Crawford v. Swearingen. Dec. Term, 1846. Let us inquire what effect this release could have upon the IN BANK. bill, admitting that its terms were intended to embrace it. The answer is plain. The bill in Wolcott's hands could not be affected by any discharge of Swearingen. He could not release the rights of Wolcott. This being so, the law will not raise the presumption that he intended, or that Forse expected the release would operate a discharge. We must look, then, to the words contained in the release. The terms, "action or actions," will not embrace the bill; nor will "cause or causes of action," for the reason that there was, by reason of the bill, neither action or cause of action then subsisting against Forse, and in favor of Swearingen. The same may be said of "claim or demand." As used, those terms comprehended only such as were then, present, subsisting claims or demands, held by the releasor against the releasee. The instructions, then, effected what was the actual intention of the parties, as shown by the evidence, and was consistent with the force and effect of the language of the release, construing the words according to the common acceptation of their meaning. But we must look to decided cases, in order to determine whether we have given to them all the force they will bear, in a legal sense. The counsel for the plaintiff in error submits, that we have not. In order that our opinion may be as satisfactory as can be expected, I will notice, briefly, the several positions taken, and the authorities referred to. The first claim is, that, if a holder of a bill discharges the acceptor or even gives time for a day, (on a valuable consideration,) he thereby discharges all intermediate parties on the bill in his hands, unless it is done with their consent. We unanimously assent to this proposition, and need not recur to authorities upon the point. Yet, it moveth very little towards establishing the position, that the court below erred; because Swearingen was not the "holder of the bill;" it was not "in his hands" at the delivery of the release, and was not discharged by it. IN BANK. Dec. Term, 1846. Crawford v. Swearingen. Again-it is contended that Swearingen holds the bill, as of his original title, precisely as if the bill had never been out of his possession, and, otherwise, that he has no claim. We think this is not precisely accurate, and, therefore, deny the position, and assert that the authorities sustain us. The cases which are relied upon by plaintiff in error are, first, that of Scott v. Lifford. It merely decides, that a release by the drawer, of the acceptor, by words general, retrospective and prospective in their terms, is a discharge of the acceptor, and made him a competent witness for him, and that he would have no new cause of action after taking up the bill. The release in Scott v. Lifford, was, of all actions and causes of action which he then had or might thereafter have, by reason of any thing or matter whatsoever, from the beginning of the world to the date of the release. That, most certainly, was sufficient to embrace the acceptance, and the supposed fund upon which it was drawn. They were past matters, which must be relied on after redeeming the bill. In Coe v. Hutton, the terms of the release were equally comprehensive, and were, therefore, held to embrace, not only present and subsisting causes of action, but any future actions growing out of any past and prior act, matter or thing. Cuyler v. Cuyler, 2 Johns. Rep. 187, is an authority, so far as applicable, which would sustain the right of Swearingen to recover on the common counts upon the implied contract, (p. 188,) but, for want of which common counts, it would seem that action was not sustained. Judgment Affirmed. Leggett v. The State of Ohio. GEORGE LEGGETT vs. THE STATE OF OHIO. For the purpose of proving a bargain and sale, the declarations of the parties thereto, at the time, are a part of the res gesta, and competent evidence for the accused, to rebut the inference of guilt arising from the possession of stolen property. THIS is a WRIT OF ERROR to the Court of Common Pleas of TUSCARAWAS County. The defendant below was indicted, and, at the October term of said Court, 1846, tried and convicted of stealing a certain flea-bitten grey mare, the property of one Henry W. Smith, and sentenced to imprisonment in the Penitentiary for the term of three years. The plaintiff in error now seeks, by this writ, to reverse the said judgment and proceedings. On the trial, a bill of exceptions was taken, which is made a part of the record; and it appears, amongst other things, that the State gave evidence tending to prove the loss of the mare on the 14th or 15th of June, 1845. The plaintiff in error, to maintain the issue on his part, called a witness, who testified that about the middle of June, 1845, at Salineville, in the county of Columbiana, in the State of Ohio, one Delany then and there offered to trade to the witness a flea-bitten grey mare, which the plaintiff in error claimed was the one described in the indictment; and that, on that day, the plaintiff in error came to Salineville, traveling with a companion, in a sulky, and driving a black or dark brown mare; and the State having previously given evidence that, the evening before the mare mentioned in the indictment was taken, the plaintiff in error was traveling in such manner, with such black or dark brown mare, the plaintiff in error then asked the witness, who had already stated that Delany bantered the plaintiff in error to buy said grey mare, at the time above mentioned, at Salineville, to state what was said by said Delany and the plaintiff in error, at the time, as to the terms of said sale, and what was said by said Delany and the plaintiff in error, at the time of the transaction, as to the fact IN BANK. Dec. Term 1846. Leggett v. The State of Ohio. Dec. Term, 1846. IN BANK. Whether said sale of said grey mare was complete. To this evidence, so offered, the counsel for the State objected; and the Court ruled, that it was incompetent for the accused to give evidence to the jury of conversations had between him and Delany; that the plaintiff in error might prove any facts connected with the sale, but that his and Delany's declarations could not be detailed to the jury to prove such sale was made. Exception was taken to this opinion of the Court, and the counsel for the plaintiff in error have assigned the same as error on the record. Hume & Bingham, and D. K. Carter, for Plaintiff in error. H. Stanbery, (Attorney General,) for the State. WOOD, C. J. The question presented is one of evidence. There are two bills of exception in the record; but the same principle, precisely, is involved in cach, and both are, therefore, concluded by a decision upon either. The statement of the case is extracted from the last bill of exceptions in the record, and raises but a single point. Did the Court of Common Pleas err in rejecting the evidence offered to the jury by the Plaintiff in error? The case shows the prosecution had proved, that the night before the mare was taken, the plaintiff in error was traveling, in a sulky, with a black or dark brown mare, and, at Salineville, Delany bantered him to buy a flea-bitten grey, which the plaintiff in error claimed to be the identical mare for the stealing of which he was on trial. The State had proved him in the possession, of course, of the one described in the indictment, and it became necessary for the accused to explain that possession, and was directly material to the issue before the jury. To do this, he did not offer his own declarations that he had bought the mare, as one thing inter alios acta, as the Court seemed to suppose, but the conversation between both himself and Delany, by which it was claimed a bargain and sale was completed, and the ownership Lessee of Wilkins' Heirs v. Huse and others. of the mare transferred to the accused, and his possession, IN BANK. therefore, innocent. It was the fact that such a contract was made, that was material for the plaintiff in error to prove, and the Court admitted its competency, but ruled against the mode in which it was sought to be established. We think the Court of Common Pleas erred in rejecting this proof. If it was competent to show a contract of bargain and sale, which would explain the inference of guilt the law raises from possession of the goods, when a larceny has been committed, and which is undoubted, the best evidence of the agreement was the declarations of the parties to it at the time, for such declarations constituted the contract itself. When they were proved, the bargain was complete. Such declarations, under such circumstances, are a part of the res gesta, and equally admissible with any act done. This rule is supported by unquestionable authority. Ros. Crim. Ev. 23, 24; 1 Phil. Ev. 233; 2 Phil. Ev. (note,) 592. The judgment and proceedings of the Court of Common Pleas must be reversed, and a new trial directed. Dec. Term, 1846. LESSEE OF WILKINS' HEIRS vs. HUSE and SWINDle. Under the Occupying Claimant law, if the occupying claimant elect to convey the land and receive its value, as assessed by the Jury, it is necessary that he tender a deed with covenant of warranty; but it is not necessary that the deed should be made by himself, provided it convey the title. In such case, the occupying claimant is not entitled to interest upon the valuation, until his election is made. THIS case was reserved for decision here, from the County of LICKING. It is an action of ejectment, for a certain parcel of land, in Licking county. In October, 1840, judgment was entered in favor of the plaintiff, in the Supreme Court of Licking county, |