1846. The Receivers of the Bank of Circleville v. Renick and others. IN BANK. the bank, in favor of Larimore, for $2,500. This check was Dec. Term, charged to Renick, and the money, in the bills of the bank, paid to Larimore, to exchange for currency, and the currency to be delivered to the bank. Seven days afterwards, Larimore sent to the bank $2,750, in bills of other banks. This amount was credited to Renick. The depositions of McCulloch and Doney prove that, when this $2,750 was transmitted to the bank, it was accompanied with a letter from Seymour G. Renick, inclosing his check for $4,000. The letter was dated the 22d of May, and the check, inclosed in it, the 17th of June, and not charged to him on the books of the bank until that date, though paid, as the cashier testifies he believes, some time before. The cashier and Doney both swear, they understood this money was to be exchanged for the benefit of the bank. This evidence is corroborated by the fact, that Larimore, afterwards, paid to the bank $2,000 in Chillicothe paper, for which he had exchanged a like amount of this $4,000 of the paper of the Bank of Circleville. It is true, in the settlement between Renick and the bank, in December, 1841, he gave his note for the money advanced to, and unpaid by Larimore. But the bank was, at this time, insolvent, and Renick had previously become so; and counsel very properly infer, that he then deemed it more convenient to his condition, that Larimore should stand as his creditor than the bank: the former was able to pay the latter could not. The depositions of both Seymour G. Renick and Larimore have been taken, but they are as directly in conflict as the bill and the answer; but laying Larimore's deposition aside, as incompetent from interest, it does not appear that any note or memorandum was taken by Renick for the money advanced to Larimore. On the contrary, it is sufficiently evident there was not. This fact is only to be accounted for on the ground, that the advance was not a loan, but that the transaction was exclusively for the interest of the bank, and so considered at the time. No man lends a large sum of money, for months, preserving no written evidence of the debt, or, at least, it is not the ordinary mode in which a The Receivers of the Bank of Circleville v. Renick and others. Dec. Term, 1846. banker transacts his business. On the other hand, where large IN BANK. sums are to be transmitted, or paper exchanged, for the benefit of another exclusively, nothing is more common; and we are therefore led irresistibly to the belief, from all the above facts, that this advance was not a loan, as set up in the answer. We arrive at this conclusion, even regarding the answer as strictly responsive to the bill, because, to the substantial facts, there is far more testimony than the rule in equity requires, in such cases, to establish it. Felix W. Renick appears, however, to be sorely troubled, for the reason, that this bank had not been legally organized. He defends on the ground, that a majority of the commissioners named in the charter did not attend to open the books for subscription to the capital stock. The evidence is, that four out of the seven in esse, were present. He claims again, in substance, that the charter was forfeited. In the absence of express provision, the forfeiture of the charter of a corporation can only be established by judicial action, and cannot be collaterally inquired into. He defends, also, upon the ground, that no commissioner was appointed by the Governor, as the charter required, to examine into the condition of the bank, count the funds in its vaults and report thereon to the Governor, who was to issue his proclamation, giving notice that the law was complied with, and without this, contends the bank had no legal existThe evidence is, the amount of capital stock required by law, was subscribed; the per centum called for thereon by the charter, before commencing business, was in the vault of the bank, in silver and gold, and application made for the appointment of a commissioner, which appears to have been disregarded. The bank then had done all on its part, either truly or falsely; it had performed every obligation demanded and necessary to its complete organization. That all this was not done in good faith, we are not judicially informed. Under such circumstances, we are by no means prepared to say, certainly not, as against those who admit its existence by the receipt of its funds and in transacting business with it as a cor ence. Spicer v. Giselman and others. IN BANK. poration, that they can deny it has acquired rights, as such, and Dec. Term, defeat its honest claims, for any act of omission of duty by 1846. the executive, if it be such. The cases referred to, as authorities, by this defendant's counsel, do not seem to us to apply. They are cases where the plea of nul tiel corporation has been sustained on the ground either of some condition precedent to the organization, to be performed by the corporation and omitted to be done, or where a forfeiture has been established by judicial sanction. Decree for Complainants. MINER SPICER, for the use of FREDERICK A. NASH, vs. It is error to sustain a general demurrer to an entire declaration, containing one good count. A joint action, under the 43d section of the act of 1831, "defining the duties of executors and administrators," (29 Ohio Laws, 229,) cannot be sustained against several heirs or devisees, where there is no joint contract, either express or implied. THIS is a WRIT OF ERROR directed to the Court of Common Pleas of STARK County. The original action was in assumpsit. The declaration contained three counts. The first count averred, that on the 29th day of December, 1835, Frederick Giselman, deceased, executed to the plaintiff his promissory note for $46, payable January 1, 1839, with interest; that said Giselman, on the first of September, 1839, died, without having paid the note; that on the 9th of September, 1839, administration upon his estate was granted to John Giselman, one of the defendants, by the Court of Common Pleas of Stark County; that on the 6th of September, 1842, said John Giselman filed his final account in the Spicer v. Giselman and others. Dec. Term, 1846. office of the clerk of said court; that at the April term there- 1 Bank. of, 1843, he, in due form of law, settled with said court, when there was found in his hands, as administrator, the sum of $469.51, which he was ordered to distribute according to law. It further averred, that after the granting of letters of administration, and before the filing of said final account, the said note was not presented to the said administrator for allowance and payment, and, therefore, was not paid, nor any part thereof; that more than five years had elapsed since the death of the intestate; that the defendants were the heirs at law and distributees of the intestate, and having received assets of the estate of said Frederick, had, by force of the statute in such case made and provided, become liable to pay the plaintiff the amount of money in the note specified, according to the tenor and effect thereof, and being so liable, promised, &c.. The second count was the same in substance as the first, and the third was the usual common count for money had and received, &c. The defendant demurred to the whole declaration, and the Court of Common Pleas sustained the demurrer and gave judgment for the defendants; to reverse which judgment, this writ of error was sued out. Hand & Nash, and Z. Snow, for Plaintiff in Error. Belden & Schaefer, for Defendants. BIRCHARD, J. This suit was instituted under the 43d section of the act of 1831, (3 Chase's Stat. 1784,) and the question is, can a joint action be sustained against all of the defendants? It is a general rule, that where there is no joint liability, there can be no joint action. At common law, this action could not be prosecuted with effect. If it can be done under the statute, it must be because the statute will bear no other construction; for it is manifest that to make one of several heirs liable to an amount equal to 1846. Spicer v. Giselman and others. IN BANK. all that had descended from his ancestor to a number of heirs, Dec. Term, simply because he had received a small portion of that ancestor's estate, would be unjust. The proposition is one at which the mind instinctively revolts. In a case where a prudent child, after the settlement of the estate, takes a small legacy, say of one hundred dollars, and the bulk of the estate is distributed to other legatees, to a large amount, who squander it, it would be hard indeed if a creditor, who has slept on his right for five years, could afterwards come into Court with a debt sufficient to sweep the whole estate of the decedent, and make the prudent legatee responsible for moneys which have been squandered by the improvident, and over which he had no control. A majority of the Court held, that the Legislature never intended such a result; and, if it were necessary, would unhesitatingly declare that, if they did intend it, they had not the capacity of accomplishing such intention. The constitution of the State, as well as principles of natural justice, have interposed insurmountable obstacles.. These several defendants, each in his own right, and in severalty as heir, took whatever was paid to them by the administrator, on the settlement of their ancestor's estate. Having so taken, they cannot be subjected to respond to any creditor of the deceased ancestor, in any form of action, to an amount beyond what each received. The 43d section of the statute, by implication, makes that the extent of the liability. But if this form of action can be resorted to, and a joint action can be maintained against all the heirs of an estate, or all the legatees of a testator, a joint judgment must bind all, and each must become subject to the entire payment. I hesitate not to say, that the doctrine which will produce such a result is so monstrous, that it is impossible to suppose that it lurks among the enactments of the statute. It is claimed that it is to be found in these words: "But such heirs or devisees shall remain liable to the full extent of the assets, by them received from the estate of their ancestor " or devisor, for the payment of all claims against the estate of |