text:
    Selah Hart v. The State of Ohio.
    A charge in an indictment for forgery, that the defendant had forged a promissory note, described in the indictment as a note without a seal, is not supported by evidence tending to prove that defendant had committed forgery of a note under seal. It is error in the court to admit such evidence in proof of the charge.
    Error to the court of common pleas of Morgan county.
    At the October term, 1851, of said court, Hart, the plaintiff in error, defendant below, was indicted, tried, convicted, and sentenced to imprisonment in the penitentiary for forgery. The indictment contains three counts. In tho first count it is averred that on April 30, 1851, Selah Hart “ falsely made, forged, and counterfeited a certain promissory note,” etc., which “ is of the purport and effect following:
    “ ‘ Ton months after date, for value received, I promise to pay Selah Hart, or order, the sum of §406, as witness my hand and seal.
    “ ‘April 2,1851. G. Armstrong.’ ”
    The second count charges that Hart, having in his possession a promissory note executed to him by George Armstrong, under the signature of G. Armstrong, precisely in all respects like the note set out in the first count, except that it was for the payment of six dollars, on April 30, 1851, “falsely did alter the said promissory note,” by inserting before the words “ six dollars,” the words
      “four hundred and ” thus making a note similar to the one set out in the first count.
    *The third count is for feloniously uttering and publishing, as true and genuine, a false, forged, and counterfeit note, described as in the first count. The indictment does not aver the loss of the forged instrument. The note, as set out and described in all the counts, is not set out or described as a note under seal. The note set out, before the signature and date, contains the words “as witness my hand and seal,” but has no seal.
    During the trial the state introduced evidence tending to prove that the note purporting to be forged, was in the possession of the accused, and was by him destroyed; and then the state offered secondary evidence of the contents of said note as originally executed, and as it subsequently appeared. This, and all the other evidence, is contained in a bill of exceptions taken during the trial. The accused, by his counsel, moved the court below for a new trial, and in arrest of judgment, which motions were overruled, and exceptions were duly taken to the action of the court in overruling the motions.
    Tari ous errors are assigned: 1. That the court erred in refusing to rule out the evidence of the state. 2. That the court erred in receiving evidence of the destruction of the note without an averment in the indictment to that effect. 3. That the court erred in receiving secondary evidence of the contents of the note, without averment in the indictment of the loss of said note, or without averment that it was in possession of defendant, and because no notice was served on defendant to produce the note. 4. That the court erred in receiving, in evidence, a copy of a note not under seal. 5. That the court erred in receiving secondary evidence of the contents of the note alleged to be forged, when the state only proved the destruction of a similar note under seal, and no other.
    The last-named error is the one upon which the decision of this' court is made, and the evidence upon this part of the case is sufficiently stated in the opinion of the court. The other evidence, having no bearing on the decision, is omitted.
    Parish, Evans & Clark, for plaintiff in error,
    insisted that *the note which was proved to have been destroyed, was a note under seal, and the note counted on was not under seal. No evidence tending to prove forgery could be given, as there was no sufficient evidence of the loss or destruction of the note counted on.
    Besides, in the absence of any averment in the indictment excusing the non-production of the original note, no evidence of its loss could be received, and in this the court erred.
    John E. Hanna, for state,
    cited Briggs v. Taylor, 9 Wheat. 483 ; Bouldin and wife v. Massie, 7 Ib. 122, and note at the end of the case; 1 Pet. 591; 7 Ib. 99 ; United States v. Reybourn, 6 Ib. 364; 13 Johns. 93 ; 17 Ib. 294; How v. Hall, 14 East, 276.
    R. W. P. Muse, prosecuting attorney,
    on the same side, cited Whartom’s Am. C. L. 161; 3 Mass. 82; 1 Ib. 7, and note ; 14 East (Sprague’s case); 13 Johns. 90 ; 1 Chit. Crim. L. 566, 567, 578, 579 ; 16 Wend. 522.
   Caldwell, J.

On the trial of this case in the court below, evidence was offered for the purpose of showing that the note had been destroyed by the defendant himself, and then secondary evidence of the contents of the note, by introducing what was said to be a' copy, and by other testimony. To the introduction of all this evidence the defendant’s counsel objected, but the court overruled the objections and received the evidence. The state, for the purpose of introducing the secondary evidence, to prove the contents of the note alleged to have been forged, called on James C. Newell, who testified that in August last he saw defendant have a note, made by George Armstrong, payable to said Selah Hart, and that he (Selah Hart) then tore it up, and that said note was a sealed instrument.

The state then proceeded with the secondary evidence. It was proved that the note had boon left with the firm of Corner, Davis & Sprague, by the defendant; that whilst it was in their *possession, the prosecuting witness, George Armstrong, obtained it, and took it to Henry Dawes, who took a copy of it, and handed it back to Corner, Davis & Sprague; that Corner, one of said firm, delivered it to John Moody, who delivered it to the defendant. Armstrong testifies that his signature to the note was genuine, but that the words ‘-four hundred” wore inserted after it was signed. Two witnesses, Conn and Hart, testify to having seen the note before it was executed, and that it was drawn up for $406, the same amount that it afterward contained. The copy of the note, taken by Dawes, was given in evidence, corresponding with the note set forth in the indictment, and is not under seal. In addition to Newell, Corner testifies that his strong impression is that the note was under seal. Conn testifies that he saw the note before it was-executed, and afterward saw it in the hands of Moody, and that it had a seal. Edwin Hart testifies positively that the note had a seal.

On the other hand, two or three other witnesses are interrogated on this subject, who do not recollect of any seal—they do not speak positively one way or the other. Armstrong says he does-not recollect whether the note had a seal or not; he says the copy was taken for a true one, and he supposed that it was. Dawes, who copied the note, says he does not recollect of any seal, and thinks if there had been one that he would have copied it.

The first question which is presented, is, whether the court were justified in permitting the copy of the note, and the parol testimony in reference to the description of it, to be given in evidence.

We think the evidence was inadmissible. It is a universal rule of evidence, that a party offering to prove any matter is bound to produce the best evidence which the nature of the case will admit of, or give a satisfactory excuse for not presenting such evidence, before he will be. permitted to introduce evidence of a lower or secondary character; and this is especially the case in forgery, where the production of the instrument *itself is so necessary to determine on the truth of the charge. The ground on which secondary evidence is said to be admissible in this case, is, that the note has come into the possession of the defendant, and has been by him destroyed. The note, however, which Newell testifies to have seen in the possession of defendant (and he is the only witness who testifies to this branch of the ease), and which was by defendant destroyed, was a note under seal. Moody delivered this note to the defendant, and Conn testifies that he saw the note in Moody’s hands, and that it was a note under seal. So-that the note that came into the hands of defendant, and was by him destroyed, was a note under seal. This would not lay .any ground for the introduction of secondary evidence, if a note not under seal. They are, both in civil and criminal pleading, distinct and separate instruments ; evidence of one will in no case support a pleading describing the other. But although this would be the legal effect of the evidence, yet there is no doubt but that the theory on which the state proceeded was the trueono—in fact, that the evidence, in reality, all related to the same paper. And the evidence on the part of the state, as well as the evidence for the defense, proves that that paper was a note under ■seal. The evidence, then, entirely fails to prove the charge in the indictment, which is forgery of a note not under seal. ¥e think it a clear case of variance between the proof and the pleadings, and that the court erred in not ruling out the evidence. This view of tho case renders it unnecessary to pass on the other errors assigned.

Judgment reversed and cause remanded.

       The decision of questions relating to the subject of forgery, etc., may be found in the following cases: Hess v. State, 5 Ohio, 1; Pickens v. State, 6 Ohio, 274; Simmons v. State, 7 Ohio, 116, pt. 1; Anderson v. State, 7 Ohio, 450; Birney v. State, 8 Ohio, 230 ; Kegg v. State, 10 Ohio, 75; 10 Ohio, 354; Barnum v. State, 15 Ohio, 717 ; Ohio v. Bronson, 1 West. L. J. 222; Ohio v. Neale, 2 West. L. J. 570.


source: Caselaw Access Project

author: Hitchcock, C. J.

license: Public Domain

text:
    *Canal-boat Montgomery v. Marvin Kent et al.
    For the breach of an executory contract to carry goods upon a particular boat or vessel, between the owner of the goods and the owner of the boat or vessel, an action can not be sustained against said boat'or vessel by name under the water-craft law of February 26, 1840.

    Error to the court of common pleas. Reserved in Cuyahoga county.
    On November B, a. d., 1846, by warrant of that date, the defendant in error commenced an action of assumpsit against the plaintiffs in error, in the court of common pleas of Cuyahoga county.

      The declaration in the case contains two counts. In the first, *it is stated, in substance, that on August 1, 1846, the then plaintiffs were millers, and manufacturing large quantities of flour, iu a flouring mill at Eranklin, in the county of Portage, intending the same, or the greater part thereof, to he transported to Cleveland, in Cuyahoga county, between the day aforesaid and the close of navigation ; that on that day they entered into a contract with one J. Z. Smith, captain and owner of the canal-boat Montgomery, by the terms of which contract the said Smith agreed, for the consideration of eighteen cents per barrel, to be by them to him paid to transport in said canal-boat, to Cleveland, all the flour which they should make and desire to have transported, between that date and the close of navigation for that season ; that, although the plaintiffs manufactured large quantities of flour, and desired to have the same transported to Cleveland, in pursuance of said contract, the said boat refused to receive the same on board, and transport the same, etc.
    *The second count is like the first, except that the contract is charged as having been made with the boat itself, instead of being made with the captain and owner.
    To this declaration a plea of the general issue was filed, and at the March term, 1850, the case was submitted to a jury. The jury, under the charge of the court, returned a verdict in favor of the defendants in error, plaintiffs below, in pursuance of which, judgment was rendered.
    The plaintiff in error excepted to certain rulings of the court in the progress of the trial, and in the charge to the jury, and tendered a bill of exceptions, which was allowed, signed, sealed, and made part of the record.
    The bill of exceptions shows that on the trial, the plaintiffs below “ proved their copartnership, and submitted evidence tending to prove the contract set out in the declaration; that it was made by Captain J. Z. Smith, then master of the canal-boat Montgomery, and also submitted evidence that said Smith was, at the date of the contract, owner of the boat, and that said contract was made for and on account of said boat, and that said contract was violated by him; that he did not run his boat to the plaintiffs after the 2d of October, and they were compelled to pay extra prices to the amount found by the jury over and above their contract price; that they paid no more than the ordinary and reasonable prices, and that freights could not be procured at less prices. The proof of the contract consisted entirely of the declaration of said J. Z. Smith, made while he was the acting master of said boat, and in possession of it, and while, as the testimony tended to show, he was owner of said boat.”
    Upon this state of facts, counsel for defendant below asked the court to charge the jury as stated in the opinion of the court hereafter, in this case, which charge was refused, and such refusal is assigned for error.
    To reverse the aforesaid judgment, this writ of error is presented, and the following errors are assigned:
    “ 1. That the contract to carry freight, set forth in the first *and second counts of the said declaration, are not contracts the breach of which subjects a boat to seizure, under the statute subjecting water-crafts to seizure for debts, and the court erred in not charging the jury as requested by defendant’s counsel.
    “2. The court erred in charging the jury that the declaration of the owner of the boat might be given in evidence to charge the boat without proving that the said owner was such at the time the suit commenced, or without proving that the title to the boat at the time the suit was brought was derived from such owner by private sale, and not by public sale, on judgment under the statute. “3. That the judgment should have been for the defendant.”
    "Wilson, Wade & Wade, for plaintiff:
    The statute under which this action has been commenced is remedial, and its provisions should be interpreted in reference to. defects and mischiefs of the law as it was.
    Now, the mischiefs of the old law were, that those who intrusted their persons or property on board of water-crafts, for conveyance, were liable to injury by the negligence or misconduct of those having charge and management of such crafts. Those persons were frequently irresponsible; the injury, also, might, and usually would, occur, at places distant from the residence of the owner of the water-crafts, or these might be irresponsible or unknown. Injuries from these causes were of frequent occurrence ; often of a serious character, and always annoying and highly vexatious to all, and especially to immigrants, strangers, and those least able, from, poverty or from that repugnance which strangers always more or less feel against attempting to vindicate their rights by law, under so many discouragements.
    To remedy these glaring defects in our laws—defects made every day more glaring and intolerable, from the unparalleled growth of our internal commerce and increase of travel—this law was enacted, by which the legislature have devised for those suffering from this class of injuries, a simple, speedy, and ^effectual remedy. Contracts of the class set forth in the declaration, though perhaps within the letter of the act, were not within the contemplation of the legislature, nor within the spirit of the remedy provided by the act.
    The master of a canal-boat, as such, has no authority to make such a contract as this to bind the owners of the boat. It is equivalent to the charter of the boat to the defendants in error for the season.
    The master of a boat may be removed, but if the master can make such a contract as this, ho may do so for the lifetime of the craft.
    It is said the master in this case was owner; but it does not follow that t.hc boat can be seized for a breach of the contract.
    Resides this, the court below erred in admitting evidence of the declarations of the master of the boat that he was owner, and as to the contract. Reed v. Dickey, 1 Watts, 152, 154; 2 Cow. & Hill’s Notes, 655, 661.
    His declarations of ownership were not made when the contract was made, nor when he stated the terms of the contract.
    Andrews, Foot & Hoyt, for defendant.
    Foot & Hoyt submitted an argument,
    and relied upon the act of February 26, 1840.

       LEGISLATION.
      I. The “ act providing for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name,” was passed and took effect February 26, 1840. 38 Ohio 34; Swan’s Stat. 209.
      II. This act was amended by an act passed March 10,1843. 41 Ohio T. 51.
      III. An act explanatory of these acts was passed February 24, 1848. 48 Ohio L. 76.
      IV. The acts of February 26, 1840, and March 10, 1843, were amended by an act passed March 24, 1851. 49 Ohio L. 101.

        These are the only laws ever in force in Ohio upon this subject.
      DECISIONS.
      In the ease of Olenney v. The Steamer Globe, in the District Court of the United States for the Northern District of New York, Conkling, J., held “that a judgment in rem rendered in a court in the State of Ohio, in virtue of the act of the general assembly of that state, entitled 1 an act providing for the collection of claims against steamboats,’ etc., passed February 26, 1840, and the act explanatory thereof, passed February 24, 1848, is to be regarded as a nullity by judicial tribunals in other states, unless the owner of the vessel proceeded against appeared in the suit, and had an opportunity to make a defense.
      “ The title, if any, acquired by the purchaser at a sale of the vessel on execution, in virtue of sueh a judgment, is subordinate to the lien in favor of a material-man, conferred by the general maritime law of the United States, and by the act of Congress of February 26, 1845, chap. 20.
      “A judgment recovered in a proceeding under the statute of Ohio, in a court of that state for supplies, is not a bar to a subsequent suit in rem, in admiralty for the sdme supplies.”
      QraKY.—Whether the provisions of the statute of Ohio are not repugnant to the constitution and laws of the United States? 3 Western Law Journal, N. S. 41 (1851). See also, vol. 2 N. S. (1849-50) 530.
      Questions have been decided touching these laws in the following cases:
      Steamboat Monarch v. Finley, 10 Ohio, 384; Canal-boat Huron v. Simmons, 11 Ohio, 458; Bennett B. Lewis v.The Schooner Cleveland. 12 Ohio, 341; Jones & Watkins v. Steamboat Commerce, 14 Ohio, 408.

        [llow far tbis case is overruled, see Webster v. The Brig Andes, 18 Ohio, 187, Curwen’s Cases Overruled, 28.]
      Steamboat Wavorly v. Joseph Clements, 14 Ohio, 28; Kellogg, Kennell & Orano v. Brennan et al., 14 Ohio, 72 ; Canal-boat Etna v. Treat, 15 Ohio, 585; Treat v. Canal-boat Etna, 16 Ohio, 276, 421; Goodsill v. The St. Louis, 16 Ohio, 178; The Champion v. Jantzen, 16 Ohio, 91; Schooner Argyle v. Worthington, 17 Ohio, 460; Prevost v. Wilcox, 17 Ohio, 359; The Aurora Borealis v. Bobbie, 17 Ohio, 125 ; Julius B. Webster v. Brig Andes, 18 Ohio, 187; Steamboat Clipper v. Linus Logan, 18 Ohio, 375; 1 West. Law Journal, 394 ; 2 West Law Journal, 44; Boyce v. The Steamboat Empress, 3 W est. Law Journal 174; Berry v. Griffin, 3 West. Law Journal, 129; Goodsill v. The St. Louis, 4 West. Law Journal, 123 (and see 16 Ohio, 178); Steamboat Arkansas Mail v. Fox, 4 West Law. Journal, 527.
      [llow 'far an opinion intimated in this case is overruled, see McGuire v. The Kentucky, 6 West. Law Journal, 179; and the same case reported in this volume of reports.]
      The Jane Louisa v. Williams, 5 West. Law Journal, 8 ; S. P., 17 Ohio, 460 See 4 West. Law Journal, 528.
      The decision of Goodsill v. The St. Louis, 4 West. Law Journal, 123, and the same case in 16 Ohio, 178, and The Champion v. Jantzen, 16 Ohio, 91, led to the enactment of the explanatory act of Eebruary 24, 1848, which modifies the law as decided in those cases. Section 2 of that act has been declared unconstitutional. Aurora Borealis v. Dobbie, 17 Ohio, 125. See also 2 West. Law Journal, N. S. (1849-50), 143.

   Hitchcock, C. J.

By the bill of exceptions it appears that, on the trial of the case, the defendants in error introduced testimony tending to prove a contract with T. Z. Smith, while captain of the Montgomery, as stated in the declaration, and that this contract was on account of the boat, or for transportation in this particular boat; that the contract was violated by a refusal to transport flour, after October 2, 1846; that the defendants in error were under the necessity, after that time, of employing other boats to transport their flour, and compelled to pay a greater price for freight than under their contract with Smith they were bound to pay. Tho testimony offered to prove the contract consisted principally in the *proof of declarations made by Smith while he was captain of the boat. The price actually paid for freight was not above the ordinary rate for the season.

After the testimony was closed, counsel for plaintiff in error requested the court, among other things, to charge the jury:

“1. That no recovery can be had upon the first count in the 'declaration, because it makes no ease as against the defendant.
“ 2. That the second count does not set up a contract upon which the defendant is liable to seizure and suit under the statute.”

To this request the court responded as follows: “Upon the first and second points made in the request, a majority of the court are of opinion, and so charge, that the contract set forth in each of the counts in the declaration, are such contracts as Would hold the defendant; we, therefore, refuse to charge upon those points as requested by the defendant’s counsel.”

This is assigned as error, and presents this single question, whether an executory contract to carry freight upon a particular boat or vessel, attaches to said boat or vessel, and is within the statute of February 26, 1840, “providing for the collection of claims against steamboats and other water-crafts, and authorizing proceeding against the same by name.” This question might as well have been presented by demurrer, but it may be made as it now is, by calling upon the court for special instructions to the jury. This is a new question in this court, although it has heretofore been decided upon the circuit.

For tho non-performance of a contract like the one set forth in this declaration, the defaulting party would be liable to an action. But if he was ready and willing, and offered to transport the freight, I think he would not be liable in damages, for not offering to do it in the identical boat specified in the contract. The object of the freighter is to procure the transportation of his property, and it can not bo essential to him whether it be done in one boat or another.

A common carrier is' liable for all loss or damage to goods *which he undertakes to carry, unless the loss arises from inevitable accident, or from the public enemy. But this stringent rule can not be applied to him until tho goods are once in his possession. When so in his possession the law imposes this liability. But should a common carrier enter into a contract to carry goods hereafter, and should he refuse to comply with that contract, we suppose he will be liable to the same amount of damages, and no greater, than would any other individual under similar circumstances.

The first section of the act before referred to, provides, “that steamboats,” etc., “ shall be liable for debts contracted on account of the craft, by the master,” etc., “ for material, supplies, or labor, in building, repairing, furnishing, or equipping the same,” etc. A contract to furnish materials, labor, or supplies, is not within the statute. But in order that the right may exist, to sustain an action against the craft, by name, as provided in the second section, the “material, supplies, or labor,” must have been actually furnished.

The statute further provides, “that the craft shall be liable for damages arising out of any contract for the transportation of goods or persons, or for injury done to such person or property by said craft,” etc.

Now it is said by counsel for tho defendant, that here was a contract for the transportation of goods, and therefore it is within the letter of the statute. But the damages sustained do not, strictly speaking, arise out of this contract. They arise from the refusal of Smith, tho other contracting party, to comply with his contract, whereby the defendants were under the necessity to procure other persons than Smith to transport thoir flour, at a higher charge for freight. But the bill of exceptions shows that they paid no more than the ordinary rate for that season.

It seems to have been supposed that it was necessary that tho contract for the transportation of%oods, referred to in the statute, must be on account of the craft, and therefore efforts were made to prove that this contract was on such account. *But how .it can be said that a contract to carry on a particular boat, is a contract on account of, or upon the credit of that boat, I do not readily perceive. But the statute does not in fact prescribe that the “ contract for the transportation of goods ” shall be on account of, or upon the credit of the boat; that phraseology applies alono to “materials, supplies, and labor.”

It seems to tho court that an executory contract, like the one now before tho court, was not in the mind of the general assembly, in the enactment of this law, but that body had an entirely different contract, or class of contracts, in view. The owner of a steamboat, or other water-craft, employed in the transportation of goods, is a common carrier, and is hound safely to carry and deliver the goods, and nothing will exonerate him, unless prevented by inevitable accident, or the public enemy. There is an express or implied contract between him and the person for whom he carries, to this effect—express, if there is a bill of lading; implied, if he carries without any such bill.

If the goods are received on board the boat or vessel, this contract attaches, and if the goods are injured or lost, there is an injury or damage arising out, or in consequence of the contract, while the same is in the course of performance. The owner himself would be liable, and by the act of February 26,1840, an action to recover lor the loss might be sustained by the person injured against the craft by name. As the “ materials, labor and supplies” were'furnished to her, so the goods to bo carried were received on board, and there is the same reason for allowing the proceedings authorized in the statutes in the one case as the other. But there is no reason why a remedy should be given against the craft by name, merely because the owner has failed to comply with his executory contract to carry goods at some future period.

In the opinion of this court, the court of common pleas erred in refusing to charge as requested, in the two particulars named, and this renders it unnecessary to look any further into the case.

*The judgment is reversed, with costs, and the case remanded to the court of common pleas, to carry this judgment into execution.

Spaulding, J., did not sit in this case, having originally been of counsel.


text:
    John McGuire’s Administrator v. Canal-boat Kentucky.
    Money loaned to the owner or master of a steamboat, or other water-craft, for the purpose of paying tolls, or for paying for “ materials, supplies, or labor in the building, repairing,” etc., such craft, can not be recovered in an action against the craft by name, under the act of February 26, 1840.
    Error to the court of common pleas of Miami county.
    The original action was assumpsit, commencod by John McGuire against the defendant, before a justice of the peace, in Miami county, and appealed to the court of common pleas. During the progress of the case McGuire died, and his administrator was, in pursuance of the statute, made party plaintiff.
    The declaration contains the common counts in assumpsit, to which a plea of the general issue was filed.
    At the March term of the court of common pleas, a. d. 1848, the case was submitted to the court without the instruction of a jury. The court found the issue joined in favor of the plaintiff below, and assessed his damages at $107, for which judgment was rendered.
    The case was removed by writ of error to the Supreme Court, the judgment reversed, and the case remanded for another trial.
    At the April term, A. D. 1851, of the court of common *pleas, the case was again tried by the court, and the issue found in favor of the defendant below.
    The plaintiff then moved the court for a new trial, assigning for reasons, that the findings of the court was against the evidence ; that it was against the law of the case ; that it was in favor of the defendant, whereas it should have been in favor of the plaintiff.
    This motion the court overruled, and entered judgment for the defendant, pursuant to the aforesaid finding.
    The plaintiff excepted to the opinion of the court, overruling the motion for a new trial, and his bill of exceptions was sealed by the court, and made part of the record. On the trial the plaintiff “proved the execution of a written instrument, and gave the same in evidence, which was in the following form:
    “ Chillicothe, December 12, 1841.
    “Borrowed of John McGuire $100, for the use of the boat M. B. Ross, payable on demand.
    Wm. McAllister.”

      The plaintiff proved that the name of the boat had been changed to the “-Kentucky' that the maker of said instrument, at the time of signing it, was master of said boat. The plaintiff also gave in evidence the deposition of ¥m. McAllister, made part of the bill of exceptions.
    The defendant proved that said boat had been sold three several times, to different purchasers, since the execution of said instrument; that the owner in whose hands it had been attached in this suit had purchased the boat in good faith, for a valuable consideration, without notice of the claim given in evidence, before attaching in this suit.
    The deposition of McAllister, referred to in the bill of exceptions, states that he was master and part owner of the canal-boat “ B. M. Ross that he changed the name to “ Kentucky;” that about six years before the giving of the deposition he had borrowed. $100 from McGuire, *for the purpose of paying tolls for the boat, and that he so appropriated the money, and that he gave a note on the boat. This was all the evidence.
    To reverse the aforesaid judgment, this writ of error is presented, and the errors assigned are:
    1. That the finding of the court was manifestly against the evidence in the case.
    2. The general error, that the judgment was given for the de. fendant, whereas it should have been for the plaintiff.
    J. H. Hart, for plaintiff:
    The plaintiff claims that a fair construction of the act of February 26, 1840, brings this act within its provisions, and makes the boat liable. In the case of the Canal-boat Huron v. Charles W. Simmonds, 11 Stant. Ohio, 461, the court say : “This statute is equitable in its objects, and will receive a liberal construction to carry the design of its enactment into effect.” In Julius B. Webster v. The Brig Andes, 18 Ohio, 202, the court say: “ It is of so highly beneficial a character as to justify a court in giving to its construction the most liberal intendment to carry out its objects.” The court say in Bennett B. Lewis v. The Schooner Cleveland, 12 Ohio, 342, “It has been said by this court, in the case of the Canal-boat Huron v. Simmons, 11 Ohio, 458, that it was the intention of the legislature to substitute the water-craft, in all eases of claim, at the option of the plaintiff, where the owner or master, as such, would bo liable.”

      The statute being equitable in its design, and receiving a liberal construction, does not our claim come within the description of those for which water-craft are liable under the statute? (I call the attention of the court to the act of March 23, 1840, Swan’s Stat. 187, sec. 73) : “No boat or float shall shall bo permitted to pass on either side of the canals, unless the master thereof shall first have obtained a clearance therefor, for each voyage of such boat or float, from the proper collector *of tolls on such canals, except,” etc. Also, see sections 74. and 75 of the same act, in same connection. Section 76 of the same act provides “the full amount of tolls chargeable on any boat, and on each and every article of property which shall be on board thereof, or constitute any float at the time such boat or float shall depart from the port or place in which there is a collector from whom a clearance is required, or that shall be taken on board within one mile of such port or place, shall be paid to such collector before he shall issue a clearance for such boat or float.” Again, section 95 of the same act provides : “ The master of every boat or float shall be liable for the payment of tolls and expenses, chargeable'upon such boat or float and its cargo, and it shall be the duty of every collector to detain all articles on which tolls and expenses are chargeable, and the boat or float containing them, until such tolls and expenses shall be paid.”
    In same connection, see section 104 of same act. See also sections 112-114, 131-134, and section 27.
    The question then arises : Does money paid for tolls due by the boat come within the provisions of the statute? This question loads to a discussion of the terms of the statute. Is it not included in the term “ sujDplies,” in furnishing or equipping the boat? Let us look to the definition of “ supply.” This word is derived from the Latin word “ suppleo,” which means, according to Webster, “ to fill up as any deficiency happens; to furnish what is wanted; to afford or furnish a sufficiency.” Without a clearance the boat can not leave port or proceed. Without the full payment of tolls the boat must and will be detained. She has her cargo on, bound for a different port, and without money she can not proceed. The money, then, to pay the tolls, is a supply in furnishing or equipping the boat for her voyage—as necessarily a supply, a furnishing, or equipping, as the flour and potatoes that feed her crew, or the horses that drag her through the water; and for them, or the services of the crew, she would bo liable; yet is neither of these more necessary or efficient in the prosecution *0f her voyage than the payment of toll. Yet we are told that money loaned to the boat, and by the master and owner applied to the payment of tolls, is not within the statute ! Surely any such construction is not within either the letter or spirit of the statute, and is in opposition to the decisions referred to. JE'urnish means to equip, to fit for an expedition, to supply, and it is so defined.
    Another question presented is, that the parties defending were purchasers without notice, and therefore hold the boat free of all incumbrances. To this point we only refer the court to the case of Jones & Watkins v. Steamboat Commerce, 14 Ohio, 413: “A purchaser, at private sale, takes only the interest and title of the vendor, and holds his property as his vendor held it. The one can convey no better title than he has, and the other can acquire by his purchase but the same. The private sale is the act of the owner for his individual benefit, and the purchaser may secure himself by taking indemnity against existing liabilities from the vendor.” The same doctrine is maintained in Steamboat Waverly v. Joseph Clements, 14 Ohio, 28. On this point nothing need be said further, unless it be to call the attention of the court to the language of Judge Hitchcock, in Kellogg, Kennel & Crane v. Brenan and others, 14 Ohio, 90. “ It may not be technically a lien, but is something which appropriates the property as effectually, if not more so, than ordinary liens.” 12 Ohio, 341.
    I would refer to the case of Steamboat Arkansas Mail v. Fox, 4 West. L. Journal, 527, Hamilton county, May term, 1847. The court held in that case, that a due-bill given in the name of the steamboat and owners, signed by the master, for money borrowed, where it did not appear that the money was not applied to the use of the boat, was within the statute authorizing proceedings against the water-craft by name, and that a due-bill, so signed, was competent evidence to be submitted to a jury. Whether such a due-bill, by itself, and without other evidence, was sufficient to sustain the action, the *court said was not necessary to be decided, although it was intimated that it would be sufficient of itself.
    In view of the facts, the law, and the uniform decisions'of the court, I claim that the court below erred in refusing to grant a new trial, and that their judgment should therefore be reversed.

      Smith and Yallandigham, for defendant,
    submitted the case -without argument.
   Hitchcock, C. J.

The facts of this case, as disclosed by the bill of exceptions, so far as the same are necessary to be stated, are simply these: McAllister, who was part owner and master of the canal-boat “ M. B. Ross,” subsequently called the “ Kentucky,” borrowed of McGuire $100 for the purpose of paying tolls for the boat, and £o appropriated the money. The probability is, that the note in evidence on the trial was given for this money, but of this there is no certain proof. But admitting such to be the case, the question arises whether the plaintiff had a legal right to maintain the action and recover a judgment.

The solution of this question depends upon the construction of the act of February 26, 1840, “ providing for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against them by name” (Swan’s Stat. 209), under which this action is brought. The first section provides, that “steamboats and other water-crafts, navigating the waters within, or bordering upon, this state, shall be liable for debts contracted on account thereof, by the master, owner, steward, consignee, or other agent, for materials, supplies, or labor, in the building, repairing, furnishing, or equipping the same, or due for wharfage; and also for damages,” etc. And in such cases, by another section, the person having the demand may proceed against the owner or master, or the craft by name. We have always been willing to give this statute a liberal construction, for the purpose of carrying into efloct the "'-intention of the law-making power in its enactment; but we can not, by construction, extend it to cases not within its purview. There may possibly be other cases where there would be as strong reasons for the application of the extraordinary remedy here allowed, but that is a matter for the consideration of the general assembly, not of this court.

The ai’gument urged to sustain the claim in this case, is, that tolls must be paid upon boats navigating the canal, and that without the payment of such tolls no boat can have a clearance. This is true; still, nothing is said in the act of 1842, under which this suit is brought, about tolls. It does provide that for wharfage, jiroccedings may be had against the craft by name. Tolls are not within this act.

“ For materials, supplies, or labor, in the building, repairing, or equipping” the craft, an action may be had against her by name, if furnished on her credit. The cause of action in the case now before us is not embraced in this clause of the act. The action is not brought for materials, supplies, or labor. It is brought for money loaned to pay for tolls.

But suppose this money had been loaned to pay “ for materials, supplies, or labor, in the building, repairing, furnishing, or equipping,” would the plaintiff have a right of action against the boat by name? We think not. There is nothing in the act to meet such a case. A promissory note might be given, the consideration of which was “materials, supplies, or labor,” and upon the exhibition of the note, with proof of the consideration, a plaintiff might perhaps recover, under this statute. But there is nothing in the act which gives any such right of action to the lender of money, although that money may have been applied in the purchase of, or in the payment for, materials, supplies, or labor. And to hold that such lender might have an action against the craft by name? would be to subrogate him to the rights of the material-man, the furnisher of supplies, or the laborer. Courts of law do not possess this power of subrogation.

It is said, however, that cases have been decided upon the ^circuit, by this court, in which it has been holden that such lender of money might maintain an action under the statute. Tery possibly this may be true; and, as a matter of fact, we know that it has been differently decided upon the circuit. It was in consequence of this contrariety of decision that this case was brought to this court, and we are unanimous in the opinion that this plaintiff had no right of action against the boat “ Kentucky,” by name.

The judgment of the court of common pleas is affirmed with costs.


author: Caldwell, J.

text:
    Levi Samms v. Stewart & McKibben.
    A person whose business is not the carrying of goods, and who does not hold himself out to the world as such, will not be regarded as a common carrier, although he may occasionally carry goods for hire.
    The person thus occasionally carrying will be responsible, in case of the loss of the goods, only as an ordinary bailee for hire, and to excuse himself from liability, need only show that he has used ordinary care and diligence.

    Error to the court of common pleas of Brown county.
    *The proceeding, in that court, was an action on the case, brought by the defendants in error, Stewart and McKibben, against Levi Samms, to recover the value of a box of goods, delivered by them to him, to be carried in his wagon from Cincinnati to New Hope, in Brown county, which goods were stolen from the wagon on their way. The record presents a very meager statement of the evidence in the court below. The bill of exceptions contains the charge of the court to the jury, which was reduced to writing by the judge, and in which the evidence, with the charge of the court upon it, is presented as follows: “According to the uncontradicted testimony in this case, the merchants of New Hope usually procure their goods from Cincinnati, and the usual mode of carriage is by return market-wagons. Very few goods are carried to New Hope by any other mode of conveyance. The defendant has, according to the testimony of Whiting, for twelve or thirteen years; and according to the testimony of Fox for nearly twenty years, been engaged in carrying marketing from New Hope and that neighborhood to Cincinnati, and bringing goods from Cincinnati to New Hope; and he, when about going to Cincinnati with marketing, frequently asked the merchants of New Hope for return loads of goods. If you find from the testimony that the defendant has been so engaged for several years, he should be held responsible as a common carrier, although he was a farmer, and carrying not his principal business.” A verdict and judgment having been rendered in the court below against the defendant below, he now prosecutes this writ of error.. The principal errors relied on, and upon which the decision of this court is made, are, that the court erred in their charge to the jury, and in overruling motion for new trial.
    Sellers & Marshall, for plaintiff:
    We hold that when no special contract'is made defining the risk and liability of the carrier or the care and diligence to be *used, the custom of the place is understood to be the law of the case. Story on Bailments, 4 ed., sec. 543, n. 5; Babcock v. May, 5 Ham. Ohio, 334; Albatross v. Wayne, 16 Grisw. Ohio, 513.
    The court erred in the charge given. Under it there was nothing for-the jury to do. The court decides the case both as to the law and the facts. This charge in the bill of exceptions is in the handwriting of the judge who gave it, and is erroneous under tho rule in 2 Dana, 221 ; Wright’s S. C. 334; 19 Grisw. Ohio, 131.
    The case was decided upon the authority of Gordon v. Hutchinson, 1 Watts & Serg. 285. We insist that the ruling in that case is not law and is not applicacle to this case. It is unsupported by any other decision. Story on Bail. 465-467, sec. 495, n. 2; Kent’s Com. 597.
    In the case from 1 Watts & Serg., the loss was by neglect, not larceny, as in this case. See also 1 Hayw. 14; Satterlee v. Groat, 1 Wend. 272; 1 Bell’s Com., sec. 397; Brind v. Dale, 8 Carr. & Payne, 212.
    Penn, King & Penn, for defendant, cited 1 Watts & Serg. 285.

       Questions upon the law of bailments, including the law of common carriers, have been decided in the following cases:
      Babcock v. May, 4 Ohio, 234; Jordan v. James, 5 Ohio, 88; Roland v. Grundy, 5 Ohio, 2C2; Lawrence v. McGregor, 5 Ohio, 309 (and see Wright’s S. C. 193); McGregor v. Kilgore, 6 Ohio, 358 ; Jones v. Voorhes, 10 Ohio, 145; Bowman v. Hilton, 11 Ohio, 303; Talmadgo v. The Zanesville and Maysville Road Co., 11 Ohio, 197; Conwell v. Voorhes, 13 Ohio, 523; Barker v. Cory, 15 Ohio, 9; Wayne v. Steamboat General Pike, 16 Ohio, 421; Johnson v. Miller, 16 Ohio, 431; Inglebright v. Hammond, 19 Ohio, 337; Monteith v. Bissell’s Adm’r, Wright’s S. C. 410 ; Anderson v. Poresman, Wright’s S. C. 598 ; Lawrence v. McGregor, Wright’s S. C. 193 (and see 5 Ohio, 309); Goodman v. Ashton & Stewart, Wright’s S. C. 216; Long v. List, 1 West. Law Journal, 393; Wayne v. Steamboat Albatross, 4 West. Law Journal, 528; see also Mad River and Lake Erie Railroad Co. v. Cockran Pulton, in this volume of Reports.

   Caldwell, J.

The principal assignment of error and the only one which we think it necessary to consider, presents the simple question, whether Samms, from the facts disclosed in the bill of exceptions, is to be regarded as a common carrier. As to who are to be deemed common carriers and who not, the rules of discrimination are thus laid down in Story on Bailments, sec. 495. “It is not (as we have seen) every person who undertakes to carry goods for hire, that it is deemed a common carrier. A private person may contract with another for the carriage of his goods, and incur no responsibility beyond that of an ordinary bailee for hire, that is to say, the responsibility of ordinary diligence. To bring a person within the description of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons *generally; and ho must hold himself out as ready to engage in the transportation of goods for hire, as a business, not as a casual occupation.” The same doctrine is substantially laid down by Chancellor Kent. 2 Kent’s Com. 597, 598. The ease of Sheldon v. Robinson, 7 New Hampshire, 157, is a case bearing a very close analogy to the one now before the court. In that case it was proved of the defendant (who was sought to be charged as a common carrier for a package of money that had been intrusted to him to carry for hire), that he was a stage-driver for a company who run a line of stages between Boston and Portsmouth; that he was constantly in the habit of cari-ying packages of money for hire, from one place to the other, for all persons who chose to employ him. The court in that case decided that the evidence did not make the defendant a common carrier, inasmuch as it did not show that that was his public employment, and that he undertook to carry money and goods generally; although it did show that he had taken all that was offered to him. The case of Hennel & Short v. Pettijohn, 2 Harrington, 48, is a decision to the same effect. We think it will be found in most of the cases, where the question has arisen, that a clear distinction has been kept up between such persons as hold themsedves out to the world as engaged to carry goods generally, and at all times, and those who may occasionally, or in a single instance, undertake to carry for hire.

The common carrrior is regarded, in some respects, as a public employe; ho has hold himself out to the world as such, and hence he is required to carry all that may be offered to him, provided a reasonable compensation be tendered, and if he refuse, when ho has the convenience to carry, he will be liable to an action for such refusal. The reason of his being held to such rigid responsibility, in case the goods be lost, arises from his public character Having placed himself in the channels of commerce, and undertaken to carry for the community generally, he necessarily has intrusted to his care the goods of those who can have no personal knowledge of his character, and who *have not the power to make any special contract with him. And were it not for these and similar considerations, we see no justice in holding a person who engages to carry goods to any more rigid responsibility for the loss of the goods, than any other bailee for hire. The general rule in reference to a bailee for hire—that he is only answerable for the loss of the goods where he has been wanting in ordinary care and diligence—is in most cases a reasonable and just one, and is only departed from in the case of a common carrier, on account of the peculiar relation that he has assumed to the community. Now we see no reason why the law applicable! to a common carrier should be applied to a farmer who makes a' personal application to a merchant for a load of goods, on his return trip from market. The merchant has it in his power to make such special bargain as he chooses, ás to what shall be the liability of tho farmer in case the goods are lost. The farmer has assumed no character to the community entitling him to peculiar confidence, and the merchant is left, as in ordinary cases, to an inquiry as to his character and qualifications. Nor do we suppose it would make any difference how many applications of this kind had been made by the party thus carrying, or to how many different persons they may have been made—they would still remain so many special and individual transactions.

In the case before us, as will be seen above, it is merely stated that the defendant, for a number of years, had been engaged in carrying marketing from New Hope and that neighborhood, to Cincinnati, and bringing goods from Cincinnati to New Hope, and that when about going to Cincinnati with marketing, ho frequently asked the merchants of New Hope for return loads of goods. The court charged the jury that if they found these facts to exist they should hold the defendant liable as a common carrier, although he might be a farmer, and carrying not his regular business. In this we think tho court of common pleas erred. There is nothing in this state of facts to show that the business of tho defendant was that of a common carrier, or that ho hold himself out to tho world as such. It is not stated *to whom the marketing and the goods that the defendant was in the habit of carrying belonged; we presume, however that the goods belonged to the merchants of New Hope and the neighborhood. Thia carrying, however, was only what every farmer would like to do* to earn something by getting a back load. Nor do we think that his frequently applying to the merchants of New Hope for a back load, at all alters the case. This was merely offering his services to the few merchants that resided in the village, and was not an offer to do business for the public generally. We have been referred to the case of Gordon v. Hutchinson, 1 Watts & Serg. 285, on the authority of which it is said the court of common pleas acted in making their decision. That case, wo think, sustains the ruling of the common pleas; but we think it opposed to the current of authorities on the subject.

The judgment of the common pleas will be reversed, and the cause remanded for further proceedings.


author: Spalding, J.

text:
    Amos Spafford v. William Bradley.
    A judgment of the Supremo Court on the circuit, reversing the judgment of an inferior tribunal for refusing a new trial, where it was claimed that the finding was against the evidence, will not, as a general rule, he considered the subject of reversal here.

    Nor will the action of an inferior tribunal in granting a new tria.l in a like case be held exceptionable by the Supreme Court.
    Error to the Supreme Court of Hamilton county.
    *Tho plaintiff in error brought suit in the commercial court of Cincinnati, upon two promissory notes given to him by the defendant, Bradley, and dated, “Detroit, November 8, 1847”—the first in the sum of $158.67, payable in three months, and the second for $159.12, at four months; and both made payable at the Commercial Bank in Cincinnati.
    The defense was, that the notes were given on a transfer of stock in “the Cincinnati and Presque Isle Mining Company of Lake Superior,” which stock was claimed to be without value, and, consequently, it was insisted by defendant, that there was a total failure of consideration.
    The cause came on for trial at the October term of the commercial court, 1848, and was submitted to the judge, without the intervention of a jury.
    The only witness called by plaintiff was one Abel Goddard, who testified that he was present in April, 1848, when the plaintiff presented the notes to defendant for payment. He said the de« fendant promised to pay the amount so soon as he could got a certain mill in operation, which was then in process of building; that he repeatedly afterward heard promises of a similar import. This witness said further that in the years *1845 and 1846 he was acquainted with the affairs of “ the Cincinnati and Presque Isle Mining Company,” and that during said years the stock was in good repute, and the prospects of the company flattering; but that his information did not reach a subsequent period.
    On the part of defendant, the depositions of Alvah Hand, William O’Callahan, and Hugh O’Birne wore read to the court.
    - Hand swore, in substance, that he was present at Detroit, in the early part of November, 1847, when defendant made to plaintiff two notes, for an amount something over $300; that these notes were given for stock in “ the Cincinnati and Presque Isle Mining Company of Lake Superior.” At the time the notes wore given, witness supposed said stock to be of some value, but subsequent events had satisfied him that he was mistaken—the stock was worthless.

      O’Gallahan stated that he had learned from plaintiff, that defendant, Bradley, bad given him notes for stock in the “ Cincinnati and Presque Isle Mining Company;” is acquainted with the nature of this stock, and considers it worthless. At the time of the execution' of said notes, and ever since, witness has regarded the stock as a humbug.

      O'Bine testified that on November 9,1847, Spafford, the plaintiff, sold to Bradley, the defendant, 364 shares of stock in “ the Cincinnati and Presque Isle Mining Company.” From conversation between the parties, he thinks one or more notes were given by defendant for said stock. There is no sale for said stock in the market, and there never has been to any great amount, within the knowledge of deponent, excejit between stockholders. It is the opinion of witness that said “ mining company ” was a swindling speculation of said Amos Spafford and other persons from Ohio.
    No other testimony was submitted on either side except the notes. '
    *The plaintiff took judgment for the amount of notes and interest.
    The defendant moved for a new trial, on the ground that the judgment was against law and evidence. The motion was overruled and exceptions taken.
    At the May term of the Supreme Court for Hamilton county, A. d. 1850, this judgment was reversed, and the cause was remanded to the commercial court, for further proceedings.
    The present writ of error is brought to the judgment of reversal.
    E. J. Henry, for plaintiff in error:
    I. Was there such error in the commercial court in refusing to grant a new trial, as justified the interference of the Supreme Court ?
    This court, in Hicks v. Person, 19 Ohio, 446, have well remarked : 11 That the court before whom a trial is had, where witnesses appear, and are examined; where the bearing of any specific testimony is seen and understood, can judge with much more propriety whether a new trial should be granted in a given case, than can an appellate court, to which nothing is presented but a statement of facts proved.”
    II. There is not sufficient evidence that the notes were given for the consideration alleged by defendant..
    III. But to admit that the notes were given for the consideration alleged, it is not proved that there was no consideration in law, and in fact.
    All the world over, the holder of the notes of a bank at the time it stops payment, bears the loss, although the bank may have been insolvent for months. Story’s Promissory Notes, see. 502, and notes; Chitty on Bills, 108, and notes; 13 Wend. 101.
    A broker buys the depreciated paper of a bank, at its market value—say seven-eighths of one per cent, on the dollar. *Can he resist payment, by merely proving that twelve months afterward there was no sale for the paper of the bank ?
    I buy stock in a morus multicaulis silk company, and give notes; the “stock” turns out to be worthless. I can not resist payment. See Button’s Adm’r v. Clark, 16 Ohio, 297.
    A note given for a quitclaim deed for land, without fraud, in the absence of covenants, can not be avoided by total failure of title. 2 Caines, 188; 2 Johns. Ch. 522; 5 Johns. Ch. 29, 79; 3 Breese, 270; 3 Scam. 502; 3 N. H. 522; 1 N. H. 174; 4 Johns. 421; 5 Johns. 404; 10 Mass. 197; 2 East, 314; 4 Blackf. 57.
    Notes given on compromise are valid, without respect to the legal rights of the parties. Douglass, 654; 5 Barn. & Ald. 117; 2 Bibb, 448. Notes given on compromise of slander suit, for words not actionable, are valid. 2 Penn. 531.
    Where pax-ties deal with equal means of knowledge, without warranty or fraud, caveat emptor is the rule. 2 Kent, 478, 485; 1 N. H. 174; 3 Term, 438; 8 Mass. 46.
    Even false representation, without fraud, no defense. 1 Breese, 268; 2 Scam. 13, 452, 363, 444; 2 Kent, 485, 486.
    The slightest benefit to the promisor, or the slightest loss to the promisee, is sufficient considex’ation. Inadequacy is no defense, either in law or equity, without fraud. 16 Ohio, 297 ; Chit. Con. 31, 32, and notes; 2 Hill, 606.
    The transfer of the possession, or claim of title to lands, is to the prejudice of the seller, and a benefit to the purchaser, and therefore forms a good consideration. 3 Scam. 337; 6 Wend 648.
    A party wishing to rescind, must be ready, prompt, and eager to place vendor in statu quo. And where goods are sold with warranty, failure to give notice of broach, raises a strong presumption against the buyer, that the goods, at the time of sale, had not the defect complained of. Chittv, 458, and notes. And a fortiori, if the buyer, after five months, promise payment.
    *Eaton & Justice, for defendant in error.
    No argument came to the reporter’s hands.

       See act of March 12,1845, 43 Ohio L. 81, “ to regulate the judicial courts and the practice thereof.”
      Under this act where a cause is submitted to the court without a jury, the same right exists to except to the ruling of the inferior court in refusing, on motion for new trial, to set aside their own finding, as though the cause had been submitted to a jury, and the right to prosecute a writ of error is the same. Per Spalding, Judge.
      In Markle v. Akron, 14 Ohio, 586, it was hold that “ when the facts are submitted to the court, instead of the jury, for decision, its judgment will not be reversed on error, though unsustained by the weight of evidence.” And see Wright’s S. C. 46, 673; Reynolds ot al. v. Rogers’ Ex’r, 5 Ohio, 171. The point thus decided seems to be modified by the act of March 12, 1845. In Kepner’s Adm’r v. Snively’s Adm’r, 19 Ohio, 296. it was held that where there has been a motion for a new trial overruled, and a bill of exceptions taken, showing the evidence, whether the cause has been submitted to the court or jury, under said act of March 12, 1845, such case may be reviewed on error. A judgment will not be reversed because decided against the evidence, unless there is a motion for new trial. 19 Ohio, 296.
      This act is construed in Baker v. Cory, 15 Ohio, 9, and Kepner’s Adm’r v. Snively’s Adm’r, 19 Ohio, 296. Cleveland v. Bodwell, 13 Ohio, 133, is said to be obsolete by force of this act. Curwen’s Cases Overruled, 17. See also Hicks v. Person, 19 Ohio, 426; see also Bayless v. Belmont Bank, 15 Ohio, 606; Wagers v. Dicky, 17 Ohio, 439.
      As to jurisdiction of Supreme Court, see West. Law Journal, 1849-50, p. 221.
      See Pierre Chouteau, Jr., et al. v. Rait, in this volume of Beports.

   Spalding, J.

The record before us nowhere shows that the decision of the Supreme Court on the circuit turned exclusively upon the refusal of the court below to grant a new trial.

We find, however, that this is the only matter assigned for error deserving of much consideration, and, in our examination of the subject, will assume the proposition of plaintiff’s counsel to be true; that no other sufficient cause of reversal was found by the court to exist in the record.

By the act of March 12, 1845, entitled “ an act to regulate the judicial courts and the practice thereof,” it is provided that in all cases pending in the courts of common pleas, etc., either party shall have the right to except to the opinion of the court in all cases of motion for a new trial, by reason of any supjjosed misdirection of the court to the jury, or by reason that the verdict may be supposed to be against law or evidence, so that such case may be removed by writ of error.

The right to except to the ruling of the inferior tribunal in refusing, on motion for a new trial, to set aside their own finding, in the absence of a jury, is also recognized in practice by this court as within the spoirit of the legislative enactment.

Since the right of appeal has been taken away from the parties in actions at law, this court has often interposed, under the act of 1845, to reverse a judgment, for the reason that the court in which it was rendered had unreasonably refused a new trial; the verdict being manifestly against the evidence.

This is, in effect, a second trial upon the weight of the testimony before a different tribunal; and the power conferred by the statute upon this court is sometimes necessarily called into exercise to prevent a total failure of justice.

Not so, however, where the error assigned is that the court below sustained the motion for a new tria 1, and set aside the verdict or judgment. No irreparable wrong can be done in *such a case, as it only compels the parties to retrace.their steps, and submit their proofs and allegations a second time to the same tribunal.

Hence, although by the terms of the statute the party supposing himself aggrieved would seem entitled to his writ of error, as well where a motion for a new trial is sustained as where it is refused, no case has occurred in practice where this court has seen fit to reverse the proceedings of a subordinate tribunal for the sole reason that it has, on motion, set aside a verdict as against evidence, and ordered a new trial.

In the case at bar, the testimony is by no means of a preponderating and conclusive character. The members of this court would probably divide in opinion, if called to try the cause upon its merits.

A jury might, therefore, without any glaring impropriety, have returned a verdict for either party; and if the judge of the commercial court had seen proper, on reflection, to have set aside his own finding, and to direct a new trial, this court, most undoubtedly, would have refused to disturb his proceedings.

What different bearing has the question before us been made to assume ?

The judge of the commercial court refused to entertain the motion of defendant for a new trial, and entered up judgment for plaintiff upon the notes. Two judges of the Supreme Court, sitting for the county of Hamilton, deeming the evidence insufficient to sustain the plaintiff’s claim, have set aside the judgment and directed a new trial.

Saying nothing about the perplexity into which the parties litigant would be thrown by a different course of procedure, I ask if it can be expected that we shall treat the proceedings of the Supreme Court for Hamilton county with less respect than that which we are at all times ready to extend to the action of the commercial court of Cincinnati ?

We would not have interposed our authority to prevent a second trial, if ordered by the commercial court, for the same *causo.

We will not interfere to disturb the action of the Supreme Court, which has produced no other or different result.

The judgment is affirmed..


text:
    Charles Brown v. Ward Timmany.
    Money paid on an agreement, entered into on Sunday, may be recovered back so long as the contract remains executory.
    Aliter, if the agreement has been executed.
    Error to the court of common pleas of Athens county. Reserved for decision in this court by. the Supreme Court in that county.
    The action was assumpsit, commenced originally before a justice of the peace, by whose judgment the plaintiff recovered six dollars damages, and costs of suit, on April 11, 1850.
    The defendant appealed to the court of common pleas, where the cause, after sundry continuances, was tried by a jury, at the September term, 1851.
    Under the charge of the court, the jury returned a verdict for defendant.
    The bill of exceptions shows that the plaintiff and defendant made an agreement, on Sunday, whereby the defendant was to deliver to the plaintiff a yoke of oxen, in exchange for a colt of the plaintiff and five dollars “ boot-money.” At the time of making the agreement, the plaintiff paid to the defendant the five dollars, and the defendant was to bring the oxen to the plaintiff’s house on the next day, and take away *the colt. If he failed to do so, he was to forfeit and pay to the plaintiff one dollar. The date of the contract is not disclosed in th'e bill of exceptions.
    The defendant wholly failed to fulfill said agreement. He would neither deliver the oxen nor receive the colt. This action was brought to recover back the money paid.
    At the request of counsel for the defendant, the court instructed the jury, that, if they should find that said agreement was made on Sunday, and that said sum of five dollars was paid in part execution of the contract for an exchange of property, the money paid by plaintiff could not be recovered back under the common counts in the declaration, although they should find that the defendant had wholly failed to comply with the agreement on his part* Motion for new trial overruled.
    It is insisted by plaintiff that the court mistook the law in this their charge to the jury, and that the judgment should be reversed.
    John Welch, for plaintiff:
    The court instructed the jury that plaintiff could not recover back the five dollars, as the contract was made on Sunday. This was clearly wrong.
    It has been decided by this court, that a suit can not be maintained upon a contract made on a Sunday. This decision I do not seek to disturb. What I maintain is, that money paid on a contract made on Sunday, where the contract remains executory, can be recovered back—putting contracts made on Sunday on the same footing with other illegal contracts.
    The common pleas fell into the error from the statements made in digests, that “ money paid upon an illegal contract can not be recovered back;” whereas the cases show that the contracts were executed, in all cases where the court refused to allow it to be recovered back, and that the reason assigned was, that to allow it to be recovered back, in violation of the *contract, would be to allow the party to take advantage of his own wrong.
    The law of illegal contracts is :
    1. That no suit upon them will be sustained; that is, they will not be enforced.

      2. That when executed, no suit will be sustained to recover back money paid, or damages for any other thing done in execution of them; and,
    3. That while they remain executory, either party may recover back money paid, either in part or whole execution of the contract; that is, either party may rescind, and be restored to his former condition, if not in default himself.

    The reason, in the first ease, is, that courts will not aid to do what is illegal. In the second cage, the illegal thing having been already done, the court will not aid either party to violate a contract; although illegal. But in the third ease, the court is not asked to aid the execution of the contract, or to aid the plaintiff to violate it; but simply to compel the party who has violated it, as well as been guilty of making it, to restore the party who has not violated it, to his original rights. In doing this, the court gives no sanction to the illegal contract, or to its violation, but discountenances both.

    All the cases where it is stated that money paid upon an illegal contract can not be recovered back, are cases where the defendant

      has executed the contract, and is, therefore, not in fault. See 3 Term, 266; 8 Ib. 575 ; 1 East, 96; 8 Taunt. 492.
    In Loury v. Bordean, Doug. 451, where the plaintiff was allowed to recover, the court first lay down the rule, that “ there is a clear distinction between contracts executed and executory.”
    In Jacques v. Golightly, premiums paid to an illegal lottery-office -keeper, who refused to pay over what had been won, were allowed to be recovered back.
    Chittyon Contracts, 637 : “If the contract be executed orperformed,, and both parties are in pari delicto, no action lies *to recover back money paid; but if the contract be executory, or not performed, the plaintiff may disavow it before its completion, and recover back money paid under it to the other party, under the count for money had and received.”
    In Greenman v. Curtis, 6 Mass. 381, the plaintiff, who had sold defendant a cargo, to be paid for in slaves, and who had received part of the slaves, and defendant’s note or agreement for the remaining slaves, was allowed to abandon the note, and recover under the count for goods sold, the balance of the price of the cargo.
    Roscoe on Evidence, 232: “Where money has been paid in pursuance of an illegal contract, it is in certain cases recoverable as money had and received to the use of the party paying it. It may be recovered in the following caso :
    “ When the contract x’emains executory, though the parties be in pari delicto,” citing 2 B. & P. 467; 3 Taunt. 277; 4 Ib. 290; Doug. 468, etc.
    This is a suit to x-escind the contract which the defendant has refused to fulfill. This is his act of rescission. The suit, or demand of the money, is .the plaintiff’s act of rescission. This is the strongest case of rescission for the plaintiff. But plaintiff may x’escind and recover back where defendant is not in default, as in 3 Taunton, 277, and 4 Ib. 290, where the plaintiff recovered back money advanced on an illegal wagex*, having brought his suit before the bet was decided. Cowles v. Regnet et al., 14 Ohio, 55 ; 4 Ohio, 400 ; 7 Ohio, 70.

    John E. Hanna, for defendant, insisted:
    That the acts done by the parties in this case were not wrong per se; the acts were right in themselves, but wrong because done at a time prohibited by law. The cases cited by plaintiff’s ^counsel are all for acts wrong-in themselves, and this is the distinction between those cases and the one at bar.
    I call the attention of the court to the authority cited from Chitty: “ But if the contract be executory and the plaintiff dissent from, or disavow, the contract before its completion, he may, on disaffirmance thereof, recover back money paid under it,” etc. The election to rescind must be taken and notified in due time—before that which is unlawful is done. Why is it that whore the illegal contract is executory, the money paid may be recovered back ? Because the party before he does that which the law prohibits, recants and notifies the other party; and the unlawful act is not done.
    Story defines an executory contract—Contracts, sec. 18. In this case the illegal act was consummated in the making of the contract, and there is no pretense that there was a rescission or notice to the other party by the plaintiff, before the illegal act was done. Sellers v. Dugan, 18 Ohio, 493, is conclusive. I also refer to Chit. on Con. 657 C. 4; Holman v. Johnson, Cowp. 343 ; Drury v. Defontain, 1 Taunt. 139 ; Fennell v. Ridler, 5 Barn & Cres. 406 ; Story on Con. ch. 8, sec. 613; 11 Wheat 258; Bartle v. Coleman, 4 Pet. 284; Craig v. Missouri, 4 Pet. 436; Lyon v. Strong, 6 Vt. 219; Lovejoy v. Whipple, 18 Vt. 379; 2 Greenl. Ev., sec. 111-199, n. 2; Cincinnati v. Rice, 15 Ohio, 225.
    The case at bar is not an executory contract, but falls under what Strong on Contracts (sec. 19) denominates as a class “partaking of the nature both of executed and executory contracts.”

       See 6 Ohio, 442; Moore v. Adams, 8 Ohio, 372; Thomas v. Cronise, 16 Ohio, 54.

   Spalding, J.

In Sellers v. Dugan, 18 Ohio, 493, this court, with one dissenting voice, decided that an ordinary contract, made in the course of business, on a Sunday, is void, and that no action can be sustained to recover damages for the breach of such a contract.

The question whether money paid on the contract could be recovered back in the action of assumpsit, was not submitted, much loss determined, in that suit.

*The question is directly presented for adjudication in the case at bar, and we have no hesitation in saying that the court of common pleas erred in its instructions to the jury.

We have declared that a business contract, made on Sunday, is void. Neither party will receive the aid of the court, while seeking to enforce performance of the agreement, or to recover damages for its breach.

Nor would we help either party to rescind, if the agreement was wholly executed, upon the principle applicable to parties in pari delicto.

Where, however, as in this case, money has been advanced in part performance of a void contract, and either party sees fit to put an end to its further fulfillment, the amount paid may recovered back, in indebitatus assumpsit, as for money had and received.

In the present case, the agreement had never been wholly executed.

The plaintiff paid to the defendant five dollars in money, and the defendant agreed to deliver to the plaintiff on the next day, a yoke of oxen, and to receive a colt in exchange. The defendant refuses to deliver the oxen, on the ground that he entered into the contract on a Sunday, and it is void. So far he is sustained by the law.

But if he repudiates and refuses to execute the agreement, on the ground that it was a business transaction on the Sabbath, and consequently void, upon what pretense of right can he withhold from the plaintiff the money that he advanced upon the faith of that agreement ?

He has put an end to the execution of the contract, as he had a legal right to do.

He now holds five dollars of the plaintiff’s money without consideration, and is, ex cequo et bono, under as great obligation to refund it as if ho had accidentally found it on Sunday. The well-settled rule of law undoubtedly is, that^ where money has been paid in pursuance of an illegal contract that remains oxe'eutory, it *is recoverable in an action for money had and received to the use of the party paying it. Aliter, when the agreement is executed.

The judgment of the common pleas is reversed, with costs.


author: Rannet, J.

text:
    Gideon S. King v. Obed W. Wicks, Jr.
    Before a witness can be contradicted by proving statements out of court at variance with his testimony, he must be first inquired of, upon cross-examination, as to such statements, and the time, place, and person involved in the supposed contradiction.
    Error to the court of common pleas of Geauga county.
    The original action was trespass before a justice of the peace, brought by Wicks as plaintiff (now defendant in error), against King, defendant below (now plaintiff in error). The cause was removed to the common pleas, and tried to a jury at May term, 1851, when the plaintiff below recovered judgment.
    The bill of exceptions taken at said May term shows that the plaintiff below, on trial, called as a witness, William R. Tolls, who gave evidence for the plaintiff material to the issue. “ After the plaintiff had closed his testimony, and rested his case, the defendant called Freeman Brown, a witness sworn for defendant, and proposed to prove, and asked said witness what he had heard the witness Tolls say in relation to the case, and stated to the court that the object of the testimony was to contradict the said witness in what he had testified to, and to show that he (Tolls) had made to the witness Brown, statements out of court different from his testimony here, and that he (Tolls) had stated to witness Brown, altogether different from what he had testified in court, and as set forth in this bill of exceptions for the purpose of contradicting and impeaching the ^witness Tolls. To this inquiry the plaintiff objected, on the ground that the defendant had no right to such testimony, because the defendant had not asked the witness Tolls on the stand, whether he had not stated to the witness Brown, or to any one, and told him or them what the defendant sought to prove that said Tolls had said to Mm, or asked the witness anything in relation to the declarations sought to be thus proven by said Brown. The plaintiff proposed to defendant that he might recall the witness Tolls, and inquire of him, so as to lay the foundation for the evidence. The court sustained said objection, and would not permit the defendant to examine the witness, nor permit the witness to answer the questions; to which opinion of the court the defendant excepted,” etc.
    It does not appear that the defendant below accepted the proposition to recall tho witness Tolls, and examine him, so as to lay the foundation for the examination of Brown.
    B. Bissell, for plaintiff:
    Had the plaintiff in error the right to impeach Tolls by proof of statements out of court different from his evidonce in court? I know it was held in the celebrated case of The Queen, that you must inquire of the witness first, whether he had not made the statements; but it was never so held up to that time, nor is that case authority in any court that has independence enough to encounter the arbitrary ruling of the court made for the occasion.
    The only reason for such rule is, that the witness may leave, and have no opportunity to explain. In answer, I say a witness has no right to leave until the testimony is closed.
    Phelps, Riddle & Thrasher, for defendant,
    cited 3 Stark. Ev. 1753; 1 Greenl. Ev. 622, and notes, 2d ed.; 2 Phil. Ev. 432, 434, 3d ed.; Cow. & H., 4 Phil. Ev. 758; Cowen’s Notes, 390, pt. 2, 3d ed.; Angus v. Smith, 1 Mood. & Malk. 437, 474. This is the English rule, and is adopted in all *the states except Maine—perhaps Massachusetts and Ohio. In this state the decisions have been contradictory
   Rannet, J.

From the bill of exceptions taken upon the trial, it appears that the defendant in error called a man by the name of Tolls, as a witness, who gave evidence material to the issue. The plaintiff in error then proposed to show, by another witness, that Tolls had made statements out of court different from his testimony in court, for the purpose of contradicting and impeaching him. This evidence was objected to, upon the ground that the witness Tolls had not been inquired of whether he had not made such statements as were proposed to bo proved to the other witness, or whether he had said anything -to that witness upon the subject. The defendant in error proposed to the plaintiff, that he might recall the witness Tolls, and so lay the foundation for the evidence to contradict him; but this offer was declined, and thereupon the court sustained the objection, and ruled out the evidence. In this it is claimed they erred.

We are aware that some diversity of practice upon this question has obtained in the courts of common pleas in different parts of this state. This case was reserved for the purpose of settling the rule and securing uniformity upon the subject. The case upon authority is exceedingly clear. The imported cases and elementary books speak an almost uniform language upon the subject. The leading ease in England was that of the Queen, reported in 2 Broderip & Bingham, 314. Lord Abbott, C. J., delivered the unanimous opinion of the judges, holding that evidence to contradict or impeach a witness, by proving that he had made different statements out of court, could not be received until the witness was first asked, upon cross-examination, whether or not he had said or declared that which was intended to be proved. But the counsel for the plaintiff in error is mistaken in supposing that the doctrine rests alone or mainly upon this decision. It has been followed in England by the cases of Angus v. Smith, 1 M. & Malk. *473; Crowly v. Page, 7 Car. & P. 789; Regina v. Shellend, 9 Car. & P. 277; Regina v. Holden, 8 Car. & Payne, 606; and is the clear and undeniable rule of the English courts at this day. It has been almost universally acquiesced in in this country. It was adopted in Now York in the cases of Everson v. Carpenter, 17 Wend. 419; and Robertson v. Carr, 3 Barb. 410; in Pennsylvania, in McAteer v. McMullen, 2 Barr. 32; in Vermont, in Downer v. Dana, 19 Vt. 338; in Maryland, in the Franklin Bank v. The Steam Navigation Co., 11 Gill & Johnson, 28; in Indiana, in Doe v. Reagan, 5 Black. 217, and Weinzorpflin v. The State, 7 Black. 186; in Illinois, in Regnier v. Cabot, 2 Gil. 34; in Tennessee, in Story v. Saunders, 8 Humph. 663; and by Mr. Justice McLean, in the case of McKinney v. Neal, 1 McLean, 540. It is believed to be the rule in every state in the Union, where the question has been raised, except Massachusetts and Maine. It is also the doctrine laid down in the most approved elementary books. Mr. Greenleaf, in his work on Evidence (vol. 1, p. 542, sec. 462), after stating that the credit of a witness may be impeached by proof of statements out of court contrary to what he has testified at the trial, adds: “Before this can be done, it is generally held necessary, in the case of verbal statements, first to ask him as to the time, place, and person involved in the supposed contradiction. It is not enough to ask him the general question, whether he has ever said so and so, nor whether he has always told the same story; because it may frequently happen that, uoon the general question, he may not remember whether he has so said; whereas, when his attention is challenged to particular circumstances and occasions, he may recollect, and explain what he has formerly said.” And this course he regards as indispensably necessary, as a matter of justice to the witness whose testimony is sought to be impeached-Mr. Starkie (3 Starkie’s Ev. 1753) lays down the same rule in the most unqualified manner, and after enforcing the necessity of adhering to it to enable the witness to give such reasons, explanations, or exculpations of his conduct, if any there be, as the circumstances may furnish, and thus the *whole matter be brought before the court at once, which is the most convenient course, says: “ And it is of great importance that this opportunity should be thus afforded, not only for the reasons already suggested, but because such explanation, if not given in the first instance, may be rendered impossible; for a witness who has been examined, and has no reason to suppose that his further attention is requisite, oiten departs the court, and may not be found or brought back until the trial be at an end.” The doctrine is also laid down by Phillips (1 Phillips’ Ev. 295), and is indorsed by Mr. Justice Cowen, in his notes to that work (vol. 2, p. 774), and enforced by a striking illustration of its wisdom, by an example drawn from his own practice upon the bench. We should be very slow to depart, unless the most careful investigation convinced us of the necessity, from a rule thus sanctioned by the ablest elementary writers, whose works are placed in tho hands of every student, and so many of the highest courts in different parts of the world. Such investigation and scrutiny, however, only serve to convince us of its wisdom, and of the propriety of adhering to it. In addition to the reasons already stated, others equally cogent could be given. To make the truth manifest upon the issues joined between the parties, is the object of all evidence. This testimony has no direct bearing upon any disputed fact, but raises a collateral issue upon the credit to be given to a witness, and, with all collatei’al issues, is calculated to divert the minds of the jury from the points in controversy in the case. Such collateral inquiry may and often will become necessary, but it should be avoided where it can be; and I firmly believe it may be avoided in a majority of oases, where the inquiry is first made of the witness himself, either by his confessing such contradictory statements, or giving such explanations in regard to them as will convince the party that nothing is to be made by pursuing the matter further Again, witnesses are required, willing or unwilling, to come into court and testify. They should appear there under the full confidence that their feelings and reputations will be respected and protected, so far *as is consistent with the ends of justice. The witness suddenly finds himself on trial for his veracity, and his character attempted to be impaired, not only for the purposes of the present controversy, but unavoidably with his neighbors afterward. His disregard of truth is sought to be established by the most uncertain and unsatisfactory of all evidence—mere verbal declarations. A word imperfectly heard, forgotten, or omitted, may change his whole meaning, and make him say what he never thought of; or even the imperfection of his own language may have misled the hearer. His seeming inconsistency may be proved by very honest witnesses, while he feels conscious of being wronged; and thus an angry and excited contest very often continues through a whole trial, and embroils a neighborhood in bitter strife for years afterward, which might all have been avoided by one minute’s explanation, in the first instance, from the party implicated, in the presence of those brought to impeach him. The opportunity for explanation at the outset not being improved, the breach widens as the contest progresses, until it becomes a matter of astonishment how small a matter is sufficient to lay the foundation of a great controversy. We are satisfied this rule impairs no substantial right of any .suitor, while the cause of justice gains much by its observance.

The judgment is affirmed.