boards of cen into a medical district, they shall apply to the board of censors of the society for medical or district to which they belong, to be set off into such district at a semi- districts to be annual meeting of said society, and said society may at their discretion set off made to the and erect the persons so applying or any part of them, not less than ten in sors. number, into a separate and distinct society, to be composed of residents of a contiguous territory, and the persons so erected and set off, shall be entitled to receive from the president of the board of censors of the society from which they are detached, a certificate attested by the secretary of said board, and under the seal of said society, expressing the territory thus created into a new district, and also the names of the applicants resident in said new district; and said certificate shall moreover express the time and place of the first meeting of said new society, for the purpose of electing their officers. 2. That no society erected by the act to which this is an amendment, Regulation of or that shall hereafter be erected under the provisions of this act, shall have fees prohibited. any power or authority to make any by-law or rule regulating or establishing the pay of physicians or surgeons. 3. That the ninth and tenth sections of the act to which this is an O. L. c. 416, in amendment, be and the same is hereby repealed. [Passed, February 22, part repealed. 1820.] CHAP. CCCCLXXXIV.—An act, supplementary to an act, establishing boards of commis- Repealed, Febsioners.* ruary 25, 1824; Be it enacted, &c. That in all cases where the recorder of any county in O. L. c. 611, § this state, shall have heretofore purchased, or may hereafter purchase any 22. blank book or books, for the use of his office, whereon to record deeds and other instruments of writing, he shall be allowed and paid therefor out of the moneys in the county treasury; and the commissioners of the respective counties in this state, are hereby authorized and required, to examine the accounts and vouchers of all recorders, for the purchase of the books aforesaid when presented; and if the commissioners or a majority of them, are satisfied that the accounts of such recorder are just and right, they shall thereupon issue an order upon the treasury of the county, for such sum as they may deem equitable and sufficient to pay said recorder for his trouble and expense, in purchasing said books. This act shall take effect and be in force, from and after the passage thereof. [Passed, February 24, 1820.] CHAP. CCCCLXXXV.-An act, making certain instruments of writing negotiable. + [IN FORCE.] 1. Be it enacted, &c. That all bonds, promissory notes, bills of exchange Description of foreign and inland, drawn for any sum or sums of money certain and made instruments payable to any person or order, or to any person or bearer, or to any person or made negotiaassigns, shall be negotiable by endorsement thereon, so as absolutely to trans- ble. fer and vest the property thereof, in each and every endorsee successively; but nothing in this section shall be construed, to make negotiable any such bond, note or bill of exchange, drawn payable to any person or persons alone, and not drawn payable to order, bearer or assigns. 2. That any endorsee, to whom any such bond, note or bill of exchange, Endorsee may made negotiable by the preceding section, is made payable by such endorse- sue in his own ment or endorsements, may in his own name, institute and maintain, an action name. on such bond, note or bill, for the recovery of the money due thereon, against the maker, drawer or obligor: or against the endorsee, having first used due diligence to obtain the money of the drawer, maker or obligor. ‡ * See O. L. c. 209, 315, 403, 451. + See O. L. c. 214, from which this act does not differ materially, except in withholding from notes payable in property the character of negotiable paper; and in attempting to fix with some degree of precision within what time payment shall be demanded of the maker, drawer or obligor in order to charge the endorser. An error will be observed in § 1 of c. 214, which crept into the new edition from the original imprint. The word 'or,' at the end of the ninth line should be stricken out, and inserted between writing' and 'against' in the eleventh line. Where orders are drawn agreeably to the militia laws, by the colonel on the paymaster of a regiment, and assigned by the payee to third persons by endorsement, no action can be maintained by the assignee against the endorser; for the orders are payable out of a particular fund to which alone those beneficially interested must look for payment. Apart from this objection, the Proceedings on bills endorsed after day of payment. 3. That if any such bond, note or bill of exchange, shall be endorsed after the day on which it is made payable, and the endorsee shall institute an action thereon, against the maker, drawer or obligor, the defendant shall be allowed to set up the same defence that he might have done, had the same action been instituted in the name, and for the use of the person to whom the said bond, note or bill, was originally made payable. orders in the case where this principle is laid down, were not negotiable under the statute, for want of proper words. (Smurr vs. Forman, 1 O. R. 273.) Notes payable in property to A or bearer, cannot be so assigned as to enable the assignee to maintain an action in his own name. They are not negotiable under the statute, nor at common law : nor will the presence of the words or bearer' enable the holder to sue in his own name : though, it seems, that where a note for money is made payable to A, or bearer,' the bearer may sue in his own name without any endorsement; but he must aver in his declaration and prove on the trial, that the note was actually delivered to him for a valuable consideration. (Byington vs. Geddings, 2 O. R. 228. Rhodes vs. Lindly, 3 O. R. 51.) Notes under seal, though executed in blank, for the accommodation of the payee, and filled up after signing and sealing, by the payee, are to be regarded as commercial paper, and if negotiated before due, the bona fide holder may recover against the maker, who shall not be allowed to set up by way of defence an agreement between himself and payee, that the notes should be filled up for a much less sum than is expressed upon their face. Such a breach of confidence on the part of the payee, cannot affect the liability of the maker to the innocent holder. (Bank of St. Clairsville vs. Smith and others, 5 O. R. 222.) Where the beneficial interest in notes, bonds, etc. not negotiable, or not endorsed, is in a person not entitled to sue in his own name, it is usual in Ohio, to sue in the name of the original obligee or payee, for the use of the parties beneficially interested. In such cases, the suggestion in the declaration, that the nominal plaintiff sues for the use of a third person, will justify the officer in paying the proceeds of the judgment to the person designated: and it is not necessary to prove on the trial, an actual assignment of the subject of the action to the person for whose use the suit is brought. (Scott vs. Westlake, 2 O. R. 24.) A declaration on a common promissory note in the same form as on a specialty-setting out the notes with sufficient certainty, and omitting the usual averments of indebtedness, liability, assumption and demand-is sufficient. (Mors vs. McCloud, 2 O. R. 6.) In an action on a promissory note, the defendant is not entitled to oyer, and of course a profert is unnecessary. When, therefore, an action is brought upon a mutilated note, it may be declared upon as entire, and proof may be given on the trial of the destroyed part. (Duckwall vs. Weaver, 2 O. R. 15.) An assignment endorsed upon a note, when the note is retained by the assignee in his own possession, until his death, vests no interest in the assignee, though the note be subsequently delivered to him by the executors of the assignor. (Clark vs. Boyd, 2 O. R. 60.) No action can be sustained on a promissory note, the sole consideration of which is an agreement on the part of the payee, not to prosecute the maker for felony. (Roll vs. Raguet, 4 O. R. 418.) In an action upon the endorsement of a promissory note, guarantying payment by the maker of the note, the declaration must aver the consideration upon which the endorsement was made; and the guarantors cannot be charged, unless payment is demanded of the maker, when due, and notice of nonpayment be given to the guarantors. (Greene vs. Dodge and Coggwell, 2 O. R. 439.) When one of two partners, without the knowledge or consent of the other, substituted the partnership for his individual endorsement, on an accommodation note, it was held, that he was individually liable to his copartner for any consequent loss; and that this liability as between the partners was not changed by any subsequent recognition or payment of the endorsement by the firm. (Smith vs. Loring, 2 O. R. 467.) When the maker of a promissory note removes from the state where he resided at the time of making it, into another state, the holder is not bound to make a demand of the maker in order to charge the endorser. In this case, where a verdict had been found for the plaintiff, on proof that the endorser resided in the country, nine miles from the city, but spent part of his time in the city, and was accustomed to receive letters and messages at a particular place in town, through the letter carrier and otherwise; and that notice of nonpayment was put into the city postoffice, directed to him, the court refused a new trial, though no proof was given by the plaintiff that there was no postoffice nearer to his country residence, than that of the city. (Gist vs. Lybrand, 3 O. R. 319.) In an action on a note or bill payable at a certain time and place, it is not necessary to aver a demand of payment, in order to charge the maker or acceptor. It lies on the defendant to show that he was ready at the time and place named in the note. If he can show this, his promise is not broken: it is a sufficient defence to the action. The duty to pay the money remains; but no action can be sustained to recover it until a subsequent personal demand be made. It must be noted, however, that if the declaration contains an averment of demand, it must be proved, though immaterial. (Conn vs. Gano, 1 O. R. 484.) 4. That if any such bond, note or bill of exchange, shall be endorsed Proceedings on on or before the day on which the same is made payable and the endorsee bills endorsed shall institute an action thereon, the defendant may give in evidence at the before the day trial, any money actually paid on said bond, note or bill of exchange, before of payment. the same was endorsed or assigned to the plaintiff, on proving that the plaintiff had notice of the said payment, before such endorsement was made and accepted. considered due 5. That if any endorsee of any bond, note or bill of exchange, made Demand made negotiable by this act, on trial of any suit instituted thereon, against any on the day of endorser, shall prove a demand made of the maker, drawer or obligor, of such payment, to be bond, note or bill of exchange, at the time the same became due, or within a reasonable time thereafter, it shall be adjudged due diligence, under the diligence. second section of this act, unless by the express terms of the endorsement, the plaintiff was bound to prosecute the maker, drawer or obligor, or use other means to procure payment from the maker, drawer or obligor. || 6. That the act, making certain instruments of writing negotiable, O. L. c. 214, passed January twenty-fifth, eighteen hundred and ten, be, and the same is repealed. hereby repealed: Provided, nothing in this act shall be so construed, as to affect any suit now pending, on any bond, note or bill of exchange, made negotiable by said act hereby repealed, nor to affect the right of any payee, obligee or endorsee of any bond, note or bill of exchange, drawn or executed previous to the taking effect of this act. [Passed, February 25, 1820.] CHAP. CCCCLXXXVI.--An act to provide for the proot and acknowledgment of deeds and other instruments of writing.* Repealed, Feb. deeds. 1. Be it enacted, &c. That when any man or unmarried woman, above the age of twenty-one years shall, within this state execute a deed, mortgage or other instrument of writing, by which any lands, tenements or heredita- thenticating ments lying and being within the same, shall be conveyed in whole or in part, or otherwise affected or incumbered in law, such deed, mortgage or other instrument of writing, shall be signed and sealed by the grantor or grantors, maker or makers, and such signing and sealing shall be acknowledged by him or them, in the presence of two subscribing witnesses, who shall attest the acknowledgment of such signing and sealing; and also be acknowledged before a judge of the court of common pleas, or a justice of the peace, who shall certify such acknowledgment on the same sheet, on which such deed, mortgage or other instrument may be printed or written, by subscribing his name and affixing his seal to said certificate of acknowledgment. 2. That when a husband and wife (she being eighteen years old or Manner of acupwards,) shall, within this state execute any deed, mortgage or other instru- knowledging deeds. ment of writing, for the conveyance or incumbrance of the estate of the wife, or her right of dower to any lands, tenements, or hereditaments whatsoever, such deed, mortgage, or other instrument of writing, shall be signed and sealed by the husband and wife, and the signing and sealing thereof shall be acknowledged by them in the presence of two subscribing witnesses, who shall attest the acknowledgment of such signing and sealing, and also be acknowledged before a judge of the court of common pleas, or a justice of the peace, and the judge or justice taking such acknowledgment, shall examine the wife separate and apart from her said husband, and shall read or otherwise make known to her the contents of such deed, mortgage or other instrument of writing, and if upon such examination, she shall declare that she voluntarily and of her own free will and accord, without fear or coercion of her husband did, and now doth acknowledge the signing and sealing thereof; the said || In a suit by an endorser against the maker of a promissory note, the question of due diligence when the facts are not disputed, is one of law, to be decided by the court. (Davis vs. Herrick, 6 O. R. 66.) When the facts are contested, the question of law becomes mixed with fact, and is for the decision of the jury, under instructions from the court upon the hypothetical state of facts claimed to be proved. (Ibid.) As to negotiable paper strictly commercial, such as that which, on its face, is negotiable at banks, the statute of Ohio makes no change in the rule of the law merchant. (Ibid.) A demand of the maker of a negotiable note, and notice on the ninth day after the note arrived at maturity, is not the use of due diligence to charge an endorser. (Ibid.) *See O. L. c. 430. judge or justice shall certify the same, together with the acknowledgment of the husband on the same sheet on which such deed or mortgage or other instrument, shall be printed or written, subscribing his name and affixing his seal to said certificate, and all instruments of writing, executed as is provided by this and the first section of this act, shall be good and valid in law. Deeds may be 3. That all deeds, mortgages and other instruments of writing for the made, &c. in conveyance of lands, tenements and hereditaments, situate, lying and being another state within this state, which hereafter may be made and executed and acknowland recorded in edged or proved in any other state, territory or country, agreeably to the laws of such state, territory or country, or agreeably to the laws of this state, such deed, mortgage or other instrument of writing shall be valid in law. this. Time allowed deeds. 4. That all deeds, mortgages and other instruments of writing, executed for recording agreeably to the first and second sections of this act, shall be recorded within six months from the date of the same, within the county wherein such lands, tenements and hereditaments are situate; and all deeds, mortgages and other instruments of writing, executed agreeably to the third section of this act shall be recorded within six months from the date of the same, within the county where such lands, tenements and hereditaments shall lie, and all such deeds, mortgages, or other instruments of writing, executed, acknowledged, and proved and recorded as aforesaid, shall be good and valid in law; and if any deed, mortgage, or other instrument of writing as aforesaid, shall not be recorded within the time hereinbefore specified, such deed, mortgage or other instrument of writing, shall be considered fraudulent against any subsequent bona fide purchaser or purchasers, without knowledge of the existence of such former conveyance: Provided, that such conveyance may be recorded after the expiration of the time herein required, and shall from the date of the record be notice to any subsequent purchaser or purchasers. This act not to affect former conveyances. Manner of authenticating powers of attorney; powers of attorney may be revoked. Powers of attorney to be § 5. That all deeds, mortgages, or other instruments of writing as aforesaid, for the conveyance of any lands, tenements or hereditaments situate, lying and being within this state, which shall have been executed and acknowledged or proven previous to the taking effect of this act, whether executed within this state agreeably to the laws thereof, or any other state, territory or country, agreeably to the laws of such state, territory or country, shall be admitted to record, and from the date of such record shall be as good and valid in law, against any subsequent purchaser or purchasers, as if the act, entitled an act, to provide for the proof and acknowledgment of deeds and other instruments of writing, passed January thirtieth, eighteen hundred and eighteen, had not been repealed. 6. That all powers of attorney authorizing the sale and conveyance of lands, tenements or hereditaments within this state, shall be acknowledged and certified in the same manner as is required in the case of deeds, mortgages and other instruments of writing; and when the estate of the wife is to be conveyed, or relinquishment of her dower shall be required in lands, tenements or hereditaments intended to be sold or conveyed, it shall be competent for the wife to join the husband in the execution of a power of attorney, and relinquish her estate or right of dower, in the lands, tenements and hereditaments, intended to be conveyed by virtue thereof, in the same manner as is required in the case of deeds, mortgages and other instruments of writing, and the title made by virtue of such power of attorney, shall include the name of the wife and be good and valid in law, and divest the wife of her estate or right of dower to the lands, tenements and hereditaments conveyed thereby, as effectually as if she had signed and acknowledged such deed, mortgage or other instrument of writing, or had conveyed her estate or relinquished her right of dower, to the premises therein mentioned: Provided, that the wife may at any time revoke such power of attorney, so far as it relates to her estate or right of dower, previous to the sale of the lands, tenements, and hereditaments intended to be sold and conveyed by such power of attorney, by having such revocation recorded in the county or counties wherein such lands, tenements and hereditaments may be. 7. That all powers of attorney, authorizing the sale of any lands, tenements or hereditaments, or for the making of any deed, mortgage, or other recorded before instrument of writing, for the conveyance or incumbrance of any lands, tenements or hereditaments, in this state, shall before such sale, conveyance or incumbrance takes place, be recorded in the recorder's office of the county wherein such lands, tenements or hereditaments may lie; and that all powers acted on. of attorney proven, acknowledged and recorded, according to the provisions of this act, shall be received in evidence in all courts of record within this state, in the same manner and under the same rules of evidence as deeds, mortgages and other instruments in writing are received and admitted in evidence by virtue of this act. 8. That each recorder shall be authorized and required to procure and County recorkeep a seal of office, and all copies of records shall be certified by such ders to procure recorder under his hand, to which certificate he shall affix his seal of office if and keep a seal of office. thereunto required; and all copies of records certified under the hand and seal of the recorder, in the manner herein specified, shall be received in all courts as evidence of the existence of such records. 9. That the act, to provide for the proof and acknowledgment of deeds and other instruments of writing, passed January thirty, one thousand eight hundred and eighteen, be, and the same is hereby repealed. This act to take When to take effect and be in force from and after the first day of June next. [Passed, effect. February 24, 1820.] of soil. CHAP. CCCCLXXXVII.--An act, for granting licenses and regulating ferries, taverns Amended; O. and stores. * L. c. 565. 1. Be it enacted, &c. That no person shall be authorized to keep a ferry on Repealed, Feb. or across any of the waters running through or bounding this state, unless he 6, 1924: O. L. c. 632, 14. shall have first obtained a license therefor, from the court of common pleas of Persons prothe proper county whilst in session, or a permit from the clerk thereof, in case hibited from of the recess of the court, every application for a new ferry shall be by ferrying withpetition, signed by at least twelve householders of the township or townships, out license; in the neighborhood where such ferry is proposed to be kept, the applicant mode of applishall advertise his intention to make application to the court of common pleas cation for ferry for a license, in three of the most public places within the township or town- license; proviso ships, at least thirty days before the sitting of the court, to which he intends as to the right to apply; and also keep up such advertisement on the courthouse door, during the two first days of said term: Provided, that the person or persons owning or possessing the lands on both sides of any stream, where a ferry is proposed to be erected, shall have the exclusive right to a license for a ferry at such place, if by him or them applied for; and when the opposite banks are owned by different persons, the right to the ferry shall be mutual, but if the owner or owners of lands on the banks do not apply for a license, and the court be satisfied that a ferry is necessary at that place, in consequence of a state or county road crossing there, they may grant a license to any person applying therefor, but in every case where either of the landings shall not be on a public highway, the consent of the owner of the ground shall first be obtained in writing, before the court shall grant a license: Provided also, that nothing herein contained, shall be so construed as to prevent any person from ferrying passengers across a small stream, in time of high water; and the court of common pleas are hereby authorized to direct their clerk to give to any applicant a permit for that purpose, when in their opinion the stream is too small to justify the expense of a license. and attendants; penalty for neglect; manner of re 2. That every person obtaining a license to keep a ferry, shall provide Proprietor to and keep in complete repair a good and sufficient boat for the safe conveyance furnish boat of persons and property, and (when the river or creek over which the ferry is kept is passable) shall with a sufficient number of hands to work and manage the boat, give due attendance from daylight in the morning until dark in the evening, and shall moreover at any hour of the night or day (that the creek or covery; penalty river can be passed) when called upon, convey the United States mail or other for receiving public express, across said ferry; and if any person, having obtained a license improper rates. as aforesaid, shall fail or neglect to perform the duties herein enjoined or any of them, the person so offending shall forfeit and pay for every such offence, a sum not exceeding five dollars, to be recovered before any justice of the peace of the proper township, at the suit of any person prosecuting for and making due proof of such failure or neglect; and if any keeper of a ferry as aforesaid, shall demand and receive a higher rate or sum for ferriages than shall be allowed by the court of common pleas of the county wherein such ferry is kept, the person so offending shall forfeit and pay for every such offence, a fine not exceeding ten dollars, recoverable before any justice of the peace of See O. L. c. 222, 434, 454. 51 VOL. II. |
