text:
    Robert Cowdin v. Joseph Hurford.
    Foreign attachment can not be sustained against one of several joint and several contractors.
    This was a writ of error, adjourned here for decision from the county of Jefferson. The original suit was an attachment sued out of the court of common pleas of Jefferson county, upon the affidavit of the defendant in error, filed in January, 1823. Upon the return of the writ of attachment, Joseph Hurford filed a declaration charging the assumpsit upon Robert Cowdin. George Starr, claiming to be creditor, filed his declaration in the same manner. Other declarations were in like manner filed. Thomas Stevenson counts, “that Robert Cowdin; jointly with one Robert Gilmore, they being then and there joint partners, made his certain receipt, etc., jointly with the said Robert Gilmore, by which said receipt said Cowdin acknowledged,” etc. The promise was laid, as made by the defendant in attachment, to the plaintiff. To all these declarations the defendant in attachment pleaded in abatement, because the undertaking, if any, was by said Cowdin and one Robert Gilmore, who is still living. Demurrers and joinders to the pleas. The court below adjudged the several pleas in abatement insufficient, and gave several judgments, to reverse which this writ of error is brought.
    Tapp an, for plaintiff in error,
    cited 2 Saund. 210, n.; 2 Bos. & Pul. 42; Com. Dig., Abatement, F.
    *J. & D. Collier, for defendant in error,
    cited 1 Saund. 291, b, n. 4; 5 Term, 651; 1 East, 20; 4 Term, 725; 3 Camp. 50; 1 B. & A. 224; 2 Taunt. 254; 5 Burr. 2614; 2 East, 313; 2 D. & R. 439.
   By the Court :

The writ of attachment appears to have been issued under the statute of 1810; but the subsequent proceedings have been had under the law which took effect on June 1, 1824. The pleadings disclose the fact, that one of two partners lived in the county of Jefferson and the other was not a resident of the state. The affidavit was made and the writ issued against the absent partner. The declaration charged him alone.as the promisor, and the judgments are rendered against him without noticing the liability of the other partner. The correctness of the whole pleadings is fairly before the c'Mirt upon the assignment of general errors. The question principally to be considered is, whether in proceedings in attachments upon contracts, expressed or implied, where there are partners, it is necessary to charge them in the declaration, as in other actions. Section 13 of the act is in these words: “Where two or more are jointly bound, or indebted, either as joint obligors, partners, or otherwise, the writ of attachment provided for by this act may be issued against the separate or joint estates, or both, of such joint debtors, or any of them, in the same manner, and under the same restrictions as is provided for by this act in other cases.” Now, this is merely directing the mode of proceedings in rem, where the defendants are joint obligors or partners; but neither dispenses with the proper parties to the suit nor with the necessity of pleading according to the established usages of law. It is not now necessary to decide whether the writ can, in any ease, issue against partners, or others jointly liable, when one of the defendants is at the time resident within the jurisdiction. There is no just inference, however, to be drawn from this part of the statute, that the legislature intended to change either the form or substance of special pleading, so as to authorize a declaration and an assumpsit laid, or a recovery had against one of two or more-partners, without noticing the liability ^of the others. It is-further provided, by section 9, “that the plaintiff in attachment-, and every other creditor, at or before the third term, may file their declarations, setting forth, in a proper manner, their cause of action, etc., and the defendant may plead to any or all of the declarations.” In legal parlance, the plaintiff can not be said “to set forth his cause of action in a proper manner,” when there is a joint undertaking by two and the assumpsit is laid as made by one only. The declaration, in this case, neither accords with the law nor the facts. It ought not to be presumed that the legislature intended the facts shouid not be disclosed in the declaration according to the settled legal forms. They have, indeed, used strong and unequivocal terms to the contrary. The court feels great anxiety to preserve the rules of special pleading, which have been founded in wisdom and are the safest guide of the profession. To depart from them is at best a dangerous experiment, often leading to inexplicable confusion and great injustice.

Whatever effect was intended to be given to the writ of attachment, against the property of partners or other defendants jointly liable, the court is not able, from the most attentive examination of the statute, to discover any intention to change the law of pleading or the final judgment to be rendered. Separate actions and independent judgments upon liabilities, in their very nature joint, would be an innovation upon the settled principles of law, which can not be permitted without the legislature expressed an intention to that effect in the most clear and unambiguous terms. The-court are of opinion that the omission to join a living partner in the writ and declaration, is as fatal in attachment, if pleaded in abatement, as in any other form of action. The judgment is therefore reversed.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    *S. H. Hill v. John Kling.
    On a scire facias to subject debtor’s lands to execution on judgment before a justice, it is not necessary that the sheriff should retain the execution from the justice thirty days. Nor is it necessary to take a rule for plea; judgment awarding execution may be entered at the return term of the writ.
    This was a writ of error to the court of common pleas of Rich-land county, adjourned here for decision from that county. The case was this:
    On October 10, 1828, J. Kling recovered a judgment against S. H. Hill, before Justice Gardner, in Richland county, for eighty dollars and fifty-four cents and costs. Upon this judgment execution issued on the 11th of October, which was returned on the 16th of the same month, that there was no goods whereon to levy; but it is suggested that the defendant was possessed of lands and tenements within this county.
    Upon this suggestion, on the same October 16,1828, a scire facias was issued from the court of common pleas, at the suit of Kling against Hill, to appear and show cause, on the 2Uth instant, why execution should not issue on the judgment against his lands. The -• sheriff returned the scire facias duly executed on the 18th of October*. and at the October term of the same year, judgment by default was rendered, that execution issue to take the lands of Hill. To reverse this judgment the writ of error was brought.
    The errors assigned, were:
    1. That on the judgment before the justice, execution issued on ■the 11th of October, returnable the 16th of the same month, which was a void execution, and laid no foundation for the scire facias.

    2. The second error assigned involved the same proposition in different terms.
    3. It was assigned for error that no suggestion was made on the transcript of the justice, that the defendant held lauds.
    4. It was error in the Common pleas to render judgment on default, at the return term of the scire facias.

    5. That judgment was rendered, without either rule or order on the defendant to plead.
    6. The writ of scire facias was insufficient.
    *Parish & Boatt, for plaintiff in error.
    J. M. May, for defendant in error.
   By the Court :

The plaintiff in error insists : 1. That the 'constable’s return, having been made a short time after the execution came into his hands, is void.

2. That the court below erred in rendering a judgment at the -term to which the scire facias was returnable.

5. That it was error to render judgment without rule or plea.

The third and fourth errors appear to have no foundation in fact; the record containing, with sufficient certainty, the suggestion that the judgment debtor was possessed of lands and tenements.

1. This question depends upon different principles from that which might arise between the party supposed to be injured by the return and the officer.

What might be the result of an action prosecuted against the constable, by the plaintiff in error, would depend on facts and circumstances which can not be-collaterally determined between the present parties to the record. The statute does not fix any >day upon which constables shall make return, of executions di. rected to them. Executions are to be returned within thirty days. The proceedings of a constable, unless the statute otherwise provides, are strictly analogous to those of a sheriff, and his legal responsibilities are the same. A sheriff’s return is parcel of the record, and in an action of debt upon it, nil debet is no plea. 2 Saund. 344, n. 2. The sheriff can not be permitted, either in pleading or by evidence, to falsify his return. 6 Mass. 325; 7 Mass. 388. A scire facias lies to a sheriff’s return; it is, therefore, a part of the record. Croke Jas. 514. When the sheriff returns he has recovered a certain sum of money made by execution, this shall charge him, although none was actually recovered. 8 Johns. 16.

These authorities show that as between parties and privies, and the officer, except where the latter is charged upon its falsity, the return is matter of record, and therefore conclusive. *The return is at the peril of the officer. If true, it is his protection if false, he alone is responsible. If a return upon execution can be impeached, or falsified by the parties to the judgment, purchasers at sheriff’s sales, whether of personal or real estate, would be without protection. It Vould be hard, indeed, if it was at the peril of the purchaser whether the return of the officer was true or false, especially where he must be absolutely ignorant of the fact. The point was decided in 4 Day, 1, in a case where bail was fixed, by the sheriff’s return, before the return day of the execution.

2. The statute settles this point. The clerk shall issue a scire facias against such person to appear at the next term of the court of common pleas, and show cause why execution should not issue, and in case such person neglects to attend, or does not show cause to the court why execution should not issue, the court shall issue execution against the lands and'tenements of such person, in the same manner as though judgment had been' obtained in said court. The provisions of the statute clearly do not grant an imparlance to a term subsequent to the return of the scire facias.

Lastly, the rules of the common pleas are not exhibited, so that it can not be ascertained whether they extend to a case like this. It is no doubt competent for that court to establish rules of pleading upon scire facias, issued upon justices’ transcripts; but such rules could not extend beyond the return term. The statute makes this a summary proceeding, in order, no doubt, to fix a lien upon, the defendant’s lands, and prevent frauds upon the judgment ■creditor, by alienation.

In courts of record, this lien is created from the rendition of the judgment. Justice and sound - policy require the same course when judgments are rendered before justices of the peace. But as these proceedings are less notorious, and the business of transferring lands too complicated for inferior jurisdictions, the legislature intended to afford the most prompt and efficacious remedy ■in the courts of record.

This summary proceeding, expedited by the rules of court, as far as the law will warrant, can seldom operate injuriously or ■oppressively upon the debtor; but delay to the creditor might let in a paramount lien, where there was no superior equity, or justice.

Judgment affirmed.


author: *By the Court :

text:
    *Executor of Oliver Bigelow v. Administrators of Elihu Bigelow.
    "When, the obligor in a bond becomes administrator of the obligee, the bond i» suspended, and the debt due becomes assets in the bands of the debtor, as administrator.
    This case was adjourned here for decision from the county of Ticking. It was an action of covenant, and the material facts of the case are as follow:
    On April 26, 1815, Oliver Bigelow sold to Elihu Bigelow, a tract of land, and covenants in writing were entered into, by which Oliver Bigelow agreed to convey the land, and Elihu Bigelow agreed to pay Oliver the purchase money, in installments of two hundred dollars on demand, and two hundred dollars yearly, from -the date of the article, until the whole was paid.
    During the lifetime of Oliver Bigelow, several payments were made, and indorsed on the article. But before the contract was completed, Oliver Bigelow deceased, and letters of administration on his estate were granted to Elihu Bigelow, in virtue of. which he became possessed of his own covenant to Oliver Bigelow. In his administration account Elihu Bigelow represented that there was due on this article to Oliver Bigelow the sum of one hundred and eighty dollars. Whilst acting as administrator, Elihu petitioned the court, under the statute, to complete the contract by ordering a conveyance, in which petition he alleged that the whole purchase money was paid.
    Subsequent to this Elihu died, and the defendants became his administrators. It was also ascertained that Oliver left a will appointing the plaintiff his executor, who proved the will, and took letters testamentary. And having by some means obtained possession of the article of agreement, instituted this suit.
    At the trial the jury found a special verdict, finding that the article was the deed of Elihu Bigelow, and that there was due upon it, to the estate of Oliver Bigelow, the sum of three hundred and nine dollars and sixty cents. And that the present plaintiff obtained the article without the consent of Elihu Bigelow or his administrators. Upon this special verdict, and an agreement of the other facts stated, the cause was reserved to be decided here.
    *H. Stanbery, for the plaintiff:
    The facts of this case are few, and yet so singularly complicated as to require a careful investigation. The principal difficulty is occasioned by the debtor of the intestate becoming also his administrator. There is one fact found by the special verdict, which must be taken as established, that the bond debt has never been actually paid.
    The plaintiffs, who represent the obligee, have prosecuted their action upon this obligation. They show that a part of it is yet due, and this they claim to recover. The manner in which they possessed themselves of this instrument is wholly immaterial. If it evidence a subsisting debt due to their testator, or rather to them as his representatives, it of right belongs to them, and their title to it can not be disputed, at least in this action. It is unnecessary to cite authorities to this position. The well-known case in Yer-non’s Reports, in which the. person who had stolen his deed from a counselor’s table, and was enabled to protect himself with the legal advantage it gave him, will be recollected.
    The plaintiffs'then, affirmatively, show a right to recover on this bond. Let us see what the defendants have to object to this recovery. They say that when Elihu Bigelow, the obligor, became the administrator of Oliver Bigelow, the obligee, eo in.Manti, the bond merged, and the amount due upon it became assets in his hands. This ground can not be maintained as a defense to this action.
    It is clear that the debtor obtains no advantage of his creditor, by administering upon his estate. He does not stand in the situation of a debtor appointed the executor of his creditor. In that case the old authorities are, that .if the estate be solvent, the debt is absolutely merged and satisfied. Needham’s case, 5 Co. 30. In the modern cases, it is not.held to be an extinguishment of the debt in any event, except there be a plain intention to that effect expressed in the will. But it has never been held that tho granting of administration to the debtor worked this merger. 8 Co. 136; 1 Roll. 934; 1 Sid. 79; 1 Salk. 306, n. A. The distinction between the cases is obvious. In the first, the executor being appointed by the testator, he was taken, if nothing to the contrary appeared on the will, to have intended a release of the debt, as a ^recompense for the trouble cast by him upon the executor; but the administrator not being appointed by the deceased, no such intention can be presumed. Com. Dig., Adm’r, 336, 337.
    This debt was, then, not extinguished by this act, nor was it prejudiced. The taking of administration byElihu, the debtor, was of his own motion. The law will intend it to have been for the benefit of his intestate, and will not suffer the estate to be prejudiced by the legal consequences of that act. But the administrator can not sue himself, to recover the debt which is due from him individually, to the estate, or rather to himself in his representative capacity. This inability to sue would give him, as debtor, an advantage which the law will not tolerate; and therefore, in favor of the estate, the creditor or heir may, if either choose to do so, hold him accountable for the amount of his debt as assets. But the debt is not to all purposes considered as assets. In reality it continues a debt, inasmuch as it is not actually paid, and therefore, although the administrator, for the purposes of justice, is es-topped from denying that it is assets, yet his securities are not. They are only liable for debts actually collected by him, or which he might have collected by proper diligence. Their liability is not altered by the administrator being the debtor. If the administrator were, for instance, insolvent, they would not be charged with this desperate debt. They do not guaranty his responsibility ¿s a debtor of the estate, but only his honesty and the faithful discharge of his duties. I have gone into this detail, preparatory to a view of this case in the light in which it should be regarded for the protection of the estate, the creditor, and the heir.
    Before Elihu Bigelow connected himself with this estate, as administrator, he was a debtor to the estate by bond, for the payment of the consideration of a tract of land which he had purchased of Oliver Bigelow. The legal title to the land had beet? retained by Oliver, as security for the unpaid purchase money, and passed, at his decease, to his heir. This debt did not then rest upon the personal responsibility of Elihu; a fund was appropriated and retained for its security, over which the creditor had given the debtor no control, and which the law will not take from him until his debt be paid. Elihu administers upon the estate of Oliver. His *debt is not extinguished by that act, nor is it actually paid. Indeed, Elihu as administrator, does not treat it as then paid. He does not place any money to the credit of the estate, as representing that debt. He does not charge the estate with any money paid out of his own funds on account of it, but he places it in his inventory on the footing of an unpaid debt.
    It is contended that this act of administration operated an entire transmutation of the rights and liabilities which, prior to it, were incident to this bond. It is said, that although the debt is not extinguished, yet that the bond is merged, and can only be used to ascertain the amount. That it stands as if the bond were actually paid in full, and the amount of it has become assets; money collected and in the hands of the administrator; and that the individual obligor was discharged from all liability; his bond satisfied, and he of course entitled to a conveyance of the land, and put in a situation with regard to the fund, that enables him to control it, and place it' beyond the reach of the original claim. These consequences would be manifestly injurious to the creditors and heirs of the estate; the fund is gone, and in the place of it is substituted the mere personal responsibility of Elihu Bigelow; for, I repeat it, in case of his insolvency, his securities could not be made to answer this debt. And this wrong is accomplished by the debtor himself. The heir and creditors are in no fault; they are not chargeable with any laches; they have done no act to alter their debt, and especially during the continuance of his administration, they never treated the debt as modified or paid. They did not choose to hold Elihu responsible for the money as actually received; and as soon as his administration is determined, the lawful executor of Oliver Bigelow insists upon the bond, and refuses to be subrogated to an action for the money.
    There is nothing, then, in the acts of the parties, to modify this debt, and under such circumstances, as a modification would work an injury to the estate, the presumption oí payment to the administrator, which is made for the benefit of the estate, will not be applied.
    It seems to mo that the only necessary effect of the administration upon this debt, was to suspend the right of action. Whether it should be considered paid and assets, would ^depend upon the consequences of that presumption. If it were a debt originally resting on the sole responsibility of the debtor, the presumption of payment would be made, for that would place it upon the same footing ; but if the debt originally were strengthened with other security, it would not.
    Suppose a bond secured by mortgage. The obligor, who has no estate but the mortgaged premises, administers to the obligee. According to the doctrine of the opposite counsel, that act, by an inevitable necessity, carries with it a presumption of payment and merger of the bond. The bond is the principal, and th.e lien on the land, which is but the incident, is gone with it, and there remains the personal responsibility of the administrator, which the intestate, at the creation of the debt, would not rely upon, and which, in fact, is not worth a rush.
    Another case suggests itself. A trespass upon the real estate of 'the intestate before his death; the trespasser becomes the administrator. What is the consequence with regard to this debt ? It is mot extinguished, nor can the presumption of payment apply to it, ■on account of its uncertainty. During the continuance of the debtor’s ■administration, it can not be prosecuted by action, but as soon as ■his administration determines, it may be recovered by those who come after him and represent the estate; otherwise manifest ini justice is done by the act of the debtor, and this the law will not ¡tolerate. The same difficulty of applying the presumption of payment, occurs in all debts which happen to be uncertain and unliquidated in amount. These cases in illustration show clearly that this presumption is not necessary and inevitable, and that the right .of action upon the original claim may survive, where the purposes of justice require that it should. Indeed, there are many instances •where a right of action is temporarily suspended, and yet after. ward capable of being asserted. Between am intestacy and the granting of administration, there is a total suspension. So in the case of an alien enemy, and others of a temporary disability. But again, this presumption of the payment of the debt, and that it is resolved into assets, is made for the particular emergency. The reason and propriety of its operation cease when the emergency is passed.
    *The administration of Elihu Bigelow was temporary, and the estate was not settled in his hands. The present plaintiffs have succeeded him, and finding this bond, instead of the supposed assets, have brought their action upon it. There is now no necessity for the legal presumption. The debtor has lost his character of creditor. He stands as he did before he administered, and so does the debt, for in fact it is yet due. Will the court, then, by a mere fiction of law, made for the benefit of the estate, and not intended to operate, except from an instant necessity, now when its operation is not needed, and would work an injury, oppose it to the recovery of this claim ? And to what purpose, but to lead to multiplicity of action and the jeopardy of rights.
    And here, however strong the presumption that the debt has become assets, might be of itself, yet now it can not be made. The special verdict is express, that the bond is now due; against that no presumption can be made.
    It is further contended that the statement of Elihu Bigelow in his petition for a deed, and the finding of the court, show a payment of the debt. That anomalous proceeding can have no effect in any imaginable point of view upon this ease as it now stands. The decree as stated in the defendants’ notice was never carried into effect. It must either be referred to as evidence of the payment of the bond, or as an adjudication by which the bond was merged.
    Suppose it to be proper evidence of the payment, it is evidence in relation to a fact established beyond controversy, by the special verdict, and which can not now be contradicted. This is not a motion for a new trial, on the ground of a verdict contrary to evidence, or by reason of newly discovered testimony. Any matter, then, to impeach the facts found by this verdict can have no relevancy.
    The same objections go against the decree as evidence of a merger of this bond, for the jury have found it to be still due and subsisting. And, indeed, without this finding, the decree would not have that effect, or any other, to prejudice the rights of the plaintiffs, for obvious reasons. It was a proceeding wholly ex parte, without mutuality, and founded on the debtor’s false or mistaken statements. It can, therefore, have no operation here. 1 Stark Ev. 185, 195.
    *Dille, for defendants:
    The power and duties of an administrator in this state are defined by statute, and not as in England regulated by the usages of the spiritual courts and the principles of the civil law. Our statute, passed January 25, 1816, provides, that if after an administrator has been appointed, “ it shall appear to the court that any last will and testament was made by the deceased, and the executor, or executors, therein named shall prove the same agreeably to law, and request letters testamentary thereon, then the court shall require the administrator, or administrators, to deliver such letters of administration, together with his or their proceedings, to, the satisfaction of the court.” 14 Ohio L. 151. The “ act defining the duties of executors and administrators,” passed February 11, 1824, makes no material variation from the act of 1816, in this respect.
    In England, it was formerly held that “ if the testator makes a will, and the ordinary, without taking notice of any such will, grants administration to another, and afterward the executor comes in and proves the will, such executor shall regularly avoid all mesne acts done by the administrator,” and the reason which is given is, “ that the executor, by being made such, had an interest which the ordinary could not deprive him of.” Plow. 277 ; 2 Bac. Abr. 411. And it still seems to be the doctrine, from the same authority, that the administrator is liable under such circumstances to the executor in an action of trespass, even though the will was not discovered until after administration granted; but if, in such case, “ he paid debts, legacies, or funerals, which the executor was bound to pay, he shall recoup so much in damages.” Now, compare these principles with the provisions of our statute, and we will find that the common, or rather civil law maxims, do not apply in a case of this kind in this state.
    But if the analogies of the common law have any weight here, it may be well to inquire what were the decisions in case administration was improperly granted, afterward revoked, and a new administrator (the next of kin, or such other person legally entitled) is appointed. In Packman’s *case, 6 Coke, 18, it was decided that even though the first administrator fraudulently sold the goods of the deceased during the pendency of a citation to revoke his power, in order to defeat the plaintiff in the spiritual court of the effect of his suit, that the first administrator had the absolute property of the goods, in him, and without question he might give them to whom he pleased. If the gift be by covin, it shall be void by the statute 13 Eliz. against a creditor, but it remains good against the second administrator.
    I have cited the above provisions of the statute, and the case of Packman, from Coke, to support me in this position, that the administrator, who is appointed, and takes upon himself the administration of the deceased’s estate., before the discovery of the will, has such a property in the personal estate of the deceased, and such authority over his personal rights, that his acts are of such validity that they shall bind the executor who succeeds him. And this I strongly infer from the statute, which requires such'administrator to return to the court his proceedings. And this is required that the court may know how far he hath administered, how far he is liable to be charged, and how far such executor may be exempted from liability by reason of such former administration. If, then, this position be correct, how does this case stand? For I presume it will not be denied that when administration is granted to a person who is the debtor (by bond, for instance) of the intestate, that the amount becomes merged, and the amount due upon it is chargeable upon the administrator as so much assets in his hands. It must be merged from necessity, for assets, to that amount, are, in truth and in fact, in his hands, and the bond can only be referred to as evidence of the amount. The administrator can not bring suit against himself. The making of him administrator is the act of the law, and the merger of the bond is the effect consequent upon that act. Now, when Elihu Bigelow administered upon the estate of Oliver Bigelow, deceased, this bond came into his hands. It became a debt which he owed unto himself, because the obligor and obligee were united in one and the same person. Yet if he failed to account for this sum, he was liable, either to the executor who succeeded him, or to the creditors of Oliver Bigelow, upon a deoastavit (see also Packman’s case), or upon his administration *bond. So did he consider it when he charged himself with the amount due upon the bond in the inventory which he returned to the court; and so was it considered as well by the court as himself, when he petitioned, under the “act providing for the execution of real contracts in certain cases,” for a completion of this contract. The court were satisfied that the bond was paid, because they knew that the money was in the hands of the only' person then known who was entitled to hold this bond, or who had the property of it. Upon this the court was authorized to declare, in the minutes of its proceedings, that it was satisfied that the bond had been paid, and to direct a person to make a deed pursuant to the contract. This was the situation in which the plaintiff, as executor, found the estate of his testator, when it came to his hands, after the partial administration of Elihu Bigelow. And if the position which I endeavored to establish in the foregoing part of this argument be true, that the executor, in a case of this kind, is bound by the acts of his preceding administrator, then the bond in this case was so merged that the present action could not be maintained upon it, and the verdict should be set aside. It is not important to this inquiry to determine how far the defense upon which the present defendants rely, would have been waived, if they, as the personal representatives of Elihu Bigelow, deceased, had, ignorant of the law, voluntarily surrendered to the present plaintiff the bond in question ; for the jury have found that it was obtained by him without the consent of Elihu, or of his administrators, so that no right has been waived — no defense abandoned. It was argued at bar, that were the bond in this case merged, it would destroy the lien of the heirs of Oliver to the land. But what is the nature of that lien ? In all cases of this kind it may be extinguished by the act of the administrator. For as soon as he receives the whole amount of the purchase money, equity declares the lien to be at an end, and decrees a conveyance of the legal title to the obligee. And the law will not studiously support a bare right that is attended with neither advantage nor value. The bond is the proporty of the executor or administrator, and though the legal title be in the heirs to strengthen their lien, yet he may at any time extinguish and forever defeat it.
   *By the Court :

The first question made is, whether the appointment of a debtor administrator extinguishes the debt, and eo instanti turns it into assets.

Secondly. If the debt is only Suspended, whether the application for a deed by the administrator to himself, as obligor, and an order granted, destroy the right of action on tho bond.

In this case, it appears that during the lifetime of Oliver and Elihu Bigelow, they entered into articles of agreement, by which Oliver covenanted, upon the payment of a certain sum of money by Elihu, to execute a conveyance for a tract of land therein spoci-, fled. A part of the money was paid in the lifetime of Oliver. Administration on his estate was granted to his brother Elihu.

It is now a well-settled principle that if a creditor make his debtor executor, it is not absolutely an extinguishment of the debt, but remains as assets in his hands. Dorchester v. Webb, Croke Car. 372. It is, however, quasi a release at law, because he can not be sued. 1 Com. Dig. 337. The same rule must apply to administrators who can not sue themselves any more than executors. Both are trustees; the one under the law, the other by the appointment of the testator. In the principal case, a will was discovered and admitted to probate, and the administrator was superseded by the executor. Counsel suppose the debt or duty was only suspended, while the debtor was acting as administrator, and that a right of action immediately accrued to the executor when the bond came into his possession. The law appears to be otherwise. Personal actions once suspended are always suspended. Croke Car. 372. If the bond was once assets, no act of the parties could turn them back to an obligation. Chief Baron Comyn, who is himself said to be an authority, has recognized the principle as a sound one that a personal thing suspended is extinct. 1 Com. Dig. 337. The principle under consideration was decided in Winchop v. Basset et al., 12 Mass. 199, the court says, the executor having voluntarily assumed the trust, which prevents any one from suing, and being unable to sue himself, he shall be considered %s having paid the debt, and as holding the amount in his hands as administrator.” By the same case, securities in the bond were considered accountable for such assets. The discovery of a will, and the appointment of an executor, only operate as a repeal of the grant of administration, which did not avoid all mesne acts. A repeal upon citation, although the goods were sold pendente lite, does not render the act void. Croke Eliz. 458; Salk. 38. Consequently the application, on the part of the administrator, to have the contract specifically executed, and the record of proceedings under it, are not rendered void by the discovery of a will and the appointment of an executor, who accepted the trust. Every act of the administrator has the same validity as if he had not been superseded, but had continued to perform his duties until final settlement and distribution of the estate. But the record of the proceedings, upon the petition of the administrator for a deed, is conclusive against the right of recovery in this action. The court had jurisdiction, and have found the payment of the money, which can not be controverted, unless this order or decree is void, and this is not pretended; it, being a solemn judgment of a court of competent jurisdiction, is no longer open for controversy. The decree can not be open for inquiry, whether the obligee made payment or not. The court has already adjudged that, and the record shows it. A judgment of the law is not to be controverted by collateral matters, for they are intended. 6 Cok. 38; 11 Mass. 227; Jackson, ex dem. Goforth, v. Longworth, 4 Ohio, 129. We can notin this collateral way go into an inquiry concerning the propriety or impropriety of extending the equity of the statute to an obligee who is administrator. The-policy of admitting a trustee of the law to make this application, where his personal interest must come in-conflict with his representative duties, would, as an abstract principle, be very questionable; but the decision has been made, and in this action can not be controverted.

The legal maxim, omnia prcesumuntur rite et solemniter esse acta, donee probitur in contrari-urn, applies with force to this as well as to every other record. The court are of opinion that the facts agreed are conclusive against the plaintiff’s right of recovery upon this bond. Circumstances *may-exist which enable the heir or creditor to be relieved against the effect of thip order or decree, by applying to a different jurisdiction.,

Judgment of nonsuit.


author: By the Court:

text:
    James and Thomas Taylor v. John McDonald.
    Where one of several contractors is a resident of the state, and the others nonresidents, an attachment can not he sued out and maintained.
    This was a writ of error adjourned here for decision from Jefferson county.
    The record shows that on May 23, 1826, the defendant in error sued out of the court of common pleas of Jefferson county a writ of attachment against William H. Hayes, John Pheeham, David Adams, Thomas Taylor, William Fitsrammons, and James Taylor, as non-resident debtors. To the writ the sheriff returned he had attached a section of land, the property of James Taylor and Thomas Taylor; at the return term the first default was entered, and an order of notice, agreeably to the provisions of the statute. At August term, 1826, the second default was entered, and the notice proved. On the 14th of September following a declaration was fil ed, reciting the issuing of the writ, the sheriff’s return, and then avers, “ that, whereas, Thomas and* James Taylor, together with the said Hayes, Adams, JPheeham, etc., trading under the name and firm of the Pittsburg Iron Company,” etc. At November term a third default was taken. The defendants, without putting in bail, pleaded in abatement, in substance, that Pheeham was, at the time the writ was sued out, and still is, a resident of Ohio, to wit: at Wellsville, in the county of Columbiana. The truth of the plea is verified by the oaths of the defendants in an affidavit subjoined.
    General demurrer to the plea and joinder.
    At October term, 1827, the plaintiff says he will not farther prosecute his suit against Pheeham, because he is ascertained to be a resident of the state. And thereupon the court adjudged the plea in abatement insufficient and respondeat ouster. *On Decernber 31,1827, the defendants, except Pheeham, pleaded non assumpserunt, and filed an affidavit of its truth, etc. Subsequently, on motion of the plaintiff, and it appearing to the court that no property of the defendants, except Thomas and James Taylor, had been attached, leave was given to enter a nolle prosequi against all except the Taylors. By agreement either party had leave to amend. On May 15,1828, the plaintiff filed an amended declaration, reciting all the previous proceedings, and further, “ that, whereas, the said Thomas and James Taylor, together with Hayes, Pheeham, Adams, etc., late partners, etc., promised, etc.” To the amended declaration the defendants pleaded the general issue, and filed an affidavit. The defendants moved to strike the cause from the docket, because the writ issued on a joint liability, and the plaintiff, as to several of the defendants, has dismissed his suit. The motion was overruled. The defendants also moved for a nonsuit, which was overruled. The jury impanneled returned a verdict for the plaintiff below of one thousand four hundred and forty-seven dollars and thirty-one cents. Judgment upon the verdict and an order for the sale of the property attached. Among the many errors assigned, one was that the court ought to have adjudged the plea in abatement as sufficient, and the judgment of the court being founded upon this error, it is deemed unnecessary to notice the others-
    Marsii, for plaintiffs in error:
    In arguing the validity of the plea in abatement, the counsel for the plaintiffs in error do not consider it necessary to determine what the law would have been, had the attachment, in this case, been issued against non-residents only. The .case would certainly have been entirely different, in every aspect in which we can view it, had the fact that a resident of this state was one of the partners-in the Pittsburg Iron M. Company been first disclosed by a plea in abatement, for want of making all the members of the company defendants in the writ. Here the writ is issued against the property of one who, by the subsequent pleadings, is admitted to be a resident of this state. The affidavit, on which the writ issued, must have stated that Pheeham was a non-resident.
    *This is a statutory action, and the terms of the statute must be strictly complied with. 2 Ohio, 229. This being an action on a joint contract, must be sustained against all thoso who are made defendants, and who are set forth in the declaration as joint contractors. The parties have a right to insist on performing the contract in the same manner in which it was made. Any one or more, who are sued, have a' right to insist on the other joint contractors being brought before- the court, to assist in the defense. Hence the plea in abatement that another, not sued, contracted jointly with the defendant. Clearly, then, if the one defendant, when sued alone, could compel the calling in the other to defend with him, the plaintiff can not, when he comes into court, dismiss one of two defendants, sued on a joint contract, without dismissing both. As to the idea of bringing him back again, by a plea in abatement, it is idle ; for of what use to compel the plaintiff to call in a party whom he may again dismiss the next day ? But it is considered unnecessary to defend the position that, in an action on a joint contract, commenced by personal process, the plaintiff, if he found that he had made too many persons defendants, could not non pros, his suit as to a part of the defendants, and go on as to the others. 1 Com. Dig. 80; 1 Wilson, 89; 1 Saunders, 207, note; 2 Tidd, 682 ; 5 Burr. 2614. But it will, perhaps, be contended that this statute has changed the law in that respect, and that the defendants could not plead in abatement the non-joinder of other joint contractors in a writ of attachment under this statute. The statute does not appear to us to have made any alteration in the law in this respect; but even if it had, it is conceived that as this case is it could make no difference. The fact of the liability of Pheeham. is shown by the plaintiff himself, by his affidavit, and writ, and declaration, and it is only the fact of residence which is disclosed by the plea. The plaintiff himself has brought him into court, and declared against him; and the contract being joint, he can not any more non pros, his suit, as to him alone, after appearance by the defendants, than if the suit was commenced by summons. The plea in abatement is clearly good as to Pheeham. This point was expressly decided in Harts-horn v. Wilson, 2 Ohio. Is it not, then, a good plea for the other defendants? It is conceived *that it is, for the reasons before stated, and also for another reason. This statute clothes the court with limited and defined powers, which it can not exceed, but must strictly pursue. The court of common pleas, acting under this statute, sits as a court of limited jurisdiction. If any of the parties made defendants are not subject to the jurisdiction of the court in this form of action, the court can not take jurisdiction of the .cause. Here one of the defendants was not liable to the attachment, and therefore the writ should have been quashed for want of jurisdiction. All the joint contractors make but one debtor. In the case of Strawbridge et al. v. Curtis et al., 3 Cranch, 267, the' court expressly decided that to give a court of limited jurisdiction power to entertain jurisdiction where the interest is joint, each of the persons composing a party, plaintiff or defendant, must be competent to sue, or liable to be sued, in that court. This authority is certainly decisive of the case before the court. I know the court will be told that the thirteenth section of the statute obviates this objection. It will be borne in mind by the court that this statute, creating a new jurisdiction, in derogation of the common law, is to be construed strictly. 2 Ohio, 229. The language of the thirteenth section of the act can not be extended beyond its plain and obvious import, to deprive the defendants of their right to plead in abatement the want of parties. The language is, that “the writ of attachment, provided for by this act, may be issued against the separate or joint estates, or both, of such joint debtors, or any of them.” This is directory as to the form of the writ, with reference to the property to be attached only, and not as to who are to be made defendants to the action. This is manifest, from the consideration that the writ is to be in .the alternative, to attach the property of the defendants, or that of any oí them, or property of both descriptions. And it is submitted to the court that on a writ of attachment, issued, as this is, without any command to attach the several property of one or more of the defendants, the sheriff would not be justified in seizing any other than the property of the company, and that, in this respect, this attachment is not well executed. . This section evidently contemplates that all the joint obligors or partners should be included in the writ, and that they must all be liable to the attachment, *to authorize the writ to be issued against the partnership property,-because, if any one of them is within the reach of personal process, the partnership property may be subjected by the ordinary process of the court, and extraordinary process shall never be resorted to but where the ordinary jjrocess is unavailable. If this vien of the subject be correct, and it is thought that it will not be controverted, it must be decisive of the case.
    J. C. Wright, for defendant:
    The appearance of the Taylors at the August term, 1828, or before, and their plea then, was, as to them, a waiver of all irregularity in the process and previous proceedings. It is a point well settled that appearance and plea to the action is an admission by the defendant that he is properly in court, and he is not allowed afterward to object prior irregularity, in proceedings whose only object was to bring him into court to answer. As the general rule, it is presumed this rule will not be disputed. These proceedings are under the attachment law; and we must look to its provisions, and see if, in this respect, they vary the general rule, or create an exception from it.
    The foundation of the proceeding in attachment is the absence of a debtor out of the jurisdiction of the court, either absconding or as non-resident. Upon affidavit by plaintiff that his “ debtor is not a resident of the state,” the writ issues to attach the lands, etc., of the debtor wherever found. It is a proceeding in rem, while ex parte as to the attached property, but may be changed to an adversary proceeding, at the option of the debtor. He may perfect an appearance by entering special bail to the action, or rendering himself in custody, and be held to plead; or he may do so without special bail, leaving the attached property instead of special bail; and whenever his appearance is perfected, either in one way or the other, he may plead to the declaration, and thenceforth the cause proceeds in the samé manner as if the debtor had been brought into cou^t on a capias, and had perfected his appearance, and plead to the declaration. Could he, in such a case, look back of the nan., and plead to the writ in abatement? That will not be claimed. The statute confers *upon absconding and non-resident debtors the right, without appearance, where the proceedings are in rem, to move to quash, or make objection to irregularities in the writ, etc.; but in such cases the objectors are regarded as mere amici curia, to inform the consciences of the judges in a case ex parte, where the proceedings are always stricti juris. But such is not the case at bar; it is adversary, and the defendant has plead to the declaration in bar. The defects in the writ are cured by such plea. The writ of error can only embrace errors in the declaration, subsequent proceedings, and judgment. If I am .correct, and I think it clear, all objection to these proceedings, that the court erred in the plea in abatement, or in overruling the motion to quash the writ, are answered by the reply that they are anterior to the plea in bar. If the party had a right to the plea or motion, and the decision was adverse, he should have rested there, and prosecuted his writ of error, and not have waived those errors at the time, in the expectation of bringing them up again. This remark applies to the non pros, of the plaintiff, as to all the defendants in his original process but the Taylors; that Was prior to the filing the narr. against them alone, and waived by the plea to the narr.

    'M. D. Collier
    also submitted an elaborate argument for the plaintiff, upon points not touched in the opinion.
   By the Court:

We have recently decided that the statute, regulating attachments, has left the parties to the suit and the pleadings to the law governing the action in other cases. ' But another question is now to be determined, namely, whether in the proceeding against parties jointly liable, all the defendants must either have absconded, or be, at the time the affidavit was made, non-residents. The remedy by attachment exists principally in rem. The party, in contemplation of the statute, is not in court when his property is seized, and the notification, which is substituted for personal service, is generally ineffectual to give the debtor information of the pendency of the action. This proceeding gives the creditor an extraordinary advantage, at its inception, over the debtor. ^Besides dispensing with personal service, the statute gives a lien upon the property of the defendant from the service of the writ. The property, if perishable, may be sold before the rights of the parties have been judicially determined, and is held in the custody of the law, to satisfy the judgment that may be recovered. The rights and credits of the debtor- are also brought within the control of the creditor by this process. These very important consequences, which are unknown to our general course of jurisprudence, flow from this process. This remedy, being nearly ex parte, and not according to the course of the common law, ought not to be extended beyond the letter of the statute. Colwell, Adm’r, v. The. Bank of Steubenville, 2 Ohio, 229. Where the creditor proceeds by attachment, the statute does not authorize him to dispense with the parties to the contract, either in the declaration or subsequent proceedings, and it is not in his power to omit one of two or more joint defendants, without incurring the danger of the suspension of his remedy, by a plea in abatement.

The court might be justified in extending the equity of the statute to a case like the one under consideration, if the creditor was wholly remediless at law, without such construction ; but a less dangerous and more just remedy, one in strict conformity with the general policy of our law, is given by the act “providing for the service and return of process in certain cases.” This act provides that, when a writ is returned served upon one or more defendants, it shall be lawful for the plaintiff to file-his declaration against the one in. court, suggesting therein the return as to the other defendants, and proceed to judgment as in other cases. The defendants not served, if necessary, can be made parties to the judgment by scire facias. This statute furnished the plaintiff below with the ordinary means of securing and collecting the debt. It is no argument to say the process of attachment is more expeditious in creating a lien upon the defendant’s property, which is at once taken into the custody of the law to be held subject to the future judgment. There can be neither justice nor equity, in furnishing one creditor with a lien upon the debtor’s property, real and personal, from the service of the writ, and leaving another, with a claim perhaps more meritorious,.*to the tardy remedy of ordinary proceedings, and to bind the property by a judgment in his favor.

The remedy by attachment is an extraordinary proceeding, for the writ seizes and binds the property of the debtor before the claim of the creditor is judicially ascertained, upon the mere affidavit of an interested party.

It can not be tolerated, unless the creditor brings himself strictly within the provisions of the statute. It would, indeed, be a singular exposition of this statute, to give the creditor ah action by attachment against an absent partner, without allowing the resident one even a day in court to controvert the justness of the plaintiff’s demand. The partners being equally interested, in the consequence of the suit, there is an obvious fitness in permitting litigation with the one present rather than with him who is absent. The court will never proceed ex pa?ie, or upon notice, which, in general, is not much better, unless it is the only alternative of the creditor. When there is another remedy, according to the course of the common law, although it may admit of more delay, or, in some respect, be less advantageous to the creditor, it ought to be pursued, especially if a contrary course would lead, in the nature of things, to uncertainty and often to injustice.

The court are clearly of opinion that a creditor is not authorized to resort to process of attachment, when there are joint -liabilities, without all the defendants are non-residents, or have absconded. So long as one joint contractor remains within the jurisdiction, who can be personally served with process, the creditor must seek his remedy in the mode pointed out by other statutes.

The court below, therefore, erred in overruling the plea in abatement of the defendant, for which the judgment is reversed.


text:
    *John Sloane v. David McConahy.
    Bond to the commissioners of the county, no commissioners being elected when the bond is made, covenanting to lay down water-pipes to convey water to a town, and for securing the use of such water to the inhabitants of the town, can not he considered as a grant of the use of the land in which the pipes are laid.
    This case was adjourned here for decision from the county of Wayne. It was an action of trespass, and stood upbn a ease agreed.
    The defendant entered upon the premises, by order of the corporation of the town of Wooster, to repair certain conduits laid through the lands of the plaintiff. The facts agreed are as follows: On May 13, 1811, John Beaver, William Henry, and Joseph H. Larwell, proprietors of the town of Wooster, in the county of Wayne, executed a bond to the commissioners of said county that thereafter might be appointed or elected, and their, successors, in the penal sum of seven thousand dollars, with a condition “that if the above-bound obligors, or either of them, their heirs, executors, or administrators, do well and truly perform, execute, and erect the following labors, conveyances, buildings, etc., as hereinafter specified, to wit: erect a court-house, etc. And further, said obligors do bind themselves as aforesaid to bring the water of the run, which at present runs through the town from the north, in pipes of sound white-oak timber, well bored and laid, and raise the water therefrom, on the center of the diamond of said town, at least ten feet above the surface thereof, and that the same shall forever remain free and clear of all incumbrances for the use, benefit, and convenience of tho inhabitants of said town, and they have the privilege of conducting the same from thence in pipes, and raised in pump stocks, to any other part, etc., of said town,” etc. On April 6, 1812, commissionei's of Wayne county were elected. Joseph H. Larwell, one of the above proprietors of the-town, held, on April 6, 1812, an equitable title to part of the land upon which the trespass is alleged to have been committed, and' on May 10, 1813, acquired a legal title, and conveyed to Sloane by deed dated July 3, 1820. The other part of the premises were conveyed by William Henry and Joseph H. Larwell to John Beaver, and by Beaver to the plaintiff. Neither of these deeds contains any reservation whatever, except the one from Larwell and Henry to Beaver, which reserves from use and cultivation two rods on each side of the spring branch, from *the north side of the quarter section to the place where the water had been taken out for the use of the town of Wooster. Through both tracts the conduits were sunk under ground by the obligors in 1814. Sloane has never been an inhabitant of the town of Wooster, and both the tracts lie without the town plat and corporate limits. Wooster was incorporated in 1824, and in 1827 an order was made by the common council, directing the defendant to contract for and superintend the repairs of said conduits. By virtue of this order the defendant entered into the land, which is the trespass charged in the declaration. If the court are of opinion that, under these circumstances, the plaintiff is entitled to recover, judgment is to be entered for the plaintiff with five dollars damages; if otherwise,, a general judgment for the defendant.
    J. C. Wright, for plaintiff:
    The right of the plaintiff to recover, in this case, is admitted, unless the facts in the defendant’s notice, and in the agreed case, justify the trespass complained of.
    The defendants rely on a bond executed by Beaver, Henry, and Larwell, May 13, 1811, in the penal sum of seven thousaud dollars, in which they became bound to the “commissioners that hereafter may be elected or appointed for the county of Wayne,” etc., conditioned among other things (the seat of justice being permanently fixed in the town of Wooster), that “said obligors do bind themselves as aforesaid to bring the water of the run, which at present runs through the town from the north, in pipes of sound white-oak timber of a proper size, well bored and laid, and raise the water-therefrom, on the center of the diamond of said town, at least ten feet above the surface thereat, and that the same shall forever remain free and clear of all incumbrances, for the use, convenience, .and benefit of the inhabitants of said town, and that they have the privilege of conducting the same from thence in pipes, and raised in pump stocks, to any other part or parts of the town aforesaid, as may be deemed necessary and proper for their convenience, to be regulated by a majority of said town.” They there also obligate themsolves to convey certain lots, etc., for an academy and house of *public worship. That the said bond was delivered to Wright, one of the commissioners to fix the seat of justice in said county, for the use of those interested, etc. That the town of Wooster was incorporated in February, 1824, and the trespass complained of, were acts (laying down pipes, etc.), done in pursuance of a resolution of the corporation of July, 1827. In appears, also, that when this bond was dated, Larwell owned the equitable interest in a quarter section, including the land of the plaintjff, and obtained the legal estate by patent, from the United States, in May, 1813. While Larwell held the fee in 1814, pipes were laid through the land now held by plaintiff, beneath the surface of the ground. Larwell conveyed two-thirds to Henry and Beaver, and afterward Henry and Larwell, July 13,1813, conveyed the part now owned by plaintiff to Beaver, and Beaver to Sloane, on December 27, 1815, without any exception of said water right, Sloane then living in Stark county, where he resided at the date of the bond. In the deed from Larwell and Henry to Beaver, there is a reservation from all use and cultivation of two rods on each side of the spring branch, “to the place where the water had been taken out.” In the other deeds there is no reservation whatever; and the reservation above is not on the land of the plaintiff, where the trespass was committed. The said premises held by plaintiff are not within the limits of the corporation of Wooster.
    The county of Wayne was designated, as to its boundaries, in "the act of February 13, 1808. Vol. vi. 155. Commissioners were appointed to fix the seat of justice January 22, 1811. Vol. ix. 92. Their duties were “ to examine and select the most proper place .as the seat of justice, as near the center of the county as possible, paying regard to the situation, extent of population, and quality of land, together with the general convenience and interest of the inhabitants.” Vol. viii. 463. The county was organized March 1, 1812. Vol. x. 17. The bond was taken possession of by the county commissioners, and recorded in the proceedings of the commissioners, and nowhere else.
    1. Is this paper, purporting to be a bond, valid, and, if so, who are bound, and who authorized to enforce it as obligees ? I contend that to constitute a valid bond, there must be parties, obligors of ability to enter into it, and obligees capable of *receiving. Who is the obligee in this bond? No natural person, nor any legal person. The commissioners hereafter to be elected or appointed for the county of Wayne, is not a designation of any natural persons certainly. As to the county of Wayne, it was not then in being, nor until the 1st of March thereafter, ten months. The first commissioners were not to be elected until April, 1812, eleven months after the date of the bond. It is then a nullity. But suppose the objections as to parties were removed. Who are capable of availing themselves of the obligation, and what is its nature ? The bond declares the obligation to be for the use of the county of Wayne, to be discharged on the bringing the water to the center, elevating it there ten feet, there to remain free forever. This, if valid, is a personal covenant of the obligors to and for the county. It is not subject to the control or action of the town. The right of the town only commences when the water is brought to the center, and maintained there at the proper elevation. The inhabitants have the right to the free use of the water at the center, and the privilege of conducting the same from thence in pipes ; the manner to be regulated by a majority of said town. The obligors bind themselves to the county to keep the water at the center, and then the right of the inhabitants attaches. The covenant purports to grant nothing, but to forfeit the penalty for non-performance; no right under it is vested in the town ; it can not enforce it, nor sue or provide penalties for interrupting it before the water is within the town, and free for the use of the inhabitants.
    2. It is claimed for the defendant that it is an appropriation of lands for the public use, of which the plaintiff is bound to take notice, and by which he is bound. Is this so ? The fourth section of the eighth article of the constitution secures the inviolability of private property, except taken for public use, where a compensation is made to the owner. I know of but two ways in which, in Ohio, lands may be appropriated to public use. One-by the act of the owner, either by express grant, 6r by implication, the party owning and showing his intention to appropriate; the other by legislative enactment, and the strict pursuit of the provisions of such enactments. Of the first class are the streets, alloys, and public grounds in a town. By the act of recording *town plats, vol. xxii. 301, maps, or plats' of towns, before any lots are offered for sale, are required to be recorded, and “shall particularly set forth and describe all the public ground within such town, by its boundaries, corners, and extent; and whether it be intended for streets, alleys, commons, or other public uses,” etc.; and all the lots shall be numbered, and their precise length and width stated, “ and the map so made and acknowledged (as deeds are) and recorded, shall be deemed a sufficient conveyance to vest the fee,” of the lands expressed or intended for public uses, in the county in which the town lies, in trust for the uses intended, and for no other use whatever. Of the second class are lands taken, the- usufruct to the public, for roads, where the proceedings are on public notice, on petition, and the order of the commissioners, affording the owner an opportunity to claim his damages, etc. It can not surely be pretended that this bond, and the proceedings under it, comply with the provisions of either of these laws, and I am not able to see how this is to be sustained as an appropriation for public uses. The case of the Town of Pawlet v. Clark et al., 9 Cranch, 292, has heretofore been relied on for the defendant. I do not see the application of this case. The Supreme Court there determine (p. 325), “ that a donation to the church of England is not good, for no such corporation exists in legal contemplation.” This does not sustain the defense; if it bear on the case, it negatives the idea of an appropriation. In 'page 331, they recognize the principles of the civil law in regard ■to donations for pious uses, and that a donation by the town to a non-existing parish church would, therefore, at common law, take effect, as a dedication to pious uses, which it would bo incompetent for the town to resume, and the fee, contrary to the general principle of the common law, would be in abeyance to take effect as a grant where the parish church was established, to which the crown would be deemed the patron. The origin of these grants for pious uses, and the reasons inducing courts to construe such grants, without a' grantee, as renunciations by the crown, which it -could not resume, it is not my purpose to examine. But it is remarkable that in the very case where they determined as above, the court recognized the act of the State of Vermont, which, by the revolution, had succeeded to the rights of the crown *as conveying a legal estate in these glebe lands to the town in which they were situated, although it said the crown could not resume such donation, and the title was in abeyance. In that case, how•ever, there was a grant from the king before the revolution, and from the State of Vermont after. The two eases have no analogy, unless it be insisted for the defense that Larwell & Co., as proprietors of the town of Wooster, were invested with legal power in reference to the subject of the grant. The case of Gwynn and wife v. City of Cincinnati, 3 Ohio, 25, has also been adverted to as supporting the claim of the defendant. In that case a deed had been made, by the husband by a former marriage, in his lifetime, for ground for widening a street, and by agreement with the city council for opening a street subject to the same public regulations as the grounds originally laid out in streets; but the spot on which a market-house was erected in the tract had been omitted in the deed, and dower was claimed in it. The court held that inasmuch as the use for which the property had been set apart by the owner was inconsistent with the exercise of any private right, the dower was suspended or abrogated during the continuance of the use, and very properly put the case on the footing of originally designated streets, etc., on town plats recorded. It will be remarked that here was an express description.of the appropriation by the owner, as in the making a town plat, and in neither does the law require the wife to unite.
    3. Will it be urged for the defendant that the bond in question is a grant? It has none of the requisites of a deed, ás known to our laws. There is no grantee, no consideration expressed, 3 Johns. 484; no acknowledgment, nor any requisite of the ordinance of Congress, or the acts of the Ohio legislature. Neither the county, the county commissioners, or the town, were incorporated, and no one named capable of taking any grant. The case of Cooper v. Cory, 8 Johns. 385, was ejectment. The plaintiff having, shown title, the defendant exhibited a deed from plaintiff to the people of the county of Otsego for the premises, and a deed from the supervisor of the county, made under an act of the legislature •of New York, authorizing the supervisors to sell the court-house and jail, and the lot on which they stood (the one in question). It was held that the people of the *county had not capacity to take any grant, not being a corporate body known to the law. See also 2 Johns. Cases, 324. In the case of Lynch v. Hartwell, 8 Johns. 422, the supervisors (who, in New York, perform the> duties of our county commissioners) having agreed upon certain, lots for a court-house, etc., in the town of Rome, for Oneida county, in order to promote the settlement and embellishment of the village, and in consideration of one dollar, took a grant for certain lots for said house, etc., to be held by them and their successors forever, in trust, to erect a court-house, etc., thereon, and to permit part of the premises (described) to be apjjropriated for a church and school-house, under the direction of a majority of. the freeholders of Rome, for the use of the inhabitants, etc. The court held that, admitting the first part of the grant for the use of the county good, the other for the use of the inhabitants of Rome was. bad, because the supervisors being a corporation for limited purposes, were incapable to take in trust for the use of an individual, or others foreign to the purpose of their institution, and the grant was “ deemed void upon every principleIt can not, I conceive, be successfully contended, that the commissioners appointed to fix seats of justice in Ohio are a corporation for any purpose whatever, nor that our county commissioners are a body corporate, for any more general purpose than the supervisors in New York. The-duties of our commissioners may be found in vol. xxii. 266. Their powers are enumerated in the act of assembly, and that of taking in trust for any other purpose is not mentioned or conferred. The case of Hornbeck v. Westbrook, 9 Johns. 73, is also in point. A tract of land had been conveyed to the plaintiff, with a reservation proviso, that the inhabitants of Rochester should be allowed to cut and carry away wood from any part of the land not in-fence. The defendant, an inhabitant, was sued in trespass, for-cutting and carrying away wood, and relied on the proviso in the deed as a justification. It was adjudged that the proviso in the deed was void — the inhabitants of a town, not incorporated, were incapable to take an estate in fee, and a grant to them would have been void for uncertainty; and if incapable to take by that name, a reservation to them, in a deed to a third person, was void. The court lay it down, as acknowledged law, that a person, not a. party *to a deed, can not take anything by it, unless by way of remainder; and that a grantor can not covenant with a stranger to a deed. Carthew, 76; 8 Coke, 69.
    The same question came again' under the consideration of the Supreme Court, in New York, on the same proviso, in Hornbeck. v. Sleght, 12 Johns. 199. This was also trespass for cutting wood, etc., and the proviso is set out in hcec verba, as follows : “ Provided always, that the inhabitants of the said town of Rochester may' have allowed sufficient roads, and outways, over the said tract of land, and to take, cut, and carry away wood and stone from off any part of said land which shall not be in fence.” The court confirmed the case of Hornbeck v. Westbrook above, and again declare the reservation void. “ Nor would it be valid (say they), as a covenant to stand seized. The inhabitants of Rochester were strangers to the deed. The present inhabitants, at all events, must beso considered. For they, not being a body corporate, so as to perpetuate the rights granted by the patent, these rights must be restricted to the then inhabitants.” This “ deed, and all its provisos' and reservations, must receive the same construction, and be governed by the same rules, as the deeds of other individuals.” Upon these authorities, and upon principle, I suppose it clear the paper relied upon is no grant. It has no requisite of a deed known to our laws. I can not' better close this point in the case, than by adverting to the decision of the Supreme Court of the United States, in the ease of McCormick v. Sullivant, 10 Wheat. 202. In that case, Judge Washington, in giving the opinion of the court, says : “ It is an acknowledged principle of law, that the title and disposition of real property is exclusively subject to the laws of the country where it is situated, which can alone prescribe the mode by which a title to it can pass from one to another.” The judge cites, as sufficient for his position, 7 Cranch, 115; 9 Wheat. 565.
    4. This bond can not be viewed as a covenant to stand seized, or as running with the land. At the date of the writing, the Obligors were not seized of the land, and could not so covenant. If they had been so seized, we have seen, in the cases cited, that to such a covenant there must be a party to the instrument, capable of taking — such a covenant would be void, if made in favor of a stranger. In the case *at bar there is no covenantee, and the pretended reservation is not, indeed, to a stranger, nor yet to a privy- It is to a nonentity.

      5. Is this bond available to the defendant as a license? The case of Sullivant v. Commissioners of Franklin County, 3 Ohio, 89, has been averted to. I am unable to see its application. In that •case, Sullivant, who held the fee, had conveyed to the commissioners of the county, “ on the express condition, and no other, that the jail, or prison-house, when built, shall be built on said lot.’' The jail has been built on the lot, and was used as such when the •suit was brought The deed was found defective as a grant, because it had no subscribing witnesses. There were parties to the deed, an obligor and obligee, and the court hold, that although the paper wanted the requisites of a deed, it had those of a written license to enter and occupy lands, and that a possession under a license was a good defense in ejectment.
    6. A question arises here, connected with this matter, in either aspect; that is, whether the plaintiff does not stand before the court in the light of a purchaser without notice. Even if the estate in the town should be adjudged legal, yet the record on the commissioners’ books alone is no legal notice to a subsequent purchaser; If the fact of the plaintiff signing the bond, as a witness, be relied upon, I reply that is but a circumstance, and all our exjjerience is adverse, from the assumption that the witness is made acquainted with the contents of the paper witnessed. Such information is seldom communicated, and it would be impertinent to ask it. The witness observes the signature, or hears the acknowledgment of the party, and attests it, and recollects that fact when his attestation is again shown. The matters of the deed are never intrusted to his memory. If the plaintiff read, or was acquainted with the •contents of the bond, that is a fact for the defendants to prove. 'There is no such evidence. Did he know of the logs laid when he purchased? There is no evidence of the fact. He resided out of the county always, until long after the date of the conveyance to himself.
    7. If this bond is valid for any purpose, it could be only to those who inhabited the town of Wooster at its date. If any one was capable of taking anything, it was only they, *and a majority of them alone could control. Here the corporation has intervened, embracing more territory and inhabitants than existed at the date of the bond; and the corporation agents seek to exercise the power of the majority of the old inhabitants, when perhaps, every one of those opposed their election. Besides, if the corporation had power, it could only be within their limits, and this ground is admitted to be without the corporation.
    Geo. James, Esq.,
    also submitted an elaborate argument for the plaintiff, which is too long for insertion in the reports.
    Avert and Silliman, for defendant:
    For the defendant it is contended:
    1. That there is no legal grantee.
    2. That the bond or article of agreement made by Beaver, Henry, and Larwell is not such a.grant of the right as will bind the contracting parties, or those who claim under them.
    As to the first point, it is not necessary for the defendant to contend, that there was in being at the date of the article of agreement such a legal gi-antee as could have taken a fee, non do we contend there was any alienation of the fee in the land. But it was merely an appropriation or dedication of the use to the public ' — we contend that no grantee was necessary. In the ease of the Town of Pawlet v. dark and others, 9 Cranch, 292, the Supreme Court of the United States decide that no grantee is necessary to ■support an appropriation or dedication to public uses.
    As,to the second point, we do not contend that the commissioners of the county of Wayne, elected after the execution of the article of agreement, or the inhabitants of the town of Wooster, took an estate in fee in any part of the land through which the aqueduct passed, and we admit that if the right to the use could not be given, without such a grant as would convey the fee, the plaintiff is entitled to recover; unless the act done by Beaver, Henry, and Larwell, by executing the article of agreement, and by constructing the aqueduct, was such a' license to the inhabitants of the town *to enter and repair as could not be countermanded or discharged, either by the parties to the agreement, or those claiming under them.
    If no grantee is necessary to support'an appropriation or dedication to public uses, it follows of course that the same requisites are ■not necessary to support such appropriation or dedication as are required in the conveyance of a fee. In the case of Gwynn and wife v. The City of Cincinnati, 3 Ohio,.25, this court recognizes the doctrine that ground for public uses may be appropriated or dedicated without the formalities required in the conveyance of the fee. The familiar case of the appropriation of ground for a street or pubiie highway, is one in which, although there is no particular grantee, and none of the modes necessary for the conveyance of the fee are observed, yet the pubiie acquire a right to the enjoyment of the use, as much and as completely as if all the solemnities requisite in a deed for the conveyance of an estate of inheritance were observed, the grantee reserving everything not necessary for the enjoyment of the use.
    It will be contended by the plaintiff that the cases cited from New York are decisive upon this question; but the court will observe that in most of those cases, individuals claimed the rights denied, and not the public generally, which, we contend, distinguishes this from those cases.
    But we contend, at any rate, that the bond or article of agreement amounted to a license to enter and repair the aqueduct whenever the same should become necessary, doing as little damage to the soil as possible. By the agreed ease, it appears that the natural course of the water was from the north into the town; and it will be admitted that neither Beaver, Henry, or Larwell, or any other person, could in any manner obstruct or divert its course. But for the better enjoyment of that right, a license is given to the inhabitants of the town to enter and repair, not the aqueduct originally laid by them, but which was done by the then proprietors of the town, and of the land on which the aqueduct was laid-
    A license may be either in writing or in parol; and if resting in parol, and be part executed, it is not in the power of the person, giving it to discharge and countermand it; and certainly so, if the license is in writing and partly executed. This point was ad-168] judged in the case of Winter v. Brockwell, *8 East, 308; Crosby v. Wadsworth, 6 East, 602. We contend that the first construction of the aqueduct, under the agreement by Beaver, Henry, and Larwell, as one inducement by the commissioners to establish the seat of justice in Wooster, was such a part execution of the license as will inure to the benefit of the inhabitants of the town themselves. We do not rest our claim to part execution of the license on this ground alone. Under the order of the corporation, the defendant caused the logs to be taken up and repaired; and it appears from the case agreed, that these repairs were made by the defendant, without any objection having been made by the plaintiff.
    It may be said that the inhabitants of the town acquired no right of entry to repair, by the express terms of the bond or article of agreement; but we maintain that if the appropriation or dedication of the use can be supported, the right of entry to repair is incident to the grant for the enjoyment of the use. Ponfrit v. Ricroft, 1 Saund. 823. In the case of Sullivant’s Heirs v. Commissioners of Franklin County, this court has decided, that, although the deed from Sullivant was not sufficient to convey the fee, yet that as the possession accompanied its execution, it was good as a license, and afforded a good defense in an action of ejectment. If so, we maintain that there could be less doubt of it affording a good defense in an action of trespass.
    As there can be no doubt of the intention of the parties to the bond or agreement, this court will, as we believe, protect the inhabitants of the town in the enjoyment of the privilege intended to be granted, unless such protection would be granted at the expense of established principles of law.
    As the conveyance of the water into the town may have had great influence on the commissioners in fixing the seat of justice, and on those who afterward became purchasers of lots, if the license to enter, for the purpose of' repairing, is not valid, a great fraud will be practiced on those who claim the right. ¥e contend that when a license, either in writing or by parol, is given and part executed, a court of equity will protect those for whose benefit it was gi v en, in the enjoyment of it, by restraining the owner of the fee from doing *any act'to impair or destroy the right; and if so, the persons licensed, or those who claim under them, can not be considered ar trespassers.
   By the Court :

This bond is not a grant, but a covenant. It contains none of the formalities which the wisdom of ages has settled as necessary to convey real estate. The covenant against incumbrance is an accidental phraseology, borrowed from the usual term in a common law conveyance, and can not, upon any principle, be construed into a grant. No acknowledgment appears upon the instrument ; and this is made necessary by statute, in order to constitute a complete deed of conveyance. Roads v. Symmes, 1 Ohio, 281; Lessee of'Johnston v. Haines, 2 Ohio, 55. But giving the conditions of this bond all the requisites of a grant, then the proprietor of the town granted, either to the commissioners of the county, or the inhabitants of' Wooster. If the legal right of entry is vested in the commissioners, the defendant can not justify the trespass. He has neither showed a license nor order from them, to enter for any purpose. Besides, the commissioners of Wayne were not in being at the date of the instrument; the grant would therefore be void. It is indispensable to the validity of a grant, that the grantee be capable of receiving it; that is, that he be a person in being at the time of the grant made. A grant to him or her who is to be the first child of T. S. or to his right heirs, he being living, is void. Shep. Touch. 235. The same principle will apply to the unincorporated inhabitants of the town of Wooster, as to their capacity to be grantees. The instrument is dated in 1811. The town of Wooster was incorporated in 1824. A grant to the inhabitants of Wooster, admitting they were .capable in law to take, would only vest the estate in joint tenancy in those who were actually such at the date of the grant. The tenancy could not be made to extend to others who, subsequently, became inhabitants. Upon the death of the inhabitants in esse, at the date of the deed, the right would either be in abeyance, or re-vest in the grantors. But the inhabitants could not be grantees, and a deed executed to them would be void. The authorities to this point are ^numerous and perfectly conclusive. 8 Johns. 301; 9 Johns. 73; 9 Mass. 419: Sugd. 388 ; Co. Lit. 3, a; 2 Com. Dig. 168. The inhabitants not being a corporate body, and being therefore incapable of taking an interest in land, by conveyance, at common law can not be cestui que use. Cruise, D, 413. If the county commissioners could be grantees, they could not be seized to the use of the inhabitants of Wooster. The facts and law arising upon them do not furnish a justification for the defendant. There must be a judgment for the plaintiff, according to the agreement of parties.


text:
    Lessee of Fielding Lowry v. Jambs Steele and Horatio G. Phillips.

      JFeme sole, in contemplation of marriage, grants a term of seventy-five years of lier real estate to a trustee, in trust for her own use during the .contemplated coverture. The marriage takes effect and she has issue, but dies before her husband. He is entitled as tenant in courtesy.

      This was an ejectment adjourned here for decision from the county of Hamilton. It was an agreed case, and the following are the material facts:
    On January 14, 1822, Sophia Cooper was seized and possessed, in fee, as tenant in common, with Maria G-rimes and others, of the premises in question, on which day, being of the age of thirty years, and sole, she made and delivered to James Steele, one of the above defendants, an instrument, a copy of which is submitted as a part of the case. The agreement so far as relates to this controversy, after reciting that Sophia Cooper was heir at law of Mi’s. Zeigler, and that she held in-lots, etc., and that she-contemplated a marriage with Fielding Lowry, sr., and in order that she might enjoy and have said lands, and the profits thereof for her solo and separate use, and that the same might not be subject to the control, debts, or engagements of her said intended husband, “ for the consideration of one dollar, she grants, etc., to James Steele in trust, for and during the term of seventy-five years, without impediment of waste; that the said Steele shall every year during said term pay and deliver all the proceeds, rents, etc., unto such person, *and for such intents, as the said Sophia Cooper shall appoint, and, in default qf such appointment, then to bo paid into her own hand, for her sole and separate use, etc.; and upon further trust, that Steele should transfer the premises, or any part, to such person as the said Sophia, by her writing and will shall appoint, and in default of such appointment then to the heirs of said Sophia. The term to cease upon the death of said Sophia or her intended husband.” On the 23d of January, in the same year, the said Sophia was lawfully married to said Lowry. After the marriage, partition was made between the tenants in common, and the premises in question set off to said Sophia, as by the record of partition appears, a copy of which is also made a part of the case. After the partition, Lowry, in right of his wife, received the rents, etc., until her death, which took place in May, 1825. The lease, entry, ouster, and possession by the defendants are admitted. Mrs. Lowry died without appointment, leaving a son, issue of the marriage, and leaving other children by a former marriage, who claimed as heirs at law.
    The only question submitted was, whether Lowry was entitled-,, to possession as tenant by the courtesy.

      Caswell and Starr, for plaintiff.
    Hammond and Garrard, for defendants.
   By the Court :

To entitle Lowry to courtesy, the only requisite of which there can be any doubt is, whether he was seized during the coverture? Steele was vested in trust with an estate for seventy-five years. He was not seized of the freehold; and having but an estate for years when he entered, he was not properly possessed of the land but of the term, the possession or seizin of the land still remaining in Sophia Cooper. Woodfall’s Land, and Ten. 172; 2 Black. Com. 144; 1 Cruise, L, 64, 161. And this is not considered a seizin in law, but a constructive seizin in deed. 8 Cranch, 245. It is therefore said (Hargrave’s notes to Co. Lit. 29, a) if land is in lease for years, courtesy may be without entry, or even receipt of rents, *the possession of the lease for years being deemed the possession of the husband and wife. The case of De Grey et al. v. Richardson et al, 3 Atk. 436, was not unlike the present. Daring the coverture of Alice Sewell lands descended to her, as heir in tail general, under a settlement, and when they descended were in the possession, and so remained during her life, of tenants under leases. It was decided by Lord Hardwicke that there was such a possession of Alice Sewell as entitled her husband to courtesy. The law appears to be with the plaintiff, and there must bo judgment for him.


text:
    James and Richard Loines v. James Phillips.
    "The security in a bond for the assignment and delivery of property, by a person applying for the benefit of the insolvent law, is liable for the creditor’s whole debt, although the insolvent had not property to assign.
    This case was adjourned here for decision from Ross county. It was an action of debt upon a bond, executed by the defendant as security for Stephen Loines, who, being arrested upot* mesne pro«ess, applied for the benefit of the insolvent act, and gave the bond in question for the making a schedule and delivering up of all his property. The point presented for decision was agreed between the parties as follows:
    “ This cause is reserved for the special session at Columbus on. an inquiry of 1 images. If the court should be of opinion that the insolvency of the defendants, or the amount and value of his property, can not be given in evidence, in mitigation of damages, then the plaintiffs are to have judgment for four hundred and thirty-seven dollars and eighty-two cents, and for costs, twelve dollars and sixty-six cents, with interest from November 15,1821; otherwise the cause is to be sent to the Supreme Court of Ross -county for inquiry of damages.”
    Leonard, for plaintiff.
    Douglas, and Brush, and Fitzgerald, for defendant.
   By the Court :

The condition of the bond is, that the petitioner shall assign, -all his property for the benefit of his creditors. It is *the general policy of our laws to hold the body of the debtor as a security for the payment of the judgment to be recovered. The debtor was compelled to submit to imprisonment, or find security that he would faithfully assign all his property for the benefit of his creditors. When the security is obtained the body is discharged, and the bond substituted for it. This court has nothing to do with the justice or policy of the law, which gives the creditor his power over the body of the debtor. It assumes the principle that such rigor is necessary to procure a surrender of property fraudulently concealed by the debtor. It is with another department of the government to say whether the punishment of individuals, upon presumption of fraud, would not be more justly inflicted, as in other offenses, by the public, after conviction, than by an interested and perhaps exasperated creditor before. Our business, however, is to expound and not make laws. The effect of this bond is the discharge of the prisoner, and he has had the full benefit of it. The petition and schedule exhibited furnish no legal presumption of the truth of either. There is not even the -affidavit of the applicant that they are so. Between the filing and the final hearing of the petition the inventory can be enlarged or diminished at pleasure of the petitioner. If both are untrue no-penalty attaches, nor does any power exist to punish him. He can, with perfect impunity, whether solvent or not, procure his dischai'ge from arrest, and turn his creditor round to his remedy upon his bond. And he is directly interested in doing so if the amount of his property can only be recovered for the broach. The very fact of the applicant declining to avail himself of a final dischai'ge, under the law, raises a strong presumption, not only that bis principal object was abstractedly a release from imprisonment, but that he was, at the same time, not insolvent. Between the filing of the petition and final hearing, the applicant may have acquired property which would render him criminal to make affidavit of the truth of his schedule. The petitioner himself, and he only, is able to ascertain, with perfect certainty, the true state of his property. He may have property in other states or countries. This may consist of lands, stock, vessels at sea, choses, money, the extent or amount of which can not be known to others. Shall the voluntary omission of the principal in the bond ^compel the creditor to rely upon vague and uncertain evidence of the debtor’s property, when it is for his interest to seal in secrecy his effects, and derive a direct advantage to himself by the abuse of the law.in the first instance, and afterward by his own concealment and fraud ? If the obligors in the bond are not liable beyond the amount of property of the principal, there would be a clear inducement to abuse the law and commit frauds. The court are undoubtedly authorized to put such a construction upon this bond and the damages to be assessed for a breach of its condition, as will prevent the debtor from taking advantage of his own wrong to the injury of the creditor, who is fairly pursuing the remedy the law gives him for the security and satisfaction of his debt. If damages are not recovered beyond the amount of the property of the insolvent upon the dismissal of the petition, the creditor would certainly lose the security of the person of the debtor, which the law, in the first instance, gave him, and this by the voluntary, if not fraudulent act of the insolvent. A part of his legal right would be lost without his own default and without consideration. Damages are defined to be a recompense to the plaintiff for the •wrong done him by the defendant. Coke Lit. 572, a. The -wrong here is procuring the body to be released under color of law, and then neglecting or refusing to assign all his property for the benefit of his creditors. The creditor has a right to seize the body and detain it, and after the judgment to take the land and goods for its satisfaction. He has lost one part of his remedy altogether, and can receive no equivalent, unless he can recover damages beyond the amount of property of the principal in the bond. It has been the uniform practice of this court, under the statute, if the defendant is imprisoned under a capias ad respondendum to take the debt; if under a ca, sa. the judgment, as the measure of damages to which the obligee is entitled. This rule was deemed essential to prevent an abuse of the statute as well as to guard the legal rights of the creditor. Members of the court who have succeeded to the bench have sometimes doubted its correctness; but the decisions have, nevertheless, been uniform by a concurrence of a majority of the court. There appears no good grounds for making, at this late period, an innovation upon the settled practice. Judgment for the plaintiff, according to the agreement of the parties.