author: *Judge Wright

text:
    Thomas Earl’s Lessee v. Jacob F. Shoulder.
    Proofs other than memorandums in writing on the minutes of tho court of common pleas, to show that a mandate to carry a judgment of the Supreme Court was issued, admissible. An execution issued upon it, and a levy made on such execution, may he submitted to a jury, and the- fact? may he rightfully so found on such proofs.
    Good practice requires of the clerk of the Supreme Court to add to the final record of appeal causes the order for a mandate to court of common pleas; and of the latter clerk to minute on the journal the judgment of the Supreme Court, the receipt of the mandate, and the order for execution.
    Where facts are disclosed on a motion for a new trial, affirming the correctness of the verdict, a new trial ought not to be granted, whatever errors may have intervened.
    Answer in chancery, by a defendant in ejectment, in a chancery case on the same subject, is admissible as proof of his declaration.
    This was an action of ejectment in the county of Ross. Yerdict for the plaintiff, and a motion for anew trial, which was adjourned for decision here.. Judge Wright thus stated the case:
    On trial the plaintiff offered the following evidence to the court and jury :
    1. The record of a judgment in the Supreme Court, in favor of Harris v. John Carlisle, in a case brought into that court by appeal from the court of common pleas, rendered at December term, 1822.
    2.. The clerk of the court testified that the execution which issued upon that judgment, was brought into court and used in evidence on the trial of this cause in the common pleas, but he has since been unable to find it.
    An entry of the execution docket of the court of common pleas was then read of the issue of an execution in a case of Harris v. J. Carlisle, on a judgment for the same amount and of the same date with that in the record from the Supreme Court; an entry, also, of the return on the execution of land sold to W. H. Douglass, made in 1825.
    Tarleton testified that he was sheriff in 1825, etc., and had the execution described in the entry in his hands; that he levied [410 on the land in dispute, had it appraised and advertised, sold it to W. H. Douglass, and returned it, with his proceedings thereon, to the court.
    3. An order of the court of common pleas, made at the March term, 1828, reciting the writ and the sale, confirming the sale as having been made in all things in conformity with the law, and ordering the sheriff to make a deed to the purchaser.
    4. A deed from Tarleton, sheriff, to W. H. Douglass, dated March 13, 1828, which recites a judgment in the Supreme Court on appeal, the mandate to the common pleas, and order of execution thereon also the execution, levy, and sale.
    5. Deed, W. H. Douglass to Wallace, dated November 14,1831.
    6. Deed, Wallace to the lessor of the plaintiff, December 5, 1831.
    7. Deed, Massie to Rogers for the same land, defectively executed.
    8. Deed, Rogers to Andrew and John Carlisle.
    9. The record of a chancery suit by the Heirs of Andrew Car-lisle v. Harris, J. Carlisle, and W. H. Douglass, setting forth the recovery of the judgment in the Supreme Court by Harris v. J. Carlisle, that it was certified to the court of common pleas, with a mandate to carry the same into execution, the issue of an execution under the mandate, the levy on the land in dispute, and a threat to sell it. The bill alleged the judgment was fraudulent, that Andrew Carlisle paid the purchase money of the land deeded to him and John, from which a trust resulted to the complainants as Andrew’s heirs for the undivided part of the land conveyed to J. Car-lisle, and injunction to stay the sale on the execution. The bill describes the complainant’s title as derived from Rogers to their ancestor and John, and by Rogers from Massie, and that John Carlisle had conveyed the moiety held by him to them. The bill was dismissed.
    The defendant offered in evidence:
    1. The will of Andrew Carlisle devising his interest in the land to A. and W. Carlisle.
    2. A deed, John Carlisle to A. W. Carlisle, under whom the defendant claimed to hold.
    3. He offered a deed of confirmation from Wallace, trustee of Massie’s heirs, to A. and W. Carlisle, dated December 6, 1823, which 411] recites that the former conveyance by Massie to ^Rogers, to have been issued by Massie without patent from the government for the land, and the after deed from Rogers to A. and J. Carlisle, the issue of a patent to Massie’s heirs, granting the land to the devisees of Andrew.
    This deed was objected to by the plaintiff and ruled out, on the ground that the title obtained by Massie’s heirs by the patent to thorn inured to Rogers, the grantee of their ancestor; as both parties made title through Rogers, he was the common source of title, and they could not dispute his title; therefore, the evidence was useless, its only effect being to falsify the title.
    The judge, in giving the cause to the jury, recapitulated this title in evidence, and observed that tiré defendants and plaintiffs both claimed under the deed from Rogers to Andrew and John Carlisle; and, therefore, it was incompetent for them to dispute Rogers’ title. For all the purposes of this trial, that title may be taken as good.
    He said two objections were taken by the defendant to the plaintiff’s title.
    1. The want of authority in the common pleas to issue the execution on a judgment in the Supreme Court, as no mandate from the Supreme Court had been given in evidence.
    2. That there was no sufficient evidence of a levy.
    As to the first objection, the want of a mandate, the law required one to issue, 3 Chase’s Ohio L. 970, and if none was issued, the execution from the court of common pleas was void, and a sale under it could convey no title to the purchaser. But the law did not, 'as supposed, require the mandate or writ oí procedendo to form a part of the record in the cause. It merely required of the Supreme Court to send a mandate to the court of common pleas, to execute its judgments in cases brought up by appeal or on writ of error, and authorizing the court of common pleas to execute judgments as their own. Record evidence of this fact is not, as the defendants urge, absolutely necessary. The mandate and procedendo are process of execution; such process is seldom recorded. The evidence you have, is pertinent to the issue. If the title of the plaintiff or defendant shall depend upon a number of distinct facts, and no proof has been given of some one fact, so connected with others proven, that they could not in reason exist without such fact, the jury may presume the fact to exist. What, then, is the evidence to show you that the Supreme Court sent a transcript of their judgment to the court of common pleas for oxecution ? *The judgment of the Supreme Court is proven [412 —the law requires the court to send such judgment to the court of common pleas for execution. An execution did issue from the court of common pleas in a suit between the same parties, for the like sum — that execution was returned, and came under the inspection of the common pleas; and you have their entry that the proceedings upon it were found in all things conformable to law, confirming them, and ordering a deed. The sheriff made a deed, reciting the fact of the judgment in the Supreme Court, and the mandate; and, finally, you have the same judgment, mandate and execution, affirmed and sworn to in the hill in chancery, filed by the defendants’ landlord to stay the proceedings on the execution. If this evidence satisfy you, the judgment was sent by the Supreme Court to the court of common pleas by mandate for execution, you may find that fact, though the mandate’itself is not produced, and in the absence of a record of its order or receipt.
    Another objection is taken by the defendants’ counsel; it is, that there is no evidence of a levy on this land by the sheriff. A levy is essential to a valid sale. What is the evidence on that point? That an execution issued, and this land was sold on it, the sale was returned, examined by the court, found to conform to the law in all things, was confirmed, a deed ordered and made, reciting the fact of a levy in June, 1825. The execution itself, the return on which would afford you evidence of the levy, is lost. But you have the evidence of the sheriff that he had the execution, and levied it on the land and sold according to law, and the defendants’ landlord in their bill swear there was a levy; but it is said the entry in the order of the court of common pleas confirming the sale, uses the term writ and not execution, or ft. fa., etc. Land can only be taken upon & fieri facias to satisfy a judgment— no other writ can confer upon the officer the power to take and sell land. The entry on the docket is, that execution issued. The sheriff testifies that he had one, and that it was in court on the former trial. You will weigh all this evidence, and give it its common effect, and if, upon the whole, you think it more probable, that the writ, on which this land was sold, was an execution than any other writ; if it render it more probable that there was a levy on the land before it was appraised, advertised, and sold, than that it was disposed of without, you can so find.
    413] *If you find the judgment in the Supreme Court, the mandate to the common pleas, the execution, levy, and conveyance by the sheriff, the plaintiff is entitled to your verdict.
    The jury found for the plaintiff.
    The defendant now moves for a new trial:
    1. Because the verdict is against law and the evidence in the cause.

      2. Because the court erred in permitting the jury to presume-a mandate from the court of common pleas and a levy.
    3. That the court gave to the jury an erronepus opinion of the-conclusive character of the proceedings in chancery upon the complainants and those claiming under them.
    The defendants’ counsel have placed on file, since the trial,, the following pápers, to which they invite the attention of the court:
    1. An order of the Supreme Court at December term, 1822, in these words: “ Ordered, that all cases removed into this court from the court of common pleas, in which this court have during the present term entered judgment or pronounced decree, be certified to the court of common pleas, with a special mandate to convey the samé into execution.”
    2. An entry in the court of common pleas at March term, 1823, in these words: “ Ordered, that execution issue on all the mandates or prooedendos, sent down from the Supreme Court at their last term, to this court, on application of the parties.”
    3. A summary transcript under the seal of the Supreme Court, and the attestation of their clerk, of a judgment in that court corresponding in the names, date, and sum, with that described in the sheriff's deed, with this order annexed, “ and the court of common pleas for said county are hereby directed to carry said judgment into effect.”
    Douglas, for a new trial:
    The statute of 1816,18 Ohio L. 411, is as follows: “And the-Supreme Court shall not issue execution in causes that are removed before them by writs of error, oh which they pronounce a judgment or pass a sentence or decree as aforesaid, or on appeals, but shall send a special mandate to the court of common pleas to award execution thereupon, and such court is hereby authorized and required to proceed in such cases in *the same manner as if [414 such judgment or decree had been rendered therein.” What then ought this special mandate to be, on which execution is to be awarded? Why it ought, at least, to give in a summary way the amount of the judgment, with an order (or in the language of the statute, special mandate) of the Supreme Court to the common pleas, to award execution thereon. This ought to be entered upon the journal of the common pleas, and followed by the order of the common pleas awarding execution thereon. Without this there is no judgment in or award of execution from the common pleas, and any proceeding without it is an execution without a judgment, and a party making title under it must give it in evidence, or it will be held the same as if it did not exist. Now, can all this matter be the legitimate subject of presumption? In a transaction of yesterday, with all the evidence, if it exists, at the party’s hand, can it be'presumed for him. Suppose the party had withheld his judgment, could the existence of the execution, sale, and •deed of so recent a date, be facts from which a judgment might be presumed? The judgment of the Supreme Court is no evidence, for the execution is not from that court, it is from the common pleas.
    But no proper mandate was ever sent from the Supreme Court or entered in the common pleas, and no execution has ever been awarded. The paper exhibited contains none of the requisites of a special mandate, and nothing upon which the common ideas could act. It does not appear by it that any order for a mandate was ever entered in the Supreme Court, or that said court ever sent any, or that the common pleas were thereby authorized to award execution. The clerk of the Supreme Court takes it upon himself to direct the common pleas to “ carry such judgment into effect.” All his certificate upon the subject is, “ and that the court of common pleas are hereby directed to carry said judgment into effect” — not a word that the Supreme Court had ever ordered it; besides, what is the meaning of the words, “ to carry said judgment into effect?” The judgment seems to be already canned into effect, for it is a good and effectual judgment in the Supreme Court.
    But suppose this paper were a good and sufficient mandate, what has been done with it ? Neither it nor the case has ever been entered in the common pleas, nay, not even filed there — from aught that appears it may have lain on the files of the Supreme Court, 415] or somewhere else, from that day to this. It *is true that upon the journal of March term, 1823, of Ross common pleas, the following order appears, “Ordered, that execution issue on all the mandates or procedendos sent down from the Supreme Court of this county at their last term, to the court, on application of the parties.” But were this order good for any purpose, can it, by any construction, be made to apply to this case ? Where is the evidence that this case was ever sent down ? It is nowhere entered on the journals, nay, the mandate is not even filed. If the above mandate can be made to apply to this case, it can with equal effect be applied to any ease in the Supreme Court. The extent of its application can only be to such eases as are actually sent down and entered. Such was not the fact with this.
    It is likewise contended that there was no proof of a levy; the sheriff’s testimony is only to the goodness of his sale, and his return entered on the execution docket says not a word of a levy, although it is usual to enter the whole return; a levy is indispensable to title.
    The court admitted the chancery proceedings and decree as conclusive upon the rights of the younger Carlisles; their attention is respectfully called to a reconsideration of that opinion, and also upon the subject matter of the other testimony and the reasons generally.
    But upon the subject of the execution issuing without any authority, this defendant rests with confidence that a new trial ought to be granted him.
    T. Scott, for the plaintiff, insisted:
    1. That the evidence offered warranted and sustained the verdict.
    2. The charge of the court was correct, sustained by the presumptions raised by law in favor of the correctness of the proceedings of any court of competent and general jurisdiction. 4 Wheat. 213; 2 Ohio; 6 Wheat. 481.
    3. That a new trial ought not to be granted in this case, because it would be of no avail, as the facts presumed by the jury were correct, as is now shown, and would be proved on another trial by written evidence, which the court inspects and construes. In this case there appears evidence enough in each court to warrant an execution.
   *Judge Wright

delivered the opinion of the court:

Nothing is particularly said in the argument upon the first reason assigned for a new trial, and I will pass at once to the consideration of the other two.

As to the mandate and levy, the law was given to the jury in substance as the defendant’s counsel now urges. On review, we see no error in saying to the jury, under all the circumstances, that they might, if they believed that the mandate issued and the levy was made, presume those facts without record evidence.

We have now laid before us the mandate itself, which shows that fact to have been rightly presumed by the jury. We have also copies of the order of the Supreme Court, of December term, 1822, for mandates, and of the entry by the common pleas authorizing the clerk to issue execution in cases sent down from the Supreme Court.

The general order of the Supreme Court is convenient in practice. It would be correct for the clerk, in making up the complete record, to attach to each case from this general entry a particular order to remand to the court of common pleas for execution. That was omitted in the ease before us, but does that vitiate the judgment and mandate? No one will pretend it. The inquiry is, was a mandate issued? If the response to that be affirmative, the law in that respect has been complied with..

It is objected that the transcript, if received, is without a mandate, the law requiring an order to “award execution,” and this mandate is “to carry said judgment into effect.” We do not see how the judgment could be carried into effect without execution, as that was the only writ to coerce satisfaction of it.

It is further urged that the order of the court of common pleas is of no avail, because of its generality; that it can not be construed into an award of execution on this judgment. We agree .that it would be better practice for the clerk of the common pleas to make a special entry in each ease, stating briefly she title of the case, date, and amount of the judgment and mandate, and subjoin an order to issue execution thereon. Such an entry would evidence more care and clerklike precision. But the way this was ■done is the way of doing those things in that court; and are we now to declare all process so issued void ? Certainly not. Courts award execution upon judgments in legal contemplation, when 417] their clerk, who keeps their seal, ^affixes it to the process, ,and issues it on the application of a suitor. When so issued, it is the process of the court or the law, not that of the clerk. It is not usual in making title under execution to seek for an order of the court awarding the writ. The fact of the writ being issued presupposes the order, and renders it useless to produce other proof of its being awarded.

These remarks are made in reference to the orders of the courts and the mandate now exhibited, because they have been discussed. They show that a new trial ought not to be granted for the alleged error of the court, if it existed, because it can do no good. The facts accord with the presumption of the court and jury, and can be proved, if another trial were allowed.

There remains the objection to the charge as it respected the proceedings in chancery. The objection is understood to be that the court thought it incompetent for the defendant to contest the title of Rogers, the source of title common to both. This looks rather more to the rejection of Wallace’s deed than any opinion of the court upon the chancery record. The record was properly admitted, as showing the declaration of the defendants as to the mandate, execution, and levy; and we see no error in the opinion of the court, or in the fact of admitting the evidence.

New trial refused.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Charles L. Camp v. Janes, Hulet, and Marvin.
    Collateral undertaking by one, to which another adds, “ I make myself jointly responsible,” is not a joint contract.
    This cause was adjourned from Medina county. The plaintiff declared as upon a joint promissory note against all the defendants. On the trial he produced a note in these words:
    “Yalue received, I promise to pay C. L. Camp, or order, four hundred and seventeen dollars and seventeen cents, one-half in three months, and one-half in six months, with interest from date.
    “G-. C. Marvin.
    “Cleveland, December 3, 1832.”
    This paper was indorsed: L. M. Janes, W. Hulet. The plaint- ' iff also produced a paper in these words:
    *“ York, December 1, 1832. [418
    “Dear Sir : Permit me to introduce the bearer, Mr. Marvin, a young gentleman lately embarked in the mercantile business, and wishes to replenish his stock of goods to the amount of two hundred and fifty or three hundred dollars, if he can procure them on reasonable terms. If you agree I have no hesitation in saying I will be responsible for the amount.
    “ Tours, very respectfully,
    “ Wesley Hulet.

      “ To G. L. Gamp, Esq., Cleveland.’’

    On the same paper was written as follows:
    “ I fully concur with Mr. Hulet in the above recommendation, and make myself hereby jointly responsible with him.
    “L. M. Janes.”
   By the Court :

There is no pretense of a joint contract as far as Hulet is concerned. His undertaking is original, distinct, and separate, having no reference to a connection with the undertaking of James. A joint action can not be sustained.


author: Judge Wright

text:
    Weaver and Crocket, Adm’rs of Pitcher v. Reese.
    Where letters of administration are revoked, and an administrator de bonis non appointed, seire facias can not he sued in the name of the removed administrator, to revive a judgment rendered in his favor while in office.
    In scire facias to revive a judgment, it is not necessary to aver specially that no execution had been issued.
    This case was adjourned from Fairfield county. It came up on a scire facias, setting forth that the plaintiffs, as administrators of Pitcher, recovered judgment against one George Hanison and David Reese, which yet remains unsatisfied without execution, and praying execution thereof against Reese as survivor.
    The fourth plea is, that the judgment was recovered by the plaintiffs in their capacity of administrators, and after the judgment their letters of administration were duly revoked, and they compelled to settle their administration account; an administrator de bonis non was appointed, and thenceforth- the plaintiffs ceased to have any control over the assets of the intestate, but the same were in the administrator de bonis non when the writ of sci. fa. was issued.

      *To this plea the plaintiffs demur specially, and set forth [419 the following causes of demurrer, that is to say:
    1. That there is no averment in the plea that the plaintiffs did not charge themselves with said judgment, as assets, in the settlement of their accounts.
    2. That it is not averred in the plea that the judgment was assets of the estate of the intestate.
    3. That it is not averred in the plea that the plaintiffs were administrators.
    Hunter, for the plaintiffs, contended:
    1. That an administrator de bonis non can in no case have a scire facias at common law, to revive of execute a judgment recovered by a former administrator; and as no statute in this state gives such a writ, he can not have one here. He cited 1 S. & R. 594; 1 Salk. 306, 323; 4 Mass. 611; Cro. C. 167; 2 Ld. Raym. 1049; 2 Saund. 72, o.

    2. Although it is alleged that the judgment was recovered by the plaintiffs as administrators, yet it does not ex necessitate affirm that their demand was not in the individual plaintiffs, but in the administrators as such; the description as administrators may be rejected as surplusage. He cited Ld. Raym. 436, 1215 ; 1 Salk. 207; 6 Mod. 92; 2 Str. 1106; 3 Mass. 319; 2 Ohio, 159; therefore it' should be averred explicitly that the cause of action was in the intestate.
    3. That a scire facias will lie to revive a dormant judgment against a surviving defendant, one having died since the judgment recovered, though there is no express statutory provision for such a case. 2 Saund. 51, n. 4, 71, k.

    4. That the scire facias-will lie to revive against.the survivor;, without joining the heirs of the deceased defendant.
    5. That it is not necessary to aver in the writ of sci. fa. to revive a dormant judgment, that the judgment has become dormant. Arch. Forms, 431; Wil. Forms, 231.
    H. Stanbery, for the defendant, insisted :
    I. That an administrator after his removal, can not have a scirefacias to revive a judgment, recovered in his representative character. Yelv. 148, 149; 4 Mass. 612.
    42. Upon the death of one of two judgment debtors, a [420
      scire facias does not lie against the survivor alone. 2 Saund. 72, k; Ib. 51, o.

   Judge Wright

delivered the opinion of the court:

The first question raised by the defendant’s counsel seems to us to decide this cause, and to render it unnecessary for us to examine any other of the points made by the parties.

Our statute, 29 Ohio L. 234, authorizes the probate court to remove administrators for cause, and provides that when an administrator is removed, and another one is appointed in 1ns stead, the new administrator may immediately have his action against the removed administrator, and recover all assets received by him and not applied according to law, and all damages done by him to the estate while in his hands. The removal terminates the authority of the removed administrator over the assets received as well as those not received. An unsatisfied judgment is not assets received, the original debt, though merged in the judgment, remains due the estate. The right to receive the amount is in the new, not the old administrator, and he can not have a scire facias to aid him in executing the judgment.

The plaintiff’s counsel, however, insists that this recovery may have been for a debt due the individual described as administrator, ,.and not to the estate of his intestate. The scire facias recites a judgment recovered by Weaver & Crocket, administrators of the .estate of Pitcher. Apparently this recovery is by the plaintiffs in their fiduciary character. The plea alleges that the judgment was '.recovered by the plaintiffs in their capacity as administrators. 'This the demurrer admits. The character of the recovery must ■be taken as true for all purposes connected with our present in•quiry '; so that the broad question is open, whether the right of an administrator to recover assets not reduced to possession, continues after the revocation of his letters. We are clearly of opinion, that his authority is put an end to by the revocation of his letters.

Objections are made to the form of the writ. It is insisted that in a scire facias to revive a dormant judgment, it is necessary to aver that no execution has been issued for a period of five years or more. The scire facias sets forth the date of the judgment, and that execution thereof remains to be made. No execution is, or 421] need be recited. An averment *that five years and one month had elapsed between the date of the judgment set out, and the date of the writ, would seem.to be superfluous. As both dates appear, the court will take notice whether it is more than five years between them, and if so, the right to revive is shown, unless the defendant shall, in showing cause by plea or otherwise, set up the fact that execution has issued within five years. I allude to this objection, because it was urged that the form in Wilcox had been followed and was bad ; and that it was held bad by the profession in this part of the state. We think it good.

The plaintiffs ask leave to withdraw their demurrer, and to reply or amend. They may take leave to amend on paying all the costs since the return of the writ, or to reply on paying those arising since filing the demurrer..


author: Judge Lane

text:
    J. Chaffee v. G. Garrett.
    Where the consideration of a note is a lease of lands within an Indian reservation, and the lessor makes title under an Indian, plaintiff can not recover.
    This cause was adjourned from Crawford county, and came before the court upon the subjoined agreed state of facts.
    The note upon which the plaintiff’s declaration is founded, fell due on December 18, 1830, and was given by the defendant to the plaintiff for one hundred and ninety dollars. The note was given on December 18,1829, to secure the payment of the amount named in it, as the rent of the Upper Sandusky “Walker Place” so called, which said “ Walker Place” consists of a tavern-stand and improvements at said Upper Sandusky, and as a part of the reservation commonly called the “Wyandot Reservation,” situated within the extreme limits of the county of Crawford, in the State of Ohio, and the line mentioned in the .treaty between the United States of the one part, and several nations of Indians, concluded at the foot of the rapids of Miami, in 1817. William Walker, deceased, was a white person, and when, quite a child was taken by the Delaware Indians, and was by them given to the Wyandot nation of Indians, and they adopted him into their nation and as one of them, and he afterward married a woman (now the widow Catharine Walker), who was one of the nation, and was part white.
      422] By permission of said *Wyandot nation of Indians, the said William Walker, deceased, went on to and began to make the improvements at the said Upper Sandusky, called the “Walker Place” aforesaid, and so continued to occupy and improve the said “ Walker Place,” until the time of his death, which was some time in the year 1823; and upon his death, Isaac Walker, one of the sons and heirs at law of the said William, deceased, and the said widow, Catharine Walker, were left in the possession and occupation of the said “ Walker Place,” where they continued to live with the family left by the said William, deceased, and to improve the said “Walker Place,” until the time of his said Isaac’s death, in May, 1829; the said Isaac leaving at the time of his death his widow, Rebecca, who, with the other members of said family continued to reside on said placo until her marriage. Said Isaac at his death made his will, whereby he bequeathed one-half of said “Walker Place” to the said Catharine and her two sons, the brothers of the said Isaac, deceased, and the other half to Rebecca, the widow of the said Isaac, deceased, a white woman, who was afterward married to the said Joseph Chaffee, the plaintiff in this action, and Isaiah, the infant son of said Isaac; and after the intermarriage of the said Rebecca with the said Chaffee, the said Chaffee went into the possession of the said “ Walker Place,” at Upper Sandusky, and on said December 18, 1829, executed the lease of one-half of said “Walker Place” to the said defendant, and delivered the possession of said “ Walker Place ” to the said defendant, and as a consideration for the leasing of said premises, and to secure the rent therefor, and for no other purpose, and on no other consideration, took the note above mentioned, on which the plaintiff’s declaration is predicated. Said improvements, and all of them, were made with the consent, express or implied, of the Wyandot nation of Indians. The said William Walker held the appointment of interpreter under the United States, while he so resided at Upper Sandusky, as did also his son, Isaac Walker, during his residence at the same place, after the death of his father; and said Isaac claimed to be a citizen of the United States, and exercised the privilege of voting at elections, though he also received his dividend of the annuities secured by the treaties, to be paid to the Wyandot nation of Indians, as one of the nation ; said Isaac, during his residence at said “Walker Place,” expended a large sum of money in improving the said place, and he was also in the receipt of all the profits ^arising from said place. [423 The condition in the lease in relation to the forty-acre field, and upon the determination of which against the said Chaffee’s right to the one-half of said premises, he was to deduct forty dollars from said note, depends upon the following facts: The said Chaffee then had it in contemplation to commence a suit to determine his right, and shortly after did file a petition in the common pleas of Crawford county, for partition of said land ; and upon 'a trial ot said cause upon the merits, the court determined that the petitioner had not made out sufficient title to the said premises, and therefore dismissed the petition.
    Parish, for plaintiff:
    Upon the facts agreed we ask this question: Has this widow of Isaac violated any law, either human or divine — either of God or of man? The answer is but a monosyllable, JVo. If but the day previous to her marriage to the plaintiff, a white man had by force turned her out of possession of the premises, with what pleasure would this court have instructed a jury to give vindicative damages against such wrong dono in an action of trespass? But she marries the plaintiff; does not he succeed to all the rights of his wife? Could not she have leased the premises? Certainly she could,- without violating any law.- If she could, then it follows that her husband, the plaintiff, could also lease the lands which she obtained by her former husband. But the counsel for the defendant insists that the will of Isaac Walker was an Indian will. Was void, or if valid, must be enforced by the Indians. Yes, the
    “ Poor Indian, whose untutored mind,
    Sees God in clouds, and hears him in the wind,”
    has exclusive jurisdiction over this will. My law reading teaches me that this court will take notice with regard to the will of the native of Hindostán, of the Turk, or of the tribe of Black Hawk. Plaintiff had a moral and legal right to marry the widow of Isaac Walker. She had a perfect, legal right to the possession of this valuable property at the time of her marriage with plaintiff. He and wife have surrendered this possession to defendant; the defendant has enjoyed the premises. The defendant is now estopped from setting up want of title-in plaintiffs. I say plaintiffs, for n effect this suit is prosecuted for the benefit of Mrs. Chaffee as well 424] as her husband. *The act of Congress referred to by counsel for defendant, has no application to this case. The court has jurisdiction over the persons litigant, and the subject matter in dispute. This court could not refrain from exercising jurisdiction in a suit upon contract between two Indians, should they choose to resort to this court for the determination of their controversy. A Seneca Indian has recovered a valuable tract of land of a white man, in an action of ejectment in this court; Judges .Burnet and Sherman presiding. In the case of Nimble Jemmy v. McNutt, in replevin (Lane, president judge), Sandusky county, no objections were made that plaintiff was an Indian. Admitting, then, that William Walker was a legitimate member of the Wyandot nation, that Isaac followed the condition of his father, and that the wife of Isaac followed the condition of her husband; and Chaffee succeeds to the rights of Isaac’s widow by virtue of his marriage, and the defense of the defendant fails. No jurisdiction over the leased premises is claimed for this court by plaintiff. Jurisdiction over the persons and subject matter of the suit (the note) is all that is claimed.
    Boalt and Swan, for defendants:
    The plaintiff has an undoubted right to recover, if not prevented by the laws and general policy of the government of the United States. The consideration of the note was a lease of premises to the defendant, situate in one of the reservations secured to the Wyandot Indians by the treaty'at the foot of the rapids of the Miami, in 1817.
    We rely upon the act to regulate trade and intercourse with the Indian tribes, etc., approved March 3, 1802. 3 L. U. S. 460.
    Section 2 forbids any citizen of the United States, or residents therein, from crossing over the boundary line to hunt; from driving stock, etc., to range on any land secured by treaty, and subjects the offender to fine .or imprisonment.
    Section 5 provides, that if any citizen or other person shall make a settlement on lands, etc., secured to any Indian tribe, or shall survey or attempt to survey such lands, or designate boundaries by marking trees, etc., he shall forfeit not exceeding a thousand dollars, and be imprisoned not exceeding twelve months.

      By section 7, no person is permitted to reside at any town as a trader without license, etc.
    ^Section 12 provides that no purchase, grant, lease, or [425 other conveyance of lands, or any title, or claim thereto, from any Indian, or nation, or tribe of Indians within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the constitution, etc. This section declares it a misdemeanor in any person to negotiate for the title or purchase of any lands held by Indians, and subjects the offender to fine and imprisonment. Do the agreed facts bring the plaintiff and the ease within the prohibitions of the statute?
    Assuming that Isaac Walker was one of the Wyandot tribe, subject to the usages and laws of the Indians,'we conclude that his last will must be carried into effect according to the laws and usages of the sovereign power, whose citizen and subject ho was. Admitting he made a devise of lands, his devisees must take, not according to our laws, but those of the Indians; and, we believe, among the enumerated matters confided to our courts, and the extent of territory allotted to this court in particular, neither the constitution nor the law requires the supreme judges to hold courts in the Indian reservations, or to take jurisdiction of contracts arising between the natives residing there. We could not well do so, without a better knowledge cf their code, which is said to be entirely traditionary and unwritten. With any contracts made between Indians claiming to be such within those reservations, this court can not and will not interfere. Even Georgia did not take judicial jurisdiction over the Indians there, until the legislature expressly gave it by law. The Indians enforce their own contracts and punish crimes according to their own customs. If Isaac Walker made a will, the Indians must enforce it. As a white person, he had no right at all upon Indian lands. He could not make boundaries — he could not purchase — ■ he could not lease. The will of Isaac Walker was void — the possession by his devisee was unlawful and void — the lease by the plaintiff and the occupation under it were both unlawful and void acts. The authorities upon this subject are collected in 3 Stark. Ev. 1631, 1632; 17 Mass. 258; 1 M. & S. 593.
    The lease itself being void, none of the doctrines relative to estoppels on the principles concerning landlord and tenant can help out the plaintiff. Where a conveyance of land is void, so that no estate passes, all dependent covenants are void also. 1 Salk. 199; Wood’s J. 342.
    426] *We can not see a particle of ground for the plaintiff to recover.
   Judge Lane

delivered the opinion of the court:

The facts agreed, show clearly that the note, the amount of which the plaintiff seeks to recover, was given in consideration of the lease. The title of the lessor to the premises leased, is derived under the will of Isaac Walker, who derived a possessory title, by succession to his father, one of the Wyandot tribe of Indians, the lands lying within their reservation.

The statute of the United States, of 1802, enacts that no purchase, lease, conveyance, or title of, or to land from, an Indian, shall have any validity, unless made in a treaty with the United States. The lease, therefore, transferred no title, because the lessors possessed no title to transfer; consequently, the consideration of the note fails, and the plaintiff can not recover.


author: Judge Wood

text:
    Asahel Noble v. Shearer and Markley.
    Indorsement of security for costs made after suit brought, no order of court requiring such indorsement appearing in the minutes of the proceedings is not a’part of the record. ■
    This was a sci.fa. to subject an indorser for costs, adjourned for decision here from Hamilton county. The declaration sets forth, that on February 27, 1826, Henry Tice, a non-resident plaintiff, caused a summons to be issued against the plaintiff in this suit, which was returned to the February term of the common pleas of Hamilton, of the same year, and that the defendant indorsed the summons for said Tice, for costs, on November 18, 1828.
    The declaration avers that final judgment in that suit was afterward rendered in favor of the said Noble, the plaintiff in this, against the said Tice, plaintiff in that suit, and that the said defendants, as such indorsers, have become liable to pay the said costs, -which still remain due and unpaid, etc.
    To this declaration the defendants have filed: 1. The pica of the general issue, nul tiel record. 2. A special plea in bar, that Tice was a resident of Hamilton county, when the suit was commenced, and so. continued until January, 1828; that the *wi’it [427 was not indorsed before the delivery to the sheriff, and not until the cause had been several times continued, and from February term, 1826, to November term, 1828, whereof, etc.
    To the plea of nul tiel record there is a replication. To the special plea, a general demurrer and joinder.
    V. Worthington, for plaintiff.
    Strait, for defendant.
   Judge Wood

delivered the opinion óf the court:

The first, and indeed the only question which appears necessary to be considered and settled by us, in this case, is the one presented under the first issue. Is there such a x’ecord as the plaintiff has described? Let us consider what a record is, and in what manner it is made up, and of what it consists, and there can be but little difficulty in reaching a conclusion to us, at least, satisfactory. A record is the history of the cause from its commencement, the issuing of the writ, until final judgment is rendered. Section 101 of the practice act defines what it is in these words: “That the clerk of each court shall, in vacation, make a complete recoi’d of the writ, recognizance of bail, pleadings, orders, and judgments, or decx-ees in each cause finally determined at the preceding term.” If the clerk omit to perform this duty in making up the record, a party may avail himself of the original files and the journal entries in lieu of it, but the proceedings must all have been in obedience to the law. It is not the voluntary assumptions of a party, although entered upon the files fx-om which the recoi’d is made, or upon the record itself, that will make such assumption matter of record, unless the law requires it to be done in the progress of the cause, and then it forms a part of the histox’y of the cause, and is of record.

The act of 1824, to organize and regulate the practice of the judicial courts, provides, “ That any person requiring a writ shall file a precipe with the clerk, who shall make out and deliver such writ or process as is directed; and in. all cases of mesne process, when the plaintiff doth notreside in or is not a householder in the county, the writ shall be indorsed by some freeholder, resident in the county, as security for costs, before the clerk shall deliver the same to the sheriff.” This is the section of the statute which eon-428] trols this case. If the writ is indorsed ^before it is dcliv- ■ ered to the sheriff, in obedience to the law, that indorsement becomes matter of record. It is a part of the writ itself, rna.de so by statute. This writ was not so indorsed. The summons, as it is averred in the declaration, was issued and returned to February term, 1826. The cause was ponding until November, 1828, when the writ was indorsed by the defendants. It is not averred that Tice, the plaintiff in that suit, after commencing his action, had left the state, and that the court, in the exercise of a power which We do not feel inclined to doubt they possess, had ruled him to give security; if such were the fact, it would change materially the aspect of this case. There is no such averment, and that the indorsement was made in obedience to that order. But after the writ had been sued and returned almost two years, the defendants came voluntarily into court and indorsed the writ. We do not say that such an indorsement is not a contract, which would obligate the indorsers to pay the costs — that question is not before us; but it does appear to us to be a voluntary contract, authorized by no law, and can, therefore, form no part of the record. A sci. fa., then, is not the remedy, if the plaintiff have one to recover in this case. Our opinion is, there is no such record as the plaintiff has described in his declaration, and that judgment should be entered for the defendants.

It is unnecessary to notice the issue in law. This opinion, on this point, would overrule the demurrer, if it were necessary to notice it specially.


author: By the Court:

text:
    J. Wallace v. Richard Scoles.
    Appeal bond valid, though an attorney in the cause is one of the securities. Such an attorney punishable for violating the rule of court.
    This case was adjourned from the county of Knox. It was a motion to set aside an order, made in the Supreme Court, quashing the appeal in the cause from the court of common pleas, on the ground that one of the attorneys in the case was one of the securities in the appeal bond.
    *Curtis, for the motion.
    Brown, Goddard, and Converse, against it.
   By the Court:

We believe it was error to quash the appeal, though the attorney joined in the bond, in violation of the rule of court of 1831. This conduct on the part of the attorney was a contempt of the court, for which he might be punished. But the bond must be held valid for the benefit of the appellee, otherwise the attorney may escape a legal responsibility voluntarily undertaken, and thus obtain advantage by his own wrongful act. The order to quash is set aside, and the appeal reinstated.


text:
    J. O. Cram and others v. John and Sarah Green, Adm’rs, etc.
    Executors and administrators may he compelled to account and distribution in equity.
    This cause was adjourned from the county of Washington. The bill states that Jonathan Cram died intestate, leaving considerable estate, and that letters of administration were taken by his widow, the defendant, Sarah Green, who subsequently intermarried with the other defendant. That the complainants are the next of kin of the decedent; that the defendants have neglected and refused to settle their administration accounts, or to make distribution of the estate. The prayer of the bill is to obtain settlement and distribution.
    The defendants demur.
    Vinton, in support of the demurrer.
    Goddard, for complainant.
   Judge Lane

delivered the opinion of the court:

We consider it a well-settled course of chancery, at the instance of creditors, legatees, and the rest of kin, to compel an account and distribution of decedent’s estates against executors and administrators. The position they occupy is not in their own right, 430] but fiduciary ; any one whose interests they hold, may *enforce them, through chancery, to perform their duty in the execution of the trust.

The argument for the demurrants is this: Our statute limits the jurisdiction of chancery to cases where no plain and adequate remedy can be had at law. Such remedy is provided for by law in cases like the present; and, therefore, if the jurisdiction subsisted before this provision, it takes it away.

I do not stop to inquire if such remedy is, in fact, provided. Were it the case, we do not admit the conclusions contended for. “ That the chancellor has jurisdiction in those cases where a plain, adequate, and complete remedy can not be had at law,” is the apothegm by which his power is limited in every country where the distinction is known between coux-ts of law and equity. The extent of the restriction has been long since defined. It is a technical maxim, adopted by our legislature in its technical sense, and receives the same interpretation here as elsewhere. In our practice, we do not give it the restrictive meaning insisted upon by the defendants. But sustain our powers to the same extent as other similar tribunals, where jurisdiction depends upon this principle. It is a part of the general chancery law, that where a class of cases are the objects of chancery jurisdiction, that jurisdiction is not taken away, because courts of law subsequently administer a remedy. 1 Ohio, 435.


text:
    Skinner v. P. Lehman’s Heirs and Adm’rs and others.
    Where an intestate estate is bound, as security, for one of the distributees for a debt in judgment, and the administrator, by an arrangement with the distributees, pays the judgment out of the assets of the intestate estate, and takes an assignment of it to themselves, the assignees can not enforce the judgment lien upon land bound by the judgment, but subsequently conveyed to a stranger.
    This was a bill in chancery adjourned from the county of Montgomery. The following are the facts in the case:
    Jonathan Stutsman owned sixty-six feet of lot 156, in Dayton, and in December, 1819, conveyed a part of it to the complainant. On March 4, 1820, he mortgaged his remaining interest in the lot to John Lehman, to indemnify him for being security on several notes given by Stutsman to the Dayton ^Academy- Some [431 of these notes were assigned to T. Squire, by the Dayton Academy, and in June, 1820, he took from John Lehman an assignment of Stutsman’s mortgage to him, and gave him an indemnity against the notes he signed as security. In August, 1820, Squire assigned the last of the notes with the mortgage to Huffman. In October, 1825, the complainant purchased the remainder of the lot from Stutsman, and took a conveyance to himself. On the same day he entered into a written contract with Huffman, for an assignment of the mortgage held by him. The complainant afterward fulfilled this agreement, and Huffman assigned to him the mortgage August 18, 1829.
    On November 2, 1821, the executor of Yanderslice recovered a judgment against Stutsman, as survivor of Peter Lehman, on their joint and several obligation, which was a lien on the lot in dispute; and in May, 1823, obtained another judgment on the same note against the administrator of Peter Lehman. The judgment against Stutsman was kept alive by execution without levy, until August 22, 1829, when an execution was levied on that part of the lot deeded by the complainant in 1825; the same mortgage to J. Lehman in 1820, which came by assignment to the complainant in 1829. The complainant at the time of the judgment against Stutsman, and when the execution was levied, was in possession of the lot.

      After the death of Peter Lehman, a portion of his heirs and distributees filed a bill in chancery to effect a sale of his lands, and a distribution of his estate. Pending that bill, John Lehman, the administrator of Peter, filed his cross-bill, setting forth the recovery of the judgment against him by the executor of Yanderslice, and that Stutsman was insolvent, and praying to charge the payment of said judgment upon the proceeds of the estate before distribution. A sale was ordered, settlement made, and a final decree rendered in September, 1826, that of the proceeds of the estate, the said judgment against the administrator of P. Lehman should be first paid, and the balance be distributed among the heirs according to their several rights. The sale, payment, and distribution was had accordingly ; and one share of the proceeds distributed to Brown, one of the defendants, who claimed as the assignee of Stutsman’s wife, one of the heirs and distributees of P. Lehman.
    482] The court, in their decree in that case, ordered that the *executor of Yanderslice should, on receiving payment of his judgment, against the administrator of Peter Lehman, assign the judgment to the heirs of the said Peter Lehman, which was done accordingly on January 31, 1827.
    The heirs of Peter Lehman, and the other defendants claiming their rights under that assignment, now seek to enforce the lien of the judgment of the executor of Yanderslice against Stutsman, by a sale of that part of the lot conveyed to the complainant after the rendition of said judgment; and the object of the bill is to enjoin them from asserting the lien by sale, and to disembarrass the title of the complainant.
    S. Fales, for the complainant, made the following points:
    1. The property of Stutsman having been conveyed by mortgage, left only an equity of redemption in him which was not the subject of levy. 26 Ohio L. 35 ; 22 Ohio L 86; 2 Bac. Ab. 715 ; Pow. on Mort. 339, 340, 369; 1 Ves. Jr. 431; 3 Bro. 480; 3 P. Wms. 324; 2 P. Wms. 416; 2 Atk. 290; Amb. 308; 3 Atk. 192, 200, 738; 1 Vern. 410; 2 Vern. 61; 1 Blk. 145; 8 East, 467; 1 Murph. 333; 5 Hayne, 53; 3 Johns. Cas. 326; 1 Caine’s Cas. in E. 57, 73; 2 Ohio, 223.
    2. If the judgment of Lehman was ever a lien on the land, it has boon lost by long neglect to levy. 5 Ohio, 179.

      3. The complainant, as assignee of the mortgage, may hold clear of a judgment of subsequent date. Sug. Vend. 475, 479, 605-608.
    4. There were two judgments in favor of Tandersliee for the same debt, and the payment of one satisfied both. This was done under the decree among the distributees of P. Lehman.
    5. The complainant is not affected by the decrees amongst the heirs, because he was not party to the suit.
    H. Stoddard, contra, insisted:
    I. That notice to the complainant was unnecessary, because the judgment had never become dormant. 5 Ohio, 179. The lien is one originating in positive law ; not arising from contract, notice is not necessary. Cruise’s Dig. 250; 2 Atk. 275.
    2. The complainant does not occupy the relation of mortgagee prior to the judgment; the mortgage was not assigned to him until long after the judgment; and the mortgage itself was only *one of indemnity, and inoperative, unless the mortgagee is [483 damnified, which is not shown in this case.
    3. When there are several judgments for the same duty, the satisfaction of one of them by arrest of the body, is no bar to proceeding upon the other. 2 Tidd Pr. 958 ; Hob. 59.
    4. The payment of the judgment by the security entitled them to come in the place of the creditor against the principal debtor, and the assignment of the judgment is operative and valid.
   Judge Wright

delivered the opinion of the court:

A great many questions are raised by counsel, and amply discussed in this case ; but in the view we take of it, it is only necessary for us to consider one of them.

In the proceeding in chancery for the sale, settlement, and distribution of Peter Lehman’s estate, all the interests asserted by the defendants in this suit were represented by the parties, and all the interest now in contest, except the complainant’s. By the decree, the judgment for the -identical cause of action with that now sought to be enforced as a lien against the complainant’s lot was paid. The judgment against the principal debtor, who in equity was bound to pay the money, was assigned to the heirs of Peter Lehman. The interest of those heirs was joint; the princi< pal debtor, Stutsman, was one of them. He was a party himself, and his interest was represented by Brown’s executor, his assignee. His distributive share of the estate of his wife’s ancestor was more than sufficient to pay the judgment against him. In equity and law, the instant an amount of money required to satisfy the claim his ancestor’s estate had upon him, for the debt paid to Yanderslice, became his by virtue of his right to distribution, that instant it extinguished his claim for so much of his distributive share of the estate of his wife’s father, and the same instant it extinguished, and, in equity at least, satisfied the judgment against him, which, under the decree was transferred to him and his coheirs, or those standing in their place. It is not within his power, by transferring his intei*est in the estate of his wife’s ancestor, to vest Brown, his assignee, with an interest which could defeat this effect. The assignee took only the rights of his assignor, subject to the same law and the same equities. Standing in the shoes of Stutsman’s wife, Brown could assert no claim that Stutsman him-434] self could not. *The situation of the combined heirs of Lehman is precisely the same. They represent, as a body, the right of their ancestor, and they can not, by distributing Stutsman’s portion of the estate of his wife’s ancestor, to himself or to Brown, his assignee, acquire a right to collect the amount of it again on a judgment, thus by operation of law satisfied, and out of property which, in the meantime, has passed into the hands of strangers or purchasers for a good consideration.

Suppose a man in debt mortgage land to secure the payment, and afterward a judgment is taken by a third person against him and his neighbor, which is suffered to remain several years without execution of the mortgaged.land, though a lien upon the equity of redemption in the mortgagor. While the judgment is in this situation, the judgment debtor sells and conveys the land to the holder of the mortgage, and becomes insolvent. He then agrees with his neighbor, against whom, with him, the judgment was taken as his surety, who has money of the debtor in his hands sufficient to pay off the judgment against him, that they will pay off the judgment out of the principal (and insolvent) debtor’s funds, take an assignment of the judgment to themselves jointly, and collect the amount for their joint benefit, by a sale of the same land he has sold and conveyed away. The fraud of such a transaction would be palpable, and if the law sanctioned the proceeding, it would be justly chargeable with all the consequences of tbe fraud. The law does not countenance or aid fraud. Chancery will stop the party sowing such a crop from reaping the harvest. That seems to be the exact case before us. The decree for the assignment does not change the case so as to affect the complainant, for h'e was no party to the suit and is not bound by it. However it may bind and affect the parties, it exerts no influence on his rights.

In our opinion the judgment against Stutsman is satisfied in equity, and can not be asserted as a lien upon the lot held by the complainant. The complainant may take a decree perpetually enjoining against the enforcing the judgment upon the lot in-question, to quiet his title as regards that lien, and against the heirs of Peter Lehman, who are defendants, and those representing the other heirs, not defendants, for the costs.

This view makes it unnecessary to examine the other points argued.


text:
    *J. Young v. State of Ohio.
    The grand jury impaneled and sworn, etc., recited in an indictment, is sufficient, without specifying the number.
    Defendant escapes before judgment; entry “continued for execution and judgment.” These words surplusage or clerical error that may be amended.
    Mistake of dates.
    Motion in arrest pending. Final judgment pronounced without special disposition of the motion is not error.
    Our statute of amendments does not touch criminal cases. In these, nothing can be amended, except what was amendable at common law.
    This case was adjourned here for decision from Franklin county.
    Swan, for plaintiff in error.
    Wilcox, for the state.
   Judge Wood

stated the case, and delivered the opinion of the-court;

At the February term of the court of common pleas of Frank - lin county, 1831, the grand jury returned an indictment against ■the plaintiff in error, containing six counts, founded on the several provisions of the act of January 4, 1814,- entitled “an act for •■the prevention of certain immoral practices.”

At the May term following, the defendant below was tried and ■convicted ; made his escape from custody, and the prosecution was -continued, as expressed in the record, “ said Young having escaped from the custody of the sheriff, the cause is continued for ' his execution and judgment.”

At the October term succeeding, the defendant below, by his ■counsel, filed a motion in arrest of judgment, and afterward, during the same term, the sheriff having brought in the body of the defendant below, the court proceeded to pronounce the sentence ■of the law, by imposing a fine, and directing the defendant below to find security for his good behavior, and without making any ■disposition of the motion in arrest.

The plaintiff in error seeks to reverse this judgment, and has resigned for error: 1. It does not appear that fifteen grand jurors, or any number, found or returned the bill. 2. By the record, it appears that the court continued the cause, to have Young executed. 3. That the trial was had, long before there was any court ■or bill found ; that is, the record of the trial is of the 1st of Oeto436] ber, and the bill was found in February, and *the court held in the preceding May. 4. That a motion in arrest of judgment was not disposed of by the court before sentence pronounced, etc.

We will consider each of these points, in its order. First, did fifteen grand jurors find the bill? The record states that at the February term, 1831, the “grand jury, impaneled and sworn in and for the body of the county aforesaid, presented the following bill of indictment against John Young.” Is not this allegation .sufficient to show the indictment was returned by fifteen grand jurors? This indictment was found by the grand jury impaneled under the act of January 9, 1823, entitled “an act relating to juries.” The first section of this act prescribes the number. It can consist of neither more nor less than fifteen. A greater or less number are no grand jury. The term “ grand jury” has therefore acquired a fixed, certain, legal meaning. It is fifteen such men as the law requires, impaneled and sworn as the law prescribes, to inquire in and for the body of the county, where they are impaneled. It is admitted that the record must show that the whole fifteen presented the bill, or it is bad, for criminal proceedings are stricti juris. They must be certain to a certain intent in every particular, and there must be no intendment to the contrary; but when the record says, that the “grand jury” presented the bill, it is a legal grand jury, which consists of fifteen. There is, then, nothing erroneous in the record here.

Second point, that the court continued the cause to have Young executed 1 The record in relation to this point is, at best, a legal curiosity; but we think it can be sustained on satisfactory ground. After the verdict of the jury, the record states, that Young escaped from custody, and the cause is continued, for his ‘ execution and judgment!” No one would probably hesitate to pronounce the word “ execution” to be a clerical mistake — a lapsus pennce — ■ the substitution of one word, by inattention or carelessness, for another — execution, probably, for recaption. For misprision of clerks, in clerical omissions, errors, and mistakes, the record was always amendable at common law, and it was the rule that whenever a record could be amended at common law in a civil case, it was equally amendable in a criminal case. 1 Salk. 51; and so it is, says Holt, to this day. This error, therefore, if necessary to be amended, would be permitted at any stage of the proceedings, whether before or after judgment. A mistake of the clerk in entering judgment, *that the defendant recovered, instead of [437 the plaintiff, was amended on motion, and at common law. Croke James, 631; Hutton, 41. This misprision of the clerk may be disposed of, however, on other grounds. It was not necessary for the statement in the record, that the cause was continued for any specific purpose ; that it was continued is all that is necessary to be shown, and the law would infer the continuance for all legal purposes. On this hypothesis, the words for “Ms execution and judgment” may and should be rejected as surplusage. They have no business in the record, and without them the record is good.

The third point is, that the record shows the trial was had before there was any court, or bill found. Is it so? The record of the trial is of October; the bill was found in February proceeding, and the court held in the succeeding May. Counsel, we think, have mistaken the dates to which the record refers. The caption of the indictment is “pleas held,” etc., on October 1, 1831. This record of October term, 1831, states that the indictment was returned at the February term, 1831, several months before the trial. The record states the trial was had, and the verdict returned in May, 1831, continued, and judgment at the October term, and of which-term the record is properly made up. I have carefully inspected all the “ saids" and “ aforesaids” in the indictment, and they clearly refer to the proceedings in the manner and at the times I have-stated. This point is, therefore, disposed of without difficulty.

- The fourth assignment is, that a motion in arrest of judgment was on file, and not disposed of, when the sentence was pronounced. Is this an error of the common pleas, which requires us to reverse, this judgment? We think it is not necessarily so. If the court err, their errors must be such that an injury may result to the party who prosecutes his writ of error. If, therefore, the points made by the motion, in arrest, are not tenable, the defendant below sustained no prejudice to his-rights, because the court omitted to dispose of his motion in arrest. 5 Ohio, 171; 4 Ohio, 82, 388.

The counsel do not, we apprehend, rely seriously on any point made in the motion. These objections are to all the counts in the indictment. We have carefully compared the counts with the statute, and are of the opinion they can all be sustained; and more than this, that they are well and skillfully drawn.

488] *There is no error, then, in not deciding on the motion, in arrest, by which the defendant was and could be prejudiced, and that requires us to reverse this judgment.

In disposing of this case we have confined ourselves to the record, on which the errors were assigned, and the writ of error allowed. We think our inquiries should be legitimately confined to that record.

There has been much discussion in regard to amendments of the records of the common picas court, and especially in this case ; but. most of which is not now necessary to be noticed, as the proceedings, as they are recited in the original record, can be sustained.

We are of the opinion that our statutes of amendment do not extend to criminal cases. Indeed, they name civil cases in express words. The court may direct a record to be made by the clerk from the minutes and files where no record exists. The court may amend the record in a criminal case, where amendments in civil cases were permitted at common law, because we have no statute reaching them, and the common law rule prevails, to wit, clerical errors, but no other. The records which are said •to be unchanged and amended, we have laid out of view. They have not been inspected, because we have not considered them ithe legal records in the cause.

This being a criminal case, we have taken full time for deliberation, and are of the opinion that the proceedings and judgment of the common pleas be, in all,things, affirmed with costs.


text:
    Wadsworth v. Wetmore and other Commissioners, etc.
    Neither sheriff nor county commissioners are hound to feed an insolvent debtor in jail. He must provide for himself in what manner he can.
    This case was reserved in Portage county for decision here. The facts are these. The plaintiff was sheriff of Portage county, and one •James Noble, an insolvent debtor, was committed to jail on the 16th February, and remained in jail until the 17th March following, by order of the court of common pleas. The insolvent was un able to support himself, or to furnish any means to the sheriff to support him in jail, and such support *was furnished by the plaintiff as [439 sheriff, for the aforesaid time. The plaintiff presented an account to the defendants, commissioners of said county, on the 6th June following, for such support, at twenty-five cents per day, and demanded payment. The commissioners refused to pay the amount, believing it not to be a legal charge against the county. A suit was afterward amicably entered in the common pleas, tried, and an appeal taken to the Supreme Court. The whole case was reserved on the last circuit in Portage county, for decision in this court. Plea, non assumpsit.

    Newton and Otis, for plaintiff.
    Bierce, for defendants.
    No arguments or briefs were presented on either side.
   Judge Wood

delivered the opinion of the court.:

The action in this case is assumpsit. It must, then, be based oil an express undertaking of the defendants, or the circumstances between the parties must be such that the obligations of natural justice will raise a promise. There is no proof of any assumption to satisfy the plaintiff’s claim by the defendants in express terms. Do circumstances exist, then, from which it can be inferred? This must depend, on the broad principle, whether the sheriff is required, by law, to support an insolvent debtor, unable to support himself while in jail. It will be conceded that the sheriff was not, by the common law, bound to furnish such support. In England, debtors in jail were to be supported by private charity, or support themselves. It was no more the duty of the sheriff, without compensation, to administer to their wants than it was the duty of other individuals to do so.

If the common law, then, does not require this support to be furnished by the sheriff in such cases, without compensation from the' debtor, it remains for inquiry, whether we have any statutory provision imposing this obligation? We have been furnished with neither brief nor argument, and do not know on what ground the plaintiff’s counsel specifically rely. We suppose, however, they found their claim on section 4 of the act defining the-duties of sheriffs and coroners, which contains this provision, 440] “ That it shall be the further duty of the sheriff *of every county to take, charge of all persons committed to prison, and see-that they are safely kept and supplied with necessary sustenance, agreeable to law.” The two first sections of this act prescribe the duty of the sheriff in certain cases: that he shall preserve the public peace; cause all persons guilty of a breach thereof, “within his knowledge or view,” to enter into recognizance with sureties, and for refusal shall commit. That when persons charged with crimes shall abscond, or remove from the county in which the-crime was committed, the sheriff may apprehend a person so charged, etc. Is there any requisition in this act, which can, by any reasonable construction, compel' the sheriff to furnish support to the poor debtor without compensation from him. If there is, the liability to repay the sheriff is east upon the county; the circumstances are clearly such, that the obligations of natural justice will raise an undertaking by the commissioners, and require them to pay the plaintiff.

Let us, then, inquire whether the obligation is imposed on the sheriff, without compensation from the debtor, and in this is embraced the whole ground of controversy.

It is a well-settled principle that every statute shall be construed according to its subject matter. Apply this rule to the act before us, and it only has reference to such persons as are committed on an accusation of some crime or offense, and debtors are not within its meaning. There is, also, another reason for applying to it this interpretation ; the words are, and the sheriff shall see “ they (the persons committed) are safely kept and supplied with necessary sustenance, agreeable to law.” The law provides how, and in what manner, prisoners committed for crimes and offenses shall be fed and supported by the sheriff; and, therefore, this provision is clearly referable to them in requiring the sheriff to perform that duty.

There is no statute, however, that points out either the kind or quantity of sustenance, or in what manner it shall be provided for the debtor. This section, then, can have no reference to debtors.

Suppose, however, that it includes both debtors and those charged with crimes, does it mean anything more than this: that as the debtor is confined, unable to look around him, and provide for himself from that source he would under other circumstances desire, and as from his confinement he can not even purchase his food, to provide for and prepare the sustenance *for the [441 debtor is made the duty of the sheriff, provided he furnish the sheriff with the means, but not otherwise. The legislature have made provision for the payment to the sheriff for support furnished to persons committed for violations of the criminal law. Their not having done so in the case of the debtor affords strong presumption of their intention to leave him to his own means, to private charity, or to the overseers of the poor of the township where, by the operation of law, his residence for the time being is cast; and who are authorized to afford temporary relief to transient poor, and to again seek redress where the pauper had his legal settlement. The legislature having made no provision for payment by the county for support to such debtor, is evidence that it was not believed such liability existed upon the county.

There is, however, one other provision in the statute, on which it is probable counsel may place some reliance. It is this, that the sheriff shall be allowed “for keeping and providing for a person in jail, per day twenty-five cents.” In our view, this enactment does not aid the plaintiff. It undoubtedly extends to both, debtors and those charged with crimes or offenses; and while it limits the amount the public is to pay in the one case, it prevents the sheriff from the exercise’of that inordinate extortion over the unfortunate in the other, which he might be disposed to indulge if his compensation was only limited by his avarice and not by positive legislation. No inference can be drawn, from this provision, that the county is to pay the sum allowed. It is left, in this respect, under this act, as it is in the act to which I have before alluded. The debtor, then, must furnish the means for his own support; he must subsist by charity or become a township charge. While we pronounce such to be the law* it is a cheering consideration that inability to obtain the means of sustaining life is the last evil in our community that is likely to befall even the most idle and worthless citizen for a long series of years yet to come.

Judgment for the defendant.


text:
    *Spurgeon v McElwain.
    Keeping nine-pin alleys in a town, by keeper of public house, being unlawful, builder of such alley can not recover therefor upon a general assumpsit.
    This case was tried in Franklin county, and reserved on a motion for new trial.
    It was a suit in assumpsit on the general counts, and tried on the general issue. It was proved at the trial, that the plaintiff performed work as a carpenter in building a nine-pin alley for the defendant, the keeper of a coffee-house. In defense, it was insisted that as the promise was laid to pay for the work done, to aid in playing a game at a place forbidden by law, the consideration was illegal, and no suit could be sustained to enforce it. The court "thus instructed the jury to correct the alleged error in this, and the plaintiff makes this motion.
    Swan, for plaintiff:
    Does the fact that the plaintiff knew he was contracting to build a house for a nine-pin alley, prevent him from recovering * the price?

      The statute, 29 Ohio L. 162, sec. 7, forbids tavern-keepers and retailers of spirituous liquors from establishing, keeping, or permitting to be kept any nine-pin alley, and also forbids such persons from having an interest therein, under a penalty of not less than twenty dollars nor more than one hundred dollars. The prohibition does not extend to the erection of the building any more than the act to prevent playing at billiards forbids the manufacture of broadcloth.
    The establishment or.interest in a nine-pin alley, could not incur the penalty until the thing was completed. Any preparation for the purpose, short of completion, would not subject the tavern-keeper or retailer to the fine imposed by the act. And indeed it may be said there is a locus penitentim after the establishment is complete. Should a nine-pin alley be completed, and its proprietor, instead of suffering it to be used for amusement or gaming, convert it into a ropewalk, he would not forfeit the penalty imposed by the statute. The carpenter should have the full benefit of this opportunity for repentance.
    The cases relied upon by the defendant are not in point. 17 Mass. 258, and 1 M. & Lit. 593. There was a prohibition both upon the buyer and seller. The act itself was unlawful in both.
    *We think the right distinction is made. 5 Taunt. 181; 1 [448 Cond. E. 67. If the contractor is to derive any benefit from the illegal act, he can not enforce a contract concerning it. The cases upon this subject are collected in 3 Stark. Ev. 1632, and none of them go so far as the defendant asks of this court.
    Here a house is built upon supposition the owner may use it for unlawful or prohibited purposes. There is no contract, or obligation, or certainty, however, on his part about his so using it. Ought this supposition to deprive the carpenter of his wages? If. so, the person who furnishes materials or sells the ground would be in the like predicament. If this should be the law, the courts would indirectly inflict penalties, upon those comparatively innocent, vastly more severe than the statute warrants against the principal offender. This would lead to oppression, instead of correcting the morals of the community. The rule is a good one as laid down in the case of Hodgson et al. v. Temple, 5 Taunt. 181. To prevent a recovery, it is necessary that the plaintiff should •share the profits of tho illegal transaction. If this rule should not be adopted, what shall it be? If a mechanic undertakes a house, and is informed the owner contemplates keeping a tavern without license, is it his duty to abandon the contract, and will the law justify that course? Suppose, in the progress of the work, the proprietor suggests that one room is to be appropriated to a billiard-table and another for prostitution, may he abandon his contract with impunity? All will admit the act of finishing such-rooms is, in the abstract, innocent enough; the illegality would consist in the future appropriation. The wretch who contemplates such acts may reform, and the same apartments, originally intended for most nefarious purposes, may be appropriated exclusively to the purest exercises of devotion. The crime must consist in acts, not intents, and can only be reckoned as consummated from the moment of the unlawful use to which the thing is appropriated by the proprietor.
    As the intentions of the owner could not be punished, so, we-suppose, the builder could not or ought not to be punished for knowing such intentions. If an upholsterer sells a bed to an unlicensed tavern-keeper, knowing it to be used for his guests, or to the keeper of a house of ill-fame, knowing it to be used for the ease and comfort of the owners, shall he not be paid for the-article?
    444] *If the court is to establish a rule of general application, I know of none that would answer a better purpose than that he-who is to participate in the profits of an- illegal transaction, as well as when both are forbidden by law to do an act, shall not have the aid of the court to enforce the contract. This rule is not ■too refined for the business of life, and would aid in preserving the-morals of the community. Such a one as the defendant asks-would lead to injustice and oppression.
    Wilcox, for defendant,
    cited 1 Maule & Selwyn, 593; 17 Mass. 258 ; Rall v. Raguet, 4 Ohio, 400.
   Judge Lane

delivered the opinion of the court:

29 Ohio Stat. 162, forbids, under a penalty, any tavern-keeper or retailer from keeping, or permitting to be kept, a nine-pin alley in the building occupied for that purpose; can a carpenter, knowing the object, recover the price of erecting it?

The principle is of general application that contracts contrary to sound morals, public policy, or forbidden by law, will not be executed by courts of justice. Although the rule is plain and definite, difficulties sometimes arise in its practical application. If an improper use be made of goods innocently sold, or if the results of honest labor be devoted to improper purposes, the agent- or the vendee ought not to be visited with the penalty; yet if they intend to assist it in the illegal act, they are parties to its unlawfulness, and deserve no aid from the law.

For the purpose of drawing the line between fraud and innocency, the plaintiff proposes as a test to inquire if the plaintiff derives any benefit from the unlawful use of the goods, or appropriation of the fruits of labor. In our opinion a better rule may be found, more conformable to sound morality, and sufficiently accurate for practical application. If one intend to aid another in an illegal object, he shall not be assisted by the law: as if he sells goods packed in a particular form for the purpose of being smuggled. 1 B. & P. 551. Nor the price of drugs, for the purpose of being illegally used in beer. 1 M. & S. 593. And if knowing the purpose, and having the ability, he do not prevent it, he is deemed to intend it, as in the late case of lodgings let, Abbot held a weekly rent was not recoverable after the landlord knew they were used for prostitution. 21 Comb. 430. And a man is deemed to ^intend the thing he sells or makes shall be ap- [445 propriated to its ordinary use. If that ordinary use be innocent, he is not chargeable with a subsequent misapplication. If a carpenter build a house, he is not to be presumed to do it for bad purposes; or if a blacksmith sell an ax, he is not to be held privy to a blow which may be struck without proof of design. Yet even here, if he intend to build a brothel or to assist in a burglary, he ought not to have the fruits of his labor. And if the ordinary use of the thing produced be illegal, he must be taken as intending the use, and as privy to the illegality, and therefore entitled to no benefit for his labor.

Such is the condition of this plaintiff. He assisted in constructing a nine-pin alley appurtenant to a coffee-house. It is an erection sui generis, whose ordinary use in such a place is unlawful. It was right for the court to charge the jury he could not recover for this work.


text:
    The Universal Church v. The Trustees of Section Twenty-nine, Columbia Township, Hamilton County.
    Proceedings upon mandamus must be in conformity to the common law prac-
    'Beturn to a mandamus nisi for the distribution of proceeds of ministerial lands, that before application made, the money was all distributed, is a sufficient return.
    -This cause was adjourned from Hamilton county. At the May term of this court, in Hamilton county, an alternative mandamus was issued upon the relation of the Universal Church against the trustees of the ministerial section, No. 29, granted by Congress for religious purposes, lying in Columbia township, commanding that they pay to the relators an equal dividend of the rents and profits of said section, for distribution in January in the years 1833-34, or show cause why they refuse.
    To this writ, the trustees return the following cause for refusing to pay, that is to say:
    That by law every denomination of religious societies, before they can entitle themselves to participate in the dividend of the rents and profits of said section, must give themselves a name, and appoint an agent to demand and receive their portion of the dividend, who shall produce to the trustees at their annual meeting in January, a certified list of the names of the members of the society for whom he claims dividend.
    446] *That by law the said trustees are required to meet annually on the first Monday in January, to make distribution of said rents and profits to such religious societies as may so apply.
    That the trustees did meet according to law on the first Monday in January, in each of the years 1833-34, and there divided all the said rents among the Presbyterian, Episcopal, and Reformed Methodist and Baptist societies, they being the only societies applying for any portion of said rents.
    That at neither of the times of making said dividends, nor since, have the relators ever applied to said trustees, by agent, who has exhibited evidence of his agency, and certificates of the members of the relator’s society, and demanded any portion of said rents and profits.
    And that no part of said rents and profits remain in the hands of said trustees for distribution.

      To this return the relators plead that on the first. Monday of January, 1833, they appeared by William Connel, their agent, with a certified list of forty-seven members, and'on the first Monday of January, 1834, they appeared by Ira Broadwell, their agent, before the said trustees with a certified list of forty-two members, and made regular application for a portion-of the dividend of the rents and profits of said section, and then produced sufficient evidence, of their right to a portion of said dividend.
    The defendants demur to this pie a generally. There are several other pleas tendering issues in fact.
    Storer and Spencer, for the trustees, made the following points:
    1. That it is incompetent for the relator to traverse or falsify the return to an alternative mandamus.
    2. The plea is bad, inasmuch as it does not answer the material allegation in the return, which is, that the trustees, having distributed all the funds received, have nothing to pay to the relators.
    C. Fox, contra, insisted :
    1. That the court is bound to establish a practice in such cases, and that which permits a traverse of the return is the best and most convenient, and. should be adopted. 3 Bl. Com. 110, 111.
    2. That the return itself is insufficient, inasmuch as it is contradictory, *and sets up no new matter. 4 Bac. Ab. 518; [447 Ld. Hard. 46, 73-79; Doug. 158, 159; 2 Ohio, 108; 2 Cooper, 723, 731.
   Judge Wright

delivered the opinion of the court:

The first inquiry claiming our attention is, whether, by the common law, it is competent for the relator to traverse and falsify the return made to an alternative mandamus ? ' The object of the remedy by mandamus is to compel public officers and private individuals in matters relating to the public, to perform their public duties. 3 Bl. Com. 110; Bac. Ab., Mandamus; It is a writ to compel action by, not to give remedy against, the individual officer, for injury resulting from an imperfect or improper action. 3 Burr. 126, 167; 5 Bin. 103.

At the common law no pleadings are allowed beyond the return collaterally to contradict it. Taking the return as true, judgment is pronounced, awarding a peremptory mandamus or refusing it. This is given upon the legal sufficiency of the return. If false, the relator was driven to his action to falsify the return, and to. •obtain redress. The statute of 9 Anne, ch. 20, changed the common law practice in England, and made provision for a course of pleading and regular trial. 4 Bac. Ab. 560; 3 Holt, 366, 367. In New York, the legislature has made provision by statute, to regulate the practice in cases upon mandamus. 1 N. Y. L. 107; 16 Johns. 62. In Virginia, Pennsylvania, New Jersey, and Massachusetts, the common law prevails as to such proceeding. 6 Mass. 464, 466; 466 Denis Ab. 323, 335; 6 Bin. 9. We have no .statute in this state on the subject of the practice on this writ. The statute authorizes the courts to proceed according to the usages and principles of law. 29 Ohio L. 56. The rules and principles of the common law have been uniformly held to govern our practice, so far as they are applicable to our condition and •circumstances. 1 Ohio, 245. In Turner’s case, 5 Ohio, 542, this court determined that recurrence should be had to the common law, to learn the cases proper for the application of this writ. The counsel for the relators urge that the court is in duty bound to fix some rules to govern the practice on this writ, consonant with the practice in those countries where the common law rule has been found inconvenient and remedied. The court doubtless has the power to regulate its practice; but it is a power to be 448] exercised cautiously. The expediency of ^exercising the power in this class of cases is questioned. In other states as well as in England, the practice has been changed by the legislature, not the courts. In this state, this very practice was before the legislature several years ago, and no change was thought necessary. We think the practice might be simplified, and justice more speedily administered than by pursuing the course of the common law; but until the general assembly shall interfere, unless the evils of the present system shall become more apparent to us, we must decline interference. The pleas, therefore, which question the truth of the return to the mandamus can not received.

The remaining question is upon the sufficiency of the return. It is, in substance, that at the annual meeting of the trustees, they distributed according to law all the funds in hand to those applying; and relators did not apply. The trustees have no fund now to distribute. It has all been distributed out. If it has been so distributed in wrong, the individual agents are not to be punished, nor redress secured to the injured in this form of action. The ■precise question here arising was before the court in Ohio, ex rel. Hodge, v. Newton, 2 Ohio, 109, in which the court held that inasmuch as the command of the mandamus could not act on the specific fund, no order could be awarded to act on any general fund within the control of the trustees. The court say, “the proceeds of each year are specifically appropriated to each society, according to the number of its member's for that year. There are different owners of the rents for each separate year; and if injustice be done in making a dividend, it can not be corrected in a subsequent one without injustice.”

The return is sufficient; a peremptory mandamus is refused at •the cost of the relators.


text:
    Uri Seely v. Robert Blair.
    The Supreme Court may direct a struck jury for the trial of a cause pending before it, in a different county from that in which the order is made.
   Judge Lane

stated the case and delivered the opinion of the court:

A suit being pending between these parties in the Supreme Court, in the county of Geauga, a motion was made *in this [449 court, while sitting in the county of Franklin, to allow a struck jury; this motion was reserved to be decided in bank, to obtain the opinion of the whole court upon the right to exercise this power, except while sitting in the county where the suit is pending.

Although the constitution requires the Supreme Court to be holden in each county in each year, yet neither the constitution nor the law organizing this court impose any territorial limitation upon its authority, and it has been accustomed to exercise certain functions operating beyond the county in which it may be sitting. It has ex necessitate supplied vacancies in the office of clerk and master commissioner. It receives motions for mandamus. 5 Ohio, 249. A long course of pratiee has rendered it familiar with applications to change venue with motion like the present, and an interposition for these objects is necessary to prevent delays in justice.

The papers before us present a proper case for granting the present motion.