text:
    John Turner v. Joseph Chrisman, Administrator of John Moore, deceased.
    A new promise is, in law, available to sustain a recovery upon an old contract, against a plea of bankruptcy.
    Tbe “ bar” arising from the bankruptcy is strictly a personal privilege, and is “ waived” by the subsequent promise.
    When the “ bar” is “waived ” by a new promise to pay an old debt, it is competent to declare on the old liability without suing on the new promise.
    Error to the court of common pleas of Union county.
    In the court below, Chrisman, as administrator of Moore, sued Turner, in 1847, in an action of debt, upon a single bill executed by Turner to Moore, dated March 10, 1834, payable one day after date. The declaration contains special counts on the note, charging the indebtedness to the intestate, and the common counts averring the indebtedness to the administrator.
    Plea, general issue, with notice that defendant would give in evidence a certificate of discharge under the bankrupt law of Congress, of August, 1841.
    On the trial the plaintiff below gave in evidence the note *declared on. The defendant gave in evidence his certificate of discharge under the bankrupt law. The plaintiff below then proved by parol that the defendant, subsequently to his discharge, and before suit brought, made a verbal promise to pay the administrator the note declared on. The defendant below objected to the evidence, but it was received by the court, and final judgment given in favor of the administrator. Motion for a new trial overruled, and exceptions taken by Turner.
    This writ of error is brought to reverse the judgment.
    Curry & Allison, for plaintiff in error :
    The certificate of discharge, under the bankrupt law, does not operate merely as a suspension of the remedy, but effects an absolute extinguishment of the debt—so complete that it can not be revived again. Such is the effect of the language of the law. U. S. Stat. at Large, 440.
    If we admit that in such case a moral obligation remains, which is a sufficient consideration for a new promise, still, the original debt remaining extinct, it results that if any suit be maintainable, it must be founded upon the new promise.
    The defendant in error relies upon the English practice, which has been followed, to some extent, in this country. That practice proceeds upon the idea that a new promise, after certificate in bankruptcy, is to be viewed in the same light precisely with a new promise made after the taking effect of the bar of the statute of limitations. It is put on that express ground in the cases cited by defendant in error, from 14 Johns. 178, and 8 Mass. 127. Such ground we think to be entirely unsatisfactory. The only effect of the bar of the statute of limitations is to suspend the remedy. The certificate in bankruptcy extinguishes the debt.. The two things are essentially unlike; but if they were exactly similar, we are not bound here by the English practice. So this court has already decided. In Hill v. Henry, 17 Ohio, 9, it was held that *the acknowledgment and promise to pay a debt which is barred by the statute of limitations does not revive the original cause of action, but if a creditor would enforce a collection he must do it by a suit on the subsequent promise. There is another reason why the proof of the new promise, in this case, ought tO' have been ruled out. Upon the supposition that the old debt had been revived by the new promise, still, no recovery could be had upon the old debt, unconnected with the new promise. Both together were required to make a case for the plaintiff below. And, this being true, he ought to have shown his whole case in his pleadings. The court ought not to have permitted him to present a part of his case in the pleadings and anothor part by oral proof at the trial. If such has been the English practice, it ought not to be followed here. Even there it has not gone unquestioned. In 1 Bac. Abr. 452, it is said that the practice of allowing the plaintiff, after plea in bankruptcy, to give in proof the special matter to show that he is not barred, “ hath been questioned by high authority; and it hath been thought that the pilaintiff should set out, in his declaration, the matter of which he would avail himself.” See also Penn v. Bennett, 4 Campb. 206 ; Deeper v. Tatton, 16 East, 420.
    P. B. Wilcox, for defendant in error:
    A count on a promise to the intestate may be joined with a count on a promise to the administrator. 1 Chit. Pl. 203, 8 Am. ed.; 5 Binn. 573.

      A new promise, after a certificate of bankruptcy, may be given in evidonce under the common counts, “ because the new promise had revived the old debt.” Lord Kenyon, Peake, 68; 3 Petersdorf’s Abr. 948.
    And the plaintiff may declare upon the original cause of action without noticing the subsequent promise. 14 Johns. 178; 8 Mass. 127.

      Z. T. Fisher, on same side :
    *It is expressly stated in 1 Chitty on Pleadings, 54, that when the subsequent promise of a bankrupt is effectual, it is sufficient to declare upon the original consideration. In the case of Shippey v. Henderson, decided in New York, it is expressly said by the court, that when a debt is barred by a certificate of bankruptcy, it is sufficient to declare upon the original consideration, and that a promise made by the bankrupt, after certificate granted will support an action. 14 Johns. 178. In 1 Selwyn’s Nisi Prius, 219, it is said that, “in the case of an express promise after certificate, the plaintiff is not obliged to declare specially, but may declare on the original cause of action, and if the bankruptcy be pleaded, the plaintiff may give the subsequent promise in evidence.” The bankruptcy is not pleaded in this caso, but the notice filed with the general issue amounts to the same thing under our statute. The same principle was held in the case of Maxim v. Murre, 8 Mass. 127.
    The plaintiff below can recover under the common counts, by proof of a subsequent promise, because the new promise had revived the old debt. 3 Petersdorf’s Abr. 948; 1 Chit. on Pleadings, 204.
   Spalding, J.

The action is brought by the personal representative of the payee against the maker of a sealed note. A count •on a promise to the intestate is. joined in the declaration with a count on a promise to the administrator. This is good pleading. Mr. Chitty says: “It is frequently necessary to add a set of counts on promises to the plaintiff, in his representative capacity, in order to admit of evidence of a promise or acknowledgment to the plaintiff, to take the case out of the statute of limitations.” 1 Chit. Pl., 7 Amer. ed. 438.

The promise to the administrator could be given in evidence under the common counts. In Williams v. Dyde, Peake’s N. P. Cas. 68, a subsequent promise by a bankrupt, after he was discharged by his certificate, was allowed to be given in evidence *upon a count for goods sold, and a plea of discharge under his certificate.

Although there seems to be a marked distinction between the effect produced upon a debt by the operation of the statute of limitations, and a certificate of discharge in bankruptcy, a subsequent promise by the debtor, is held sufficient, in either case, to overcome the plea, and entitle the plaintiff to recover on the original ground of action. The running of the statute of limitations does not discharge the debt. It only suspends the remedy on the presumption that the debt is paid. By an acknowledgment of the debt, or a new promise to pay, that presumption is removed, and the remedy is restored.

In bankruptcy, a debt is discharged by the operation of the certificate, and a note or bond becomes functus officio. 5 Mass. 509. The words of the statute are: “And such discharge and certificate, when duly granted, shall, in all courts of justice, be deemed a full and complete discharge of all debts, contracts, and other engagements of such bankrupt, which are provable under this act. United States Statutes at Large, 440. In Roberts v. Morgan, 2 Esp. 736, Eyre, C. J., says: “ A debt barred by a certificate, under a commission of bankruptcy, by a new promise to pay it, becomes a new debt.” Lord Mansfield also says: “Where there has been a new promise after the discharge, the bankrupt is liable as on a new contract.” Douglass, 192. And in Truman v. Fenton, Cowp. 544, the same learned judge says: “ The moral obligation uniting to a new promise, makes a new undertaking and agreement.” In Walbridge v. Harroon, 18 Vt. 450, Williams, C. J., says: “In bankruptcy, the debt is discharged, and the new promise alone gives the action.”

Aliter.—Thompson, C. J., in Shippey v. Henderson, 14 Johns. 180, where he says: “ A subsequent promise can only revive a precedent good consideration, the remedy having been suspended by the discharge.”

However much jurists may have differed as to the effect of a bankrupt’s discharge upon the original indebtedness; whether *it worked an extinguishment of the debt, or only a suspension of the remedy, it is very clear that a long train of authorities in England and America has settled the rule that a plaintiff, declaring on the original cause of action, may overcome the plea of bankruptcy, and recover his debt upon parol proof of a subsequent promise to pay the same.

I find but one well-defined case to the contrary, and the synopsis of that, as taken from the U. S. Digest for 1849, is as follows:

“ The parol promise of a certificated bankrupt to pay a debt due by note or specialty, before his bankruptcy, will not authorize an action upon the note or specialty.” Graham v. Hunt, 8 B. Mon. 7.

This volume of reports is missing from the State Library; and I have not been able to procure it from the private libraries of the city. The troublesome question is, how can a plaintiff declare upon, and recover for a debt that has been discharged? Ought he not rather to declare upon a new promise of the bankrupt debtor? Lord Ellenborough answers in Leaper v. Tatton, 16 East. 423 : “It is the common practice to declare on the original contract, and if the statute be pleaded, the only question is, whether the defense given by it has been waived.”

Marcy, J., in Depuy v. Swart, 3 Wend. 141 says: “ It is well established, that the plaintiff may declare on the original cause of action. The inconsistency of making the new promise the basis of the action, and at the same time allowing the plaintiff to declare upon the antecedent debt, which has been discharged, or the remedy upon it barred, has been often presented to the courts of England and this country; and although it has been sanctioned, it has been, looked upon as a deviation from the general rule, requiring a plaintiff to state in his declaration the agreement, or whole cause of action whereon his suit is brought. . . .

“ The replication setting up this contract has not been considered a departure, because it is not entirely a new matter ; *it derives that which is necessary to support its consideration from the old debt. The issue is, in fact, upon the new contract, and the note given on the old contract is only brought into view as furnishing the consideration which the plaintiff must show for the new promise. The note, in my opinion, has no valid existence for any other purpose.”

As an individual member of this court, I should feel better satisfied with the establishment of a rule that required the suit to be predicated upon the new promise; for, I must confess, the reasoning of the judges in the cases examined, has failed to convince me that the practice was sound in its inception, whatever it may have become by long-continued usage.

That a new promise is in law available to sustain a recovery upon an old contract, extinguished by an act of bankruptcy, I do not for a moment doubt. But to give a satisfactory reason for this well-established rule, is a work of more difficulty. The only tolerable explanation, to my mind, is that made by Lord Ellen-borough, in 16 East, and that was a case where the statute of limitations was pleaded, I think “the bar,” whether founded upon this statute or upon bankruptcy, is a strict personal privilege, and susceptible of being waived by a new promise.

The learned court in Massachusetts, that tried the case of Maxim v. Morse, 1 Mass. 129, reasons in this wise upon the subject: “ The inconsistency objected in this case, is in appearance more than in reality. A good collateral fact was put in issue, on which a regular judgment may be entered in the action. The pleadings are very similar to those which frequently arise under the statutes of limitation. The defendant pleads what is prima facie a legal bar to the plaintiff’s demand; the plaintiff replies other matter, which shows the defendant bound as well by law as in conscience, to pay the debt—and this matter is found for the plaintiff. There remains no reason why he should not have his judgment on the verdict.”

The action was debt on a judgment. The defendant pleaded his certificate in bankruptcy in ■ bar. The plaintiff replied a ^subsequent promise to pay the debt. The defendant rejoined that he did not make the promise, etc.; upon which issue the jury returned that the defendant did promise, as alleged in plaintiff’s replication, and. found the amount of the debt to be ninety dollars. The defendant moved an arrest of judgment, on the ground that the plaintiff had misconceived his action ; and that it ought to have been in case upon the defendant’s promise, in stead of debt upon the judgment. McKinley v. O’Keson, 5 Barn (Pa.), 369, is to the same effect.

This court will yield to the weight of authority on this subject, and hold with the English courts, and the courts of most of the states in this Union, that a new promise, after a certificate of bankruptcy, may be given in evidence to support a recovery, although the plaintiff may have declared upon the original cause of action, without noticing the subsequent promise. At the sama time it will be mindful to exact that measure of proof which will show the promise, on the part of the bankrupt, to have been distinct and unequivocal. A vague or conditional promise, or a mere acknowledgment of the debt, will not make him liable. 8 Humph. 510; 12 Smedes & Marsh. 492; 9 Ala. 322.

The case of Hill v. Henry, 17 Ohio, 9, cited by counsel for plaintiff in error, owes its decision to the peculiar phraseology of section 5 of the act of 1831, for the limitation of actions. It has no bearing on the questions arising in this case.

The judgment of the court of common pleas will be affirmed, with costs.

Hitchcock, C. J., was absent.


source: Caselaw Access Project

author: Caldwell, J.

license: Public Domain

text:
    *William Hunter v. John Field.
    An officer of the state can not maintain a suit in his own name, for an amount of money due to the state for tolls, penalties, etc., on the National Eoad, although he may have taken a note for the amount, payable to himself, in his individual capacity.
    No authority is given to such officer to take such note, and it creates no legal' liability in his favor, being without consideration.
    It is contrary to public policy to permit officers of the state to transact the business of the state, and to contract in their own name. All contracts for money due the state should bo made in the name of the state, and all suits brought in the name of the state.

    Error to the Supreme Court of Franklin county.
    The case is stated in the opinion of the court.
    S. W. Andrews, for plaintiff in error:
    I. The action can not be maintained in the name of the defendant in error. He was an agent of the State of Ohio at the time he received the note upon which the suit is brought, and received it as evidence of a debt which was due to the state. The defendant in error should have made his contract, not in his own name, but in the name of the state.

      Irish v. Webster et al., 5 Green. 171; Gilmore v. Pope, 5 Mass. 491; Bainbridge v. Downie, 6 Mass. 253.
    If this is a contract with the defendant in error, yet being made with him for the benefit of the state, and all the important considerations moving from the state, the state only, can maintain an action upon the note. Brown v. Morris, 2 Taunt. 379.
    An agent contracting on behalf of the government, is not personally bound by such contract. By parity of reasoning, upon any such contract, no suit lies by him; but it must be *brought in the name of the government. Story on Agency, 382, 383. A recovery on this note would not be a bar to an action by the state for the same cause of action.
    II. The board of public works had no power to make the third and fourth orders adopted by them March 7, 1845, requiring the payment of tolls for traveling on the National Eoad at intermediate points between toll-gates, and imposing penalties for failure to report such travel. The note sued on, having been given for such tolls and penalties, is without consideration and void.
    III. If the acts of 1843 and 1844 in terms confer on the board power to make these orders, they are unconstitutional, as attempting to vest legislative power in the board, which, by the c'onstitution, is vested exclusively in the legislature.
    A. E. Perry, for defendant.

       See The State v. Parry, Wright’s S. C. 662.

   Caldwell, J.

It is alleged that the Supreme Court erred in affirming the judgment of the common pleas, in which court this suit was originally prosecuted.

The action in the common pleas was assumpsit, brought by the defendant in error, Field, against Hunter, on a promissory note for thirty dollars, dated on January 24, 1847, payable to Field, or bearer, thirty days after date.

There is no dispute about the facts, so far as the main question in controversy is concerned. Field was the superintendent on the National Eoad. Hunter had been driving on the road, without passing through any toll-gate, and by a rule of the board of public works, was required to report his travel on the road to those having charge of it, under a penalty for non-compliance. Field, the superintendent, had brought suit before a justice of the peace, against Hunter, for the tolls, for the travel on the road, and also for fines and penalties for not reporting. This note was given by Hunter to Field as a satisfaction of this claim, and the suit before the justice was thereupon withdrawn. The main question pre-

sented in the case, is ^whether Field, being an officer of the state, and tfie money being due to the state,’could maintain a suit in his own name? The court of common pleas held that he could, and so charged the jury. A verdict was found for Field, on which the court entered judgment. Hunter excepted to the ruling and judgment of the court, and having obtained a bill of exceptions, presented the case to the Supreme Court on error, and in that court the judgment of the common pleas was affirmed. Was there error in this proceeding ? We think there was. Whatever remedy an authorized agent might have on an obligation given to him in his 'own name, where the transaction was between individuals, we think public policy forbids a public officer thus to transact business in his own name. The money, in this instance, was coming to the state^-bolonged to the state. If public officers wore permitted to take notes for dues of the state in their own name, and bring suit, much confusion must necessarily follow in the transaction of public business, and frauds might be perpetrated on the community. Public officers are constantly changing, and it is absolutely necessary that the accounts of the government should bo kept in such a way as to distinguish between the claims of the state and the personal claims of its agents. Take the present caso, and suppose that Field, the superintendent, after taking this note, had died; if he carried out the theory on which this note was given to him in his own name, then no account would be found against Hunter in favor of the state. He could not with propriety have any such account, all accounts being embraced in the note. Unless proof other than the papers left should come to hand, the note would go into the possession of Field’s personal representative, and form a part of the assets of his estate, and the state be thus defrauded of its dues. Similar difficulties might arise in case of removal, resignation, etc., of the officer. ' This note is negotiable, and might have been sold by Field to a bona fide purchaser.

Indeed, we think that such a mode of proceeding is *incompatible with public policy, and must, if permitted, lead to great mischief.

No legal authority was given to the superintendent to take a note in his own name, for a liability to the state; as.a consequence, we think the promise to him was wholly without consideration— there was no consideration that would create a legal liability to him. The cases of Gilmore v. Pope, 5 Mass. 491, and Irish v. Webster et al., 5 Greenl. 171, although differing somewhat in their details from the present case, are both applicable to the main question here presented.

In the latter case the court say : “ If there is a want of clearness in the subject under consideration, and if some of the cases are but faintly distinguishable from others, touching the question in what instances an agent may sue in his own name, on a promise made to him as such, public policy seems to require that an agent of the state should make his contracts, not in his own name, but in the name of the state ; and that all securities he may receive should be made payable to the state; and that when they have been made payable to him as agent, the suit should be in the name of the state.” We think, then, the ruling of the court of common pleas, as shown by the record, was erroneous, and that the Supreme Court erred in affirming the judgment of the common pleas.

The judgment of the Supreme Court will therefore be reversed.

Hitchcock, C. J., was absent.


author:
Caldwell, J. Ranney, J.,
      Lane, C. J.,

text:
    *Samuel Reynolds v. John S. Stansbury and James K. Burch.
    The record of a judgment of a former recovery may be given in evidence under the general issue in assumpsit, without notice.

    It is competent for a court to set aside a judgment of a previous term for irregularity on motion; and although the court, in the exercise of such power, may act erroneously, such error will not render the proceeding void, so that the record can be collaterally impeached.

      "When one party to a judgment moves to set it aside at a subsequent term to that in which it was entered, it is necessary to give the court jurisdiction that the opposite party should have notice.
    In favor of the judgment or proceedings of a court of general jurisdiction, it will be presumed that the court had jurisdiction of the person of the defendant, although that fact may not affirmatively appear on the record.

    Error to the commercial court of Cincinnati.
    *In the court below, the action was assumpsit. Eeynolds,. the plaintiff below (and plaintiff in error) declared in the common counts.
    The facts, so far as material, are stated in the opinion of the court.
    After verdict for defendants in the court below, a motion for new trial' was overruled.
    The record of the proceeding in the superior court of Cincinnati, setting aside the judgment in said court rendered at January term, 1847, for $410.97 in favor of Samuel Eeynolds against John S. Stansbury, is as follows:
    “State of Ohio, Hamilton county, ss. Superior court of Cincinnati. Samuel Eeynolds v. John S. Stansbury. Judgment, January term, 1847. Damages $410.97, and for costs $5.89.

      “ On motion of plaintiff, it is ordered that this judgment be set aside at plaintiff’s costs, and plaintiff has leave to take the bill of exchange from the files.”
    The judgment thus set aside was taken on a declaration containing a single common count, for money had and received. The precipe was indorsed “ suit brought for money had and received,” and to recover on the bill of exchange afterward withdrawn under said order.
    This bill of exchange is the same one mentioned in the opinion of the court, and was drawn by the plaintiff and one Hiram Bond, on, and accepted by defendant Stansbury.
    Coffin & Mitchell, for plaintiffs :
    The plaintiff asked, among others, the following instructions to the jury :
    “1. That in the case of Eeynolds against Stansbury, in the superior court of Cincinnati, the plaintiff could not recover, *upon the pleadings, for tobacco sold by Eeynolds to Stans-bury;” which the court refused to give.
    “ 2. That this case being brought, and the plaintiff seeking to recover for the price and value of tobacco sold by Eeynolds to the defendants, the case of Eeynolds against Stansbury, in the superior court of Cincinnati, is not a bar to this suit, and if the jury are satisfied that the defendants were partners, and the plaintiff sold the tobacco while they were partners, the plaintiff is entitled to recover for the amount due;” which the court refused to give, and instructed and charged the jury that the “judgment in the superior court of Cincinnati, in favor of plaintiff against said Stansbury, igr a bar to the plaintiff’s recovery in this suit.”
    We appear for the plaintiff and claim :
    I. That the court erred in admitting in evidence the copy of the record of the judgment in the superior court, and the parol proof that the cause of action in this case, and the one mentioned in that record, were the same ; because—
    1. A former recovery can not be given in evidence under the general issue, without notice. Inman v. Jenkins, 3 Ohio, 271.
    2. The declaration in the case in the superior court was for money had and received ; the present action is brought to recover the price and value of tobacco; and the offer to prove by parol, that the cause of action was the same, would contradict the record. 1 Greenl. Ev. 532.

      LI. The the court erred in charging that the judgment in the superior court was a bar to the recovery in this suit. Piercem Kearney, 5 Hill, 85 ; Naughten v. Patridge, 11 Ohio, 232 ; 3 Johns. Cases, 72, n. a, 2 ed.; Brazee v. Payntz, 3 B. Mon. 178; Watson v. Olvon, 1 Rich. 111.
    III. That the court erred in rejecting the record offered by the plaintiff, showing that the judgment in the superior court had been set aside, and in refusing to permit the plaintiff to prove that fact.
    The ruling of the court below, on this point, can not be sustained, ^unless this court is willing to decide that a court of general jurisdiction has no power, for any cause whatever, on motion, at a subsequent term to the rendition of a judgment, to set aside that judgment. This power,, and the exercise of it, by motion, is fully recognized in the English and American courts, and is indispensable to the administration of justice. In the language of Judge Sherman, repeated by Judge Wood, and recognized by Judge Hitchcock, it has long since become one of the plain and accustomed remedies of a court of law. Hunt v. Yeat-man, 3 Ohio, 15; Critchfield v. Porter, 3 Ohio, 518; McKee v. Bank of Mount Pleasant, 7 Ohio, 175, 187, pt. 2; Sloo v. Lea, 18 Ohio, 307; Shelton v. Gill, 11 Ohio, 419; Hitchcock, C. J., in Abernathy v. Latimore, 19 Ohio, 288; De Medina v. Grove, 59 E. C. L. 170.
    For the purposes of jurisdiction all parties properly in court at the commencement of the case l’emain so until satisfaction of the judgment is had and entered of record.
    It is unnecessary to discuss the question whether notice to the other party was or was not necessary. The superior court is a court of general jurisdiction : if it had the power, upon notice to the other party, and for good cause shown, to set aside the judgment, then there was error in the ruling of the commercial court.
    The legal presumption is that every step which it was necessary to take for the legal and proper exercise of that power by the superior court was duly taken before the power was exercised. The action of the superior court can not be impeached collaterally. Until reversed, or set aside, the order vacating the judgment remains, and there is no judgment in force. Robertson v. Smith, 18 Johns. 459; Sloo v. Lea, 18 Ohio, 307.
    T. Walker, for defendants :
    The questions of law arise .upon the following points :

      I. Defendants, under the general issue, offered the record of *a former recovery by the plaintiff in the superior court against Stansbury alone, for the same cause of action, as proved by parol, to which the plaintiff excepted. But the court admitted the record ; and we insist that it was rightly done, and was a bar. See 1 Greenleaf’s Ev., sec. 531; 3 Cowen & Hill’s Notes to Phillips on Ev. 838; Henderson v. Reeves, 6 Blackford, 101. Indeed, although there was an early decision on the circuit to the contrary (see Inman v. Jenkins, 3 Ohio, 271), yet we understand the practice has for years been settled throughout the state to receive such evidence under the general issue.
    II. But plaintiff then offered the record of an ex parte order of the superior court, at a subsequent term, setting aside the judg-ment, which was regular upon its face, on motion of plaintiff, without any notice given or reasons assigned, to which the defendants objected, and the court sustained the objection. We insist that the court was right.
    When a judgment has once been regularly entered, and the term expired, it has passed from the control of that court, and become a fixed thing. A higher court may reverse it, or it may be impeached for fraud; but in no other way can it cease to be a judgment.
    There was no reason assigned or notice given. It was purely an ex parte proceeding. This, indeed, makes no difference, except to exhibit more strikingly its anomalous character. For in Brackenridge v. McCulloch, 7 Blackford, 334, a case almost identical-with this, it was held that the judgment could not be vacated even by scire facias, when there must be both notice and cause shown.
    And the doctrine is carried still further in Assignees of Medford v. Dorsey, 2 Wash. C. C. 433.
    In Bodkin v. Commissioners of Pickaway, 1 Ohio, 375, it was held that a final judgment could not even be amended at a subsequent term, except in matter of form. We doubt the propriety of even this exception.
    In Reed v. Hatcher, 1 Bibb, 346, the same doctrine was *held as in the cases from Blackford and Washington. See also 6 Howard’s Miss. 114; 1 Smedes & Marshall, 391.

       Inman v. Jenkins, 3 Ohio, 271, overruled.

       As to entering, setting aside and amending judgments and orders, and entering them nunc pro tunc, see note to Swan’s Rev. Stat. 674, 496; Statute of Amendments, Swan’s Rev. Stat. 687,688, and decisions referred to in argument in Waggoner v. Dubois, 19 Ohio, 88, 104; Hanly v. Levin, 5 Ohio, 239; U. S. Bank v. Moss et al., 6 Howard’s U. S. 38.

       As to conclusiveness of proceedings of courts, impeaching collaterally, etc., see an article in West. Law Journal, 1850, 1851, p. 365; Wilcox’s Dig. 342; Id. Sup. 84; Note to Swan’s Rev. Stat. 12, 89, 92; Robb v. Irwin, 15 Ohio, 689; Paine’s Lessee v. Morland, 16 Ohio, 435; Lewis v. Lewis’ Administratrix, 15 Ohio, 715; Boswell v. Sharp, 15 Ohio, 447, commented on, 5 West. Law Journal, 35; same cause of action, in Boswell v. Dickerson, 4 McLean, 262, taken to Supreme Court of the United States, and decided in that court; Douglass v. Massie, 16 Ohio, 273; Lessee of Cochran v. Loring, 17 Ohio, 409; Morgan’s Lessee v. Barnet, 18 Ohio, 535; Newman’s Lessee v. Cincinnati, 18 Ohio, 323; Snively v. Low, 18 Ohio, 368, modifying Adams v. Jeffries, 12 Ohio, 253, 271. See Hambleton v. Dempsey & Co., and Cotterell v. Long, reported in this volume; and see Kemp v. Kennedy, 1 Pet. Cond. 30; Shivers v. Wilson et al., Har. & Johns. 130; Walker v. Turner, 6 Pet. Cond. 668; Ross v. McClung, 6 Pet. 288 ; Williams v. Blount, 2 Mass. 213 ; 2 Ohio, 229; 4 Ohio, 149; 16 Ohio, 479; Harper v. L. and O. R., 2 Dana, 227; 1 Greenl. Ev., sec. 547, n.; 10 Ohio, 277, n.; Swan’s Prac. 378. See Lessee of Maxom v. Sawyer 12 Ohio, 201; 9 Ohio, 19; 11 Ohio, 443; 2 Ohio, 401.
      The reversal of a judgment does not affect title of purchaser. Act of March 1, 1831, regulating judgments and executions, sec. 22, Stat. 479; Hubbell v. Broadwell, 8 Ohio, 120; and see act of March 2, 1846, for the protection of purchasers at judicial sales, 44 Ohio L. 114.

   Caldwell, J.

The proceeding in the commercial court of' Cincinnati was an action of assumpsit, brought by Reynolds to recover the price of a quantity of tobacco, which he claimed to have sold to the defendants, Stansbury & Burch, as partners. The defendants plead the general issue, and claimed that no partnership existed between them, and that Burch had nothing whatever to do in the pmrchase of the tobacco. The plaintiff having offered evidence for the purpose of proving the sale of the tobacco, and tending to prove the partnership of defendants, gave in evidence a bill of exchange for $487.77, dated March 13, 1846, drawn upon and accepted by the defendant Stansbury, which bill was claimed to have been given for the tobacco.

The defendants then offered in evidence a copy of the record of a judgment, recovered by Reynolds against Stansbury, in the superior court of Cincinnati, at the January term, 1847, for $410.97, and offered to prove by parol, that the cause of action in that suit, and the one mentioned in the record, were the same. To this evidence the plaintiff objected. The objection was overruled by the court, and the evidence admitted.

The plaintiff then offered a record of proceedings had in the superior court of Cincinnati, showing that the judgment of Reynolds against Stansbury had been set aside at the January term of that court, 1849, on motion of the plaintiff Stansbury. This record does not show affirmatively that Stansbury had notice of the motion to set aside the judgment, nor does it show for what cause the judgment was vacated. Tne defendants objected to the admission of this record, “because not showing that Stansbury had notice of the motion, or for what cause the judgment was vacated, the court had no authority, at a subsequent term, on motion, to sot aside the judgment.” The court sustained the objection, and refused to permit this record to go in evidence; to which ruling of the court the ^plaintiff excepted. The jurj- returned a verdict for the defendant. The plaintiff has assigned for error the rulings of the court above referred to, in admitting the record of the recovery of the judgment in the superior court, and refusing to permit the record of the court setting aside that judgment to go in evidence, and also claiming that the court erred in their charge to the jury, which is set forth in the bill of exceptions. It is contended, in the first place, that the court erred in permitting the record to be given in evidence under the general issue, without notice.

In the case of Young et al. v. Black, 7 Cranch. 565, this same question was presented precisely as it is in this case. Justice Story, in delivering the opinion of the court in that case, says: “ The defendant offered in evidence a record of a former suit between the same parties, in which judgment was rendered for the defendant, supported by parol proof that the former suit was for the same cause of action as the present suit. The plaintiffs denied its admissibility under the general issue, and we are all of opinion that the objection can not be supported.”

In 1 Phillips’ Evidence, page 243, the author states the rule thus: “In an action of assumpsit, the defendant may either plead a judgment recovered, or give it in evidence under the general issue.”

In 1 Greenleaf’s Evidence, section 531, it is laid down as well settled that a former recovery may be shown in evidence under the general issue, as well as pleaded in bar. The plaintiff relies on the case of Inman v. Jenkins, 3 Ohio, 271. The court in that case decide that a judgment of a former recovery can not be given in evidence under the general issue, without notice. That is a circuit decision, and is, as we think, contrary to the current of authority on the subject. Indeed, so far as our examination has extended, the decisions are all on the other side. We think, then, that the commercial court decided correctly in admittingthe record under the plea of the general issue.

The next question which we propose to consider is whether ^the court decided correctly in ruling out the record showing that this judgment had been set aside by the court. And this necessarily presents the other question—whether the court could treat this record, in a collateral proceeding, as a n-ullity. This is no doubt a question of some difficulty. It is contended in the first place, on behalf of defendants in error, that the term of the court at which the judgment was entered having passed, the judgment was beyond the control of the court, and that it could not, as in this case, at a subsequent term, set it aside. The question whether’ a court has the power, on motion, to set aside a judgment entered at a previous term, for irregularity, is one that has been frequently adjudicated in this state.

In the case of Hunt et al. v. Yeatman, 3 Ohio, where the question was directly presented, the court held that the power of a court to set aside a judgment for manifest irregularity, was one that was exercised by all courts; and that the power may be ex-ereised, not merely at the term in which the .judgment is rendered, but at a subsequent term. And the court, in that iustarice, sustained the action of the court in error, in setting asido a judgment entered at a previous term.

The ease of Critchfield v. Porter, 518 of the same volume, was on a bill in chancery, where the complainant sought to be relieved against a judgment rendered against him, on the ground that the attorney who appeared for him and plead had no authority to act, and that ho had not been served with process. The court dismissed the bill on the ground that the complainant had a clear and ample remedy at law, by motion to have the judgment opened, although the term of the court at which it was entered had passed.

In the cases of Shelton v. Gill, 11 Ohio, 419; Sloo v. Lea, 18 Ohio, 307; and Abernethy v. Latimore, 19 Ohio, 288, the court fully recognized the same principle. The courts in New York appear to have adopted the same rule. Phillips v. Howley, 6 Johns. 129, and Morgan & Smith v. Dyer, 9 Johns. 255, are both cases in which the court held that it was ^competent for a court to open a judgment on motion, for good cause, at a term subsequent to the one at which it was rendered.

In Indiana, North Carolina, and some of the other states, the contrary rule has been established. See 7 Blackf. 334; 7 Iredell, 346. There, no doubt, is a direct conflict between the decisions on this subject. Still we must consider the rule as settled in Ohio, that a court, in a proper case, has the power, on motion, to set aside a judgment entered at a previous term. And we suppose that that power must be limited to cases where there has been irregularity in entering the judgment.

It may be proper here to remark, that all the authorities to which we have referred, as sustaining the power of the court to set aside a judgment in such a case (except that of Sloo v. Lea, 18 Ohio), are cases where the right to set aside the judgment was sought by the defendants to it.

It is not likely that the case would frequently occur in which a plaintiff would ask to sot aside his own judgment. Yet still, when the power of the court has once been established over a judgment at a subsequent term from that at which it is entered, we do not see but that a case might arise where an irregularity had crept into a judgment, without the fault of the plaintiff, where justice would require the exercise of the power on his behalf as well as that of a defendant. In the case of Sloo v. Lea, the court suggest the right to set aside the judgment, on motion, as one of the remedies which belonged to the plaintiff in the judgment. If the superior court, then, had power over this judgment at the time they set it aside; if they had power to set it aside for irregularity, they may have adjudged that irregularity existed when none did exist, and their proceedings, therefore, clearly be erroneous. Yet the record of such proceedings could not be collaterally be impeached—could not be treated as a nullity.- The Supreme Court of the United States, in the case of Voorhees v. Bank of the United States, 10 Pet. 449, say : “ The line which separates error in judgment from the usurpation of power is very definite, and is precisely that which denotes the cases where a judgment or ^decree is reversible only by an appellate court, or may be declared a nullity collaterally, when it is offered in evidence in an action concerning the matter adjudicated, or purporting to have been so. In the one case, it is a record imputing absolute verity; in the other, mere waste of paper.

But it is said that the record in this case does not show that Stansbury had notice of the motion to set aside the judgment; and, therefore, the court did not acquiro jurisdiction in the'matter. Now we suppose, as the proceeding was an adversary one, and one that affected the rights of Stansbury, that it was necessary he should have notice, in order to invest the court with jurisdiction. But the record does not state whether he had or had not notice. It is entirely silent on the subject.

It is a principle well established, that to support the judgment or proceedings of a court of inferior and limited jurisdiction, it is-necessary that it should be shown from the face of the record that the court had obtained jurisdiction of the person of the defendant; but that in favor of the proceedings of a court of general jurisdiction, it is presumed that it had jurisdiction of the-person of the defendant, although that fact does not appear on the record. In order to impeach the proceedings of a court of general jurisdiction, collaterally, it is necessary that the party impeaching it should prove affirmatively that process was not -served. In 17 Wend. 483, the rule ia laid down to be that, “ An inferior court shall, when questioned, show that it acted within its jurisdiction, whereas, in courts of general jurisdiction, it is presumed, until the contrary is shown.” In the case of Wheeler v. Raymond, 8 Cowen, 314, and the case of Bloom et al. v. Burdock, 1 Hill, 130, *tbis principle is clearly established. The ■superior court of Cincinnati is a court of general jurisdiction, within the legal acceptation of that term, and its jurisdiction will be presumed, although that fact does not affirmatively appear on the record. Although we think it likely that the superior court may "have erred in setting aside this judgment; yet, having the power to set aside a judgment of the court at a subsequent term, if in this instance it exercised that power erroneously, the proceeding would not therefore be void. And a majprity of the court are •of opinion that the commercial coux-t erred in not permitting the record to go in evidence. We do not think it necessary to px’oceed -further in the examination of the other errors assigned.

The judgment of the commercial court will be reversed, and the cause remanded for further proceedings.

Ranney, J.,

dissenting. I find myself unable to concur with 4ho majority of the court in the opinion pronounced in this case. The whole controversy resolves itself into a single point. Reynolds sued Stansbuxy and recovered a judgment against him for the same cause of action upon which this suit is now prosecuted. Sloo v. Lea, 18 Ohio, 307, has settled that this judgment was a good bar to this action. To avoid the effect of this bar, which was interposed by the defendant, Burch, the plaintiff offered to show that this judgment, about two years after its rendition, had been set aside, upon his motion, by the superior court, where it was recovered; and that there was, consequently, no subsisting judgment. The i’ecoi’d offered to px’ove this was rejected, because it did not appear that Stansbury had any notice of the motion, or for what cause the judgment was vacated. No written motion was filed, nor is any irregularity in entering the judgment alluded to in the order vacating it, or pretended to have existed in point of fact.

Did the ox*der nullify, the judgment? If so, the court *below erred. If the order was a nullity, the judgment was in force and a good b.ar to this action, and the court did not err in rejecting the evidence. I do not deny the power of the courts of this state to set aside judgments rendered by them, for manifest irregularity in entering them, at a term subsequent to the rendition.. Although the power has been, denied in other states, I think it is well settled by our decisions, and upon good reason. A jdaintiff may, perhaps, for such cause, set aside his own judgment, and fox' causes dehors the record.

I yield the power to the fullest extent claimed, but I insist that it shall be exercised without violating the first principles of natural justice and positive law; in other words, that it shall be done for cause, and after the parties have had an opportunity to be heard; and not arbitx*arily and behind the back of one of them.

I lay down the following propositions as indisputably correct:

1. As soon as the judgment .was rendex’ed, the parties were out of court. There was no longer any cause pending or any parties befox’o it, or within its control.

2. Each of the parties had an intex*est in the x’ecox’d that evidenced the termination of the litigation, and a right to insist that it should remain unaltered and unimpaired, except by some' other jxxdicial action of that or some other court, in pursuance of law.

3. A motion to set aside a judgment invokes judicial action, and if made after the term of its rendition, is the commencement of a judicial proceeding, having for its object the nullification of the-record in which the advex’so party is so interested.

4. To wax'rant such judicial action, the court must have jurisdiction of the cause, and the parties. If either is wanting, any order they may make is coram non judice, and void to all intents and purposes.

I shall take no time in insisting that some irregularity must be pointed out upon the x’ecord, before the court can act. It might perhaps be successfully replied, that having jurisdiction over the judgment, and a right to set it aside in a proper *case, the jurisdiction would still remain, although the power should bo exercised improperly. But the court had no jurisdiction over the party defendant in this case. He could only be brought before it by a notice, and it is not ¡pretended that any was given. If it is said that there is no statute requiring such notice, I answer that no statute authorizes judgments to be set aside upon any terms. To get such a power, you must go to the common law, and by that •same common law, I can demonstrate that you can not exercise any judicial power until the parties are before the court, and an opportunity given them to be heard. Amongst the multitude of authorities to this point, I shall cite but three or four.

In the case of Borden v. Fitch, 15 Johns. 141, Thompson, C. J., •says: “ To give any binding effect to a judgment, it is essential that the court should have jurisdiction of the person and of the subject matter; and the want of jurisdiction is a matter that may always be set up against a judgment, when sought to be enforced, or whei’e any benefit is claimed under it. The want of jurisdiction makes it utterly void and unavailable for any purpose.” And he states this doctrine to be founded upon “general principles,” and tl that to bind a defendant personally, by a judgment, when he was never personally summoned, nor had notice of the proceedings, would be contrary to the first principles of justice.”

In the case of Kinderhook v Claw, 15 Johns. 538, it was held that “ whenever magistrates proceed judicially, both the parties to the proceedings are entitled to be heard, and notice to both is indispensably requisite, notwithstanding there is no direction in the act by which the tribunal is constituted, that notice shall be given ;” and Yanness, J., says : “ This principle has been so long and so frequently settled, that it is unnecessary to cite cases in support of if.” See also Buchanan v. Rucker, 9 East, 192; Bissell v. Briggs, 9 Mass. 464. The case of the Miami Exporting Company v. Brown, 6 Ohio, 535, was a scire facias to revive a judgment. It appeared that the judgment had been rendered upon notice according to a provision ^of the charter, but the notice was not signed, nor did- it appear to have been served. Lane, J., says : “Both these facts must appear in the record, as the foundation of the jurisdiction. If they do not thus appear, the judgment is coram nonjudice.”

This question was fully considered by this court in the case of Adams v. Jeffries, 12 Ohio, 253. It was there held that “ an administrator’s sale, made under an order of court since 1824. without showing that the heirs wore parties to the proceeding, is void.” says: “The heir has a right to be a party to the proceedings which deprive him of his estate; and we are constrained to deny the jurisdiction of a court which attempts to proceed without him.” 'The judge further says: “All the cases assume that the jurisdiction' of the court is first established; and no attempts are made to sustain these proceeding by intendment or presumption, until after this essential prerequisite. Those judges who have been most ingenuous in surmounting the irregularities of such tribunals, have been careful to show how the jurisdiction, was not contested. This want of jurisdiction may always be shown, as it renders the act done void or unavailable for every purpose.”

Lane, C. J.,

It is of no importance that the court have jurisdiction over the subject matter, unless they have also acquired jurisdiction over the person of the party, by a proper notice. The distinction upon this subject is thus clearly stated by the Supreme Court of Vermont, in the case of Corliss v. Corliss, 8 Vt. 389. They say: “Nor is the difficulty removed, by simply insisting on the jurisdiction of the probate court over the subject matter, and the consequent conclusiveness of its final decree. For this view of the subject is counteracted by the consideration, that to conclude the rights of a person by any proceeding of a judicial nature, to which he was not a party, and against which he could not defend, is repugnant to the first principles of justice. Notice is so essentially necessary, that without it such proceedings are uniformly held to be void, ^except in cases where the statute has provided specific means of relief. So far has this principle been carried, that such proceedings have frequently been adjudged void for want of notice, even where none was expressly directed by statute.”

In the light of these authorities, it seems to me the conclusion is irresistible, that before any court can affect the interests of a party to a judgment, he must be notified, and thus brought beforo them. Without such notice, the court couldnot render a judgment against him for one cent, that would not be utterly void. Can we, on the other hand, hold that he may be deprived of an interest of hundreds of dollars, in a judgment rendered in his favor behind his back.

This power to set aside judgments wouldi ndeed be most formidable and dangerous, if it can be exercised in this manner. It may be done for causes dehors the record, and of course upon proof. But the other party has no opportunity to ci’oss-examine the witness, to introduce rebutting testimony, or to except to the opinion of the court. He is bound hand and foot, and obliged to suhmit to such case as his adversary chooses to make, however false and fraudulent it may be. If it can be done for the plaintiff, it can for the defendant, by a stronger showing of both reason and authority, and that without limit as to time. Liens, levies, and titles to real property resting upon judgments, may be swept away, while those interested in them are unconscious of the pro. cess by which it is done.

The first mistake of the counsel for the plaintiff in error , is found in the assertion that, “for the purposes of jurisdiction, all jmrties properly in court at the commencement of the case, remain so until satisfaction of the judgment is had and entered of record.” No authority is cited in support of this position, and I venture to say none can be found. Certainly the parties can not be in court longer than the cause is, and that there is no lis pendens after the judgment, is a position too clear to require a reference to the authorities that support it.

Proceeding from this erroneous assumption, it is next contended *tbat the superior court is a court of general jurisdiction, and that it must be presumed that every step necessary to be taken-for the legal and proper exercise of the power, was duly taken before the power was exercised.

This argument is all built upon the erroneous assumption before stated—that the parties are already in court—when in fact there was no cause, and consequently no parties, in the superior court, and had not been for more than two years before they made the order in question. The true question is, can the jurisdiction. of the court over the parties be presumed, or must it be made to appear ? This question 'is answered in the cases cited from 6 and 12 Ohio. In the first, it is said the notice “ must appear in the record as the foundation of the jurisdiction ;” and in the last it is said that “ all the cases assume that the jurisdiction of the court is, first established, and no attempts are made to sustain their proceedings by intendment or presumption, until after this essential prerequisite.” I am aware that the record of a court of general jurisdiction^ need not show the specific cause of action upon which the judgment is rendered. And why ? Because their jurisdiction being general, they have a right to render judgments in all cases. But the reason ceasing, the law ceases. No court has jurisdiction over any person until he is properly notified and brought before them; and hence their jurisdiction over him must be made to appear in all cases, before they can tako one step to affect his rights and interests ; and this as well in courts of general, as of limited-jurisdiction. If this were not so, an objection to the jurisdiction over the person could never be taken. For being assumed in the first instance, the negative, that he had no notice, could rarely, if ever, be proved. Does any one suppose that an action could be maintained upon the record of a judgment of the superior court, that did not show that the party had been served with process? I presume not. The report of the case of Weyer v. Zane, 3 Ohio, 306, which seemed to hold the contrary, is explained, and expressly repudiated by Judge Lane, in the case of Adams v. Jeffries, *before cited. It seems that judgment was rendered upon a judgment bond, given to the sheriff by a defendant in execution, whose goods were levied upon, the law expressly providing that when amerced for not making the money, he might have judgment on the bond at the same term, without further process. In respect to the report, the judge says: “ The proceeding in that case was under this statute; and the reporter, without adverting to these provisions, has sought to justify a sound judgment by stretching good principles too far.” If, then, jurisdiction over the person would not be presumed when a judgment is sought to be enforced, can it be presumed in favor of proceedings by which one is vacated? I can not realize that either reason or law .makes such a distinction. I am therefore clearly of opinion, with the commercial court, that the proceedings of.the superior court upon the motion of the plaintiff to vacate the judgment, were entirely unauthorized and void, and of consequence had no effect whatever upon that judgment.

This opinion, of course, has no relation to proceedings in rem, where jurisdiction is obtained by the seizure of property; nor do I undertake to say that the notice must, in all cases, appear in the record. I say only it must be shown, before any effect can be given to the proceedings.

       Judge Spalding held, that notice might be presumed, not to bring the-parties into court, originally, but to uphold subsequent proceedings. (1)

      ) Spencer v. Brockaway, 1 Ohio, 259.