Sapp v. Laughead et al.

circumstances, we think the bill in question comes clearly within the spirit of the statute; it was drawn on a mercantile " person without the jurisdiction of this state."

We are not aware of any authorities with which this opinion conflicts. On the contrary, in Kentucky and in Indiana, a still more liberal construction has been given to statutes similar to our own on this subject. Wood v. Farmers and Mechanics' Bank of Lexington, 7 Mon. 281; The State Bank v. Bowers et al., 8 Blackf. 72. In the former of these cases, a bill of exchange drawn in Kentucky, and addressed to Mr. James I. Wood, New Orleans, was held to be a bill drawn upon a person out of the state, and statu- ]174 tory damages were given accordingly; although the drawee, for years before and after the date of the bill, was a resident of Kentucky. And in the latter case, a bill drawn by a person resident in Indiana, payable in New Orleans, and directed to himself, in that city, was held, upon protest for non-payment, to come within the equity of the statute. The case of Grimshaw v. Bender, 6 Mass. 157, referred to by Judge Hitchcock in 8 Ohio, 292, simply decides that the domicil of a mercantile house, upon which a bill of exchange is drawn, determines the foreign or inland character of the bill.

As to the other points on which error has been assigned, they have not been discussed by counsel for plaintiff. We do not suppose they are relied upon; and it may be sufficient to say, that we think they are not well taken.

The judgment of the Superior Court is affirmed.

BARTLEY, C. J., and SWAN, BRINKERHOFF, and BOWEN, JJ., concurred.

WILLIAM R. SAPP v. JOSEPH LAUGHEAD AND OTHERS.

A notice of appcal given at the time of the rendition of a judgment, on the 12th day of March, 1852, in the common pleas, and in due form entered on the records of the court, and standing there as such notice in the case on the 23d of the same month, when the law regulating appeals from the common pleas to the district court was enacted, operated as a sufficient compliance with the law as to notice of the intention of the party to appeal. Where, in an action of assumpsit, there is an issue by the plea of non-assumpsit,

Sapp v. Laughead et al.

and also on a special plea of accord and satisfaction, a verdict of a jury finding for the plaintiff on the first issue, is sufficient, inasmuch as the the general issue covers the ground of defense set up by the special plea.

PETITION in error, to reverse the judgment of the district court of Holmes county.

175] The original proceeding was an action of assumpsit, instituted in the common pleas, by the defendants in error, against the plaintiff in error. The declaration contained a special count on a promissory note, and the common counts; to which the plaintiff in error plead non-assumpsit, and also two special pleas, setting up, in different forms, accord and satisfaction.

In the court of common pleas the case was submitted to the court, and judgment rendered in favor of the plaintiff in error. An appeal was taken to the district court, where the cause was submitted to a jury, and verdict for defendants in error, for the amount of the promissory note, with interest.

After verdict the plaintiff in error moved to dismiss the appeal, which motion was overruled, and judgment rendered on the verdict. It is now assigned for error:

1. That the court erred in overruling the motion to dismiss the appeal.

2. That the jury did not pass upon all the issues made by the pleadings in the case.

W. H. Smith, for plaintiff in error.

M. Hoagland, for defendants in error.

BARTLEY, C. J. The ground of the motion to dismiss the appeal was that, after the judgment in the common pleas, on the 12th of March, 1852, the defendants gave notice of appeal, which was at that time entered on the records of the court; whereas the law regulating appeals from the common pleas to the district court, and providing for the notice of appeal, was not enacted until the 23d day of the same month. This notice of the intention of the party to appeal, although entered on the journal of the court prior 176] to the passage of the law, remained there, after the law had taken effect, as a standing notice in the case. The opposite party was bound to presume that the appellants would avail themselves of any law which might exist within the time allowed for perfecting the

Pim v. Nicholson.

appeal for carrying out their intention. With this notice in the case standing on the journal, it would have been idle to have required another notice to be given after the passage of the law. The notice of appeal given, therefore, and still standing in the case, operating as a sufficient notice to the opposite party of such intention to appeal, it becomes unnecessary for us to go further and inquire whether the motion to dismiss the appeal for mere informality in perfecting it, came too late after verdict.

As to the other assignment of error, it is sufficient to say, that the verdict fully responds to the issue made by the plea of non-assumpsit; and this covered the whole ground of the defense set up in the special pleas. As accord and satisfaction could have been given in evidence under the general issue, the special pleas were superfluous; and it did not become essential that the jury should pass upon them in form.

Judgment of the district court affirmed, and cause remanded. SWAN, BRINKERHOFF, BOWEN, and SCOTT, JJ., concurred.

ISRAEL PIM v. VALENTINE NICHOLSON.

The provision in the constitution, article 11, section 10, that "no bill shall contain more than one subject, which shall be clearly expressed in its title," was incorporated into the constitution, for the purpose of making it a permanent rule of the houses, and to operate only upon bills in their progress through the general assembly. It is directory only, and the supervision of its observance must be left to the general assembly. The act, there- [177 fore, of April 10, 1856 (53 Ohio L. 179), entitled "an act in addition to the several acts in relation to the courts of justice, and their powers and duties," can not be impeached as a violation, in the title or subject, of the above-mentioned permanent rule of the general assembly.

The law (Swan's Revised Statutes, 692, note) vesting in a judge of the Supreme Court in vacation the power to stay proceedings upon a decree, until the next term of this court, carries with it, as an incident, and by implication, the power in this court to continue the stay.

Upon a notice to vacate such stay, or continue the stay, the court will not hear an argument upon the errors assigned, nor determine the same. When the decree below, upon which stay of proceedings is asked, is for a gross

Pim v. Nicholson.

sum, and the amount covered by the assignment of errors is uncertain, the order of stay, if granted, must be for the whole amount of the decree. Under the act of March 18, 1851 (Swan's Revised Statutes, 692, note), the stay allowed by a judge in vacation ceases to operate after the expiration of the next term thereafter; and if an order of the court is moved to continue the stay, and is objected to, cause must be shown by the party making the motion.

MOTION to stay proceedings pending a petition in error in the nature of a bill of review, etc.

On the 26th day of October, 1856, during the vacation of this court, one of the judges thereof granted to the plaintiff in error leave to file in this court his petition in error to review the decree of the district court of Champaign county, and, at the same time, directed that proceedings on said decree should be stayed, on the petitioner giving bond in the sum of ten thousand dollars. The petition in error was filed, and bond was given in vacation.

There are two motions in the case. The plaintiff moves the court to continue the stay of execution allowed by the judge in vacation, until final hearing; and the defendant moves to discharge the stay.

John H. James, for plaintiff in error.

S. Mason and John D. Burnett, for defendant in error.

178] *J. R. SWAN, J. This petition in error, in the nature of a bill of review, was authorized by the act of April 10, 1856 (53 Ohio L. 179), entitled, "an act in addition to the several acts in relation to the courts of justice and their powers and duties," which provides: "Section 4. A petition in error, in the nature of a bill of review, may, on leave of the Supreme Court, or any judge thereof, be filed in the Supreme Court, to reverse or modify, any decree in chancery that heretofore has been or that hereafter shall be rendered in any district court in this state, in which the title to real estate is in controversy, or the amount in controversy is not less than five hundred dollars, and the proceedings upon said petition in error, shall, in all respects, be governed by the act of the general assembly of the State of Ohio, passed February 24, 1848, entitled, 'an act to dispense with the necessity of copying the papers in bills of review, and for other purposes;' and the act of March 18, 1851, entitled 'an act to amend the act directing the mode of proceeding in chan

Pim v. Nicholson.

cery;' provided, however, that the provisions of this section shall not extend to suits that shall have been commenced since the 1st day of July, A. D. 1853; and provided, also, that said petition in error shall be filed within three years from the time of the rendition of said decree so sought to be reversed or modified."

I. It is insisted, on the part of the counsel for the defendant in error, that no order for the stay of execution on the decree of the district court can be made, because the act above referred to, is unconstitutional and void, because it contains more than one subject, and that the subject of the act is not clearly expressed in its title.

The provision of the constitution is as follows:

"ART. II, SEC. 16. Every bill shall be fully and distinctly read on three different days, unless, in case of urgency, three- [179 fourths of the house in which it shall be pending, shall dispense with this rule. No bill shall contain more than one subject, which shall be clearly expressed in its title; and no law shall be revived or amended, unless the new act contain the entire act revived, or the section, or sections amended; and the section, or sections so amended, shall be repealed."

This court held, in the case of Miller and Gibson v. The State, 3 Ohio St. 475, that the provisions of the above section, relating to the distinctness required in reading a bill, and the number of times a bill shall be read, were, as they in fact import, intended as permanent rules for the proceedings of the houses. They are directory only, and are to be enforced by the houses, and not by judicial interposition. The further provision, in the same section, that no BILL shall contain more than one subject, which shall be clearly expressed in its title, is also made a permanent rule in the introduction and passage of bills through the houses. The subject of the bill is required to be clearly expressed in the title, for the purpose of advising members of its subject, when voting in cases in which the reading has been dispensed with by a two-thirds vote. The provision that a bill shall contain but one subject, was to prevent combinations, by which various and distinct matters of legislation should gain a support which they could not if presented separately. As a rule of proceeding in the general assembly, it is manifestly an important one. But if it was intended to effect any 'practical object for the benefit of the people in the examination, construction, or operation of acts passed and published, we are