author: Hitchcock, J.'

text:
    In Bank.
    Dec. Term, 1846.
    Eli W. Gwynne vs. Christopher Niswanger.
    in the Virginia Military District, where lands are entered upon the duplicate for taxation before the patent has issued, and are sold for the nonpayment.of the tax, the purchaser takes the entire interest of the former owner; and if such owner subsequently receives a patent, he will be treated as a trustee for the purchaser at the tax sale, and be compelled to convey the legal title to such purchaser; provided the proceedings are regular, and in conformity with the law.
    This Case comes into the Supreme Court, by appeal, and was reserved in the County of Madison.
    It is a suit in Chancery, depending upon bill and demurrer. The case was presented to the Court of Common Pleas of Madison connty, at the September term, 1845. That Court overruled the demurrer, and entered a decree for the complainant. From this decree the defendant appealed to this Court.
    The bill states that, on or about the 22d day of June, 1810, David Ross, as assignee, in trust for himself and others, entered survey No. 6780, of 640 acres, in the Virginia Military District; that it was surveyed in April, 1816, and lies in Madison county; that on or about the first day of August, 1828, the Auditor of Madison county prepared, in due form, a list of lands in" said county, on which the tax was due and unpaid, with the years for which the same appeared to be due and unpaid, prior to 1820, as required by, and in pursuance of the third section of the act, entitled “an act for the remission of penalties and for the sale of land for taxes,” passed January 29th, 1827, upon which list the above survey was duly charged; that said list was duly sent by said County Auditor to the Auditor of State; that the Auditor of State received it, compared it with the duplicates and other documents in his office, and transmitted duly to the Auditor of Madison county a correct listj duly certified under his official seal, of all lands in said county on which the damages, interest and penalty were due and unpaid, as directed and required, and in manner pointed out ■ by the fourth section of said act, and on said list 'the above, tract was duly listed ; that on this list the above tract was charged with the damages, taxes and interest, which were due and unpaid, prior to 1820, to wit, from the. year 1811 to the commencement of the year 1820, and also the taxesj interest and penalties which accrued on said tract, from the commencement of the, year 1820 to the. year 1828, amounting, in all,' to $278.99.1, which were not' paid, &c.; that the Auditor of Madison county, having' neglected to sell said lands on the second Monday of December, . 1828, as required b.y said law, did, on the 175th of October,-1829,'cause these.and other lands, to be advertised for sale; on the second Monday of December, 1829, in pursuance of an act; supplementary to the -abo've named act, passed February 11th, 1829; that, at such sale,'the above tract was sold to Lyne Starling, who subsequently conveyed to complainant, in 1832, by deed of-quit claith; that Niswanger, as assignee of the heirs of Ross, obtained a patent for said survey, in 1838, brought an action of ejectment, arid recovered by a decision of this Court, in December,'1844; that Niswanger .is about to sue out á writ, of possession, &c.,and prays an injunction; a decree that he convey to the complainant, and for general relief. •' - '
    To this bill the respondent demurs generally.

      J. W. Andrews, for .Complainant.

      Gilbert fy Baldwin, for Defendant.
    No arguments were furnished’to the Reporter.-
   Hitchcock, J.'

Two questions- are presented, iii this case, for the consideration of the Court; first, whether, a Court of Equity, acting within i.ts ordinary powers, can compel the legal owner of land, to bonvey the same to a'purchaser', a't tax sale, the owner; at the time of .the sale, having no other than an' equitable interest, but,haying, subsequent to the' sálej acquiréd' the legal title; and- second, -if the Court has-such power, is the case made in the complainant’s bill such as to justify the exercise'of it? .

Here it may be proper to remark, that questions of this nature can scarcely arise, except where, at 'the time of sale', legal title is, as it whs in this case, in the United States. Where, at the time of sale, the legal title is in an individual, that title passés; and it, is not. material that ¿he land was ' taxed in the Wrong name, or even as belonging to unknown owners. In such case, the .proceeding being regular, the title passes; and there is nothing unjust in this. It is' the duty of the.- owner of land to see that it is properly listed, and it is, also His duty to pay the taxes. If he'neglect this duty, the State cannot'be deprived of its lien .upon the land, nor can the'purchaser at the’ tax sale bé deprived of his right by a mistake on the part of the officers of,the government, as to the namé-of the person, to whom the tax is charged. But where’ the legal title is in the United States, it'has. been held that such, title does not pass. It was-so decided in the case of. Stuart’s Lessee v. Parrish, 6 Ohio Rep. 204; and in the case of Niswanger v. Gwynne, 13 Ohio Rep. 79;

Counsel for defendant insist, that the title acquired by a-tax-purchaser impurely legal; .and unless a-legal 'title is-acquired by ' the 'purchase,-nothing is.-acquiredl 'I am aware that it is generally understood - that the.-interest acquired by purchasers’,- ,at: sheriffs’ as well aslax sales, is purely legal,-.and that such' purf ; chasers cannot be-aided-by a Court of Chancery. But if'there • is' áriy -thing in -qur 'peculiar .system...which requires of us. -to adopt'a different rule, we . ought'not t'o'hesitate in adopting it;.''■ All lands in the State' are subject to taxation as a general rule, except such as’áre owned by the United States; and the lands, the legal title to which is in the’United States, may be taxed5 when they become in equity the property Of, individuals. • Lands -.commonly called: .Congress.1 lands, ‘could n-dt.'.bq.-’táxed' until- five 'years .after; they- had been, sold ';• but'’.wheff.súeh,Íahd¡s'.' were’sold on credit, the "State- wa's/not-bound.''to''wait five years.'from' the tinie the patent- .issued,-but .only.five' years' ffomy'the' time the lands were appropriated by entry in the register’s office. The title to the lands in the Virginia Military District was in the United States, but were held in trust for those for whose benefit they were appropriated. These lands have always been held to be subject to taxation from, the time of their appropriation, by entry. The right thus to tax them has never been questioned by the United States. They have been taxed and sold under such circumstances, but upon ;the hypothesis of defendant’s counsel the purchaser acquires nothing. This Court, however, has held otherwise. In the case of Stuart v. Parrish, the Court do not say, it is true, in express words, that the purchaser acquires an equitable title, but they do say that he acquires nothing more than an equity. But in the case of Wallace v. Seymour Renick, 7 Ohio Rep. 156, it is expressly decided, that by a sale of land for taxes in the Virginia Military District, surveyed but not patented, the whole interest passes to the purchaser, and no right remains in the original holder. We believe this to be a sound principle; one which it is necessary to sustain and carry out. And we have no doubt that, under such circumstances, upon proof being made 'at the proper department, a patent would be issued to the tax purchaser. It ought to be done, and,we believe it would be done. In the Same case, the Court further decide, that if such former holder, to defeat the sale for taxes, is permitted to withdraw tlie entry'and survey, and make a new one, upon which he obtains a patent, although such patent is not void, yet the patentee holds the title subject to the rights that may have been acquired by the purchaser for taxes.

To apply this principle to the case under consideration. The land in controversy had been entered in 1811, and surveyed in 1816, in the name of David Ross, in trust for himself and others. It was entered upon the duplicate for taxation, in the year 1811, by a pertinent description; but the taxes were not paid. In December, 1829, the taxes having remained unpaid for eighteen years, the land Was sold. If this sale was regular, then all the interest of Ross, the former holder, was vested in Starling the purchaser; and if, after the sale, a patent had been issued to Ross, he would have taken it subject to the rights of Starling, in trust for him. Niswanger having obtained an assignment from Ross after the sale, and having taken out a patent in his own name, takes the naked legal title in trust for the purchaser at tax sale. He stands in a similar relation to the purchaser for taxes, as does the patentee under a prior entry to him who has the older entry and survey. He is a there trustee, and a court of equity may, with propriety, compel him as a trustee to convey to the cestui que trust. It was upon this principle that the Court, in the case of Niswanger v. Gwynne, decided that the remedy of the defendant 'Gwynne, if the proceedings in the tax sale Were regular, was in Chancery.

The next question is, whether the case made in the bill is such as to show that the proceedings at the tax sale were regular. We have carefully compared the statements in the bill with the requisitions of the statute, and have no'hesitation in saying, that if the statements of the bill are true, and they are admitted by the.demurrer, the complainant is entitled to relief, The demurrer is, therefore, overruled. But if the defendant would contest the facts stated, he can have leave to answer,


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    In Bank.
    Dec. Term, 1846.
    Silas Hyatt vs. Lewis Robinson and others.
    In an action of debt uppn a specially, where the deed is merely inducement to the action,-while its foundation depends upon other-extrinsic matters of fact, nil debit is a good plea.
    It is .a good defence to an action upon a 11 prison bounds bond/' that an order was made by the Court or Judge for the issuing of the ca. sa., that the order was ' made without preliminary proof, or that the ca. sa, has been quashed for irregularity. ■. f ...
    it is no defence in such case, that the penalty of the bond is more or less than re-» quired by the statute, that the order for jssuing the ca. sa. is not recited in, nor indorsed upon the writ, nor that the facts upon which the order was made, are-not-true. ■ . . •
    Thi§ case comes before this Court by appeal from-the'Court-of- Commou' Pleas of Muskíngum County. .
    ’. The declaration-.is in Debt, upon a “prison bounds bond.” "It sets forth the condition;- avers that-defendants, Aaron Robr inson'and".Isaac Robinson, were the .sureties of the defehdanf,•• Lewis Robinson; that they, were, át - .the timé of its execution,' residents of Muskingum county, and wore'duly- approved as - such sureties, by.two of- the. Judges'.of the properCourt; and-assigns'for breach,-that Lewis-Robinson, the principal in the '' bond,-.went'beyond the'limits, &e. ' • ■
    ■ To-this declaration, the defendants, Aaron and Isaac-Robiri;son> pleaded jointly the following pleas: ■ • "
    -'i./ Nil debit;
    ,- 2.--' Noii est factum.'
    " 8;- :That'the supposed 'writing,"called .ay“1.pnsbhy''bdunds-bond,”, was taken for a sum less than' double the' sum'for which the-sáid Lewis stood committed, &e., and is therefore void, &c.
    4.' That the said supposed writing was taken for more than double the sum for which the said Lewis stood committed, and is-therefore-void, . ' .

    .. 5.' -That'nd; order'was'made by the 'Court, or'any \Judge, upon the'affidavit-of the plaintiff 'or his attorney,' ánd óther' testimony, authorizing the issiie .of 'ca.-srí; but--the-'writ was. issued without any. such order, .and without- the Court or. any Judge being satisfied-'by -such affidavit and other testimony .therewith presented, of the existence of any of the • or .causes of arrest .enumerated in the statute, ahd that, .thérefore, the ca. sa-.,- and also the .bond‘predicated,- théreqn, are void, &c. , . :. ■
    6; ‘ That the ca, sa. did no.t recite'or set forth, arty order ■ made by the Court' or any Judge, upon affidavit .and other testimony, authorizing' the' issuing 'of such writ.. '
    • 7. .That the said Lewis was unlawfully-imprisoned , by .the ' plaintiff,, and detained by the force and duress'.of.-the imprisonmenf;-the said Léwis and the said Aaron and. Isaac,, as his .. sureties/ made, and delivered the said writings,' AN '. . ■ '
    ;; 8.' That the ca. sá. was issued under an order made by the .Court, solely upon the affidavit of the plaintiff alone, and with-'but'.any other testimony presented by him or his attorney, to ^satisfy; thé 'Court 'of the 'eiistepce' of' any of the , enumerated grounds of arrest'. ' '• }'
    9.' . That there was noheoord of .any such judgment' as that recited in the ca. sa. ■■ ' • ';. : "•'•?.
    ■ TO., That the cá. sá. was issued under, a supposed order of the Court'allowing the same, upon the affidavit of the .plaintiff that the said Léwis was about to remove - his body out of the. jurisdiction, of thé Court, and without any other cause or ground alledged" for-such writ; and aVers-that the said Lewis was not,.’. in fact, about to -remove his body out of .the jurisdiction of the Court,' ’
    Lewis'Robinson, the principal in the bond, plead.separately:
    1. Nil debit;
    S. Non est factum.
    '3, Duress.-
    ,. 4. That-the ca.'sa. was issuéd under-a. supposed order, &c., being similar to the 10th - joint plea of the other two defendahts. . ■ ; •
    After the case came into -this Court,, all the defendants jointly filed, an' additional plea, setting, forth that the ca. sa.'has, since the appeal in this case, been set aside, .rescinded and vacated by an order of the Supreme Court, duly made in the premises, which is still in full force and unre'versed.
    Upon the second pleas, both joint and separate, the plaintiff joined issue, and replied to the ninth joint plea. As to all the other pleas, both joint and separate, he demurs generally, and the defendants join in demurrer.

      George James, for Plaintiff.
    The plea of nil debit, is not good, the declaration being on a specialty; 1 Chit. Plea. 351. “To debt on a bastardy bond, the plea of nil debit, is bad on general demurrer Trimble and others v-. The State, 4 Blackf. Rep. 435; None v. Kidwell, Ibid. 554. “ Nil debit not a good plea to debt on bond setting forth the condition and breachJanson v. Os-trader, 1 Cowen’s Rep. 676. Whether the bond is for too much or too little, is not a defence to a suit thereon. 44 An ap4 peal bond in less than double the amount of the judgment 4 appealed from, is not void, but goodBank of Columbus v. Bartlett, Wright’s Rep. -741; S. P. 5 How. Miss. Rep. 407. 44 A forthcoming bond taken for more than the sum due on the execution, does not vitiate itScott v. Hornsby, 1 Call, 41, 45; Bell Of Harrison v. Marr, Ibid. 47; Wilkinson v. McLocklin and others, Ibid. 49. 44 Though a bond for the 4 jail limits be taken for less than double the sum for which the 4 prisoner is committed, and so not within the statute, it is 4 a. good bondClap v. Cofran, 7 Mass. Rep. 98;  Same point, Freeman v. Davis and others, Ibid. 200; * Same point, Burroughs v. Lowder and others, 8 Mass. Rep. 372; * Vide Gano v. Slaughter, Hardin’s Rep. 76. 44 A replevin bond taken for too much, does not avoid itNicholson v. Howsley, Littell’s Select Cases, 300.

      As to the plea of duress of Lewis Robinson, the principal: This is a joint action on a joint and several bond against principal and securities. So it follows that a plea or defence, whether “joint or several,” must be an answer to the entire “ cause of action;” and though a plea might be good for the principal, yet,not for the securities: it is therefore bad; Farrington v. Galloway and others, 10 Ohio Rep. 543; Slipher v. Fisher and others, 11 Ohio Rep. 299.
    Duress of principal, is not a defence for the sureties. “ A * surety is liable on an agreement made by him to relieve his ‘ principal from duress;” Story on Contracts, p. 60, secs. 93, 94, 95. “ Duress is no discharge to a surety against whom it has not been practiced ;” 1 Esp. N. P. pt. 2, p. 5.
    “ When a mother executes a bond to procure the enlarge- ‘ ment of her son, who was in duress, such.duress is not plead- ‘ able in bar or discharge of the,bond;” Sims v. Barefoot, 2 Hayward’s Rep. 402.
    “ At common law, a prison bounds bond, executed by sureties whilst principal is under duress, is valid as to them; Jones v. Turner, 5 Littell’s Rep. 147. I respectfully solicit the attention of the Court to this case, as it is directly in point, and decides this case, even in the strongest view the defendants can ask it shall be viewed; as in the case referred to, there was no legal execution in the hands of the sheriff when he took the bond reciting it, which the defendants claim to have been the case here.
    “ If A and B enter into a bond, by reason of duress, to A, ‘ B cannot avoid this obligation by reason of such duress.” 2 Ba. Ab. tit. Duress B. 403; 1 Shep. Tou. 62; Huscomb v. Standing, Cro. Jac. 178; Peirce v. Mclntire, 2 Dane’s Ab. 224, sec. 5.
    “ At common law it cannot be controverted, that if a bond ‘ be obtained from A and B, by duress against A, B cannot £ plead duress of A to invalidate the bond as against him.” Thompson v. Lockwood, 15 Johns. Rep. 259. This and the case in 5 Littell were cases on prison bounds bonds, where the arrest-was illegal; and in those'cases the,bonds were avoided by statutes against ease and1 favor in those ■ States." We have no such’statute, and. the case before the Court depends on common law .principles. ■' • . ' . \ .

    “Defects in judicial' process of proceedings, toan only be .‘ taken advantage of by those'who are injured thereby.” Jackson vr Bartlett, 8 Johns. Rép. 361. '
    .‘■‘On-,a recognizance of bail, the sureties cannot set up the ‘ bankruptcy . and discharge of their-principal as., a defence.” Donnelly v. Dun, '52 B. and P.' 45. ' ;
    “ In .an action of debt on a recognizance of bail, the sureties ‘ cannot set 'up as a defence that thé ca. sa. was improperly ‘ issued.’,’ Gillespie v.. White, 16 Johns. Rep. 117.
    “ In an action oh, a -constable’s bond, his sureties cannot set .7 ■ . ■ ' ■ ’'.'.I ‘ up as.a defence,, that .the execution on' which he-received the ‘ money was'void;” .-' Landón -V. Erwin, 9 Werid, Rep. 237.-
    ■ ;A surety 'cannot take advantage of .the duress of the principal. Gummond -v.' The People, I Hill 346. •
    ■ y In an action of -debt on- a .replevin bond■ against"a surety j •‘' he' cannot set up as a defence, that th'e goods replevied Were- ‘ the plaintiff’s on replevin, and were attached as such by de-- ‘ fendant, who was ;sheriff, on.-mteshe' process'against the plain- ‘ .tiff in replevin;” Flagg v, Tyler, 3 Mass;, Rep. 3Ó2.
    “ A-debtor.arrested by a sheriff on a ca. sa., and permitted ‘ to escape, is again arrested,, and .to. obtain his discharge-gives ,‘a prison bounds bond; bond good.” Brown w Gitchel, 11 Mass Rep.' 11. -'
    If I am- right in the position I have taken; that thé duress of thé'principal is no defence to this* action, it follows, as a corollary, that all ,the other pleas of securities to which I have demurred aré defective', and are not a defence to- this áction; for these pleas, all presuppose,' that -by -reason' of • matters and, things therein contained, the writ on which'L* Robinson was' arrested was .^regular and void; consequently the arrest was illegal, which' illegal arrest constitutes the- duress pleaded.' Now, if the duress, which was the legal consequence of those matters and things set forth in the pleas, is not a defence, it follows, I say, that the pleas themselves are not a defence, or if the duress is not a defence, that which constitutes the duress cannot ' be. The parts cannot be greater than the whole; and proof that the writ on which the arrest was made was void on its face, would not sustain the plea of duress.
    As to the joint plea of all the defendants, it is contended that the recital of the writ in the condition of the bond estops the defendants from denying the validity of the Writ. If the writ was void, it Was not a writ; but the condition admits the issuing of the writ, which presupposes it was a valid writ.
    “ The recital of an execution in a prison bounds bond, pre- ‘ eludes the party from denying there was such execution; so ‘ the recital in such bond, that A B was jailor, estops the party ‘ from denying he was jailor.” 2 Littell’s Rep. 211.
    The defendants in an injunction bond, reciting an injunction, are estopped from denying the validity of the injunction, though it was void, or the authority of those who ordered or issued it. Ibid. 310. •
    “ In an action on a prison' bounds bond, reciting that the ‘ party ‘ was charged in execution,’ he is estopped from denying ‘ that fact, although that he should have been thus charged was ‘ essential, when in fact he was not so charged.” Jones et al. v. Pruvit et al., 3 Marshal’s Rep. 303.
    “ In a suit on a forthcoming bond, for the delivery of goods, ‘ the obligors are estopped/ from denying any admissions made ‘ in the recital of the bond or controverting their existence; ‘ therefore, the production of the execution recited is unneces- ‘ sary, the recitals in the condition being conclusive.” Crisman et al. v. Mathews, 1 Scam. 111. Rep. 151.
    “ In an action on a replevin bond, the defendants are estop- ‘ ped from denying the constitutionality of the law under which ‘ the bond was executed.” Magruder v. Marshall, 1 Blackf. Rep. 333 ; Weaver et al. v. Field et al., Ibid. 334.
    “ In an action of debt on a bastardy bond, the defendants ‘ are estopped from denying the facts set forth in the recital of .« the condition of the bond.” Trimble v. State, 4 Bláckf. 435.
    “ it was stated in the condition’ óf an attachment bond, that « an attachment had issued, and the condition was' set out in .« declaration. ' Held,, on-general demurrer/that a-plea denying « the attachment had issued was inadmissible.” • Love v. Kid-well et al, Ibid;. 553. • • •
    -.“Where an execution issued, against'an individual against- « whom there was no judgment, and who was not a .party to the •«. original suit,.'but- who gave a replevin bond reciting the execu- •« tion -held he was-bound-by the recital.”' "Hudson v,Morris, - íl.Wááh. Rep. 70.;'■ . .
    ■ "'“'On a motion on a forthcoming bon'd, the defendant;,is not ‘« fallowed to prove that the execution and judgment Was against -«¿another' person of thp same name with him and not' against ■« ihimselfV”. Dowman et al. v. Dowman et al., 2 Call’s Rep. 507.'
    , -“'The defendant is estopped by recitals in bis' deed.” Shelly v. Wright, Wille’s Rep. 9. . ’ .. : v ■
    “«Estopped by recitals in the .execution Of a bond.?? Hever v. Searle, 2.B. and.Pul. 299.. . , * . ■ '
    . “In a suit upon a .writ of error bond, reciting that the dé- « fendarits' had obtained writ'of error' arid supersedeas., they are «estopped from -denying'..'-. these ..facts.?’-;' Reynolds et al., v-.- • .¡Rogers,. 5 fOhio R-ep.'.178, per Cur.: ,
    • . “ Where a prison -bounds bond .states the-amount of. execu- «' tion for-which, a patty was in custody, it is. conclusive of that «. fact,'and the amount cannot be denied.”. Talmadge et at. v. Richmond, 9 Johns..R.ep. 86. a • • " .-
    .'-“ In an action on á bastardy-bond,.the party is estopped by ■« the-bond from alledging that the place of settlement was any « other than that'set out in the bond.” . ■ Falls-et al. v. Belknap, 1- Johns. Rep. 486. ' ■ '
    «‘.Th<e.recital of a ca. sa. in a prison bounds bond, is a suffi- « eient proof of it in -an action ori the bond — the writ need « not be produced.” ;. Ransom v. Keyes, 9 Coweri’s Rep. 128. If the recital of the writ.be conclusive of its. legál existence, .such writ cannot be denied ás a matter of fact' of of law. 44 The defendant’s bond reciting an acquittal, estops him from 4 denying it, by the common law, and the estoppel may be set 4 up by demurrer.” Gumond v. The People, 1 Hill’s 346.
    44 Upon a scire facias against bail, they cannot deny the arrest 4 of their principal. They are estopped by the recital of the 4 arrest. In a suit on a bail bond admitting or reciting the ar4 rest of the principal, the securities would not be permitted to 4 deny that fact.” Bean v. Parker et al., 17 Mass. Rep. 591, 600.
    44 Obligors to an administrator’s bond are estopped by the 4 recital in the bond to deny the appointment of an administra4 tor.” Cutler v. Dickerson, 3 Pick. 386. -
    44 Without multiplying authorities on a point rendered clear 4 by numéroüs cases, it is sufficient to state, that a party -to a 4 deed is estopped, not only from disputing the deed itself, but 4 every fact it recites.” Slow v. Wyse, 7 Conn. Rep. 220.
    44 A party to a deed, who, thereby, admits himself a princi4 pal, is estopped from denying that fact. The doctrine of estoppel is founded on reason and justice, and is abundantly 4 sustained by authority.” Bank of .Mount Pleasant v. Sprigg, ■ 1 McLean’s Rep. 182; Same case, 10 'Peters’ Rep. 257.
    44 A recital of a previous lease, in a deed of marriage settle-4 ment, is conclusive evidence, between the parties, of the exist-4 ence of such lease, and supersedes the necessity of introdu4 cing any other evidence to establish it.” -Carver v. Jackson et al., 4-Peters’ Rep. 83. ■ • ■
    Where the matter of' estoppel appears by the pleadings, as it does in this case by the declaration in which the bond and condition are set out, such estoppel may be taken advantage of by demurrer — as to plead that anew which already appears, would be useless. Most of the cases to which I have referred, were on demurrer. See 1 Chit. Plead.; Salk. 370; 2 Littell’s Rep. 310; Pirtle’s Digest, 370.
    Even, as to Lewis Robinson, the defence here set up cannot be sustained, it is conceded, unless the sheriff \yho executed the writ was a trespasser at that time. Could an action of f.regpass have ]3een sustained by Lewis Robinson against the for arresting him on the writ set forth in the bond ? The writ, on its face, showed it to have been issued by a court of competent jurisdiction over the person and subject matter, (this is shown by the pleadings,) and was, therefore, when executed, when the bond was taken and when this suit was brought, a justification to the officer. A sheriff is certainly not responsible for the errors which a superior court may decide an inferior has committed. In this case, the writ was not quashed, and the order of the court directing it to issue, not reversed, until after this case was appealed by defendants. Suppose a writ, regular on its face, issue on a judgment, afterwards decided to be void or erroneous, or even without any judgment, it is certainly the duty of the officer to execute that writ, and it will be a justification to him of liis proceedings under it. The subsequent reversal of the judgment, or the quashing of the writ, will not make him a trespasser by relation. If the writ in this case, when it was executed, was a justification to the sheriff, as we say it was, there was, then, no trespass committed by ■him, consequently no duress. The subsequent reversal of the order directing it to issue, and quashing the writ, could not render that a trespass which was not so when done, nor could it affect the bond, or heal the breach of the condition thereof, which had been made and sued for before such reversal or quashing. For these reasons, also, the last and joint plea is bad, independent of the doctrine of duress and estoppel, for which I have contended.
    Our statute in relation to imprisonment for debt is similar to, if nót a transcript of the New York statute; and there it has been decided, “ That an order to hold to bail need not be indorsed on the writ; it is sufficient that it exist;” Carter v. Drake, 10 Wend. The writ, then, on its face was good. It recited the order of court. If so, the officer was not a trespasser.

      “ Trespass will not lie against an officer for executing process regular on its face.” Luddington v. Peck, 2 Conn. Rep. 700. ,
    “ It is the duty of an officer to execute all process in his ‘ hands, which appear, on their face, to have been issued by c competent authority and with regularity.”, Watson v. Watson, 9 Conn. Rep. 140.
    “ A ministerial officer is protected in the execution of pro-4 cess from a court of limited or general jurisdiction, although ¿ such court has not, in fact, jurisdiction in"the case, provided 4 such process, on its face, shows the court had jurisdiction of * the subject matter, and the officer was not apprized to the * contrary.” Savascool v. Boughton, 5. Wend. Rep. 170.
    “ It is the duty of a sheriff to levy an execution regular on’ its face.” Parmelee v. Hitchcock, 12 Wend. 96.
    “ A ministerial officer, who executes the process of a court 4 having jurisdiction of the subject matter and the power to is-4 sue process, is protected in the execution thereof, if thq pro- * cess be regular on its face and, apparently, within the juris4 diction of the court.” Parker v. Walrod, 16 Wend. Rep. 514.
    Erroneous process is a justification to a sheriff for imprisoning the defendant under it — for a sheriff is not the judge of the legality of it. Jaques v. Cesar, ,2 Saund. 101, y. n. 2; Pickard v. Bills &/ Knap, Wright’s R,ep. 344.
    “In trespass against a constable, irregular process from,a 4 court having jurisdiction of the person and subject is a justi1 fication, although the preliminary steps to the process (the 4 affidavit,) are irregular. Taylor v. Alexander et al., 6 Ohio Rep. 147,— per Cur.
    “ An attachment issued without an affidavit, is a justification to the constable who executes it.” Bogan v. Stoutenbaugh, 7 Ohio Rep. 134, pt. II.
    These cases show that the sheriff was not guilty of trespass when he arrested Lewis Robinson. If he were guilty, the Court who ordered the writ, and the clerk who issued it, were equally guilty; and if the jurisdiction protected the court, it will, also, ^,ose who act under its authority. The writ, on its face, showed the order of court and the affidavit on which the order was made.
    “ As long as an execution founded on a judgment exist, it 1 protects those who act under it ;■ and if the execution be set ‘ aside for irregularity, no action will lie against the officer who c acted under it during its existence. The setting aside the ‘ execution and judgment, does not make the officer a tres-, ‘ passer by relation.” Ives v. Lucas et al., 1 Car. & Payne, 7 Eng. Com. Law Rep. 298, vol. 11.

      “ Before an act can be a trespass ab initio, or by relation, the act making it such, must be a trespass.” Waterly v. Lockwood, 4 Day’s Rep. 257.
    The Court will observe, that this case differs from those in which the bond is, in its terms and conditions, in violation of or against some statute or principle of law — therefore void. Here, the bond and its terms, condition and form of execution are all agreeably and in conformity to the statute, and the defence is founded on matter dehors the bond entirely. This defence being entirely technical, and upon the strict principles of law, has been met with such principles.
    As to merits, the defendants certainly have none. The defendant, Lewis Robinson, was arrested to obtain payment of a debt and judgment justly due by him; when, instead of paying it, as we say he was able to do, and to prevent which, he and his brothers, in point of fact, voluntarily-enter into this bond, the terms of which were willfully violated. They had all the benefit of the bond, after obtaining which, they seek to avoid it by complaining of the arrest as illegal. If it was illegal, why ratify and confirm it by giving the bond, when the most speedy and certain remedy of habeas corpus was open to them. The defence made to this bond, I therefore say, cannot be sustained, either upon .the principles of law or justice; and we ask judgment thereon for the amount of debt, interest and costs of the original judgment.

      C.''C. Converse,,for. Defendants. .
    First:- . That nil debit is a good pled in an action of debt on prison bounds bond — the 'right, of action not arising directly',' out of the ' bond, but springing' frond ;the escape of. the debtor- ■ charged in execution;is shown .by the following authorities:. . Minton v. 'Woodworth, and Ferris, 11- Johns; Rep.- 475; which'.is á decision upon the .precise, point.. The 'case. oí..Lambooñ'. v. Bowen,'Tappan’s Rep. 290,' shows; that the same rule ,ob-' tains in thé practice of Ohio'.. . See; also, 10 Maine.Rep.'470, ' pér. Sprague, arguendo;
    Second: The bond must be -in -a sum; — neither more ñor less — but precisely, double,the sum for which .the party char- ■ ged in'..execution.stands corn mi tied. The .second, section of the' • “act regulating..prison bounds,” (Swan’s-Stat.'-735,).'de'cldre's" that the bond shall be in double^the sum for which the prisoner stands committed.”' The strict rigor with ■ which these "■ bonds, .which are the outer .walls of ,an enlarged prison, .'atéregarded bythis Court,.is shown by the caise of Lytle v.,Davis, .- 2 Ohio Rep. 277, which .holds. the bond-void, where'it recites .only that the debtor “ was arrested and in custody,” upon.exe- ' cuiio'n, and does not state; in the precise, language of the statute, that the- debtor, wás “ imprisoned.”' . ■ .
    .'" The cases from. Massachusetts Reports cited by plaintiff’s counsel .to sustain the bond, expressly declare thát-it is void as a statutory bond ;--but hold that it may be treated as a common law-instrument,.and presented in that aspect, sustain.a re.cove-' ry.' See, also, . Whitehead v. Varnúm, 14 -Pick.. 523. Now,' the' plaintiff does not sue as upon a common law instrument; ■ his declaration counts as 'upon a statutory bond, - and seeks a recovery upon it in that'character alone. - The demurrer, therefore, .as to. the third and fourth pleas.of the sureties, is riot well taken.. . • ' ■ '
    Third :■ The fifth and eighth joint -pleas of the two defendants,"Aaron and Isaac Robinson, depend upon the question whether a-ca. sa,, issued without a’compliance with the preliminary requisitions of the “ act to abolish imprisonment for debt/’ is void, or voidable only. If void, then the arrest and imprisonment of the other defendant, Lewis Robinson, the principal in the bond, was illegal, and the bond exacted from him and his sureties to obtain his discharge, was void — void as to him, by reason of the duress that extorted it; and if void as to him, void also as to his sureties, whose liability is not in chief, but incidental only to that of their principal.
    The first section of the ££ act to abolish imprisonment for debt,” is as follows: “ That no person shall be arrested, or ime prisoned, on any mesne, or final writ or process, issuing out £ of any court of law, or equity, in any suit, action or proceed- ‘ ing, instituted for the recovery of any debt due on any con- ‘ tract, promise or agreement, or for the recovery of damages £ foi; the nonperformance of any contract, promise or agree- £ ment, or for the recovery of damages in any action of tres- £ pass, or on any judgment or decree founded upon any such ‘ contract, promise or agreement, or damages for the nonper- ‘ formarme thereof, or on any judgment in (an) action of tresc pass, of for -consequential damages, except in casés here-, £ inafter specified.” Swan’s Stat. 646.
    The third section provides for the issuing of a capias ad respondendum' upon the affidavit of the creditor, his authorized agent, or attorney, charging the existence of any one or more! of the five causes of arrest therein enumerated.
    The fourth section provides, that “ on any judgment or de- £ cree, the court, when in session, or any judge thereof in va- £ cation,'may order a ca. sa. to be issued against the judg- £ ment debtor on the application of the judgment creditor, £ or his lawful .attorney, if such court or judge shall be sat-c isfied, by the affidavit of such applicant and such other £ testimony as he shall present, of the existence of either of £ the following particulars: ” And then follows an enumeration of the five causes of arrest, one or more of which must be charged in the affidavit of the judgment creditor, and established by .that and other testimony to the satisfaction of the court or judge, to warrant the order awarding the ca. sa.; Swan’s Stat. 641. The amendatory act of March 16, 1839, givés “ three additional causes of arrest to those mentioned in the act to which it is an amendment;” Swan’s Stat. 649. The legal effect of the two statutes, taken together, is now the same as if the three additional causes were inserted in the fourth and fifth sections of the original act.
    The ca. sa. upon which the defendant, Lewis Robinson, the principal, was arrested and imprisoned, and to procure whose enlargement the bond in. suit was given, was issued upon the affidavit of the plaintiff alone, without any other testimony. For this reason, it is contended that the bond is void, there being no such compliance with the statute as to authorize the issuing of a ca. sa.
    In the case of Griswold v. Sedgwick et al., 6 Cowen, 456, it is decided that if process, on the face of it; do not'authorize the arrest, then it is irregular and void, and can afford no justification to any of the parties concerned in the issuing, or execution of it. In such case, it is not necessary that the process should be set aside before an action can be sustained, nor is it material out of what jurisdiction it purports to have- been issued.
    The class of cases which frequently test writs, as to whether they be void, or only voidable, are actions against sheriffs or other officers, for escapes, or neglect to execute process. If the writ be voidable only, then the officer is not liable, as it is a protection to him until set aside; and, if afterwards set aside, cannot prejudice him for acts done under it, although otherwise as to the party suing it out.
    If, however, the writ be void, the officer is not bound to. execute it; for a vvrit void on its face is no protection to him, and he is liable, as a trespasser, for attempting to execute it. The case of Phelps v. Barton, 13 Wendell, 68, was an action against the sheriff, for an escape of one arrested, upon a ca. sa. The question in the case was, whether the writ was authorized by the non-imprisonment act of New York,
    (identical in its provisions with our present statute,) and the Court held that it was not, and that, therefore, the sheriff was not liable — the writ,' of course,'being held to be ¿bsolutély. v°l(l' : ?ee5 also) ex parte H,aynes, T8.Wendell; '611Brown■ HutcMnson¡!9 Johns.' Rep. ,75 ; .Grummon v. Raymond et al'., I'1 Conn. Rep. 40; Par melee' v. J-Rtchcock, 12 Wendell, 97; Earl v. Camp, -16 Ibid. 562; .Amfis v. Webber, 8 Ibid. 545 ;■ ’Vosebergh v. Welch,■ 11. Johns.' Rep. 175 - Curry V.Pringle, Ibid. 444; Luddington.v. Peck, 2.Conn, Rep. 700; Gold v. Bissell, 1 Wendell, 210; Rogers v!. Mullenor, '6 Ibid. 597; Savacóol v. Boughton; 5 Ibid. 170. ' . ■ ' ' .
    The case of Norton v. Danvers, 7 Dunf. &. East. 371, decide.d by the Court of King’s'Bench, is ah'adjudication, that .a writ■ issued against the prohibition of a statute is. absolutely void'.' , . '¡,- •- ' : , ' ,
    By,the statute of 37-Géo. ni., chap.'45, for restraining, for a limited time, payment of cash, by the Bank-of England, it is enacted that no'person Shall be holden to bail; unless the ■affidavit .made'for that -purpose, ’ ‘contain not only every thing" .required, by the act of Geo. f., chap. 29, but also state, , “thát ‘ no offer has be.en made to'pay the sum of money sWorn to, in ‘ notes, of. -the bank.”- A capias ad respondendum was issued against, .the defendant,' upon an affidavit,, riot containing the statement required, by this- statute. The defendant, however, .was -never arrested' under the writ •;■ but, upbn being informed 'that the writ'had been taken'out against, him, voluntarily gave.a bail bond. , Lord Kenyon,. C. J.: “ If the defendant had been. ‘ actually; under-arrest at. the time, his consent .to give a'bail ‘.bond would not have been binding on him,'because it might c be considered ás given Under duress; but- here, he voluntarily c gave the' bail' bond, and oii that ground only my opinion is.. •'c founded'.” •. • , , . - -' . •
    •' The case of. Aikins v. Richardson, 15 Verm. Rep. 500,. is a case, in principle, perfectly analogous .to the one'now. before the Court. It was, a s'cire facias against the defendant, as bail, for one Ithiel Richardson, bn two writs of attachment. The defendant pleaded that the original actions were founded on contracts, made and entered into, after the first day of January, 1839; and that the plaintiff did not, at the time of praying out his writs of attachment, fde with the authority issuing the writ, an affidavit stating that he had good reason to believe that the said Ithiel S. Richardson was about to abscond from the State, and had secreted about his person, or elsewhere, money or other property. Replication, that the plaintiff did file such affidavit, concluding to the country.
    On the trial, the plaintiff offered in evidence an affidavit, made by him, and filed with the justice who issued the writ — of which affidavit, the part relied on by the plaintiff as sustain] ing the issue, is as follows: “ That, in my belief, Ithiel S. ‘ Richardson, now in Chester, in said county of Windsor, rep- ‘ resented as late resident of Albany, in the State of New York, ‘ is about to leave this State; and that, from the best informa- ‘ tion I have, I verily believe he has money secreted about his ‘ person, and is also possessed of goods, wares and merchan- * dise, as of his own property,” &c. To the admission of this affidavit the defendant objected, and the same w'as rejected by the Court. There being 119 other testimony, the jury, by the direction of the Court, returned a verdict for defendant.
    After verdict, the plaintiff moved the Court to render judgment for him, non obstante veredicto; which motion was overruled, and judgment rendered by the Court for the defendant. To both rulings of the Court, the rejection of the affidavit, and the refusal to render judgment non obstante veredicto, the plaintiff excepted.
    But the ruling of the Court was sustained, and judgment again rendered for the defendant.
    In the case of Smith v. Scott, in error, in the Supreme Court for Athens county, at the November term, 1844, before Judges Wood and Birchard, it was decided that a' ca. sa. issued without affidavit, “ and other testimony,” was absolutely void. 2 West. Law Journal, 405.
    The fifth and eighth pleas of the sureties must, therefore, be sustained.

      Fourth: Assuming, then, that a writ, issued against the express prohibition of the statute, is void, it follows that the sixth plea, setting up that the ca. sa. did not recite or show any' order made by the court, or any Judge, upon affidavit and other testimony1 authorizing the issuing of the writ, must be sustained; for it is a general rule, that a writ of execution, to support itself, must show that state of things which authorizes its issuing. Hence, when a ca. sa. went out, as of course, all that it was necessary to recite in the writ, was the recovery of the judgment. That recital, however, was essential.' Without it, the writ was void on its face. Now, since something more than a judgment recovered is required before the writ can issue, it must show a compliance with all these additional requisitions, or it is void on its face. These prerequisites are now made, by law, just as essential to the validity of the writ as -the recovery of the judgment itself. The one can no more be dispensed with than the other.
    The case of Carter v. Drake, 10 Wend. Rep., 619, referred to by the. plaintiff’s counsel, has no application to the case now before the Court. It was not a writ issued under the statute. It was a capias ad respondendum — not final process; and the suit being an action on the case for seduction, there was an application, according to the English and New York practice, wholly independent of the non-imprisonment act, for an order to hold the defendant to bail on mesne process. That it was not an application, under the statute, is clear; for the statute does not require a Judge’s order to hold to bail, on a capias ad respondendum. It issues upon affidavit alone. But, even in that case, hear what the Court say.— Savage, C. J.: “ It is c usual and proper to indorse the order to hold to bail on the * capias, but it is not indispensable that it should be so indorsed. ‘ It may be in a separate paper, and provided the authority 1 exists, and is in possession of the officér or under his con-c irol, the defendant is properly held to bail, whether it be in-1 dorsed on the writ or not,”

      A writ- of capias ad satisfaciendum, therefore, not reciting the proper order founded upon the affidavit and other testimony, as required by the statute, being void, the sixth plea is- sustained.
    Fifth: The seventh plea of the sureties and the third plea of the principal, set up, that the principal was imprisoned by the plaintiff, until,, by the force and duress of imprisonment, he and his sureties made and delivered the writing set forth in the declaration.
    The duress of the principal, avoiding the bond, as to him, also avoids it as to his sureties, whose liability is not in chief, but incidental only, arising out of and dependent upon that of their principal. Without a liability of principal, there cannot, ex vi termini, be a liability of surety.
    We are aware there are contradictory decisions on this point, but the reason why it has ever been held, that the surety could not, under such circumstances, avail himself of the duress of his principal in discharge of the bond, was, that it imported a consideration, and he was estopped from averring a want of consideration. But, in Ohio, this reason no longer exists, and the defence may, therefore, well be made.
    And so, too, in the other States, the rigid rules of. the common law, on the subject of consideration, are giving way, and hence the recent and better American authorities permit the surety to set up the duress of the principal. The case of Fisher v. Shattuck et ah, 17 Pick. Rep. 252, is directly in point. It was an action of debt on a bond given by the defendants — ■ the one as principal, the other as surety — upon the complaint of the plaintiff, made under the bastardy act. The defendants pleaded: 1. Non est factum. 2. Duress of the principal; to which the plaintiff replied, and the defendants demurred generally. The demurrer to the replication raised the question, as to the sufficiency of the plea of duress. The counsel claimed, that the duress of the principal did not discharge the surety, and referred the Court to the case of Huscombe v. Standing, Croke Jac., and to Bacon’s Abrig., the same authorities relied upon by the. plaintiff’s counsel, in the case now before the Court.'• Shaw, C. J., delivering the opinion1 of the Court, says, (p. 253,) that, “ upon' consideration, the opinion ‘"of-the Court.is, that, the plea-of -duress is. a good bar for both' ‘ defendants.” And again, (p. 254,) “ The order requiring the ‘ party to give bond, was void; .the order 'to hold' the defend- ‘ ant in -custody until he gave bond, was erroneous and void, ‘ and, therefore, the bond was given under duress.”
    So,.also, thñ case 'of. Wldlefield' v: Longfellow et al.} 13 Maine. Rep. 146, was an action of-debt,- on a bond, executed 'by- Longfellow as' principal, -and th'e o.ther. defendants as sureties,-, .conditioned to. pay-the lying-in charges, &c., under the bastardy fact. The general issue was pleaded and joined, and a .brief, statement,,- (ia substitute, under-'.the statute of Maine, for a special plea,).-was filed, ■ alledging that the; bdnfl'was obtained froth Longfellow by.duress of..imprisonment and threats, of - the' same’. The Judge,, who tried the case, having - refused to instruct the jury, as asked for by the defendant,.and there being a verdict for the plaintiff, the defendant -excepted.. '.Weston,C.- J., says,’ (p. 150,) .that' if Longfellow■“ did- not execute the ‘ bond.in suit freely,' but, through' fear of unlawful imprison- ‘ merit, he acted under the influence of such moral compulsion ‘ as constitutes duress.” . The exceptions 'were sustained and a new trial awarded, that.the question,'-.whether,Longfellow did act freely.or<■ unfler fear-of unlawful imprisonment, might be distinctly presented to a jury, for determination.. ' ••
    • The,ca.se of Commonwealth v.'.Canada, 13 Pick.-Rep. 86, was a' scire facias against bail in a.recognizance, alle'dging a forfeiture, by-, reason of the avoidance.. óf the principal. .The recognizance having been illegally taken, was, by the Court, held void, and. judgment rendered for the defendant, the surety. ', ' , - ' . - • ■ . . '
    In the case of The United States v. Tingly, 5-Petér’s Rep. .115.,.the Supreme Court of the United States, where an official bond, variant from that .prescribed by lavy, was exported, by th.e Secretary of the-Navy, as,a condition of a purser’s'remaining' in-office, decided — 'Mr. Justice Story delivering the opinion of the Court — that the bond'was'illegal and void,'as to thé ties, as well as to the principal. '. _ - -'
    In the case of Cordis v. Sager et al., Í4 Maine- Rep. 475, it was declared by the Court, that the'defendants the sureties' as well'as-the principal — are not estopped' by the recitals in the .bond, if obtained by’duress of the principal. ’1 ’ ..- ■ ■
    The'case o?, Aiken- v. Ricliardson, 15 Vermont Rep. 500, already cited-'upon another point,. being an action against a; surety, is,, also, applicable to this branch of'the case. ■
    .In Thornhill v. Christmas, .10 Robinson’s La. Rep. 543,. it was decided, that .the surety in á bond,'itaken under a-.writ of" arrest, cannot bé made liadle, where'the Writ-was illegally-is» sued; ■, ,.
    ■ The cnse oi Thompson v. Lockwood, '15 Johns. Repl -256, • presents the direct question, as to the liability of- a surety upon a prison bounds bond, Which, by reason of the duress, of the . principal, is void as to him. In delivering,the opinion of the Court, Spencer’, 'J.,' after referring to the case, of Huscombe v. Standing, in- Croke James, (already mentioned' as the only English case relied upon'by the present plaintiff, sáys': "“As a ' ‘ general principle, it cannot be .controverted, that if a. bond be ’ ‘ obtained from' A and-B, by duress against A, B cannot plead £ the duress .against, A to invalidate-the bond; as against him.‘This, however, is applicable-to cases depending on common £ law principles, and where there is no statutory-provision inter- £ posed'. Sheriffs, can .take no bond, .or-other security,.'in £ matters relating to the- execution of their offices, but only to ‘ themselves, and- by the name of thfeir office, with such condi- ‘ tions as the law "prescribes; and.any obligation taken by a £ sheriff in other form, by color of his office, is declared void; £ 1- N. R. L. 423, 424. And the act relative to goal liberties, £ (1 N. R. L.. 427,) making it the duty of sheriffs to let pris- £ 'oners, ■ on civil process, go at large -within the limits of the ,-£ liberties, on giving security, is a mere modification and exten- • £ sion of the former act. Perhaps, as the bond here taken was-c jn the terms prescribed by the act, it cannot be said to be £ void, as' being taken colore officii. But the taking the bond c wag un]awfuj} an(l the condition itself was void, Lawrence £ could not remain a true and faithful prisoner, upon executions e on which the sheriff had no right or power to detain him. c The bond had no more validity than if the sheriff had taken £ it without any execution in his hands against Lawrence. A £ condition that a man shall not plow his land, or go out of his c house, being in restraint of a common right, is void; Bacon’s £ Abr. Oblig. E. 3. Conditions in restraint of trade have been £ adjudged, repeatedly, to be void; and, among other reasons, £. as against the public good, by depriving the party of his means c of livelihood. Bacon, tit. Bond, K.”
    But, that the obligors are not estopped, if the bond were obtained by duress, is clear. It was so held in the case of Cordis v. Sager, 14 Maine Rep. 477, already cited. The truth is, the doctrine of estoppel has its appropriate application only to deeds that are well executed. It has no application to deeds, the execution of which is illegal or void'; for to apply it to such cases would be to bind a party by a void act.
    At any rate, in so far as the recitals relate to the consideration upon which the bond is founded, the statute submitting the consideration to inquiry override's the rule, and rids us of this odious thing of estoppel, which, as shutting out the truth, is disfavored of law. In this State the artificial rule yields to legislative enactment.
    But, independent of statutory aid, it has been expressly decided, that a prison bounds bond, reciting a ca. sa. when the arrest was, in fact, under a fieri facias, shall not estop the obligor from showing the fact, as against the sheriff or his assignee, and thus avoiding the bond. Miller v. Bagwell, 3 McCord’s Rep. 429 ; see, also, 3 Cowen & Hill; 2, Phillips on Ev. 1237, notes.
    Again: This is a joint action against three defendants; the principal and two sureties. The plaintiff must fail, therefore, unless he show a joint liability. Now, that the duress of the principal defeats the action, as to him, is admitted. It shows that he never was liable, jointly, with his co-defendants. In Eliot v. Morgan et al., 7 Carr &. Payne, 334; 32 Eng. C. L. Rep. 530, which was assumpsit against three defendants, Coleridge, J., says: “ Although the defendant, W., has admitted, ‘ by his separate plea, the joint contract on the record, yet if the ‘ other defendants succeed in showing that they are not jointly ‘ liable, the plaintiff must fail as to all; and it is competent for ‘ the two defendants, under their plea of the general issue, to ‘ avail themselves of the defence, that too many defendants had { been joined in the action.” So, also, Mott v. Petrie, 15 Wend. Rep. 317; Wolcot v. Canfield, 3 Conn. Rep. 198.
    The demurrer, therefore, as to the seventh plea of the sureties, and the third plea of the principal, is not well taken.
    Sixth: As to the tenth plea of the sureties, and fourth plea of the principal, alledging that the ca. sa., issued under a supposed order of Court, allowing the same upon the affidavit of the plaintiff, that the principal was about to remove his body out of the jurisdiction of the Court, and without any other cause or ground alledged for such writ, and traversing the charge contained in the affidavit.
    What has already been said in relation to the nature of a ca. sa., issued without other testimony, is applicable to this plea, and shows the writ void.
    Seventh: The last plea — being the joint plea of all the defendants — sets up that the ca. sa. has, since the appeal of this cause to the Supreme Court, been set aside and quashed, and also that the order allowing the same has been set aside, rescinded and vacated, by an order of the Supreme Court, duly made in the premises, which is still in full force and unreversed.
    The matters contained in this plea are a complete bar to the action, as well for the sureties as the principal. For, although a ca. sa., voidable for irregularity — not void — is, before it is set aside, a protection to the party suing it out, -as well as to the officer executing the process, yet, when afterwards set aside, it ceases to protect the party for any acts done under it while in force. The case, then, stands precisely as if no such , . . , , erroneous process had ever existed.
    The law is well stated in the opinion of the Court in Chapman v. Dyett et al., 11 Wend. 31, which was an action of trespass, for false imprisonment, against a party who had sued out a ca. sa. against the plaintiff, and caused him to be arrested. The writ being voidable, not void, was afterwards set aside. Savage, C. J., after stating that voidable process always protects an officer in acts done, while it is in force, although subsequently set aside, says: “It is true, as con- ‘ tended by the defendants, that when the arrest was made, £ no trespass was, in fact, committed; but the doctrine of tresc pass by relation is as well settled as any in the law, at least £ since the Six ■ Carpenters’ case. When the ca. sa. was set £ aside for irregularity, it ceased to be a justification to the par- £ ties guilty of the irregularity; as to them it is void, and as if e it had never existed. The arrest, therefore, by relation, be- £ came void and without authority, and the action of trespass £ was the proper action.” Judgment for the plaintiff. So in Coddrington v. Lloyd, 8 Adol. and Ellis 467; 35. Eng. C. L. Rep.; which was also trespass for an assault and false imprisonment, under a voidable ca. sa., sued out by the defendant against the plaintiff, under which the defendant was arrested, and which was afterwards set aside. The action was against both the party and the attorney who issued the writ.
    Lord Denman, C. J., says: “ The plaintiff here was arrested £ on a writ, which was afterwards declared by,the Court irregu- £ lar. It was, therefore, as' if there bad been none.” So also, Patterson, J.: “ The action lies against the party, because the £ process, when set aside, is as if it had never existed, and if f the party cannot justify under it, neither can the attorney.” The plaintiff had judgment against both defendants. See also, Hayden v. Shed, 11 Mass. Rep. 300; per Jackson, J., Haddington v. Peck, 2 Conn. Rep. 700; Barker v. Braham, 3 Wils. Rep. 368; the Six Carpenters’ case, 8 Coke 293.

      The quashing of the writ' and annulling of the order awarding it, left the plaintiff, therefore, without any authority whatsoever to sustain the arrest and imprisonment of the principal defendant.
    Again: It was not necessary that the defendants should have set up the quashing of the process and the rescinding of the order, to avail themselves of the defence- that the-writ was void. The authorities already cited'show, that when the writ is set aside, the parties stand as if it had never been issued. The order setting aside by relation, extends back to the issuing of the writ.. It enables the defendants to show what the law now adjudges to have been the true character of the writ when issued. It removes the obstacle in the way of showing that the writ was absolutely void. It is matter of evidence only. The rule is settled, that in all cases where the act done, after plea pleaded or suit brought, extends back by .relation to a period prior to the commencement of the suit; it is not necessary to plead it puis darrein continuance. Jackson v. McCall, 3 Cowen Rep. 75, is directly to the point. The defendant offered in evidence two sheriff’s deeds, for lands sold before the commencement of the suit, both of them, however, executed and delivered after issue joined in the case. The plaintiff objected that the deeds were inadmissible, except under a plea puis darrein continuance. Curia, per. Sutherland, J.: “ Admit- £ ting that, by relation, the deeds are to be considered as having £ been given at the time of the sale, does that dispense with ‘ the necessity of pleading the fact of delivery, according to its ‘ truth, puis darrein continuance? ' I am of opinion that it £ does. The defence relied on was the title acquired under the £ sheriff’s sale. When did that title vest in the defendant? £ is the point of inquiry. If before the commencement of the £ suit, it was available under the general issue : If after issue ‘ joined, it should have been pleaded puris darrein continuance, ‘ and the date, or. time of delivery of the evidences of title, is £ perfectly immaterial. The legal effect and operation of such ‘ delivery is the matter of defence, and not the instrument ‘ itself. The legal effect of the delivery then, in this case, -' having been to vest the title in the defendant by relation, as ( of the 2d October, 1818, the matter of defence did not arise ‘ subsequent to the joining of the issue, and need not be pleaded ‘ puis darrein continuance. I am of opinion, therefore, that the ‘ Judge erred in rejecting the sheriff’s deeds on that ground.” Under the principal here laid down, the legal effect and operation of setting aside the writ and order, is the matter of defence, and not the order setting aside. A plea puis darrein continuance, is not, therefore, essential to enable the defendants to avail themselves of what is now in law the truth, that the writ was void at the time of the arrest and imprisonment, and therefore void when the bond in suit was executed.
    The last plea is not, in form, a plea puis darrein continuance. That it is not such _ in substance, the case just cited clearly shows. It stands upon the record, then, as an ordinary case of an additional plea, filed by leave of the Court, setting up matter of defence arising before suit brought.
    Nothing but a plea strictly puis darrein continuance, both in form and substance, operates as a waiver. Even this rule is not without its‘exceptions, as shown by Rayner et al. v. Dyett, 2 Wend. 300.
    The defendants, therefore, insist upon all their pleas, and claim to shelter themselves from a recovery under any one of them which, in the opinion of the Court, may be found sufficient.
    I submit to the Court, that the demurrer is, in no respect, well taken, and therefore ask judgment upon it in favor of all the defendants.

       The law of Massachusetts as to the amount, &c. of the prison bounds bond, is as ours. Vide 14 Pickering, 523.

   Hitchcock, J.

A variety of questions are presented by the pleadings in this case; more, in fact, than what seem to the Court necessary for the disposition of the case. The action is upon what is usually denominated, a prison bounds bond. Previous to the enactment of the law to abolish imprisonment for debt, it was at the election of the judgment creditor to proceed against the property of his creditor by writ of fi. fa.' or against the body of his debtor by writ of ca. sa. But, since the enactment of - that law, judgments cannot be enforced by ca.' sa., except in certain specified cases; and an examination of the cases specified will show, that it is only where a debtor attempts to defraud his creditors, can he be arrested and imprisoned. This law is one favorable to the personal liberty of the citizen, and should be liberally construed, to effect that object. By this law, no process, either mesne or final, can issue against the body of a defendant, except in pursuance of an order previously made by the Court, or a Judge of the Court, , from which the process is issued. If it be issued without such order, it is vqid, as to all persons interested, except the 'officer to whom it is directed, and voidable as to him.

By the last plea filed in this case it appears, that the ca. sa. in virtue of which ‘Lewis Robinson was arrested and imprisoned, had been set aside and quashed, and that the order allowing the same, has been set aside, rescinded and vacated by an order of this Coxlrt. True, this was done subsequent to the appeal of the case now under consideration, and, strictly speaking, the plea embodying these facts should have been one puis darrein continuance. But the parties seem to have treated it as if properly filed, and it is met by a demurrer.

The question submitted to the Court is, whether these facts constitute a legal bar to.the plaintiff’s action? They show that the plaintiff has, without authority of law, caused Lewis Robinson to be imprisoned, and to procure his discharge, he, together with his sureties, were induced to execute the bond now in suit. The ca. sa. has been quashed, and, so far as the plaintiff is concerned, the case is as if none had been issued. The order, in pursuance of which it was issued, has been vacated. It is the same as if no order had been made. Where a debtor is legally imprisoned, he cannot be entitled to the privilege of the prison bounds until he has given bond to the credit- or, according to the provisions of the statute; and, if, in such case, he escapes, the bond is forfeited. But, where a debtor is. imprisoned by procurement of his creditor, acting without the authority of law, and to procure his .enlargement executes such bond, it seems to the Court, that.such bond must be held to be void. The facts set forth in this plea show, that the imprisonment was illegal, and, if so, the bond given to procure the enlargement of the prisoner cannot be enforced, either against him or his sureties. In the opinion of the Court, this last plea is a good bar to the plaintiff’s action.

We might stop here, but it may be well to consider for a moment, the other pleas.

The-first plea demurred to, is the plea of nil debit. Is this a good plea to an. action of debt upon a bond like the one now in suit ? We think it is. In debt, where a specialty is the foundation of the action, nil debit is not a good plea. But where the deed is only the inducement to the action, and. extrinsic matters of fact the foundation, as in the present case, or on appeal bonds and such like, then nil debit is a proper plea. 11 Johns. Rep. 472.-

The third plea is, that the. bond was taken for too small a sum; and the fourth, that- the sum was too great.

It seems to the Court, that neither of these pleas can avail the defendants. True, the statute requires that the penalty of the bond shall be double the amount Of the debt for which the prisoner is imprisoned. But it is not void, if a little more or less. If more, nothing can be recovered for a breach of the condition beyond the debt. If less, it certainly, can do the obligors no harm. ’ ’ ’ '

The fifth plea is, that no order was made by the Court, or any Judge thereof, upon affidavit of the plaintiff, &c., authorizing the issuing of a ca. sa., &g.

It seems to be admitted by the plaintiff’s counsel, that if the ca. sa. was void’ then the imprisonment was illegal, and the bond, of course, void; but it is supposed that the process is not void, unless the officer would-be a trespasser in -executing it. We understand the rule, so far as the officer is concerned, to be this: If the process is void, upon its face, the officer commits a trespass if he executes it; but if, upon its face, it is good, he will be protected, although the process may be avoided by extrinsic circumstances. But this case is not one in which the officer is concerned. It is the plaintiff in the execution who is prosecuting this suit. So far as he is concerned, the process may be void, although, being good upon its face, it would protect the officer. This plea shows, that the plaintiff caused a ca. sa. to be issued without any previous order of the Court, which order is indispensably necessary. It was issued by his procurement, not only without law, but in violation of positive law. The act was, on his part, an illegal act, and for an arrest made under it he would be chargeable with trespass. An arrest was made. So far as the plaintiff is concerned, it was illegal; and, to procure the enlargement of the prisoner, the bond in suit was executed. Under these circumstances, the plaintiff cannot avail himself of the bond thus illegally procured.

The next plea in order is, that the ca. sa. did not recite or set forth any order made by the Court, &c.

Such recital is not necessary. Before a ca. sa. can be issued, proof must be made to the Court or Judge, by the affidavit of the plaintiff, and by other evidence, that the case is within the exceptions in the statute;. whereupon an order is made for the issuing of the writ. This does not, however, constitute any part of the writ; nor need it be recited therein, nor indorsed thereon.

The eighth plea is, that the ca. sa. was issued under an order, made by the Court, solely upon the affidavit of the plaintiff, without any other testimony, &c.

It has frequently been decided by this Court upon the circuit, that a ca. sa., so issued, was void as to all persons, except the officer to whom directed. It was so held in this case, when the order of the Court of Common Pleas was before it on certiorari. If this is a correct construction of the law, a ca. sa. so issued, would not protect a judgment creditor when sued in trespass, nor can such creditor avail himself of a “ prison bounds bond,” given to procure the enlargement of a prisoner arrested under such process.

The seventh plea, is a plea of duress.

It is admitted by the plaintiff’s counsel, that this plea, as filed by the principal in the bond, is good; but it is insisted, that although the principal may avail himself of this defence, yet, that his sureties cannot — that they will not be permitted to plead the duress of their principal; and many authorities are cited to sustain this position. Upon this point, however, the authorities are contradictory; and it seems to us that those opposed to this principle are most consistent with reason.

The tenth plea sets forth, in substance, that although the order for the ca. sa. was based upon the affidavit of the plaintiff, that the said Lewis was about to remove his body out of the jurisdiction of the Court, whereas, in fact, the said Lewis was not about so to remove his body.

The object of this plea is, to put in issue the question of fact, whether the said Lewis was about to remove. The defendants cannot avail themselves of this defence. True, the order for a ca. sa. is procured upon an ex parte application of a plaintiff or his attorney, yet, when once procured, it is so far conclusive that it cannot be collaterally impeached.

Upon full consideration, the Court are of opinion that the demurrer is well taken to the third, fourth, sixth and tenth pleas; and the first, fifth, seventh, eighth and last pleas, are sufficient in law to bar the plaintiff’s action.


author: Wood, C. J.

text:
    In Bank.
    Dec. Term, 1846.
    Alexander McConnell vs. Oliver H. P. Scott and others.
    Where judgment has been rendered against principal and surety, and the principal is insolvent, a Court of Chancery will entertain jurisdiction of a suit brought by the surety for the purpose of reaching credits of the principal, and appropriating them in payment of the judgment, although the surety has not paid the money.
    This is a Case in Chancery, reserved in the County of Morgan.
    The bill is filed by the complainant, as a surety of the principal debtor, against him and others, in whose hands the principal debtor has credits. The bill states, that judgment at law has been rendered against both principal and surety; that the principal debtor is insolvent, and seeks the appropriation of the credits of the principal, in the hands of the debtors, to the satisfaction'of the judgment against both him and the complainant, who is his surety.
    The bill makes the judgment creditor a party merely, that he may receive the money on his judgment.
    Some of the defendants have answered, but the judgment creditor and the principal debtor do not defend.

      John Welch, for the Complainant.
    In support of the position, that chancery had jurisdiction in a case like this, the following authorities were quoted: Stump v. Rogers, 1 Ohio Rep. 533; King v. Baldwin, 2 Johns. Ch. Rep. 561; Rees v. Bersington, 2 Ves. Ch. 540; Hayes v. Ward, 4 Johns. Ch. Rep. 132; Wright v. Simpson, 6 Vesey, 734; Mit. Eq. PI. 148; Lord Ranebaugh v. Hayes, 1 Vern. 190; Ward v. Henry, 5 Cowen’s Rep. 596 ; Nesbit v. Smith, 2 Brown’s Ch. 451; Williams v. Helme, 1 Dev. Rep. 162; Tanltersly v. Anderson et al,, 4 Des. Rep. 47; Taylor v.
      Heriot, Ibid. 227; Bank of Lake Erie v. Western Reserve Bank, 11 Ohio Rep. 449; Hampton v. Levy, 1 McCord, 116; Gilmore v. Miami Ex. Co., 2 Ohio Rep. 294; and Piatt v. St. Clair’s Heirs, 6 Ohio Rep. 227.
    It was further contended, that the defendants, by answering, admitted the jurisdiction of the Court over the subject matter, and that it was now too late to object that the Court had not, according to the usages of a Court of Chancery, the power to grant the relief sought; in support of which the following authorities were adducéd: Rees v. Smith, 1 Ohio Rep. 127; Gilmore’s History, and Practice of Chancery, 219.

      C. B. Goddard, for the Defendants.
    No argument for the defendants came to the possession of the Reporter.
   Wood, C. J.

The question raised by counsel is, whether a court of equity will entertain jurisdiction in a case like this ? It is insisted, in argument, that the complainant is without remedy in any form, until the actual advance of the money due from his principal. At law, the position is doubtless correct. An action to recover for money paid for another, does not lie, unless payment is made and proved ori the trial, nor can the principal'debtor be made liable at law for subjecting his surety to the-peril of paying his debt, until the injury actually accrues by payment. This is all very true; but there is, nevertheless, a'great variety of circumstances, where equity steps in, for the reason that the law affords no adequate redress, and prevents impending or threatened injury. ■

The surety, however, occupies ground peculiar to his own relation, and’ is favored in both legal and equitable tribunals. Numerous cases are cited by counsel, where principles analogous to those sought io be applied here, have been recognized in equity ; and we think the complainant is within the authority of such adjudications. Indeed, in 1 Ohio Rep. 533, the precise question now raised received the sanction of this Court, and, in our view, the authority of that case should not be shaken.

What are the obligations of the principal debtor to his surety ? Certainly to save him harmless from every injury which may result from such relation; and a promise is implied to this effect, as valid as if made in express terms, between the parties; 5 Cowen Rep. 596. There is no adequate remedy at law, when the principal debtor is insolvent, by which his effects and credits in the hands of others can be made to be applied for the benefit of the surety. Certainly not, as we have already said, without the surety first pays the debt. And such payment may be attended with great inconvenience ánd severe sacrifices of property; burdens which surely ought not to be imposed, if they can, with-propriety and justice, be avoided. In 6 Yes. 734, it is said, “ that equity will compel the principal to pay the debt, after due, at the instance of the surety.” In 4 Def. 47, that it would be hard on sureties, if they were compelled c to wait till judgment against them, or they had paid the debt, ‘ before they could have recourse to their principal, who might { waste his effects before their eyes.” Other cases might be cited to the same import.

If, then, the principal debtor may be forced to pay the debt at the instance of the surety, if would seem to follow, that the property, credits,- or effects of such principal may be' followed into the hands of others. It must not be understood that the judgment creditor can be delayed in his remedy against the. surety. He has his judgment, and may take, out his execution at pleasure; but if he has not collected his money of the surety, and the surety has made it out of the property or credits of the principal, equity will decree its application in discharge of the creditor’s judgment against the surety.

Decree for Complainant.


author: Hitchcock,'J.

text:
    In Bank.
    Dec. Term, 1846.
    Hannah Laughery vs. Charles and William Laughery.
    A case in divorce, or for divorce and alimony, cannot be appealed from the Court of Common Pleas to the Supreme Court.
    But if, in such case, a third person is made defendant, such defendant may appeal so much of the case as affects his interest.
    This is a Case in Chancery, appealed into the Supreme Court from the Court of Common Pleas, reserved in the County of Seneca.
    The original bill was filed on the 13th January, 1845, in the Court of Common Pleas of Seneca county, by the complainant, Hannah Laughery, against the defendants, praying to be divorced from the defendant, Charles Laughery, her husband, and, also, for alimony. She charges further, that certain lands specified in the bill had been conveyed by her husband and herself, to William Laughery; that this conveyance was without consideration, and with an intent to defraud her of her rights; and prays that the alimony which may be allowed may be made a charge upon the land.
    The defendants both answer at great length, and deny all fraud, &e.
    This case came on to hearing in said Court of Common Pleas at the March term, 1845, at which term the Court dismissed the petition, so far as there was a prayer for divorce, but found that the petitioner was entitled to alimony, and decreed accordingly, fixing the amount at one hundred and seventy-five- dollars. ■ The Court further found, that the deed referred to in the petition was executed without consideration, and decreed that the same was fraudulent and void, as against complainant, and made the decree a charge upon the said land in the hands of the said defendant, William.

      From this decree the defendant, William Laughery, appealed to this Court. .

      W. P. Noble, for Complainant.

      Cowdrey fy Wilson, for Defendants.
   Hitchcock,'J.

This is a case somewhat anomalous in its character. The complainant filed her bill against her husband and a third person, praying for a divorce, for alimony, and that the alimony might be charged upon the land of that third person, because her husband and herself had conveyed land to him without consideration, for the purpose of defrauding her of her alimony. The Court of Common Pleas decided that she was not entitled to a divorce, but was entitled to alimony, and charged the alimony upon the land conveyed.

The first question which presents itself for consideration, is, whether the case is one which could be brought into this Court by appeal. Had it been a mere petition for divorce, or for divorce and alimony, under the statute, no matter what the decision of the Court of Common Pleas might have been, there could have been- no appeal. , Although the proceeding in such cases is, in form, as in chancery, yet this Court have long since decided, that when the decree has been once made, there could be no review; Bascom v. Bascom, 7 Ohio Rep. 125, pt. II. And, surely, if there could be no review, there can be no appeal. But this is not merely a petition for divorce and alimony. The complainant not only seeks to be divorced from her husband and for alimony, but she makes William Laughery, a third person, party defendant, charging that he has in his possession lands conveyed to him for the express purpose of defrauding her of her alimony. This certainly looks a little like multifariousness. But, let this be as it may, the relief sought against William Laughery is one peculiarly within the equity jurisdiction of the Court, and he has the same right and privilege of defence that he would have had, had the complainant first established her right to alimony, and then filed her bill to avoid the fraudulent deed. Such being the case, by connecting the two subjects in one bill, he cannot be defrauded of any of his rights. He has the same right of appeal, as if there had been no other defendant than himself in the case.

The next question is as to how much of the case is removed from the Court of Common Pleas by the appeal. Does it bring up the question of divorce ? Is the decree for alimony vacated ? Formerly it was held that where there was more than one defendant, the appeal of one removed the case as to all. But, by the 6th section of the act of March 12, 1845, to amend the act directing the mode of proceeding in chancery, it is provided that, “ any party to a suit in chancery may appeal his £ separate part of the suit, in which case the Court, from which ‘ the appeal is taken, shall direct the amount and conditions of £ the bond in appeal.” The appeal, in the case under consideration, was taken and perfected by the defendant, William Laughery. It was of no consequence to him whether there was a divorce or decree for alimony. The only part of the case and the decree which affected him, or in which he had any interest, was that which decreed that the deed made to him was fraudulent, and that the alimony should be charged upon the land conveyed by that deed. By the appeal, this part of the case, and this alone, is brought before this Court. The decree for alimony remains good as to Charles Laughery; but whether it shall be a charge upon the land, or whether the conveyance to William Laughery was fraudulent, are proper subjects -for the consideration of this Court.

The case, then, in the aspect in which it presents itself to this Court, is one in which a married woman, in her own name, and in her own right, is prosecuting a suit in chancery to set aside a conveyance, executed by her husband and herself, to defraud herself, and to prevent her from enforcing a demand against her husband. Now, there ále cases in which a court of chancery will permit a married woman to prosecute a case in her own name, or by some friend, where her rights are adverse to those of her husband, and where such proceedings -are necessary for the ends of justice. Whether this is a case of that character, is perhaps doubtful.

But admitting that the case can be sustained, then a question arises whether in fact there was any fraud in the conveyance, as charged in the bill. It seems that Charles Laughery and his wife did not live pleasantly together, and she at length came to the determination that she would continue with him no longer. The land in controversy had been conveyed to Charles by procurement of William Laughery, his father, and was in the nature of an advancement. The complainant having determined to leave her husband, proposed that he should restore to her all the personal property which he received by her at the marriage, and also the use of ten acres of land which she claimed as her own. At length a division of property was agreed upon, and both parties were to be restored to their rights, as they existed at the time of the marriage. This was carried into effect — and as a part of the arrangement, the deed complained of was executed. In making this arrangement, she seems to have been more active than her husband, and all her propositions were complied with. There was no concealment — no false representations — nothing which has the appearance of fraud. William Laughery had given the land to his son for no other consideration than that of natural affection; and the son and his wife, being about to separate, conveyed it back to the father. In this state of the case, it seems to us that the complainant comes before the Court under such circumstances that she is not entitled to the relief she seeks as against the defendant, and the bill is therefore dismissed, but without costs.