author: Lane, J.,

text:
    Bank of the United States v. Heirs and Administrators of John H. Piatt.
    ■Qacere, if administrators can release equity of redemption in lands, except under a decree of the court. This doubt sufficient ground for a decree.
    This cause was adjourned here for decision from the county of Hamilton. It was a bill in chancery for confirming an arrangement between the complainants and the administrators and heirs of John H. Piatt, deceased. The case is stated in the opinion of the court.
    H. Starr, for complainants.
   Lane, J.,

delivered the opinion of the court:

In 1820, John H. Piatt, in pursuance of a previous agreement, •executed and delivered to the plaintiff a mortgage on divers parcels of real estate in Cincinnati, to secure the payment of two hundred and sixty-one thousand six hundred and thirty-one dollars and sixty-four cents. In drawing this mortgage, by mistake lot No. 9 was imperfectly described. Mr. Piatt died in 1822, intestate and insolvent. A negotiation was commenced by the administrators, which produced an arrangement by which the widow, heirs, and administrators, released the equity of redemption to the bank, who consented to'receive it in satisfaction of the debt. By this release the mistake in the mortgage was corrected, and the bank-have possession of the omitted lands.

This arrangement is a very beneficial one for the. estate, the mortgaged property not being so valuable as the debt. If it stands, all parties to it are content. But doubts are entertained whether the administrator can release the equity *of re■demption, so as to bind the interests of the estate, and this bill is brought to remove them; and. it further alleges that the mortgage debt is still due if the above arrangement be not valid.

We think the plaintiffs are entitled to the decree. Although the mistake is corrected, in respect to the heirs, and their right of redemption is extinguished by the release, it is doubtful if the administrators have power to do this, except by an order of court. An equity of redemption is real estate vesting in the heirs; yet the .administrator has an undoubted right to redeem, and the correlative right to foreclosement exists in the bank. We need not adjudge whether the personal representative can extinguish the right, in his own hands, or in the hands of any future administrator,' since the bare doubt, the suspicion thus thrown upon the title sufficiently .authorizes the action of the court, to quiet the party in possession.

A further ground of jurisdiction may be found in this case, in the mistake, which in respect to administrators, and the interests ' they represent, could not be effectually corrected, except by bill.

A decree may be taken, correcting the omissions in the mortgage ■deed. And as an appraisal has been had, by which it is ascertained that the land if sold at its appraised value, would not pay the debt, it may be further provided, that unless the administrators pay the debt and cost within sixty days, their right to redeem shall before-closed.


source: Caselaw Access Project

author: Judge Lane

license: Public Domain

text:
    *In the Matter of James Turner.
    Prisoner indicted for murder in the common pleas, when arraigned, stands mute. The court, assuming that another indictment against him, for the same offense, was pending in the Supreme Oourt, refuse to proceed in the case. Mandamus to proceed a proper remedy.
    Prisoner in the penitentiary, judgment reversed for error, new trial to be had before the court where the original conviction was had.
    This was adjourned here for decision from the county of Pair-field. It was a motion for a mandamus, to the court of common pleas of Fairfield county, commanding that court to proceed to the trial of James Turner, upon an indictment for murder.' The case is stated in the opinion of the court.

      H. H. Hunter, for the mandamus.
    G-. Swan, against it.
   Judge Lane

delivered the opinion of the court:

In the court of common pleas, of March term, 1832, James Turner was indicted for murder. On his arraignment, it was demanded of him in which court he elected to be tried, to which demand he-stood mute. Upon which, the court, “ having advised upon the matter of the prisoner’s standing mute, when interrogated whether he elected to be tried in the Supreme Court, upon the indictment found this term, is of opinion that the court has no jurisdiction of the case, because upon a former indictment for the same cause, the-same prisoner elected to be tried in the Supremo Court, and because the same indictment is still pending and undetermined.” Upon this, Mr. Hunter, the prosecuting attorney, at the November term of the Supreme Court of Fairfield county, moves the court for a mandamus, commanding the judges to proceed in this cause, in such manner that the defendant may be brought to trial, in due-course of law.

By section 3 of the act to organize judicial courts, power is given to the Supreme Court to issue writs of mandamus, and all other writs not specially provided for, to enforce the due administration-of right and justice throughout the state. The occasions upon which the writ is to issue are not pointed out, and it is not necessary to recur to the common law, to learn in what cases the writ is properly applicable.

“ The original nature of the writ,” as is said in 3 Burrows, 1267, “ and the end for which it was formed, direct on *what occasions it shall be used. It was introduced to prevent disorder, from a failure of justice, or a defect of police; therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government, there ought to bo one.” It has become aú established remedy, is a matter of every day’s use, to compel courts and magistrates to execute their official duties.

The'most usual object sought by this writ is to exact the execution of some official duty from a ministerial officer; but it is equally applicable to compel courts to do that justice which the law enjoins them to administer. Whenever an inferior court refuses to-exercise .its jurisdiction, the writ of mandamus is the appropriate remedy. Examples are numerous in the books, in which this power has been exercised. It has been issued to the quarter sessions, to compel them to give judgment for abating a nuisance. Andrews, 188. To command them to receive an appeal. Sessions Cases, 248. To the court of Sandwich, to give judgment, in an action of assault and battery. Strange, 113. To a sheriff's court to give judgment in a writ of inquiry. Strange, 392. To the bailiffs of Andover, to give judgment in a depending case. 2 Barnardiston, 259. It has been issued by the Supreme Court of New York, • tq the sessions, to compel them to give judgment. 1 Johns. Cas. 279. To the court of common pleas, to compel them to enter judgment. 1 Johns. Cas. 181; 2 Johns. Cas. 215, 371; 19 Johns. 147. It has been granted in Massachusetts, to compel the court of sessions to enter the verdict of a jury, in the assessment of damages. 9 Mass. 383; 5 Mass. 435. And it has been issued from the Supreme Court of the United States, to a district judge, to cause him to execute his sentence. 6 Cranch, 115. In short, as said by Chief Justice Parker, of Massachusetts, 2 Pick. 414, by this process the superintending court can compel the performance of duty by all the inferior tribunals, whether that duty be ministerial or judicial.

These authorities leave no doubt, that the writ may issue, commanding the court to act; but care is to be-taken that it shall not interfere with the full and legitimate exercise of ^judgment in the court to which it is directed. It is not a remedy adapted to correct errors, or to constrain them to act in a particular manner; although it may compelía judge to proceed to judgment, it will not prescribe what judgment to give. 3. Dali. 45. In all these cases, the full object of the writ is obtained, if it produces the action, and calls forth the exercise of jurisdiction.

In the present case, the prisoner while arraigned on an indictment, before the court of common pleas, stood mute. Instead of instituting an inquiry into the cause of his refusal, aS the law directs, the court, without plea from the defendant, and without affording the attorney for the state the opportunity of contesting the position, assumed the fact that another indictment was pending in this court for the same offense, and that the ^tendency of it destroyed their jurisdiction. If they had gone further’, and quashed the’indictment for the want of jurisdiction, perhaps this might have been the exercise of such a judicial discretion, as would have been beyond the reach of their .power. But this was not done ; the •court abstained altogether from doing anything, and a failure of justice is likely to arise from their want of action. We unite in •the opinion that this is a proper case for a mandamus.

The first process in that case must be a rule to show cause.


text:
    In the Matter of Samuel Kazer.
    Adjourned from Delaware county.
   Judge Lane

delivered the opinion of the court;

The case of Samuel Kazer bears some resemblance to that of ‘Turner. He was tried in the court of Delaware county for arson, and committed to the penitentiary. A writ of error was had, and the judgment was reversed for terrors in the proceedings of the common pleas, the court being of opinion that a new trial ought to be granted. The journal entry was nearly in the words •of the statute, commanding'the clerk to certify these proceedings to the keeper of the penitentiary, but it contained no order to the common pleas to proceed in his trial, nor does the statute require in terms the entry of such an order. The statute in these cases requires the keeper of the penitentiary to take the person to the county from which he was sent, and commit him to the, custody of the sheriff. These requisitions were complied with, but the court of common pleas declined proceeding in the trial, being of opinion that they had no jurisdiction. This court can discover no weight in the objections of the common pleas to proceeding in this trial, when the prisoner stood indicted before them of a crime, which they alone, by the constitution, are competent to try; and are opinion that a mandamus might be issued to compel them to act; but as a peremptory mandamus is not ordered in these cases in thé first instance, we believe the ends of justice will be attended with equal certainty and more speed by procedendo. '


author: Collet, J.,

text:
    Silver Lake Bank v. A. and S. Harding.
    .Justice’s court, in Pennsylvania, is not a court of record within the provisions of the constitution and laws of the United States ; hut their judgments, when duly proved, are within those provisions, to which full faith and credit must he given, though to debt upon them nil debet is a good plea.
    This cause was reserved in the county of Richland. It was an action of debt upon the transcript of a judgment of a justice of the peace, in the State of Pennsylvania. The question to be decided arose upon the plea of nil debet, which was demurred to.
    Coeeinberry, for the plaintiff,
    cited 5 Bin. 484; 11 Johns. 166; 16 Johns. 233; 5 Ohio, 183; 1 Saund. Pl. & Ev. 406; 2 Saund. 187; 1 Chit. Pl. 452; 1 Stark. Ev. 208; 1 Ohio, 259; 4 Bin. 67; 1 Bin. 222, 383.
    *Purdy, for defendants,
    cited 2 Stark. Ev. 568; 3 Esp. 163; 4 Conn. 517; 5 Johns. 37; 9 East, 192; 1 Stark. Ev. 215; 19 Johns. 162; 1 Johns. Ch. 104; 1 Johns. Cas. 246.
   Collet, J.,

delivered the opinion of the court:

This is an appeal from Richland common pleas, reserved on the last circuit for decision here. It is an action of debt on a transcript of a judgment of a justice of the peace of the State of Pennsylvania. The defendant pleaded, first, nul tiel record; second, payment; third, nil debet. On the two first pleas, issue was joined; to the third, the plaintiff demurred, and the defendant filed a joinder. Is nil debet a good plea in this case, is the only question.

The constitution of the United States provides that, “ Full faith and credit shall be given in each state to the public acts, records, .and judicial proceedings of'every other state, and the Congress may by general laws prescribe the. manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” Congress, in May, 1790, enacted, “That thé records and judicial proceedings of the courts of any state shall be proved or admitted in any other court within the United States by the attestation'of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as th e case may be, that the said attestation is in due form, and the said record and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken.” A justice’s court, in Pennsylvania, is not a court of record; a docket and short minutes of his proceedings-are all that is kept by the justice, such as is kept by our justices of their proceedings. In Pennsylvania, the courts consider the justice’s an inferior court, and not a court of record. 2 Bin. 222. Then, nil debet would there be a good plea; if good there, it would, be good here; if the act of Congress applied to it, it would be giving it the same faith *and effect that it receives in Pennsylvania. 7 Cranch, 483. The act of Congress does not extend to such judicial proceedings. It provides for certifying the proceedings of a court having a clerk, a judge, or presiding officer, and usually a public seal, in a court' of record, to apply it to the justice’s court; he is both clerk and judge, he has a public seal, he must under his own hand and private seal certify his transcript and without other evidence of his being a justice, or any proof of his handwriting, we should have to receive in evidence a transcript of the docket from Pennsylvania, or elsewhere. Congress did not intend this. In Massachusetts, it has been determined that the law of Congress does not embrace the proceedings of a justice of the peace of the State of Connecticut; and that to art action of debt on a transcript of a justice of Connecticut, nil debet was a good plea. 3 Pick. 448.

In this state actions have frequently been brought on the judgments of justices of the peace of the adjoining states; some in assumpsit, some in debt. They, have both been sustained by the courts. The pleas of nil debet and of nul tiel record have both been sustained; and.it has, we believe, been' uniformly decided that the mode of certifying such judgments is not prescribed by the "act of Congress. The courts have invariably required other evidence of the person who certifies the transcript being a justice than his own cerifícate; usually the certificate of the clerk of the court of the county and the seal of the court.

This judgment, although not embraced within the act of Congress, is within the provision of the constitution. It is a judicial proceeding to which full faith and credit is to be given; A state or nation is bound, and has the exclusive right to administer justice within its territories to parties there contending. When the parties have had an opportunity of being heard, and a definitive ■decree has been pronounced, a regard to this right and duty of •every state and nation, and to justice, requires that the justice of •the sentence should not be ro-examined by the tribunals of another state or nation, unless it is shown that the sentence was obtained by fraud. 2 Vat., chap. 7, sec. 84. The courts in England had not uniformly regarded .this principle of the *law of nations; therefore, it was, it is probable, that this was introduced into our ■constitution. Whether the court is a court of record or not, if it had jurisdiction of the matter and of the parties, its 'decision is •conclusive, a'nd until it is reversed the parties.can-not again litigate the same matter, unless there was fraud in obtaining the sentence. 1 Stark. Ev. 191, 208. It is as conclusive-here as in Pennsylvania and no more 'so. This is the effect it is to have whenever it is given in evidence. That the plea filed in the action is ■called nil debet, non assumpsit, or nul tiel record, can make no difference. 2. Pick. 448; 1 Stark. Ev. 213. In England, since her union with Ireland, a judgment of an Irish court of record is treated as domestic and not foreign, and the plea of nul tiel record is received in an action of debt on such judgment; but the plea .must conclude to the country, for the mode of proof is by sworn copy, and there must be a jury to try the credit of the witness. 5 East, 473. Upon the whole the demurrer must be overruled.


text:
    McCoy and Culbertson v. The President and Directors of Bank of United States.
    Indorsers charged at law, on the ground of being secured, subsequently, by a decree in chancery, are deprived of the security fund, in favor of a previous lien, can not be relieved in equity.
    This is a bill of review, reserved in the county of Ross, on the last circuit. The original bill states that Matthew Waddle, on March 9, 1819, made a promissory note, payable, sixty days after dato, to John Waddle or order, at the office of the Bank of the-United States in Chillieothe, for one thousand dollars, which was indorsed by John Waddle and the firm of McCoy & Culberston, and discounted by the bank for Matthew Waddle. That when the note became due, notice, but not legal, was given to the indorsers. That at December term, 1820, of the Supreme Court for Ross county, the bank recovered a judgment against the maker and indorsers of the note, for one thousand and ninety-five dollars damages,, and seventy-six dollars and seventy-five cents penalty, with costs. That on the trial the *bank did not prove a legal notice to the indorsers of the non-payment of the note, but relied on a deed of' trust made by Matthew Waddle to W. K. Bond, to indemnify the indorsers, dated October 9, 1818, and that the court chai'ged the jury that the deed .of trust made it necessary for the bank to prove-the notice to the indorsers, in order to-recover, on which the jury found a verdict against the indorsers. That the court, on being moved for a new trial by the indorsers, adhered to their opinion and refused it. -That on November 2, 1821, Job Harness filed a-bill in chancery against M. Waddle’s heirs, John Waddle, and McCoy & Culberston, on a mortgage of the premises covered by the deed of trust; the mortgage was made to Harness by Matthew Waddle and his wife, to secure the purchase money duo to Harness-for the premises, on April 18, 1817, but not recorded until May 1, 1819. That the Supreme Court, on hearing, decreed the deed of trust to Bond void, and ordered a sale of the premises to satisfy the mortgage of Harness. The bill and proceedings of Harness-are referred to, and prayed to be made a part of the bill. That the premises were sold on the decree ahd did not sell for a sum sufficient to pay the mortgage. That when the action at law was-tried, the complainants believed the deed of trust valid, but the-decree has deprived them of the benefit of it. The bill prays a new trial to be ordered, etc.
    The bank, by Creighton and Bond, answered that they authorized L. Belt to give the indorsers due notice of the non-payment of the note by the maker, which they presume he did; that they do not know whether evidence of notice was or was not given; that with the deed of trust evidence was introduced to show that it contained all the property of M. Waddle; that the indorsers availed themselves of every species of defense; that the bank admits the proceedings in chancery by Job Harness, referred to by the bill, and insists that the decree was founded on the knowledge of McCoy & Culbertson, and John Waddle, of the mortgage when the deed of trust was made, and that the mortgage did not include the personal goods conveyed by the deed of trust. The common replication was filed.
    *The deed of trust to Bond, dated October 9, 1818; the notes given to the bank by the parties, from the making of the deed of trust, renewed from time to time until March 9, 1819; the date of the note on which the judgment was obtained; the notice of non-payment, dated May 12, 1819, given to the indorsers the day after; the mortgage to Harness, dated April 18, 1817, and recorded May 1, 1819; and a deed from Harness to M. Waddle for the same premises of the same date; and an article between Harness and M. Waddle for the sale of the premises, dated March 13, 1817; and a transcript of the proceedings and decree in the case of Harness against the Waddles and McCoy & Culbertson were all exhibits in the cause. Also, an agreed statement that by the trust- deed McCoy & Culbertson had secured six hundred dollars, and that they had paid for liabilities intended to be secured by that deed two thousand four hundred and sixty-seven dollars and sixty-three cents. The court, on the hearing, were divided in opinion, and dismissed the bill. 2 Ohio, 336. The bill of review states that the complainants have paid the costs of the original suit, and that the judgment at law is paid; .that the-one-half paid by them amounted to one thousand-dollars. They assign general errors in the decree. The defendants demurred,, and the plaintiffs have joined in demurrer.
    Leonard, -for complainant.
    Gr. Swan, for defendant.
   Collet, J.,

delivered the opinion of the court:

It is urged for the complainants that the court of law, at the trial of the action against the indorsers, on the authority of the case of Bond v. Freeman, 5 Mass. 170, determined that where the maker of a note transferred all his property to the indorsers for their indemnity, or a. sufficiency for that purpose, they could not object to a recovery against them by the holder of the note that they had not notice of non-payment by the maker, for the notice was to enable the indorser to secure himself, if ho could, from the maker, and that when *he had before secured himself, notice could be of no service; that the deed of trust to Bond was considered as either a sufficient indemnify to the indorsers, or as containing all the property of the maker; that on these grounds a recovery was had against the indorsers. That this being the law, as laid down by the court, on its afterward appearing, by the decree for Harness and the salo of the premises contained in the mortgage and deed of trust, that the property conveyed by the deed of trust was not sufficient to indemnify the complainants, the indorsers are now entitled to relief in this court, by an order for a new trial at law or a final decree here.

The mortgage to Harness was made in 1817 ; it was not recorded until May, 1819. The deed of trust to Bond was made in October, 1818, for the indemnity of the indorser; it included the land mortgaged to Harness, and other property, part of it personal, of which the complainants made six hundred dollars. The complainants relied on the want of notice of the mortgage of Harness as a defense to his suit, but the court on the hearing decreed for Harness, which must have been on the grounds that the complainants,when the deed of trust was made, had either actual or constructive notice of the mortgage. If they knew of Harness’ mortgage, when their trust deed was made, or at the time of the trial at law, why did they not then proceed and insist on it? The-deed of Harness was recorded in May, 1819 ; the trial was in November, 1820, eighteen months after. Constructive notice of this mortgage must have been a knowledge of such facts, by the indorsers or their agents, relating to the mortgage, as would have led prudent men to an actual knowledge of it, so that the indorsers or their agents must have been chargeable with some negligence, at least, in not relying on this mortgage as a defense at law. It is suggested that in equity the indorsers were trustees of the property contained in the trust deed, that it really belonged to Mr. Waddle, the maker of the note, and that the indorsers, as trustees, were bound not to do anything which might lessen the value of the trust fund. This is a poor excuse. Where a mortgagee, confiding in the mortgagor, or as his friend to save his credit and feelings, does not record his mortgage, and the mortgagor *is base enough to convey or mortgage over him to defeat his mortgage, are those to whom he conveys or mortgages undor obliga* fions to him to do all they can to aid him in committing such a fraud ?

The action at law was tried in 1820 ; it is a fact known to us all, without proof, that real property in general, especially if improved, ■would at'that time readily sell for one hundred per cent, more than in 1822, or for several years after. The decree for Harness was in 1823. When the property was sold by Bond, the trustee, we do not know. If the price of land had not fallen after 1820, there might have been no loss. If this occasioned the loss, the •equity of the bank to retain is at least as good to retain as that of the indorsers to recover back the amount of notes discounted on their credit.

The value of the property contained in the trust deed was a matter investigated on the trial at law; if this mortgage was known of by the indorsers at that time, this court can not relieve them. Why did they not produce it, or move for a new trial to ■obtain time for its production ? It seems probable that they either knew of it, or that their want of knowledge-was from negligence. In cither cáse no relief should be granted by this court. 4 Ohio, 464; 3 Johns. Oh. 750; 7 Cr. 332.

If the inquiry,'"on the trial at law, was not only as to the sufficiency of the property in the trust deed, but whether it was all ■of M. Waddle’s property, the cause may have gone off on that ground; then, according to the opinion of the court of law, its value would.make no difference. If all is secured, why give notico to the indorser? He can get no, more.

The court-of law had the right finally to try, and we have no right to inquire whether they erred or not. They had the right to determine whether notice was necessary or not, what was an •excuse for the want of notice, and what was sufficient proof of that excuse. They did so oh the trial, and on a motion for a new trial were satisfied with their determination. Again, M. Waddle was ip such circumstances that before complainants would indorse his note he had to indemnify them. The indorsers paid the notes; he was insolvent. It is probable, then, that the bank advanced ^the amount of the note to M. Waddle, on the credit of the indorsers alone. .The bank intended to give the indorsers immediate notice of the non-payment of the note, but by the mistake or negligence of their agent, they did not receive notico .until two days after the note became payable; no injury was sustamed by the indorsers in consequence of this delay. Now, could justice be advanced by taking this money from the bank and giving it to these indorsers? Has not the bank as much equity to-retain it as the indorsers to receive it ?

Anciently an indorser was compelled to show a loss from not receiving notice, before he could successfully insist on a want of notice; now, the law presumes an injury, and will not suffer the presumption to be rebutted except in af ew cases. Chit. on Bills, 214, 215, 552. And this is well on many accounts; it protects more persons who would have suffered by a want of notice and could not prove the injury, than it discharges of those who suffered no loss. If an indorser, who has not received notice on the day the rule requires, but who has suffered no loss thereby, should be adjudged to pay, would he, have an equity"to recover back? Unless the judgment was obtained by fraud, I should much question it.

This case differs from that in 2 Vern. 116, of the executor, who-informed the creditor of the testator that he had a mortgage securing a debt to the testator of three hundred pounds, on which information the creditor recovered a judgment against the executor for'.the debt to be levied of his goods. Afterward, it appeared that the premises were covered to their full value by prior mortgages ; the executor was relieved; he had not caused the creditor to let the testator have the consideration of his debt; he had done nothing hut disclose the fact of the existence of the mortgage as a source of ultimate payment to the creditor. The creditor had in consequence sued him. The costs, if the chancellor chose, could be thrown on the executor. Could an honest man have received of the executor this judgment so recovered?

Upon the whole, we are of opinion that this bill must be dismissed.


text:
    *C. Higgins v. T. West.
    Practice in decreeing a sale of mortgaged premises on a foreclosure.
    This suit is reserved from Franklin county, to settle the form of a decree, in cases brought to collect money secured by mortgage.
    L. Starling, for complainant.
   Judge Lane

delivered the opinion of the court:

In all cases of this nature, the mortgagee may insist on a sale; and he is entitled to a decree for foreclosure, where two-thirds the value of the mortgaged tenements does not exceed the amount of the debt. 1 Ohio, 235.

Where a sale is to be made, it is the interest of all that no unnecessary delay should be made. In these cases, after the amount due shall be ascertained, either by computation or by reference to the master, a decree may be entered, commanding the master to make the amount of money due, by sale of the mortgaged tenements (or of so much as may be necessary), under the forms and restrictions prescribed by the statute for the sale of lands by execution at law.

But where the debt can not be paid by a sale of the land, and the mortgagee is desirous to purchase, the value should be ascertained in some mode analogous to that directed by the execution law. A decree may be entered, directing the master to cause a valuation, in the manner prescribed by that statute, and upon its return, a decree be entered, either for foreclosure or sale, as the appraisement may justify; and in the event of a sale, no new valuation will be required; and this case will not cause the delay of a term, if this return of the value can be made during the session of the court.


author: By the Court :

text:
    *Benjamin M. Piatt v. Heirs of St. Clair and Bank of the United States and others.
    Though administrator may have disposed of all the estate of an intestate, yet if he decease, no legal proceeding can he had to charge the estate without, appointing administrator de bonis non.

    This was a suit in chancery adjourned from the county of Hamilton. The object of the bill was to charge the real estate of the late Arthur St. Clair, deceased, in the hands of the defendants, with the payment of a debt of the intestate. Administration had been granted, and all the estate, real and personal, disposed of, by the administrator, who died after.the commencement of this suit. No administrator de bonis non having been appointed, a question was made whether the cause could proceed without such appointment, and the person receiving it being party defendant to the suit.
    Caswell and Starr, and Hammond, for the complainant,
    in-sisted that an administrator de bonis non need not be appointed. The whole estate having been disposed of, and the defendants being alone interested in resisting the debt, and in protecting the property against being subjected to the payment of it, there was nothing fo’r an administrator de bonis non to do.
    N. Wright and Worthington, for the respondents,
    suggested . that if the court were of opinion th^t a valid decree could be «•made, as the case stood, they were satisfied.
   By the Court :

It is safest to make the appointment. It has always been held -that to charge a decedent’s estate with his debts, there must be a ■personal representative to proceed against. We are not willing to make a new precedent. The cause will be continued that the ap,;pointment may be made, and the party brought before the court.


author: Collett, C. J.,

text:
    C. Longworth and others v. R. Wolfington and others.
    A purchaser of real estate at administrator’s sale, if evicted by the heir, entitled to the benefit of the occupying claimant law.
    This case was adjourned here for decision from the county of Hamilton. It was an application for the benefit of the occupying claimant laws under the following circumstances. The defendants were in the possession of the premises, which they claimed in virtue of a deed made by the administrators of Israel Ludlow to John Kidd, deceased, from whom they claimed by descent. The plaintiffs had recovered in ejectment upon a title deduced from the heirs of Israel Ludlow. The sale by the administrators having been adjudged void in consequence of the order of sale made by the court of common pleas being held invalid, it was objected, in behalf of the plaintiffs, that the case did not come within any class of cases enumerated in the statute.
    Y. Worthington, for the plaintiffs,
    contended that the parties did not so claim under an adversary title, as to place the defend-10] ant in a position to claim for improvements under the *statute. He cited 3 Peters, 47; 7 Wheat. 535; 4 Bibb, 466; 3 March, 202; 3 Ohio, 353, 574; 5 Ohio, 497.
    Storer, for the defendants,
    cited Sug. Vend. 482; 1 Vern. 484; 6 Ves. 617; 8 Ves. 327; 1 Sch. & Lef. 115; 1 Wash. 433; Cooke (Tenn.), 298; 1 March, 246, 388; 3 March, 202; 2 Peters, 526; 1 Johns. 277; 17 Mass. 350; 9 Johns. 102; 4 Greenl. 214; Angel on Lim. 85; 3 Ohio, 553; 5 Ohio, 494.
   Collett, C. J.,

delivered the opinion of the court:

The law of this state is framed to cover every case where a party is evicted from the possession of lands, which he had improved in the faith that he was the owner. In this state lasting .and valuable improvements have frequently been made by persons in possession where the title was in another, and where the person making the improvements believed the land to be his own. Where this is the case, the party who receives the benefit and advantage of these improvements, upon every principle of equity, ■ought to compensate him who made them for his labor. The object of the statute is equitable, and may justly claim a liberal ■construction.

The cases provided for by the statute are of different classes. 1. Where the party in possession, and to be evicted, can show a plain and connected title from the records of some public office. .2. A party in possession under such a claimant, by deed, devise, descent, contract, bond, or agreement. 3. All this latter class in .possession under a party claiming by deed, duly authenticated and recorded. 4. Where the party in possession claims under a sale -on execution against any of the previously enumerated classes. .5. Where the party is in possession under a sale for taxes. 6. Where the possession is under a sale by executors, administrators, .or guardians, or under a decree in chancery.

The court conceive that two different provisions of the statute ■embrace the case of the applicants. The administrators conveyed to Kidd, who died in possession, and from him the estate descended to the applicants. Kidd held, and was in possession, under a deed •“ duly authenticated and recorded; ” and the applicants hold by •descent from him. It is not material that this deed did not, in fact, convey title, in consequence of the invalidity of the order of •court upon which it was based. The precise *case eontem- [11 plated by the statute is, that where for some cause, though a deed be “ duly authenticated and recorded,” it fails to convey title. Where the descent is cast under such a deed, the heir is let in to the benefit of the statute, though the ancestor could not have been. And this is but following, in a degree, the common law rule, that varied the remedies against the actual disseizor, and one in under him by descent.

In express terms, the benefit of the statute is extended to persons in possession, under a sale and conveyance made by executors or administrators. Here again, the sale and conveyance must be inoperative, before a ease is made for the statute to act upon. It is not maintained but that the statute would apply were the applicants evicted under a distinct title, adverse and superior to that of Ludlow, for whose heirs the recovery is had. But it is insisted that a recovery against them, upon the same title they claim, is not embraced by the statute. The court are of a different opinion. The case is plainly within the terms of the statute, and as plainly within the wrong it was intended' to remedy. The application is sustained.


text:
    Lessee of Boal and others v. King and others.
    A writ of fi. fa., issued without seal from a court having aud using a seal, is void.
    A levy on such writ, and a sale on a subsequent valid writ, conveys no title.
    This case was adjourned here for decision, from the county of Hamilton. It came up for decision on a motion for a new trial, made by the plaintiffs, on the following state of facts:
    The plaintiffs, to show title in themselves, produced in evidence a record of a judgment rendered in the general court, in Hamilton county, at March term, 1800, at the suit of Mills against Symmes; the original writ of ft. fa. et lev. fa. issued upon this judgment, returnable to March term, 1801, and returned levied upon the premises in question; a vendí., returnable to October term, 1801; and the sheriff’s deed, upon a sale made under the vendí., dated September 10, 1801, acknowledged in open court by the sheriff, in conformity with the then existing law.
    Upon examining these documents, it appeared that no seal had been attached to, or impressed upon, the original writ of ft. fa. et lev. fa., the law requiring, and the general court then having and 12] using a seal to authenticate its process. The defendants *moved-the court to reject the executions and deed for this defect, insisting that a writ of execution not under the seal of the court, was void. The court rejected the evidence, and the plaintiffs moved for a new trial.
    N. Wright, in support of the motion, contended:
    1. The acknowledgment of the deed, in open court, was a confirmation of the sale. 2 Bin. 46, 277.
    2. That a valid ft. fa. et lev. fa. should be presumed, after so great a length of time, where the sale was upon a valid vendí, and deed, made.
    3. That the valid vendi, invested the sheriff with power to sell; consequently, that the sale was voidable only, and not void, which, should have been taken advantage of at the return of the writ. As to irregularities that are or are not fatal, he cited 3 Johns. 144; 4 Id. 89; 18 Id. 441; 19 Id. 60,170; 1 Cow. 643; 2 Id. 455; 5 Id. 529; 9 Id. 182; 1 Wend. 524, 585; 5 Id. 103.
    No argument was presented for the defendants.
   Judge Lane

delivered the opinion of the court:

No principle is more definitively settled, than that the process-of a court having a seal can only be evidenced by its seal, which is the appointed mode of showing its authenticity. Without it, a majority of the court hold such process void. The eases in 19 Johns. 170; 5 Cow. 550, and 5 Wend. 133, show the necessity of a seal to writs. In the two latter, a seal is allowed to be affixed by way of amendment, because necessary to the writ’s validity.

The practice in Pennsylvania is to hold the proceedings of th© •sheriff, upon executions for the sale of real estate, subject to examination, and to hear objections in behalf of the defendant, at the time of taking the acknowledgment of the deed. If this opportunity of objecting is neglected, he is concluded. 2 Bin. 46, 227. But this implied confirmation seems to have cured irregularities only; it never was held to supply defects of power. No such practice of examining the sheriff’s proceedings obtained here, until introduced by statute in 1822. Mere irregularities are now cured under this provision.

If the fi. fa. et lev. fa. were lost, the judgment, vendí, and deed, would induce the presumption that it had existed, and was regular ; but where it is produced, and shows upon its face that it is defective, no such presumption can be raised.

*The valid vendí, does not supply the defect of the original [13 fi. fa. et lev. fa. The predicate of the vendí, is a previous valid writ of fi. fa. et lev. fa., and a valid levy upon it. There must have been a seizing in execution upon authority to seize. This the vendí, could not confer. The direction to sell is not an authority to take.

A sheriff is not subject to punishment for omitting or refusing to execute a nugatory writ. He would certainly be excused for disobeying it.

New trial refused.


author: Judge Wright

text:
    David Richardson v. William Spencer.
    In an action on the case, againt the sheriff, for an escape on final process, he can not excuse himself by proof that the jail was insufficient, the county being liable to indemnify him if the escape was from that cause.
    On the general issue in such action, it is competent for the defendant to prove, in mitigation of damages, that the debtor had no property.
    Case against a sheriff for the negligent escape of a prisoner in jail on an execution, reserved in Licking. Plea, not guilty. At the trial, the plaintiff having proved his judgment, execution, arrest, commitment, and escape, rested. The defendant then offered evidence to prove that the escape arose from the insufficiency of the jail, and also that the debtor had no property. This evidence being objected to and ruled out, a verdict was taken for the plaintiff. The defendant now moves for a new • trial, because the evidence offered by him was improperly excluded from the jury.
    Dille and H. Stanbery, for the motion,
    cited 2 Term, 126; 3. Stark. Ev. 1348; 1 Wheat. Selw. 457; 2 Phil. Ev. 230; 7 Johns. 192; 2 Johns. 270; 5 Mass. 312; 3 Bibb, 356; 5 Day, 225; 7 Serg. & R. 273; 1 Ohio, 119; 2 Ohio, 352.
    J. Mathiot and S. W. Culbertson, contra.
   Judge Wright

delivered the opinion of the court;

In the Commissioners of Brown v. Butt, 2 Ohio, 351, this court determined that it was incumbent upon the county to provide and keep up the public jail, and the duty of the sheriff to confine his prisoners in the county jail; that he had no voice in providing the 14] jail, *or in repairing it; nor any discretionary power to confine his prisoners anywhere else, in case of the insufficiency of the jail; and therefore, that “ where an escape happens in consequence of the want of, or the insufficiency of a jail, the county must be eventually liable for the escape.” The case of Campbell v. Hampson, 1 Ohio, 119, was decided on similar principles. In the first case, the court (page 354) also decided that the amount recovered against the sheriff furnished the rule of damage in the case by the sheriff against the county. The sheriff, then, where-an escape results from an insufficient jail, is liable, in the first instance, to the plaintiff in execution; and the recovery against him-clothes him with power to coerce indemnity from the county. It seems to us to follow conclusively that, in the suit against the sheriff, evidence of the insufficiency of the jail could not operate on general grounds to discharge the sheriff from liability; and on that account, as well as because of its tendency to screen the county from its ultimate liability to indemnify the loss occasioned by the neglect of its officers, the evidence offered by the defendant on that point was properly rejected by the court.

An act of Parliament, in England, gives the action of debt to persons injured by an escape from execution. In that action the plaintiff recovers the entire debt for which his debtor was in execution. But debt for such an injury does not lie at common law; and our legislature has never provided for it in this state. The rights of the parties to the present suit remain as at common law, and by its rules we must determine the admissibility of the evidence rejected at the trial. The issue of not guilty admits the defendant to prove any matter which, according to the circumstances of the whole case, will, in equity, preclude the plaintiff from a recovery; or which tends, in case of recovery, to ascertain the actual amount of damages sustained. 1 Chit. Pl. 434; 8 Johns 453; Steph. Pl. 172. In such case the prima facie right of the plaintiff is to recover the whole debt due by his debtor, on proving the judgment, arrest, and escape. But this prima facie right may be rebutted by facts conducing to prove that in truth the loss was not the amount of the debt and to establish the exact injury. The total inability of the debtor to pay conduces directly to lessen the damages, and would be received to reduce them in all cases where the escape was not voluntary on the part of the officer. But a sheriff has no right to judge of the propriety of imprisoning persons ^committed to his charge, or to permit [15 debtors to go at large, in the expectation of reducing the damage to be recovered of him by showing that no good could have resulted fram continuing the party in prison. Whether the case at bar, when all its circumstances are disclosed, will fall within the first or second class of cases, we can not tell. The facts must go to the jury, and the court take care to instruct them how to apply the law to the case as they find it. The court, on the circuit, were in error in excluding from the jury the evidence offered of the debtor’s inability to pay, and for this reason a new trial is awarded, the costs to abide the event.


author: * Judge Wood

text:
    Ellis S. Baldwin v. The State of Ohio.
    A bill of exceptions, not made part of the record, can not be considered upon a writ of error.
    In a prosecution for keeping a disorderly tavern, it is not necessary for the prosecution to produce at tbe trial, tbe license. Equivalent proof may be given in evidence.
    This was a writ of error to a judgment rendered in the county of Preble, and adjourned here for decision from the Supreme Court of that county.
    The plaintiff in error was indicted, as a licensed tavern-keeper, for keeping a disorderly house. The transcript of the record, returned with the writ of error, shows a trial and conviction, and a motion for a new trial with the causes, and the decision of the court overruling the motion, with its final judgment. No notice is found of the tendering or sealing a bill of exceptions. A detached paper is certified by the clerk as a copy of a bill of exceptions filed in the cause. There was no assignment of errors.
    The paper produced as a bill of exceptions states that, on the trial, the prosecuting attorney, to prove that the defendant was a licensed tavern-keeper, produced the entry, in the journals of the court, granting him a license, and offered no other evidence to show that fact. The defendant moved the court to overrule the evidence, which the court refused to do.
    J. Woods, for plaintiff in error.
    McManus, prosecuting attorney, for the state.
   * Judge Wood

delivered the opinion of the court:

In civil cases, the bill of exceptions is made part of the record only on the application of the ^party. 29 Ohio Stat. 75. In criminal cases, it is made the imperative duty of the clerk to make the bill of exceptions a part of the record. 29 Ohio Stat. 160. If the clerk omit to perform this duty, the party is not without remedy, in the court where the omission takes place. But this court, upon a writ of error, can only notice matter inserted in the record. It can not look at that which ought to have been, but which is not so inserted. The paper, therefore, presented as a bill of exceptions, can not be made the foundation of a judgment here. Aside from this paper, there is no evidence before this court what the proof was, on the trial in the common pleas, nor what the charge was to the jury. Consequently, we can not pronounce that the common pleas have erred.

But if this bill of exceptions were before us, as part of the record in the case, what should be our judgment upon it ?

The statute, in defining the offense for which the party was indicted, uses the words “ licensed tavern-keeper.” The indictment avers that the defendant was a “ licensed tavern-keeper.” It became necessary to prove this averment. How should it be done? The license, if one issued, was in the hands of the defendant. ' The prosecution might have given him notice to produce it; and if he ■refused, might have given parol evidence of its contents. To prove that a license issued, circumstances might be resorted to: that the party kept a tavern, and that there was an entry of a license granted, entered on the journal of the common pleas. It would be, so far, legal testimony; and it could be no objection t.o the admission oí this evidence, that the prosecution did not go farther, and prove notiee to the defendant to produce the license, and then give evidence of its contents. The bill of exceptions, if looked to, only objects that the entry of license granted should be overruled, because no other evidence was offered that the defendant was a legally licensed tavern-keeper. The evidence conduced to prove the issue, and was admissible for that reason; not because it proved the issue entire. There could be no conviction without ■other evidence, such as that the defendant actually kept a tavern and a disorderly house, as charged in the indictment. One isolated fact, and nothing more, is presented. Against the proof of that, the objection would not be sustained. Upon either ground, the judgment of the common pleas must be affirmed.


text:
    *Bank of Steubenville v. D. Hoge and others.
    Where credit or time is given by the creditor to the principal debtor, the security or indorser is discharged, if the credit be given upon an obligatory-contract.
    The defense is admissible at law as in equity.
    This cause was reserved in the county of Jefferson. It was an action of debt upon a bond. The declaration was in the usual, form. The defendants, Hoge, Andrews, and Jenkinson, craved oyer of the bond, which was had. It is in these words : “ Know all men by these presents, that we, J. C. Bayless, D. Hoge, J. Jenkinson, W. R. Dickenson, and M. Andrews, are jointly and severally holden, and do stand bound and indebted unto the president, directors and company of the Bank of Steubenville, in the-full sum of seven thousand five hundred dollars, for the payment of which, in sixty days from the date hereof, well and truly to be made and done, at che Bank of Steubenville, to the said president,, directors, and company, or their assigns, we do bind ourselves, our heirs, executors, and administrators, firmly by these presents,” etc.
    Upon this oyer the defendants-named pleaded, in bar of the action, that in making and executing the writing obligatory, they made and executed the same as securities for John C. Bayless, the-principal debtor, for a sum of money borrowed of the plaintiffs, the plaintiffs knowing that they were such securities. That sineethe commencement of this suit, the plaintiffs made an agreement-with Bayless, the principal debtor, whereby they accepted from, him a confession of judgment for the whole debt, upon a stipulation entered on the minutes of the court, that execution should, be stayed, for one-third, eighteen months; one-third, twelvemonths ; and one-third, six months; without the consent or knowledge of the defendants.
    To this plea the plaintiff replied, that they ought not to be barred of their action by the matter set up in said plea, because the defendants jointly and severally bound themselves to pay the-debt, as in the bond stipulated. The defendants demurred.
    Stokely and Marsh, for plaintiff.
    D. S. Collier and C. J. Wright, for defendants.
   Judge Lane

delivered the opinion of the court:

The record presents two questions : 1. Is the surety in a bond 18] discharged by the ^obligee giving time to the principal without the surety’s consent ? 2. Is the surety estopped from setting up this giving of time, as a defense at law, where the relation does not appear on the face of the bond ?

The first question has been already decided by this court in a similar case. 5 Ohio, 207. We have only to repeat the opinion there expressed. A creditor discharges the surety by an agreement that suspends his right to proceed against the principal debtor, and that the defense can as well be made at law as in equity. The cases in 2 Bibb, 467, and 2 Randolph, 333, are almost identical with the present.

The other point, now submitted for decision, is, whether the obligor is estopped, by his bond, from showing his relation as surety, except where the face of the instrument affords evidence of the fact. The doctrine of estoppel proceeds upon the ground that an obligor is concluded, at law, by his own admissions, under his own seal, in the instrument against which the objection is alleged. But there is no attempt here to deny the obligation of this paper,, or to evade its admissions. Nothing appears on its face inconsistent with the suretyship of the defendants. The defense sets up a distinct and independent fact beyond the terms of the writing,, not controverting any of its stipulations. If the obligation recited that the obligors were principals, there might be color for the assumption that the admission concludes them. In the absence of such recital we find nothing to stop them from proving the truth.

We have found two authorities somewhat countenancing this application of the doctrtne of estoppel in this case. In Hart v. United States, 1 Gallison, 33, the judge intimates a doubt whether the relation of the party need not appear on the face of the bond to open the defense at law. This was a trial on the circuit, and we do not perceive that the point was one presented for decision. We find no principle to warrant this doubt, and can not adopt it.

In Theobald’s treatise on the Law of Principal and Surety, two cases are quoted, from the recent English reports, which appear to refer the defense to chancery. 1 B. & C. 682 ; 3 D. & R. 112. We have not access to those cases, and have but a meager abstract of the facts in one of them. We are too well persuaded of the correctness of our opinion to yield it to what we see of these cases. Wherever, by the forms of pleading, the evidence is admissible, the defense may as well be made at law as in equity; and we are unwilling to increase the delay, and to ^multiply [19 the expense of litigation, by sending parties into equity to make defense against suits at law; unless, by allowing such defense, we trench upon known and well-settled principles. Judgment for defendants.

Judge Wright, having been of counsel, did not sit in this cause.


text:
    Frederick Forsythe v. The State of Ohio.
    Objections to the array of a jury, because it has varied in unessential particulars from the law in the selection, will not be listened to, nor will they be received after challenge for cause.
    A venire for a petit jury should not contain a panel for a grand jury also.
    A contract to do an unlawful or immoral act will not be enforced in courts of justice; and the violation of an agreement to participate in crime will not excuse the other party who does the act agreed upon, or other criminal acts in endeavoring to commit it.
    A married woman is incapable in law to give consent to the breaking and entering the dwelling of her husband, with a view to the commission of adultery with herself.
    An indictment for house-breaking, and committing in the house an assault and battery under the statute, must aver that some person resided or dwelt in the house.
    Error to the common pleas of Huron county. The plaintiff in error was indicted, in the court below, for house-breaking. The indictment contained three counts: 1. For breaking and entering the mansion-house of A. Mason, and committing an assault and battery upon Mary, his wife. 2. For breaking and entering the mansion-house of Mason, in which he and his family then lived, and attempting to assault, beat, ill-treat, and abuse Mary, his wife. 3. For an assault and battery upon Mary Mason. The jury found the defendant guilty generally, and the court sentenced him to imprisonment in the cell o*f the county jail, to be fed on bread and water, for fifteen days; to pay a fine of two hundred and fifty dollars, and the costs, amounting to eighty-three dollars and five cents.
    The counsel engaged in the defense, during the progress of the trial, seem to have waged war upon the court, and to have exerted themselves to multiply the obstacles in the way of its advance. Exceptions were taken at every step of the trial, and to almost every word which fell from the court. The record is so lumbered up, and the case so involved in obscurity, as to leave it no easy matter to find out the true state of it. In the language of the record, counsel took, “exception to all and every of the acts and opinions of the court, in overruling questions and testimony, and in its in-20] structions and charge to the *j ury; in its refusal to charge, and generally in not permitting the defendant to make out hie defense, as he offered to do.”
    Eor alleged errors in the conduct of the trial, the plaintiff in error seeks to reverse the sentence against him. The assignment of error throws no light upon the subject. It is—
    1. That the court erred in its decision relating to the jury impaneled.
    2. That the court erred in every decision made against the defendant, as shown by the record, and in that which deprived defendant of his legal defense.
    3. That a great many other errors are shown in the case by the record.
    No argument was submitted on either side.
   Judge Wright

delivered the opinion of the court:

It is difficult gravely to respond to such an assignment of errors as is made on this record, or to grope one’s way along the labyrinth of the many bills of exception it presents. I must, therefore, try to generalize.

The first objections taken in the court below were to the array. These were made after challenges for cause had been interposed and decided, and the jurymen had taken their seats. They were :

1. That the venire only contained the names of the petit jury, when it should have contained the names of the grand jury also. This was overruled. The defendant then moved to set aside the venire, and offered to prove, in support of his motion:

1. That the apportionment of jurors by the clerk was not in the ratio of the number of free white males in each township, as required by law.

2. That the clerk did not make a written statement of his doings, and give it to the sheriff.

3. That the apportionment was not made on the first Monday of September.

The court refused to hear the motion, and overruled the evidence offered in support of it.

What is erroneous in this proceeding ? The venire should not have included the grand jury. They are distinct bodies, and should be separately summoned. The statute, as we understand it does not require the two juries to be included in *the same [21 writ. The other objections to the jury, if all the party offered to prove be admitted as true, have no better foundation. The clerk is required by law, the first Monday of September, annually, to proportion the jurors for the year, among the free white males of twenty-one years old, in the respective townships, and give the ■same to the sheriff in writing, who, when he proclaims the October elections, is required to annex a notification to the trustees of townships of the number of jurors apportioned to each township. The trustees are, on the day of the election, to select good, judicious men, to the number required, and transmit their names to the •clerk. The names of the jurors thus selected, are written upon separate pieces of paper, and put into a box, from which the clerk, in the presence of the sheriff, thirty days before each court, draws ■out twenty-seven ballots, the first fifteen of whom are to be summoned as grand jurors, and the remaining twelve as petit jurors. This statutory direction to the officers should be substantially followed, yet we are not prepared to say that unessential variations would be regarded as affecting the array. We have never known, ■in this state, an objection of this kind before. The profession, by universal consent, refuse to notice such matters, as this in no way ■endangers a fair trial. The objection at best was a mere technical one, and, in the opinion of the court below, was not made in technical time. Technicality is never more appropriately resorted to, than to meet and put down technical objections.

The record shows that, during the trial, it was proven that the ■defendant, about noon, hired Mason to go with his team about twelve miles, for a load of merchandise, and gave him money to pay his expenses for the night. Mason went for the load, but instead of staying over night, returned about dusk, came home the back way to avoid observation, and early went to bed with his wife. About ten o’clock, footsteps were heard approaching. The ■defendant came on to the porch, tried to enter by each of two doors, but finding both fastened, he approached the window and passed it. He soon turned again, raised the window six or eight inches, and let it down again. He again raised it, and fastened it up; then, partly entering, the blind hit his back, and he withdrew, stood erect a short time, and then slowly and gently crept through the window into the house. When in, he seized the bed •clothes on Mrs. Mason’s shoulder, and pulled'them down. At this 22] instant, *Mason sprung from the bed, seized the defendant by the hair of his head, threw him down, and held him until he begged for quarter. He was then let up, and having got his hat and shoes from the porch, was taken into another room, and detained for a time.

The. legal questions presented by the counsel for the defendant, for the decision of the court during the progress of the trial, as we gather them from the record, may be resolved into two propositions :

1. Whether, in case the defendant entered the house with intent to commit adultery, and is foiled in effecting his object, he can be convicted, under the indictment, of breaking and entering and. perpetrating any other unlawful act.

2. Whether in such case, it is competent for the defendant to prove that he was in the habit of visiting the wife, in her husband’s absence, for criminal intercourse, as a fact from which the jury may infer that he broke and entered the house, and laid hands ■on the wife, with such intent only, at the time complained of?

The statute, 29 Ohio L. 144, prescribes the punishment for breaking and entering a mansion-house in the night season, in which any person shall reside or dwell, and committing, or attempting to commit, any personal violence or abuse. The intent with which the party enters forms no ingredient of the offense. The inquiries presented by the statute are.: Did the accused break and enter the house in the night season? If so, did he commit, or attempt to commit, any personal abuse or violence? In this case, there was no question before the common pleas as to the breaking and entering .the house with an illegal design — that of committing adultery. While prosecuting this unlawful purpose, the defendant rudely laid hands upon Mrs. Mason, and thus committed an act of violence or abuse, though of a less heinous character than he intended. Is he not answerable? If one strike another with intent to kill or maim, but fails of his object, that failure does not excuse him from liability for the assault and battery. If, then, the laying hold of Mrs. Mason was an attempt to commit adultery, it was an attempt at abuse of her; an attempt to do just what in fact was done, though not carried out to the full fruition of his hopes. What principle of law is violated in such case, by describing the act done in legal language? The first and third counts in the indictment charge the actual commission of an assault *and battery; the second, an attempt [23 •to commit one, and otherwise to ill-treat and abuse Mrs. Mason. The court, in resolving the propositions in the affirmative, in our opinion fell into no substantial error. The party is liable for the act done, if it be one of personal violence or abuse. The law does not require that those precise words should be inserted in the indictment, but only that some act shall be charged to have been done or attempted of that character. If the terms were less general, and limited the offense to a breaking and entering, and the-committing or attempting to commit an assault and battery, that particular act would be essential to the offense, and would have to be described.

The second general proposition, which conducts to the inquiries, how far the defendant had a right to protect himself, by reason of the consent of Mrs. Mason to his visiting her for criminal purposes, remains to be considered. The case made does not, in our opinion, require a very critical examination of this general proposition. We are not called upon to say whether one entering a house with the actual consent of the wife of the occupant, with a view to illicit intercourse, could be punished under the statute for breaking and entering the house. No such case is before us. The real question is: Would Mrs. Mason’s consent that the accused should visit her in the absence of her husband, or proof of his being in the habit of visiting her when her husband was absent, even íor a criminal purpose, conduce to prove her permission to him to break and enter the house for such purpose when the husband was present and by her side ? It is absurd to suppose so. The evidence rejected in that view, therefore, could not have benefited the defendant; and, if it could be of no advantage to him, he was not injured by its rejection. We incline to think a married woman incapable in law, by consent, to authorize a third person to break open and enter the house of her husband for an unlawful purpose. Such consent, though ever so formally given, could not justify or legalize an infraction of law, or sanctify an unlawful purpose, and will any one pretend that the entering a man’s house with intent to commit adultery with his wife, with any consent, save only that of the husband, is a lawful entry? Be this, however, as it may, the evidence of the defendant’s habit of visiting this woman, in this case, was properly rejected by the common pleas. The indictment does not charge the breaking and entering the house to 34] have been with any particular *intent, nor does the law require the intent to be set forth. The charge is for breaking and entering (without reference to the intent), and committing and attempting to commit an assault and battery upon Mrs. Mason, and to ill use her. The offense is complete without reference to the design of the party in entering. The objection urged, that if the accused had obtained the consent of the wife'to the unlawful interview, neither she nor her husband had power to withdraw it, because it would be a fraud upon the rights conferred upon him by the consent, is one that can meet no countenance where any just moral perception is found. The proposition is novel in our courts, and is supposed to have found its way into the temples of justice, for the first time, in this case. Does an agreement to disregard the decent proprieties which bind society together, and to-trample under foot the laws of G-od and man, impose upon the parties to it a legal obligation to be enforced in the judicial tribunals of a Christian community? Is it true that confederates in-crime are to escape punishment in order that their criminal engagements may be performed ? Not so. The law holds void and of no effect all contracts whose object is to violate its injunctions, or those of good morals. In providing punishment for criminal acts, while the mere intention to commit them is overlooked, the law holds out perpetual encouragement to the evil-disposed to abstain from crime; and it carries out the design in proffering absolution from legal obligation to perform unlawful agreements. The-wanton, immoral, and illegal conduct, charged upon the defendant below, in our opinion, is in no degree excused or palliated by any supposed violation of the alleged contract of Mrs. Mason to become a partner in his guilt. We see nothing in the conduct of the trial by the court below which requires of us to reverse the sentence against the plaintiff in error.

We are called, however, to look to the indictment to ascertain if it charge an offense which warrants the conviction. The statute provides punishment for the breaking, etc., of any mansion-house in which any person shall reside or dwell. It is descriptive of the offense to allege that the house broken is the residence or dwelling-place of some one. The first count is defective in substance in omitting this allegation. The charge of committing an assault and battery upon a person “ then and there in said house being,” can not, even after the verdict, be construed into an allegation that that person, or any other one, resided or *dwelt in [25> the house. The second count of the indictment charges the offense as in the house “in which the said Aurelius Mason and family then and there lived,” and is in substantial conformity with the statute. This count affords a legal ground for the whole sentence without resorting to the first or third. The rule in criminal cases is the reverse of that which obtains in civil, and if there be good counts to authorize the conviction, the bad ones are held not to vitiate the sentence.

The judgment is affirmed, and remanded back to the court of common pleas for execution.

Note. — The bill of exceptions set forth in the record of the foregoing cause, is copied below as a legal curiosity, •

“ In this case the counsel for the defendant moved to quash the venire for the petit jury, after the case was called and the jurymen had taken their seats in the box, for the reason, that it only contained the names of twelve persons, and because the venire for the grand and petit jury should have been made out together instead of separately (a copy of which venire is hereto attached and made part of this bill of exceptions), which motion was overruled. The counsel for the defendant then called on the clerk for the record of the proceedings under the act relating to juries, and no such record being produced, the defendant’s counsel then offered to prove, by parol, by the clerk of this court, coupled with a motion to set the venire aside and quash the same : 1. That the apportionment, made by the clerk, of jurors, was not in the ratio of the number of free white male inhabitants in each township, contrary to the second section of the act relating to juries. 2. That the clerk did not make, in writ, ing, a statement of the number of jurors apportioned to each township, and deliver the same to the sheriff. 3. That if any apportionment of jurors was made by the clerk, it was not made on the first Monday of September. 4. The clerk has no record of his proceedings in the matter of the said apportionment of jurors. These motions were made after challenges for cause had been made on the part of the prosecution; which testimony, so offered by the defendant, the court overruled and refused to hear, and decided the motion •against the defendant; to all which opinions and doings of the court the said defendant here excepts. And the jury being impaneled and sworn to try the issue joined, the state, in order to make out the issue on her part, produced as a witness, Aurelius Mason, who was sworn, and in his examination in chief, stated that on August 24, 1832, the defendant came to him and said he had a box of saddle-ware at the mouth of Huron, and wanted witness to go with his team and get it. Witness made excuse and said he could not go — this about ten o’clock in the day — that defendant went out and was gone about an hour, and then returned, stating that he could get no other team, and he would not have it remain out on the dock for twenty dollars for that night. .The witness thought at length that he might possibly go, consented and got ready about twelve o’clock, and went down to the mouth of river, and returned with *the box, and left some mill irons at Milan on his return; [26 that he got home a little after dark, eat his supper and went to bed. About ten o’clock in the evening heard footsteps on the porch, and then the person went to the door and gently raised the latch; and that door being fastened he went to the other door, and that being' also fastened, he turned and went to the window, and went past it, and then turned back and raised the window six or eight inches, and then let it down, and then raised it again and put piece of broom handle under the window and partly entered; that the window paper struck his back, and he drew back and stood erect, and then after a little came in gently, some time in getting in, and when in seized hold of the bedclothes and pulled them part of the way down; then witness jumped out ■of the bed and caught him by the hair of his head, and that the defendant •sprang for the window, but witness pulled him back and pulled him down .and put his knee on him, and defendant cried for mercy; that witness held ■the bed-room door while he put some clothes on, and then both defendant and witness went into the other room, and defendant asked to go out to shed and and get his shoes and hat. Witness’ house in Huron county; this affair happened there. Defendant seized the bedclothes near his wife’s shoulder; the person who did this was Frederick Forsythe, the defendant. [The defendant forbears his cross-examination for the present, not waiving the ■right.]

“ Mrs. Mary Mason was then called on behalf of the state, and being sworn, she stated that the first she heard was a footstep on the porch; that the person went to the kitchen door, and then he went to the square room door— then he went to the window, and then he went to the bed-room window and made some noise on the window, and got in and took hold of the clothes and pulled them down from her shoulders; then her husband seized the defendant. About ten o’clock.

“Cross-examined: States that she had not fairly been asleep — in a doze; at first she heard step on the shed, then at the latch of kitchen; it was but little distance from bed-room. He then went to square room door, and then raised the latch of that door, lightly; then went to square room window and tried to raise it; no tapping at door; might have been on bedroom window; gentle taps; window not fastened, that is, bed-room window; the stick had been used under the window, but she did not know where it was then; the window was raised; did not come in, passed, then came in before letting window down; then went directly toward bed; was in his stocking feet on the porch, light step; no carpet in the bed-room; not a word was said; husband had been in bed an hour; she spoke to him in an undertone; said that some person on the porch; did not suspect who until he came; lay still: it was between half and three-fourths • of an hour between the time of his getting on the porch and getting into bed-room; her person not injured; saw Mr. Forsythe; said nothing to her husband; he would see him in morning; and the defendant went to the door; no conversation between the defendant and her; and after defendant went away, she asked her husband why he let him go. When she whispered to her husband that some one on porch, husband said, lie still, and we will see who it is; when he went to room window, she told her husband it was Forsythe; in whispers; the head of the-bed was west; saw defendant’s face in window; she lay foreside of bed; there was a man by the name of Sarnia, and one by the name of Felt, boarding there at the time; they slept in another room; Mr. Forsythe lives just opposite; frequently saw defendant; the said boarders not waked that night that she knew; saw defendant that afternoon; just after husband was gone; he came in and handed paper for her husband to take to Milan; did not sit down as she remembered; stayed little while and then went; defendant was at her house twice before her husband went away, to get him to go; said the first time that be wanted her husband to go; not many words passed; nothing said 27] about his coming home, only she asked him when he ®would come; her husband told her that Forsythe had given him one dollar to pay expenses for the night at mouth of Huron; returned a little after dark; was up; did not see the team; when letter brought by Forsythe, he did not say that her husband would stay all night; don’t know but she asked defendant if her-husband could go and get back that night; nothing said about repairing wagon; married before she came here; five years since they went to live where they now live; families of her husband and defendant on good terms; never visited ; Mr. Forsythe was in there occasionally; defendant there frequently last summer; on friendly terms all last summer except one little spell; her husband did not deliver the box that night; next morning it was delivered; Mr. Forsythe occasionally held conversations with her in the absence of her husband at her house. This question was then put by defendant’s attorney: Has-not Forsythe for four or five years past, in the absence of your husband, frequently called in at your house and held conversations with you, and have not you and your husband in all that time been on terms of neighborly and friendly understanding with Forsythe? This question was objected to by the state’s counsel, and by the court overruled, as a question not proper to be put. "Witness stated further, that from the 11th of May to July last year, there "Were hostile feelings existing; do n’t know that there was any on the part of her husband, and between him and Mr. Forsythe, but there was between herself and defendant at the time of the alleged offense. The defendant’s counsel then put the question: "What was the cause of these hostile feelings on. your part? Which question was objected to by the state, and overruled by the court. This question was then put by the defendant: Between the 11th of May last and the 24th of August following, was there not an interchange of neighborly acts between yourself and the defendant? Which question wa3 also objected to by the state, and overruled by the court. This question was then put by the defendant: Do you know of any other reason than that difficulty of the 11th May spoken of, that existed, orthat youhad given that evening, or immediately before, why the defendant should make an attack on your person? She says there was no cause of offense given him before that day; she do n’t know that Mr. Forsythe was angry with her that day or that evening; defendant had not given any offense that night; no angry words passed that day; all the doors locked that night; was her hahit to fasten the windows nights when her husband absent; did not expect her husband would stay all night; after the defendant came in, or very near in, he tapped; thinks it was on the wall after he came in; her husband wanted her to keep still; when partly in he hit his hack against the window curtain, and drew back again; felt afraid to stay because the neighbors had been disturbed, and she had been a little herself; neighbors all afraid; and I told my husband if he did not come home that night, I would go to my sister's and stay, with my ■children.

“ Ee-examined by the state’s counsel: She says that when defendant handed the paper in after her husband had gone, he said to her, leave that door unfastened, and immediately went out, and she did not answer; she was flustrated; that she told her husband after his return, that defendant had requested the ■door to be left unfastened.

“Aurelius Mason, cross-examined by defendant: Says it was a little after •dark when he came back; drove pretty fast; it was sundown when he was at Milan ; he drove up hack alley or street; he frequently did so late, and he turned his horses in his oat-field; delivered the box next morning; left it by white store next morning; took the box and wagon up there; was about eleven o’clock when defendant went to him to get him to go to Huron with wagon; he, witness, made an excuse; told defendant wagon was loaded and out of order; told defendant he could not get back, and was out of money to •bear expenses, and defendant gave him one dollar, and told him to tell the landlord, in case the bill was more than that, that he would foot it; took paper with directions «where to carry castings that he was to bring from [28 the mouth of Huron; defendant said he would call and leave the order .at his house; did not go into the street that night; set up a little while after hack; it was Friday; had kept the horses a few nights previous in the oat-field; two or three nights only; left the goods out all night in the wagon; water would have run in it if it had rained; cloudy; the first he heard of Mr. Forsythe was on the porch; then it was silent; latch might have been lifted once or twice; latch on the door; there was a bed in the kitchen; he went then to square room door; passed by the window in the bed-room; then turned Around; no stick under the window; window not in general fastened; is toward Jenny’s tavern; window on the east side; bed on the west side, and the head to the porch: twelve lights, 8 by 10 glass, with paper window curtains; one man by the name of Samia, and one by the name of (not recollected), a •shoemaker, that was there; not halloo for them; defendant in the kitchen where fire made; threw him down on the floor; had his hands on his head; had his head out of window; supposes the curtain up; saw him when defendant caught hold of covers; did not see him strike her ; made quick move after in bed; neither shoes nor hat on; that defendant spoke to him at his gate next morning to take a walk; went to tan-yard; went to hark-house; did not name any sum; did not accept any; thinks did not; defendant on Sunday; witness told defendant it was not for him to settle; met three times on Saturday ; had not a conversation at tannery at any time when defendant was called off; it was before breakfast on Saturday that he talked with Forsythe; saw-him in the street; and defendant backward; did not advise with any lawyer to take money; some time in the spring, May last; defendant made an assault on wife, 1832 ; after she told him, witness, that defendant came to house with paper, he suspected defendant; wife did not tell him anything; the reason that he did not prosecute Forsythe Saturday was that he was sick; took the-dollar because he did not know but that he might want it. State rests.

“Defendant called Mr. Horten, who was sworn,'and said that he remembered that Mason went to the mouth of Huron river; did not see Mason that night; witness slept in his shop, fifteen feet only from Mason’s house.

“Mrs. Peverwell was then called on behalf of the defendant, and was-sworn, and the defendant put this question: Do you know that for months-previous to the act complained of, there was a general license on the part of Mrs. Mason, for the defendant to visit her in a confidential manner ? Which question was objected to, and overruled by the court. This question was then-propounded to the witness by defendant: State what you have heard Mrs. Mason say respecting Forsythe’s visiting her, in the absence of her husband, privately and confidentially; which is also objected to by the state, and overruled by the court. The defendant then put this question: Do you know, from Mrs. Mason, or otherwise, that previous to the time when this assault and battery was supposed to have been committed, that Mrs. Mason had given-Mr. Forsythe a general permission to visit her confidentially in the absence •of her husband? Which question was objected to, and overruled by the-court, not because the question was a leading one, but because it was incompetent evidence. The defendant then offered to prove by this witness, that-Mr. Forsythe had been in the habit of visiting Mrs. Mary Mason, in the absence of her husband, with her consent, for illicit purposes — and this previous to the offense laid. Which testimony the court also precluded from going to the jury, and overruled. Whereupon the defendant rested his oause, and takes exception to all' and every of the acts and opinions of the court, in overruling the questions and testimony aforesaid, and in not permitting the defendant to make his defense as he offered to do as aforesaid.

29] “After the argument, the defendant’s counsel requested the court to *instruct the jury as follows, as applicable to all but the last count in the indictment: 1. That every assault and battery includes, as an integral part of it, a rude, wrongful, or angry manner; and in this case, if Mr. Forsythe had not a hostile intention — if he merely wished to have illicit intercourse with Mrs. Mary Mason, with her consent, then the intention on his part to commit an-assault and battery is barred. 2. That the specific intention of beating this woman must be proved; and that it matters not whether she consented or not, if he acted on the faith of any understanding, or supposition of any understanding, or license, it is sufficient for his justification. Her consent or dissent, at the time of the attempt made, constitutes no part of any crime that can be imputed to the defendant; it is only referable to what his intentions were, and if it had so happened that the wife had given encouragement to Mr. Forsythe before her husband had went away from home, and he came back contrary to her expectation, and she had withdrawn her assent after her hus* band’s return, without the defendant’s knowledge, it would operate as fraud on the defendant. 3. If Mr. Forsythe either entered the house, or pulled the clothes down from Mrs. Mason’s person, with an intent of committing adultery with her consent, the defendant is not guilty, for his general illegal intentions, or intention to commit another crime than that charged, not amounting to a felony, can not be applied to this specific offense to make out the guilty intention — that rule only applies to felonies. 4. If the window was not fastened, but continued closed only by its own weight, the raising the window by defendant is no breaking open, within the words of the statute on which this indictment is predicated. 5. That it was -necessary that the defendant should have entered with an intent to commit an assault and battery, and that that intent should be carried into effect. Which instructions the court did refuse to give to the jury, and did instruct the jury, that each and every of said propositions to be unfounded in law, as applicable to this case. And the court did instruct and charge the jury, that if the wife, Mary Mason, had withdrawn her assent, by reason of the return of her husband, as contained in said second proposition submitted by defendant’s counsel, though the defendant acted on the faith of a previous assignation, he was guilty. And the court did further instruct the jury, that if Mr. Forsythe had, previous to-the offense charged, a general license from Mrs. Mary Mason to visit her confidentially, in the absence of her husband, or if he visited Mrs. Mary Mason for illicit purposes, in pursuance of a previous license given him by her, that it still made out no justification for the defendant, unless the jury were satisfied that she assented at the time. And the court did also charge the jury, that no previous consent will justify a wrong-doer in presuming or attempting to commit adultery; that he proceeds at his own peril, and if consent is withdrawn, he is criminal if he uses violence. That if there was any unlawful touching of the person of Mrs. Mary Mason by the defendant, without her consent at the time, it was a personal violence, and the defendant was guilty in so doing.

“To all which opinions, charges, and instructions, and to the refusal of tho court to charge the jury as desired by the defendant, the said defendant now excepts, and prays the court to sign and seal this, his bill of exceptions.”


text:
    *J. Thompson, Adm’r of R. Scoggins, v. A. Atherton.
    The judgment lien is lost, if execution is not sued out and levied within a year, as against a subsequent bona fide creditor, where execution is levied within the year.
    This case was adjourned from the county of Hamilton. It was a
      certiorari to reverse an order of the court of common pleas of Hamilton county, distributing certain moneys, made by the sheriff, upon execution. The controversy arose upon the following state of facts:
    At March term, 1824; of the court of common pleas of Hamilton, John Thompson, as administrator of R. Scoggins, recovered a judgment against Joel Scoggins. Upon this, a writ of ft. fa. was regularly issued from term to term, the last of which was dated March 3, 1832; and, on the 14th of the same month, was levied on certain real estate of Joel Scoggins, which was legally sold, and produced two hundred and eighty-eight dollars.
    The February term of the court of common pleas, for 1832, commenced February 21st, and continued throughout the month of March. At the commencement of this term, a suit was pending in the court of common pleas, A. Atherton v. Joel Scoggins. On March 20, 1832, judgment was rendered in the suit against Scoggins. On the 10th of April, execution on this judgment was levied on the same real estate upon which Thompson’s execution was levied. Both executions were returnable to August term, 1832.
    Upon the return of these writs, that certain moneys were made, both plaintiffs claimed to have each his judgment preferred. On the motion of Atherton, the appropriation was made in his favor. Thompson took a bill of exceptions setting forth the facts, and brought this certiorari to reverse the order.
    Wade and Woodruff, for plaintiff.
    Strait and Hawes, for defendant.
   Collett, C. J.,

delivered the opinion of the court:

In the case of the Urbana Bank v. Baldwin, 3 Ohio, 65, this court decided, that where a suit was pending at the commencement of a term, the judgment rendered on any subsequent day of the term related back to, and attached its lien, as of the first day of the term. In that case, Baldwin was a bona fide purchaser, after 31] the commencement of the term, but before +Mie day the judgment was confessed. The lien of the judgment was held to attach against him.

Subsequent to this adjudication, the legislature enacted the law under which this case is presented. Section 2 provides, “ that the lands and tenements of the debtor shall be bound for the satisfaction of any judgment against such debtor, from the first day of the term at which such judgment shall be rendered, in all.cases where such lands lie within the county where such judgment was entered.” 29 Ohio L. 101. Section 23 of the same statute provides, “that no judgment heretofore rendered, or that may hereafter be rendered, on which execution shall not have been taken out and, levied within one year next after the rendition of such judgment, shall operate as a lien on the estate of any debtor to the prejudice of any other bona fide judgment creditor.”

Both these provisions are but transcripts ot the statute of 1824, the construction of which has been settled by a series of decisions in this court, in the cases of Urbana Bank v. Baldwin, McCormick v. Evans, Shuey v. Ferguson, and Earnfit v. Winans. By these cases it is decided that 'the execution must be both sued out and levied within the year, or the lien is lost if brought into collision with a subsequent judgment, which is so sued out and levied. Thompson’s judgment is in this predicament. The levy is overreached by the relation back of Atherton’s judgment to the first day of the term wherein it was rendered. The construction of the statute of 1824 was settled upon careful deliberation. By reenacting its provisions, the legislature have sanctioned that construction, and it must be adhered to. The order is affirmed.


author: Wright, J.,

text:
    *Burnet v. Brush.
    The act of 1831, for proving and recording deeds, makes a duly certified copy evidence, without accounting for the absence of the original, though the party offering it he the immediate grantee.
    Trespass, guare clausum fregit, from Trumbull. Plea, not guilty, with a notice that the freehold in the close was in the defendant. At the trial, the defendant offered in evidence a certified copy of the record of a deed from his immediate grantor to himself. The plaintiff objected to this testimony, but the court admitted it. A verdict was taken for the defendant, and the plaintiff moves for a new trial, because the court erred in admitting a copy of tho record of the deed, without requiring the party to account for the non-production of the original.
    T. D. Webb and D. Tod, for the plaintiff.
    C. Pease, contra,
    cited 29 Ohio L. 349.
   Wright, J.,

delivered the opinion of the court:

In 1820, the legislature, probably with a view of doing away the necessity of proving the existence of a record, before copies of them were admitted, enacted that copies of records should be prima facie evidence of the existence of such records. 22 Ohio L. 222. Under this act, a practice obtained to admit in evidence copies of the record of remote deeds in lieu of the original, but requiring the production of the original deed from the immediate grantor of the party relying upon it, on the supposition that he had in his possession the original deed, which was better evidence of its contents than a copy. Undesr this practice, we are not aware that any inconvenience was felt, or any injustice done.

In 1831, the legislature, with full knowledge of the practice, changed this law. Section 10 of the act for the proof and acknowledgment of deeds, 29 Ohio L. 349, provides that all’ copies-from the records of deeds, duly certified by the recorder, with his official seal affixed thereto, shall be received in all courts and places within this state, as prima facie evidence of the existence of such deed, and as conclusive evidence of the existence of such record. The language used here seems to admit of but one interpretation; it is certainly unequivocal. When the law prescribes that such 33] copies shall be received as evidence *in all courts and places within this state, there is no latitude for the construction of a court. The competency of the legislature to declare what shall be evidence is not disputed; and it is palpable that body has declared the copy of the record shall be received as such. Although we know not the reason of the change in the law, and might be led to doubt the expediency of it, yet it being the law, we have no choice but to give it effect in the proper case.

New trial refused.


text:
    N. Torbet v. G. Coffin.
    An appeal from the judgment of a justice, produced to be docketed in the common pleas, at the second term after it is taken, an objection to its-being docketed overruled; issue made, and prosecution to final judgment. It is not too late to revise the order docketing the appeal on writ of error-
    Appeal from the judgment of a justice must be docketed at the first term of the common pleas to which it is taken.
    This was a writ of error to a judgment of the court of common pleas of the county of Fayette. The case presented is as follows:
    On March 28,1828, Coffin recovered a judgment against Torbet, before Samuel Loofborougb, a justice of the peace, for seventy-five dollars and costs. From this judgment an appeal was regularly taken, by Torbet, to the next court of common pleas, and perfected before the justice. At the June term, 1828, being the term of the court of common pleas of Fayette county, next, succeeding the rendering of the judgment, the appeal was not docketed, or any notice taken of it in court. At the September term, 1828, being the second term, the appellant appeared, and moved to docket the appeal, upon an affidavit of his counsel, that the omission to docket it at the first term was in consequence of an agreement with the plaintiff, that if the appeal was not docketed he would discontinue the suit, or cancel the judgment. The court allowed the appeal to be docketed. Pleadings were proffered, and an issue of fact finally made and submitted to the court for trial, who found for the defendant, and entered judgment accordingly. To reverse this judgment the writ of error is-brought, and the principal error assigned was the docketing of the appeal at the second term.
    *R. Robinson, for the plaintiff in error,
    contended that this [34-was a case where the terms of the statute were peremptory, and no discretion was confided to the court. He cited 4 and notes in 1 Cond. Rep. 260.
    No argument was submitted for the defendant in error.
   Judge Lane

delivered the opinion of the court:

The plaintiff in error, having pleaded to the action, made an issue and taken a trial on the merits, it is suggested that his objection to the docketing the appeal comes too late. The course of decisions which we have found seems to have established the practice that where the ground of objection appears in the record, and the party has resisted the jurisdiction, as far as he was permitted, his submitting to proceed and try the cause on its merits, does not preclude him from taking the exception in the revising tribunal.

The next question presented is, is it competent for the court of common pleas to place an appeal from the judgment of a justice upon the docket at any other term than that to which the appeal was taken ? The court answer this question in the negative. Perhaps cases may occur in which the common pleas ought to allow such appeals to be docketed on a day subsequent to the second day of the term to which they were taken. This would be where, by accident or mistake, and without the neglect of the appellant, or by the contrivance of the appellee, the appeal was not docketed on the second day. For some purposes the term is considered an entire day, and the journal of every day, so long as the term continues, is open to the correction of the court. After the close of the term, it is holden that the court can enter no order nunc pro tunc, unless one was actually made, and omitted to be entered. 1 Ohio, 375 ; 3 Id. 486, 575.

The authority to set aside an irregular judgment, at a subsequent term, does not imply a power to enter a judgment where none existed before. 3 Ohio, 16. Where no appeal is entered at the term next succeeding the day the - appeal was taken, the parties are beyond the jurisdiction of the appellate court, and can not be recalled, as the law now stands. The remedy, if a case is made for one, must be sought in chancery. 4 Ohio, 190.

Judgment reversed.