
    James Rockwell v. The State of Ohio, for the use of John Nevins.
    In a suit under the act of 1839, against the officer of a hank, for refusing to indorse its hills on presentment, it is necessary to aver, in the declaration a general suspension, by the hank, of specie payments.
    Section 13 of the act of 1839 does not impair the charter of the Bank of Cleveland.
    Debt is the proper remedy for the penalties imposed by the act.
    This is a writ of error to the court of common pleas of the county of Cuyahoga.
    A suit was brought before a justice of the peace, by the defendant in error, against the plaintiff, and, by an appeal, removed into the court of common pleas of the county of Cuyahoga, where a declaration was filed, containing but one count, in which the plaintiff below averred that the defendant below was indebted to the said plaintiff, etc.; for that whereas, the Bank of Cleveland, being a banking institution, duly chartered and incorporated, etc., and transacting the business of banking at Cleveland, on December 1, 1834, did then 'and there make and execute its certain promissory note, in writing, to B. Winslow, and thereby promised to pay the said Winslow, or bearer, on demand, five dollars; and *whereas, the said note afterward, to wit, on, etc., in due course of business, duly came into the hand of the said John Nev-ins, for whose use the suit is brought; and whereas, the said John Nevins being the bearer of said note, then and there, to wit, at the banking house of the Bank of Cleveland, on, etc., and within the usual business hours of said bank, presented said note at the counter of said bank, and demanded payment thereof, in specie, of the said James Bockwell, who, then and there, was an officer.of said bank, to wit, the cashier thereof, which payment the said James Bock-well, cashier as aforesaid, then and there refused; and, whereas, the said John Nevins then and there requested the said James Bockwell, as such cashier, to indorse said demand and refusal, together with the date thereof, in writing, upon the back of said note, and to subscribe the same as such cashier; he, the said James Bockwell cashier as aforesaid, then, and there did not, nor would lie, so indorse said note, but wholly neglected and refused so to do, whereby, and by force of the statute, the said Rockwell forfeited to the said State of Ohio, for the use of the said Nevins, the sum of fifty dollars, whereby an action hath accrued, etc. To this declaration the defendant below demurred generally. The demurrer was overruled in the common pleas, and, by leave of the court, the general issue of nil debet pleaded, the cause submitted to the adjudication of tho court, and judgment given for the plaintiff below for five dollars, and costs of suit.
    The only error assigned, necessary to notice specially, is, “that the declaration, and the matters therein contained, are not sufficient in law to maintain the said action.”
    Benedict, Allen and Stetson, for the plaintiff in error, insisted that the charter of the Bank of Cleveland is a contract within the meaning of section 10 of article 1 of the constitution of the United States, and so not subject to repeal or alteration. New Jersey v. Wilson, 7 Cranch, 164; Terret v. Taylor, 9 Cranch, 43; Trustees of Dartmouth College v. *Woodward, 4 Wheat. 518; Nichols v. Bertram, 3 Pick. 343; Armstrong v. Treasurer of Athens County, 10 Ohio, 239.
    No argument for the defendant came to the hands of the reporter.
   Wood, J.

This suit is instituted under the provisions of section 13 of the act of the general assembly of this state, for tho appointment of a board of bank commissioners, and for the regulation of banks, etc., passed on February 25, 1839.

This section enacts that, “ if any banking institution in this state shall hereafter suspend the payment of its notes in gold and silver, it shall be the duty of the cashier, whenever any bill or bills shall be presented at tho counter of said bank, and the redemption thereof demanded in gold and silver, and the same be refused, to indorse such refusal and the date thereof, on the back of such bill or bills ; and if any cashier shall refuse to indorse any such bill or bills, according to the provisions of this act, such cashier shall forfeit and pay a fine of not less than five nor more than fifty dollars for every such bill so presented and refused, to be recovered before any court having jurisdiction, in the name of the State of Ohio, for the use of the person or persons aggrieved.”

This is a penal statute, and must be construed strictly; and.it is, therefore, necessary all the circumstances should bo stated, which are provided to bring the cashier within its provisions, or the judgment can not be sustained. If there be a title to recover, defectively sot out, such defects are cured by the judgment; but if the title itself to recover, as spread forth in the declaration, be defective, the judgment should be reversed.

The law, then, provides that if any banking institution in this state shall hereafter suspend the payment of its notes in gold and silver, it shall be the duty of the cashier to indorse, etc. It is to guard against a general suspension, or the suspension of the payment of its notes generally by the bank, *that the act confers upon the holders of its bills the authority to require this indorsement, and inflicts the penalty for a non-compliance; it was never the intention of the law to give the penalty upon an isolated controversy between an officer of the bank and the bolder of a bill, which resulted in a demand of payment, and refusal to pay or indorse. Such a transaction would hardly be worthy of legislation- and the bill holder is left to his remedy, by action-, for the recovery of his debt. But to prevent a general suspension of the payment of its notes, which affects the whole community, the provision was made. Are, then, such facts set forth as bring the cashier within the spirit or meaning of this act ? If any banking institution shall suspend the payment of its notes, says the law. The pleader has not averred the suspension of the payment of its notes, ‘.but that the plaintiff below presented a single bill, and payment was refused. This averment is, in our view, insufficient to sustain this judgment, and it must bo reversed.

It has been suggested, also, that debt is not the proper remedy in this case, the penalty being uncertain, resting in the sound discretion of the court, between five and fifty dollars ; and, as a general rule, debt lies only for a sum certain. We think, however, that debt is the proper remedy, and it is within the knowledge of the court that debt has been frequently brought in analogous cases, and is given by express provision in some other cases precisely similar.

But a claim still more extraordinary is advanced by the counsel for the plaintiff in error. It is, that as the charter of the bank contains no requisition upon the cashier to indorso in such cases, the law imposing this additional obligation impairs the charter, and is unconstitutional. It would be useless to discuss that subjcct, in this case, any farther than to remark, that the charter of this institution provides that the legislature may, at any time thereafter, enact laws enforcing and regulating the recovery of the notes, bills, or debts, of which payment shall be refused, etc.; and the act, under which this suit was instituted, seems to be in direct pursuance of this provision. Judgment reversed.  