Dec. Term, 1846. Williamson's Administrator v. The Administrator of Rees and others. IN BANK. Kirby's Rep. 203; 1 Root's Rep. 502; 10 Johns. Rep. 216; Kirby's Rep. 174; 8 Pick. Rep. 122; 10 Serg. & Rawle's Rep. 75, 81; 3 McCord's Rep. 340; 5 Har. & Johns. Rep. 1; 6 Conn. Rep. 170, 174-5; 5 Har. & Johns. Rep. 51; 3 Cowen's Rep. 623; 1 Esp. N. P. C. 135; 3 Johns. Rep. 536; 10 Johns. Rep. 66; 3 Wend. Rep. 397; 2 Wash. C. C. Rep. 388; 16 Serg. & Rawle's Rep. 120; 6 Pick. Rep. 464; Poth. on Obl. 257. But, independent of the statute of limitations, the law, after such a lapse of time, will presume payment. 6 Munf. 532; 3 Day's Rep. 289; 1 McCord's Rep. 145; 8 Conn. Rep. 168; 1 Bailey, 172; 5 Ver. Rep. 236; 3 McCord's Rep. 340. And these defendants being thus discharged, from all liability as to the payee of the note, by operation of law, that liability cannot be restored by the act of Williamson, in paying the note. This presumption of payment is a presumption of law, and stands ever as a perfect barrier between the person seeking to enforce the remedy and him against whom it is sought to be enforced; in this case, as well against Williamson as it would against Putnam himself. It would be absurd to hold them. bound to pay a debt indirectly, which they did not owe directly. Whatever discharges the principal will discharge the contingent collateral liability of the surety. When Kratzer, the principal, ceased to be liable, by operation of the statute, or presumption of payment ipso facto, his sureties were discharged, and that discharge is as binding and operative upon all concerned as though they had been discharged by the direct act of the creditor himself. Theob. on Pr. & Surety, 204; 3 Dana's Rep. 160. BIRCHARD, J. Several questions, growing out of the facts of this case, have been argued with much skill by counsel. In disposing of the subject, we shall notice only those which seem to be conclusive of the merits of the case. And, first, can this bill be sustained on the ground that complainant has paid Williamson's Administrator v. The Administrator of Rees and others. Dec. Term, 1846. money for the use of the defendants, as co-surety, or otherwise? IN BANK. This depends upon the question whether, at the time of payment, any claim for a portion, or the whole of the sum due, could have been enforced by Putnam against either of them. For where there is no direct, there can be no indirect liability. It seems that Putnam, in 1842, made the attempt to collect of Rees and Hampson, and went so far as to ascertain that the plea of the statute of limitations, passed in 1804, was not a bar, and, by a division of this Court, that the subsequent statutes were not operative upon the claim; 12 Ohio Rep. 21. The cases progressed no further. It remains for us to consider whether, upon the facts now in proof, any recovery could have been obtained, legally, against any of the parties. The obligation was due the 7th of December, 1807, more than thirty-eight years ago. Putnam treated it as a several contract, in 1810. The election he then made was conclusive upon him. As to him, and all claiming under him from that time forward, the right which he had against each signer, was the same as if the name of each had been affixed to a separate note for the same amount. It was out of his power, having thus elected to treat the contract as several, to come into Court at any time thereafter and sue upon it as a joint obligation. Without the aid of any statute, it seems to us that either Rees, Friend or Hampson, might have relied successfully upon the great lapse of time, as raising the presumption that their obligation had been in some way discharged. At law, twenty years was sufficient to raise the presumption of payment. These presumptions are of such a character as naturally to increase in force, in proportion as the years increase during which they have run. And in this case it would, without the aid of evidence sufficient to rebut it, have been a complete bar eighteen years ago. Now, what is relied upon to do away the force of the legal presumptions that have been thus. long increasing in strength? The fact that Williamson alone was sued, and judgment recovered, in 1814, and that this judgment against him was not paid off till 1845. Besides this there is Williamson's Administrator v. The Administrator of Rees and others. IN BANK substantially nothing. But he had paid $1200, in 1817, and, Dec. Term, after that, more than twenty years elapsed before any of these 1846. parties were called on for payment. What caused such a delay? Why was the claim left sleeping till all those who, when living, knew the whole and true history of the transaction were in their graves? The papers furnish no satisfactory answer, and, for want of that, a court of law should have said, "Let the claim sleep on forever;" that "the inference is, that if it had been prosecuted in due time, some of its cotempora'ries would have been able to furnish evidence showing that it had been paid, discharged, released, or in some way arranged between the parties." It may be that Williamson, for a good consideration, assumed the payment of the entire debt prior to 1810. If so, it could not be expected that the administrators or heirs of his deceased coöbligors, after thirty-six years, would be able to make it appear. It is contrary to all human experience to expect any proof from them, or to imagine that they could by any vigilance establish the fact. Yet the parties, while living, acted as we might expect them to act if such were the case. In this connection let us see how conclusive against the presumption, arising from lapse of time, would be the fact that the separate suit had been prosecuted against Williamson. From 1817, the time of the last payment by him, no movement was made towards a further collection. Had a separate suit been instituted as early as 1828, the judgment and proceedings upon it would not have tended to weaken the legal presumption of payment. On the contrary it would, in our opinion, have added to its strength, by showing a sufficient reason why Putnam suffered the residue of that judgment to become dormant. He permitted to happen precisely what would have happened on payment of the residue of the note by one of the other makers. We hold, then, that in 1845, when the $5661 was paid to Putnam, it was not paid on the account of the co-suretics, or on a then subsisting joint obligation; that all such relations between the parties had long before become extinct and ceased Powell v. The State of Ohio. Dec. Term, 1846. to exist; that the money paid was in discharge of complain- IN BANK. ant's sole liability, and gave him no right to call upon respondents for contribution. Bill dismissed, with costs. DAVID A. POWELL VS. THE STATE OF OHIO. During the term of the Court of Common Pleas, a single Judge of that Court has THIS is a WRIT OF ERROR to the Court of Common Pleas of HAMILTON County. The action below was debt upon a recognizance, conditioned that one John K. Trombo should appear and answer to an indictment pending against him in that Court for passing counterfeit money. The penalty in the recognizance was $1000, and it was alledged in the declaration that it was taken before Robert Moore, one of the Associate Judges of that Court. 1 The defendant below interposed four pleas. The second plea averred that when the recognizance was taken the Court of Common Pleas was in session, and had jurisdiction to admit persons to bail-wherefore said Moore, as one of the Judges of said Court, had no authority to take the recognizance. To this plea the plaintiff demurred, but the Court of Common Pleas overruled the demurrer and gave judgment for the plaintiff, to reverse which this writ of error is prosecuted. Charles Fox, for Plaintiff in Error. H. Stanbery, (Attorney General,) for the State. IN BANK. Dec. Term, 1846. Powell v. The State of Ohio. READ, J. The power to bail persons in custody charged with crime, is an original inherent power in the Court of Common Pleas. The right to have this power exerted in all cases, unless for capital offences, where the proof is evident or the presumption great, is secured to all persons by the constitution. The power to bail does not belong to a single judge, unless conferred by express statute. The power to discharge persons in custody charged with crime, is expressly conferred upon single judges, within the limits of their respective jurisdiction, by the 20th section of the act directing the mode of trial in criminal cases. The Court of Common Pleas has original jurisdiction over all crimes and offences. All persons in custody for trial before said Court, have the right to demand to be let to bail. The power to let to bail belongs to the Court of Common Pleas, and has also been conferred upon single judges by statute. Was it the intention of the Legislature to limit, impair, or in any sense to interfere with the power to let to bail vested in the Court? If not, it is our duty so to construe the statute conferring the power to bail upon single judges, as not to produce, or, under any circumstances, to admit such result. If we should hold that a single judge could let to bail, when the Court had fixed the amount of the recognizance and passed upon the sufficiency of the sureties, in a less sum and with other sureties, it would be interfering with, the power of the Court. Indeed it would be depriving the Court of the right to exercise the power, in the particular instance, by withdrawing from its control the object of the power. Such construction would induce this strange result, that the entire Court having fixed the terms of bail, a single Judge of the same Court could step down from the bench and discharge upon different terms. The truth is, the Legislature could never have intended any such thing. The well recognized and necessary principle is, that during term time, the power of the Court exhausts that of each separate Judge, over all matters proper for the determination of the whole. Court. The Legislature did |