ZERBY v. WILSON.

The confessions of a party cannot be substituted in the place of a subscribing witness to a written agreement.

This was an action of assumpsit, founded upon a written agreement. At the trial before the Supreme Court of Richland county, the plaintiff offered the written agreement in evidence, and to prove its execution, offered parol evidence of the confession of the defendant, that he had executed it. There was

a subscribing witness to the agreement, but he was not called, nor his absence accounted for. The court rejected the evidence, and a verdict passed for the defendant. The plaintiff moved for a new trial, on the ground of error in rejecting the testimony, and the decision of the motion was adjourned here.

H. B. Curtis, for plaintiff. Purdy, for defendant.

By the COURT.

The plaintiff relied upon a written contract, or lease in writing, not under seal, as the foundation of his action. By his plea, the defendant put the fact of executing, or making the writing, in issue, and the plaintiff to prove it, of fered the confessions of the defendant in evidence, without calling the subscribing witness, or accounting for his omission to do it. The court overruled the evidence, and this motion is now made, upon the ground, that in so overruling it, the court erred.

No rule of evidence is better established, than that which requires the subscribing witness to a written instrument, to be produced when its execution is put in issue, and is to be tried. Or if he cannot be produced, to show some legal reason why this is impracticable, as a foundation for the admission of secondary evidence. The plaintiff's counsel rely on the case of Hall v. Phelps, 2 John. 451, as establishing and sustaining a different doctrine. It is unneces sary to say how far we should be governed by that case as an authority, did we consider it full in point, because we do not so consider it. In a subsequent case, decided in the same court, Fox v. Reil, 3 John. 477, the same question again came up, and the grounds of the first case, and the extent of the decision, are examined and explained in such manner, as much to weaken its authority.— Hall v. Phelps, was a case upon a promissory note: Fox v. Reil, was debt upon a bond. In the latter case, the confessions were rejected, and in giving the opinion of the court, Kent, Chief Justice, states distinctly, that he concurred. in the decision in Hall v. Phelps, upon the ground that it was a case of commercial paper, and that the English rule was exceedingly inconvenient, when applied to that description of written obligation. He says, he recollects no case where it was ever applied to a specialty.

The case before us, is not a specialty, but it is not, nor does it bear any resemblance to commercial paper. It is a contract in relation to the realty: it conferred upon the lessee a qualified interest in land, and the solemnities of

execution are in their nature as important as the execution of a bond for the payment of money, or of any specialty, short of a deed for the conveyance of land. It is a case much more strongly assimilated to that of Fox v. Reil, than that of Hall v. Phelps, and we are of opinion, that it falls within the rule of the latter case. The evidence was properly rejected, and the motion for a new

trial must be overruled.

HEIRS OF LUDLOW v. HEIRS OF KIDD, ET AL.

The Bank of the United States cannot remove a cause from a state to the cireuit court under the act of Congress of 1789.

The heirs of Ludlow, having upon a bill of review, obtained the reversal of a decree pronounced against them, in favor of Kidd, ante vol. 2, 372, proceeded against the other parties who had become interested. The bank of the United States appeared, and presented a petition to remove the cause to the Circuit Court of the United States. The decision of the motion was adjourned here, by the Supreme Court sitting in Hamilton county.

Caswell, for the motion. Hammond, against it.
By the COURT.

The charter of the bank, contains no provision authorizing the removal of a cause, upon the application of the bank, from a State to a Circuit Court.The 12th section of the judicial act of 1789, extends this privilege to parties who are particularly enumerated. The bank is not one of them, and cannot claim what the law does not provide for it.

Besides, the bank is one of many defendants. It has been the settled construction of the 12th section of the law of Congress, of 1789, that the privil. eged defendant could not extend his privilege to his co-defendant. In this case, there is no pretence that any of the other defendants are entitled to litigate the matter in dispute, in the Federal Court. The motion must be overruled.

STATE OF OHIO v. COM. PLEAS OF HAMILTON COUNTY.

This case came before the Court, upon a motion for a rule to show cause why a mandamus should not be issued, requiring them to certify to the Circuit Court of the United States, an action of ejectment commenced before them, in which the Bank of the United States had been admitted defendant, instead of the casual ejector. The motion was made by the bank, who had filed the petition, and tendered the security, but the Common Pleas refused to make the order.

Caswell, for the motion. Kammond, against it.

By the COURT.

This case involves the same principle decided in the case of Heirs of Ludlow v. Bank United States, Kidd's heirs and others. The motion must be overruled.

WILKINS v. PHILIPS.

Where one party to a writ of error is within the saving clause of the statute of limitations, the case is saved as to all the parties.

This was a writ of error to a decree in chancery pronounced by the Court of Common Pleas of Delaware county, on the 10th day of March, 1818. The writ was issued February 17, 1826. The plaintiffs in error, were the same persons, against whom the decree was pronounced, as heirs at law of John Wil kins, deceased, and were numerous. The defendant in error, pleaded three several pleas in bar, which were in substance the same, and presented the fact, that more than five years had elapsed between the rendition of the decree, and the emanation of the writ of error. To each of these pleas, the plaintiffs in error replied, that Catharine Wilkins, one of the plaintiffs in error, at the time of pronouncing the decree, was an infant, and remained an infant under twenty-one years of age, until, and after the time of suing the writ of error. To these replications, the defendant in error demurred, and the plaintiffs joined in demurrer. The question upon the demurrer was adjourned here for decision, from Delaware county.

O. Parish, in support of the demurrer. Atkinson and Leonard, contra.
By the COURT.

The case of Marstiller and others, v. M'Lean, 7 Wheaton, 156, was decided upon the authority of the case of Perry and others, v. Jackson and others, 4 Term 516. In this latter case, Lord Kenyon asserts, that it is the first time the ques. tion had been brought up for decision, whether, where the saving clause of the statute of limitations, protected only a part of those joined in the action, all the plaintiffs could claim its protection. It is decided against the protection, but upon grounds by no means satisfactory to us. The case was one of partnership, which we think, was sufficient, of itself, to have warranted the decision made. This is in part relied upon, and the decision is in part, put upon the ground of the grammatical construction of the statute. The Supreme Court of the United States, ground themselves upon this authority. Highly as we respect the opinions of this tribunal, we cannot adopt them, in the construction of our own statutes, where they are at variance with our own judgments. We consider the reasoning of the Courts of Connecticut and Kentucky, cited by the other side, as more consonant to the general advancement of justice. It is our opinion that, if any one of the parties who sue a writ of error, is within the proviso that takes the case out of the statute of limitations, the case is saved for all the parties The demurrer to the replication is overruled, and the cause remanded for further proccedings.

RHODES v. LINDLY.

A note payable "to A B or bearer, in good merchantable whiskey, at trade price," cannot be sued by an assignee or bearer in his own name.

This was an action of assumpsit, upon a note of hand given by the defendant, to Hezekiah Rhodes or bearer, promising to pay fifty dollars, at a day subsequent, "in good merchantable whiskey, at trade price." The declaration set forth, in terms, an assignment and delivery of the note to the plaintiff, and claimed to recover as bearer. The defendant demurred, and assigned as a cause of demurrer, that the note was not negotiable. The Court of Common Pleas in Trumbull county, gave judgment for the plaintiff, and the defendant obtained this writ of error, which was adjourned here for final decision.

Webb, for the plaintiff in error.

By the COURT.

At the common law, this paper was not assignable; neither is it assignable under our statute. The plaintiff admits this: but claims to recover, on the ground, that being made payable to bearer, any person, who is the actual bona fide owner, may maintain the action as bearer. Were it a note for money, this position would be a correct one. But that doctrine has never been applied to executory contracts for the delivery of property, or for the performance of any particular act.

The case of Geddings v. Byington, decided upon the circuit, at Ashtabula, 2 Ohio Rep. 228, is supposed to have settled this doctrine differently. This infer. ence is deduced, not from the point decided, but from some remarks of the Judge in giving the opinion. These were only intended to apply to a note for the payment of money, made payable to a payee or bearer. It was only to that point that the attention of the Court was directed in argument. The negotiable character of the note, was not made a subject of enquiry by either party. The plaintiff in error, claimed a reversal, on the ground, that the right of the origi nal payee did not appear, by the declaration, to have passed to the holder, by assignment, delivery or otherwise, and that ground being considered sufficient for the purpose, the judgment was reversed without further examination. In this case, the direct question is presented, whether such a contract as this, can be so transferred, as to authorize a third person to maintain a suit in his own name. Our unanimous opinion is, that no such right can be transferred. The judgment must be reversed, and judgment be given for the defendant.

RICHARDS v. FOULKE.

A justice who took an examination in a criminal prosecution, cannot in a subsequent action for malicious prosecution, testify to the facts sworn to before him.

This cause came before the Court, upon a writ of error to the Court of Common Pleas of Harrison county, and was adjourned for decision here, by the Supreme Court of that county.

The original action, was for a malicious prosecution, and the plaintiff in error, was the plaintiff in the cause. The plea was, not guilty; and at the trial, a bill of exceptions was taken, by the plaintiff, to the opinion of the Court, admitting certain evidence offered by the defendant, which is thus stated. "The plaintiff introduced Samuel Dunlap, Esq., the magistrate who received the complaint of the defendant against the plaintiff, issued his warrant, and recognized the plaintiff, as stated in the declaration, to prove the want of probable cause, who being sworn and examined in chief, the defendant offered to prove by said witness, on his cross examination, the facts testified by other witnesses than the defendant, on the examination by him held as a magistrate, on the complaint of said defendant, upon which, he ordered the plaintiff to be recognized." To this evidence the plaintiff objected: but the Court received it, and signed the bill of exceptions. There was a verdict and judgment for the defendant. To reverse which, the plaintiff brought this writ of error.

ant.

Goodenow and Bostwick, for plaintiff.

By the COURT.

The witnesses

The evidence admitted in this case, was clearly inadmissible. who testified before the justice should have been called to testify to the facts that they narrated before him. His recollections of what they stated upon oath, was of inferior authority to their own statements to the jury. The question to be decided, was, not the guilt or innocence of the plaintiff, but whether there existed a probable cause for the prosecution commenced against him by the defendThis the jury were required to decide, not upon the evidence given before the justice, but upon the facts of the case, and the defendant's knowledge of these facts. Of these facts they could best judge, by hearing the witnesses themselves. To substitute the relation of the justice, as to their testimony before him, was a violation of the plainest rules of evidence, that the best evidence within the power of the party should be given, and that secondary evidence shall never be admitted, unless it is made manifest, that that which is better cannot be obtained. The judgment must be reversed, and the cause remanded to the Court of Common Pleas for further proceedings.

WRIGHT v. BURCHFIELD.

If jurors separate, after agreeing upon a verdict, without leave, it is no ground for a new trial. The misbehaviour of jurors, in a civil case, which would render it necessary to disturb the verdict, should be of such character as to evince bad intentions.

This cause was adjourned from Starke county, upon a motion for a new trial, by the defendant, on account of the misbehaviour of the jury. The misconduct complained of was this: The jury were sent out in charge of an officer. They agreed upon a verdict, but the Court, having adjourned, they wrote their verdict and then separated, without leave of the Court. In the afternoon, when the Court met, the jury came in, and gave the written verdict to the clerk, but it was not received or read. They were then called as in other cases, and rendered their verdict from the box. The motion was made for a new trial, on the

ground of this misbehaviour.