author: Hitchcock, J.

text:
    Lessee of Thomas Cochran’s Heirs vs. David Loring.
    Under the Ordinance of 1787, the Governor and Judges had power to adopt from the Statutes of other States, attachment as well as other laws.
    Though a law is imperfect in its details, it is not void, unless it is so imperfect as to render it impossible to execute it; but the imperfections in its details may be supplied by rules of Court.
    The judgment of a Court having jurisdiction of the subject matter, cannot be impeached collaterally.
    In proceedings under our attachment laws, the service of the writ by the attachment of property, confers jurisdiction upon the Court.
    After jurisdiction is acquired, the Court may proceed to the final disposition of the case, and sale of the property attached, notwithstanding the death of the debtor before judgment.

      This is a Writ or Error to the Superior Court of Hamil-T0N County.
    The original action in this case was instituted by the lessors of the plaintiff, against the defendant, for the recovery of certain premises in the city of Cincinnati. The declaration was filed on the 14th May, 1845, and is in usual form.
    To this declaration the defendants pleaded the general issue, and at the October Term of the Court, 1846, the case was, by agreement of parties, submitted to the Court, and on hearing, the Court found the issue joined in favor of the defendant, and entered judgment accordingly.
    The object of this • proceeding is to reverse the judgment so rendered.
    Upon the trial of the case a bill of exceptions was allowed, from which the following statement of facts is extracted:
    The plaintiff, in support of his title, proved that Thomas Cochran formerly resided in Cincinnati, Ohio, and was then the legal owner of the land described in the consent rule in this cause. That he so resided in. Cincinnati up to 3d January, 1801, when he left that place to go to and reside in Natchez, Mississippi.
    Plaintiff also put in evidence, subject to all objections as to admissibility and legal effect of the matters therein contained, the following agreed statement of facts:
    “ It is agreed, that upon the trial of these causes, it shall be admitted that Thomas Cochran, the legal owner of the land in controversy, left Cincinnati, Ohio, to go to and reside in Natchez, Mississippi, on 3d January, 1801.
    ■ That his wife, Phebe, and their children, went with said Thomas from Cincinnati, and all arrived at Natchez, on 5th March, 1801, such children being Isabella, William, Phebe and Matilda.
    That said Thomas Cochran remained at Natchez until his death, which happened on 28th or 29th June, 1801; leaving said Isabella, William, Phebe and Matilda his only heirs at law. Said Isabella then being about twenty years of age; said William about 18 years of age; said Phebe about 12 years of and said Matilda about 8 years of age.
    That said Isabella married David Mickey, 27th December, 1806. That he died July 31st, 1810.
    That said Isabella married Nathaniel Nichols, on 6th March, 1813. That he died 4th November, 1813.
    That said Isabella married Orlando Lane, 7th June, 1821.
    That said Isabella died 17th June, 1834. ■
    That said lessors of plaintiff, David C. Mickey and Nathaniel S. Nichols, are her sons, and only heirs at law.
    That said David C. Mickey was born 1st December, 1803, and said Nathaniel S, Nichols was born January 14th, 1814.
    That said Isabella resided with her said husbands in Mississippi and Louisiana, until her death.
    That said David C. Mickey and Nathaniel S. Nichols, were born in and have always resided in Mississippi; and their said mother was a resident of said State, from the time of her arival there until her death, with the exception of a short residence in Louisiana, in the year 1813.
    That said William Cochran resided in Mississippi from the time of his arrival there until his death, in 1833.
    That the heirs of said William Cochran are the lessors of the plaintiff, Ann Matilda, the wife of Walter R. Puckett, John and Thomas N. Cochran.
    That said Ann Matilda was born in Mississippi, 20th August, 1816, and has always resided in that State.
    That she married, before the commencement of these actions, the said Walter R. Puckett.
    That said John Cochran and Thomas N. Cochran were born in Mississippi, and have always resided in that State.
    That said Matilda, the daughter of said Thomas Cochran, married John Montgomery, October 17th, 1811.
    That said Matilda has resided in Mississippi, from her first arrival there to the commencement of these actions.

      It is further agreed, that the premises claimed by the defendants respectively, were sold under certain proceedings in attachment, in the case of Smith and Findlay v. Thomas Cochran, in the Hamilton Common Pleas, to the several purchasers, and at the times and in manner in said proceedings set forth. That said purchasers respectively took possession of the premises purchased, immediately thereafter; and they, and those under them, have ever since held the same, claiming in their own right.”
    Plaintiff also put in evidence, (subject as aforesaid) the depositions of various witnesses, tending to prove that the said Thomas Cochran died at the time above mentioned ■— that the lessors of the plaintiff were, together with Phebe Bowie, the heirs at law of the said Thomas Cochran ■— and that his said children were beyond the State of Ohio when their right of action, (if any) to recover the lands in question, accrued — and that they, and the heirs of Isabella and William, after their decease, remained out of this State until the year 1840, with the exception of the said Isabella, who visited Cincinnati, Ohio, in May, 1827, on her way from Natchez, with her husband, on a visit to the State of Vermont.
    And thereupon the plaintiff rested his case.
    The defendant then put in evidence the transcript of records, and docket and minute entries, and affidavit in the case of James Smith and James Findlay against said Thomas Cochran.
    And it was proved that the Clerk’s certificate, appended to said transcript, was true.
    It was admitted by plaintiff (subject to the objection that parol evidence was not admissible to prove the fact,) that the said writ of attachment was issued on or after 2d February, 1801, and that the writ was executed before the return of it. And it was admitted by the defendant, that the Court of Common Pleas for Hamilton county adjourned on 21st November, 1800, and did not meet again until 3d February, 1801.
    The defendant also proved that a notice of the pendency of said attachment suit was inserted in the Western Spy, a public newspaper published in Cincinnati aforesaid, three times, namely: on the 20th March, 1802, on 27th March, 1802, and on 3d April, 1802.
    It was also proved by the defendant, that diligent search had been made in all the numbers of the said newspaper, from the commencement of the year 1801 to 20th March, 1802, and that no earlier notice of the pendency of said attachment suit was inserted in the said newspaper. Also that there was no other public newspaper published in the said territory as early as 1801.
    The defendant also proved that diligent search had been made in Kentucky, for a notice of the pendency of said attachment. That the Kentucky Herald, printed at Lexington, was the only public newspaper in Kentucky which, in the years 1801 and 1802, contained notices of judicial proceedings in Ohio. That during that period several notices were inserted in the Kentucky Herald, in attachment cases, from Ohio, and Hamilton county, Ohio, in which Jacob Burnet was the attorney for the plaintiffs. That said Jacob Burnet was the attorney for the plaintiffs in the said attachment proceeding, in said Court of Common Pleas. That said public newspaper, called the Kentucky Herald, was published at Lexington aforesaid, from the year 1795 to the year 1806. That no notice of the pendency of said attachment was inserted in the Kentucky Herald up to the month of September, 1801, but the numbers of that paper published afterwards could not be found, although diligent search had been made for them, except two copies issued in 1805 and 1806.
    The defendant also put in evidence certified copies, from the Recorder’s office, of the following deeds:
    Deed dated 28th April, 1810. Conveyance of said land by the auditors under said attachment to James Findlay. Deed not attested, but duly acknowledged before John Mahard, a Justice of the Peace for Hamilton county.
    Conveyance of said land, dated 2d November, 1829, from said James Findlay and his wife to the Bank of the United States.

      Conveyance of said land, dated 30th December, 1831, from the said Bank to the said David Loring, the defendant.
    From the transcript of the record - offered in evidence by the defendant, it appeared that in February, 1801, a writ of attachment issued out of the Court, at the instance of Smith and Findlay, against Thomas Cochran, setting forth “ that it hath been sufficiently testified that Thomas Cochran is indebted to said Smith and Findlay in the sum of $39, and that said Thomas Cochran is not a resident of said Territory,” commanding the officers to attach all and singular the lands and tenements, goods, &c., of defendant, and make due return, &c.: said writ bearing teste as of the 21st day of November, .1800. The writ was returned, showing an attachment and seizure of the premises in question.
    The record further shows that the defendant was regularly called and defaulted at four successive terms of.the Court-; that auditors were appointed at the February Term, 1802, to audit the claims against the defendant and make due report thereof, and that at the December Term,' 1805, the auditors did make- report; and thereupon the Court granted judgment and directed an order of sale to issue. (Some years subsequent an amended record was made by order of the Court, and which was also given in evidence, showing a judgment and order in fullfc

    The auditors proceeded and sold the property in August, 1806, and at the August Term, 1810, two of them made a report setting forth a sale of the premises, to whom, and at what price, and that they had made a deed therefor to the purchaser ; and thereupon’ the Court approved of and confirmed said report, and dismissed the parties without day.
    Independent of the record, the defendant exhibited an affidavit and praecipe for a writ, dated on the 30th day of January, 1801, and filed, as it appeared from an indorsement on the back, on the second day of February, 1801, setting forth the indebtedness of the defendant to the plaintiffs in the sum of $ 39, and his non-residence; which was objected to by the plaintiffs.

      Upon this testimony the Court adjudged that the plaintiffs had made out a prima facie case, but that the defendant had proved that the legal title to the land in controversy had by the said proceedings and deed to said James Findlay; and thereupon rendered judgment for the defendant.
    The errors assigned are as follows: “ The said Superior Court of Cincinnati decided that the defendants had the legal title to the land in controvery, which had passed by the (so called) attachment proceedings and deed referred to in the record, and by reason of said decision, manifest injury has been sustained by the plaintiff in error.
    “ And there is further error in this, that the judgment aforesaid was given for the said defendant in error, but ought to have been given for the said plaintiff in error.”

      Carry fy Russell and McLean fy Gwynne, for Plaintiff in Error,
    made the following points:
    I. Laws adopted by the Governor and Judges. — Efficacy of.

    1. A law adopted by the Governor and Judges, enacting that a new and extraordinary judicial proceeding should be conducted as directed by another law, was inoperative, if such other law was not properly adopted and published.
    2. Such a proceeding could not, upon this expression of the legislative will, be conducted as it would have been, if the law making power had merely authorized the proceeding, without intending to direct the mode of conducting it,
    To declare that, under such a law, the Court may appoint proxies to try the case, and that all the proceedings, the sale and the conveyance, shall be just as the Court please, would be to make a law which the law making power did not contemplate,
    II. Issue of Writs.
    1. A single Judge of the Court of Common Pleas could not, in vacation, take an affidavit, and issue a writ of attachment thereon, unless specially empowered by law to do so.

      2. The Clerk of the Court could not, under a power given to tssue writs on praecipes, issue a writ which the Court was to issue upon an affidavit, bringing a case within the provisions of a law authorizing a special judicial proceeding.
    III. Jurisdiction op Courts.
    1. Over the subject matter. When a statute authorizes the issue of a writ of attachment, upon a case being made by affidavit, the Court has no. jurisdiction to issue the writ, without such affidavit having been first made.
    2. Over the person, when necessary. The territorial law of 1795 is said to have authorized the issue of a writ for the attachment of lands upon an affidavit of the plaintiff. It did not direct the occupant of the land to be turned out or notified of the proceeding. .The law did not authorize the Court to do anything before the expiration of a notice to the defendant to appear; but it is said that'after such notice, the law authorized the rendition of a judgment, and a general administration of the absentee’s estate for the benefit of all the defendant’s creditors who might come in and claim. The Court had no jurisdiction to render a judgment for the plaintiff, and adjudicate upon the claims of the other creditors, and order a sale of the defendant’s lands to satisfy the same, until notice had been given to the defendant, as required by the law, .to appear and defend. This law is different from later attachment laws.
    IV. Jurisdiction op Courts over the subject matter and the person — when presumed — how proved and disproved.

    1. The jurisdiction of a Court exercising a summary and special jurisdiction is not presumed, but must be proved aliunde, if the record does not show it.
    2. When a statute requires the record of all judicial proceedings to set forth the process to appear, a public citation in lieu of such process should be set forth in the record.
    3. It is well settled that when the record does not expressly allege the facts necessary to give jurisdiction over the person, in an adversary proceeding, it may be proved by the party sought to be affected by the judgment, that he had no day in Court.
    4. The Court rendering judgment in such case has assumed that the defendant is in Court; and where judgment is rendered against a dead man, the Court also assumes that the defendant is in Court.
    Proof of the death of the defendant, before judgment, shows that the assumption of the Court that he was living was unfounded ; it proves that there was no defendant in Court.
    The technical rule, erroneously supposed to affirm that one not actually a party to the proceedings cannot deny express and positive allegations in the record that he was a party, does not apply to mere assumptions.
    Although the record shows that the Court, assuming the defendant to be alive, orders the sheriff to levy upon his lands, it may be shown in a collateral proceeding that the defendant was dead when the Court assumed that he was living. It may also be assigned in a writ of error, as an error in fact.
    If evidence be inadmissible to rebut a mere presumption, a fortiori it is inadmissible to contradict the express allegation in the record that the writ of attachment was issued in November Term, 1800, (which was before the affidavit was sworn.)
    5. Accordihg to principle, and the best modern authorities, no man can be affected by adversary proceedings to which he was not a party; and this rule cannot be neutralized by any forms, pretences, or allegations whatsoever.
    V. Jurisdiction of Courts — When exercised; what isa valid trial and judgment.

    1. A law adopted by the Governor and Judges, is said to have authorized a new and extraordinary judicial proceeding, without directing the mode of trial. Such trial must have been by jury.
    2. When a Court having jurisdiction over the subject matter and the parties, is authorized to try the case by jury, and not in any other manner, either by consent or otherwise, the. is not exercised by the appointment of private per-to try the case, and judgment on such trial is not merely erroneous, it is not a judicial proceeding entitled to any respect; it is a sheer usurpation — a mere nullity.
    3.Nor would the jurisdiction be exercised by trial by the Court, without a jury. Judgment thereon would be a nullity.
    VI. Judgment, when necessary, and how proved.
    1. When a Court’is' authorized to direct a sale of a defendant’s property, to pay all claims that may be presented, the Court must adjudicate upon such claims; and the record must show such adjudication, for it is a matter of record, tobe shown by the record.
    2. It is not sufficient to order a sale, without finding the amount of debts or the sum to be raised, although the Court may have appointed private persons to try the claims, who have adjudicated thereon.
    If there be no adjudication upon the claims by the Court shown by the record, the order to sell is a nullity. It is like a writ oiji.fa. without a previous judgment.
    3. When a judgment by default is to be rendered for the plaintiff’s debt, and all other claims upon the defendant are to be adjudicated upon and satisfied, it must be -shown that the creditor’s claims were presented to the Court, and found by the Court to be due. Proof thát they were presented to private persons, and found by them to be due, is -no proof of a judgement of the Court thereon.
    4. An entry of judgment must be sufficiently definite to show what is adjudicated by the Court.
    5. A Court cannot, thirty years after the alleged rendition of a judgment, order a record of a judgment to be made up, on an ex parte application, without the proper evidence of such judgment having been rendered.
    A record so made up cannot prevail against the record made up, as required by the statute, after the termination of the proceedings. of sale, &c. It cannot supercede the want of a judgment, order
    VII. Judicial Sale — When order of Court necessary,

    1. A sale by private persons, unauthorized by law, and without an order of the Court directing them to sell, is a nullity, which cannot be confirmed by the Court. It is worse than a sale by the sheriff without a writ of fi.fa.

      2. The order of the Court must appear on the minutes.
    VIII. Conveyance upon judicial sale.
    1. The act of 1805, regulating the execution of deeds, re quires every conveyance to be perfected by deed, attested, and acknowledged. If the mere sale by the auditors was a conveyance, it was included by the words of the act.

      2. Private persons, unauthorized by law, cannot make a conveyance of the land of another. If not ordered by the Court so to do, their conveyance is a nullity, which cannot be afterwards confirmed by the Court; especially when the Court is not authorized to revise and confirm the proceedings after judgment.
    3. The order directing such unauthorized persons to convey, must appear in the minutes.
    IX. Jurisdiction oe Courts — to render judgment after defendant’s death.

    1. A judgment can only bind those who are actually parties to the judgment, and their privies.

      2. A judgment against a dead man binds nobody; there is no party defendant, nor privy to a party; it is an absolute nullity, in the absence of Statutory enactment to the contrary.
    3. When a statute authorizes an extraordinary proceeding, and it becomes impossible to comply with its requisitions, in consequence of the death of the defendant, the suit is abated.
    In support of these positions they cited the following authorities :

      Ludlow v. Johnston, 3 Ohio Rep. 557; Lessee of Grey v. Askew, 3 Ohio Rep. 466 ; McArthur v., Porter, 1 Ohio Rep. 104; Sumner v. Parker, 7 Mass. Rep. 84 ; 1 Bla. Com. 91; 8 Rep. 118; Lessee of Matthews v. Thompson, 3 Ohio Rep. 273 ; Parker v. Miller, 9 Ohio Rep. Ill; Bond v. Patterson, 1 Black. Rep. 34 ; State Bank v. Hinton, 1 Dev. Rep. 397; 48 Eng. C. L. Rep. 497 ; 4 Phil. Ev. 946 ; Foot v. Stevens, 17 Wend. Rep. 483 ; Lessee of Adams v. Jeffries, 12 Ohio Rep. 272; Bloom v. Burdick, 1 Hill’s Rep. 131; Huntv. Wickliff, 2 Pet. Rep. 201; Voorhees v. Bank U. S., 10 Pet. Rep. 460 ; Warner v. Webster, 13 Ohio Rep. 506 ; 4 Kent’s Com. 435, note; 13 Mass. Rep. 128; 11 Pick. Rep. 341; Edminston v. Edminston, 2 Ohio Rep. 251; Thatcher v. Powell, 6 Wheat. Rep. 119; 3 Phil. Ev. 906, 863 ; Wattles v. Hyde, 9 Conn. Rep. 10; Coger v. Coger,- 2 Dana’s Rep. 270 ; Case v. Wooley, 6 Dana’s Rep. 20; 1 Adol. & Ell. Rep. 18 ; Renick v. Bank of West Union, 13 Ohio Rep. 299; Bennett’s Lessee v. Williams, 5 Ohio Rep. 463; Goforth’s Lessee v. Longworth, 4 Ohio Rep. 130; Mitchell’s Lessee v. Eyster, 7 Ohio Rep. part 1, 259; Harvey v. Brown, 1 Ohio Rep. (Cond.) 129; the State v. Dawson, 6 Ohio Rep. 253 ; Goudy v. Shank, 8 Ohio Rep. 415; Bank of Hamilton v. Dudley, 2 Pet. Rep. 522; Bennett v. Ward, 3 Caine’s Rep. 259; Dwarris on Stat. 681, 695 ; 4 Burr. Rep. 2460; 7 Johns. Rep. 477; Roll’s Ab. 526; Boat’s Lessee v. King, 6 Ohio Rep. 12; Lindsley v. Coats, 1 Ohio Rep. 245; Moore v. Vance, 1 Ohio Rep. 10 ; Courcier v.' Graham, 1 Ohio Rep. 350 ; Massey v. Thompson, 2 N. & M. Rep. 347; Simonds v. Gatlin, 2 Caine’s Rep. 61 ; Moore v. Farrow, 4 A. K. Marsh. Rep. 41; Stark’s Lessee v. Smith, 5 Ohio Rep. 456; Crocker v. Radcliffe, 1 Const. Rep. 88; Smith v. Pratt, 13 Ohio Rep. 551; Starr v. Trustees of Rochester, 6 Wend. Rep. 564; Arnold v. Fuller, 1 Ohio Rep. 214; Lessee of Massie’s heirs v. Long, 2 Ohio Rep. 214; Lessee of McCartney v. Reed, 5 Ohio Rep. 221; Haydock v. Cobb, 5 Day’s Rep. 529; Wilson v. Watson, .1 Pet. C. C. Rep. 269; Stymets v. Brooks, 10 Wend. Rep. 206 ; Woodcock v. Bennett, 1 Cow. Rep. 738 ; Griswold v. Stewart, 1 Cow. Rep. 458; Thomas v. Smith, 2 Mass. Rep. 479; Macker v. Thomas, 7 Wheat. Rep. 530; Jackson Esty, 7 Wend. Rep. 148; U. S. Dig. title Abatement, 4, 5 ; Critchfield v. Porter, 3 Ohio Rep. 519; Smith v. Rice, 11 Mass. Rep. 512 ; Mills v. Martin, 19 Johns. Rep. 33 ; Watson v. Spence, 20 Wend. Rep. 265; Lessee of Hickey v. Steioart, 3 How. Rep. 751; Starhuck v. Murray, 5 Wend. Rep. 148; 3 Phil. Ev. 800-1, 826, 868, 904; Harman v. Gould, Wright’s Rep. 709; Ohio v. Daily et al., 14 Ohio Rep. 99; Dows v. Harper, 6 Ohio Rep. 518 ; Maxsom v. Sawyer, 12 Ohio Rep. 195.
    O. M. Spencer, W. S. Groesbeck, R. M. Corwin, and G. E. Pugh, for Defendant in Error,
    replied to the various objections urged against the defendant’s title, and contended that the proceedings in attachment were valid. They cited the following authorities:

      Paine’s Lessee v. Moreland, 15 Ohio Rep. 435; 3 Ohio Rep. 305; 7 Ohio Rep. 2d part, 142; Vorhees v. Bank U. S., 10 Pet. Rep. 471; 9 Ohio Rep. 114; Weyer v. Zane, 3 1 Ohio Rep. 305 ; 4 Ohio Rep. 327 ; 5 Ohio Rep. 524; 11 Ohio Rep. 261; Parker’s Lessor v. Miller, 9 Ohio Rep. 108; Michael v. Eyster, 7 Ohio Rep. 1st part, 258 ; 12 Ohio Rep. 272; Warder v. Painter, 4 Watt’s Rep. 278; 1 Roll. Ab. 742, 768 ; 2 Bac. Ab. 450, (Wilson’s Ed.;) Cfo. Eliz. 202; Penhallow v. Doane’s Adm’r, 3 Dali. Rep. 101; 4 Ohio Rep. 133, 154; Wright’s Rep. 566; Roads v. Symmes, 1 Ohio Rep. 316; Stall’s Lessee v. McAlister, 9 Ohio Rep. 20.
   Hitchcock, J.

This is a case of very considerable importance both on account of the value of the property, and of the principles" involved. It has been argued at great length and with much ability by the counsel concerned, and it is certainly involved in some doubt. It is believed, however, that if we apply to it the ordinary rules of law, governing cases of ^is description, there can be no insurmountable difficulty in coming to a decision.

The facts as well as the law of the case were submitted to the decision of the Court below, and taking the assignment of errors as indicating the cause of complaint of the plaintiff in error, that complaint is not so much that the Court violated any principle of law, in the decision of any particular point, as that upon the whole case the Court came to a wrong conclusion. In the argument, however, objections are raised to many items of evidence, or rather to the effect which was given by the Court below to these items of evidence, which objections will be considered in the progress of the examination of the case.

The bill of exceptions, together with the documents therein referred to, show, that on the trial the lessors of the plaintiff proved that they were the lineal heirs of Thomas Cochran, and that he died the latter part of June, 1801. That before his decease he was the legal owner of the premises in controversy, that he left Cincinnati in January, 1801, and with his family arrived at Natchez and there remained until his death. That from the time of this removal they have been non-residents of the Northwestern Territory, and of the State of Ohio until the year 1840, with the exception of one of them, who visited Cincinnati in 1827.

Having proved these facts the plaintiff rested, and the defendants to prove title in themselves, introduced the record of a suit in attachment in favor of James Smith and James Findlay, instituted in the Court of Common Pleas of Hamilton county, in February, 1801, against the said Thomas Cochran, in virtue . of which the premises in controversy were attached, and such further proceedings were had, that the premises were eventually sold, and conveyed to James Findley under whom the defendants claim title; ' ‘

To this record many objections were made, and it is insisted by counsel for plaintiff in error that the whole proceeding is without authority of law, and utterly null and void. If so, the premises in controversy still remain, from aught that appears in this case, the property of the lessors of the plaintiffs, and the judgment of the Superior Court must be reversed. if on the other hand the judgment is merely voidable on account of error, it cannot be impeached in this collateral manner, no matter how numerous the errors.

The principle we understand, is this, a title acquired under a void judgment cannot be sustained; a title acquired under an erroneous judgment will be sustained so long as the judgment remains in force. And under our system the reversal of a judgment will not defeat a title acquired while the judgment is in force. Whether a judgment is voidable depends generally upon the question whether the Court rendering the judgment has jurisdiction. In the case of Lessee of Paine v. Moreland, (15 Ohio Rep. 445,) this Court say: “The distinction is between the lack of power or want of jurisdiction in the Court, and a wrongful or defective execution of power. In the first instance all acts of the Court not having jurisdiction or power are void, in the latter voidable only. A Court then, may act, first, without power or jurisdiction; second, having power or jurisdiction, may exercise it wrongfully; or third, irregularly. In the first instance, the act or judgment of the Court is wholly void, and is as though it had not been done. The second is wrong and must be reversed upon error. ■ The third is irregular, and must be corrected by motion.”

This distinction between void and voidable, as applied to judicial proceedings, seems to be fully admitted by counsel, and the effect is to show that the proceeding in the case before the Court is utterly void. The first position assumed is that there was no law, at the time these proceedings .began, authorizing them, and therefore they are void. These proceedings were commenced during the existence of the Territorial Government, and it is not denied but that attachment laws had been adopted by the Governor and Judges, but it is denied that these officials had power to adopt them. The Ordinance for the government of the Territory provides that “ the Governor and Judges, or a majority of them, shall adopt and publish in district, such laws of the original States, civil and criminal, may be necessary, and best suited to the circumstances of the district, and report them to Congress from time to time, which laws shall be in force in the district until the organization of the General Assembly, therein, unless disapproved by Congress; but afterwards the Legislature shall have authority to alter them as they shall see fit.” In this clause there is no restriction, but discretionary power is given to adopt such laws as may be necessary, subject however, to the disapproval of Congress.

In pursuance of the power thus conferred, the Governor and Judges, on the 1st day of June, 1795, adopted from the statutes of Pennsylvania, two laws, one “ allowing domestic attachments,” and the other “ regulating domestic attachments,” to take effect on the 15th of August of the same year. (Chase’s Stat. 141.) On the 15th July of the same year, a law was adopted from the statutes of New Jersey, “ allowing foreign attachments,” to take effect from the first of October next following. These laws remained in force, dr were supposed to remain in force, until subsequently repealed by the proper authority. They were recognized as binding by the Courts of the Territory, and many judicial proceedings were had under them. I infer this from the facts disclosed in the record before us, that in searching the newspapers to ascertain whether publication of notice in the case of Smith and Findley v. Cochran, had been made, frequent publications of notices of the pendency of other suits in attachment were found. And a decision that these laws were all void, destroys the foundation of the other suits, as well as of the one now more immediately before the Court.

One of the objections to these laws as I understand it, is that they provide for proceedings not according to the course of the common law, and reference is had to the second of the articles of compact prescribed in the ordinance of 1787. (Ch. Stat. 58.) That article, so far as this question is concerned, is as follows: “ The inhabitants of said Territory shall always be entitled to the benefit of the writ of Habeas Corpus, and of the trial by jury; of a proportionate representation of people in the Legislature, and of judicial proceedings, according to the course of the common law.” This article follows a declaration in the ordinance to this effect: “It is hereby ordained and declared, by the authority aforesaid, that the' following articles shall be considered as articles of compact between the original States, and the people and States in the said Territory, and forever remain unalterable, unless by common consent.” The principles declared in these articles, and they are of a similar character to principles declared in a bill of rights, are to prevail not only during the Territorial government, but for all coming time. They must “forever remain unaltered.” By the Constitution of the State, in the 8th section of the 8th article it is declared, “ That the right of trial by jury shall be inviolate,” an expression similar to the one cited from the Ordinance. If it be a valid objection to the Territorial attachment laws, that they authorized proceedings not according to the common law, and are therefore void, the same objection lies against the attachment laws enacted by the State Legislature, especially those previous to 1810. This description of laws have existed and been enforced, however, since 1795, and it seems to the Court that it is now too late to question their validity, or rather constitutionality. The construction put upon the ordinance by counsel is too narrow. True, the right of trial by jury is guarded, but it could never have been intended that in every possible case it should have been enjoyed. Judicial proceedings according to the course of the common law, are secured, but this never could have been intended so to restrict the future legislative power of the Territory or State, that chancery proceedings could not be authorized, or any other proceedings necessary to the ends of justice. Proceedings by attachment are not, it is true, according to the course of the common law. They are under our system, proceedings in rem, intended to subject the property of a debtor to the payment of his debts. But in most if not all our laws upon this subject, ample provision has been made for a defendant to come in, make defence, and have a as in other cases. Besides, had these laws been inconsistent with the ordinance, we may well suppose the same would have been disapproved by the Government of the United States. From all these considerations we are of opinion that the Governor and Judges had power to adopt attachment, as well as other laws.

Another objection made, in substance, is that the law under which the proceedings in attachment were bad, was void for uncertainty, and therefore proceedings under it could not be sustained. The uncertainty consists in this, that the mode of proceeding is not prescribed in the law itself, but reference is made to another law to ascertain this mode of proceeding, and it is said no such other law' was in existence. This objection requires of us to examine the several laws upon the subject. As before stated, on the 1st June, 1795, two laws were adopted from the statutes of Pennsylvania, one “ allowing domestic attachments,” and' the other “ regulating domestic attachments.” By the first of these laws, an attachment might be issued against the goods and chattels of a defendant, but such attachment was not to be issued except against such person or person’s effects, ■ as at the time of granting such writs, were not residents of the territory, or were about to remove, or make their escape out of the same; (Chase’s st. 141.) This seems to have been a proceeding under which the property of a defendant was seized, to compel his appearance in Court, and to secure the debt due. Upon the appearance of defendant, and the entry of special bail, the case was proceeded in, as if personal -service of process had been made. The seizure of ' the goods, under the attachment, gave the Court jurisdiction.

The law regulating domestic attachments seems to have been designed, in its first section, to confer jurisdiction by this description of process upon justices of the peace. But in the. second section, it is provided that if upon examination the justice shall find, that there is a just debt due to any one person from the defendant, exceeding the sum of twelve dollars, then, and in every such case, the said justice of the peace shall further proceed, but shall deliver and certify to the Prothonatory of the Court of Common Pleas, for the same, the said attachments, and all the proceedings thereon.” . This being done, the Justices of the Court of Common Pleas are authorized to issue an attachment “ to the sheriff of the county, directing him to attach all the goods, chattels, rights and interests, lands, tenements and hereditaments, of the said defendant, within his bailiwick; ” (Chase’s st. 142.) The next law upon this subject was adopted from the statutes of New Jersey, on the 15th July, 1795, allowing foreign attachments; (Chase’s stat. 197.) The first section provides that the lands, tenements, goods, chattels, &c., of a person or persons not resident of the territory, may be attached for the payment of any just debt, &c., by writ or writs issued out of the General Court, any Circuit Court, or Court of Common Pleas; “ and as early as may be, shall and may be proceeded against, in the same manner as is directed against the lands, tenements, hereditaments, and estates of absconding'debtors, except where otherwise herein directed.”

It is urged by plaintiff’s counsel that there was no such law in force as is here referred to, as appliable to the estates of abr sconding debtors; and that therefore this was a void enactment. The only law in force, so far as appears upon the statute book, relative to attaching the lands of an absconding debtor, is the second section of the act before referred to, regulating domestic attachments.” There might have been some other adopted, but not published; or if published, it may not have got into the statute book. But does it therefore follow that if there was no such law, the lawof the 15th July, 1795, must be void? The imperfection of a law will not render it void, unless it is so imperfect as to render it utterly impossible to execute it. Is such the fact with respect to the law of the 15th July, 1795? The substance of the first section has been already noticed. The second section provides that before the writ is issued, an affidavit shall be made, and filed in the Clerk’s office, which shall contain certain facts, as pointed out in the section.

The third section relates to two or more persons, whether partnership debtors or otherwise. Prescribes the manner in which their property shall be attached, and provides that the lands, &c. of such debtors, or either of them, may be taken for the satisfaction of any just debt, or other demand, and may be sold to satisfy the same.”

• The fourth section provides that no judgment shall be entered until the expiration of twelve jnonths. In the mean time notice of the pendency of the suit is to be published, and the form of the notice is prescribed. By it the debtor is to be notified that unless “ he shall appear, by himself or his attorney, to give special bail to answer such suit, that then judgment will be entered against such debtor or debtors by default, and the estate or estates attached be sold for the satisfaction of all creditors who shall appear to be justly entitled to a demand thereon, and shall apply for that purpose.”

And the last section secures to the defendant in attachment the right, at any time within twelve months after the attachment shall have been determined, to contest by suit any claim which may have been allowed against him, and paid, and if wrongfully paid to recover back the amount.

Now this law does not, it is true, go so far into detail as to describe every particular step to be taken from the commencement to the final end of the suit, but it authorizes the issuing of an attachment, the seizure of the property of the debtor, a judgment against him, the liquidation of all claims presented against him, the sale of the property attached, and the distribution of the avails amongst the creditors. It is a law which may be executed. The mode of liquidating the claims, of the sale of the property, and other matters relative to the business, might well be provided for by rules of Court. And that such was the fact we may well infer from the circumstance that when this act was repealed by the territorial law of 1802, the repealing clause contains this proviso, “ That nothing herein contained shall affect the proceedings in any attachment now pending and undetermined; but the same shall be continued, and ducted according to the rules and practice established under the acts of the Territory heretofore in force.” What these rules were, and what this practice was, we cannot know at this distance of time, nearly fifty years, or perhaps more, having elapsed since the same were established. They were such however as were recognized as obligatory by the law making power. All the knowledge we can have of them must be derived from the records of the Court, and these are, generally speaking, somewhat imperfect. Counsel for the plaintiff seem to suppose, that the course of practice adopted in the case now before us, was in conformity with and controlled by the law of 1802. It would perhaps be as reasonable to suppose that that law was, in many of its details, but the adoption by the Territorial Legislature of the rules and practice which had previously prevailed in the Territorial Courts, in like cases. This however is all matter of conjecture. In the opinion of the Court, the law of the 15th July, 1795, was not void, but under its provisions, the Courts of the Territory might acquire jurisdiction in cases <5f attachment.

It is further objected to the proceedings in attachment, that, admitting the attachment laws adopted by the Governor and Judges to have been in force at the time these proceedings were instituted, still that there was no writ or affidavit as required, and therefore the Court did not acquire jurisdiction. The facts relative to this part of the case appear to be these, as collected from the record and evidence in the case. An.affidavit as required by the law, was made before one of the Justices of the Court of Common Pleas, on the 31st of January, 1801, upon which the writ issued, returnable at the February Term following. This affidavit is not inserted in the record, but is produced in evidence. The Clerk of the Court who issued the writ, instead of dating it on the day on which it was issued, dated it as of the last day of the preceding Term of the Court, to wit, the 21st of November, 1801. Whether such was the usual of that day I do not know. It might have been, or Clerk might have supposed it necessary, under the phraseology of the attachment law, that the lands, tenements, &c. might be attached, “ by a writ or writs to be issued out of the General Court, or any Circuit Court, or Court of Common Pleas,” &c.

If we consider this case, as it appears from the record, and assume the 21st of November to have been the date of the writ, a question arises as to the sufficiency of the writ, it not being recited that affidavit had been made, and no affidavit appearing upon the record. The law authorized the writ to be issued upon affidavit filed with the clerk, but there was no law prescribing, that this affidavit should be made part of the record. The writ recites “ whereas James Smith and James. Findlay have testified to the Court of Common Pleas, at Cincinnati, in the County of Hamilton aforesaid,” &c. Now if we proceed upon the assumption that the writ must be issued out of the Court, as if it were the act of the Court or done by its order, the recital shows that before it was issued, preliminary proof was made.

How made ? We must suppose it to have been made in the manner required by law. Taking the record itself then, it sufficiently appears that an affidavit was filed. Taking the other evidence in the case, however, and admitting it to be competent, what does it show? simply that an affidavit was made as the law directs before a Justice of the Court of Common Pleas, and was filed with the clerk. It bears date, however, at a time subsequent to the date of the writ. Further than this, it appears that the writ itself, though dated in November, IS00, was not actually issued until the latter part of January, 1801, and after the date of the affidavit. It is objected, however, that it should have been issued “from the Court,” or by its order. By a law “ establishing courts of judicature,” which took effect Oct. 1, 1795, in the 16th section it is provided “that every of said justices shall be and are hereby empowered to grant, under the seal of their respective Courts, writs of replevin, writs of partition, writs of view, and all other writs and process upon the said Pleas and actions, cognizable in the said Courts, as occasion,” &c. It may have been, that under the cotemporaneous construction of this section of the statute, the Justice of the Court of Common Pleas before whom the affidavit was made, authorized, so far as any authorization was necessary, the issuing the attachment in this case. How far this practice of dating writs, as of the previous term of the Court prevailed in the territorial Courts, I do not know, nor is it necessary for us to inquire. It was probably found to be attended with inconvenience as we find at the first session of the General Assembly under the State government, in an “ act organizing Judicial Courts,” it was provided, “ that all writs and process shall run in the style of the State of Ohio,-County, ss, shall bear tept in the name of the presiding Judge, be sealed with the seal, and signed by the clerk of the proper Court, and shall be dated on the day on which the same may issue.”

Upon a careful examination we are satisfied that under the attachment law then in force, a writ of attachment was properly issued from the Court of Common Pleas of Hamilton county, at the suit of Smith and Findlay v. Thomds Cochran, that the same was levied upon the land in controversy, and the writ properly returned, whereby that Court acquired jurisdiction of the case, and were authorized to proceed therein.

The next ground of objection is that notice of the pendency of the suit was not given as required by Jaw. If this were true it would undoubtedly render the proceeding and judgment erroneous, but would it render them void ? This question was fully considered in the case of Paine’s Lessee v. Moreland, 15 Ohio Rep. 435 ; in which it is expressly decided, that the Court acquires jurisdiction in attachment, by the issuing of process, predicated upon the requisite affidavit, and the attaching of property ; and if, after thus obtaining jurisdiction, the Court proceed to render judgment, without the publication of notice, such judgment is not void, and cannot be impeached collaterally, but must be reversed upon writ of error. This decision is fully-sustained by the Supreme Court of the United States, in the case of Vorhees v. Bank U. S., 10 Peters Rep. 449. Under the law in force at the time of these proceedings it was not necessary that proof of notice should constitute any part of the record. That law required that a publication should be made in a newspaper printed in the Territory, in one printed in Kentucky, and one printed at the seat of government of the United States. It is in proof that publication was made in a newspaper printed in the Territory, and it would not be too much to presume that the law was complied with, as to the other publications. But as the judgment cannot be collaterally impeached on this ground, it is unnecessary to dwell further upon the point.

It is further objected that there was no judgment. One of the transcripts of records produced in evidence, shows that there was a formal judgment. But it is claimed that this is of no avail, inasmuch as there had been a previous record made, and in that record this judgment did not appear. It seems that the Court of Common Pleas of Hamilton county, at the November Term, 1836, upon inspection of the docket entries, and the record previously made, and finding the latter to be imperfect, directed the clerk to make a more perfect record, and where upon the docket entry at a particular term the letters “ judg’t.” are written to enter the judgment in form, and where in the same term the entry is made “ Report of auditors filed, order of sale to issue,” to enter, such order in full, &c. The whole amount of this order of the Court of which much complaint is made is, that the clerk made out a correct record from the papers on file and the docket entries in the case. I cannot see any thing wrong in this. It seems to me to have been proper, and such course is sustained by this Court in the case of Mitchel v. Eyster, 7 Ohio Rep. pt. 1, 258. It is said that the word “judgment ” written in full upon the docket, or abbreviated, is of no avail and as nothing, but that every judgment must be formally entered, before it can be noticed. If so, then in some of our sister States and especially in the State of Pennsylvania there are but few valid judgments. For in most of the transcripts of record which I have seen from State, there is no evidence of any judgment, except the “ judg’t.” And to this day in the county in which these proceedings were had, in most of the transcripts which are sent to this Court from one of the inferior Courts, there is no evidence of any judgment except the word “ judgment ” or the letters “judg’t”

The next objection is that there was no order of sale. This is not true in point of fact if what is called the new record is considered as being in evidence.

It is next claimed that the death of Cochran, before the rendition of judgment, put an end to the proceedings, and that a judgment subsequently rendered is void, and it is further insisted as a general principle that a judgment against a dead man is void. The death of a party before judgment, is in the books, said to render the judgment erroneous, and is one of those errors in fact for which a judgment may be reversed. If void, why reverse it ? I take the law to be this: such a judgment may in some instances be held to be void as to strangers, but is merely erroneous as to parties and privies, and this is the distinction taken in 4th Cowen’s Rep. 286, to which we have been referred. Now the lessors of the plaintiffs, are the heirs of Cochran. They stand in the relation of privies to this judgment. But were it otherwise, inasmuch as this attachment proceeding is a proceeding in rem, I should be unwilling to say that the death of the debtor, after the property is attached, would prevent the Court from proceeding to liquidate the claims presented, and distribute the avails of the property according to the meaning and intent of the law under which the proceedings were had. To put this matter be yond controvery, the Legislature, in subsequent attachment laws, have expressly provided that the death of the debtor shall not put a stop to the proceedings.

Another objection is that there was no deed properly executed to vest the land in the purchaser. The record shows that auditors were appointed to hear and adjust the claims of credi’tors. This was certainly a convenient way of adjusting these claims, and as the law made no provision on the subject, by a rule of practice, the Court might well adopt it. And this was probably in the mind of the Territorial Legislature when the proviso to the repealing law of 1802, which has been already referred to, was adopted. These auditors made their report to the Court, upon which judgment was entered, and an- order of sale made. This was directed to the auditors. For this it is said there was no law. In fact the law, so far as we know any thing about it, although it directed that the property should be sold, gave no directions as to the manner of sale, nor as to the person or persons by whom the sale should be effected. This was left to the discretion of the Court. The property had been attached, it was in the custody of the law, the Court were bound to see that the avails were distributed. To effect this object, they directed the auditors to make the sale. I am not aware that in thus proceeding they were guilty of exercising any greater excess of power, than this Court sometimes does, in directing sales to be made by master commissioners in chancery. For it is not within my recollection that we have ever had any Statute authorizing property to be so sold in such manner, although we have adopted the practice as being incidental to the powers of a Court of Chancery. In pursuance of this order of sale, the auditors made sale and executed a deed to the purchaser, which was acknowledged in open Court, and the whole was approved by the Court- ordering the sale. So far I see nothing wrong.

But it is said, and such appears to be the fact, this deed was without witnesses. Is it void on this account? At the time this deed was executed, it was required, in ordinary cases, if not in every case, that a deed should be attested by two subscribing witnesses. But from 1795 to 1805, no witnesses were necessary, provided the deed was acknowledged as the law required. (1 Ohio R. 1, Lessee of Moore v. Vance.) Such was the law at the time these proceedings in attachment were instituted. When the law under which these proceedings were instituted, was repealed, it was under this proviso, “That nothing contained, shall affect the proceedings, on any attachment pending, and undetermined, but the same shall be continued according to the rules and practice established under the acts of the Territory heretofore in force.” This saving clause may have been construed to extend as well to the proceedings after judgment, in the disposition of the property, as to the proceedings before judgment; nor would this be a forced construction, as the case must be continued in Court until the property attached had been disposed of, and the avails distributed. At the time these proceedings were instituted, the law did not require, for the validity of a deed, that the same should be attested by witnesses, and it may with much plausibility be urged, that for this particular class of cases this principle of law was continued in force. When we consider that under the attachment law of July, 1795, there was no provision made as to the manner in which property should be conveyed after it had been sold, although the sale was expressly required, when we consider further, that at the time of the institution of these proceedings no attesting witnesses were necessary to the validity of a deed, and further that this conveyance was made under the direction and approval of the Court having jurisdiction of the whole matter, we are not prepared to say, that this deed was no evidence of title. It was but one of the items in the course of judicial proceedings, by which the property of Thomas Cochran was appropriated to the payment of his debts. There can be no doubt that the property was, by the attachment, in the custody of the law; that it has been sold pursuant to the law ; that it was purchased by those under whom the defendants claim title ; that it has been in their possession, and in the possession of those under whom they claim, for about forty years, and as before remarked, we are not prepared to say that they have not the legal title.

The judgment of the Superior Court is affirmed.

Read, J., dissented.


source: Caselaw Access Project

author: Avery, J.

license: Public Domain

text:
    The Portage Canal and Manufacturing Company vs. Edmund W. Crittenden, for the use of Smith Law.
    When the condition of a bond requires compliance with the terras of another obligation, which are not fully stated.in the condition, a declaration upon the bond must set out the obligation referred to in the condition, with a corresponding breach, and the omission to do sois error, though the judgment be taken by confession, if the warrant to confess contain no waiver of error.
    This is a Writ of Error, directed to the Court of Common Pleas of Summit County.
    The judgment rendered in the Common Pleas was upon confession, by warrant of attorney. The declaration filed, was in debt, upon a bond of $21,000, dated April 20th, 1841, executed by the Company to said Crittenden, and payable in thirty days from date.
    The condition of the bond is, that whereas said Crittenden, attorney of Smith Law, Elisha R. Johnson and Nathaniel E. Warwick, has this day discharged a mortgage executed to them for the security of themselves and others, for indorsing certain notes specified in the mortgage, which release was executed upon the express condition that said Portage Canal and Manufacturing Company shall, within thirty days from date, deliver, to Elisha N. Johnson two of the bonds, for $500 each, secured by a deed of trust executed by the Company to John R. Palmer, and also deliver to said Johnson a certificate of ten- shares of stock in said Company, and deliver to Joseph Linzey five'of said bonds and a certificate of twenty-five shares of stock, to John A. Warner three of the'bonds and fifteen shares of stock, and to Samuel C. Sheppard one of the bonds and five shares of stock, and shall also settle with Smith Law, in accordance with the terms of an obligation executed and delivered to said Smith Law by said E. W. Crittenden, on the 30th or 31st March, 1841, which provided for the settlement of $5000 of the indebtedness of the Company, in the same manner as the claims of Elisha It. Johnson and others above named are settled, or by giving said Smith Law a judgment bond for the whole, or any part of his claims against the said Company, at the option of the said Smith Law. If the Company shall pay and discharge the above named obligations, by delivering the stock and bonds in accordance with the conditions stated, then the obligation to be void, otherwise to remain in full force; and upon the discharge of part, then to be void as to such part. Authority was therein given to any attorney to appear and enter judg ment against the Company for the whole amount of the obligations, or any part remaining unsettléd for thirty days from the date thereof. There is no waiver of errors in the warrant of attorney.
    The declaration sets out the bond and condition, and avers as a breach, that the Company would not settle with Law, in accordance with the terms of an obligation executed to Law, by said Crittenden.

      John Harris and Otis Wolcott, for Plaintiff in Error.

      Lucius V. Bierce, for Defendant in' Error.
   Avery, J.

The pleader, in his averment of the breach in the declaration, has copied the language used in the condition of the bond, to describe the settlement which was to be made with Law.

The bond it will be seen, provided for transferring to sundry persons a number of bonds of $500 each, and a number of shares of the Company’s stock, amounting to several thousand dollars. What is the true amount does not appear by the bond, because the nominal value of the stock is not stated ; but it is apparent enough that these various sums and shares constituted the largest part in value of all that was provided for in condition of the bond. There is however no averment in the declaration of any breach of this part of the condition. The judgment, nevertheless, is for the full face of the bond, together with a sum in damages nearly equal to the whole interest upon it, up to the time of taking judgment. It is not easy to see how so large a judgment could be rendered, if there was not a failure to perform in the particulars above alluded to, and it would seem that the judgment must therefore be erroneous, because the facts appearing upon the record do not authorize a judgment for such an amount.

But in the opinion of the Court the breach actually assigned, is defectively set out. ■ The condition provides, that the Company shall settle with Law, in accordance with the terms of a certain obligation executed in March, 1841, yet there are no averments in the declaration, setting out this obligation, showing what were the terms of it, or that it ever in reality existed. Neither does the condition allude to or describe the obligation in such a manner as to show sufficiently what the obligation was, and to dispense with averments setting it forth substantially in the declaration. In omitting to make these allegations, and to show a breach corresponding to such a state of case, there was error.

Further, the damages appearing in the plea and judgment, are greater then the amount claimed as damages in the declaration. In the declaration they are stated at $3,500, in the judgment at $3,509. This error, if it stood alone, could be corrected here, but it is not the only error. The judgment must be reversed.


author: Birchard, C. J.

text:
    Joshua Wagers vs. Samuel Dickey and another.
    The Supreme Court will not reverse the judgment of the Court of Common Pleas, for error in refusing1 to grant a non-suit, unless the bill of exceptions discloses all • the testimony which was before the Court on the motion for non-suit.
    Where a witness who has testified in a cause, is dead, on a trial of the same cause between the same parties, another witness may testify aB to the substance of what the deceased witness testified on the former trial.
    This is a Writ of Error to the Court of Common Pleas of Harrison County.
    The original action was Assumpsit. The declaration contained only the common counts. Verdict and judgment were given for the plaintiffs below. Pending the trial two bills of exceptions were taken as follows :
    1. Be it remembered that on the trial of this cause after the plaintiffs had introduced,- among other evidence, evidence tending to show a special contract between plaintiffs and defendant for a wagon to be delivered by defendant to plaintiffs, and after said plaintiffs had introduced evidence tending to show that said wagon was to be delivered on or before the succeeding harvest after said contract was made, and it appearing that there was no place specified at which said wagon was to be delivered,and no evidence being offered to prove a demand by said plaintiffs of said wagon of said defendant, said plaintiffs rested their case, and thereupon the said defendant moved the Court to non-suit the plaintiffs for the reason that no evidence had been offered of a demand as aforesaid, whereupon the said Court overruled said motion; to which opinion and ruling of said Court the defendant excepted, &c.
    2. Be it remembered that on the trial of this cause, the plaintiffs to support their action, called Samuel Dickey a witness and proved by him the death of one Robert McGill, who was a witness in this cause on the trial of the same before the j f Peace. And said Samuel Dickey testified that , . J could state substantially the testimony of said Robert McGill before the Justice of the Peace. Whereupon the said Samuel Dickey was ordered by the plaintiffs to state substantially the testimony of said Robert McGill, to the admissibility of which said defendant objected, which objection was overruled by the Court and said witness was permitted to answer the question. To which ruling of the Court the defendant excepted, &c.
    After the verdict a motion- was made for a new trial, which was refused.
    The plaintiff in error claims that there was error committed by .the Court below,
    1st. In refusing to grant a non-suit.
    2d. In permitting Dickey to testify to the substance of McGill’s testimony, and
    3d. In refusing to grant a new trial.

      Bostwick Shotwell, for Plaintiff in Error.
    T. L. Jewett, for Defendants.
   Birchard, C. J.

We think the Court below did not err in overruling the motion for a non-suit. The bill of exceptions does not profess to give all the evidence offered by the plaintiffs in support of the action prior to the motion for a non-suit. We are left altogether in the dark up on that subject, and if any ■ supposablé state of proof connected with what is shown by the first bill of exceptions would have sustained a right of action we ought to presume such proof to have been given, until the contrary appears. A revisory Court never presumes that an inferior tribunal has erred. The presumption is that it has not. Until the contrary is shown by record, every Court is presumed to have acted and decided correctly.' Suppose, then, it was in proof that the plaintiffs below had sold’ and delivered goods, wares and merchandize to the defendant as averred in his declaration, and that the defendent in consideration of the sale and purchase, had, as stated in the bill of exceptions, cially promised to deliver him a wagon before the next harvest, and the time had elapsed without a delivery. Could he set up . this contract which he had thus violated to defeat a recovery for the value of the goods? The answer is palpable. He could not. The moment he disregarded and broke it by neglecting to live up to it, and to deliver the wagon, he lost his right to compel his adversary to abide it, and enabled him to recover back the money or other property paid on his contract, the consideration of which had thus failed. The demand of the wagon in such case was not a preliminary requisite to the right of action. It was the duty of the party engaging to deliver the specific article, to do it by tendering the same to the plaintiff personally, or at his'house, at the time stipulated. He had no right to require a demand of performance from the plaintiff before offering to perform. The parties contracted for no such condition. Both were aware of the terms of the agreement. They understood it alike, and the one who neglected to observe it, did so at his own peril.

The second bill of exceptions presents a vexed question. One upon which there has been conflicting decisions in the Courts of England and of our sister States, and 1 may add in this Court. In Bliss v. Long, Wright’s Rep. 351, if was held upon the circuit, that a witness called to testify what a deceased witness testified on a former trial between the same parties, could not be allowed to state the substance of his testimony. That he was inadmissible unless he could give the words of the witness. And in Smith v. Smith, Wright’s Rep. 643, also upon the circuit, this Court said, that “ unless the witness would undertake to relate exactly what the deceased witness testified, he need not be swornand the witness not being able to do that, was not sworn. _ .

In other circuit cases, both prior and subsequent to these decisions, the rule thus laid down and practiced upon has been departed from, and this case was brought into bank, in order that the question might receive the consideration of all the Judges. The rule that the testimony of a deceased witness who has been examined on oath on the trial of a former action between the same parties, and where the point in issue is the same, is admissible on the second, trial of the action and may be proved by one who heard the evidence, is an useful and ancient rule. 1 Phil. Ev. 230, 231.

Phillips in stating how the testimony of the deceased witness must be proved, refers to two English cases wherein it was ruled by Lord Kennyon that the precise words must be proved and that their mere effect was inadmissible. But upon this he remarks, that this can only mean, at the farthest,, that he must be able to speak to the identical words of the former witness, when it is essential that the identical words should be known. “In some cases, proof of the substance of the former evidence may be as satisfactory as proof of thé identical words, unless the witness can undertake, what is not possible, to deliver the words precisely, with the same manner and in the same tone.”

This qualification of the decision of Lord Kennyon is necessary to prevent the impracticable requisition of the witness’ very words operating with the same result as to deny the existence of the rule itself. To adhere rigidly, as was done in Bliss v. Long, in effect, overrules all cases which admit in evidence what a deceased witness swore on a former trial. I have never heard a witness, in twenty years, who could give any man’s evidence in his precise words. I never saw an Attorney who could pretend to state the precise words of a witness six hours after his testimony had been given, and his assertion that he could narrate verbatim, from memory the whole of a witness’ statement, would, in ninety-nine cases in a hundred, be convincing evidence to man of sense that his word was not to be relied on. If, then, the rule as laid down in Wright’s Reports, and. as stated by Lord Kennyon, were to be taken strictly, it amounts to a total interdict of a most important branch of secondary evidence, a branch of evidence especially important under our system of new trials. The evils flowing from it would, in my judgment, were the law ever so well settled, justify a Court in changing the law.

In Maryland,-Virginia, North Carolina and Pennsylvania, the substance of a deceased witness’ testimony is allowed to be given in any subsequent trial of the cause. Some of the Courts of these States take a distinction between the substance and the effect of the former testimony. “ The substance, say they, may be given, not the effect,” .that is for the Court and jury. • The exact words are not required. I submit that this distinction may have been in the mind of Lord Kennyon, when inferring to the decision in Palmerston’s case. Vide the following cases : Pike v. Cranch, 1 Ld. Raymond, 730; Mayor of Doncaster v. Day, 3 Taunt. 261; Rex v. Jollife, 4 T. R. 285; Montgomery v. Ohio, 11 Ohio Rep. 424; Stark. Ev. vol. 1, p. 892, part 3, sec. 13.

If so, it would reconcile what he said with a practical course, consistent with the efficacy of this rule of secondary evidence. And more especially would it reconcile this species of evidence with the analogies of the every day practice in the trials for verbal slander, perjury and the like, where it is never required that the witness shall do more than give the slanderous words substantially as spoken, or the words substantially upon which the perjury is assigned. A careless thinker may suppose that there is very little difference between the substance of evidence and the effect of evidence, yet in one sense there is a wide distinction between the two forms of expression. For instance the substance of a witness’ testimony in a given case may have been, that he saw A strike B with a club; the effect of it was to prove an Assault and Battery by A upon B. Or the. witness may have said in substance that he was acquainted with A’s handwriting and that the signature to the note he believed to be in A’s handwriting; to state this proof by saying that the witness proved the note to be genuine, would be to give the effect of the evidence, not its substance, and would be inadmissible.

In Smith v. Lowe, 12 Serg. & Rawle, 34, Judge Gibson, though as I think mistaken as to the English rule, with great sense uses this language:

“ By the English law, a person who is called to prove what a deceased witness swore, must undertake to repeat his very words; and not merely to swear to their effect. To do this, would require powers of memory which seldom fall to the lot of any one; and the rule under this restriction, although it might often produce perjury, would be of no practical utility; for no juror of common discretion would believe a witness who should undertake to repeat the very words of another, in relating the manner in which any transaction took place, whether simple or complicated. But this absurdity has been exploded by this Court, and it is unnecessary, in this State, to profess to use the language of a deceased witness, but only to undertake to state the substance of all he swore in relation to the particular transaction.”

In an earlier case, Cornell v. Green, 10 Serg. & Rawle, 16, the same learned Judge said the rule, applied in that degree of strictness stated by Lord Kennyon, would be useless in practice; “ for there is no man, be his powers of recollection what they may, who could in one case out of ten thousand be qualified to give such evidence; and if he should undertake positively to swear to the very words, the jury ought, on that account alone, to disbelieve him.” '

These extracts will commend themselves to every practical mind. If the law of Ohio is not in accordance with them, it is not what it ought to be; but we think the law of the State, its essence and spirit, has always been in accordance with the doctrine of the Pennsylvania Court, and that contrary circuit decisions are to be regarded as departures from correct practice and true principle, rather than evidence of the existence of a well settled rule. See note 442, p. 578, 2d part. Phillips’ Ev. by Cowen & Hill.

Judgment affirmed.


author: Read, J.

text:
    Esther Bingham vs. Amos Miller.
    Divorces are the subject of Judicial, not Legislative action, and the Constitution confers upon the Legislature no power to grant them 3 but to avoid the consequences which would result from declaring all those void which have been granted by the Legislature during the existence of the Stato, rendering illegitimate the issue of second marriages, the Court will pronounce them valid.
    • This is a Writ of Error directed to the Court of Common Pleas of Athens County.
    The action below was Assumpsit. The declaration contained only the common counts. The plea was the general issue, with notice of set off.
    The plaintiff below having given evidence in support of his claim, the defendant proved that she had been lawfully married to one Ralph Bingham, who was still alive.
    The plaintiff then read in evidence an act of the Legislature, dated March 3d, 1843, divorcing said Ralph and the defendant, at the instance of said Ralph.
    The defendant’s counsel thereupon requested the Court to charge the jury that said act of the Legislature was void ■— the Legislature having no power to grant divorces — and that the defendant was still a feme covert, and not liable to be sued; but the Court refused so to charge, and this is assigned as error.

      C. C. Corners and R. E. Constable, for Plaintiff in Error,
    cited the following authorities:

      Moore v. Houston, 3 Serg. & Raw. Rep. 169; Peeple v. Foot, 19 Johns. Rep. 38; Exparte McCollum, 1 Cow. Rep. 550 ; 1 South. Rep. 192; 2 South. Rep. 406; Whittington v. Polk, 1 Har. & J. Rep. 236; Norris v. Trustees of Abingdon Academy, 7 Gill & Johns. Rep.’ 7; Derby Turnpike Co.
      v. Parks,.10 Conn. Rep. 522; Gosfienv. Stonington, 4 Conn. ReP‘ 225; Hill v. Sunderland, 3 Ver. Rep. 507 ; 1 Aik. 315; New H. Rep. 473; Dow v. Norris, 4 New H. Rep. 16; -7 New PI. Rep. 63; 6 Greenl. 412; Ibid. 412; 3 Greenl. 226 ; 2 Fairf. Rep. 118; 9 Greenl. 60; Holden v. James, 11 Mass. Rep. 396; 13 Pick Rep. 60; 1 Aik. 121; 2 Greenl. 28; 2 Pet. Rep. 657; 4 Wheat. Rep. 578; Ibid, note, 316 ; 2, Dali. Rep. 410 ; 5 Cranch’s Rep. 344; 4 Dali. .Rep. 11; 5 Cranch’s Rep. 308; 2 Dali. Rep. 304 ; 6 Wheat. Rep. 264, 381; 3 Dali. Rep. 171; 1 Cranch’s Rep. 137; 1-Wheat. Rep. 304; 5 Wheat. Rep. 158, 317; 3 Monroe’s Rep. 90.

      John Welch, for Defendant in Error.
   Read, J.

The single question in this case is, have the Legislature power to grant divorces ?

The constitution confers no such power. The Legislature is not sovereign ; nor are all the departments of government, combined. The people only are sovereign. Nor can the matter be helped out by implication, for the constitution in express terms declares that “ all powers not hereby delegated, remain with the people.” The Legislature, then, as well as the other departments of state, possesses, only a delegated power, and can exercise no powers not delegated. The constitution confers no power to grant divorces; from whence, then, can the Legislature derive it ? Not, like the British Parliament, from sovereignty, because' the Legislature does not possess it; not from the constitution, because it does not confer it.

This is not all; divorce is the subject matter of judicial action. The marriage relation involves rights to property, support for the wife, and the protection, maintenance, and education of children. What becomes of all these rights and obligations, if the Legislature at once cuts the marital tie by a simple law, or expression of Legislative will ? Beyond all this, by what authority can the Legislature strike down the dearest rights at a single blow, without hearing, without a day in Court, and without pretending to possess the power to adjust these various delicate questions? The whole matter of marriage relation, call it a contract, a Divine ordinance, a mestic relation, or what you will, is a matter of judicial action and consideration, before the parties concerned can be deprived of their rights, or relieved from their duties.

Thus the Legislature, in granting divorces, have not only assumed a power not delegated to them, but have usurped a power expressly conferred upon the judiciary.

For these reasons, we say the Legislature have no power to grant divorces.

Some eminent jurists have denied the power to the Legisla- . ture, upon the ground that it is a law impairing the obligation of contracts, and therefore prohibited to the States by the constitution of the United States. We do not choose to place it upon this ground, because we believe that clause was inserted in the constitution for no such object, but as appliable to contracts of a wholly different nature. And besides, I believe it not only consistent with the theory of our government, but that our happiness, interest, and safety require us to deny to the general government any possible power not expressly granted, or clearly conferred. It is to the State where we have the control, that we must look for the protection of our dearest rights; and I would be the last to surrender up any right to the general government, and especially so dear a one as that of our domestic relations. This is a matter of our own, and we will keep it so.

But this abuse of power, I do not suppose was designed; but it is one among the common examples of a long tolerated abuse, assuming to become a right, and of the too ready disposition in the mind to follow examples, without stopping to inquire whether they apply. Without strictly scrutinizing their own powers, and looking for their guide to our own constitution, the members of the Legislature have' looked abroad, and seen that the British Parliament, and that most if not all the Legislatures in the United States have exercised the power of granting divorces, and from thence have come to the conclusion that Legislature could do what another has, and that the Leg-of Ohio had as much power as any other Legislature, and thus have arrived at the conclusion that they had the power to grant divorces.

This was a much mistaken mode of reasoning, and has led the Legislature into a grevious fault. The British Parliament is clothed, according to their notions, with sovereign power, and may do what they like; many, if not all the Legislatures of the colonies, and the old States, possessed and exercised both Legislative and judicial power. Hence, all these furnish no light to us. Our Legislature is clothed with the simple power to enact laws, and do some other things expressly authorized by the constitution. Beyond this, the Legislature has no power at - all. To grant a divorce, is not to enact a law; an expression of the will of the law-making power that the marriage relation is dissolved, is no law. It is a decree, an order, a judgment, but not a law. A law is a rule, something permanent, uniform and universal. A divorce' begins with the parties, and ends with the parties. It is a single act, and begins and expires with the performance of a single function.

But nevertheless, our Legislature have assumed and exercised this power for a period of more than forty years, although a clear and palpable assumption of power, and an encroachment upon the judicial department, in violation of the constitution.

To deny this long exercised power, and declare all' the consequences resulting from it void, is pregnant with fearful consequences. If it affected only the rights of property, we should not hesitate; but second marriages have been contracted, and children born, and it would bastardize all these, although born under the sanction of apparent wedlock, authorized by an act of the Legislature before they were born, and in consequence of which the relation was formed which gave them birth. On account of these children, and for them only, we hesitate. And in view of this, we are constrained to content ourselves with simply declaring that the exercise of the power of granting divorces, on the part of the Legislature, is unwarranted and unconstitutional, — an encroachment upon the duties of the judiciary, and a striking down of the dearest rights of without authority or law.

We trust we have said enough to vindicate the constitution, and feel confident that no department of State has any disposition to violate it, and that the evil will cease. ,

We are constrained to affirm the judgment of the. Common Pleas.


text:
    Robert and George Crawford vs. Wm. B. Chapman.
    The grantee' of the reversion cannot maintain an action of covenant in his own name against a lessee upon an express covenant contained in the lease for the payment of rent.
    This is a Writ or Error to the Court of Common Pleas of Hamilton County.
    The record shows the following facts :
    On the 4th of February, 1837, Edward, Inskip made a lease of certain premises to Chapman, for ‘ten years from the 7th April, 1837, át a yearly rent of four hundred 'dollars, payable in quarterly instalments. By the lease, Chapman covenanted that he would “ well and truly pay the rent aforesaid,” at the several periods mentioned.
    On the 28th of November, 1838, Inskip conveyed the premises (without mentioning the lease) to Luther Rose, by deed duly executed, with a covenant against his own acts.
    •On the 1st of July, 1841, Rose conveyed to Robert and George Crawford, in like manner, the premises.
    In the year 1844, R. and G. Crawford brought their action against Chapman, upon the lease, averring that two hundred dollars of the rent, reserved for the two quarters ending July 1843, were due and unpaid — contrary to the inten’f and of the express covenant.
    To this action, Chapman filed the following plea :
    And the defendant, by his attorneys, comes and says that the plaintiffs ought not to have the action aforesaid, against him, because he says that on the second day of February, in the year eighteen hundred and thirty-nine, at the county of Hamilton aforesaid, before the rent mentioned in the declaration was in arrear, after the assignment by Edward Inskip to Luther Rose of the said reversion, and before the assignment thereof, by the said Luther Rose, to the plaintiffs, he, the said defendant, by his deed of that date, duly signed, sealed, acknowledged, and delivered, did transfer, set over, and assign to one Lewis Stagg, all his interest, right, claim arid title, in and to the said lease, and the premises thereby demised, for the unexpired portion of the said term, subject to the conditions, covenants, and reservations in the said lease, to him the said defendant, from the said Edward Inskip contained — which said deed the defendant here shows to the Court. And the defendant then and there surrendered the possession of the said premises to the said Lewis Stagg by virtue of the said assignment. And the defendant avers that the said Luther Rose then and there accepted the said Lewis Stagg as his lessee and tenant in lieu of this defendant, and afterwards, to wit: on the seventh day of April, in the said year, received from the said Lewis Stagg the amount of the rent then accrued upon the said lease, according to the terms thereof, to wit: at the county of Hamilton aforesaid. And neither the said Luther, before the said assignment to the plaintiffs, nor the plaintiffs since the' said assignment to them, has nor have demanded of the defendant the rent reserved upon the said lease, at. the several times of paying the same, since the said second day of February, in the year aforesaid, to wit: at the county of Hamilton aforesaid, And this he is ready to verify. Wherefore he prays judgment if the plaintiffs ought to have the said action against him. To this the plaintiff demurred generally.
    Judgment was rendered in the Court of Common Pleas for the defendant, to reverse which this writ of error is prosecuted. The error assigned is that judgment was given for defendant, when it should have been given for the plaintiffs.

      Groesbeck &f Telford, for Plaintiffs in Error,
    cited the following authorities :

      Port v. Jackson, 17 Johns. Rep. 239; Com. on Land, and Ten. 275; Parker v. Webb, 3 Salk. 5 ; Fulton et al. v. Stewart, 2 Ohio, 215 ; Scott v. Lant’s Adm’rs, 7 Pet. Rep. 596; Platt on Cov. 194-5, 485, 491-2, 533, 537.

      George E. Pugh &f S. M. Hart, for Defendant in Error,
    cited the following authorities:

      Reed v. McGrew, 5 Ohio Rep. .375; Saunders v. Pope, 1 Ohio Rep. 486; Oakley v. Boorman, 21 Wend. Rep. 588; 2 Man. & Ryl. 3; 3 Johns. Rep. 528; 1 Johns. Ch. Rep. 429; 2 Johns. Ch. Rep. 416 ; 4 Bro. Pari. Cas. 421; 17 Ves. 363; 1 Ver. 240.; 9 Mod. Rep. 362; 7 Cow. Rep. 50; 11 Ver. Rep. 549; 14 Johns. Rep. 330; 21 Wend Rep. 628; Shep. Touch. 396 ; 9 Watts’ Rep. 106; 7 Ohio Rep. (part 1st) 275 ; 2 Ohio Rep. 339; 9 Ohio Rep. 98; 4 Kent’s Com. 473, note ; Gilb. Ten. 67, 68.
   Birchard, C. J.

The first question in order which is presented upon this record goes to the sufficiency of the declaration and is this, can a grantee of the reversion maintain an action of covenant in his own name against a lessee, upon an express covenant contained in the lease for the payment of rent ? If this question is answered in the negative the necessity of any further inquiry will be superseded. That one point, if against the plaintiffs, is decisive of the merits of the case.

At common law choses in action were not assignable, and none kut Pities or privies to express covenants were bound by or could take advantage of them. The rule seems to have been well settled in England, and to avoid its effect and enable the assignee of the reversion to maintain an action in his own name upon the express real covenants, those running with the land, the statute, 32 Hen. 8, Ch. 34, was enacted. Prior to that time grantees of reversions were regarded in the light of strangers. After its passage, in virtue of the act itself, the assignee of the reversion could maintain his action upon the express real covenants. It enabled the lessor and reversioner successively to transfer from one to the other the privity of contract. Platt on Cov. 527 to 533.

But it is claimed that this statute has become incorporated into the law of Ohio, not as a statute law, or by virtue of legislative jurisdiction, but as a part of the common law, which has been adopted as a body or system of law into the American code generally. That it is a part of the system, being in aid of the common law and not repugnant to our institutions, which is as operative in this State as in the English Courts.

It is not known to any one of us that this precise question was ever before presented for the consideration of this Court.

In 1793 a statute was adopted from Virginia, declaring'** that the common law of England and all statutes made in aid of the common law prior to the fourth year of James 1st which were a of a general nature, should be a rule of decision until repealed, within the territory.” 1 Chase, 190.

By the 2d section of the act passed Feb. 22,1805, the above law was repealed, and by the first section of the same act it was re-enacted. (1 Chase, 512.) And again it was repealed January 2, 1806. (Chap. 122, 1 Chase, 528.) Since that date we can discover no legislation upon the subject. The adoption of the law from Virginia and the two enactments of 1805 and 1806 by implication, necessarily show that the British statutes never had any force in Ohio save ■ that derived from their adoption by the Legislature. In all cases where the British statutes contravene or change the common law and are not so incorporated into it as to have become part and parcel of system, it is supposed they have no force within this State dependent of Legislative enactments adopting them.

It was so held in 7 O. R. 276, in reference to the English statute of uses. 27 Hen. 8, Chap. 10. In Scott v. Lant’s administrator, the force of the Statute of Henry 8, Ch. 34, was placed upon the ground of its adoption by the Virginia Legislature. 7 Pet. Rep. 606.

But it is said that this Court has impliedly recognized for one purpose the operative force of the statute 3% Henry 8. The case referred to as evidencing this recognition, is Fulton & Kirker v. Stuart, 2 O. R. 215. That was a suit by the lessor against the assignee of a part of the demised premises, and it was held that the lessor could not maintain covenant against him. He was a mere under lessee. We admit that enough is said in that case to show that if there had been an assignment of the entire leasehold interest, the action would have been sustained. Not, however, solely in virtue of the statute of Henry 8th, but upon the principles of the common law, wholly independent and without the aid of that statute. The covenant when it ran with the land so as to charge the grantee’s or lessee’s assignee, possessed that' property under the rules of the common law, long anterior to that statute. Platt, 541.

Many cases are to be found, in the older books of reports, regarding the liabilities of the assignees of demised premises on covenants running with the land. They were uniformly held liable at common- law on account of the privity of estate between the contending parties. In some cases the assignee of the lessee is bound where the word assigns is not mentioned in the lease. In others his liability accrues solely in consequence of assigns being included in the covenant.” Spencer’s case, 5 Coke, 16 ; Platt on Cov. 465, and the cases there cited. The covenant to pay rent is of the first, class, in which the assignee is said to be bound though not named. Stevenson v. Lamberd, 2 East. 575; Porter v. Swetnam, Sty. 406; Parker v. Webb, 3d Salk, 5.

There is nothing, then, in the inference drawn from the case of Fulton & Kirker v. Stewart, because the supposed fact upon which that inference is based does not exist. The statute of Henry 8 was not recognized even by implication in that case, as operative to any extent. There was nothing in the case to call the attention of the Court to the subject. Nothing upon which any question growing out of the act could be raised.

Judgment affirmed.