text:
    McVickar v. Heirs of Israel Ludlow.
    On sci.fa. to make heirs party to a judgment against administrators, and sub- • ject land taken by descent to execution, it is necessary to recite that the judgment is in force and unsatisfied, and that the personalties in the hands of the administrators are exhausted.
    This case came up on a writ of error, at the May Term, 1826, in the county of Hamilton, before Judges Hitchcock, Burnet, and Sherman.
    A writ of scire facias had issued in the court below, in the following words: “ W hereas, in the term of December, Anno Domini 1818, of the court of common pleas within and for the county aforesaid, D. McYickar recovered a judgment, by reason of the non-performance of certain promises and undertakings lately made, etc., against John Ludlow, James Findlay, David Eisk, and Charlotte C. Eisk, being the surviving administrators of the goods and chattels of Israel Ludlow, deceased, for the sum of twelve hundred and forty-eight dollars, for his damages, together with the sum of twenty-three dollars and twenty cents, for his costs and charges, by him, about his suit, in that behalf expended; and it being represented to us that James C. Ludlow, Israel Ludlow, A. Dudley, and Catharine his wife, late Catharine Ludlow, Jepthah D. Garrard, and Sarah Bella his wife, late Sarah Bella Ludlow are heirs at law of the said Israel Ludlow, deceased, and that they have lands lying in the county of Hamilton, which they received from their ancestor, the said Israel Ludlow, deceased, as we, by the suggestion of the said D. McYickar, have been given to understand ; we therefore command you, that you give notice to the said James C. Ludlow, Israel Ludlow, A. Dudley, and Catharine his wife, Jepthah D. Garrard, and Sarah Bella his wife, children and heirs of Israel Ludlow, deceased, if they may be found in your bailiwick, to be and appear before the honorable the judges of the court of ^common pleas, at Cincinnati, within and for the county, on the 29th day of November next, to show cause, if any they have or can show, why the said D. McYickar should not have execution of the judgment aforesaid, and the same be levied of the lands and tenements so by them, the said James C. Ludlow, Israel Ludlow, Jepthah D. Garrard, and Sarah Bella his wife, A. Dudley, and Catharine his wife, children and heirs as aforesaid, held agreeably to the statute of this state in such case made and provided, if they shall think fit, and further to do and receive what may be then and there considered concerning them, and have then and there this writ. Witness,” etc.
    A rule for plea was taken, and at the August term, 1825, the defendants were defaulted and judgment entered; and afterward, at the same term, on motion, the judgment was set aside. The defendants then demurred to the scire facias; the demurrer was sustained and judgment rendered for the defendants, to reverse which this writ of error was taken.
    Gazlay, for plaintiff, assigned for error:
    “ That the court set aside the judgment entered in favor of plaintiff on motion, no reasons in arrest being filed or stated, and no other memorandum being made of any objections to said judgment. For these and other errors, appearing on said record, the plaintiff prays a reversal of said judgment, and that the court will give him the judgment which the court of common pleas ought to have given, with his debt and cost.”
    Este, for defendant in error,
    cited, 22 Ohio Laws, 118; Jefferson v. Moreton, 2 Saund. 7, 8, 12, and insisted that the scire facias was defective, and not sufficient to warrant the judgment prayed for by the plaintiff.
   By the Court :

In deciding this case, it will be proper to examine the errors assigned for a reversal of the judgment in the court below, and also the grounds of the plaintiff’s claim, to a judgment in his favor, in this court.

*It was decided in Botkin, etc. v. The Commissioners of Pickaway county, 1 Ohio, 375, that a final judgment in the court of common pleas could not be altered, in any matter of substance, at a term subsequent to that in which it was rendered ; but we do not know of any case that restrains the court of record from altering, or setting aside a judgment improperly entered, at any time during the term in which it was rendered while the proceedings are considered as being in paper. Such a power seems to be necessary to the correct administration of justice. In the hurry of business, many entries are made, which require to be amended, or erased, and a discretionary p'ower, exercised by the court, to correct the journal in such cases, prevents much error and expensive litigation. The form in which applications of this kind are made, depends chiefly on the rules and practice of the court. In this case the judgment was by default, and was set aside on motion, without the formality of filing written reasons, which we believe is the usual mode of setting aside judgments of that character.

The second inquiry leads to an examiuatiou of the scire facias, on which the plaintiff prays for judgment. This proceeding is founded on section 27 of the act of 1824, regulating judgments and executions; and although the'section does not prescribe the form of the process, yet it is sufficiently explicit, when taken in connection with its object, and the general rules of process and pleading, to enable us to decide without difficulty, what averments it ought to contain. Writs of this description are entered on the record, with a mere formal charge, in the caption and conclusion, as the declaration in the cause. They must, therefore, contain everything that is required to constitute a good declaration; or, in other words, they must set out all the facts that are necessary to show a right in the plaintiff to the relief prayed for. The question then arises, does the record before us contain these requirements. The statute, as far as it governs the case, is explicit. It limits the remedy to judgments that are unsatisfied. It authorizes the procedure only after the time allowed by the court for the settlement of the estate shall have expired. It requires the writ to be set forth, that the defendants hold lands *by devise, or descent, of the testator, or intestate, and the defendants must be called on to show cause, if any they have, why the judgment should not be levied of the lands so by them held. It was, therefore, incumbent on the plaintiff, in setting out his title, to aver that his judgment was unsatisfied, and that the time allowed by the court, for the settlement of the estate, had expired. On these points, the record is wholly silent.

The averments may be all true, and yet the debt may have been paid, or the time allowed to the administrators may not have expired. The scire facias contains an averment, that lands descended to the defendants from their ancestor, but what lands, or of what value, or whether they are now held by the heirs, subject to an execution, or not, does not appear, either in the writ, in the return, or in any part of the record. And if a judgment should be rendered in this case, there is nothing to guide the officer in making his levy; or if the lands descended have been sold, under such circumstances, as to place them beyond the reach of the judgment creditor, there is nothing from which the value of the assets descended can be ascertained. Although the statute is silent on this point, yet the nature of the claim set up, and the uniform practice of courts in similar cases, require that the lands which have descended, should be set out in the body of the writ, or ascertained and described in the sheriff’s return. The latter course seems to be the practice of the courts of Westminster.

The propriety of ascertaining the lands, or their value, will appear from this consideration, that the heir is not answerable, beyond the amount of assets descended, and it may be that he has paid other claims against his ancestor, to the amount of the assets, which came to him by descent. Buckley v. Nightingale, 1 Stra. 665.

But as no rule has been established by this court on the point now under consideration, and as it is not necessary to settle it, in order to decide the case in hand, we will leave this part of the subject open, and dismiss it for the present, with one additional observation, that the plaintiff must see, that in some part of the proceedings, the assets are shown which have descended to the heirs, so that an issue may be formed, and the matter reduced to a certainty.

^Another defect is, that the scire facias does not show, that the' assets, in the hands of the administrators, have been exhausted. Until this is the case, the real assets can not be made liable. It is contrary to the general policy of our laws, to subject real estate to execution for debt, until the personal property has been disposed of; and this principle applies as strongly in favor of heirs, charged with the. debts of their ancestors, as in any other case, and perhaps more so. Before the lands of a defendant can be taken in execution in payment of his own debt, it must appear by the official return of the sheriff, that there are no goods and chattels to be found within his bailiwick. This is required by statute, and can not be dispensed with, in this or in any other case. For anything that appears, the administrators may have assets in their hands, that can be reached without diffi culty. The record does not contain any averment inconsistent with this supposition.

This is a fact that must not be left in doubt. It is a necessary part of the plaintiff’s title, without which he can not recover. If there be personal assets, he must pursue them, and if there be not such assets, he must ascertain the fact by the return of process, and distinctly state it as one of the grounds of his right to call on the heirs.

Inasmuch, then, as the record does not show that the judgment against the ancestor of these defendants is in force, and unsatisfied, or that the time allowed by the court for the settlement of the personal estate had expired, before the issuing of the writ of scire facias, or that the personal property which came to the hands of the administrators had been exhausted, the plaintiff can not be entitled to the judgment for which he prays.

Judgment below affirmed.

       Note by the Editor. — See amendment of judgments, note to case on paga 31 of vol. ii. Averments in scire facias, see also ii. 251; iv. 397; v. 312, 340, and oases cited; viii. 209; xv. 301.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    *Edmiston v. Edmiston.

      Scire facias from the court of common pleas, to subject lands to sale on the judgment of a justice, can not be issued unless the. transcript from the justice shows that an execution was returned "no goods,” and a suggestion made that the defendant owned land.
    This case came before Judges Burnet and Sherman, at the July Term, 1826, in the county of Clark.
    A transcript of a judgment rendered in favor of the plaintiff before a justice of the peace, was forwarded to the clerk of the court of common pleas, on which a writ of scire facias issued, requiring the defendant to show cause why execution should not issue against his lands and tenements, to which a demurrer was regularly filed, on the ground that neither the transcript nor the scire facias contained any suggestion or averment that the defendant had lands and tenements, of which the debt could bo made. Before a joinder in demurrer was filed, or a rule for joinder taken, the court overruled the demurrer on motion.
    Mason, for the plaintiff,
    assigned for error the want of a suggestion, that defendant had lands and tenements, and also the overruling of the demurrer on motion.
    Jewett, for defendant,
    contended that the suggestion was useless — that it was not necessary to put it on record, and that the fact might be put in issue by a special plea.
   By the Court :

The remedy pursued in this case is given by statute; it is therefore necessary to follow the course which it prescribes in every material point.

In order to entitle the plaintiff to have recourse to this proceeding, two things are necessary: first, that goods and chattels can not be found within the jurisdiction of the justice; and, secondly, that the defendant has lands and tenements within the county. The first is to be ascertained by the return of an execution, and the second by a suggestion made to the justice. Whatever may be the opinion of counsel as to the utility of attending to these requirements, it *is enough for us to know that the legislature have directed them, and have expressly made them the foundation of the jurisdiction of' the common pleas. The scire facias can not be resorted to until an execution has been returned nulla bona, and a suggestion made to the justice that the defendant has lands and tenements within the county.

When this has been done, it is his duty to send a transcript to the clerk of the court, who is required to file it and issue the writ. Unless the transcript set out these facts, the clerk can not know officially that a scire facias is either required or authorized, and unless they are set out in the scire facias, which ought to contain the substance of the transcript, the court of common pleas can not know judicially that the case is within their jurisdiction. It is a general rule, that every record must present a case apparently within the jurisdiction of the court, and when the jurisdiction is specially given by statute, and is to be resorted to only on the occurrence of particular facts, those facts must be shown, for however correct it may be to presume jurisdiction, where the want of it does not appear, in cases within the general jurisdiction of the court, yet where the jurisdiction is created by statute and limited to particular cases, of which the court could not take cognizance without the statute, the jurisdiction can not be presumed. If the facts on which it is made to depend are not averred, the party does not bring himself within the jurisdiction, and he can not resort to the statute for aid, because his record does not contain the case provided for by the statute.

The maxim, est boni judiáis ampliare jurisdictionem, does not apply to courts of a limited jurisdiction, much less to cases of which the jurisdiction is wholly dependent on statutory provision. It would be a malus judex .who would thus apply it, as it would confound a distinction,' without which there can be no limits to the power of courts. It can not be necessary to advert to the uncertainty and inconvenience that would follow the practice contended for by the defendant.

We know that transcripts are taken for various purposes. Plaintiffs have always a right to require them, as well before as after execution; consequently, if the clerk may tissue a scire facias on a transcript that does not contain these averments, a plaintiff may, in every case, proceed against real estate, although there may be goods and chattels sufficient to satisfy the judgment.

In relation to the second assignment, it has been intimated by counsel that the record does not fairly represent' the proceedings of the court; but we can not listen to such a suggestion. We must take the record as we find it; and as it is, it shows a proceeding not warranted by law, or the practice of this state. When a demurrer has been regularly filed, a joinder becomes necessary, in order that an issue may be made to the court. It is irregular to dispose of the demurrer on motion in this summary way.

Judgment reversed.

       Note by the Editok. — Judgment may be taken at return of scire facias, without rule on defendant to plead, iv. 135. Execution goes against chattels and lands, xliv. Ohio L. 48, see. 3. Lien attaches to defendant's land from time of award of execution, ib. sec. 4.


text:
    Wilson v. Holeman.
    Bond for appeal given after verdict and before judgment. Appeal dismissed.
    This case came before Judges Burnet and Sherman, at the July Term, 1826, in the county of Union.
    The cause had been brought up by appeal from the common pleas. It appeared from the record that a verdict had been rendered for the defendant, at the May term, 1821, and notice of appeal then entered. On the 4th of June, the appellant gave bond, with a condition that he would prosecute his appeal to effect, and not depart the court without leave, and would pay the amount of cost and condemnation money, if a decree or judgment should be rendered against him. Final judgment was rendered on the verdict, in the common pleas, at the July term following.
    The appellee moved to dismiss the appeal, on the ground that it had not been taken in conformity with the statute.
   By the Court :

The right of appeal from the common pleas to this court, for the purpose of having another trial on the merits, is *given by statute, and extends only to cases in which judgments or decrees have been rendered, and the plain construction of the statute requires that the judgment or decree must be rendered before any steps are taken to perfect the appeal. The appeal is allowed from judgments and decrees.

The notice, which is the first step to be taken, must be entered on the records of the court at the term in which judgment is rendered, and bond with security must be given within thirty days after the close of that term. In this case, it appears that notice was entered and the bond executed before the term in which judgment was rendered. The bond is also defective.

It does not describe or set out the suit with sufficient precision to determine with certainty to what case it was intended to apply. As this suit, therefore, is notVithin the original jurisdiction of this court, and the steps required in order to give us appellate jurisdiction have not been taken, the appeal must be dismissed.

A motion was then made to enter judgment against the appellant for costs. This motion was overruled, on the ground that the cause was not within the jurisdiction of the court, and, consequently, that no judgment could be rendered for or against either party.

Appeal dismissed.


text:
    *Murphy v. Lucas.
    In forcible entry and detainer, bill of exceptions not good, tested by a bystander.
    The complaint', in forcible entry and detainer, must contain a specific description of the property.
    This case came before Judges Hitchcock and Burnet, at the April Term, 1826, in the county of Pike.
    It was a writ of error to reverse the judgment of the court of common pleas, rendered in a case of forcible entry and detainer, certified to that court by the justices before whom it was tried.
    Creighton and Bond, for plaintiff in error.
    Clough and Douglas, for defendant.
    The errors assigned were:
    1. The proceedings show no definite description of land, for which a restitution could issue.
    2. The process is directed to the sheriff, but returned by the coroner.
    3. The proceedings were not in the township in which the land is situate.
    4. The verdict is not in the form prescribed in the statute.
    5. The matters set out in a bill of exceptions taken to certain proceedings before the justices and certified by a bystander.
   By the Court :

The second, third, and fourth errors are not sufficient to reverse the judgment. It appears that the sheriff, to whom the process was directed, died between the test and the return. The coroner was, therefore; the proper person to execute and return it. The statute does not require the proceedings to be had in any particular township, but gives jurisdiction to any two justices of the county in which the land is situate, leaving them at liberty to try the cause in any township within the county, as may be most convenient.

The verdict is in these words: “ We, the jury, find the defendant guilty in said suit of forcible entry and detainer.”

The statute directs, that if the jury find the complaint true, “ they shall return a general verdict of guilty, or they shall return a special verdict of such parts as they do find true.”

Perhaps the order in which the jury have placed the words composing their verdict, might be improved, but we think it conforms substantially to the requirements of the statute. It may be taken as a general verdict of guilty, with an unnecessary description of the case in which it is found, or, by transposing a single word, the jury find the defendant in said suit guilty of forcible entry and detainer, or, by rejecting the words “in said suit,” as surplusage, the same result will be produced.

The plaintiff can not avail himself of the fifth error, because there is no law in this state authorizing bystanders to allow or certify bills of exceptions, and if there had been, an allowance by a single bystander, interested in the cause, as was the fact in this case, would not have been sufficient.

But the first error seems to be a fatal one.

The complaint before the justices was “for forcibly entering upon, and detaining possession of, the lower part of a tract of land situate on the bank of the Scioto river, opposite Piketon, the same being patented to the complainant by a patent from the President of the United States, bearing date March 2,1821.”

The complaint is in nature of a declaration. It must give a venue, and must describe the premises with such certainty as will apprise the defendant of what is demanded of him, and as will afford a guide to the sheriff in executing the writ of restitution. In this case, it does not appear in what township or county the land is situate, nor how much of the entire tract is demanded.

The judgment and writ of restitution must pursue the complaint, and, consequently, the sheriff must be directed to restore to the complainant the lower part of a tract of land on the bank of the Scioto river, opposite Piketon. This description forms no guide to the officer; it does not direct him how to find the entire tract, nor what quantity of it he is to restore after it is found. The lower part of a tract, without metes and bounds, or quantity of acres, is too vague *and indefinite. It neither contains certainty, nor the means of arriving at certainty.

Judgment reversed.

       NoTE by the Editor — Justice can not sign or docket bills of exception in forcible entry or detainer, xvi. 408.
      One justice may try in forcible entry and detainer, and in detainer, xli. Ohio L. 78; without a jury, xlii. Ohio L. 4; and if jury demand its fee to be secured by demandant, xliii. Ohio L. 7. Constables may serve process instead of the sheriff, ib. Will not lie by purchasers at tax sales, xliv. Ohio L. 114; xlv. Ohio L. 24; also, at executor’s, administrator’s, and guardian’s sales, xlviii. 34.


author: By the Court:

text:
    Davis v. Mathews.
    In slander, plea of justification is bad on demurrer if it do not distinctly admit the speaking of the words.
    This action came before Judges Hitchcock and Burnet, at the April Term, 1826, in the county of Pike.
    The declaration set out sundry words spoken by the defendant, charging the plaintiff with the crime of perjury. The defendant justified, and the plaintiff filed a general demurrer to the plea.
    In the court below, the demurrer had been overruled, and issue made upon the plea, a verdict and judgment rendered, and an appeal taken to this court. ■
    By consent of parties, the record was amended by withdrawing the replication and issue, arid reinstating the demurrer.
    The plea contained a full and technical averment of the truth of the words charged in the declaration, but did not aver, or confess that the defendant had spoken them.
    Murphy and Bond, for plaintiff,
    cited 1 Chitty, 511.
    Douglas, for defendant,
    contended that what was not denied by the plea was admitted, and that the plea was sufficient notice tice of the ground of defense.
   By the Court:

The rules of pleading require, that special pleas in bar shall contain an answer to the whole declaration. The declaration in this case charges, that the defendant spoke and published the words set out, and avers that they were false and malicious.

*The plea avers that the words were true, but does not confess or deny the speaking of them. A material part of the declaration, therefore, remains unanswered, which could not be decided by any verdict that might be rendered in the case. It is immaterial whether the words be true or false, if the defendant did not speak them, consequently an issue on which that fact alone is to be decided can not settle the merits of the case, as it leaves the principal matter in controversy undetermined.

The ground taken by the defendant, that what is not denied by the plea, is admitted, is correct in many cases. In debt on bond, the plea of payment necessarily admits the making of the bond, because the defendant could not have paid it, unless it existed. So in trespass; a plea that after the trespass committed, the defendant tendered amends, etc., admits the trespass, because he could not tender amends for the trespass after it was done, unless it had been done. But in the case before us there is no allusion to the speaking of the words either in the commencement or close of the plea. It does not begin by all alleging that before the speaking of the words, charged in the declaration, the fact set out in the plea occurred, nor does it close with an admission, that for the cause aforesaid he spoke the woi’ds, as he had a right to do, nor is there any connection between the truth, or falsity of the words, and the fact of speaking them. The jury must find the words either true or false, and in neither case could it be inferred that the defendant did, or did not speak them.

The notice relied on by the defendant is good as far as it goes, but it falls short of the point to which it ought to extend.

Approved precedents are good evidence of what the law is, on points of practice and pleading, and it is always safe to pursue them, as well in form as substance.

We believe that no form of a plea of justification of slanderous words can be found in any approved collection of entries, or precedents, that does not aver the subject matter of the plea to have taken place before the speaking of the words, and that does not also expressly and distinctly confess the speaking. Such are the forms in Lilly, Morgan, Bichardson, and Chitty.

Demurrer sustained.

      NoTE by the Editoe — Proofs, by defendant, under general issue in slander, iii. 270; v. 225; xvi. 88. Plea of justification in slander, unsupported by proof, on trial, aggravates the damages, v. 225.


text:
    *McVickar v. Ludlow’s Heirs.
    After appearance of defendant, and continuance of the cause, it is error to dismiss it because the writ was not indorsed by security for costs. In such case, a rule should be taken to enter security.
    This was a writ of error to the common pleas of Hamilton county, tried before Judges HiTcncocK, Burnet, and Sherman, at the May Term, 1826.
    G-AZLAY, for the plaintiff, assigned for error:
    That the court below had improperly dismissed the writ for want of security for cost.
    The case presented by the record was this: The writ was tested on the first day of September, returnable to the December term, 1823. At the return term, a rule was taken for plea, and the cause continued to April term, when security for cost was entered and judgment taken by default. The judgment was afterward opened on motion, leave given to plead, and the cause continued to August term. At the August term the writ was dismissed on motion, on the ground that security for costs had not been given according to the statute, and judgment entered against the plaintiff for cost. The writ of error was taken to reverse this judgment. .
   By the Court:

Section 10 of the practice act, in force in 1823, required “ that in all cases of mesne process, where the plaintiff doth not reside, or is not a freeholder in the county, the writ shall be indorsed by somo freeholder, resident in the county, as security for costs, before the sheriff shall serve the same.”

As the plaintiff was a non-resident, and had no freehold in the county, it was incumbent on him to procure an indorser, and until that was done, the sheriff ought not to have served the writ. But in this particular, we consider the statute as directory. The service, although unadvisedly made, was nevertheless valid, and if the defendant saw proper to waive his security, the proceedings on the writ, if in other respects regular, would be legal. The want of an indorsement for cost could not be considered as error. But the ' negligence of the officer did not deprive *the party of his legal right. It was competent for him to claim it after the service and return of the writ, by an application to the court for that purpose, either at the first, or at any subsequent term, before final judgment.

Without undertaking to decide, whether or not it would have been regular for the court to have quashed the writ at the return term, we have no hesitation in saying that it was erroneous to do so under the circumstances of this case. The defendants by appearing, submitting to a rule for plea, and a continuance of the cause, acquiesced in the irregularity of the service. They had put the plaintiff off his guard, and could not afterward avail themselves of the statute, unless on motion, and a rule for security, within such time as the court might think reasonable.

A different construction would be inconvenient, expensive, and vexatious. But in this case, the plaintiff voluntarily furnished an unexceptionable indorser, before the objection was taken, and probably before the defendants had ascertained whether security had been given or not. The object of the provision had been fully accomplished, and .the parties interested were in as good a situation as if the law had been literally complied with. The course taken was, therefore, unnecessary and not warranted by the statute.

Judgment reversed, and the cause remanded for further proceedings.


text:
    *Baird v. Shepherd.
    Time enlarged for performing decree in chancery.
    In chancery, before Judges Hitchcock and Burnet, in Adams county, May, 1826.
    By the decree rendered in this cause at the last term, the complainant was required to execute and deliver to the defendant a bond, with approved security, to indemnify him against certain covenants of warranty, which he had made in the sale of the property in controversy. The complainant was directed to execute and deliver the bond within a specified time, in order to entitle himself to the benefit of the decree.
    The facts of the case were, that the bond was executed in conformity with the decree, but was deposited in the clerk’s office, instead of being delivered to Shepherd.
    Grimke and Fitzgerald now moved for a rule to enlarge the time limited in the decree for the delivery of the bond,
    and cited 2 Mad. Ch. 493, 495, 496, 524, 525. The motion was granted on terms — allowing the defendant the same time to pay the money after the present term, and ordering interest to be calculated from the same day in reference to the commencement of the present term, .as was provided in the original decree in reference to the commencement of the last term.
   Motion allowed.


text:
    *M’Cutchen v. Keith, Assignee.
    Under the act of 1810, bond for the conveyance of town lots, to which no value is affixed, can not be sued upon by assignee in his own name.
    Before Judges Hitchcock and Burnet, in the county of Adams, at the May Term, 1826.
    This was an action of covenant brought in the name of Keith, assignee, on a bond conditioned for the conveyance of two town lots, to which no value or price was affixed.

      Judgment was rendered in favor of the plaintiff, in the court below, and a writ of error taken to this court.
    The error assigned was, that the bond was not negotiable, so as to authorize a suit in the name of an assignee.
   By the Court :

The obligation in question was assigned under the statute of 1810, which provides that all bonds, promissory notes, bills of exchange, foreign and inland, drawn for any sum or sums of money, or other property certain, and made payable to any person, or persons, or to his, her, or their order, or unto bearer, shall be negotiable by indorsement thereon, so as absolutely to transfer and vest the property thereof, etc.

It also authorizes the assignee to institute and maintain an action in his own name. By the construction which we have uniformly given to this statute, it has been restricted to instruments drawn for a sum or sums certain, payable in money or property.' We have believed this to be the fair interpretation of the act, and the only one that would give effect to the apparent design of’ the legislature. The certainty required can not relate to the species of article to be delivered, or paid, whether money or property, but to the numerical value, in that description of money for which judgment is to be entered. On any other interpretation, the restriction would be useless, as it would not prevent that uncertain kind of speculating traffic, in which the parties must be ignorant of the real value of the instrument which is the subject matter of their contract. To prevent this evil, the English courts have confined the statute 3 and 4 Ann, to notes for the payment of money absolutely, to the exclusion of such as are contingent either in whole *or in part. The assignment of the obligation in this case could not vest in the assignee an absolute right to demand or recover any certain sum, as the value of the lots was not fixed, and could not be ascertained without the verdict of a jury.

Judgment reversed.

       Note bt the Editor. — See note to Byington. v. Geddings, ii. 227.


text:
    Lessee of Spencer, etc. v. Marckel.
    Equitable title, accompanied -with possession, can not be set up against the legal title in ejectment.
    Notice to quit not necessary before ejectment brought.
    This case came before Judges Burnet and Sherman, in the connty of Delaware, at the July Term, 1826.
    It was an action of' ejectment, and was submitted to the court on the following agreed case: “Jonathan Dayton, the ancestor of the lessors of the plaintiff, contracted bjr parol to sell the land in question to defendant. The contract of sale contained no stipulation as to the possession, but defendant took possession, claiming to hold under said Dayton.' Eor the purpose of this suit, it is admitted that the purchase money has been paid by defendant. No notice to quit was given, previous to the commencement of this suit. If the court shall be of opinion, that payment of the purchase money, and compliance with the said contract of sale, can be set up as a defense in this suit, or if the court shall be of opinion that notice to quit was necessary, then the plaintiff is to become nonsuit. Otherwise judgment against defendant.”
    Wilcox for plaintiff,
    contended that an equitable title can not be set up, in an action of ejectment, against the legal title. That relation of landlord and tenant must exist to render notice to quit necessary. 2 Johns. 84, 444. That a person in possession of land, who claims to hold in fee, is not entitled to notice to quit, previous to bringing an action of ejectment, but there must be a tenancy or existing relation of landlord *and tenant. 3 Johns. 422. That a permission by the owner to occupy, will not create a tenancy requiring notice, 13 East, 210; 2 Taunt. 149; 2 Camp. 505; Esp. 717; and that all the notice necessary in this state is the ten days required by section 59 of the judiciary act.
    Brush, for defendant, contended:
    That wherever a right of entry exists, and the interest is tangible, so that possession can be delivered, ejectment lies. 9 Johns. 298. When a person claims to recover on the ground of prior possession, that possession must be clearly proved. 3 Johns. 388. The payment of taxes, and the execution of partition deeds are not evidence of an actual possession. Ibid. An equitable claim, which is doubtful, can not prevail against the legal estate. 2 Johns. Cas. 321. A lessor in ejectment ought to have a subsisting title, interest in the premises. 4 Johns. 483; 10 Johns. 368.
    If the plaintiff has the legal title, defendant can not set up an equitable title, as a bar. 2 Johns. 221; 2 Johns. Cas. 321; 8 Johns. 487; 3 Johns. 422. The only way in which an equitable title can be assisted at law is, by allowing the presumption in certain cases to prevail, that there has been a conveyance of a legal estate. 2 Johns. 221.
    He also contended that the action could not be maintained without notice to quit. 9. Johns. 330; 6 Johns. 46.
   By the Court :

The first question presented in this case has often occurred on the circuit. Several cases have recently been tried, in which it was determined that an equity can not be set up as a defense against the legal title, in an action of ejectment. The principle on which those cases were decided, is in conformity with the rule now settled at Westminster, and is supported ¡by the authority of decisions in many of the states. The eases cited in the argument are full to the point. We believe the safest general rule that can be adopted, is, to leave the equitable claimant to assert his right in a court of chancery, and were we at liberty now to consider this question as open, wé should feel bound both by ^precedent and expediency, to decide it against the defendant.

The general rule in England, in relation to notice, seems to be this: that no person is bound by law to give notice to another of that which such other may otherwise inform himself, except such notice be directed by act of Parliament. In ordinary cases no notice is necessary to the person against whom there is a legal demand, before the commencement of a suit for the recovery of that demand, because he is bound to do his duty, and to take notice of his peril, that he will be held responsible for the omission of it. In this case the defendant went into possession without a legal title, and without any authority from General Dayton, under whom the lessors of the plaintiff claim. He may, therefore, be considered in the light of an intruder, rather than as a person standing in the relation of a tenant to his landlord. Yiewed as a purchaser, he does not come within the scope of the general rule; he has relied on his contract, and he can not be presumed to be ignorant of the law by which it is governed. He is therefore to be considered as having taken possession at his own risk, and bound to take notice of all the consequences resulting from his own act. He may be compared to the locator of a Virginia land warrant, who acts on his own information, takes on himself the whole risk of title, and is not protected by an averment of -wont of notice. -

But it is not necessary to investigate this point, with a view of showing that this case does not come within the class of cases in which notice has been held necessary by other courts. The doctrine of notice to quit, as it is applied in actions of ejectment, depends on statutory provisions, and on rules of courts, which have often been changed, and differ materially in different tribunals. The only notice required by the laws of this state, is a notice of ten days to the tenant in possession, before a plaintiff in ejectment can proceed to judgment against the casual ejector. This notice has been considered as legallygiven by the service of the declaration with the common notice attached, ten days before the first day of the term to which it is returned.

*We have no rule requiring any other, or different notice, and have never considered the rules adopted by other courts, or prescribed by the legislatures of other states or countries, as obligatory here.

Judgment for the plaintiff.

       Note bx the Editoe. — That equitable title is no defense in ejectment, see also, i. 243; iii. 232; vi. 476; xi. 334; xiii. 260; xvi. 485; xiv. 307.
      That no other notice than the statutory service of the declaration, in ejectment, is necessary, see also xvi. 485, where the case of Spencer v. Marckel is reaffirmed.
      An equitable title alone will not support an action of ejectment, xiii. 260. A person having equitable title, accompanied by a right of possession,' may defend in ejectment, xvi. 485. Equitable title, with a right growing out of a previous possession, will support ejectment, xviii. 323.


author: *By the Court:

text:
    *Hood v. Brown and Bentley.
    Mortgage executed in January, 1821, for the purpose expressed of keeping the property out of the reach of a creditor who had sued, kept by mortgagor in his own possession until 1823, and then delivered and recorded, can not overreach the lien of a judgment obtained in July, 1821.
    This cause was heard before Judges Pease and Burnet, in he county of Trumbull, at the August.Term, 1826.
    The governing facts in the ease were these: In January, 1821, Bentley and wife executed a mortgage of the premises in question to the complainant, for the ostensible purpose of securing debt. The reason given for executing the mortgage at that time was, that the United States were about to commence a suit for a large amount against a private banking company, of which Bentley was a member, and liable by the law of this state to the payment of the demand. He retained the mortgage deed in his possession till the summer of 1823, during which time he exercised acts of ownership, leased a part of the premises, for the term of twenty years, to H. Stephens, informing him at the time that he had executed a mortgage to Hood, but that he held it in his possession, and did not intend to record it, unless the United States should recover a judgment. At the same time he informed Stephens, that the defendant, Brown, had a suit pending against him; that it was necessary to hasten the arrangement, for if Brown should get a judgment it would bind the property. In the summer of 1823, Bentley sent the mortgage to Philadelphia, to be delivered to Hood, on condition that his creditors would give him a general release, which it appears was never executed; the mortgage, however, was delivered, and was recorded shortly after.
    *In July, 1821, Brown recovered a judgment against Bentley and Quimby for'two thousand three hundred and ninety-two dollars; in August he issued a ft. fa., which was returned, by his directions, without service, at which time there was personal property in Bentley’s possession, estimated by one witness at eight hundred dollars. This property was alleged to be embraced in a previous assignment for the benefit of creditors. An alias execution issued in October, 1823, which was levied on the mortgaged premises, by virtue of which they were sold, and purchased by the defendant, Brown, for five hundred and sixty-seven dollars. Brown denies notice, admits he heard rumors that Bentley had executed conveyances of his property, which were retained in his possession, to be delivered, or not, as circumstances might dictate.
    The object of the bill is, to avoid the sale and conveyance of the premises to Brown, and to obtain a sale for the benefit of the complainant.
    Wheeler, for complainant,
    contended that the mortgage deed took effect from its date. That Brown was bound to exhaust the property not held by the mortgage. That a deed made without the knowledge of the grantee, is good, and that if there was fraud in the transaction, the complainant had no knowledge of it. He cited 2 Tent. 198; 1 Binney, 513; 5 Mass. 51; 12 Mass. 556; 9 Mass. 307; 2 Mass. 447; 12 Johns. 536; 18 Johns. 544; 1 Johns. 288; 3 Atk. 646; 1 Ves. 64; 10 Johns. 460; 7 Mass. 381; 4 Johns. 416.
    Stone, for defendant,
    insisted that the deed took effect only from the delivery. That the transaction, on the part of Bentfey, carried fraud on its face. That the judgment of Brown had the prior lien. That the condition on which Bentley authorized the mortgage to be delivered, has never been performed, and that the personal property, referred to by one of the witnesses, had been assigned by Bentley, before the recovery of Brown’s judgment. He cited 4 East, 481; 2 Johns. 234; 4 Johns. 233; 10 Mass. 466; 3 Johns. Ch. 516.
   *By the Court:

The mortgage set up by the complainant, though executed in January, 1821, remained in the possession of the mortgagor, without any attempt to perfect it by a delivery, till some time in the summer of 1823. The judgment under which Brown purchased and claims the premises was obtained in July, 1821, and by the statute of the state, was a lien on the lands and tenements of the defendant from the first day of the term in which it was rendered. In order to overreach this judgment, it has been strenuously contended that the deed took effect from its date, and operated ás a lien on the premises from January, 1821, which was anterior to the term in which the judgment was had. The authority principally relied on, to support this position, is the case of Wilt v. Franklin, 1 Binney, 502, in which it was decided by a majority of the court that the deed executed by Keely to Bartholomew should take effect from its date, so as to overreach a judgment rendered against Keely, after the execution, and before the delivery of the deed. There is, however, a striking difference between the facts of that case and of the one before us.

The deed by Keely was made for the benefit of all his creditors; it was retained in his possession only a few days, which was in part accounted for, by the fact that the grantee resided in the country, at the distance of about thirty miles. In this case the mortgage was for the benefit of a single creditor; it was kept in the hands of Bentley nearly three years, subject to his disposal. It was made for the avowed purpose 'of placing the property beyond the reach of one of his creditors. It was not his intention to deliver it, unless that creditor attempted to enforce his claim, and Bentley treated the property, during that time, as his own, exercising acts of ownership, and leasing a part of it for the term of twenty years. Whether the distinguishing facts of that case, led the court to determine that the operation of the deed should relate back to its execution, or not, we do not know, but if it was intended to adopt the principle set up by this complainant, we are constrained to declare that we can not recognize that case as a rule of decision'in this state.

We consider the law to be well settled that deeds are to *take effect from delivery, wherever the rights of third persons are involved. The doctrine of relation exists only between the immediate parties to the transaction. It is founded on a legal fiction, intended to prevent, not to promote injustice. As when a deed is executed and delivered as an escrow, if the grantor die before the performance of the condition, yet when the condition is performed, the grant shall relate back to the date, so as not to be defeated by the death of the grantor. And in a similar case, if the grantor be a feme sole, and marry before the performance of the condition, the same relation shall take place, and for the same purpose. But these, and similar cases, are not considered as affecting the general rule. They may be considered as exceptions, or as constituting a separate class of cases, resting on a different principle. It is not necessary to examine the authorities applicable to this point. Those cited on the part of the defendant sufficiently establish the doctrine, and it is plainly inferable from most of those relied on by the complainant. The circumstances of this case are not such as to take it out of the general rule. They are rather calculated to illustrate the propriety of the rule, by showing the fraudulent purpose that might be accomplished, were it not in existence. Without it, a debtor might execute a deed of all his real estate, and place it in his desk, to be used as circumstances might require, and when pressed by judgments, might deliver it to the grantee, as a deed overreaching the whole of their liens. This was, at least partially, the avowed object of this mortgagor. He declared to Stephens and others that the mortgage was under his control, and that he did not intend to use it, unless the United'States pressed for their claim.

In this point of view the transaction was tainted with fraud, though it is not necessary, for the purposes of this decision, to consider it in that light. It is sufficient to say that the instrument operating from its delivery, did not take effect till the summer of 1823, and, consequently, that the judgment in 1821 has the prior lien.

We recognize the doctrine of marshaling assets, when justice and equity require it, but on this subject it is sufficient to say that if the personal property had been incumbered, *the whole amount of its estimated value, added to the proceeds of the real estate sold under the judgment, has not satisfied more than a moiety of the debt. The .principle, therefore, can not be applied in the present ease.

It is also admitted that a deed executed without the knowledge of the grantee may be good, when it is not impeached by other circumstances. And that whatever might have been the motives of this mortgagor, at the time of executing the instrument, the mortgagee does not appear to have been a participator in them. But exonerating him from a charge of fraud, is not sufficient to establish his claim. ' His innocence can not change the rules of law. If the transaction were free, both from moral and constructive fraud, the result would be the same. The deed as to the defendant, Brown, would take effect from its delivery.

The bill, as to the defendant, Brown, must be dismissed with costs.

      HoTB by the Editob. — That a delivery of a deed'to a third person, without the knowledge of the grantee, may pass the title of grantor, see also xiv. 307. The lien of a junior mortgage first recorded, is preferred, although the junior mortgagee had actual notice of the senior mortgage when he took the junior, xiii. 148; xiv. 428; xvi. 533. And mortgages now take effect only from time of delivery to recorder, Swan’s Stat. 568, sec. 13. Until so delivered, they are not mortgages, and are not “ executed,” xiv. 428; xvi. 533, and cases cited.
      A mortgage delivered to recorder on the first day of the term of the court at which a judgment is rendered, and before the court convenes, is preferred to the lien of the judgment, xvi. Ill, 533.


text:
    R. F. Slaughter v. John Hamm.
    Public officer who receives money to pay to a public creditor, and obtains a receipt for the whole upon the payment of a part, is liable for the residue, though no deception or fraud be practiced.
    This was an action of assumpsit for money had and received, submitted to the court to decide upon the law and facts, and reserved for decision at Columbus, in Muskingum county.
    The facts in the case were as follows: The defendant, in 1820, was marshal of the Ohio district, and was charged by law with taking the census, then taken under a law of the United States. The plaintiff was appointed his assistant to take the census in the county of Fairfield. On the 1st day of August he subscribed a written paper, engaging to perform all the duties required by law, “ including an account of the manufacturing establishments and their manufactures, at the rate of one dollar and twenty-five cents for every hundred persons in said county, the marshal furnishing all the regulations, restrictions, forms, and interrogatories necessary.” The district judge allowed the marshal two dollars and fifty cents per hundred persons for taking the enumeration of Fairfield county, which amounted to three hundred and thirty-six ^dollars and sixty-six cents. This sum was paid to the marshal, and an additional sum of sixty-seven dollars and thirty-three cents for taking the account of manufactories and manufactures, amounting in the whole to four hundred and three dollars and ninety-nine cents.
    On June 5, 1821, the plaintiff settled with the defendant, and gave his receipt for three hundred and thirty-six dollars and sixty-six cents, “ being in full for taking the census of Fairfield county,” and also for “ twenty per centum upon that sum, being the allowance in full for taking an account of the manufactures in said county. The whole sum actually paid by the defendant and received by the plaintiff was two hundred and fifty-three dollars and forty-nine cents. At the time of receiving this sum and giving the receipt, the plaintiff was apprised of the amount received from the government by the defendant. The suit was brought to recover the difference between the sum paid to the plaintiff and that received by the defendant.
    Goddard, for the plaintiff:
    A perusal of the act of Congress, providing for taking the fourth census, approved March 14, 1820, is necessary to a correct understanding of the case.
    By the first section the marshals are authorized and required to “appoint one or more assistants in each county.” The oath of the marshal is that he will “ cause to be made ” an enumeration, etc. The oath of the assistant, that he “ will make ” an enumeration, etc.
    The marshal is not authorized personally to take the enumeration. His duties in relation to the census are specifically pointed out, and are to file returns with clerk, transmit the aggregate to secretary of state, etc.
    His compensation for these services is fixed by section 4 at three hundred dollars.
    By the same section the compensation of the assistants is fixed at one dollar for every one hundred persons (except in cities), “ but where, from the dispersed situation of the inhabitants in some divisions, one dollar will be insufficient for one hundred persons, the marshals, with the approbation of the judges of their respective districts, may make such further allowance to the assistants in such divisions as shall be deemed an adequate compensation : Provided, the same *does not exceed one dollar and twenty-five cents for every fifty persons by them returned,” etc.
    This clause shows conclusively that the marshal himself was to have nothing more to do with the census than those specific duties before mentioned, for which he received three hundred dollars.
    Section 10 authorizes the secretary of state to allow twenty per centum for taking an account of manufactures.
    1. Is the contract binding upon the plaintiff so as to preclude him from receiving any more?
    2. Does the receipt in full bar all inquiry into the actual amount received ?
    If, when the contract was made, the defendant intended nothing fraudulent, but fixed the sum of one dollar and twenty-five cents as what, from his knowledge of the density of the population in Fairfield county, he supposed would be a reasonable compensation, the plaintiff certainly would not be precluded from receiving the additional sum which the district judge afterward determined to be reasonable. This adjudication of the district judge was for the benefit of the assistants — not intended to swell a perquisite for the marshal. The contract was made in August, 1820; the determination of the judge was in March, 1821. Now, imputing to the defendant nothing unfair or improper, it is clear that the contract for one dollar and twenty-five cents was not to bar the plaintiff from the additional compensation certified by the judge; otherwise the marshal would have said to the judge, “This man has agreed to do the duties for one dollar and twenty-five cents. Any certificate of further pay to that county is unnecessary,” and none would have been given.
    The court are bound to impute absolute verity to the certificate of the district judge. They are bound to believe that two dollars and fifty cents per one hundred was a reasonable compensation for Fairfield county, and that nothing less would have been so. A contract for less would be a farming out of the business and a fraud on the government, its tendency being to cause that to be carelessly and negligently done, which the government intended should be faithfully done.

      There is considerable analogy between this case and those where the action is brought to recover the excess of ^interest taken upon an usurious bond. In the case of Bosanquet v. Dashwood, Cas. Temp. Talb. 38, it was held that the illegal interest could be recovered back, and that the principle of particeps criminis did not apply. I consider the language of the chancellor as particularly applicable here: “Morcan it be said, in every case of' oppression, that the party oppressed is particeps criminis, since it is that very hardship which he labors under, and which is imposed on him by another, that makes the -crime. The case of gamesters, to which this has been compared, is in no way parallel; for there both parties are criminal; and if two persons will sit down and endeavor to ruin one another, and one pays the money, if, after payment, he can not recover it at law, I do not see that a court of equity has anything to do but. to stand neuter; there being in that case no oppression upon one party, as there is in this. Must he keep money that he has no right to, merely because he got it into his hands?” This case is cited with approbation by Lord Mansfield, and declared to be the rule of courts of law in the case of Smith v. Bromley, 2 Doug. 696, note. He there says : “ If the defendant take advantage of the plaintiff’s condition or situation, still the plaintiff shall recover.” And again: “I am persuaded it is necessary for the better support and maintenance of the law to allow this action; for no one will venture to take if he knows he is liable to refund. Where there is no temptation to the contrary, men will always act right.”
    I will cite to the same purpose the case of Jaques v. Golightly, 2 Black. 1073, where it was held that “money paid as a premium for insuring lottery tickets may be recovered back, though the winnings (if any) can not be recovered, the contract being void by statute.”
    2. That a receipt in full does not preclude examination into the sum actually paid, I beg leave to refer the court to the following authorities:
    Barret et al. v. Rogers, 7 Mass. 297. “ A bill of lading is not conclusive evidence in all cases, as to the condition of goods shipped in packages.”
    Stratton v. Rastall et al., 2 Term, 366. “ A receipt is not conclusive evidence against the party who signs it.”

      *Middleditch v. Sharland, 5 Ves. 87. “ Inquiry directed into sum actually paid, though receipt in full given.”
    House v. Low, 2 Johns. 378. “ A receipt may be explained by parol.”
    McKinstry v. Pearsall, 3 Johns. 319. “ Evidence admitted to explain a written receipt.”
    Tobey v. Barber, 5 Johns. 68. “Parol evidence is admissible to explain or contradict the terms of a receipt.”
    Putnam v. Lewis, 8 Johns. 389. “ Same point.”
    Newell v. Lawrence, 12 Johns. 531. “It has been repeatedly ruled in the Supreme Court that receipts may be explained, and even contradicted, by parol evidence. The grossest abuses and frauds might be practiced if bare receipts were to be deemed conclusive, and not open-to examination.”
    No argument was presented for the defendant.
   By the Court :

• The act of Congress distinctly marks out and defines the several duties of the marshal and of his assistants. The compensation which each is to receive, is separately provided for, and they are in no way connected. No fraud can be properly imputed to the contract between the parties, by which the compensation that the plaintiff should receive, was fixed at one dollar and twenty - cents the hundred. At the time it was entered into, the sum which the district judge might determine to be reasonable was not known. That allowance was subsequently made, as well as the allowance of the secretary of state, of twenty per cent, for taking the account of mauufactures. When these allowances were made, they were made for the assistant, and he alone was entitled to them. The marshal, when the money was paid to him, received it for the assistant, and hot for himself. By receiving it, he became responsible that he would pay it to the plaintiff. He was, in fact, the plaintiff’s debtor for the amount.

The case of the defendant is not that of an individual authorized by another to receive his money, and therefore held to account for it. He was the agent of the government, ^acting in an official character, and confided in by the government to pay a debt due from it for services performed. The honor, the integrity, the justice of the government required that the payment should be fairly and fully made.

The fact that the plaintiff knew all the circumstances, at the time he received less than his due, and gave an acquittance, does not authorize the defendant to keep what never was his — what he never had any color of claim to keep. By what motives the plaintiff was influenced to give a receipt for money he did not receive, and to leave in the defendant’s hands money he had a right to receive, we do not know. One thing, however, is certain: there is no pretense that the defendant gave any equivalent to the plaintiff. His claim to retain it rests upon the naked assent of the plaintiff that he might do so. A public agent, who retains any part of money, put into his hands to pay the debts of the government, by the assent of the creditor, is not in the situation of a man who voluntarily pays money, in the dischai’ge of an alleged debt, where nothing is due. Such retaining is an abuse of the public confidence; and if the law should permit a public officer, guilty of this abuse, to secure profit to himself, by his misconduct, the mischiefs would be incalculable. The vexations that would be practiced to obtain a receipt for the whole, upon the payment of part, could seldom be made out in proof, while the receipt would always speak for*itself. Were the principle once established, that in a case like the present, the defendant was secure in his gains, it would be proposing encouragement for public agents to practice frauds, both upon the government and its creditors. The public policy and the public justice are both opposed to such doctrine.

The plaintiff is clearly entitled to recover both the principle retained, and interest upon it.

Judgment for plaintiff.


text:
    *William Lytle, Administrator, v. S. W. Davies.
    Bond given for prison limits void, unless defendant is actually in prison, and that fact recited in the bond.
    Joint bond for prison limits given in several separate suits, void.
    This was a writ of er,ror prosecuted by the plaintiff, who was plaintiff in the court of common pleas, to reverse a judgment rendered against him in that court, and was reserved in the Supreme Court of Hamilton county for decision here.

      The suit in the common pleas was an action of debt brought against the defendant, one of several securities upon a prison bounds bond.
    The obligatory- part was in the usual form. Wm. Lytle, administrator of A. St. Clair being the obligee. The condition was as follows: 11 Whereas, Jacob Baymiller has been arrested by R. Ayres, sheriff of Hamilton county, on three several writs of capias ad respondendum, returnable to the next Supreme Court, in favor oi William Lytle, administrator, etc., amounting altogether to the sum of fifty-three thousand four hundred and nineteen dollars and thirty-five cents, and is in the custody of the said sheriff. Now the condition of the above obligation is such that if the said Jacob Baymiller shall well and truly stay and keep within the limits or bounds of the prison of the county aforesaid, as laid off by the statute in such case made and provided, until he shall be legally discharged by law, then this obligation to be void,” etc.
    The declaration was upon the obligatory part of the bond as upon an obligation for the payment of money, in general terms. The defendant craved oyer of the bond and of the condition, and demurred generally, and the plaintiff joined in demurrer. The court of common pleas gave judgment upon the demurrer for the defendant, to reverse which this writ of error was brought.
    The demurrer involved exceptions to the pleadings as well as to the validity of the bond itself. The general error was assigned, and the cause elaborately argued upon several points. But as the court decided upon the validity of the bond alone, only so much of the arguments as applied to that point are reported.
    *Wade and Hatward, and Hammond, for the defendant, objected to the bond :
    1. That it did not show from what court the process issued, who was the plaintiff in the action, or when or where it was returnable.
    2. That it did not specify within the bounds of what county the party arrested was to remain.
    3. That it was a joint bond upon three several writs, when a separate bond, on each writ, ought to have been taken.
    They argued-that, although it had been adjudged that a prison bounds, or an appearance bail bond, not taken according to the statute, was a good common law bond, there was no adjudication by which a bond like the present had been sustained.
    All the cases which could be adduced, in English or American reports, were those, where the bond distinctly recited from what court the process issued, when it was returnable','and who was the plaintiff in the cause. Upon what occasion the bond was taken, and by what act, of the party arrested, the condition would be performed. The condition recited an authority to take the bond, and a proper case for taking it. But in this case there is no such recitation. The condition was altogether vague and uncertain. It did not appear from what court the process issued, or who was the plaintiff, or when or where the party was to appear. It did not appear where the party arrested was to remain in custody, nor did it appear for what sum he was liable upon each writ. The condition was not only vague and uncertain, but the proposition that the sheriff might demand one joint bond, for three distinct liabilities, from the same person, enabled him to practice oppression whenever he chose to do so.
    Haines and Benham, for plaintiffs:
    We contend, first, that this bond complies substantially with the requisitions of our statute; and secondly, if not good as a statutory bond, it is good at common law.

    First, it is good under the statute.
    *In determining this question (as we must be governed, in some degree, by adjudicated .cases upon bonds taken under the statute of 23 Hen. 6, c. 9), it became important to advert to the distinction between the forms to be observed under that statute and under that of Ohio, “regulating prison bounds,” etc., in relation to which we refer to 1 Selw. 134 and 6 Bac. 180. The statute of 23 Hen. 6, “ is directed against oppression on one hand, and an improper indulgence on the other.” Consequently greater strictness is required under that statute than is to be expected under that of Ohio. As in this state, where the prison bounds bond is given direct to the plaintiff, there can be no such thing as “ oppression or improper indulgence ” on the part of the officer. We can know of no such thing as a bond void “for ease and favor ” or “ a colore officii.” But, in England, it is not required “ to set forth the nature of the action in the condition of the bond,” if it set forth the parties, and the time and place of appearance substantially, though it be variant in other particulars, it is sufficient. Therefore, “a variance between the condition and process in the nature of the action, or of the time and place of appearance, does not vitiate.” 1 Seld. 134; 2 Saund. 59, n. 3; Cro. Jac. 286. And in 2 Stra. 1155, the court said “that there were no set form, of words for those bonds, but if in substance they appear according to the design of the writ, it is sufficient,” etc.
    For numerous cases cited upon this question, Í refer to 1 Wheat.; Selw. 431, 432; 2 Saund. 59, n. 3, where all the English law upon this question is to be found.
    It is settled, in the English cases, that it is not essential to the validity of the bail bond that such part of the act of Henry 6, as is only directory, should be complied with', “ as if one surety is taken it is good, and not voidable by the statute.” 1 Saund. 161, n. 1.
    In the United States, we hold it to be well settled that a substantial compliance with the provisions of the statute is all that is necessary to give validity to a “ statutory bond.” That mere “ verbal difference and departure from the provisions of the statute does not vitiate,” and that if a bond is taken in “ a circumstance contrary to the provisions of the *statute (that is only prescribed for the direction of the officer as to take sureties ”), or, “ if anything is required specially by the condition that the act only imports but does not literally require," that such variations do not hurt.
    These principles are to be deduced from a great variety of cases, of which we will cite only a few. In the case of Ralston v. Lane, Hardin, 501, upon a appearance bail bond, the court decided “ that as a bail bond makes a part of the sheriff’s return, if there be such a correspondence between the writ and bond, that, by a reasonable intendment the bond may have been taken upon that writ it is sufficient. And further, that if nice and technical objections to bail bonds are indulged, few bail bonds will stand, and great mischief will be done, as they are generally taken by officers who are little versed in technical forms. It is necessary, therefore, to give them a liberal construction in furtherance of justice.”
    In same book, page 505, a bond was held sufficient, although “it did not state the nature of the action, the amount of damages, or that the plaintiff sued as assignee,” etc. The court say, “ that it is enough if a bail bond is certain to a common intent. And, as to the bail, they ought to make no objection, for it was their folly to execute the bond without knowing the amount for which they became bound,” etc.

      These principles are recognized in other states of the Union.
    In North Carolina, vide Rhodes v. Vaughan, 2 Hawks, 164.
    In South Carolina, in 3 Des. 57, “ a bond of the treasurer, etc., with three sureties where the statute required five persons or upward, was adjudged good.”
    In Tennessee, 4 Hayw. 216.
    In Virginia, 2 Call, 290, it has been decided that “one forthcoming bond may be taken on several executions.” These bonds present a strong analogy to bonds for the bounds, etc., and this case, and the case in 8 Johns. Ill,-where several executions were embraced in a prison bounds bond, answers the objection that three writs, etc., were embraced. The same principle is contained in the cases cited in the margin; and in 2 H. & M. 400, Judge Tucker ^observes, “ that when a party obtains an indulgence upon certain conditions, the court will not regard trifling errors,” etc. And again, in 1 Munf. 76, a prison bounds bond, given to the sheriff and his executors, administrators, etc., not to “ his successors in office ” (as the statute would require), was adjudged good, “ as there was no form prescribed by the statute.”
    In New York we find the same doctrine as in 1 Johns. 521, that in appearance bail bonds “ time and place need only be set forth substantially.” And in 8 Johns. 86, in “ a suit upon a bond for the jail liberties embracing three several executions,” the bond was held good, and Ch. J. Kent, in delivering the opinion of the court, remarked, “ that where there was no allegation or pretense of ex-hortion or undue means exercised by the sheriff in procuring the bond, it is right and just that the obligors should be concluded by that acquiesence,” etc.
    In Massachusetts we find the same doctrine. In 10 Mass. 20, a bail bond was held sufficient, although “ the names of both plaintiff and defendant were mistaken.” And in the analogous cases upon replevin bonds these principles have been repeatedly recognized, as in 8 Mass. 147, when the bond was conditioned “ that the plaintiff should prosecute at the next county court,” it was held sufficient.
    In 9 Cranch, 36, upon an “ embargo bond, conditioned in more than double the value,” etc., in the opinion of the court, by J. Story, the court say, “ that as there was no allegation or pretense of fraud, the bond must be taken to be a voluntary bona fide bond, and that the obligors were estopped to deny that the penalty of such a bond was in double the value of the vessel and cargo.” The court remarked, “ that it would be dangerous in the extreme to admit the parties to avoid a sealed instrument by averring an error,” etc. This is an important case, and overrules the case in 7 Cranch, 287.
    And in 1 Ohio, 170, we find that it has been settled in this state, “ that bonds comprising substantially all the requisitions of the statute are valid; and that it has been the uniform object of our courts to support such bonds,” etc. We deem it unnecessary to amplify upon this question, as *we apprehend there can be no doubt that this bond would be supported when tested by the most rigid rules applicable to statutory bonds. But we will merely add that the distinction between our bonds to the party and English bail bonds, and bonds in other states in the Union, when given to the sheriff, is an important one. With us there exists not the same reasons for applying the rules of the English law in relation to bonds taken under the statute of Henry 6, as with us these bonds can neither be abused to purposes of oppression nor improper indulgence, except by the construction contended for by the defendants. As in this state where the bond is given to the party, and the officer does not stand between him and danger (if informalities are permitted to vitiate), the officer could in all cases, by mere neglect of his duty, effect the escape of his prisoner, and the party would be without redress.
    But again, if this bond is not obligatory as a statutory bond, it is good at common law.
    We contend, upon undoubted principles of law, that independent of any statutory provisions the bond in question is valid, being neither “ malum in se,” nor “ malum prohibitum." That where a way “ may be found to perform the condition of a bond, without a breach of law, it shall be good.” 1 P. Wms. 189,190. In the English books, a distinction is taken between bonds given to the plaintiff, and bonds to the sheriff. The first are valid, although taken in an other form than that which the statute prescribes. See 2 Saund. 59, 60, notes; 2 Mod. 304; 2 Salk. 438. So a bond from one “to be a true prisoner and not to escape,” is good. 1 Saund. 161. And in 10 Co. 99, we find the same principle.
    In the United States the same prine iples are recognized. In New York, where the statute regulating jail liberties is similar to that of Hen. 6, the same rules prevail. In 2 Johns. 239, 244, a bond “to remain a true and faithful prisoner,” but differing essentially from the directory part of the act, was adjudged good; and the rule laid down, “ that a bond, taken by the sheriff to induce a less rigorous imprisonment, is good, if the indulgence be such as the sheriff can grant consistently with his duty.” “ The statute is ^directed against oppression, on one hand, and improper indulgence on the other.” This case was sanctioned by Judge Kent in 1 Caine, 459, in which it was settled “ that a bond to indemnify against an escape, given after an escape, was good.” The reason why a bond, to permit an escape, is void, is because it is to do an unlawful act; when the act is done, the reason falls.
    The same principle is recognized in Pennsylvania, 6 Bin. 296-298, in a suit upon the bond of aprothonotary, not required by law. The court decide, that it “ was valid at common law, as a voluntary obligation.” 2 Str. 745.
    In Massachusetts we find it repeatedly decided, “ that a bond given by a debtor in execution voluntarily, without fraud, or imposition, conditioned that he will continue a true prisoner without escaping,” is good at common law, although not in comformity to the statute of 1784. 7 Mass. 98, 423. Parker, J., 8 Mass. 380, remarks, that it has been determined, by this court, in two cases, that a bond given by a prisoner for debt, in which the penalty is more or less than double the amount of the debt and costs, in the execution, although not within the statute, so as to entitle the obligee, upon breach of the condition, to the whole penalty, is yet good at common law. Upon forfeiture, judgment may be entered for the debt and costs only.” 9 Mass. 229.
    In Virginia we find the same rule, as in 3 Call, 523, in which it was decided, “ that, if a forthcoming bond is not good, as a statutory bond, it may be good as a bond at common law.” This is a strong case.
    And it appears also from the “ dictum ” of this court, in the suit upon the “collector’s bond,” 1 Ohio, 271, that this would have been sustained at common law.
    From these cases we draw the inference that every bond given voluntarily is good and binding where there is no statutory provision against taking such a bond, or prohibition on the principle of the common law or of good morals.

    We contend, therefore, that as the bond in question was given voluntarily by the defendants, it ought to bind them. That as the plaintiff was compelled (under our peculiar statute) to accept this bond, thus given by the defendants, the act *was complete and became binding on both, and that, as there is no statute or principle of the common law declaring such bonds void, there can be no reason why it should not be held valid at “ common law.”

   By the Court :

Our statute provides, “that every person imprisoned for debt, either on mesne process, or in execution, shall be permitted and allowed the privilege of prison bounds.” The bond, in the case before us, recites that Baymiller has been arrested, and is in custody of the sheriff. But does not state that he was imprisoned. An arrest, and being in the custody of the sheriff, precede imprisonment, and are distinct and different from it. The-facts stated in the bond show that the case, in which the statute authorizes the bond to be taken, had not occurred. Baymiller was not imprisoned, but only arrested on mesne process. The sheriff, in that situation, could not legally discharge him, on taking a prison bounds bond. In doing so he permitted an escape.

The plaintiff’s counsel have cited many cases, in which bonds of this description have been sustained, though not taken strictly according to the law. But so far as we have been enabled to examine them, these bonds were taken, when, upon the circumstances attending their execution, they were legally taken. The facts existed which authorized the officer to take the bond, and the exception was to the form of the bond itself. But the ground upon which we hold this bond defective is that the officer had no authority, upon an arrest only, to accept it, and discharge the body. By doing so he could not affect the plaintiff’s,rights, who might insist upon a recaption,'or proceed against the sheriff for an escape. It was at his option to treat the bond as a nullity, but he could not by his assent give it validity.

The exception, that one bond is taken in three distinct suits, is also, in our opinion, a fatal one. The obligation is entire, and the whole penalty must remain, even if two of the suits were disposed of. It is in the nature of an appearance bail bond, and is, therefore, a part of the proceedings in the cause. For this reason it should be taken separately, so as to *be connected with the separate case to which it belongs, and separately proceeded upon, should it be forfeited. It would be vain and useless to attempt enumerating the many inconveniences which might arise from taking a joint bond, upon the execution of separate processes. The power to require such a bond might be used for very oppressive purposes. And where the statute does not authorize it, the court think they ought not to sustain it.

The plaintiff has cited two cases, in which a single bond was taken by the officer upon separate processes and held good. But we do not consider these cases analogous. In 8 Johns. 111, the exception was not taken by the counsel or noticed by the court. In stating the case, it is noticed that the bond was given upon three executions issued from a justice of the peace. We know not how far the law of New York might, in terms, warrant such a proceeding. As it formed no ground óf exception, we should infer that it was conformable to statute, or to a settled practice. However, as the point was not made nor decided upon, we can not consider the case an authority.

The case from 2 Cali, 290, was one where a forthcoming bond was taken, in two cases of suits against the securities of two separate sheriffs of the same county, under a special act of assembly directing the executions to be stayed, upon a forthcoming bond being given. The court, in their opinion, admit that it is not common to take a joint bond upon separate executions. They say the bond was so taken that neither party could be prejudiced. But they decide the cause upon the act of assembly, which they say “ rather points to one bond only.” We can not regard this case any more than the one from New York, as an authority to which our own opinions should be yielded. The unity and consistency of legal proceedings, and the safety and security of all the parties, require that a bail bond, or prison bounds bond, should be taken separately in each separate suit.

It is strongly urged by the plaintiff’s counsel that if defective as a bond under the statute, this bond is good at common law, as a voluntary bond.

The numerous cases cited to sustain this position are all essentially different from the one before us. The sheriff *takes a bond from the prisoner conditioned that he will remain a true prisoner. This is in the nature of a contract. It relieves the sheriff from an incessant vigilance, and it secures to the prisoner the enjoyment of his own time, free from the superintendence of the officer. The contract is a beneficial one to both parties, and, if not prohibited by law, would be deemed valid.

In the case of a forthcoming bond, the sheriff having legally levied upon the defendant’s property, restores it to him, upon taking a bond with security for its redelivery. If taken in a proper form, and returned with the execution, in Virginia, a very summary remedy is given on such a bond. But if not thus taken, it is still deemed a good bond, and may be sued upon as in the common case of a contract. And for this reason the contract was a valid one, made fora legitimate purpose, and operating beneficially for the obligor. There is-no case where a bond is unauthorized by law, and where no. advantage can result to any one, that a bond given under the belief that it is for a legal purpose, when it is not, is held valid.

If an officer, alleging he has process, when he has not, without making an arrest, take a bond for the prison bounds, where the obligor is actually the judgment debtor of the obligee, it would clearly be a voluntary bond, yet it would- undoubtedly be inoperative, because it was taken without authority, and could, in no respect, benefit the obligor.

So, in this case, Baymiller not being in prison, the sheriff had no authority to take the bond. It was therefore voluntary. But it did not preclude the plaintiff from retaking the defendant had he chose to do so, or from proceeding against the sheriff as for an escape. Had the defendant been retaken, would the bond have been obligatory? If it would, he certainly received no advantage from it. If it would not, the reason must be that it was void from the first. There is nothing in it, by which its obligation can be made to depend upon the act of the plaintiff. In declaring this bond inoperative, we impugn none of the decisions adduced by the plaintiff in support of it; on the contrary, we conform to the principles upon which those decisions rest.

Judgment affirmed.