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Thompson v. The State.

may be noticed, however, that one of the earlier cases (Bally v. Wells) is differently stated in the reports, and that one statement would strongly favor the view we have taken, while the other might not. 3 Wilson, 25; Wilmot's Notes, 344; Allen v. Culver, 3 Denio, 296, 297.

There are several objections to the petition of the plaintiff, relied on in argument, other than the principal one which has been discussed; but we think they rather go to show defects in the statement of a case than a defective case, and should be reached by motion. The connection between the plaintiff and the defendants should certainly appear with greater clearness, and the amount of insurance, as compared with the value of the building, should also be disclosed. We are satisfied, however, that the decision of the principal and most important question in a way which removes what would be, if otherwise decided, an insuperable *obstacle (354 to a recovery by plaintiff, entitles him to a reversal of the judgment; so that if, in other respects, by clearer averments and by proof, he can make out his case, an opportunity may be afforded.

Judgment reversed.

BRINKERHOFF, C. J., and Scott, SUTLIFF, and PECK, JJ., concurred.

Thomas THOMPSON v. THE STATE OF Ohio.

1. In describing a bank-bill, in an indictment for uttering and publishing it as

true and genuine, when it was false and forged, it is not improper to set out the names and residence of the engravers, as the same appear upon the

margin of the bill. 2. The first section of the act of May 1, 1854, to prohibit the circulation of

foreign bank-bills, etc. (Swan's Rev. Stat. 116), did not exclude such bankbills from the operation of section 22 of the act of July 1, 1835, for the punishment of crimes, but the uttering and publishing false, forged, and counterfeit bank-bills of less denomination than ten dollars upon foreign banks, as true and genuine, was within the provisions of said section 22.

This is a writ of error to the court of common pleas of Ashland county. At the March term, 1855, of the court of common pleas of Ashland

Thompson v. The State.

county, Thomas Thompson was tried, convicted, and sentenced upon an indictment for uttering and publishing, as true and genuine, a false and counterfeit bank-note, purporting to be a three-dollar note of the Merchants Bank then in existence in the State of Massachusetts, duly authorized by the laws of that state to issue such notes.

Upon the trial of the case, Thompson's counsel objected to the 355] bank-note described in the indictment being given *in evidence by the prosecution, for the reason that the note was described in the indictment as containing the words “Rawdon, Wright, Hatch & Co., New York,” when said words in fact only appear upon the margin of the note. The court overruled this objection, and permitted the note to be given in evidence; to which Thompson's counsel excepted. And the jury having returned a verdict of guilty against the accused, his counsel filed a motion for a new trial, and in arrest of judgment, which motion was overruled, and judgment entered upon the verdict. To reverse this judgment, Thompson prosecutes this writ of error. And it is assigned for error:

1. That there was a variance between the bank-bill given in evidence and the one described in the indictment.

2. That the bank-bill was one of no value, its circulation within this state being probibited by statute.

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Bull & McCarty, for plaintiff in error.
C. P. Wolcott, attorney-general, for the state.

SUTLIFF, J. The only fact relied upon to sustain the allegation of variance, is that the words “Rawdon, Wright, Hatch & Co., New York," upon the bill offered in evidence, appeared upon the margin of the bill. The iudictment, after the statement that the forged note was “in the letters and figures following," sets for a copy of the note; and immediately under the signatures of the cashier and president, had expressed, at the foot, the words "Rawdon, Wright, Hatch & Co., New York." The same words on the original bill (which is made part of the bill of exceptions) appear in the same relative position as expressed in the copy set forth in the indictment. The only objection therefore to these words in the indictment, is to the fact of their being set forth in the indictment, rather than the manner of their being expressed. It is urged by counsel, 356] *that being set forth in the indictment as part of the copy,

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Thompson v. The State.

represents them as material words and part of the bill or note, like the other signatures thereon; whereas, upon inspection of the original bill, it appears, evidently, that these words are no part of the note, but are only designed to represent the names of the engravers of the bill. Therefore, to this argument it might be sufficient to say, inasmuch as the words are the same, and their relative position the same in the copy as in the original, it would follow that there is no variance upon which the objection to the bill being given in evidence could rest. And the fact that the words are no part of the note, and so immaterial, could not sustain the objection to giving the note in evidence, on the ground of variance. But as a description of the note, like the numbers or letters, the words were very properly inserted in the copy, although not operative words in the bill.

The other objection rests upon section 1 of the act to prohibit the circulation of foreign bank-bills, passed May 1, 1854.

This section provides as follows: “That from and after the first day of October, in the year of our Lord one thousand eight hundred and fifty-four, it shall be unlawful for any person or persons, firm, or body corporate, to pass, transfer, or circulate, or cause to be transferred or circulated, or to receive or cause to be received, any bank-bill or note of a less denomination than ten dollars, unless said bank-bill or note shall have been issued by, and made payable at, one of the banks of this state, in accordance with the laws of this state; provided, however, that the mere transfer or receiving of such unlawful paper bona fide, for the purpose of sending the same directly out of this state for redemption, shall not be deemed a violation of the provisions of this act."

It is urged by counsel on behalf of the plaintiff in error, that by force of this statute, it appears to have been impossible that the bank-bill was passed by the accused *with intent" to preju- (357 dice, damage, or defraud,” for that the bank-bill could not, if genuine, be legally passed, or circulated in this state, and was therefore alike worthless, whether true or genuine.

The statute prohibiting the passing foreign bank-bills of a less denomination than ten dollars, for ordinary purposes of circulation within this state, does not destroy the value of such notes. In the hand of the owner such notes still have the value of promissory notes, and are of unimpaired validity against their makers, and retain their value in market without the state. See the case of

Ashbrook v. Hite.

Starkey v. The State, 6 Obio St. 267. If, therefore, it were necessary that a genuine bank-bill should be of real value in order to render one liable for uttering and passing as true and genuine a false, forged, or counterfeit bill, the objection would not obtain in this case.

The jury have found from the evidence that the accused did pass such a false and counterfeit bank-bill as described in the statute under which indicted, and with the fraudulent intent expressed; and we think the record shows their finding sustained by the evidence. The judgment of the court of common pleas upon that verdict was, therefore, correctly pronounced, and is affirmed by this court.

BRINKERHOFF, C. J., and Scott, Peck, and GHOLSON, JJ., concurring

AARON P. ASHBROOK V. John C. HITE.

Where a contract is made for the sale of a lot of sheep for a stipulated price

per hundred pounds, to be weighed and delivered by the vendor at a specified time and place, fifty dollars of the price to be paid in hand and the residue upon the delivery of the property, and the vendee, after payment of the fifty dollars in hand, voluntarily and without excuse refuses further

compliance with the stipulations of the contract, and the vendor, not being 358] in default *previously, sells the sheep to other persons, after the time

fixed for their delivery, such resale does not, per se, give the vendee a right to regard the contract as rescinded by the consent of the parties, so as to enable him to recover back the sum paid by him on the contract.

In error to the District court of Fairfield county.

The plaintiff in error was also plaintiff below, and the error assigned is upon the judgment of the court of common pleas, upon an issue of law, raised by a general demurrer to his amended petition in that court in the original action. The facts stated in that petition were as follows : “ That on or about the 11th day of September, Á, D. 1855, he contracted with the defendant to purchase of the defendant, and the defendant agreed to sell to the plaintiff one hundred and twenty-one sheep at the price of $2.20 per bun. dred pounds gross, to be weighed and delivered at the scales of James Hampson, on or before the 25th day of September, A. D.

Ashbrook v. Hite.

1855, and to be paid for, fifty dollars in hand and balance on delivery; and that at the time of making said contract the plaintiff paid to the defendant the said sum of fifty dollars as part consideration for said sheep; that shortly thereafter and before the said 25th day of September, to wit, on the 17th day of. said month the plaintiff was informed that said sheep were not sound, but were infected with a disease supposed to be the scab, which materially diminished their value. And thereupon, on the said 17th day of September be applied to the defendant to rescind said contract, and to refund said fifty dollars, so paid by the plaintiff as aforesaid ; that the defendant refused to refund said fifty dollars, but afterward, and before the bringing of this suit, said defendant sold and delivered said sheep to other persons. By reason of which premises plaintiff says said defendant became, and is liable to pay to the plaintiff the said sum of fifty dollars, with interest thereon from the said 11th day of September, A. D. 1855. Wherefore the plaintiff asks judgment," etc.

*This petition was demurred to, as not stating facts suffi- [359 cient to constitute a cause of action. The demurrer was sustained by the court, and the defendant had judgment accordingly. This judgment was subsequently affirmed by the district court, and this affirmance is now assigned for error.

Hunter & Daugherty, for plaintiff in error:

The legal effect of the allegations of the petition is that the contract was rescinded by the mutual acts of the parties, and, as a consequence, that the plaintiff is entitled to recover back the money paid by him upon it. The rule is that if the purchaser of goods be in default in not paying for and taking them according to his agreement, and the vendor sell the goods to another person, or otherwise convert or dispose of them to his own use, such act is in disaffirmance of the contract, and operates a rescission of it. This, however, does not apply to cases in which the sale is in affirmance of the contract, and made, upon notice to the buyer, merely for tho purpose of making the vendor's lien for the purchase money offective. But in cases of sales by the vendor, as above, in disaffirman 30 of the contract, if the buyer have paid the purchase money, or a part of it, he is, we maintain, on principlo, entitled to recover it

1 Parsons on Contr. 191–193, and notes, citing the leading See also 2 Parsons on Contr. 35, and notes, citing Oxendate

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