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Rossman v. McFarland.

time also limits the effect, or declares the consequences which shall attach to the making of it, the general rule does not apply.

The 29th section declares all assignments made by banking institutions, with intent to prevent the interference of the commissioners, unlawful; and if this were all, the general rule might possibly be applied; but in the latter part of the section, the legislature has seen fit to declare what consequences shall follow the making of such an assignment, by the words: "But all such institutions, companies, or societies, shall be subject to the operations and provisions of said acts, notwithstanding such assignments or transfers; and all assignments or transfers, with intent or for the purpose aforesaid, shall be held absolutely void as against the operation and provisions of said acts." The statute, then, does not stop with the prohibition, and leave the courts to adjudge the assignment void for all purposes, as a thing prohibited for the protection of the public, but provides that the institution shall still be subject to the operation of the law, and then declares that the assignment "shall be held absolutely void as against the operations and provisions of said act." In other words, if the exigency should arise, the bank commissioners may take possession of, collect and distribute the assets, as if no such assignment had been made.

The intention is manifest. The assignment was to present no obstacle to the interference of the commissioners. As against them, 380 it was to be void, if they had cause to, and did interfere; but not void as to others, unless the commissioners, in the discharge of their duties, should vacate and annul it.

The mere fact that the bank had made the assignment, with the intent specified years before, but which was not followed by any action of the board of bank commissioners, would not vacate or annul the assignment to McCleary and others; and proof of it was very properly excluded by the court. Its introduction could not, in law, have availed the plaintiff in error, and its exclusion has not, in law, injured him.

Did the court below err in finding upon the facts; proved and admitted, that the note sued on was valid and subsisting, as against plaintiff in error?

It is claimed that the original note delivered to the assignees (McCleary being one of the makers), on its maturity in their hands, became and was assets in the hands of McCleary, though not, in fact, paid; and that its subsequent surrender was not, in law, a

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Rossman v. McFarland.

sufficient consideration to support the note sued on. It is also insisted, that even if the note sued on was valid at its inception, still, on its maturity in their hands, it, in law, became assets in the hands of McCleary, and should have been regarded by the court as paid.

These results are claimed on the authority of the case of Bigelow v. Bigelow, 4 Ohio, 138, which, on principle, is not distinguishable, it is said, from the case at bar. In that case, a debtor of an intestate had been appointed administrator; whereby the right to sue and the obligation to pay centered in one and the same person; and it was held that, inasmuch as the administrator could not sue himself and thereby collect the debt, it became assets in his hands; and the court intimate that the rule should be applied to trustees generally. The court say the debt was not thereby extinguished; but it was a "quasi" release at law, because the administrator could not sue himself, and a personal action, once suspended, is always suspended. *The authority of this case is somewhat shaken, and its prac- [381 tical application limited, in the subsequent cases of Hall v. Pratt, 5 Ohio, 72, and Miller v. Donaldson, 17 Ohio, 265. In Hall v. Pratt, Wright, J., dissents from much of the reasoning, and especially questions the universality of the maxim, that personal actions once suspended are always suspended; while in Miller v. Donaldson, Avery, J., remarks, that the holding a debt in such case to be assets in the hands of an administrator, is a mere fiction of law which can not be allowed to work injustice. In that case, a mortgagor who had been qualified and had acted as executor of the mortgagee, had failed to pay the debt while in office, and the court permitted a foreclosure of the mortgage after his removal, at the suit of an administrator de bonis non; thus showing, clearly, that the debt was not discharged by his appointment to and acceptance of the trust, and was not, in equity at least, to be regarded as paid. It is not pretended that either the original note or the renewed note was ever in fact paid to the bank or its assignees; and to hold it paid under this fiction of law, would work injustice toward the bank and its creditors. The case of Bigelow v. Bigelow, is plainly distinguishable from the case at bar in this: The debt due to the estate, in that case, was the sole debt of the administrator, and was held to be assets in his hands, because he could not sue himself, and the estate would therefore lose it unless the fiction were resorted to; while in. the case at bar, the note is not the sole promise of McCleary, nor the VOL. IX-20 305.

Rossman v. McFarland.

joint obligation of himself and Rossman, requiring all the makers to be joined in a suit upon it; but is the joint and several note of McCleary, and Johnson, and Rossman. McCleary could not sue himself and the other makers, but he and his co-assignees could, at any and all times, have sued the other party to the note. The necessity, therefore, did not arise for resorting to and applying this legal fiction. This proposition is too plain to require the citation of author382] ities to support it, as the mere statement carries conviction to every legal mind. "Where two or more are bound jointly and severally, and one of them makes the obligee his executor, the obligee may, notwithstanding, maintain an action against the other obligor. Bradford et al. v. Williams, 4 How. (U. S.) 576; Cook v. Cross, 2 Levinz. 73; 5 Bac. Abr. 816, Tit. Oblig. D. 4. These authorities, if authorities are required for so obvious a proposition, establish that an action may be sustained by the payees of a joint and several note or obligation against one of the makers, and that it is no objection to a recovery that one of the makers, who is not sued, is a a plaintiff in the cause. But it is said, inasmuch as Rossman, inter partes, is the surety for McCleary & Johnson, who would in law be bound to reimburse him the money he is compelled to pay, that McCleary, as one of the assignees, should not be permitted to recover money from him, upon the recovery of which he (McCleary) would be forthwith bound to refund. It is true, that if McCleary had the sole beneficial interest in the money when recovered, the law, which discountenances circuity of action, would exempt Rossman from liability upon the note. But in the case at bar, the money, when collected, belongs to the three assignees, in trust for the bank and its creditors, and not to McCleary in his own right. The assignees were not bound, nor was McCleary as assignee, bound to reimburse Rossman. As between Rossman and the assignees of the bank, he by his contract had bound himself severally to pay, if required, and could not have claimed exemption if sued by them at any time after the maturity of the note. Hampton v. Shehan, 7 Ala. 297; Webster v. Randall, 19 Pick. 13.

It is hardly necessary to notice the objection that there was no legal consideration for the note sued on. We hold that the note for the renewal of which it was given, was, at the time of the renewal, a valid and subsisting note, and was therefore a sufficient consideration for the renewal. A moral obligation, arising out of a

Ash v. Ash et al.

pre-existing liability *which had been discharged by a mere [383 fiction of law, would of itself support the promise.

The long period during which the note remained in the hands of the assignees after its maturity, without any effort on their part to collect it, and the solvency of the principals for several years after the note became due, and their subsequent insolvency, were circumstances proper for the consideration of a court or jury, as raising a presumption of payment. The court doubtless did so consider them in trying the issues submitted. They are not, however, so significant and conclusive, that a reviewing court would be warranted in acting upon them.

Judgment affirmed.

BRINKERHOFF, C. J., and SUTLIFF and GHOLSON, JJ., concurred. SCOTT, J., having formerly been of counsel, did not sit in this case.


Where a testatrix, having no child, made her will, and afterward had a living child, which she survived: Held, under the 40th section of the act of March 25, 1840, relating to wills (Curwen, 690)—

1. That the birth of the child revoked the will.

2. That the fact that the testatrix survived the child did not revive the will.

IN chancery. Reserved in the district court of Knox county.

The complainant, John Ash, filed his bill in chancery to set aside the last will of his sister, Mary Ann McClain, wife of the respondent, Upton McClain, which had been duly admitted to probate, by the probate court of Knox county.

*The ground on which it was sought to set aside the will, [384 was that the testatrix, at the time she executed the same, had no children, and that she afterward had a child born alive.

The case was tried in the district court, on an issue out of chancery, on an agreed statement of facts, and a verdict returned in favor of the validity of the will. The contestant filed a motion for a new trial, on the ground that the court erred in their charge to

Ash v. Ash et al.

the jury upon the law of the case. decision in the Supreme Court.

It appears from the bill of exceptions in the case that the testatrix had no children at the time she executed the will, and that she afterward had a child born alive, which child she survived.

It also appears that the will was duly executed, and that the only question made in the case was that of revocation. The only point in controversy seems to have been the construction of the 40th section of the act relating to wills, passed March 25, 1840. Curwen, 690. That section is in these words:

That motion was reserved for

"If the testator had no children at the time of executing his will, but shall afterward have a child living, or born alive after his death, such will shall be deemed revoked, unless provision shall have been made for such child by some settlement, or unless such child shall have been provided for in the will, or in such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption of such revocation shall be received."

It is admitted that no provision was made for said child, by settlement or otherwise, and that no mention of the child was made in the will. By the terms of the will, the whole estate is given to the husband. On the trial of the case, the court instructed the jury "that the birth of said child did not, in law, revoke said will, 385] the child having *died before said testatrix; and that the verdict upon the proof, if they believed it, and upon the admission. before them, ought to be, as a matter of law, in favor of the valid ity of the will." To which ruling of the court, John Ash excepted. The verdict being in favor of the validity of the will, in accordance with this ruling of the court, the complainant moved for a new trial, on the ground that the ruling of the court and the verdict were contrary to law.

Sapp & Smith, and Vance & Smith, for complainant.
M. H. Mitchell, for two of the respondents.

SUTLIFF, J. The right of the plaintiff to a new trial depends solely upon the correctness of the judicial construction of the statute, given in charge to the jury by the district court.

It is insisted, on the part of complainant, that there are two contingencies expressed by the statute, either of which is intended to

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