author: * Judge Hitchcock

text:
    *Calvin G. Sutliff, Ruel Miller, Henry W. Smith, Chauncy H. Wilcox, and Levi Sutliff v. Daniel Gilbert.
    It is no causo for setting aside tbe verdict of a jury that, when agreed upon, it is written and sealed, and the jury separate, if afterward they come-into court and report the sealed verdict.
    It is not misbehavior in a jury, in a civil case, to make up and seal a verdict, and then separate; nor is it error in the court to reassemble the jury and send them out to correct such verdict.
    In an action of trespass, a general verdict for the plaintiff is equivalent to-finding all the defendants guilty.
    Plaintiff can not use the allegations in a defendant’s notice as admissions of' facts to affect him before the jury.
    This case was removed from 'the Supreme Court of the county ©f Trumbull to this court by writ of error.
    The original case was an action of trespass de bonis aspertatis commenced by Gilbert, the defendantin error, against the plaintiffs-
    To the declaration the defendants pleaded the general issue, and, at the same time, gave notice in substance that on the trial of the case they would insist, by way of defense, that the goods in controversy were the goods of one Garry Lewis; that several-judgments had been recovered in favor of divers persons in the-court of common pleas and Supreme Court of Trumbull county against said Lewis, on which executions had been issued and delivered to the defendant, Smith, as sheriff of sai'd Trumbull county;. that the said -Smith, by virtue of said executions, levied'upon said goods as the property of said Lewis; that the other defendants-acted as the servants and assistants of said Smith in making said levy, and by his direction ; that the said Smith having so levied-upon said goods on February 2, 1836, caused public notice to be given according to law that he should sell the same at public auction, as the law directs, on the 15th day of said February. . And that afterward, in accordance with said notice, “the said Smith proceeded to sell the said goods and chattels at public vendue on. the said 15th day of February, and did sell all of said goods and chattels agreeably to said notice, at said public vendue, for a large amount of money, to wit, the sum of $2,500, and applied the full amount,” etc.
    At the last term of the Supreme Court of Trumbull county, the1 cause was submitted to a jury, and a verdict returned in favor of the plaintiff for $2,882.04 damages.
    The defendants then moved for a new trial for various reasons, but the motion was overruled, and judgment rendered on the-verdict.
    Subseqtiently the defendants, by their counsel, tendered a bill of exceptions, which was sealed by the judges holding the court..
    This bill of exceptions discloses the following fact: The jury,, after hearing the testimony, argument of counsel, and charge of the court, retired to consider of their verdict, and agreed upon, *wrote, signed, and put under seal a verdict in the words and figures following, to wit:
    “Daniel Gilbert v. H. W. Smith. It is the opinion of the jury that the plaintiff shall recover the amount that was made out of the goods at sheriff’s sale, with interest from the date of the-levy; the jury are unable to find any document among the papers-delivered to them by the court or the parties whereby they can ascertain the exact sum, therefore they are compelled to give their-verdict in this indifferent manner.” Signed by all the jurors.
    The jury having agreed upon this verdict, without the order or-leave of the court or of the parties, left their room and dispersed for a number of hours, and the next morning upon the coming in of the court, the above-mentioned verdict was delivered by the jury to the court. “Whereupon the court instructed the jurors again to retire to their rooms and determine upon the amount of damages from any materials in their possession, and advised them ■that, in the absence of other testimony, they might adopt the sum alleged in the defendants’ notice to have been made out of the goods as evidence of such amount.” The counsel for the defendants excepted to the sending out of the jury after they had dispersed as aforesaid; also to their-finding any amount when it could not be ascertained from any evidence previously submitted to them, and also to the instruction of the court as to the evidence to be derived from the notice. The jury again retired, and subsequently returned a verdict, as before stated, upon which judgment ■was rendered.
    To reverse this judgment this writ of error is brought. •
    The errors assigned are:
    1. “The court instructed the jury to retire again to their room for the purpose of finding again in said cause, after they had delivered their said finding in court, and had been a long time dispersed.”
    2. “The court instructed the jury to retire and find some .amount of damages against the defendants, when, by the said written verdict, said jurors had not found said defendants guilty, and had expressly found that said plaintiff had not proved him:self to be entitled to any damages in said cause.
    3. “The court instructed said jury that for the purpose of enabling them to find some amount of damage against said defendants, they might regard the notice filed by the defendants’ ^counsel, under the plea of the general issue, as evidence against said defendants.”
    M. Sutlirr, for plaintiffs in error:
    Insisted that the jury having agreed upon a verdict, although the same was informal, and having then separated for hours, could not, with propriety, again be permitted to retire and con.sult upon the case. And, further, that the jury having fully examined the evidence submitted to them, and having returned into court and stated that there was nothing in that evidence which would enable them to assess damages for the plaintiff, in accordance with the rule by them fixed for the assessment of such dam.ages, could not, consistently with the principles of law, be again returned to their room for further consultation.
    As to the third error assigned, he insisted that the court were clearly wrong in permitting the jury to receive as evidence .against the then defendants an allegation contained in the notice attached to the plea of the general issue. Even where there are,, under the statute, several pleas, and issues joined upon all, the facts admitted by the defendant in one plea can not be evidence in favor of the plaintiff to sustain the issue upon another, and this, notwithstanding the rule that facts admitted by the pleading need not be proved by the parties. A notice attached to a plea of the general issue is no part of the record in a case; it is-intended"merely to give a plaintiff notice of the defense relied upon, and in no case can it be made use of as evidence against the party filing it. Upon this point in the case he cited 2 Saund. Pl. & Ev. 724; Weller, 380; 1 Chit. Pl. 480; 2 N. Hamp. 89; 8 Johns. 109; 13 Ib. 229, 475; 10 Ib. 142; 14 Ib. 89; 20 Ib. 749; 2 Tyler, 74.
    Wm. L. Knight, for defendant in error:
    Argued that inasmuch as the jury had settled the rights of the> parties so far as the issue was concerned, and nothing remained for them to. do but to compute the damages upon the principles-settled, it was proper for them again to retire to make their computation. And, further, that the sum stated by the defendants in their notice ^s being that for which the goods were sold by the sheriff, might with propriety be by the jury taken into consideration in making the computation.
   * Judge Hitchcock

delivered the opinion of the court:

Two questions seem to be necessarily involved in the examination of the first error assigned in this case. The first is, whether' after a jury have retired to consider of their verdict, and shall have separated before returning their verdict to the court, they can afterward be permitted to retire to their room and further deliberate upon the case submitted to them; and, second, whether it-is in the power of the court, after a jury shall have agreed upon their verdict, and delivered the same in court, to send them out again for further deliberation.

As a general rule, a jury shall not be permitted to separate,, after retiring from the bar of the court, until they have agreed upon their verdict. Still, there may be peculiar circumstances which would, to some extent, justify a separation. But in no case-would it be proper for individual jurors to mingle with others than their fellows until a verdict is found. And should a jury, of their own pleasure, having been put in charge of a case, leave their room and mingle with the people of the town or vicinity, and. ^afterward return to their room and agree upon a verdict, it would be good ground for a motion to set aside the verdict, and for a new ■trial.

Formerly, jurors were not permitted to separate .until their verdict was returned into court; and in order to compel them to .agree, they were deprived of the necessaries of life for the time being. But these rigid rules have been much relaxed in the practice of this state. We do not, it is true, permit jurors to separate until a verdict is found, but we allow them all necessary refreshment, and when they have agreed upon a verdict, if the ■ court is not in session they are permitted to put it under seal, and then separate. This verdict they return when the court again convenes. The verdict thus returned has the sarne^ effect, and must be treated in the same manner, as if returned in open court» before any separation of the jury had taken place. But if, after' having once agreed, and put their verdict under seal, a jury shall separate, and subsequently meet in their room and change this sealed verdict, such altered verdict could not, with propriety, lay ■the foundation of a judgment. Such conduct in a jury would constitute that degree of misbehavior for which a verdict ought to be set aside. The most common practice of this court is to direct the jury that if the court shall not be in session when they shall have agreed, to return their verdict to the clerk; and if he can not be found, to put it under seal, and bring it in at the open-ing *of the court In thus far relaxing ancient rules, we have experienced no inconvenience, and I have no doubt we might go further without any danger; for I believe the more confidence is placed in jurors, the more they are treated like reasonable men, the more will right and justice, through their instrumentality, be done. ,

In the case under consideration, the jurors did not misbehave. They did not separate until a verdict was found and placed under seal. This same verdict was, at the opening of the court on the ■next morning, delivered to the court. As before remarked, it must be treated and considered the same as if returned before there had been any separation of the jury. The question then arises, whether the court, after a jury have once returned a verdict, have the power to remand them to their room for further .consultation. When the jury return a general verdict settling the .rights of the parties, and upon which a judgment can be entered, or where they return a special verdict, finding the facts of a ease and leaving the questions of law arising upon those facts to the court, it would be improper for the court to send them out again . for further consideration. If such verdict was against law or evidence, the only relief against its effects would be on a motion for a new trial. But where the jury have decided the issue between the parties, but have failed to return a complete verdict, as> for instance, where, in an action on a promissory note, they have found for the plaintiff the amount of the note with interest, but have not specified in dollar’s and cents that amount, they may, with propriety, be returned to their room to make the computation of interest.

The case under consideration is somewhat analogous. The jury found in favor of the plaintiff; they fixed upon the rule of •damages, and that rule was, the amount for which the property in litigation sold, together with the interest from a specified time. Nothing remained but to compute this interest, and for this purpose the jury might well be sent out. It was not with a view to make any change in the verdict, or to settle any new principle, but to carry out the original finding. And if there was any evidence before the jury showing the amount for which the property had been sold, and which had by them been overlooked, it was proper for the court to refer them to it. There was, then, no error in this case, in sending out the jury a second time.

The second error assigned is intimately connected with the first, and only differs from it essentially in this, that by it it seems to be supposed that the jury did not respond to the issue between the parties, inasmuch as they did not explicitly say that‘the defendants were guilty of the trespass. It is rarely the -case in our practice, that the jury return a formal and technical verdict. They usually find in general terms for the plaintiff or defendant, and-the clerk, in recording the verdict, applies this finding to the issues made up- by the pleadings. In this case the jury found for the plaintiff, which was equivalent to finding the' •several defendants guilty; and the clerk very properly so recorded their verdict.

The third error assigned, raises the question whether a plaintiff can.make use of a notice-attached to the defendants’ plea of •the general issue as evidence against the defendant. This is believed to be a new question, so far as the practice of the courts of this state are concerned. By our practice act, a defendant may, by leave of the court, plead several pleas to the same action. ■He may plead the general issue, and one or more special pleas in bar. Now the principle is well settled, that what is admitted in pleading need not be proven. And a party will be stopped -from, proving anything inconsistent with, or against his plea. I apprehend, however, that this principle applies only to the admissions of the particular plea upon which the issue on trial is joined. A defendant pleads the general issue and a special plea in bar. In this special plea he admits, to a certain extent, the allegations of the declaration. Notwithstanding these admissions, upon the trial of the issues, the plaintiff must prove his case as set forth in the declaration, otherwise he will fail under the plea of the general issue. And in making this proof, he can not use the admissions in the special plea as evidence against the defendant. If this could be done, a great part of the advantage intended to be secured by the statute in allowing double pleading, would be lost. To take a. familiar instance: in an action of slander, a defendant pleads-the general issue, and a special plea of justification. An admission of the speaking of the words in this special plea does not exonerate the plaintiff from proving such speaking. I am aware that it was once otherwise decided in Massachusetts; but this decision is believed to be contrary to the decisions of the courts in England and in the other states of this Union. It. is certainly contrary to the uniform practice of the courts in this state. If such be the rules and principles with respect to *pleas, how is it with respect to a notice? Each plea must,

in itself contain a defense to the action. If the facts therein alleged are true, the plaintiff may demur to it, and thereby raise the question whether those facts constitute a defense. But it is not so with a notice. It can not be demurred to. So far it is not. a part of the record. It does not constitute the defense in the case. That defense consists in the denial of the whole cause of action by the plea of the general issue. If the notice, then, can be used as evidence by the plaintiff, it must be on the ground that it-is an admission or confession by a defendant of the facts therein stated. But this is not the character or intention of a notice. It is intended merely to apprise the opposite party of the matters and things to be relied upon in defense, in the event that the-plaintiff shall sustain his case by proof. Such being its character and intent, it would bo improper to permit a plaintiff to use it as evidence to make out his case. But even could it be used in evidence as a confession or admission, like every other confession, it must be taken all together. It would not be allowed to take a part and reject a part, but the whole must go together. And ifi taking the whole together, there is sufficient to exonerate the defendant from the action of the plaintiff, it must so operate. Otherwise a defendant would be placed in a worse situation by giving notice, than by embodying the facts contained in his notice in a special plea. Because, if embraced in a special plea, and a plaint* iff would admit any of them as evidence, he must admit the whole, as he does in effect, by a general demurrer. On the whole, we entertain the opinion that a plaintiff can not use the whole or any part of a notice, attached to a defendant’s plea, as evidence against a defendant, and this opinion is fully sustained by the authorities cited by defendants’ counsel.

In the case under consideration, the court directed the jury that, in the absence, of other proof, they might take as evidence against the defendants, an allegation in the notice as to the amount for which the property in litigation was sold at sheriff’s sale. In this there was error, and for this error the judgment must be reversed, with costs.

The case will be again set down for trial, and remanded to Trumbull county.


source: Caselaw Access Project

author: ^Hitchcock, J.,

license: Public Domain

text:
    *John Derush and Sarah his wife, late Sarah Stearns, v. A. C. Brown, the Heirs of Jenks Brown, Mary Belville, and Michael Cassilly.
    Declarations of the husband, seized of land in fee, can not be given in evidence to affect his widow’s claim for dower.
    A widow can not have dower in lands of which her husband held the legal title in trust for others, with no beneficiary interest in himself.
    Petition for dower, reserved in the county of Montgomery.
    The complainants state in their petition, that the said SarahDerush, late Sarah Stearns, intermarried with one Orris Stearns; that during coverture the said Orris was seized in fee of certian town lots in the town of Miami'sburg, county of Montgomery, and of other tracts or parcels of land in said county, as specified in said petition; that the said Orris in his lifetime conveyed the said lands to the said Jenks Brown and A. C. Brown; that the said Orris in his lifetime and during coverture had an equitable in terest in certain other lands in said county of Montgomery, which he also disposed of to the said Jenks and A. O. Brown without the consent of the said Sarah; that the said Orris died in 1831, leaving the said Sarah his widow and relict; and that the defendants have the next estate of inheritance in the land in the petition described. The complainants pray that the said Sarah may be (endowed of the premises, both legal and equitable.
    To this petition, A. O. Brown, Mary Belville, and the heirs of 'Jenks Brown, by their guardian ad litem, have answered. Michael ■Gassilly is in default.
    The defense set up in the answer is, that Stearns purchased 'these lands as the agent, and with the property and money of the ■said Jenks and A. C. Brown, and took a conveyance of them in 'his own name as their trustee, and that in- the settlement of their ■ concerns, he released to them any and all claim in the land.
    The case was argued at length by Lowe, for the complainants, .and Odlin, for the defendants. But as these arguments were principally upon the facts, it is unnecessary and would be difficult to .abstract them.
    On the part of the complainants, the following authorities were cited: 7 Johns. Ch. 243; 2 Vern. 436; 5 Johns. 412; 1 Ohio, 535; 7 Ves. 454, 425; 9 Ves. 500: 1 Ves. jr. 431; 5 Ves. jr. 189; 4 Johns. Ch. 604, 605, 482; 6 Johns. 290.
    On the paid of the defendants, the following: 1 Johns. Ch. 582; 2 Johns. Ch. 405, 409; 3 Johns. 216; 2 Sugden, 152; Gow on Part 255; 5 Ves. 189; 17 Ves. 298; 1 Ohio, 542; 4 Kent’s Com. 50; 3 Blackf. 7; 1 Taunt. 141; 1 Cr. Dig. 154; Bac. Ab. 380.
   ^Hitchcock, J.,

delivered the opinion of the court:

So far as l-espects the claim of the complainant, Sarah, to be endowed of the equitable interest of her late husband in the lands specified in the petition, it is easily disposed of. Section 1 of the •act of January 28, 1823, relating to dower, provides that a widow ■■shall be endowed of one-third part of all the lands of which her husband was seized as an estate of inheritance .at anytime during the coverture; and one-third part of all the equitable interest in lands of which the husband was possessed ¡it the time of his death. There is no pretense but that the equitable interests in the case under consideration were disposed of by the husband in his lifetime; of course, to these the widow can have no claim. If there had been fraud in the sale of these equities, if the object had been to deprive thq wife of her claim -to dower, the case might have been different. But there is no proof of any fraud or of any such object or intention.

There is a great mass of testimony in the case, which it would be an arduous as well as useless task to recapitulate. It will be only necessary to state the facts as deduced from that testimony. But before doing this, it is proper to state that a part of the evidence introduced by the defendants consists of testimony to prove the declarations of Stearns, made after he had acquired title to the lands in which dower is claimed. A deed of release fromStearns to the Browns, in which he admits that he purchased the lands in trust for the Browns, with their property, and as their agent, has also been introduced. To the competency of this testimony the counsel for complainant objects, and insists that such admissions, made either by parol or by deed, can not operate to-defeat a widow of dower, and of this opinion are the court. It is true that the right of the widow to dower is derived from the husband, and in a certain sense she may be said to claim under hirmBut in some respects her interest is adverse to his. By the marriage and seizin of the husband she acquires an interest in the land, of which he can not'divest her. He can not do it by deed of conveyance, and it would be strange if he could by parol declaration. Declarations made by the husband, while contracting for the land, or at the time of purchase, may with propriety be proven; but declarations made subsequently must be excluded. In considering this case, therefore, we have rejected the admission in the deed of release above referred to, as well as all the other declarations of Stearns made after he became seized of the land.

*There is also another portion of the testimony which we have felt ourselves compelled to reject, consisting of the statements of Stearns relative to his connection with the Browns, and of the circumstances under which he was transacting business for them. Most of the testimony introduced by the complainants consists of proofs of such statements; and, surely, if the right of the widow of Stearns can not be defeated by his statements, it can not be sustained by them.

Laying aside the testimony above referred to, and considering that part only which is competent, the following state of facts is proven :

Previous to the year 1824, Orris Stearns had been engaged in the clothing and cloth-dressing business, in Kentucky, and had failed. In that year, Jenks and A. C. JBrown established a store in Miamisburg, and employed Stearns as their agent or clerk, to take care of the same. He continued in their employ for a number of years, and was thus engaged when the lands in controversy were purchased. With the avails of the store the lands were in part paid for, and in part paid lor by the Browns themselves. Sterns also caused improvements to be made on some of the lots, and these improvements were paid for in the same manner as the lands.

An effort has been made by the complainants to establish the fact that there was a partnership existing between the Browns and Stearns, and there is testimony looking to that point. It consists, however, of loose declarations made by Jenks Brown, who is proved to have been a very intemperate man, and made, too, generally, if not uniformly, when he was intoxicated. There was a time, it is true, when there was an agreement in existence that Stearns should have the merchandise and all the other property if he would secure to the Browns its value; and during the existence of this agreement he carried on the store in his own name. This was after the purchase of the lands, and continued but for a short period, as Stearns failed in making the security. The weight of evidence is decisive that there was not, at any time, any partnership; and it is equally decisive that the land was paid for with the property of the Browns. Afterward, upon settlement, the deed of release was executed.

Here, then, is a case where an individual, intrusted with the property of another, disposed of the same and vested the avails in real estate in his own name; and his widow now claims dower in that real estate. It seems to the court to be a clear case of ^resulting trust, and that Stearns must be considered as holding the land in the character of a naked trustee. In such case is a widow entitled to dower ? Chancellor Kent says, “ as a general principle, it. may be observed, that the wife’s dower is liable to be defeated by every subsisting claim or incumbrance, in law or equity, existing before the inception of the title, and which would have defeated the husband’s seizin.” 4 Kent’s Com., 2 ed. 50. Inequity, at the inception of the title, this property was in the Browns, and a court of equity would have decreed to them a conveyance ; and in executing the release, Stearns done no more than a court of equity would have compelled him to do. At no time had he any beneficial interest in this property. He had merely a technical legal seizin. In the case of G-reen v. Green, this court say, in speaking of the widow’s interest in the estate of her husband, “ Her estate is but a part of his, is derived from him, and must be subject to all incumbrances existing against it at the time of the marriage, or the acquisition by the husband. The husband can by no act of his destroy or affect her right of dower where it has once attached, but it only attaches where he has a real beneficial interest in the lands, of which dower is claimed. Upon this principle it has been held, that the wife of a mere trustee was not entitled to dower in the trust estate, although the husband was at law seized of an estate of inheritance. A mere technical seizin of the husband, without any beneficial interest in the estate, will not entitle the wife to dower.” 1 Ohio, 535. If such are the principles of law, and that they are we have no doubt, then, in the case under consideration, the widow of Stearns is not entitled to dower, and the complainant’s bill must be dismissed.


author: Judge Lane

text:
    Goudy’s Lessee v. S. Shank.
    A guardian for minors, when all claim in one right, may institute proceedings for partition without process.
    The title of the purchaser in a sale, on proceedings for partition, is not affected by a failure to make returns of the purchase money, or obligations, into court.
    A deed upon partition is good, if acknowledged in open court, of which fact the clerk may make an official certificate, though there be no general entry on the minutes.

      Ejectment from Greene.
    The facts in this case are agreed, and show that the plaintiff makes title under the heirs of Andrew Goudy. The title of the defendants depend upon the validity of certain proceedings in the court of common pleas of Greene county, at the instance of the ^guardian of those heirs, These proceedings are sufficiently shown in the opinion of the eours.
    A. Harlan, for plaintiff, insisted :
    1. That the proceedings in the court of common pleas were extrajudicial and void.
    2. That no deed was properly executed by the sheriff under the proceedings.
    Odlin and Sohenck, contra, contended:
    1. That these proceedings were notadversary, but summary, under the statute lor petition amongst heirs. The petition is by the guardian of all the heirs of Goudy.
    2. That the acknowledgment of the deed by the sheriff, is certified by the clerk as done in court, and need not be evidenced by journal entry. * 1 Ohio, 315, 316 ; Wright, 95. It is a mere ministerial act. The bringing the money into court, and the securities for their approval, is but directory to the officer, and the omission will not affect the title of a third person purchaser. If the proceedings at the sale were regular,' that is sufficient for the title of the purchaser. Wright’s S. C. 529, 459; 4 Wheat. 503; 3 Ohio, 191; 1 M. & S. 425; 5 Barn. & Ald: 746; 13 Johns. 97; 1 Gal. 419; 3 Ohio, 561.
   Judge Lane

delivered the opinion of the court:

In November, 1824, Robert Scott, guardian of all the minor children of Andrew Goudy, filed his petition, stating that the southeast quarter section of land, No. 10, in township 6, range 6, descended to them, in which Mary Goudy, the widow, had right of dower. That expenses had been incurred in the support of the several children, to pay which it was necessary to seil this land, and praying the court to order the dower to be set off, to cause partition amongst the heirs, and for the sale of the shares of the heirs to pay the expenses of their subsistence. ^Sections 2 and 9 of the statute of 1820 (2 Chase’s Stat. 1162) authorizes guardians of minors to bring petition and do any act necessary to make partition of the lands of their wards. A Scott was guardian of all interested in this land, having the right both to institute and defend, or consent to proceedings. No process of an adversary character was necessary to confer jurisdiction upon the court.

*At the November term, 1824, the court finding the tendancy, order partition, and appointed commissioners to set off dower, and make partition. At the next term, the report of the commissioners is returned by the sheriff, showing dower, set-off, and appraisal of the land, because it could not be divided without prejudice. The report is confirmed by the court, and sale of the land is .ordered to be made by the sheriff, under the usual formalities, one-third of the purchase money to be brought into court, one-third to be secured by note or bond, payable in one year, and the remainder to be secured in the same manner, payable in two years, with interest. The case was duly continued until August, 1826, when the sheriff returned a sale to Eobert Dunlap, in conformity with the law ; that one-third of the money had been paid, or will be paid in hand, and the residue will be secured. Here the. record ends ; but a deed from the sheriff is produced, bearing date May 9, 1827, reciting the order, the sale to Dunlap for the consideration of §676, one-third of which is paid, and the remainder secured by notes, approved by the court, in two annual payments, etc., conveys the land to Dunlap. A certificate of the clerk, and the seal of the court, is appended, showing the acknowledgment of this deed in open court. There is no entry of such acknowledgment in the journal, nor of any act of the court approving the sale or security, or ordering distribution, of the money, but the sheriff will prove, if permitted, the acknowledgment of the deed in open court..

The plaintiff’s counsel assume that this sale is not to take effect, or the deed to be given, until after the money or securities are brought into court and distributed. The acts of courts in proceedings of this kind, being analogous to proceedings in rem, will always receive a favorable construction. 6 Ohio, 255. It will be observed that the statute requires no confirmation of the sale. Where the sheriff possessed authority to sell, his sale to a purchaser, in good faith, is effective. His other duties, prescribed by statute, are directory upon him. If he fail to bring the fruits of the sale into feourt, he becomes responsible to those entitled to them.

It is said, that an entry on the journal of the court, is the only valid evidence of the acknowledgment oF the deed in open court. It is believed that the clerk, in this case, has conformed to the common practice, in giving an official certificate of this sort, on the deed. And we think this practice may be justified; acts of the court, to be valid, must be entered on the journal; but acts of *the sheriff in court, calling for no judicial action, are sufficiently authenticated by the certificate of the clerk under the seal of the court.

We find no defects in these proceedings sufficient to render the sale void, and therefore the title of the heirs has passed. The widow is not a party before us; how far her rights were affected by these proceedings is not adjudicated in this case.

Judgment for the defendant.