author: Lane, C. J.

text:
    H. C. Watkins v. James Collins et al.
    The chancellor often refuses to aid in the execution of contracts which he would not rescind.
    This is a bill of review from the county of Hamilton.
    The present defendants were the original plaintiffs, and were the heirs of Elizabeth Merritt. The original bill was brought to set aside an exchange of part of a lot in Cincinnati, with Watkinsi for a leasehold interest in another lot, which they aver was of grossly unequal value, and brought about by a fraudulent combination of Watkins and Harwood. The fraud is denied by answer.
    Wrigi-it, Walker and Miner, for the plaintiff:
    The single question is, whether the bargain between Watkins and Mrs. Merritt was made out by the proof to be fraudulent on the part of Watkins?
    *1. Watkins never negotiated with. Mrs Merritt, but refused to do so. It can not therefore be said that he took advantage of a woman.
    2. Harwood was the friend and stepfather of Mrs. M.; had often acted for the family before; had no interest in the matter; and did not collude with Watkins. He carried on the negotiation for Mrs. M., and fully understood the whole matter. On him no deception could have been practiced, and none was attempted.
    3. Mrs. M., although feeble in health, when she executed the deed, perfectly understood what she was about, and afterward attended to business herself. Her mind was as good as over.

      4. If she misunderstood the nature of the lease, it was not the fault of Watkins, for he first read the lease to Harwood, and then gave it to him to examine. He took it home, and says he explained it to Mrs. M. To us, however, this is immaterial. She chose Harwood as her agent, and we dealt with him.
    5. There was, then, no actual deception, or misrepresentation. Watkins dealt fairly and openly. Ho offered to refer the matter to disinterested men ; but Harwood and Mrs. M. preferred taking his offer.
    6. If, then, there be any ground for annulling the bargain, it must be mere inadequacy of consideration. And the doctrine is, that this must be so gross and palpable as to shock the conscience. Then it affords a violent presumption of fraud. Knobb v. Lindsay, 5 Ohio, 468; Steele v. Worthington, 2 Ohio, 182; Gregor v. Duncan, 2 Des. 636; 1 Story on Equity, 249.
    7. The case, then, is reduced to a more question of fact, and requires a brief discussion of the evidence, an abstract of which is given in the bill of review. The transactions took place in August, 1834. Mrs. M.’s land was unimproved, and she was in want of money. Tho leasehold property was improved, and would yield income. Just previous to the bargain, she had offered to sell the best part of her lot to William Holliday, at ten dollars per foot, by the advice of Harwood and one Allen, who *now swears it was worth twenty-five dollars- At this rate her whole lot would only have brought $1,030. But taking the average of estimates by the eight witnesses, who testify as to its value, viz., Holliday, Allen, Wilder, Pancoast, Paris, Bonsall, Hathaway, and Loring, it did not, in 1834, exceed $2,300; and in return for this, she was to receive $400 in cash, and the leasehold property. The buildings on this, taking the average of three witnesses, viz., Avery, Loring, and Broaddus, were worth $1,600. This, then, was a consideration of $2,000, for what was worth, at most, $2,300, but which Mrs. M. herself would have sold for $1,030. The lease was to expire in 1838; but there was a privilege of purchasing at sixteen dollars per foot, when Loring swears it would have been worth twenty dollars. But supposing it was only worth sixteen dollars, there would still be a consideration of $2,000 for $2,300, But this is not all: Mrs. M. needed money, and got it. The lowest estimate of rent she would receive would considerably more than pay the ground rent, which was eighty-two dollars per annum. Watkins was to give six dollars per month, or seventy-two dollars per year, for the smaller building. Suppose the larger to yield no more, there would have been $144 peí year, or a surplus of sixty-two dollars per year.
    In any view, therefore, of the case, there is no such inadequacy of consideration as would justify the inference of fraud by a court of equity, especially in the absence of all proof of deception by Watkins.
    We feel well convinced that if the court will but carefully examine the evidence in tliis case, the decision heretofore had will be reversed.
    Storer, for the defendant,
    insisted that the inadequacy of prico was so great as to shock the moral sense, and is, therefore, per se, evidence of fraud.
   Lane, C. J.

It is a well established equitable principle that the chancellor would not, in many cases, rescind contracts, which he would not aid to execute. It is equally well established that mere inadequacy of price is not a sufficient ground *to rescind, unless it be so gross as to carry evidence of fraud. The plaintiffs are, therefore, not entitled to sustain the present bill, unless-they show some positive fraud, in which Watkins participated.

Mrs. Merritt had a fee-simple property, worth $2,500 or $3,000. In exchange for this, she got a leasehold, having four years to run, and the sum of $400. The annual productive value of the lease was a little more than $100; and it was subject to an annual ground rent of $82, and the taxes. There was a privilege of purchasing the leasehold, at its expiration, at a stipulated price; but it is doubtful if this privilege was worth anything. Here was a property worth $2,500, acquired for a consideration which we do not estimate worth more than $500.

If the contract had been made between persons standing on equal footing, and aware of their rights, we might set down Watkins as being the fortunate holder of the fair side of a sharp bargain. But the person with whom he dealt was a woman somewhat advanced in life, feeble, sickly. She had no property except this. She had been assisted occasionally with money, by Harwood, her stepfather; but ho had declined advancing any more, and she was driven to the necessity of selling this land for support.

The bargain was made through the agency of Harwood, who represented to her that the property she would receive was a fee simple, and productive, while her own was only a vacant lot.

There is, then, the most abundant reason to believe Mrs. Merritt deceived ; but Watkins is not chargeable with the consequences, unless be was a party.

Ho shows he declared he would not deal with a woman, but required the bargain to by entered into by some of her friends, and he offered to leave the price to arbitration. He shows he fully explained the terms of the lease to Harwood. He likewise shows» through the agency of Harwood, he purchased the rights of other heirs of Culbertson Parks upon terms loss favorable — a fact, which, without denying that Mrs. Merritt was ^cheated, only discloses that her brother and sister were cheated worse.

But, on the whole case, a man after acquiring the interests of a set of heirs successively, at a most startling undervalue, through the agency of their stepfather, is found grasping the inheritance of the last, an impoverished and sickly woman, through the active fraud of the same instrument, for one-half its worth. I do not believe an honest man would have done it

Bill’of review dismissed.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    The Lessee of Martha Patterson et al. v. Thomas Prather et al.
    A valuation of improvements, etc., under the occupying claimant law, is invalid unless reasonable notice of making it be givon to the adverse party, oi his attorney of record.
    This is a motion from the county of Brown.
   Hitchcock, J.

The question arising in this case was submitted without argument.

At a former term of the Supreme Court in the county of Brown, a judgment was rendered in this case in favor of the plaintiff, and the proceedings stayed by order of court, on the application of the defendants for the benefit of the law for the relief of occupying claimants of land.

At the last term of the court, the jury summoned by the sheriff to Value the improvements, made a return to the clerk of the court, pursuant to law. This return was objected to by the plaintiffs, on the ground that no notice had been givon of the time at which the valuation was to be made. And for the purpose of settling the practice in cases of this description, the case was reservod.

*These proceedings under the occupying claimant law have been considered by this court as being separate and distinct from the action of ejectment, although the judgment in the ejectment case can not be carried into execution until they are closed. And when the application is made by the defendant and a judgment is given in his favor, the court will order the lessee of the plaintiff to pay the costs. 1 Ohio, 156.

The statute provides that a jury may be called for the assessment of damages and for the valuation of improvements, by either party; and the jury are to be drawn in the same manner as they are required by law to be drawn in other cases. And if the jurors drawn do not all attend, or if any of them are of kin to either of the parties, the sheriff is authorized to summon talismen to fill the panel. If the jurors report a sum in favor of the plaintiff in ejectment, the court is required to render judgment therefor without pleadings, and issue execution thereon as in other cases. Whether the'report is favorable or unfavorable to the plaintiff, he is barred of his action for mesne profits. If the report of the jury is in favor of the occupying claimant, the plaintiff can not have execution on his judgment until he has first paid the amount assessed against him by the jury, unless he shall elect to convey the land to the occupying claimant at its appraised value, and tho claimant shall have neglected or refused to make payment.

All these circumstances go to prove that the proceedings under this law are far from being ex parte. They are, in their progress and results, of as much interest to the parties as ordinary proceedings usually are. 'As a general rule, parties to be affected by judicial proceedings should have notice. No express provision is made, however, by this statute; that notice shall be given. But this court is authorized to regulate its practice, not interfering with express legislative enactment. Tho only objection to requiring notice is, that by possibility, the party to be affected thereby may be a non-resident. In such case notice might be given to the attorney, as in cases of error. In any view which we can take of the case, it seems to us proper and necessary that notice should be given ; and *as it was not done in the case before us, the return of the jurors is set aside, the costs to abide the final disposition of the case.


author: Hitohoook, J.

text:
    Trustees of Williamsburg v. Trustees of Jackson.
    Where a new township is set off, all persons residing within, its limits, and who have resided there long enough to obtain a legal settlement in the original township, have a legal settlement in the new township.
    A notice, warning one to depart the township, signed by but one of two overseers of the poor, is void.
    This is an action of debt from the county of Clermont.
    It is submitted to the court upon the following statement of facts:
    The township of "Williamsburg originally embraced all the territory constituting the present township of that name, and a large part of the present of Jackson. On June 24, 1834, the township of Williamsburg was divided, and the township of Jackson set off and established. For three years before the division, Allison Hiatt and family resided in the township of Williamsburg, but within the limits of the present township of Jackson. At the time of the division, and for some time thereafter, they continued to reside in Jackson township, in distressed circumstances, depending principally for subsistence upon the charity of the neighbors.
    About December 25, 1834, said Hiatt and family removed from Jackson into Williamsburg township; and, in June, 1835, the son of said Hiatt, being injured by a fall from a tree, was in need of temporary relief and support. Medical attendance, etc., was furnished him by the overseers of the poor of Williamsburg. The boy was not in a situation to be removed, but died, and was buried at the expense of Williamsburg *in September, 1835. During the summer of 1835, Mrs. Hiatt was sick, and in need of temporary relief, which was furnished by the overseers of Williams-burg. The expense incurred in affording relief to the boy and his mother amounts, to $57.75. After this relief had been afforded, notice of the same was given to the overseers of the poor of Jackson, and payment demanded in the month of October, 1835, which was refused. Demand was once made in Williamsbui'g, and once in Batavia, but was made by but one only of the overseers of the poor of Williamsburg.
    From December 25, 1834, to the present time, Hiatt has continued to reside in the township of Williamsburg. On March 31, 1835, a notice, signed by one of the overseers of Williamsburg, was served on Hiatt and family, commanding them to depart from the bounds of said township. This notice was served by James Perrine, constable; was returned, and recorded in the township records within three days.
    The overseers of Williamsburg continued to furnish Hiatt’swife and family with medical attendance and necessaries, through) the years 1836, ’37, and ’38.
    Lowe, for plaintiff.
    Fishbaok, for defendants.
   Hitohoook, J.

In this action the plaintiffs seek to recover compensation for expenses incurred in furnishing temporary relief to certain paupers, which they claim had a legal settlement in the township of Jackson. The agreed state- of facts presents a numsber of questions, which, although perhaps of no particular difficulty, are of interest to the community, as growing out of the laws for the relief of the poor. Not being aided by the arguments of counsel, wo must settle these questions as best we can from the lights wo have.

The first question which presents itself is, as to the place of legal settlement of Allison Hiatt. Previous to the division, his *legal settlement was in the township of Williamsburg. Upon the division, he loll within the limits of the township of Jackson. It has already been decided, that upon the organization of a new township, all persons residing within its limits at the time of organization, and who had a legal settlement in the township or townships from which such new township was taken, have a legal settlement in such new township. Center Township v. Wills Township, 7 Ohio, 171. Such, we understand to be the law of the state; and were we to hold otherwise, it would follow that no person could have a legal settlement within a newly organized township until one year after its organization. Upon the organization of the township of Jackson, Allison Hiatt had a legal settlement, in that township; and if ho became chargeable as a pauper before this settlement was changed, this township was legally liable for his support.

The next inquiry is, whether he has gained a legal settlement ,in any other township. In December, 1834, he removed with his family into the township of Williamsburg, and had resided there ¡up to the time of the commencement of this suit, a period of more than four years. “Any person residing one year in any town.ship of this state, without being warned by the overseers of the poor for said township to depart the same, or three years after being once so warned, without being again warned as aforesaid, shall be considered as having gained a legal settlement in such township.” Swan’s Stat. 634. Hiatt, then, gained a legal settlement in Williamsburg, unless, within the first year of his residence there, he was legally warned or notified to depart the same. On March 31, 1835, a notice was served upon him in due form, to depart from the township. This was in due time, but the notice was signed by one only of the overseers of the poor. Was it legal? In section 4 of the act for the relief of the poor, it is provided that “ the overseers of the poor, upon receiving information that any person has come within ,th.e limits of their township to reside, who will be likely to become a township charge, shall issue their warrant, or order, to any constable of *the township, commanding such constable forthwith to warn such person to depart the township,” etc.

The act to be done is the joint act of the overseers, not the separate act of one of them. They are required to issue “ their warrant.” Such would seem to be the plain intent and meaning of the law.

In the case of Downing v. Rugar, 21 Wend. 178, the Supreme Court of New York seem to have decided, that one of two overseers of the poor may perform an act which the law requires the two to perform, if it becomes necessary to prevent a failure of justice. The court recognize the principle, that where an authority is conferred upon two, nothing can be done without the consent of both; but hold that, although the act is done by one only, the consent of the other shall be presumed. And, further, that this presumption shall not be rebutted by any other evidence,-than the testimony of the individual, who is presumed to have given his consent. The reasoning of the court in this case, as well as the decision, seems to us as being somewhat extraordinary; and we do not feel disposed to adopt either, in giving construction to the statute now under construction. We prefer to follow the rule adopted in the case of Olive Township v. Manchester, 8 Ohio, 113, that as between two townships, where the equities are equal, aplain and obvious compliance with the requisitions of the law shall be required of those who seek to avoid the obligation.

The plain requisition of the law is, that the two overseers shall issue the warrant. In tho case before us, it was issued by one, and, of course, was void. It follows that Hiatt has obtained a legal settlement in Williamsburg, and since such settlement was gained, that township must support him.

The case shows, however, that while his legal settlement was in Jackson, expenses wore incurred by the township of Williams-burg, in furnishing temporary relief to his wife and son ; and that the son, at least, was not in a situation to be removed. Section 9 of the before-cited act provides, “ that if any person or persons shall become chargeable, in any ^township in which he, she, or they have not gained a legal settlement, it shall be the duty of the overseers of the poor of such township, to cause such person or persons, so soon as the state of his, her, or their health will permit, to be removed to the township in which he, she, or they were last legally settled, if such person or persons have any legal settlement within this state.” And it is made the duty of the overseers of the poor of the township, to which the removal is made, to receive the pauper, and that township is chargeable with the expense of removal, as well as with the expense previously incurred in affording relief. And if these charges are not paid, the same may be recovered in an action of debt in favor of the trustees of one township, or against the trustees of the other.

This duty of removing the pauper is imperative; and, as a general rule, unless it is done, the township where he has a legal settlement can not be charged. If, however, the pauper is not in a situation to be removed, or, if when the relief is furnished, the place of his legal settlement is unknown, such circumstances will excuse his removal.

The statute makes a difference, too, in cases of temporary and permanent relief; and where the relief is merely temporary it would seem that the removal of the pauper is not absolutely necessary.

In the case before the court, the relief furnished the son of Hiatt was, in fact, permanent; it ended only with his life. But he was not in a situation to be removed. The relief furnished his wife was merely temporary. The overseers of Williamsburg, then, have not been guilty of any neglect which will release the township of Jackson from its liability; and the plaintiffs are entitled to a judgment for the expenses incurred prior to December 25, 1835, at which time the legal settlement of the pauper was changed.

Judgment for the plaintiff.


text:
    *Richard Douglas v. Cadwallader Wallace, Aaron Johnston, and Joseph Bloomer.
    Where, on a ea. sa., the defendant turns out real estate to release his body, the lien of the judgment on other lands is not thereby discharged.
    Equity has no jurisdiction to compel a sheriff to pay over moneys collected on execution.
    This is a bill in chancery, from the county of Fayette.

      The facts of the case, as they appear in the bill, answer, exhibits, and testimony, are as follows :
    At the September term of the court of common pleas of Fayette county, 1818, the defendant, Wallace, recovered a judgment, by confession, against Absalom and Adam Funk, for a debt of $140 and costs. At the time of the rendition of this judgment, Absalom Funk held, by deed, from Adam Funk, the following lands, lying in Fayette county, to wit: Survey No. 7251, of 150 acres; No. 3708, of 400 acres; and No. 3789, of 176 acres. Wallace levied his execution upon the tract of 150 acres, and purchased it in on May 14, 1825, at $150, which, deducted from the amount of his judgment, cost, and interest, left a balance of $76.60 due.
    On December 8,1818, Dingle, Hansberger, and Yan Matre, obtained judgment, against Absalom Funk, for $506.62, and costs of suit. On April 21, 1819, a ca. sa. was issued on this judgment, and the defendant, Funk, arrested. To obtain his release, he turned out to the sheriff, survey No. 3708, of 400 acres, which was accepted by the sheriff, and appraised at three dollars per acre.
    On July 17, 1823, Absalom Funk conveyed the above survey, No. 3789, of 176 acres, to Adam Funk, and, on the 23d of October, of the succeeding year, Adam Funk conveyed the same to the complainant.
    At the March term of the court, 1825, on motion of Dingle, Hansberger, and Yan Matre, the appraisement of the 400 acres was set aside, and another appraisement ordered. Upon this *reappraisement, the land was valued at $1.37J per acre, and thereupon Hansberger, one of the plaintiffs, purchased the 400 acre survey, at the price of about $367, leaving a large balance due on the judgment.
    To collect the balance of his judgment, Wallace took out an execution, and had the same levied on 123f acres, part of the survey of 176 acres, and, at the same time, an execution was issued in favor of Dingle, Hansberger, and Yan Matre, and levied on the same land.
    At the sheriff’s sale, under these executions, Wallace became the purchaser, on September 30, 1825, for the sum of $577.50. This amount was sufficient to satisfy the judgment in favor of Wallace, and leave a surplus of $478.88. It was sufficient to satisfy both judgments, and leave a surplus of about sixty dollars. Wallace, at the time of the sale, had become interested in the judgment, in favor of Linglo, Hansbcrger, and Yan Matre. The money arising from the sale was appropriated to the satisfaction of both judgments, and the surplus of sixty dollars was paid over to the defendant, Johnson, who was sheriff of tho county at the time of sale, and, by him, was paid over to tho defendant, Bloomer, who was his successor in office. After Douglas, in 1823, purchased the survey of 176 acres, ho took possession of the same, and sold it to one Green. In 1836, in pursuance of an arrangement made with Douglas, Green effected a settlement with Wallace and received a conveyance from him.
    Tho bill was filed in 1830, and tho object and prayer is to compel either of the defendants, who may have the surplus money in hand, to pay it over to the complainant.
    Douglas, for the complainant,
    insisted that he was entitled to the surplus money in this case, the land, from tho sale of which the money was made, having been conveyed to him for a full consideration, prior to the sale. He insisted that this surplus amounted to $478.88; that the sheriff had no right to appropriate any part of this money to the satisfaction of the judgment in favor of Lingle, Hansbergor, and Van Matre, that ^judgment having been satisfied by the arrest of Funk, the judgment debtor, in ca sa. Ambl. 39; 13 Ves. 193; Wright, 344, 447.
    Thurman and Stanbery, for the defendant,
    insisted, that the arrest of the body of a defendant, on a ca. sa., where that arrest was discharged by the surrender of property, real or personal, could not operate as a discharge of tho judgment.
   Hitchcock, J.

Two questions seem' to be presented to the' court, for consideration, in this case:

1. As to the effect of an arrest on ca. sa., where the arrest is discharged by the surrender of property; and,
2. Whether, in a ease like the present, a court of chancery can furnish relief.

As to tho first question. We are aware that, by the principles of the common law, if a judgment debtor is arrested on a ca sa., such arrest will be considered equivalent to, a satisfaction of a judgment. In fact, it is said to be tho highest satisfaction known to the law. But there are, and must necessarily be, exceptions to this rule. If the creditor is not permitted to retain his debtor in custody, it would hardly do to say, that, by the arrestvhis debt was discharged. As if, for instance, a judgment debtor, arrested) is discharged under the insolvent laws, there can be no pretense that the judgment is satisfied. If, at any subsequent period, the debtor shall accumulate property, the judgment can be enforced against that property, although it can not be enforced by a second arrest of the body.

By the law in force at the time these proceedings were had, the lands and tenements of the judgment debtor were bound for the satisfaction of the judgment, from the first day of the term of its rendition. The judgment creditor had his election to sue out either a writ of ft. fa. or ca. sa. If the writ sued out was a ft. fa., it was levied upon the personal or real property of the defendants. If a ca. sa., the body of the defendant must be taken. But it was provided, “ That any person taken by a writ of capias ad satisfaciendum shall be discharged, by ^delivering, or setting off, to the officer serving the same, real or personal property sufficient to satisfy the judgment and cost3 for which said writ issued.” And the same act provided that, if a defendant should die in execution, the creditor might afterward sue out execution against his goods or lands. 2 Chase’s L. 1303. The property delivered or set off by a debtor, to procure his discharge from arrest must be sold in the same manner as if the same had been levied oh bj^ a ft. fa. Under these circumstances, we can not suppose that the lien of the judgment was discharged, because the form of the writ was that of a ca. sa., unless it would have been discharged by the levy of a fi. fa. upon the same property. The effect of the levy, in either case, would be the same; and why should not the consequences be the same? In the opinion of the court, the judgment of Dingle, Hansberger, and Yan Matre continued to be a lien upon the land of Funk, the judgment debtor, and the avails of the sale of that land were well appropriated to •satisfy that judgment.

But there is still a balance of about sixty dollars remaining, and the complainant insists that-he is entitled to a decree for this amount; and this claim raises the question whether a court of equity can, with propriety, give relief in a case like the present. Courts of chancery have jurisdiction in those cases in which plain, adequate, and complete remedy can not be had at law. If, in a caso like the present, a court of law could not relieve, a court of chancery may. By the law regulating judgments and executions, it is made the duty of the sheriff, or other officer making sale of land, or other property, on execution, if there be a surplus of money after satisfying the execution, to pay the same over to the judgment debtor, or his legal representative, on demand. If payment is refused, an action of law will lie against the officer, at the suit of the judgment debtor, to receive this surplus, or the statute confers upon him the same right to move the court to amerce the officer, as is conferred upon the judgment creditor. The remedy at law is plain, complete, adequate.

*In the present case, however, Funk was the judgment debtor, and, by the letter of the law, would be entitled to the surplus. The complainant claims, however, that, having purchased the land of Funk previous to the sheriff’s sale, he is justly entitled to this surplus. There is, certainly, an appearance of equity in this claim; but the question as to whether the complainant or Funk has a right to this surplus is one with which these defendants, have nothing to. do — a question in which they have no interest. Wallace, as he was bound to do, h&a paid it over to sheriff Johnson, and Johnson has paid it over to his successor. It belongs either to Funk or Douglas. But Funk, who has the only interest opposed to Douglas, is not a party to this suit. But even if Funk were a party, we apprehend it could make no difference. The court to whom the execution was returned might, with propriety, on motion, determine this question of right.

The bill must be dismissed, with costs.

Bill dismissed.


text:
    The State of Ohio, on the relation of Elisha P. Peters, v. Charles McCollister.
    Under the act of February 14, 1840, the same individual may hold, at the same time, the offices of associate judge and county treasurer.
    This is an information, in the nature of a quo warranto, from the county of Pike.
    The case is as follows :
    On November 29, 1840, the prosecuting attorney of the county of Pike, on the relation of Elisha P. Peters, by leave of the court, filed an information, in the nature of a quo warranto, against the defendant, Charles McCollister. This information contains eight several counts. In the four first it is charged, in substance, that on April 4, 1840, the defendant, being treasurer of the county of Pike, unlawfully usurped the office of associate judge of the court of common pleas of said county, of neither of which offices was he an incumbent on February 15, 1840; and that the said defendant, from the said 4th day of April to the time of filing the information, had continued to hold and perform the duties and receive the emoluments of both of said offices of associate judge and county treasurer, contrary to the form of the statute in such case made and provided.
    In the four last counts, it is charged that the defendant, on June 1, 1840, at Pike county aforesaid, then and there being an associate judge of the court of common pleas of said county, and receiving the emoluments appertaining to said office, did then and there unlawfully usurp the office of county treasurer of the county of Pike aforesaid, the same being a public office, of which said office he, the said defendant, thenceforward held, and still continues to hold, exercise, and discharge the duties, and receive emoluments appertaining to the same, of neither of which offices was he an incumbent on February 15, 1840, contrary to the form of the statute, etc.
    To this information the defendant has filed two pleas.
    In the first, it is stated that on October 8, 1839, the defendant was duly and legally elected treasurer of the county of Pike, for the term of two years from the first day of June then next; that he received a certificate of his election within the time required by statute; and that, on June 2, 1840, he gave bond, and took the oaths required by law, to discharge the duties of said office. That, on February 6, 1840, he was elected by the general assembly of said State of Ohio, to be an associate judge of the court of common pleas of said county of Pike; on the 24th day of March of the same year, he was commissioned as judge as aforesaid, by the governor of the state, for the term of seven years, from the twenty-third day of the same month; *and that, on the 4th day of April thereafter, he took the oaths of office, and caused the same to be indorsed on his commission.
    The second plea does not vary materially from the first.

      To these pleas there is a general demurrer.
    Scott & Taylor, for the relator,
    contended that, under the law of February 14, 1840, “prohibiting any citizen of this state from holding, by appointment, more than one of the several offices therein named,” the two offices of associate judge and county treasurer were incompatible; and that no person could hold both offices at the same time; that this law must receive tho same construction that it would have done had the words, “by appointment,” not have been contained within it; and that the intention of the legislature could not be carried out unless it was so construed. If it be an evil for any person to hold two of the offices named in the law, the evil is the same, whether that person holds by appointment or by election.
    They further contended that tho defendant was not within the proviso of the statute; for, although he had been elected.to both offices previous to the passage of the law, still he had not qualified under either, and, of course, was not, within the meaning of the statute, an “ incumbent ” of either.
    Thurman & Byington, for the defendant,
    contradicted this position. They insisted that the defendant was within the proviso. That having been elected, in October, 1839, treasurer of the county, and having received a certificate of that election, he was, from the time, an incumbent of tho office. So, having been elected an associate judge, he had a constitutional right to that office, of which the legislature could not, by subsequent legislation, deprive him.
    They further contended that the general assembly did not, by the law, intend to deprive a person from holding two of the enumerated offices, if elected thereto. That the object was to pro-hibit the appointment of an individual to one of these offices,
    provided he held, at the same time, another by like appointment. They enforced these views by a variety of arguments, and also by reference to the journal of the senate of the state, during tho time this law was under consideration.
   Hitchcock, J.

This information is filed upon the supposition that there is an incompatibility between the offices of associate judge and county treasurer; and that the same person can not, consistently with law, hold both of said offices at the same time. Tho only difficulty in the case grows out of an act of the general assembly of the state, passed on February 14, 1840; which provides, “that no citizen of this state shall hold, by appointment, at the same time, or for the same period of time, more than one of the offices hereinafter mentioned, to wit, the office of sheriff, county auditor, county treasurer, county assessor, clerk of the court of common pleas, county recorder, and associate judge; and no justice of the peace shall hold the office of associate judge; provided, that nothing herein contained shall be applicable to present incumbents of two or more official stations, until their term of office shall expire.”

The defendant filled two of said offices at the same time. But it is claimed for him, by his counsel, that he has a right so to fill them, because: •

1. He was an incumbent of both offices at the time of the enactment of the law, and is within the proviso.

2. He fills both offices by election, not by appointment.

Let us inquire, then, in the first place, whether the defendant is within the proviso, which proscribes, that nothing herein contained shall be applicable to present incumbents of two or more official stations, until their term of office shall expire.” This question is settled, if we can ascertain what meaning is to be attached to the word “incumbent” as applied to an office; in other words, if we can ascertain at what time an individual becomes an incumbent in an office. The defendant was elected county treasurer on October 8, 1839, and associate judge on February 6, 1840. This law was enacted *on February 14, 1840. If the elections constituted him an incumbent of the offices to which he was elected (and this is the ground taken by the defendant’s counsel), then he is within the proviso. I concur with the counsel for the defendant, that the legislature have no power, by retrospective legislation, to deprive a man of an office. When a man becomes an incumbent of an office, he .has a vested right in that office; and all such rights are secured by the constitution. An act which would attempt to deprive him of this right would savor more of despotism than of constitutional legislation. The legislature may prescribe rules, prospectively, by which he shall be controlled; and those he is bound to obey. But to oust him from office by direct legislation can not be dono.

But I can not concur with counsel, that a man appointed or elected to an office, thereby becomes an “ incumbent” of that office. An incumbent of an office is one who is legally authorized to discharge the duties of that office. For instance, a man who is elected county treasurer is required to give bonds and take an oath of office. Now, these things must be done before he can discharge the duties of the office; and if not done in due time, the office itself is vacant. There is no incumbent. So, where a man is elected judge, he does not, by the election, become a judge. He must receive a commission, as evidence of his authority to act; must take an oath of office, and have it indorsed on his commission. _ When this is done, and not before, he is an “incumbent’’ of the office. State v. Moffit, 5 Ohio, 358. By giving to the phrase a different meaning, we should not only involve ourselves in difficulty, but should condemn the practice of the general assembly from the first organization of the state government. It has been the uniform practice of that body, when the appointment of an officer was vested in it, and it was known that a vacancy would occur, either during the session, or within a short period thereafter, to make an appointment, or election, to fill such vacancy before it had actually occurred. This has been found to be convenient, and the practice has been universally acquiesced *in. But upon the theory of defendant’s counsel, this practice would be palpably in violation of the constitution of the state. The number of judges of the Supreme Court is limited to four. It is known to the general assembly, in session, that a vacancy will occur in this court by the expiration of the term of office of one of its members, either during its present session, or prior to the next succeeding session of that body, and they proceed to fill this prospective vacancy. If the election constitutes an incumbency in office, we shall have five judges, instead of four; unless, which will hardly be contended, there can be more incumbents of office than offices. The effect of the election is to give the individual elected a right to the office, so soon as the vacancy shall occur. Of this right the legislature can not deprive him; nor can the governor withhold from him a commission, without a gross violation of executive duty.

Again, the law prescribing the duties of county treasurers prescribes that an individual elected to this office “shall hold his office for two years from the first Monday of June next succeeding his election.” The defendant was elected to this office in October, 1837. His term of office commenced on the first Monday of Jane next thereafter. Did ho become an incumbent of the office before his term of office commenced ?

In the opinion of the court, the defendant did not become an incumbent of the office of associate judge until April 4, 1840, when he took the oath of office; nor of the office of county treasurer until the 2d day of June of the same year, on which day he took the oath of office, and on which day his term of office commenced; and consequently ho is not protected by the proviso of the act of February 14, 1840, already cited.

The next ground of defense assumed by defendant’s counsel is, that he holds these two offices, not by appointment, but by election.

There is more difficulty in disposing of this part of the defense, and this difficulty grows out of the phraseology of the act: “ No citizen of this state shall hold, by appointment,” etc. *This word, appointment, is not used carelessly or inconsiderately, as is apparent from the fact, that this same word is used in the title. It is styled “ an act prohibiting any citizen of this state from holding, by appointment,” etc. What, then, is meant by the word appointmemt, as here used ?

In this state we have no such thing as hereditary office. Every officer derives his power to execute the duties of his office from some law of the state, defining the duties to be discharged in the particular office, and from having that office conferred on him by some superior power, authorized to confer it. The constitution of the state contemplates two different modes of conferring office. One is by appointment, the other by election. And a careful examination will show, that whenever the office is to be conferred by the people, or by any considerable body of the people, it is spoken of as an election. Whenever it is to be conferred by an individual, as by the governor, or by a select number of individuals, as by a judicial court, or by the general assembly, it is spoken of as an appointment. Thus, in the first section of the first article of the constitution, it is said “the legislative authority of this state shall be vested in a general assembly, which shall consist of a senate and house of representatives, both to be elected by the people.” So, in the second article of the same instrument, the supreme executive power of this state shall be vested in a governor;” and he shall be chosen by the electors of the members of the general assembly.” “A secretary of state shall be appointed by a joint ballot of the senate and house of representatives.” Sec. 16, art. 2. “The judges of the supreme court, the president and associate judges of the court of common pleas, shall be appointed by joint ballot of both houses of the general assembly.” Art. 3, sec. 7. “Each court shall appoint its own clerk ” Art. 3, sec. 9. “A competent number of justices of the peace shall be elected by the qualified electors in each township.” Art. 3, sec. 10. “Captains and subalterns in the militia shall be elected by those persons, in their respective company districts, subject to military duty. Majors shall be elected by the captains and subalterns *of the battalion. Colonels shall be elected by the majors, captains, and subalterns of the regiment. Brigadier-generals shall be elected by the commissioned officers of their respective brigades. Major-generals and quartermaster-generals shall be appointed by joint ballot of both houses of the legislature. The governor shall appoint the adjutant-general. The major-generals shall appoint their aids,” etc. Art. 5, secs. 1-6. “ There shall be elected, in each county, one sheriff and one coroner, by the citizens thereof.” “The state treasurer and auditor shall be appointed by joint ballot of both houses of the legislature.” “ Town and township officers shall be chosen annually, by the inhabitants thereof, duly qualified to vote for members of the general assembly.” Art. 6, secs. 1-3.

It is true that in a certain, and perhaps in the most general sense of the term, every person upon whom an office is conferred may be said to hold that office by appointment, whether the appointment bo made by an individual or individuals having power to make, or by the election of a more numerous body. And it is equally true that the same person may be said to have been elected to the office, as he fills it in pursuance of choice, whether that choice has been made by one or more. But the framers of the constitution unquestionablj7 understood that there was a difference in filling an office by appointment and by election. And where either of these words are used in a statute law under that constitution, this court ought not, unless for strong and powerful reasons, to give to the word a different meaning from that which it plainly imparts, as used in that instrument. In common parlance, wo know that there is a different meaning attached to the words appoint, and elect, as applied to officers.

Since we find that there is this distinction made in the constitution, and in common parlance, is it reasonable to suppose that the legislature had not this distinction in view when this law was enacted? “No citizen of this state shall hold by appointment, at the same period of time, more than one of the offices hereinafter mentioned, to wit, the office of sheriff, *county auditor, county treasurer, county assessor, clerk of the court of common pleas, county recorder, and associate judge.” If it was intended to renderit absolutely incompatible for any person to hold two of these offices, why not say so at once ? Why use these words, “ by appointment?" Had these words been omitted, the intention would have been clear and obvious. And this was well understood by the body enacting the law. In the same section they do make two particular offices incompatible, and they do it in language not to be misunderstood. Immediately after the words last cited, it is added “ and no justice of the peace shall hold the office of an associate judge.”

That the legislature intended this law to apply only to such persons as might hold their offices by appointment, according to the common acceptation of the term, is inferable from the fact that< with the exception of the office of clerk of the court of common pleas, the offices named in the first number of the section are sometimes filled by election, sometimes by appointment. The office of clerk is always filled by appointment of the court, according to the provisions of the constitution. The other offices are those of sheriff, county auditor, county treasurer, county assessor, county recorder, and associate judge. This last office is, according to the terms of the constitution, filled by appointment of the general assembly. According to common parlance it is filled by election. But sheriffs, county auditors, county treasurers, county assessors, and county recorders are elected by the electors of their respective county. The law prescribes that they shall be elected. By the act of February 17, 1831, “for the appointment of certain officers therein named,” it is provided, “that whenever the office of sheriff and coroner, in any county, shall become vacant, the court of common pleas of such county, or the associate judges thereof, may appoint some suitable person'to perform the duties of sheriff until the next annual election.” So, when a vacancy shall happen in the office of county auditor, the commissioners of the county are required to appoint some suitable person to fill the vacancy. *So, if a vacancy happen in the office of county treasurer, the county commissioners are required to appoint some person to fill the vacancy. The same is the case with respect to the county ássessor and county recorder. 29 Ohio L. 271. And if the office of associate judge is considered as elective, if a vacancy happen during the recess of the legislature, the governor is authorized to appoint to fill the vacancy. All the. officers thus appointed, are required to take the same oaths, and to give the same security, as are those elected by the people.

Such being the law, these offices being filled as expressed in that law, sometimes by election, sometimes by appointment, can it be believed that the legislature introduced this word “ appointment ” into the statute under consideration without design, without any definite object; that they intended it should be rejected in giving a construction to this act? It seems to us not.

But if there could be any doubt as to the intention of that body, that doubt would be removed upon looking into the journals of their proceedings. As this bill, which afterward became a law, originally passed through the house of representatives, it was in this form: “No citizen of this state shall hold, by election, appointment, or otherwise,” etc. But it was amended in the senate by striking out the words “ election ” and “ otherwise,” leaving it as it now stands upon the statute book. Senate Journal, 1839-40, pp. 321, 322. Now, these words alone could not have been stricken out, because unnecessary, if the intention was to make the offices imcompatible, no matter how conferred. If this had been intended, the word “ appointment ” would also have been included. The evident intention of this amendment was to restrict, not to extend, the operation of the law. I am aware that every statute should speak for itself, and be construed by itself; but if there be doubt as to its construction, resort may be had to extraneous matters, and nothing of this kind is more satisfactory than the journals of the body by which it was enacted.

It is said, however, that by giving to the act this construction, it will not tend to remove the evils intended to be re-moved. *If we knew where these evils were, perhaps we should be convinced of the truth of this position. But, for myself, I do not know, nor have I heard that any great evils were experienced from the law as it existed before the passage of this act. There would seem, it is true, to be an impropriety in permitting the same individual to hold the offices of sheriff and clerk, or of county treasurer and county auditor. But it is not perceived that any great public inconvenience could result from vesting the offices of clerk of the court and recorder of the county, or of county auditor and county recorder, in the same person.

If, however, it be an evil, and it was the intention of the legislature to apply a remedy, it is unfortunate that the remedy applied, should not have been co-extensive with that evil. But if they have not done it by the terms of their act, we can not do it by construction. If it be an evil that a person who holds the office of county treasurer should hold the office of associate judge by a temporary appointment, we do not see that the evil would be diminished by his holding the same office by election for seven years; and so, on the other hand, if a man holds the office of associate judge, and community would sustain an injury by his holding the office of county treasurer for three months, we do not see that the injury would be lessened by his holding the same office for two years. Yet, to our apprehension, the legislature have prohibited the one, but have not the other. There is an apparent incongruity in the law, but we, as a court, do not feel ourselves authorized to depart from what we conceive to be its obvious intent and meaning.

Such being the opinion of the court, it follows that the defendant, holding these two offices by election, not by appointment, is not within the prohibition of this statute, and that his pleas are sufficient in law to bar this prosecution against him, and judgment will be entered accordingly. Judgment for the defendant.


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    *M. S. Wade v. M. D. Pettibone.
    This creditor in an execution may claim the benefit of a purchase made by his-attorney, especially if the whole debt is not paid. But he- must assert his right in a reasonable time.
    This is a bill in chancery from the county of Delaware.
    In 1835, the Miami Exporting Company having been, for many years, a suspended institution, and being about to recommence-business, made certain dispositions of their then existing debts,, for the benefit of their old stockholders. By a resolution of. July 13, 1835, they divided their debts into classes, rating them after the probability of making collections; and, on the fourth class, which they called “desperate,” they authorized their agent to retain, as a compensation, fifty per centum on the amount collected. They appointed the plaintiff their agent, and authorized the president to convey to him, in trust for the stockholders, all the property, of every description, owned by the institution.
    Some time in 1835 or 1836, the plaintiff employed the defendant, who is a solicitor in chancery, to bring a suit to foreclose a mortgage, in Delaware county, against the heirs-of James Keys, one-third of which belonged to the'Bank of the United States, and the two-thirds to the Miami Exporting Company. The suit was duly prosecuted, and the land advertised for sale on October 3, 1836.
    On September 7, 1836, about four weeks before the sale, Pettibone wrote a letter to Wade, advising him that the land had been appraised by the master, and of the time of sale, and inquiring if he should bid it in for the company, if it should soil for less than the appraisement. No answer to this letter was received at the time of the sale, and Pettibone attended, and bid it in, in his .own name. On the 11th of October, eight days after the purchase, Wade wrote to Pettibone instructions to purchase the .property.
    *On November 29, 1836, Pettibone again wrote to Wade, reciting the sale and his purchase; as he inferred, from his receiving no answer to his letter, that the company did not wish to purchase, but that, since his letter had been mislaid, he was now willing to relinquish his purchase to the company, and would release when he acquired a title from the master. Ho offered, however, to take it at the appraisement, and if they deemed it best to retain it, he would convey all his interest as soon as he got his deed.
    On the 9th of December, Wade replied to this proposition, that Pettibone might retain the land at two dollars per acre, and if he did not accept it on these terms he directed the deed to be made to M. S. Wade, .trustee and agent of the Miami Exporting Company.
    Pettibone, on the ,27th .of December, by another letter, renewed his offer to purchase; to pay $1,200 on certain payments, and repeating, if these terms were not accepted, to forward to Wade a deed, if he preferred it, on the return of the master.
    Wade answered this letter on the 10th of April; declines setting a price upon the land until he sees it, and expects "to be up ” (to Delaware) some time in May, and offers the preference to Pettibone if h concludes to sell.
    No further communication was had between these parties until August, 1839, a period of two years and four months. In the spring of 1839, the master pressed Pettibone for adjustment of the purchase money. In June, 1839, Pettibone visited Cincinnati, the residence of the plaintiff, and ho says, in his answer, he sought him and could not find him. Ho then paid into the office of the company, the purchase money, $650.89, after deducting the master’s costs and his own fees, and thenceforth claimed the land as his own.
    Powell, for the plaintiff,
    insisted upon a decree, on two grounds: 1. That the correspondence between the parties created a contract, which ought to bo specifically enforced ; and,
    *2. That the defendant was the agent and solicitor of the plaintiff, and stood, therefore, in such a fiduciary relation as to preclude him from becoming a purchaser.
    On the last point he cited Armstrong v. Huston, 8 Ohio, 554; 1 Mad. Ch. 112, 114; 1 Fonb. Eq. 135; 1 Story Eq. 249, 260; Campbell v. Walker, 13 Ves. 601; Morse v. Royal, 12 Ves. 372; Ex parte Lacy, 6 Ves. 625; Davoue v. Fanning, 2 Johns. Ch. 257; Hawley v. Mancius, 7 Johns. 188; Ex parte James, 8 Ves. 345; Ex parte Bennett, 10 Ves. 381; Ex parte Wiggins, 1 Hill Ch. (S. C.) 356; Howell v. Baker, 4 Johns. Ch. 119, Blight v. Tobin, 7 Mon. 616; Leisenring v. Black, 5 Watts, 303; Owen v. Foulkes, 6 Ves. 630; Hall v. Hallet, 1 Cox, 134. Nor will the fact that the sale was a fair one protect the purchaser. Campbell v. Walker, 13 Ves. 601; Ex parte Lacy, 6 Ves. 625, 630; Davoue v. Fanning, 2 Johns. Ch. 257.
    Finch, for the defendant,
    claimed that the rule laid down in the cases cited did not apply to attorneys at law, but to agents and trustees only. Beardsley v. Root, 11 Johns. 464.
   Lane, C. J.

The ground upon which the defendant claims the right to withdraw his offer to relinquish his title to the land is because, he says, that offer was made to the company, but that he has discovered Wade claims the title as his own, and not for the benefit of the company. Much of the argument is devoted to the examination of the proofs bearing on this point. It will, be unnecessary for us to notice this, because, in our opinion, the case will be decided upon principles, among which this loses its character and importance.

Pursuing the facts in the order of their occurrence, the first proposition to be considered is, whether the attorney or solicitor can purchase, at a sale under the execution which his client is seeking to enforce; as between him and the debtor, as between him and third persons, such sale is without objection, but it is another question between him and his client, when the law creates confidential relations. The attorney is retained for the purpose of doing all in his power to advance *the client’s interests, and, especially, that the property should produce enough, by sale, to pay the whole debt. For this purpose, although not the agent of the law in making sales, he has a large control as to the management of the execution, Without adverting to other means of influence, he can select his time to set the machinery of the law in motion, and he can countermand or postpone it for the purpose of obtaining for his client a better price. But if he were permitted to purchase, it would be his interest to buy at the least price; his personal interest, therefore, would be adverse to that of his client; especially if the property did not produce enough to pay the whole debt. Ho would be enabled to gain by sacrificing his client’s interest, and the lower the price, the greater would be his advantage, and the greater his client’s loss. To prevent this collision of interests, to destroy the temptation of abusing opportunities for obtaining personal advantages, at the expense of confidential obligations, by sacrificing interests which he is bound to protect, the law imposes upon those who stand in fiduciary relations the disability of acquiring interests inconsistent with such relation. It does not inquire whether the act was honest or advantageous, but gives the protected party all advantage of the act done. This doctrine is universally applicable to trustees, executors, agents, and it nowhere is of more forcible application than to an attorney purchasing under an execution, where the whole j debt is not paid. 8 Ohio, 552; 9 Ohio, 117; 5 Watts, 303.

The case, then, is one in which, although Pettibone acted in entire good faith, his client may step in and claim the benefit of his purchase, unless it was made with their assent. He claims that assent may be inferred, after they did not answer the letter in which he communicated information about the sale, and asked their instructions. We do not intend to determine whether such assent can be presumed from this omission. And it is of no consequence in the present case, because, by his letter of the 29th of November, he cheerfully relinquished all benefit of the purchase to the company. This *act was a recognition of his confidential relations; and it authorized the company or Wade, their trustee (whom, on this examination, we at present regard as identical with the company), to demand of Pettibone to hold his rights for their benefit, and to be substituted in his place. Negotiations were then opened between the parties for the sale of the land, which continued until April, 1837, when Wade signified his intention to be in Delaware, to mature the arrangement, during the ensuing month. Up to this time the rights of the parties were clear; and had an application been then made, we should have found no difficulty of entertaining a suit to give the title to the plaintiff.

But, before Wade, or the company, could claim the benefit of this purchase, it is plain they must-absolve Pettibone from his responsibilities and pay the expenses of acquiring the title. Pettibone had a claim for his own fees. He was responsible to the master for the expenses of the sale, and he stood liable to the master for the immediate adjustment of the purchase money, for, although Wade might elect to assume the purchase, it is not clear that Pettibone could, even then, compel them to take it, and certainly not without litigation, in which the master ought not to be involved. In this stage of the case, Pettibone had a right to expect of the plaintiff an early close of the affair.

Instead of this, not a step was taken, or a movement made, toward the completion of the purchase,'from April, 1837, to June, 1839. During this period of twenty-five months, no effort was made, either to pay to Pettibone his just claim; or to release him irom his responsibilities to the master. And if we may trust the answer, when, in the spring of 1839, the master had exacted, from Pettibone, security for the prompt payment of the purchase money-, and when Pettibone visited Cincinnati, in June, 1839, on this errand, but the plaintiff could not be found. He, therefore, paid the money over to the company.

The phase, therefore, which the case assumes, is not as to the existence of the original right, but whether it has not been *lost by delay. This long slumber, this unaccountable and inexcusable neglect of duties, seems, to the court, a sufficient answer to a plaintiff who is seeking, in chancery, to assert rights.

Bill dismissed.


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    Micajah T. Williams v. Bosson & Brothers.
    The indorsers of an accommodation bill are not joint sureties, but are liable to each other in the order of their becoming parties.
    This is a writ of error to the Supreme Court of the county of Miami.
    It brings up the following case by a bill of exceptions:
    The action was upon a bill of exchange, for $3,000, drawn by Green, upon Bosson & Brothers, to the order of Dana, and indorsed by Dana to the plaintiff, Williams, dated September 16, 1838, payable in ten months, and accepted.
    The defendants proved, that before this time they had accepted, for Green’s accommodation, a draft in favor of Lawrence, duo in September, 1838, and that the present draft was made and placed in Green’s hands to obtain a renewal of the Lawrence draft, but that it was not used for this purpose.
    That another bill, for Green’s accommodation, drawn by him, to the order of Dana, and indorsed by the present plaintiff, Williams, payable April 18, 1839, was negotiated at the Commercial Bank. That when that fell due, the present draft, thus remaining in Green’s hands, was used by him to raise money to pay the Dana draft, and that, for this purpose, the blanks were filled by Green, and indorsed by Dana and Williams. The present bill was not paid at maturity, and remained under protest until December, 1839, when it was paid by *funds raised upon another loan, made on a bill drawn by Green on the defendants, indorsed by Dana and Williams, but not accepted.
    These facts show three drafts had passed between the parties. The first was the Lawrence draft; the second is the draft now in suit, intended by the acceptors to renew the Lawrence draft, but used to renew the Dana draft; the third is the one drawn by Green on them, and not accepted.
    The second draft was taken up by the bank, and came to the hands of Williams in the following manner: It lay in the bank, under protest, some time. Bill, No. 3, was drawn by Green to Dana, and indorsed by him and Williams, and negotiated at the Commercial Bank. Williams being the last indorser, the money was placed to his credit, and could be drawn only by his check. Dana, at the request of Green, then took up the bill, by means of Williams’check, and retained it. Some-time after, Williams endeavored to persuade Dana to join in prosecuting the defendants on the present draft, but Dana declined, because he thought the negligence of the notary had exonerated him. Williams then procured the bill, for the purpose, as he said, of seeing if he was not released also, and has commenced this suit upon it.
    The court instructed the jury as follows:
    1. That if there was a misapplication of the bill by Green, with the knowledge of Williams, it is a defense to this suit; but this misapplication must bo proved by defendants.
    2. Joseph Bosson, one of the firm of Bosson & Brothers, having died while bill No. 2 lay, unused, in the hands of Green, such death, and Williams’ knowledge of such death, would not impair his rights as holder, he being ignorant of such misapplication.
    3. That the rule in Douglass v. Waddle, 1 Ohio, 413, applies to notes only, and not to bills, although accommodation bills.
    4. That the circumstances of the payment of draft No. 2, by Williams’ check, and his possession of the draft, are prima facie evidence of payment by him.
    *5. They declined to charge that possession being obtained by Williams, under the above circumstances, the same equitable defenses would prevail in this suit as if it was’brought by Green.
    The jury returned a verdict for the plaintiff.
    R. S. Hart, for the plaintiff in error,
    insisted that the court erred in their charge to the jury. He cited 2 Stark. Ev. 153, 180; Chit, on Bills, 255, 241, 243, 554, 335, 53, 60, 256, note G.
    C. L. Telford, on the same side,
    cited 3 Kent Com. 79; Bay v. Coddington, 5 Johns. Ch. 56; Gill v. Cubit, 3 Barn. & Cress. 466; Riley and Van Amringe v. Johnson, 8 Ohio, 526; Coddington v.
      Bay, 637; Evans v. Smith, 4 Binn. 367; De la Chaumette v. The Bank of England, 9 Barn. & Cress. 208, 17 Eng. Com. Law, 356; Lowndes v. Anderson, 13 East, 135; Wardell v. Howell, 9 Wend. 170; Denniston v. Bacon, 10 Johns. 198; Woodhull v. Holmes, 10 Johns. 231; Collins v. Martin, 1 Bos. & Pul. 648.
    Odlin, Schenck & Howard, for the defendant
    in error, sustaining the charge of the court, cited Byles on Bills, 63; 2 Stark. Ev, 166; Crook v. Jadis, 5 Barn. & Adol. 1106, S. C., 27; Eng. Com. Law, 234, 278; McDonald v. McGruder, 3 Pet. 470; Adams v. McMillen, 7 Porter, 73; Bank of United States v. Dunn, 6 Pet. 51; Matthews v. Hall, 1 Vt. 316; Chitty on Bills, 255; 9 ed.
   Lane, C. J.

The propriety of the court’s refusing to hold the bill liable to all equities which might be set up against Green, depends upon the following proposition :

That Green could never set up the note, it having been given for his accommodation ; that Williams did not acquire the note in the common course of business, as a purchaser, for a consideration passing at the time, but that it was a paper whose obligation was extinct, because it had done its office; and having *been taken as security for a prior debt, and under circumstances calculated to awaken suspicion, such as the death of Joseph Bosson, the embarrassments of Green, the long time of credit on the face of the bill, and the period since its date in which it had remained unemployed in Green’s hands; and the case of Riley and Van Amringe v. Johnson, 8 Ohio, 526, is relied on to sustain the position.

The justice of this view depends on assuming that Williams acquired his right to the paper in suit, after it was duo, by the transfer from Dana, and as collateral security for his liabilities for Green. Upon this assumed fact, the case referred to might apply, and as the authority of that decision is questioned, it might be necessary for the court to examine its grounds. But the facts do not justify the defendant in this position. Although Williams has said he held it as such security, he is not concluded by an inadvertent admission, if he really possesses other rights. He did not take the paper by any new assignment from Dana, or derive any rights to it from Green, after its dishonor; but he was one of the series of indorsers upon it, and if he paid the debt, he created or retained a right to it as his own, to enable him to pursue his remedy against its earlier parties. Ho holds it, therefore, not as a purchaser of a dishonored security, but as the indorser of a bill not due ; and his rights are referable to the time of his indorsement, not to the time when he took the note from Dana. It was, then, not wrong for the court to decline instructing the jury that the possession of the bill acquired from Dana, under the pretense of inquiring into his liabilities, conferred no right of action..

The other considerations to which the defendants allude, were entirely proper to be laid before the jury. The bill was not applied by Green to the purpose for which it was intended; and such misapplication, if proved to have boon made with the knowledge of Williams, would involve him in all the consequences attaching to Green. Stone v. Vance et al., 6 Ohio, 246. To this end the suspicious circumstances were the subjects of animadversion and comment to establish notice. But it is plainly not law to hold the indorser of paper, *not due, responsible fora misuse to which ho is not privy, except in such eases as gaming notes, or those void by statute. The death of William Bosson, one of the partners of the firm whose surviving members are sued, does not invalidate the paper. It was accepted before, and, at the time of his death, was in the possession of Green. It received its form and vitality before his death, and no act of any member of the firm is necessary to add anything to it.

The opinion expressed by the court, that the facts shown in the depositions of Dana, Outcalt, and Hall are prima facie evidence of a payment by Williams, is claimed to be not sustainable. The necessity of this proof of payment, in the first instance, is not perceived ; because the holder of a bill is entitled to a suit, unless some circumstances exist to render his title suspicious. Yet if the bill was taken up by Green, an earlier party, no right of action would accrue to Williams. The bill in suit was, in fact, regained from the Commercial Bank by means of money, acquired by the discount of another, drawn by Green on the Bossons, indorsed by Dana and Williams. The money raised on the loan was placed to Williams’ sole account, and was paid over on the bill in suit on his check. It was, therefore, apparently Williams’ money ; and if the bill were a real transaction, this would be complete proof. It was still competent for the defendants to show the money, in fact, belonged to Green, but the evidence makes no such proof. At the maturity of the second bill, the indorsers were under the necessity of providing for its payment. Their arrangements, among themselves, were of no moment to the defendants; and none of their remedies against the acceptor’s are taken away, if they received money by means of 'Green's draft, and complied with their own responsibility, unless Green paid it; and the facts, instead of showing this, .make it probable that the payment of the third draft is fastened upon Williams, from Green’s insolvency, and from the discharge of Dana, through the omission of the notary.

But the principle most relied on, as erroneous in this charge, is that which regards the rule of a former decision of this *court, not applicable to bills of exchange. In the case of Douglass v. Waddle, 1 Ohio, 413, it is held that in accommodation notes, the foundation of loans from banks, the several parties whose names are used for the benefit of the person for whom the loans are made, are presumed to be joint securities only, and each can recover from the other, whether maker or indorser, his proportion only. That decision was made in 1824, and the liability of the parties occurred at a still earlier period. At that time the form of obtaining accommodations from banks was on notes only; upon such notes a local usage obtained, holding the sureties on each paper as joint securities only, and not liable to each other in the order of their coming upon the notes. It is this local rule which is recognized and established as law by the authority of that case.

In the law of real property, each state has its local rules, and its own courts are competent to establish and maintain them. But in the law of contracts, especially in mercantile contracts, the principles are nearly uniform throughout the civilized world; they are established by a wider experience, and are maintained in a greater uniformity, in consequence of the great number of tribunals through whom they are expressed. Our state has become, and is becoming, the scene of large commercial operations, and it is of much moment that the principles on which justice is administered should be made to conform, as far as possible, to the general law merchant. The intrinsic propriety of this step is increased by remembering that the foreigner will find the general law merchant governing the tribunal which sits by our side, and will obtain there a different rule of justice than our own citizen. The introduction of bills, as a basis of bank accommodation, has taken place long since the decision of Douglass v. Waddle. They are of mercantile origin, and the law merchant should govern their use. The right of the indorsee to hold all earlier parties responsible to him, is undoubted: and it is plainly our duty to follow these rules, unless bound by our own precedents. But we see no reason to extend the rules of Douglass v. Waddle beyond the kind of paper to which local usage had applied it; and it is ^sufficient evidence that the parties, by adopting paper of a different form, did not rely on its protection. This stop has heretofore boon taken on the circuit. Walker v. Worthington, Ross Supreme Court, 1835. And the court unite in the opinion that the judge committed no error. ' Judgment affirmed.


text:
    Noah Lougee v. The State of Ohio.
    Under the act of January 16, 1816, “to prohibit tbo issuing and circulating unauthorized bank paper,-’ it is sufficient to charge, in the indictment, in general terms, that the defendant acted as an officer of a bank not incorporated, by law.
    An order that the defendant stand committed until fine and costs be paid, is erroneous.
    The judgment of the court of common pleas, in a criminal case, may be reversed in part, and affirmed in part.
    This is a writ of error to the court of common pleas of Hamilton county.
    The record shows that, the plaintiff in error, at the March term of the court of common picas of said county, 1840, was indicted for a violation of the statute law of this state, “ to prohibit the issuing and circulating of unauthorized bank paper.” The indictment contains several counts; and, on trial at the July term of the same court, in the same year, he was found guilty, by the jury, as charged in the second count of the indictment,1 and not guilty, as charged in the other counts.
    This second count of the indictment is in these words: “And the jurors aforesaid, on their oaths, do further present, that the said Noah Lougee, on March 1, 1840, with force and arms, in the county aforesaid, acted as an officer of a bank not incorporated by law, contrary to the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”
    *Upon the finding of the jury the court sentenced the defendant, Lougee, to pay afino of §1,000, together with the costs of prosecution, and that he stand committed until the fine and costs were paid.
    To reverse this sentence this writ of error is prosecuted, and the errors assigned are :
    1. That the second count of the indictment, under which the defendant was found guilty, is insufficient in law.
    2. That the court erred in adjudging that the defendant should stand committed until the fine and costs should be paid.
    The case was argued by Wright Walker & Miner, for the plaintiff in error, and by Crapset, prosecuting attorney, for the state,
   Hitchcock, J.

The first question raised in the present case is, as to the sufficiency of that count of the indictment, under which the defendant, in the court below, was convicted. If we were to test this count by the rules of law, as applicable to ordinary cases, it would unquestionably be found to be defective. Every indictment should have a precise and sufficient certainty; should set forth the time and place of the commission of the offense. The offense itself'should be set forth with clearness and certainty, and must be so described as to bring it substantially within the provisions of the statute. The description, in this case, is vague and indefinite. It may.be sufficient as to time and place; but, although the defendant is charged with acting as an officer of a bank not incorporated by law, it is not stated what that office is; nor is the name or description of the bank given.

It is claimed, however, by the prosecuting attorney that this count is in conformity with the form prescribed by the legislature itself, in the law for the violation of which the defendant was indicted. If so, we do not feel ourselves authorized to declare it defective.

*The act of January 27, 1816, “to prohibit the issuing and circulating unauthorized bank paper,” Swan’s Stat. 136, took effect on the 1st of May of the same.year. In section 1 it is enacted, that if any person shall, within this state, act as an officer of a bank not incorporated by a law of this state, the person so offending shall forfeit and pay the sum of $1,000. In section 3 those persons who shall be deemed and taken as officers of such bank are pointed out. In section 5 provision is made that all fines and forfeitures incurred under the act may be recovered by action of debt, or by indictment. And in the sixth is enacted, “ that in every such indictment, or presentment, it shall be sufficient to state, in substance, that the defendant, on the. day of-, acted as an officer of a bank not incorporated by law, without setting forth the special matter." By comparing the indictment now under consideration, with this form given us in the statute, it will be found that the form has been followed and adopted. And the indictment, being in conformity with this form, would seem to be sufficient.

It is claimed, however, by the counsel for the plaintiff in error, that a presentment, made by a grand jury, following, literally, this form, would not constitute an indictment; and, of course, to hold a person to trial under such an instrument, would be to violate the principles of the constitution. Section 10, of article 8, of this instrument, prescribes that “no person shall be put to answer any criminal charge but by presentment, indictment, or impeachment;” and section 11 of the same article, that “in all criminal proceedings the accused has a right to demand the nature and cause of the accusation against him, and to have a copy thereof.”

It would seem to be claimed that no law can be passed that will materially change the forms of indictments as they existed at the time of the formation of the constitution. We do not so understand that instrument. It is true that no person can be put to answer any criminal charge but by presentment, indictment, or impeachment. An individual accused of % crime can not be compelled to answer the charge until the same has been made through the intervention of a grand jury in the form of a presentment or indictment. Should the legislature pass an act to compel an individual to answer, without this prerequisite, such act would be in violation of the constitution and void. No such power is, as I believe, claimed by any of the numerous advocates for legislative supremacy. But this clause in the constitution has nothing to do with the particular forms of indictments. These forms will vary according to the nature of the criminal acts prohibited. The legislature have the power to declare what acts are criminal; and they have the same power to prescribe the forms of indictments for the commission of such criminal acts. They can not dispense with the indictment itself, but they can dispense with some of its technical formalities. Whether the ends of public justice are better attained by abandoning well-established precedents, is a different question. Daily experience teaches us that every innovation is not an improvement.

The simple question in this part of the case is, whether this instrument, following, as it does, the form prescribed by the statute, is an indictment. “An indictment,” says Blackstone (4 Com. 302), “ is a written accusation of one or more persons, of a crime or misdemeanor, preferred to, and presented by, a grand jury upon oath.” This instrument, now under consideration, contains a written accusation of the plaintiff in error, of a crime, to wit, the crime of acting as the officer of a bank not incorporated bylaw; and it was presented by.a grand jury upon oath, It is, then, an indictment, and we hold it to be sufficient.

The court of common pleas sentenced the plaintiff in error to pay a fine of $1,000, and that he stand committed until the sentence is complied with. It is claimed by the counsel for the plaintiff in error, that the court had not power to order this commitment. In England, and in some of the states of this Union, where the punishment of an offense is by fine, a part of the sentence is, that the person convicted stand committed until the fine is paid. In this state the whole *matter is regulated by positive law. In some cases it is directed that a part of the sentence shall be, that the culprit so stand committed; in others, it is not. And there is a general provision of law, authorising executions to enforce the collection of fines.

Under these circumstances, a majority of the court are of opinion that unless it is so provided by statute, the court has not power to order that a criminal stand committed for tho non-payment of a fine; and that the court of common pleas erred in ordering the committal of the plaintiff in error. What is the consequence? That court, in conformity with law, adjudged that the plaintiff in error pay a fine of $1,000; without authority of law, it was ordered that lie stand committed until the fine was paid. So far as this sentence is in conformity with law, it should be affirmed; so far as it is against law, it should be reversed. Judgment accordingly.