author: Judge Hitchcock:

text:
    J. Fowble v. Wm. Rayberg and Wm. W. Taylor.
    Previous to the act of February, 1824, where a sheriff in office had levied a Jin. fa. upon land, a vendi. might issue to the same person after his office expired, and a sale made by him would be valid.
    A return, made on a vendí, by the late sheriff, to December, 1810, that he had sold certain lands previously levied on, was, in December term, 1812, the sheriff making the return being deuased, on motion of his representatives, ordered to be so amended as to state that the property remained on hand for want of bidders. At February term, 1828, this order of amendment was rescinded, on motion of the purchaser at the first sale, and an order made that the sheriff make a deed. Proceeding held regular.
    When a sale of land has been made by a formei sheriff, the deed js to be made by the sheriff in offieo at the time of the application.
    Certiorari to tbe court of common pleas in Hamilton county.

      On September 5,1810, an alias or pluries venditioni exponas issued from the court of common pleas of Hamilton county, directed to Aaron Goforth, late sheriff of Hamilton county, at the suit of Ray-berg and Taylor v. Fowble, returnable to the December term, 1810, 46] of said court of common pleas. Thevendi. was returned *with the following indorsement: “Received this execution September 5> 1810. On December 8, 1810,1 sold the within-described land to Christopher Walker, and have made the money. Aaron Goforth, late sheriff.”
    On March 1,1828, during the February term, Fowble, by his counsel, moved the court of common pleas to set aside this execution, and all subsequent proceedings thereon. Upon the hearing of this motion, the following facts were proven or admitted, as appears from a bill of exceptions annexed to and made part of the record. It was proved that on September 21, 1808, Raybergand Taylor recovered a judgment in the Supreme Court against Fowble, for one thousand one hundred and fifty-five dollars and fifty-three cents damages, eight dollars and seventy-one cents costs, in the court of common pleas, and eleven dollars and twenty-nine cents costs in the Supreme Court, which judgment was certified to the court of common pleas for execution. It was further proven, that prior to September 5,1810, several executions had issued upon this judgment directed to Goforth while sheriff of Hamilton county. That, oh September 21,1808, a writ of fi. fa. was issued, thus directed and returnable to the December term of that year. This writ was returned with the following indorsement made by the sheriff: “I have levied upon one hundred and six and one-third acres of land in the northeast corner of section 25, of township 3, and fractional range 2; also, ninety-four and three-fourths acres in section25, township 3, and fractional range 2, which remains unsold.” This land was subsequently sold under the vendi. of September 5, 1810. li was further proved, that on May 1, 1809, a vendi. was issued, upon which the sheriff made the following return : “ I have held inquiry, and property of the annual rent of four hundred and fifty-four dollars and sixty-two and two-third cents, and of the value of four thousand four hundred and twenty-six dollars and sixty-two and two-third cents, as appraised by inquisition hereunto annexed.” It was admitted that Goforth went out of office on April 7, 1809, and had not been sheriff since; and it was proved that on December 8, 1810, he was a member of the senate of the state, soon after which he died. Previous to his death, no deed was made to Walker conveying the property sold. It was further proved, that at the December term, 1812, of the court of common pleas, on the application of William Corry, one of the administrators of the late sheriff Goforth, it was ordered that the return made on ^December 8, [4? 1810, to thevendi. of September 5th, be amended, and that the return should be “ property on hand for want of bidders.” In pursuance of this order, the following amended return was caused, on May 8, 1813, to be entered on the same execution : “By virtue of an order of the court of common pleas for December term, 1812, on hearing the representatives of' the late sheriff, to amend the said return by returning property on hand for want of bidders, the same is hereby amended accordingly.” Subsequent to the amended return, another vendi. issued, returnable to the August term, 1813, but on this execution no return had been made. It was further proved, that on February 26,1828, the amended return so made by William Corry, was, on motion of Christopher Walker, ordered by the court of common pleas to be set aside, vacated, and held for naught, the return originally made by the late sheriff reinstated, and that a deed be made to Walker for the land, agreeable to the return made by Goforth on December 8, 1810, it being proven that the purchase money had been paid but no deed made. It was also proved that previous to the act of 1824, “ defining the duties of sheriffs, etc., in certain cases,” it had been the invariable practice of the court of common pleas in Hamilton county to direct executions to the person, as late sheriff, who had been sheriff, and who had commenced proceedings by levy, etc., but had not finished before the term of office expired. The court of common pleas, after a full hearing, refused to set aside the execution, and overruled the motion of Fowble.
    The ease now comes before this court upon a supposed error of the court of common pleas in overruling this motion. The errors assigned are in substance :
    That the execution was improperly directed, being directed to the late sheriff, whereas it should have been directed to the present sheriff.
    That the amended return was improperly set aside and vacated.
    That the deed was improperly ordered, after the intervention of so great a length of time after the sale, to wit: fifteen years.

      *Caswell & Starr, for plaintiff:
    The first question presented is, was the vendí, exponas of September 5, 1810, rightly directed to Goforth after he had gone out of office, and when he was a judge of the very court, from which it issued, and could he sell and make a title to the purchaser.
    In the first place there was no necessity for the proceeding. It should have been directed to the then sheriff. He was in all respects competent to act under it, and perform its exigency. The possession of the property had not been changed by the levy made by Goforth, as it sometimes is in the case of personal property.
    It is admitted that when a sheriff goes out of office, having an execution in his hands, he may finish it, or his deputy may do it for him. For that purpose he was still sheriff, and such is the decision in the case of Jackson v. Collins. 7 Cowen, 95. The court say that as to an execution in the sheriff’s hands when he goes out of Office, he continues sheriff and may act by deputy, though the office of the latter must be considered as expiring with that of the principal. 20 Johns. 64.
    If a sheriff had taken goods on execution and returned them on hand for want of buyers and goes out of office, and to complete the sale it be necessary that a vendí, exponas issue, it should be directed to the new sheriff. 4 Com. Dig. 237, title Execution. The old sheriff may sell without execution, especially if he have the goods in his possession; but if he neglect to do so, the mode of compelling him is not to issue a venditioni exponas directed to him, but -a writ of distringas^ directed to the new sheriff, commanding him to distrain on the old sheriff till he sell the goods and pay over the money to the present sheriff; or till he sell the goods and bring the money into court himself. The latter is said to be the most usual mode of proceeding. Biorgh on Executions, 262, 263; Tidd’s Prac. 1060 ; 6 Bac. Abr. 161, title Sheriff; Ld. Baym. 1075; 1 Sal. 233; 2 Dun. N. Y. Practice, 323 ; 1 Dallas, 312. In 6 Mod. 295, Lord Holt says, that after the sheriff has made his return, “ levied on specific goods,” the regular mode of proceeding is to issue a venditioni exponas ^wtien the sheriff continues in office, but the distringas when he has left it, but if he has “levied to the value of the debt,” he is bound to sell without further process.
    The plain inference from all this, is, that a writ of venditioni ex-ponas is never issued but to a person in office, whom the court have a right to command and who is under an obligation to obey the process.
    If a sheriff, having levied upon goods and taken them into his actual possession, should die, and his administrator should refuse to sell or deliver them up, it is possible that under very peculiar circumstances, a venditioni exponas might be directed to him, though it is not easily perceived why he can not be distrained upon as well as the intestate. In the case of real estate this can never be necessary, because the possession is never changed by a levy, nor even sale on execution.
    It is unnecessary to remark on the evident absqrdity in directing an execution to the judge of the court from which it issues.
    The practice of the court of common pleas of Hamilton county can hardly make the law of the land, when it is to divest a man of his freehold.
    The amended return of December, 1812, which declared the lands not sold or on hand for want of bidders, ought not to have been set aside after the lapse of fifteen years,' and the former returned reinstated, nor a deed ordered to be made more that seventeen years after the lands were sold — if sold at all.
    In Thompson v. Skinner, 9 Johns. 556, the court say, that after the lapse of twenty years no judicial proceedings whatever ought to be set aside for irregularity; and in South Carolina it was so decided after twelve years. 2 Bay, 388. The most alarming consequences may be anticipated from such a practice. In this ease a venditioni exponas was issued in the summer of 1813, and the premises might have been sold to some other person; if not, the judgment had become dormant. The acquiescence of the parties for the space of fifteen years furnished the strongest reasons for believing that everything in relation to the judgment and sale was arranged. If it was right to amend the return in December, 1812, it was wrong to vacate that amended return in November, 1827, and the acquiescence of the parties furnishes the best evidence *that it was rightly done. If the premises were actually sold to Walker, and he paid his money, it is not necessary to decide what would be his remedy; it is sufficient to say that so important a result ought not to be produced by so summary and informal a proceeding.
    Neither the act of February 16, 1805, or the act of 1824, authorize the sheriff to make a deed, for lands sold by his prede-. cessor, unless such predecessor has gone out of office bofora making such deed. This is really nothing more than an enactment of the common law. If a sheriff sell or set off lands on exe cution, and die or go out of office before giving a deed or other requisite evidence of the sale, there is no doubt his successor may do it, for the office continues ; but in this case Goforth was not in office at the time of the sale. It is, therefore, a case not provided for by the statute, and the common law has no provision for such a proceeding. It may well be doubted whether the authority.of a sheriff to make a deed, under the provision of the act for lands sold by his predecessor, is not confined to the immediate successor of the one making the sale.
    If it was too late for Fowble, in 1828, to set aside tbe execution of 1810, it was also too late to attempt to use it against him by setting aside the amended return of 1812, and confer upon the execution the effect it had in 1810. For the space of fifteen years that execution had remained on file declaring the lands of Fowble not to have been sold by it; and when it was attempted to give to the execution a totally different effect, by declaring his lands sold, it was surely competent for him to gainsay the validity of the execution. If the argument proves that the motion of Fowble to set aside the execution came too late, it also proves that the motion to set aside the amended return came too late.
    "Wade, for defendant:
    The first question made by the plaintiff is, that the venditioni of September, 1810, was void, it being issued to A. Goforth, be being out of office, an associate judge or member of the senate at the time.
    At the common law, an execution was considered an entire thing, and when once acted upon, as by taking possession of *property, or perhaps advertising it, the person who thus begins must finish it. Mason v. Sedam, 2 Johns. Ch. 180. In the case of Ayre v. Aden, Croke Jas. 73, the sheriff had levied upon goods on a ft. fa. and was discharged from office before sale, but had not returned the writ; subsequently he.sold the goods without a venditioni, and the question was, whether the sale was good without a venditioni. The court decided the sale was good, for the ft. fa. gave him authority to sell without another writ, and that his discharge from office did not affect the sale. Bacon, title Execution, 366, old edition; to same point, Bacon, title Sheriff, 466, old edition. If upon a fi. fa. the sheriff seizes goods, and returns that goods to, such a value remain in his hands, pro defectu emptorum, and he is removed, yet he, and not the new sheriff, is to proceed in the execution, for execution being an entire thing, he who begins must end it. See also 1 Burrows, 34.
    Reed v. Stevens, Coxe, N. J. 265, the court decide that the executor or administrator of a deceased sheriff may sell lands seized in execution by a deceased sheriff. Clark v. Withers, 6 Mod. 298. The court say executions are favored in law. By a seizure the property is vested in the sheriff. The selling is but a formal part of the execution, and by the seizure and writ he has authority to sell. The venditioni exponas adds not to his authority, but is to spur him on to sell. The goods, by the seizure, are in custodia legis.

    So it is contended that under our law, by a levy on land, it becomes as much in custodia legis as goods and chattels in England.
    A second fi.fa. can not issue after a seizure; 2 Ld. Raym. 1075; Croke Eliz. 391; and it is contended that a second levari facias can not issue in this state, after a levy returned, until the first levy is disposed of by a sale, or be set aside. An existing levy, I think, would be a good plea in bar to an action brought on a judgment.
    Jackson, ex dem. Scofield, v. Collins, 3 Cowen, 89. The court decide that a deputy sheriff may complete an execution by sale and conveyance of land, after the sheriff goes out of office, provided the execution was levied before. The court say, page 95, the authority of the deputy is limited by the duration of the authority of the principal. An execution ^against the property of a defendant, partly executed by the old sheriff, shall be completed by him, and in relation to such he continues sheriff.
    Hempstead v. Weed, 20 Johns. 95. Even in case of a ca. sa. upon which a defendant has been arrested and is imprisoned, it is optional with the old sheriff whether he will transfer the prisoner to the new sheriff or retain him in his custody and complete the execution himself.
    From the foregoing authorities it clearly appears to be the duty of the old sheriff to complete an execution begun by him. It is admitted that at the common law the usual process issued to compel him to do so was a distringas, but this by no means proves that a venditioni was an improper writ. On the contrary, in Ayres v. Aden, tho quaere was, whether a vendi. ought not to have issued, clearly recognizing it as a proper writ, when the sheriff had gone out of office. And the reason why the distringas was resorted to at common law, instead of the vendi., was, I presume, that it was in its nature a more efficient writ than a vendi. Neither a vendi., or distringas gave to the sheriff any new power, though both require him to exercise a power already vested in him by virtue of former writs.
    But if the issue of a venditioni would have been erroneous at common law, still, as the practice of the courts, in this part of the state, prior to 1824, had invariably been to proceed in this way, it is presumed the court would not now be disposed to disturb it. There being no statutory provisions against it, the maxim that communis error facit jus, most forcibly applies. But it is by no means admitted to be an erroneous practice as the law then was.
    I can not see how his being an associate judge could prevent his acting as sheriff, to complete executions begun by him while sheriff, nor can I see any absurdity in his doing this.
    He was not judge, he was senator when he made the sale; and I am referred to section 26, article 1, of our constitution, on this subject. I do not see its application. If it establishes anything, it is, that he could not be senator while he had executions to complete.
    By the statutes on executions of 1805 and 1808 (see Land Laws 338-343), under which this levy and sale was made, there is no provision for the issue of a vendi. in any case, so *that, as at the common law, the sheriff acts by virtue of the power vested in him by the first writ of fi.fa. et lev. fa., and the vendi. was a mere command, as at common law, to do that which he was before empowered to do. And it is contended that the sheriff might, but foithe practice of the court, have sold at any time after levy, without a vendi.

    The second position assumed is, that the amended return of December, 1812, ought hot to have been set aside and the former one reinstated after a lapse of" fifteen years; nor should a deed have been ordered after a lapse of seventeen years.
    The application made by Walker to strike out the amended return made by Corry, and reinstate the one made by Goforth, was an appeal to the equitable power of the court. Of course they were bound to give such relief as a court of equity would give in similar cases; and I presume it will not be contended by the gentleman, that if Walker had filed a bill showing the same facts that he proved in this case, but that a court of equity would have decreed him the land. It is laid down as a general rule in 6 Term 8, and 7 Term, 699, that the court can do whatever the ends of justice require in amending their records, .and the application, so far as it related to the strking out of Corry’s amendment and reinstating the other, comes within this rule. I would refer the court to Hart v. Reynolds, 3 Cowen, 42, on this subject.
    But on principle the court erred in permitting Corry to alter the return made by the sheriff. By his return he had completed the execution in 1810, and even supposing the administrators might have completed the execution had it remained to be done, yet, being completed, he had no power over it. Supposing he possessed the power, yet, as Walker, the purchaser, was not a party to the judgment, he can not be held to be concluded by the act of Corry, unless it was proved that he had notice of the motion. Nothing of this kind was pretended. It is, however, contended that as fifteen years was suffered to elapse, it was too late to move to set the amendment aside, and the case of Thompson v. Skinner, 7 Johns. 556, is relied on. There the court say, after a lapse of twenty years no judicial proceeding should be set aside for irregularity. I want no other authority to prove us within time for such an application — fifteen years is not ^twenty. The gentleman’s reasoning from lapse of time can not apply; here the purchaser made the motion, and it was opposed by the defendant, whose land was sold, not upon any pretense that an arrangement had been made between them, but upon the plea that it was now too late. The authority cited from Bay, 338, I have not seen, but presume that there must have been some peculiar reason for denying the application, after a lapse of only'twelve year’s, as was the case in Wilson v. Crompton, Wil. 61, and Wentworth v. Stafford, Ld. Raym. 68, when the court refused the amendment of judgments, because it would be injurious to purchasers.
    On the question, whether the court could order the present sheriff to make the deed, I think there can not be a doubt that he alone was the person to be directed to make it. The statutes of February, 1805, and the statute of 1824, use precisely the same language on this subject, to wit: “It shall be lawful for any succeeding .sheriff or other proper officer, on receiving a certificate from the court,” etc. Ohio Land Laws, 341, sec. 13; 22 Ohio State Laws, 113, sec. 14. By the expression “any succeeding sheriff,” the legislature clearly meant, not to confine the making of a deed to the immediate successor of the one who made the sale, but to give the power to any successor, whether immediate or remote. And such I believe has been the uniform practice of the courts.
    The statute of 1808 repealed sections 10 and 11 of the law of 1805, which provides for the extent of lands, if they will pay the debt in seven years. The judgment in this ease was had after the law of 1808 came in force, which is an answer to the exceptions on this subject.
    The fourth position assumed by the gentleman is not true, in point of fact. The court did not refuse to set aside the execution of 1810, because the application was made too late, but because they deemed the proceedings regular, and in conformity to the practice of the court. They did refuse to hear the motion made by Powble, to set aside the proceedings had upon Walker’s motion, and upon the principle that the party was present in court, had notice of the motion, and did not resist it until after the order was made. This was a matter resting in the sound discretion of the court, which *they had a right to grant or not, as they thought proper; and it is believed can not be made the subject of revision on a writ of error.
    In the exceptions it is said to be a case not provided for by statute, to make a deed where a sheriff sells land after his office expires.
    By section 13 of the law of 1805, it is provided that if a sheriff, or other proper officer, hath made or shall make a sale of lands, etc., and the language of the statute of 1824 is of the same import.
    If the court should decide it to have been proper and regular for a sheriff out of office to sell upon execution begun by him, then it would irresistibly follow that the statutes provide for the case, and that the order made by the court, upon the application of Walker, is proper — for the words of the statute of 1805 do not confine it to sales made while in office, but to such as are made by proper authority.
   Opinion of the court, by

Judge Hitchcock:

Previous to the act of 1824, “defining the duties of sheriff's and coroners in certain cases,” it was a point frequently mooted among the members of the bar in this state, whether a sheriff, aftor the expiration of his office, could do any official act; although I am not aware that the question was ever submitted to or decided by any of our courts. 6 Bac. 161. In England it seems to have beer' considered that a sheriff, having levied upon goods and going out of office, might proceed to sell under a vendi.; and if the sheriff returned on thefi.fa. that he had seized goods of the value of the-debt, and actually paid part of the debt after his term of office expires, he might sell without a vendi. If he neglected, a distringasissued to compel him to sell and bring in' the money, or to compel him to sell and deliver the money to the new sheriff to bring into' court.

But although a vendi. might issue to a sheriff after he was out. of office, the ft. fa. having been levied by him while in office, still I apprehend this practice was not uniform. By section 9 of the' statute of 3d George I., chap. 15, provision is made for settling the fees or poundage between a preceding and subsequent sheriff, where the ft. fa. is levied by the one *and the vendi. issued by the other. 6 Bac. 161. It is true this refers to process out of the exchequer.

As lands in England are not subject to sale on execution, we cannot expect to find in the reports of that country any decided case-precis ely in point, although there may be those which are somewhat analogous. Thero is a diffei’ence as to the effects of a levy upon goods and upon lands. Goods when levied upon are taken, or' ought to be taken into the possession of the sheriff, and so far become his property that he may maintain an action if they are-taken from him. If of sufficient value to satisfy the debt, and, if lost through his carelessness, he will be liable to the creditor, and may be made to pay the debt. The land, however, remains in tha possession of the defendant, and in that possession he can not bo disturbed until it is sold. Nor could the officer be called upon to pay the debt until that event had taken place. For these reasons there would seem to be more propriety in directing the vendi. to the new sheriff where th & ft. fa. was levied upon lands than where it was levied upon goods. The goods might be retained, or may have been lost by the old sheriff, and thus never have come to the possession of the new one, while the lands would remain in statu quo. Still, if the execution be “ an entire ” thing, and that it is we have-no disposition now to controvert, we can see no serious objection to adopting the rule that “he who begins shall end it,” as well where lands as whore goods are to be sold. At any rate, we must nay that the English authorities, so far as they are analogous, seem to favor this practice. Such practice prevails in New York. In that state it has been decided that a deputy sheriff may completo a sale and make a deed after the principal is out of office, provided the levy was made before. 3 Com. 89.

In this state there was no express statutory provision upon the subject until 1824. We have endeavored to ascertain the practice before that time, for after all I can not but consider it a mere question of practice. So far as respects the interests of the judgment debtor, if his property must be sold on execution to satisfy the judgment, it is pretty much material whether it is sold by one sheriff or another. Either would be anxious to get for it all it would bring, and if it be real estate it can not, at any rate, according to our policy, *be sold for less than two-thirds of the appraised value. It was the practice of the general court of the territory to issue the vendi. to the officer who made the levy, and that practice was continued, in Hamilton county at least, under the state government. In that county, which is the most populous in the state, and in which the general court did more business than in any other, this course was invariably pursued, as appears from the case under consideration, until the act of 1824. Into how many counties this practice, after the organization of the state government, extended, we know not,.but we do know that in some other parts of the state it was different. Probably in most of the ■counties the vendi. was directed to the sheriff in office at the time of the date of the writ. Neither course is without authority to support it. It is certain that a practice pursued in any one county for a great length of time does not make it legal. But where it has prevailed for more than thirty years, as is the case with the one under consideration, in the county of Hamilton, this court will not be disposed to interfere with it, unless it palpably violates" some well-established rule of law. The mischief that would result from adopting a different course can not be foreseen. That it would be extremely great can not be doubted.

Although previous to 1824 there was no express enactment upon this subject, still there might have been other statutes bearing upon it. The several laws “regulating executions,” and “regulating judgments and executions,” seem to be of this character. From the enactment of the law of January 19, 1802, “ regulating •executions,” to the present time, a principle has been contained in our statutes authorizing the successor of a sheriff, or other officer who had sold lands and was incapable of making a deed, to make a deed under the order of the court from which the execution issued, •and providing that the deed thus made should be equally valid, as if made by the officer who made the sale. The law of January 19, 1802, was enacted by the general assembly of the territory, at which time the general court was the highest judicial tribunal of the country. It has already been remarked, that the practice of that court was to issue the vendí, to the same officer who made the •levy. Ohio L. L. 334. Section 12 of this statute provides, <! that -if the sheriff, or other officer, who hath made or shall make sale of lands, tenements, *or real estate, by virtue of an execution against the same, shall abscond, or be rendered unable, by death or otherwise, to make a deed for the same, it shall be lawful for any succeeding sheriff, or other officer of the county,” etc., to make a deed, under the direction of the court from' which the execution issued, the other provisions of the same 'section being complied with. This act, however, says nothing as to what officer the vendí, shall be directed. It does not interfere with the then existing practice of the court in this respect. This same principle is re-enacted in section 13 of the lawregulating judgments and executions,” passed by the state legislature, February 16, 1805, and, with but one exception, is precisely in the same words. It is again introduced into the act upon the same subject, of January 25, 1810, and of which act it constitutes section 16. Ohio L. L. 348. It is again introduced as section 17 of the act “ regulating judgments and executions,” enacted January 31, 1816. 16 Stat. Laws, 170. It constitutes section 2 of the act of February 24,1820, upon the same subject. 18 Stat. Laws, 188. In all the different statutes there is no material variation in the mode of expression. In all of them the provision is, “that if the sheriff or other officer,” etc., “ shall abscond, or be rendered unable, by death or otherwise, to make a deed,” etc. On February 1,1822, the legislature enacted a new law upon the subject of “judgments and executions,” in section 13 of which we find the same, or a similar provision, authorizing a “ successor” to make deed. 20 Stat. Laws, 68. But there is a change in the phraseology as to the contingency upon which it may be done. This provides “ that if the term of service of the sheriff or other officer, who hath made or shall make sale,” etc., ■“ shall expire, or if the said sheriff or other officer shall abscond, or be rendered unable by death or otherwise to make a deed,” etc., then the deed may be made by a “ succeeding sheriff,” etc. In the previous statutes it was made necessary to make an application to the court for an order upon “ the successor” to make a-deed where the officer making the sale had absconded, or where he was unable to make it. Under this statute it was necessary to do it, where “the term of service” of the officer making the sale-had expired. Now, I can see no more impropriety in permitting a ^sheriff who has sold land upon execution, to make a deed of conveyance after his term of service has expired, than in permitting him to sell on vendi. or otherwise under similar circumstances, and it would seem to me that, under the statute of 1822, it would have been most proper to issue the 'vendi. to the sheriff in office on the day of its date. Whether this would be absolutely necessary I do not undertake to say. This statute, however, has nothing to do with the present case. The land was sold under the law of 1810. These statutes are referred to merely for the purpose of showing that up to the year 1822, the legislature in their frequent legislation upon the subject of executions, have said nothing which would lead to uniform practice in the direction of writs of vendi. It was left to the discretion of the courts. And, even after the-Statute of 1812 above referred to, the practice continued the same-as before, different in different parts of the state. To remedy this evil, the legislature, in enacting the law “defining the duties of sheriffs,” etc., passed February 25, 1824, provided, among other things, in section 8, that “no venditioni exponas shall hereafter bo directed to, or executed by, any sheriff whose term of office may have expired,” etc. Since that law the practice has been uniform throughout the state; before it was variant. From all the consideration we have given the subject, we are not prepared to say that the vendi. of the 5th of September was improperly issued, in being directed to the late sheriff, or that it was improperly executed, in being executed by the officer to whom it was directed.

The question next to be considered is, whether the court of common pleas erred in setting aside and vacating the amended return. It does not seem to be controvorted that a sheriff or other officer may, by leave of the court, amend his return ? Nothing is more common in practice, and no injury is thereby done to the parties litigant, so long as the return, when amended, is consistent with truth. If a false return is made, the party injured has» a remedy by action. The order of the court of common pleas vacating the amended return, in the present instance, is complained of, not so much because such order was made, but because it was made after so great a length of time had elapsed. Although the order was to set aside and vacate an amended return, or *more properly speaking, to vacate an order previously made by the same court, thereby reinstating the return originally made -by the officer executing the process, still I do not perceive that it materially varies from ordinary amendments of returns.

I know of no law fixing upon any length of time as an absolute bar to motions for leave to make such amendments. The amendment may be made after the term of office has expired. 6 Bac. 160. In the state of New York it has been decided that after a lapse of twenty years, no judicial proceedings whatever ought to be set aside for irregularity. 7 Johns. 556. In South Carolina it has been said that it would be dangerous to set aside such proceedings twelve years after judgment. 1 Bay, 338. Which of these rules shall we adopt? If we take the New York rule, then the motion was made and the vacating order entered within time; if the South Carolina rule, then it was not within time. The opinions of the courts of other states are entitled to much consideration, and will, I trust, by this court, always be treated with respect. But before they can be received as conclusive upon us upon a question of practice, there must be a conformity of decision in the courts of the different states whose practice is referred to. Now the decisions above referred to, and they are cited by the counsel for the plaintiff, do not show this uniformity. Motions to set aside any judicial proceeding, or to amend any return, should undoubtedly be made within reasonable time. In New York, if it be done within twenty years it is well; but in South Carolina, it must be done within twelve. The inference I draw from this diversity is, that there is no positive rule of law upon the subject. Much, nay -everything, must be left to the sound discretion of the court. A .court should unquestionably be more cautious in permitting an amendment, after a great lapse of time, than where the transactions are fresh, and the circumstances may be supposed to be more fully within the recollection of the officer making the amendment. It can not but be seen, however, that the present case is somewhat peculiar in its circumstances. The sheriff had returned that he Jiad sold the land and made the money. This return remained upon the execution during bis lifetime, but after his death it wasamended at the suggestion of his administrators. *If the court were satisfied that the order for this amendment was improperly made, it was within their discretion to vacate it, thereby.leaving, the return upon the execution as it was left by the officer to whom it was directed, and by whom it was executed. The question now to be considered, is not whether this court, under similar circumstances, would have done as was done by the court of common pleas, but whether that court, in the exercise of thoir discretionary power upon this subject, have violated any principle of law. We do not perceive that they have.

It is further alleged, that the court erred in ordering a deed after the lapse of fifteen ye'ars from the time of the sale.

The law “regulating executions,” passed January 19, 1802, and which has already been referred to, provided that if any sheriff or other officer, having sold land, should “abscond, orbe rendered unable, by death or otherwise, to make a deed of conveyance foi" the same,” etc., then “ the successor” of such sheriff or other office]" might, under the order of the court from which the execution issued, make a deed to the purchaser, which should, to all intents, be equally valid as if made bj7 the officer making the sale. The same principle has been contained in all the statutes upon the same subject, and there has been no less than seven of them, besides amendatory acts, from that time to the present. In the present case the execution was issued from the court of common pleas. It was proven, to the satisfaction of that court, that sale was-“fairly and legally made,” and that the vendee “had paid the purchase money.” The fact, that the purchase money had been paid, constituted, on the part of Walker, a strong equitable claim, and the proof introduced was such as, in contemplation of the statute, would require of the court, in ordinary cases, to make the order. It certainly is not a little extraordinary that the business-should have rested for so great a length of time. Nothing seems to have been done in it from 1812 to 1827. This circumstance would undoubtedly make the coui’t more astute in the examination of the testimony; still, as the statute makes no provision as to the time within which the order shall be made, we can not say that this* circumstance, of itself, would be sufficient to render the order, when-: made, illegal.

*It has been urged in argument, that the deed thus to bn. made should be made by the immediate successor of the officer making sale. But is this a fair construction of the statutes on the subject? To the court it would seem that it is not. It is true that all the statutes “regulating executions,” up to the year 1822,, speak of “the successor” as the person who shall make the deed in case the officer making the sale shall be unable to make it. The definite article, “the” being made use of, perhaps the strict grammatical construction would confine the power of making deeds to-the immediate successor of the officer making the sale. Courts,, however, do not seek principally for grammatical construction in-ascertaining the meaning of statutes. It. is their duty to carry into effect the intention of the enacting power, although, in so doing, the rules of grammar may be violated. To arrive at this intention, perhaps there is no rule of more general application, than this: to “considerthe old law, the mischief,and the remedy.” Suppose we apply this rule to the statute of January 19, 1822. I speak of this statute, because it is the first in our statute books which authorizes “the successor” to make deeds where his predecessor had made sale, and because since that time there has been no change upon the subject, certainly not before 1822. What them was the old law when this statute was enacted? The officer who made the sale must make the deed. What was the mischief? The officer who made the sale might “abscond, or be rendered unable, by death or otherwise,” to make the deed; consequently the purchaser must lose the benefit of the purchase, and if the purchase money had been paid, must also lose the purchase money. What is the remedy? In case of the inability of the officer who made the sale to make the deed, any individual, who may subsequently hold the same office, may, under the direction of the court from which the execution issued, make the necessary deed and conveyance, which shall have the same effect, “to all intents,” as if made by the officer making the sale. Adopt the. construction contended for by the plaintiff’s counsel and the mischief resulting from the old law would be but partially remedied. The immediate “successor” of the officer making the sale, might, as well as his predecessor, be “rendered unable, by death or otherwise,” to make a deed. He *might, in fact, vacate his office before a term of the court-from which the execution issued should intervene, in which the necessary order could be made. The intention of the legislature must have been to secure to the purchaser the benefit of his purchase; and this intention could not, in every case, be carried into effect were the construction insisted upon by the counsel for the plaintiff to prevail. However it might have been under the laws previous to 1822, the act of the 1st February of that year, “regulating judgments and executions,” places the question beyond a doubt. Section 13 of that act provides, that if the officer making the sale shall be incapable of making a deed, then “it shall be lawful for any succeeding sheriff or other officer to do it. 20 Stat. Laws, 74. The same phraseology is used in the statute of February 4, 1824 (22 Stat. Laws, 113), under which statute the deed in the present case was ordered.

It has been further urged, that the vendí., and the proceedings under the same, were irregular, inasmuch as there was no indorsement of nulla bona upon the writ of ft. fa. Had this been the fact, a difficult question might have been presented. But we are satisfied, from a careful examination of the record in this case, no •question is presented as to the necessity of such indorsement. •Counsel have been led into an error by confounding the case of Fowble v. Walker, decided at the present special session, with this case. In that ease, it is true, it was proposed to show that there was no indorsement of nulla bona, but the court of common pleas rejected the evidence, as coming in at too late a period. In the present case, it does not appear whether such indorsement was or was not made.

Upon the whole, we are not prepared to say that there is anything erroneous in the decision of the court of common pleas; the .same must therefore be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    * Jacob Fowble v. Christopher Walker.
    Party in court, when an order is made affecting his interest, and making no objection, can not, of right, be heard to make a motion to rescind such order. He must show some reason for his negligence, addressed to the sound discretion of the court.
    This case came before the court in Hamilton county, and was adjourned for decision at this special session. The record discloses the following facts: On September 21, 1808, Rayberg and Taylor i {covered judgment against Eowble for one thousand one hundred .&~¡ad fifty-five dollars fifty-three cents damages, eight dollars seventy-cue cents costs, in the court of common pleas, and eleven dollars twenty-nine cents costs in the Supreme Court. On October 21,1808, a writ of ft. fa. issued to the sheriff of Hamilton county, returnable to December term of the same year. On this execution the sheriff, Airón Goforth, returned: “I have levied on one hundred and six and one-third acres of land, in the northeast corner of section 25, township 3, and fractional range 2. Also, ninety-four and three-fourths acres, in lot 25, township 3, fractional range 2, which remains unsold.” On May 1, 1809, a vendi. issued, upon which the ■sheriff made the following return: “I have held inquiry, and property of the annual rent of four hundred and fifty-four dollars sixty-two and two-third cents, and of the value of four thousand four hundred and twenty-six dollars sixty-two and two-third cents, was appraised by inquisition hereto annexed.”
    On the 5th of September, an alias vendi. issued, directed to Aaron Goforth, late sheriff of the county of Hamilton, on which the sheriff made return that he had sold the property to Christopher Walker, on December 8, 1810, for two thousand nine hundren and seventy-six dollars. This return was signed by “Aaron Goforth, late sheriff.” Goforth died soon after and before any deed was made. At the December term, 1812, of the court of common pleas, on the application of William Corry, one of the administrators of the late sheriff, Goforth, it was ordered that the return made on December 8, 1810, should be amended, and it was accordingly amended to read as follows : “ Property on hand for want of bidders.” Subsequent to this another vendi. was issued, but no return made. Here the matter rested until the December term of the *same court, 1827, when a motion was made, by [65 Walker, for an order to the present sheriff to execute a deed on the return made by the late sheriff, Goforth, upon the execution of September 5, 1810, and so to vacate the order and amended return, made at the instigation of the administrator of Goforth, at the December term, 1812. This motion was continued to the February term, 1828; and at that time, to wit: on the 26th day of February, it being proved that the purchase money had been paid, the court, upon examination of the whole case, made the following order:
    “William Rayberg and William W. Taylor v. Jacob Fowble, executor, No. 59, to December term, 1810, on judgment as follows: Damages, one thousand one hundred and fifty-five dollars fifty-three cents; costs, C. P. eight dollars and seventy-one cents, S. C. eleven dollars and twenty-nine cents. Interest from September 21,1808. On motion, the court set aside the amended return made on the above execution, by the administrators of Aaron Golorth, deceased, and reinstate the former one, and order the said amended return to be held for naught, and that all the subsequent proceedings had by reason of said amended return, be also set aside and held for naught. Jacob Burnet sworn and examined. The court having carefully examined the proceedings of Aaron Goforth, Esq., late sheriff of' Hamilton county, on the above execution, order it to be entered of record; they are satisfied that the sale of the property therein described, on December 8, 1810, to Christopher Walker, for the sum of two thousand nine hundred and seventy-six dollars, has been, in all respects, in conformity with the statute. It is therefore ordered by the court, that John C. Avery, Esq., sheriff of Hamilton county, make and execute a deed to the purchaser accordingly; and from testimony exhibited, court are satisfied that the proceeds of the sale have been regularly paid ovor.”
    On the following day, to wit, February 27, 1828, Fowble made a motion in tho same court, to set aside and vacate this order, which motion was continued over to the 6th day of March and then overruled, the court refusing to sustain the motion, on the ground that opportunity had been offered to show cause why the order should not have been granted, but that none had been shown.
    *When the motion was overruled, Fowble, by his counsel, tendered a bill of exceptions, which was sealed by the court, the bill of exceptions discloses among others, most of the foregoing facts. It also shows that while the motion of Walker was pending, Fowble was in court; that Goforth, when the sale was made, had ceased to be sheriff; that other judgments were recovered against Fowble, executions upon which were in the hands of the sheriff at the same timo with the execution in favor of Rayberg and Taylor; that it did not appear that there was an indorsement of nulla bona; upon any of tho writs of ft. fa., etc.
    The case now comes before the court, on a writ of certiorari, to reverse tho decision of the court of common pleas, on tho motion submitted by Fowble. Yarious errors are assigned, but it is deemed unnecessary to state them specifically.

      Caswell & Starr, for plaintiff.
    Wade, for defendant.
   Opinion of the court,by

Judge Hitchcock:

Notwithstanding the variety of facts which are spread upon the record in this case, and the variety of errors assigned, it seems to-the court that the principles upon which it must be decided, are confined to a very narrow compass. Had the plaintiff shown cause against the motion which resulted in the order of February 26,1828, while that motion was pending; had the court of common pleas adjudged the causes thus shown insufficient, and had the plaintiff tendered a bill of exceptions, spreading the same facta upon the record, as they appear upon the decision of his own-motion of the 27th of February the question presented would have been different, and probably of more difficult solution. We should then have been under the necessity of inquiring into the validity of that order. The arguments of counsel, as well as the assignment of errors, seem to be predicated upon such a state of case. An examination of the record shows an entirely different case. It ia the proceedings and decision upon the motion of the 27th of February *made by Fowble himself, and not upon the motion made by Walker, at the November term, 1827, of the court of common pleas, which is said to be erroneous. Fowble, although in court, did not show cause against the motion first above referred to; he made no objection to the order; he lay back until the order was made, and subsequently submitted his own motion to the court, to set aside or vacate this order. The only question which can now be examined is, whether the court erred in refusing to sustain this motion.

Motions of this description, or those somewhat similar in their nature, are frequently made, and are always addressed to the sound discretion of the court. By sound discretion, I do not mean an arbitrary discretion, but such a discretion as may be exercised without the violation of any principle of law. Parties, not unfrequently, in the progress of a cause, lose advantages in consequence of their own negligence or laches, to which they may or may not. be restored on motion, at the discretion of the court. If restored,, it must be upon such terms as the court think proper to impose. Motions to set aside nonsuits or defaults, for new trials, to amend pleadings, etc., are within every-day practice, and it is discretionary with the court to grant or refuse them. Where, however, an advantage has been lost to a party in consequence of sheer negligence, it is rare, indeed, that a court will on motion grant relief. For instance, a defendant neglects to plead, and suffers judgment to go by default. It must be an extraordinary case, that will induce the court to set aside the default, unless the defendant offers some plausible excuse at least for his neglect.

The motion of Fowble is not so far dissimilar to those referred to, but that the same principle ought to govern in the settlement of it. Had he had no day in court, he would have appeared under more favorable circumstances. But he had a day in court, and it was owing to his own laches that he was deprived of a full investigation. He neglected to show any cause against the motion of Walker, until that motion was disposed of by making the order of 26th February. He made no excuse for this neglect, and on account of this neglect, the court not only refused to sustain, but overruled his motion of the 27th February. It was within the discretion of the court to grant or refuse it, and we are not prepared *to say, that in the exercise of that discretion, any principle of law was violated, that any error was committed.

The decision of the court of common pleas is affirmed.


text:
    Claudius Bustard v. John B. Dabney, Adm’r, and the Heirs of Oliver Fowler, deceased.
    Bill in equity to subject the real estate of a decedent in Ohio, where the heirs and representatives reside in another state, and where no letters of administration have been taken in Ohio, can not be sustained. The creditor may himself take letters of administration, and thus have complete remedy at law.
    This was a suit in chancery, adjourned here for decision from •the county of Clermont. The bill charges that Oliver Fowler died indebted to complainant; that he left a will, which was duly proven .and recorded in the State of Yirginia, where he died; that administration, with the will annexed, was granted to John B. Dabney, who assumed the execution of said trust; that complainant brought suit against him in the county court of Campbell county, Yirginia, and at the November term of said court, in the year 1825, recovered a judgment against him for two thousand and seventy-six dollars seventy-four cents, and six per cent, per annum interest on two thousand dollars of said sum, from July 11, 1821, and on seventy-one dollars ninety-one cents, from April 27, 1822, and costs of suit. The bill further alleges that no part of said judgment has been paid, and that the administrator has no assets in his hands out of which to pay it. The bill then charges, that the decedent or testator died seized of certain tracts of land in the county of Clermont, describing them, and which are particularly described by the survey. The bill makes the administrator, widow, and heirs, parties, and prays that the lands may be sold to pay this-debt and costs. The defendants are all non-residents. The infanit heirs who are defendants, have filed their answer by Thomas Morris, their guardian ad litem. ■ All the other defendants have failed to answer, and are in default.
    Benham, for complainant:
    The complainant insists that he is remediless at law; that he could neither attach the land, nor could he or any other person administer upon it. Administration in this state, can *only be granted upon the estates of persons who die intestate. Here the person left a will, etc.
    But if the complainant, as a creditor, could administer, he is not bound to do it; it is a trust the law compels no man to assume, nolens volens. Chancery jurisdiction is never denied upon the ground that there is a remedy at law unless that remedy be plain and direct.
    Here there can be no remedy at law in the direct and ordinary way; no process can be served upon the administrator, or upon the heirs, as they all reside in the State of Yirginia.
    But the subject matter of the suit is trust and confidence. Since the time of Lord North courts of equity in England have decreed the distribution of assets. 1 Term, 134. By the laws of Ohio lands are sub modo assets for the payment of debts, the descent is cast cum onere. Equity jurisdiction, in cases of this kind, is entertained upon the principle that it belongs to courts of equity to enforce the execution of trusts. They will always see that the property of a decedent is applied in payment of his debts and legacies, as the will directs; and in cases of intestacy, according to the statute of distribution. 1 Mad. Oh. 466, 468, 469 ; 2 P. Wms. 211; 3 Atk. 527; 4 Ves. 607; 7 Ves. 197, 452. Lord Redesdale says the jurisdiction of the court not only extends to the trustee, who .-is rightfully possessed of the property, but to all persons who come into the possession of the property with notice of the trust. 1 Sho. & Lef. 262.
    A creditor may file a bill against the -administrator to compel administration of assets, as the cases above cited abundantly show.
    In 4 Mum. 289, it is decided that a court of equity, where there is no executor or administrator, or where process can not be served at law, will settle a claim against the estate, and if necessary, at .the same time compel the sureties of the administrator to account .for his devastavit. Vide also 3 Mum. 194.
    In this case the claim has been established at law, and no plea would be admissible in an action upon this record but nul tiel record. *The doctrine now contended for is fully recognized, and all the cases reviewed by Chancellor Kent, in 4 Johns. Ch. 619, in point.
    If the heirs of the testator were within reach of the process of •our law, they could be made parties to this judgment by scire facias, and the lands which they hold by descent subjected to its •payment.
    If it be said that this proceeding may operate severely upon other creditors, I answer, vigilantibus non dormientibus leges subve.nient, and that the hardship might be equally great, under a proceeding against the heirs by scire facias, or in a proceeding by attachment.
    No argument was submitted on the other side.
   Opinion of the court, by

Judge Hitchcock:

In all cases where application is made for the extraordinary interposition of a court of chancery, in granting relief, the first inquiry which presents itself is, whether the complainant- has plain, complete, and adequate remedy at law. If he has such remedy, he must seek it through the courts at law. It is not sufficient for him to show that he is entitled to redress; he must show that he is entitled to it in the manner and in the court in which he seeks to ■obtain it.

Our laws are different from those of England, and some of our uister states, on the subject of the settlement of estates. The only privileged debts with us are those contracted in the last sickness of a decedent and for funeral charges. All others are to be paid in equal proportion. To adopt any course of proceeding which would interfere with this principle, would have a tendency to defeat the policy of the law.

By the constitution itself, the court of common pleas is vested with the “jurisdiction of all probate and testamentary matters, granting administration, the appointment of guardians,” etc. Art. 3, sec. 5. Every legislative provision which is necessary, has been made for the settlement of estates. The rights of creditors, as well as others interested, are well secured. Section 1 of the act “ defining the duties of executors and administrators,” 22 Statute *Laws, 125, prescribes the duty of the court of common pleas in the appointment of administrators, where any resident of the state may die intestate. If the widow, or next of kin, will not accept the trust, then any creditor of the intestate, who will apply, may be appointed. Provision is made in the same law, directing the course to be pursued, should a will subsequently be discovered and proved in court. Prom such time the powers of the administrator must cease, but his acts previously performed are obligatory. Section 24 of the same act provides for the appointment of administrators upon the estate of such persons as shall die leaving no property, real or personal, within the state, such person not having been a resident of the state. And further, that the same “ rules and regulations ” shall govern as in other cases.

Pursuing the provisions of this law, the complainant has complete and adequate remedy. He is a “ creditor,” and, if no other person will do it, may take letters of administration. His interest would be as well secured by adopting the course prescribed by this statute, as it would be were the court to sustain the present bill. Should the bill be sustained, the court would give the complainant no advantage over the other creditors, but would see that the avails of the property was distributed among them in proportion to their several demands. In making a distribution we should look to, and be governed by, the general law for the settlement of estates.

It has been urged in this case that the decedent left a will, and of course that it would be improper to apply for letters of administration. This circumstance, however, can be no objection. Unless-the will' is produced, the court of common pleas of the county where the lands lie has an undoubted right, and is, upon application, bound to grant letters of administration. If the will be produced, then letters may be granted, with the will annexed. In either event the complainant secures his object of subjecting the lands to the payment of debts.

It is further urged that the complainant, being a creditor, although he might take letters of administration, still is not bound to do it. True he is not. The law will not compel him to assume the trust. But when the law has provided a *“ plain and direct” remedy, this court will not interfere to give the complainant a different one merely to gratify his caprice. He may either accept the remedy prescribed or abandon his claim.

If there were no remedy at law this court would not hesitate to take jurisdiction, but inasmuch as there is, the bill must be dismissed with costs.


author: By the Court:

text:
    James Steele v. Fielding Lowry, Sen., Peter P. Lowe, and others.
    Deed of trust made by grantor, the grantee having agreed to accept the trust, and put upon record, is sufficient delivery.
    Where a deed of trust conveys property to be held by the trustee, and disposed of, on the direction of the grantor, and invested in lands, for the benefit of the contemplated issue of a marriage, the property conveyed inure;! for the benefit of such issue, though the grantor die, without directing it sale.
    If an administrator take goods on replevin, as the property of his intestate,, from the possession of a person who is not owner, and on the trial judgment is rendered against him, equity will direct an assignment of such judgment, for the use of the real owner of the goods.
    This was a bill in chancery, sent here for decision from Montgomery county. The principal object of the suit was to obtain the legal construction of a deed of trust, made by Sophia Lowry, deceased, of whom the defendant, Lowe, was administrator, and the other defendants, her late husband and her children by him and by a former marriage. So much of this deed as is material to a right understanding of, the points decided is as follows :
    “ This indenture made January 4, 1822, between Sophia Cooper and James Steele,” etc. The indenture, after reciting that Mrs. C. had property, goods, etc., that came to her from Mrs. Z. and a former husband, and that a marriage was intended between her and one Fielding Lowry, witnesses that she “gives and grants all her goods, rights, credits, etc., in trust; that the said James Steele shall sell and dispose of the same whenever, in the opinion of the said Sophia, declared in writing, a reasonable price can be obtained for the same, and shall vest the proceeds in the purchase of lands within the State of Ohio, to be conveyed in fee simple, to the child or children of her, the said Sophia, to be by him, Lowry, begotten, share and share alike; and in case the said Sophia shall die without issue, then to the heirs of the said Sophia in fee. And in further trust, that the said Steele shall permit the said S.ophia to have, use, and occupy the said goods until, in the opinion of said Sophia, a reasonable price can be had for the same.”
    *The bill states that the marriage took place, and issue was born living, to wit, Fielding Lowry, jr. Mrs. Lowry died in May, 1825, without any declaration, and having in possession the personal property specified in the deed. The defendant Lowe was appointed her administrator, and took an inventory of the goods, etc., found in possession of Lowry the elder, who declined to deliver possession to Lowe. ' Lowe, who considered the prop'erty assets to which he was entitled, prosecuted a writ of replevin, and judgment was rendered against him, in favor of Lowry, sr., for the sum of one thousand four hundred and thirty-sis dollars and thirty-one cents. The bill claims that the administrator shall pay the debts of Mrs. Lowry, and prays that the residue may be paid to the complainant, for the benefit of her heirs general, and an injunction to prevent the collection of the judgment recovered by Lowry, sr., against Lowe.'
    The answer of F. Lowry, sr., denies that the trnst deed was ever delivered to the complainant, but states that it was left in the hands of the defendant, and there remained until the death of his wife. He claims the property in his own right, as having been reduced to his possession during coverture, or in right of his infant son, issue of the marriage. The answer of P. P. Lowe, the administrator, admits the principal allegations in the bill, and wishes the business amicably settled. There are interrogatories filed which do not materially vary the above facts. The infants answer by guardian.
    The testimony of Henry Bacon, who drew the trust deed, shows that the facts were known to Lowry, sr., who advised the course. Steele was not present when the deed was executed by Mrs. C., but had been consulted, and agreed to be trustee. The deeds were executed, and directed by the grantor to be put on record, and delivered to the complainant.
    Upon this state of the case, three different claims were set up to the personal property enumerated in the deed of trust.
    1. P. Lowry, sr., the husband, claimed that the deed was inoperative, and the property vested in him, by possession in right of his wife.
    *2. P. Lowry, jr., claimed that the entire interest was secured to him, unless the proceeds were necessary for the payment of debts.
    3. Por the children of Cooper it was claimed that the trust enured for the benefit of the heirs general of the grantor.
    The administrator also claimed that the proceeds should be applied to the payment of the debts of the grantor, his intestate, whether incurred before or after her marriage.
    Stoddart, for Lowry, sr.,
    contended that the deed of trust to Steele had never been so delivered as to operate.
    Collett and Corwin, for P. Lowry, jr.,
    argued that the deed of trust was intended as a provision for the issue of Mrs. C.’s contemplated marriage with Lowry, if she should have such issue, as was evinced by the provision, that on the failure of such issue, the property should go to her heirs general. They cited Reeves Lorn. Rel. 182; 3 Term, 618; 2 P. W. 255, 266, 489; 1 Mad. 52; 4 Ves. 708; 5 Ves. 495.
    Crane, for the children of Cooper,
    maintained that the deed created a general trust for the children of the grantor, reserving a power to direct herself that the whole should go to the issue of the marriage, and that this power never being executed, the trust must be held to operate for the use of all.
    The claim of the administrator as to the payment of debts, not being embraced in the opinion of the court, it is not necessary to notice what was urged in support of it.
   By the Court:

It is said, that delivery js either actual, by doing something and saying nothing, or verbally, by saying something and doing nothing; or it may be, by both. So a deed may be delivered by him who makes it, or by any person of his appointment or authority precedent, or assent, or agreement subsequent. Shep. Tóu. 55. A deed delivered in trust, for the grantee, is sufficient. 2 Mass. 449. If a deed is read *and not formally delivered, but left in the same place, this is a delivery in law. Crok. Eiiz., Co. Lit. 360. Here the grantee had consented to accept the trust, and the grantor with the knowledge, consent, and approbation of her intended husband, executed the deed, and directed it to be recorded and delivered. The testimony leaves no doubt of the delivery according to the. strictest formalities of the common law. 1 Johns. ,Ch. 250.

This deed passed the entire estate to the trustee, for the benefit of the issue of the intended marriage, and for want of issue, then to the heirs general of the grantor, reserving the use of the personal property, and a discretion in the donor, as to the time of the sale of the estate. The reservation of power was to direct the sale, whenever, in her opinion, a reasonable price could be obtained. The terms of the reservation would probably embrace the whole estate, both real and personal. The principal object was to turn the pei’sonal into real estate, for the proceeds were to be invested m lands in this state. This discretion was a mere division of the trusts for the more effectual security of the issue. Where there is a clear intention that a person shall take, and the mode only is left to the party, that is a trust, which shall never fail by non-execution, or inability -of the trustee to exercise it. Brown v. Higgs, 5 Ves. 495.

It would be most unreasonable that the cestui que use should lose the whole estate, because the discretion of directing the time of sale was prevented by the death of the trustee. If the principle should he admitted that there was a resulting trust, by the nonsvppointment of the grantor, the effect would be a distribution of the estate among the heirs general of Sophia Lowry, expressly contrary to her intention. She has declared, in her deed, this distribution shall not take place, unless she should die without further issue.

The case of Cook v. Brooking, 2 Ves. 51, was very much like the one under consideration. Mallock devised fifteen hundred pounds to S. and J. Snow, to be disposed of upon secret trusts, revealed to S. Snow, who declaring in writing, they should', of the profits, maintain the testator’s daughter, Anno, then married, and in case she should survive her husband, she was to have the whole sum; but, in case she died in the lifetime of her husband, then the fifteen hundred ^pounds were to go to his daughter L. in such shares and proportions as Anne should advise. Anne died in the lifetime of her husband, and made ho appointment. The court held that this was not a resulting trust, and distributed the money amongst the children of L. per stirpes. Whether we consult the obvious intention of the donor, or the principles of law applicable to the case, the result is the same, that here is no resulting trust to the heirs of-Sophia Lowry, in consequence of. her death without declaring her opinion that the time had arrived when a reasonable price could be obtained for the property, secured to the issue of the marriage. The complainant, therefore, as cestui que trust for the infant defendant, F. Lowly, jr., is entitled to the property, or its value, either from Lowry the elder, or the person who has obtained the possession of it from. him.

But it appears from the pleadings that the defendant, Lowe, as administrator of the estate of Sophia Lowry, prosecuted an action of replevin against F.'Lowry, sr., for the personal property mentioned in the deed of trust, and that, having failed to establish his right, judgment has beeii rendered against him for the sum of one thousand lour hundred and thirty-six dollars and thirty-one cents, the value found by a jury under the provisions of the statute. The property belonged to neither of .the parties to the suit, and yet the defendant has obtained a judgment for its full value. The law has either transferred that property to the plaintiff, which clearly does not belong to him, or thero is a penalty at least to its full value for commencing a groundless action. This is a view of the statute not very favorable to its provisions, as a substitute for the writs, de retorno habendo and of withernam. It is fortunately, perhaps, not now necessary to consider whether Lowe would be also answerable to the trustee for the property, or its value, in case he elected to bring an action at law upon the tortious possession of the administrator. This court thinks that without violating any principle of equity, the judgment in favor of Lowry the elder, can be taken as a.trust-fund for his infant son. This is upon tho grounds that the judgment is more beneficial to the infant than the goods in specie., 'Lowe can not be aided in this court. This has already been determined in the case of Lowe, Administrator v. E. Lowry, sr., et. al. The *proceedings in replevin have 'transferred to him. the possession of the property, and charged him with the judgment. He must abide by this bitter law. But as that judgment is the proceeds of the infant’s property, and as neither the plaintiff nor the defendant in the action had a shadow of legal right, equity requires that Lowry,-sr. should transfer it to cestui que trust, to be applied according to the declared intention ot Sophia Lowry. The court decree that F. Lowry, sr., assign the judgment, recovered in an action of replevin against P. P. Lowe, except the costs, to the complainant, who is to collect the same in the name of Lowry, who is perpetually enjoined from interfering with the collection thereof, or from discharging or releasing the same, or the proceeds thereof. And, as to the other deiendants, tho bill is to be dismissed. And it is further ordered and decree that the costs of this suit be paid out of the proceeds of the judgment, and the residue be retained by the complainant, for the further directions of this court.


text:
    Peter P. Lowe, Administrator of Sophia Lowry, deceased, v. Fielding Lowry, James Steele, and others.
    Bill of peace can not be sustained with respect to personals, where no title is established at law, and it is not necessary to prevenía multiplicity of suits.
    Party prosecuting at law, a groundless action of replevin, can not be relieved in equity against the legal consequences.
    This was a bill in chancery, which was adjourned here for decision from Montgomery county, in connection with the preceding cause, between the same parties. Tho facts necessary to state, for a clear understanding of the decision of the court, are these:

      In the month of January, 1822, Sophia Cooper, widow and relict of Daniel C. Cooper, deceased being possessed of considerable personal property, and some real estate, both in her own right, and as dower in her late husband’s estate, being also the mother of two children, sons of herself and D. C. Cooper, deceased, in contemplation' of a marriage with the defendant, Fielding Lowry, made a conveyance in trust, of her principal property, real and personal, to the defendant Steele, to hold the same for her own use, during her ^contemplated coverture, and for any issue that might spring from it, reserving a power in herself, at any time, to direct the trustee in making certain dispositions of the property, The marriage took place, and there was issue of it, one son, thfi defendant, Fielding Lowry, jr. The property remained in. the possession of Mr. and Mrs. Lowry, and was considered subject to the trust, until her death in 1825. She had contracted some debts during her widowhood, which remained unpaid. Some debts arose during her marriage with Lowry, in improving hec real estate, and the expenses of her last sickness and funeral were to be paid. The plaintiff Lowe, at the request of the defendant Lowry, took letters of administration to Mrs. Lowry, and under these, he claimed from Lowry, in whose possession they remained, the personalties included in the deed of trust. Lowry refused tv) deliver them, upon which Lowe, having had them appraised, brought a replevin against Lowry, and thus obtained the possession. On the trial of the replevin, a verdict was rendered against Lowe, and damages given in favor of Lowry for twelve hundred and fifty dollars seventeen cents, as the value of the -goods, one hundred and twelve dollars eighty-seven cents, as interest, and sixty-nine dollars twenty cents as costs.
    The bill sets out these proceedings, and also sets out the debts due from Mrs. Lowry, and the means within the reach of the administrator to pay them. It prays'a decree, charging the estate of Mi's. Lowry with these debts, and requests that some order be made for the legal disposition of the balance, asks an injunction against the judgment obtained by Lowry in the replevin suit, and prays for general relief.
    The defendant Steele admitted the facts stated in the bill; Lowry demurred.
    Lowe, for complainant.

      Bacon, for defendant.
   By the Court:

There is no equity in the bill upon which the complainant can be relieved. Its chief object, though somewhat dimly *prosented, is that of a bill of peace. But the subject matter does not relate to real estate, and as to the personal, the complainant has established no right at law. This is deemed indispensable to sustain a bill of peace, unless an issue is,necessary to bring in different interested parties, and thus prevent litigation, and a multiplicity of suits. 2 Johns. Ch. 281.

There seems to be no ground for relieving the complainant against the judgment at law, in the action of replevin. There is no allegation that the complainant was ignorant of any material fact since discovered; no suggestion of fraud, accident, surprise, or mistake. No circumstance is charged in the bill to warrant a conclusion that the judgment at law is not according to the right of the case. On the contrary, we are satisfied, from another case which has been before us in connection with this, that the judgment against the complainant in replevin is unimpeachable. The facts that he prosecuted a groundless action, and that the result has involved him in a heavy responsibility, supply no grounds for his relief here. If the peculiar provisions-of the statute regulating the proceedings in replevin operate hardly in a particular case, that circumstance • invests the court with no power to relieve against them. 4 Ves. 639. The injunction must be dissolved, and the bill dismissed with costs.


author: By the Court :

text:
    Lawrence King v. Nathan Kenny.
    Original survey and orders in the commissioners’ books are admissible evidence, in the place of authenticated copies.
    This was a writ of error to the court of common pleas of Athens county, brought to reverse a judgment rendered in that court, in a case where the plaintiff in error was defendant, and the defendant in error plaintiff. It was an action of trespass with force and arms', for breaking and entering plaintiff’s close, breaking down and carrying away fences, and for carrying away and converting rails. Plea, not guilty. Yerdict and judgment for the plaintiff for five dollars and costs.
    *At the trial, the defendant took a bill of exceptions to the admission of certain testimony offered by the plaintiff. The testimony offered and excepted to, consisted of the commissioners’ books, containing the minutes of the proceedings of the commissioners in laying .out a road, and the original report of the reviewers and plat of survey, without a record of either. Upon this bill of exceptions the writ of error was founded, and the error assigned was the admission of the testimony.
    H. Stanbery, for plaintiff in error :
    Section 4 of “the act for opening and regulating roads and highways,” 22 Stat. 306, in directing the manner of laying out county roads, provides, among other things, that the line of the proposed road shall be viewed and surveyed, and that the survey and report of the viewers “be recorded, and from thenceforth such ¡road shall be a public highway.” ' /
    The language of this section is perfectly plain and explicit. It points out, distinctly, every step which is to bo taken in the establishment of a road, and finally requires the plat and report (which show the location) to be recorded, and from thenceforth it is a highway.
    This provision is capable of but one construction. Until the record is made there is no road. It is useless to inquire into the expediency of this enactment. The law is so written, and with that clearness of expression which concludes all argument, and makes manifest the intention of the legislature.
    The plaintiff below attempted to prove the establishment of a county road according to the provisions of this statute; and for this purpose he offered the original report and survey, unconnected with any record of either. The court below held them to be proper evidence of the establishment of the road, and permitted them to go to the jury. It will be remarked that there was no attempt to show that these papers had ever been recorded; no foundation laid for their admissibility as secondary evidence. They are treated by the court as proper and independent evidence.
    *Can the statute, by any latitude of construction, be reconciled with this decision ? The legislature say that the record shall be made,, and then the road becomes a public highway. What, then, is the essential evidence of the establishment of the highway? Beyond question, it is the record. But the court below held the record to be immaterial — that it need not be shown to exist, and that the original unrecorded papers evidence the legal (in other words, the statutory) highway. It seems to me it were as well to hold the original files and minutes of a court the proper evidence of its proceedings — or an unregistered deed admissible, where the laws require it to be recorded.
    It will be urged that if all the steps required by this statute are to be followed, great inconvenience will be felt, and many roads, now used as public highways, be vacated. And if it were admitted that these consequences are likely to follow, could that change the obvious construction of the law or the settled rules of evidence? The legislature fix the law and determine its policy; the court declare what has been enacted. It is true, and perfectly proper, that, in aid of a doubtful construction, arguments, from inconvenience, do apply: but where the law is express, the intent manifest, they, surely, can have no weight. But there is, in truth, no inconvenience in requiring that at least this clause of the statute be followed. The record is easily made, and furnishes lasting and satisfactory evidence of the true-location of the road. In New York the statute .regulating highways provides two modes by which public roads may be established. The first is where they are laid out by commissioners according to the directions of the act. The second is where they have been used as public highways for twenty years preceding March 21, 1797. The commissioners are to cause the highways laid out by them to be recorded. Under this act it seems to be admitted,' as of course; that the record is essential in the establishment of a road by the commissioners. Colden v. Thurbur, 2 Johns. 424; Sage v. Barnes, 9 Johns. 365.
    It may be further urged by the defendant in error, that if such strictness is required in proving the establishment of a road, no man can travel on the public highways without being in danger of an action of trespass. That argument *does not apply to this case. Where a road is opened, and has been used as a public highway, the traveler who passes along it would hardly be liable to'the action of the owner, or, if sued, be held to any other proof of justification than of the fact of its being so used. And for a very obvious reason. The owner of the soil, while he suffers it to remain open and be used by the public as a highway, gives to the public a license to travel there. But the case presented by the bill of exceptions is totally different. There was no proof of a road in fact; no license or user shown. The plaintiff below undertook to prove the establishment of the highway according to law, and in that hefailed.
    It would follow, then, that if this statute is to have any effect, or to be expounded by the known rules of construction, the opinion of the court below was erroneous.
    No argument was submitted for the defendant in error.
   By the Court :

The error complained of in this case is, the admission of original documents in evidence instead of authenticated copies. It is clear that the question, as presented in the record, is not a mere abstract proposition, as applicable to any other case as to this. In such cases, a bill of exceptions does not lay the foundation for a writ of error. 1 Cranch, 310. Another rule as to the bills of exceptions is, that the party excepting must distinctly point out wherein he may have been prejudiced by the decision excepted to. 2 Caine, 169; 8 Johns. 387.

But waiving this consideration, the court are called upon to determine the points, whether the original papers with the minutes of the commissioners are admissible evidence to show the establishment of a road, or whether the record makes the public highway. The statute declares, the commissioners shall cause the report, survey, and plat to be recorded, and from thenceforth the road shall be considered a public highway. The petitioners, the reviewers, the surveyor, and commissioners performed the whole duties under the law. The omission was in the clerk of the commissioners. It would seem unreasonable that such ministerial nonfeasance should render the whole proceedings nugatory. *To authorize this construction for such omission would require precedent and authority; but, in fact, they are the other way. When all the requisites have been performed which authorize a recording officer to record any instrument whatever, it is in law considered as recorded, although the manual labor of writing it in a book kept for that purpose has not been performed. Marbury v. Madison, 1 Cran. 161; 10 East, 350, The commissioners holding a public office, and entitled to the custody of their own records, can not be compelled to produce the originals in court; but when presented they are as good evidence as copies can be, authenticated in the most ample forms of law. Courts, for a most obvious reason, will not compel the production of their own original records, as evidence for parties, or those of any other public officer; but have never refused to admit them on the grounds that they were not of as high a nature as copies. Indeed, it is a general rule, which admits of no single exception, that originals are good evidence where copies would be admitted. 1 Starkie Ev. 151. The authenticity of the copy can not be made more perfect than the record itself. A record, therefore, may be proved by mere production. It appears in this .case the original documents were before the court, as well as the minutes, and we will not inquire how they came there. When these proceedings were found in the possession of the party offering them in evidence, the court below had no further inquiry than to reject or admit them.

Judgment of the court below affirmed.


text:
    Calvary Morris, Sheriff, etc. v. John Marcy and others.
    Bond taken hy the sheriff" for defendant’s appearance on attachment is valid.
    This was an action of debt, adjourned here for decision, from the county of Athens. The declaration was upon the obligatory part of the bond, in the usual form. The defendant, Marcy, craved oyer, and set out the condition in these words :
    * “ The condition of this obligation is such, that if the above-bound John Marcy shall and does appear before the judges of the Supreme Court, to be holden at Athens, in and for the county of' Athens, on the first day of the next term, and answer unto what shall then and there be objected to him, by the State of Ohio, and not depart the court without leave, then,” etc.
    Upon the oyer, the defendant Marcy, pleaded:
    1. Won est factum.

      2. That the bond was executed by Marcy, as principal, and his co-defendants as his sureties, to the plaintiff Morris, as sheriff, and that at the time when the bond was so executed and delivered, the sheriff had not served, and was not serving any wr.it of capias against said Marcy, upon any indictment found, etc.
    To this plea the plaintiff replied, that the Supreme Court, sitting in Athens county, awarded a writ of attachment against Marcy, for contempt, returnable to the next succeeding term, which writ was duly issued, and put into the hands of the sheriff, command ing him to take the body of said Marcy, etc., upon which writ he arrested Marcy, and at his special request took the bond, etc.
    The defendant demurred.
    H. Stanbert,
    in support of the demurrer, maintained:
    That the statute law of Ohio, the act providing for the service and return of process, Vol. xxii. 193, did not extend to the Case of an arrest upon attachment, and could not be sustained as a statutory bond. As a common law bond, he contended it was void, as taken for ease and favor. He distinguished it from cases where bonds were taken, under a proper authority, but not in strict conformity with the directions of that authority. He also insisted, that bonds of this description were against public policy. He cited, 1 Stra. 479; Com. Rep. 264; 1 H. Bl. 468; 5 Mass. 541; 4 Term, 505 ; 2 H. Bl. 418; 2 Ohio, 284.
    J. Olds, for the plaintiff,
    and in support of the bond, contended: That statutory authority to take the bond was not essential to its validity. 7 Mass. 200; 8 Mass. 373; 12 Mass. 367 ; 2 Dali. 122; 1 Saund. 200. He argued that the ^English cases cited were founded upon the Stat. 23 Hen. YL, which contained a clause prohibiting the officer from taking a bond, colere officie, where express authority was not given.
   By the Court:

The court are called to decide, upon the pleadings, whether, on attachment for contempt, the sheriff can take bail or not. The defendants do not rely upon performance of the condition, nor upon any excuse for non -performance; but, upon the fact that the sheriff took this bond, and discharged the prisoner, “ without having any capias upon indictment found.” The fourth section of the act to which this plea refers, authorizes an arrest in any county in the state, and directs the person to be committed, or held to bail, as shall be provided for by. law, etc. By the act “ defining the duties of sheriffs and coroners in certain cases,” the sheriff must preserve the public peace, and cause all persons guilty of a breach thereof', within his knowledge or view, to enter into a recognizance with sureties, for keeping the peace, and* appearing at the succeeding term of the common pleas, etc. The authority to take bail upon an attachment for contempt, is not expressly given to the sheriff by either of these acts. The necessity of issuing a capias for contempt, appears not to have been in the contemplation of the legislature, when they were under consideration. To enable the plaintiff to recover upon this bond, the power of the sheriff to take bail, must either be found in the usages of the common law, or be justly inferred from the provisions of our statutes.

At common law, bail was allowed for all offenses except murder. 2 Inst. 190. The accused might be bailed until convicted of the offense. 2 Inst. 186 ; Rex v. Daws, 2 Salk. 608. Daws was taken by attachment for contempt, and the sheriff took a bail bond for his appearance. The court agreed that a bail bond might be taken by the sheriff on attachment. A resolution of the judges appears afterward contrary to this. 1 Strange, 479. Both of those decisions grew out of the statute, 23 Hen. VI., c. 10, and the reasons are not given in either case. At common law, the sheriff was not compelled to take bail for the appearance of his prisoner, *but might of his own accord. 1 Vent. 55. By 1 Statute of Westminster,^the sheriff is forbidden to take anything for tho escape oí a thief or felon, unless it be first judged an escape by tho justices in Eyre. 2 Inst. 164. North, C. J., in delivering tho opinion of the court, in Ellis v. Yarborough, sheriff, etc., 2 Mod. 181, says, “the common law was very rigorous as to the execution of process ; the capias was ita quod capias, the body at the day of the return, and if tho sheriff had arrested one, it had been an escape to let him go. Before this statute, 23 Hen. VI., c. 10, the sheriff usually took securities for the appearance of the prisoner, and by this means used great extortion, etc., to prevent which mischiefs, this statute was made and so designed.” It seems, therefore, quite clear that, before this statute, the sheriff might take bail in criminal cases, although not compelled to do so. If the prisoner failed to appear, it was an escape; but the undertaking of the sureties was not void, and it would seem not void,

although taken for ease and favor, before the statute, 23 Hen. VI. So here, the sheriff might be liable, in the first instance, for the escape; but it would not follow that the bond taken for appearance would be void. We, therefore, conclude that the taking of the bond was warranted*by the principles of the common law, and can not be avoided by the obligors, unless the statute law restrained the powers of the sheriff. But if this exercise of authority was not warranted by common law, it would be worthy of inquiry whether it is not fairly inferable from our statutory regulations. It will not be seriously controverted, that a power to let to bail in criminal cases is one which can not safely be intrusted to those officers. The legislature has granted it to them upon indictments found and breaches of the peace. If it is.proper to be exercised after the guilt of the accused has been found by a grand jury, no sound reason could be discerned why it should not be before. The presumption of guilt is certainly stronger after than it is before indictment found. The statutes enlarge, but do not restrain the powers of the sheriff to take bail. We are forced to the conclusion, that the legislature intended to include the exercise of the less responsible power in the grant of the greater. This view of the powers of the sheriff is fortified by an examination of section 19 of the act, “pointing out the mode of trying criminals.” *If we give this act the strict construction insisted upon by the defendants, for the one to which their pleadings refer, a person imprisoned oh attachment for contempt, however small the offense, or weak the presumption *of guilt, would, in many instances, owing to casualties not unfrequent in this court, be compelled to suffer a most wasting imprisonment with-cut bail or mainprise. The act last referred to, if taken literally, nnd without latitude of construction, would only authorize a judge to admit to bail when the prisoner is confined by warrant, or capias upon indictment. This would be placing one who had merely disobeyed the orders or rules of court, in the situation of him who was under a charge of a capital crime. The statute should be very explicit to do this. While the rules of construction will admit of a different interpretation, the eourt should not put this harsh one upon them. The right to exercise this power by the sheriff is less doubtful than by a judge under the act above referred to. If neither have the power, the legislature must have widely departed from the general character of our criminaL juris* prudence, which is to extend to the accused every indulgence consistent with the public good. We think they have not so departed.

The defendant’s principal has received the full benefit of the condition of the bond, which is neither opposed to sound public policy, the usage of the common law, nor the provisions of any statute of the state; but, on the contrary, the right to take it is fairly implied in the powers given to the sheriff, in cases requiring more prudence and discretion, and seems to accord with the mild character of our criminal jurisprudence. The demurrer to the replication is therefore overruled.

Judgment for the plaintiff. Judge Swan was ill, and did not sit. Judge Hitchcock dissented.