together is fully defined. It was limited to one purpose — a mining adventure — to be conducted upon terms set forth and agreed upon. In the fruits of that adventure all were to participate according to what were deemed equitable rules. To carry on the enterprise capital was necessary to be •raised and expended, and labor must be performed in a region two thousand miles or more distant from the locality of the associated body. These two points were therefore primarily considered and decided upon. From the members of the association eight were to •be chosen to perform the journey to the mines, and, after reaching there, to employ their skill and industry in procuring the golden treasure for themselves and companions in the enterprise. Within ■a given period they were to return and place into the treasury of the parent institution the productions of their labor for distribution •among its several members. When they separated from the association, to go to their remote place of employment, they took with them in teams, implements for mining, provisions, and money, all of its resources. These they were to retain, as well as one-half of their net gains, but were to divide the other half with their fellow-associates. They must be regarded as employes — as hired men— laboring by contract for the association, whose delegates and servants they were. They might properly co-operate together, might choose a captain and other officers from their own members to direct their affairs on the way, and during their continuance abroad. This they attempted to do ; and while we are free to concede that they had full power, as detached and separate members of the association, required by the nature of their ^undertaking, to act [300 without its presence and advice, to regulate by rules of their own the duties to be observed by themselves, yet they could not, by such private regulations, dissolve the association, nor release themselves from their contract to labor and account for their earnings, or to -answer in damages for a breach of-it. The determination which they formed and acted upon after reaching California, of appropriating the property of the association among themselves individually, and of working separately, in disregard of their obligations to the association, was a most inexcusable and immoral violation of their written and valid obligations to their principals. That act can only be characterized as one of marked dishonesty and bad faith. As between the eight, it was a relinquishment of each to the others of all claims to their joint earnings. Each accepted the proposal to work alone, and share separately the benefits of his individual labor, without any recourse upon the others; but as to the association into whose service they had entered, and whose interest they had undertaken to promote, they could not, by this ex parte and wrongful movement, relieve themselves from liability. Whether they wrought jointly or separately; whether their earnings were large or small; they were nevertheless responsible to the association, and could be required to account to it for whatever they made during the time they were thus employed.

The principle relied upon by-defendant’s counsel, that a partnership may be dissolved by the act of one of the partners, we do not, in the view we take of this case, intend to impugn. That is too well settled to be now questioned. But to effect that purpose the act must be done with a view to its accomplishment. It should be communicated at once to the other members of the firm. They must be advised of the new relations created by the withdrawal of 301] *a member, or a- transfer of his interest in the concern. Their future relations toward each other, and their pursuit of the particular enterprise, depend on the acquisition of such knowledge.

Now, whether the eight men intended anything more than the dissolution of their own organization, and liberty to each to work when and -where it best suited him, does not seem to be very clear. Some of them said they would never pay anything to the association. But they did not, certainly, by any expression or act signify that they intended to dissolve the original association. Their acts do not indicate that to have been their object. They were willing, doubtless, to free themselves from working together, and from, reporting any account of their gains. . But as we have before shown, while they might accomplish these ends as between themselves, they could not, standing as they did in the places of hired men, far removed from the observation of, and without the means of communicating with, their co-members at home — bound by their agreements to serve as such, and to give statements of their labor within the time agreed on — disconnect and discharge themselves from the association.

If the defendant was fortunate in his visit to and labors in the mines- — if his hopes were more than realized by his good luck in procuring gold in large amounts — he ought to have borne in mind that the aid of the Mohieansville association" rendered to him had mainly contributed to his good fortune — that in reality he owed it to the organization of that body and the employment of the means it gave him to engage in the enterprise; and that, however others bad fared wbo bad gone on tbe same errand with himself, or however faithless they may have been to their employes, it was bis duty, in tbe true spirit of tbe agreement, to share with his patrons tbe fruits of his toil *and good management. This be de- [302 elined to do, and it is in this proceeding sought to coerce him to perform that which be has, against equity and conscience, refrained from doing; and we think the appropriate relief should be granted.

Tbe exceptions to tbe master’s report must be sustained, and an account taken as to tbe amount of money earned by the defendant. One-half of tbe sum found to be in his hands, be will be allowed to retain. Tbe other half must be distributed to tbe holders of tbe stock of tbe association, pro rata, but excluding all of the eight wbo went to California, except tbe defendant and Philip Wertsbaugher. Tbe stock subscribed by them to share in tbe distribution with the others.

Decree accordingly.

Bartley, C. J., and Swan and Scott, JJ., concurred.

Brinkerhoee, J., having formerly been of counsel in this case, did not sit on tbe bearing of it.