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    Lessee of M. Walsh v. Ringer.
    Defendant arrested upon execution fora fine, may surrender land in discharge of his body. >
    Land surrendered by defendant in discharge of his body, in execution for a fine, may be sold without valuation.
    Description in a deed, seventy acres in southwest corner, good, and includes the land in an equal square.
    This was an ejectment, adjourned from the Supreme Court of Harrison county, upon a case agreed.
    Both parties deduced title under James G-. Ward. The history of the claim of each is as follows:
    James G-. Ward owned seventy acres of land situate on the west side of the southwest quarter of section 4, township 12, range 5, beginning at the southwest corner of the section, and lying in an oblong square, extending north one hundred and sixty perches, and east seventy perches, from the southwest corner.
    The title of the lessor of the plaintiff was founded upon a sheriff’s sale. J. G-. Ward was convicted of an assault *and battery, at the November term, 1820, of the common pleas of Harrison county. Upon this conviction, an execution issued against his goods, chattels, lands, tenements, and body, for the fine and costs, amounting to about thirty dollars. This execution was dated May 23,1821, and upon it the sheriff took Ward in custody. To obtain the discharge of his body, Ward surrendered to the sheriff land, described in the return as follows: “ Seventy acres of land, it being and lying in the southwest corner of the southwest quarter of section 14, township 12, range 5, of the lands sold at Steubenvilleand it was returned not sold for want of bidders. A vendi. was issued to sell the land, and after a succession of writs, it was sold on a pluTies vendi., March 8, 1824, without valuation to the lessor of the plaintiff, for thirty-one dollars twenty-five cents. The sale was approved by the court, and a conveyance made by the sheriff to the lessors of the plaintiff, dated April 13, 1824, in which deed the description of the land conforms exactly to the levy.
    The defendant claimed under a deed from James Gr. Ward, for seventy acres of land — described by metes and bounds — exactly including the land owned by Ward — dated August 25,1821,. which was after the surrender to the sheriff of the same land.
    Beebe, for the defendant, made thrée points in objection to the title of the plaintiff’s lessor:
    1. The body of Ward having been taken in execution, land could not be given up in discharge of it.
    2. The sheriff could not sell the land without valuation.
    3. The land is not well described in the levy and deed, so as to be sufficiently certain to pass title.
    1. He contended that section 36 of the act for the punishment of certain offenses, passed February 11, 1815, under which the execution issued in this case, did not authorize the sheriff to take property in discharge of the body, if the person was once arrested. It gave authority to levy on lands or chattels, and provided a mode of sale where such levy was made. The sale was to be according to the provisions of the act regulating judgments and executions, *then in force, which was the act of 1810, that was repealed before the sale.
    This act is only adopted to authorize a sale where levy is made, not where property is given up in discharge of the body. No provision is made for such a case; and it is not a correct argument to maintain, that as the act of 1810, regulating judgments and executions, authorized property to be surrendered in discharge of the body, and directed it to be sold as if levied upon, that this section 36 adopts it for the same purpose, when, in terms, it confines its adoption to other purposes — that is, to the completion of a sale where a levy was made.
    The judgment and execution law of 1810, subsequently to its adoption, by section 36 of the act for the punishment of certain offenses, of 1815, was repealed. It would be unreasonable and dangerous to hold, that notwithstanding this subsequent repeal, it was partially in force, by virtue of a previous adoption in another statute.
    2. The land ought to have been appraised.
    The judgment and execution law of 1820, section 29, provides that lands shall be sold without valuation for the discharge of debts or taxes due to the state. This execution was for neither debt nor tax. Debts arise from contracts, not crimes. The section means debts as they existed before judgment. Why else is provision made specially,' in case of fines, for executing property ? For debts, property could always be executed.
    3. The land is not described with sufficient certainty.
    The description in a grant must be sufficient and distinct in itself, so that there can be no question about identity; or the description must be such, that by reference to facts stated in the deed, the land may be identified.
    The description here is seventy acres in the southwest corner. How is it to be laid off? Should it be a square or a triangle ? Can it be made to include seventy acres off the west side? The cases upon this subject proceed upon the ground, that where, in the description of the deed, circumstances are mentioned, you may investigate such circumstances to identify the land conveyed. But here no circumstance is mentioned. The description is of a single insulated fact. “ Lying and being in the southwest corner.”
    *G-oodenow, for plaintiff,
    contended that the law authorized a levy upon land for fines, and the execution issued against the lands as well as the body. Admit it were irregular in the sheriff to seize the body, and discharge it upon a surrender of lands, yet, as the execution was against lands, the purchaser at the sheriff’s sale was not bound to inquire into every step taken by the sheriff, on such an execution. Besides, where a defendant voluntarily-surrendered his real estate, and it was sold with his own consent, and by his agreement, he could not be heard afterward to object against the purchaser’s title.
    The repeal of the judgment and execution law of 1810, can not affect the case. It is referred to and adopted in the law for the punishment of offenses, as directory to a ministerial officer; and its directory provisions exist by virtue of the act that adopts them, whether in force for other purposes or not.
    The third objection interposed by the defendant to our recovery, is a want of description of the land.
    The court in this case by the agreement of the parties, are to perform the offices both of judge and jury ; hence they not only decide what construction the grant or deed of the sheriff is to receive, but also what, as a matter of fact, was intended by the parties as to all questions of location, there being nothing in the description contained in the deed destructive of itself. “Uncertainty as to the application,- abstracted from the question of law, must unavoidably exist as to all grants; for it will be readily comprehended, that it is not possible to make a grant of any parcel of land, by metes and bounds, defined with perfect accuracy, which a stranger, totally unacquainted with the objects of the grant, but from its import, and unacquainted with the country contiguous to it, can locate without acquiring a certain portion of knowledge for that purpose extrinsic the grant.” Frier v. Jackson, in Error, 8 Johns. 495.
    Now what is the description here? Seventy acres in the southwest corner of a well known tract of land. What was intended? Ward owned seventy acres only in that quarter, and ail lying in a body. He describes the seventy acres as lying in *the southwest corner. Had he described them as the seventy acres which he possessed in that quarter, there could have been no doubt. Can there be any doubt now ? Ward owned and possessed seventy acres, lying on the west side of the quarter, extending from the southwest to the northwest corner, and thus embracing and lying in both corners : instead of so describing it, he describes it as seventy acres lying in the southwest corner only. Can there be any mistake, any uncertainty, any ambiguity?
    In Blaque v. Gold, Cro. Car. 447, 473, there was a devise of a house, called the corner house in Andover in the tenure of B. and H., whereas it was in the tenure of B. and H., the devisor having a house thereto near adjoining in the tenure of H., and it was held to be the corner house in the tenure of B. and N. for that the devise sufficiently ascertained the thing, by the words “ corner house" and the addition of tenure was surplusage.
    This doctrine is considered by the court in Hew York, as equally applicable to deeds as to devises; and is cited by Spencer, J., in delivering the opinion of the court, in the case of Jackson v. Clark, 7 Johns. 217, to illustrate this rule, therein relied on by the court, as having “ been settled with great wisdom and accuracy.” “If there are certain particulars once sufficiently ascertained, which designate the thing intended tó be granted, the addition of a circumstance, false or mistaken, will not frustrate the grant.” Certainly, then, if a tract of land intended to be granted, is described by certain particulars, sufficiently ascertained, the description is none the worse, because there is no false or mistaken circumstance contained in the grant: and in the instance before us, the construction of the sheriff’s deed ought to lie as strongly against Ward, as if he had made the grant himself, for he voluntarily surrendered, and the sheriff took his description, and it lies not in his mouth to say he committed a fraud upon the officer, nor does it lie in the mouth of his grantee to hold the same language to the purchaser at the sheriff’s sale, for the return upon this execution, made to the court and filed with the clerk, on July 30, 1821, long before the execution of the deed to the defendant was notice “ to all the world.”
    *If a man convey all the land in his possession in the township of W., what he actually possesses in that township will pass; 5 East, 51; 8 East, 91; 14 Johns. 1, and if he had delivered to the sheriff just such a description upon a ca. sa. for the purpose of discharging himself from the iron grasp of the law, the sheriff’s sale by that description would be sufficient; -though an ordinary levy, so described by the sheriff, might admit a different construction. If a deed correctly describe land by its occupiers, and quantities, though it describe it as being in a parish in which it is not, the land will pass by the deed. Lambre v. Redstone and wife, 5 Taunt. 207.
    In the case of Jackson v. Gardner, 8 Johns. 397, a question arose as to the location of a tract of land mentioned in a lease which had been destroyed, in which a witness said the land was described as “two hundred acres in the southeast corner” of a certain lot. It appears clearly, by the opinion of the court, that had Hamilton, the lessor, possessed only the two hundred acres in the “southeast corner,” there would have been no doubt or difficulty about the location. In the case now before the court, we prove that, in the quarter out of which we claim the seventy acres, Ward owned that quantity, and that only, and in the southwest corner. In the case I have cited above, from New York, the court say, the plaintiff ought now to be confined to such location of the two hundred acres, in and adjoining the southeast corner of the lot, as can be “ made consistently with the defendant’s right,” the lessee himself having been instrumental in the destruction of the lease, which “shrouded the question of location in absolute uncertainty;” and for that reason the court say, “ every difficulty and presumption ought to be toned against him.”
   By the Court :

We entertain no doubt but that upon an execution, in a case like that against Ward, the defendant, if arrested, may surrender land to the sheriff in discharge of his body. This surrender the sheriff may accept, and when accepted the effect of the proceeding is the same as that of a levy. It is a legal appropriation of the land to satisfy the execution. *No subsequent disposition of it, by the defendant, can pass a title so as to defeat and divest the interest attached by the execution and the proceeding on it.

We think, too, that judgments for pecuniary fines are debts due the state, within the meaning of the law authorizing, in such cases, the sale of lands without valuation, and that lands, surrendered to obtain a discharge of the body seized in execution, are to be sold in the same manner as if levied upon by the sheriff in the first instance.

The description of the land is in general terms. Seventy acres, being and lying in the southwest corner. The defendant contends that this description is so vague and uncertain as, for that reason, to be void and inoperative. On the other hand, the plaintiff contends it is a good description to convey seventy acres of land, commencing in the southwest corner, and extending on the west line to the northwest corner in an oblong square. Neither of these constructions can be maintained.

The general position of the land conveyed is given with sufficient certainty. It is in the southwest corner. According to the rules of decision, both in this state and in Kentucky, that corner is a base point from which two sides of the land conveyed shall extend an equal distance, so as to include, by parallel lines, the quantity conveyed. From this point the section lines extend, north and east, so as to fix the boundaiy west and south; the east and north boundaries only are to be established by construction, and the rule referred to gives them with sufficient certainty.

It is argued for the lessor of the plaintiff, that the court, performing in this case the functions of a jury, are to decide not only the construction of the deed but the intention of the parties. Where there is no ambiguity in the description the construction of the terms employed is matter of law, independent of the intention of the parties. And here, upon legal principles, there is no ambiguity. Had the description been “ seventy acres on the west side of the quarter,” the whole west line must have been considered the base line of the tract, and the quantity laid out in an oblong square. It would have been a violation of the plain legal sense of the terms used, to lay out the land in a square, *at either corner, upon parol proof that such was the intention of the parties. So, in this case, no proof can justify us in giving an interpretation, by which terms, that locate the land in a square at the southwest corner, shall be made to locate it on the west side. The plaintiff must have judgment for so much of the land in dispute, as may be included by a line, north from the southwest corner, such a distance that the parallel lines of a square with four equal sides will include seventy acres.
      Note by the Editor. — See, as to description in sheriff’s deed, iii. 272. (“ The Eive Points.”) Parol proofs may he introduced to identify the description in the levy with that in the deed, iii. 272; v. 522; vi. 536; xvi. 16, and cases cited.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    Samuel Thompson v. Young and Wife, and Surviving Executors of J. M’Intire, deceased.
    Charter of a bank extended, and no new security taken of the cashier. Securities under the first charter not liable for defalcations under new charter. Judgment at law against three or four securities, in a suit where the fourth was no party. In bill for contribution, fourth security is not concluded.
    This case was reserved from Muskingum county. It was a bill in chancery to compel contribution, upon the following state of facts:
    In the year 1811, the Bank of Muskingum was incorporated, the charter to continue from its passage until January 1, 1818. The company was duly organized under this charter, and D. J. Marple appointed cashier. Isaac Vanhorn, Jeffrey Price, Samuel Thompson, and John M’lntire, executed with Marple, as securities, a bond in the penalty of twenty thousand dollars. And Marple proceeded to discharge the duties of cashier.
    Before January 1, 1818, the legislature passed a law extending the charters of existing incorporated banks, until January 1,1843, upon certain terms and conditions; and with these terms and conditions the Bank of Muskingum complied, and Marple was continued cashier, without either a new appointment or a new bond.
    In 1815, M’lntire, one of the securities, died. In 1819, Marple became a defaulter to a large amount; and suit was commenced against Marple, Vanhorn, Price, and Thompson, the surviving obligors, and judgment obtained against *them for the amount of the defalcation. At the trial no evidence was given of any default,before January 1, 1818. Thompson, the complainant, having paid one-third of the judgment, brought this bill against the devisees and executors of M’lntire for contribution. The facts were presented by a plea, to which the complainants excepted.
    Goddard, for the defendants, in support of the plea, maintained :
    That the securities could not be charged with any defalcation that took place, after the expiration of the first charter, undei which the appointment was made, and the bond given. He cited 2 Saund. 411; 2 Blank. 934; 3 Wils. 530; 1 Term, 291; 3 East. 484; 1 New Rep. 34; 2 New Rep. 175; 6 East. 507; 2 Camb. 422; 12 East. 400; 2 Maul. & Sel. 363; 2 Camp. 39; 2 Barn. & Al. 431; 1 Bing. 452; 2 Bing. 32; 9 Wheat. 720; 8 Mass. 275. He further contended that the judgment at law, against the complainants, did not conclude the defendants, who were not parties to that cause and had no agency in the defense made.
    No argument was presented on the other side.
   By the Court:

The authorities adduced by the defendants are conclusive that the securities were not bound for any defalcation that took place after the expiration of the first charter. And we hold them to be in accordance with the soundest principles of justice.

It is equally clear that the defendants can not be concluded by an adjudication in a case where they were not parties. The bill must be dismissed.


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    *Waddle and McCoy v. Bank of the United States.
    Application in chancery for a new trial at law, refused, hy difference of opinion among the judges.
    This ease was reserved for decision at Columbus, by the Supreme Court in Ross county. It was a bill in chancery, to obtain a new trial at law, under the following circumstances :
    The complainants indorsed a note for M. W., which was discounted and renewed for some time at the office of discount of the Bank of the United States, at Chillicothe. It was at length protested for nonpayment, and suit brought against the indorsers. At the trial of that suit, the bank made no proof of demand of the drawer, and notice of nonpayment to the indorsers. But in the place of this proof, gave in evidence a deed of trust from. M. W., made for the security of the indorsers, upon a tract of land equal in value to the debt. And upon this evidence the bank recovered a verdict and judgment against the indorsers.
    Subsequent to this recovery, J. H. prosecuted a bill in chancery against Waddle and McCoy, upon a previous mortgage given by M. W. to him, on the same land, charging Waddle and McCoy with notice of such previous mortgage. In their answers, they denied notice. But on the hearing of the bill, the court decided that they were chargeable with notice, and decreed against them. The mortgaged premises were subjected to the payment of the debt to J. H., and nothing was left for the indemnity of Waddle and McCoy. The bill was filed to obtain a new trial, upon the ground that facts of subsequent occurrence, and which could not have been proved at the trial, rendered the verdict iniquitous and unjust. ■
    Leonard and Atkinson, for complainants,
    argued that complainants were entitled to the relief prayed by the bill.
    The case at law was decided upon the authority of 5 Mass. 170. That was a case where the maker of the note had assigned all his property to the indorsers, and was himself insolvent. Notice could avail the indorsers nothing. The rule, as now settled, seems to be, that to charge the ^indorsers, without notice of demand and nonpayment, the indemnity must be a complete and sufficient one.
    If the indemnity was really worth nothing, the indorsers were erroneously and wrongfully charged. And the fact of the insufficiency being subsequently established, entitles the party to a new trial, which can only be had in equity. They cited and examined the numerous cases where relief had been granted and refused. 1 Mad. Ch. 64; 9 Ves. 275; 2 P. Wms. 424; 7 Term, 265; 1 Scho. & Lef. 201; 1 Johns. Ch. 91; 14 Johns. 63; 1 Johns. Cas. 436; 1 Johns. Ch. 320; 1 Chan. Cas. 43, 63; 2 Johns. Ch. 228; 2 Johns. Cas. 319; 5 Johns. 249; 9 Johns. 78; 2 Binn. 582; 1 Wash. 8; 2 Wash. 36, 255; 2 Hen. & Man. 139; 4 Hen. & Mun. 369; 1 Bibb, 73, 252, 354; 2 Bibb, 550; 2 Ver. 146.
    They contended that relief ought to be granted by way of new trial at law, in all eases where bill of review would be allowed in equity, in relation to matters of fact; and cited to these points. 3 Johns. Ch. 124; 1 Johns. Cas. 502.

      They argued that the decree between J. H. and Waddle and McCoy was admissible evidence in this case, and prima facia proof of the invalidity of the indemnity. That although this decree might be impeached by the bank, who was no party to it, for fraud and collusion, yet not being so impeached in the answer, the bank was bound by it.
    The insufficiency of the indemnity resting upon the fact of notice, the complainants could not prove that fact upon the trial at law. Their own admissions could not be received for their own defense ; and besides, as trustees, they could not be permitted to do an act that would prejudice the cestuy que trusts. The.indemnity would, in equity, be made subject to the use of the bank, and, therefore, the complainants were bound to silence.
    What notice would be sufficient to charge a party, when that notice is implied and not direct, is a nice question, and one which could not properly be tried in the case between the bank and the indorsers.
    The previous mortgagee was no party, and no decision of the case would preclude him. The jury, upon the evidence before them, might find there was no notice. A court of chancery, at the suit of the previous mortgagee, *might find differently. It was, therefore, not competent to try the value of the indemnity in the case of the bank against the indorsers; and it being subsequently taken away entitled complainants to relief.
    G-rimke, for respondents, insisted:
    That the record of the case of J. H. v. Waddle and McCoy was not admissible evidence against the bank, who were neither parties nor privies; but that if admitted, then it proved that the complainants, at the time of the trial, had notice of the invalidity of the indemnity. That the decree against them was predicated upon the fact that they had notice when indemnity was taken; consequently their failure to avail themselves of it in th'eir defense was a neglect against which equity can not relieve.
    He examined the cases cited by complainants’ counsel, and cited in addition 1 Johns. Ch. 49, 324, 465; 3 Atk. 223; Pre. Chan. 193; 1 Ver. 176; 2 Chan. Cas. 95; 2 Atk. 319; 9 Wheat. 532.
    The complainants ought to have disclosed the fact of notice that invalidated their indemnity at the time of trial. Had they done so, the bank, no longer looking to the indorsers or the indemnity, might otherwise have secured themselves, it being in proof that M. W. had other property. The failure to make this disclosure works a prejudice to the bank, and properly casts the loss upon the complainants.
   The Court were equally divided upon the question of relief, so the bill was dismissed, but no opinion given.

      Note by the Editor. — For discharge of sureties hy principal, see McDowel v. Buttles, ii. 303, and cases cited in note to that case. When records of former recovery evidence in subsequent suit, see Gibles v. Eulton, ii. 180, and note to that case.


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    *Doe, on the Demise of Thompson and others, v. Gibson and Jolley
    Plaintiff in ejectment showing the original grantee to be within the exception of the statute of limitations, proof that others deriving interest under the grantee are not within such exception, is unnecessary. If relied upon to defeat recovery, it must come from the defendant.

      Quasre, whether English statute of uses was ever in force in Ohio ?
    This case was adjourned from Highland county. It was a motion by the defendants for a new trial where a verdict passed pro forma upon the following facts:
    The plaintiffs deduced title from a patent to Ann Byrd, administratrix of Otway Byrd, deceased, with the will annexed, in trust for the uses and purposes declared in the last will and testament of Otway Byrd, deceased. This patent.was dated January 31, 1803. It was admitted to include the lands in question, and it was also admitted that Ann Byrd, the patentee, resided in Yirginia, and had never been in Ohio. There was no proof before the court of the nature of the bequests in the will of Otway Byrd, and none that any of the persons for whose use the lands were granted had ever been in Ohio, or where was their place of residence.
    For the defendants it appeared that they claimed title to the lands under a patent dated February 23,1810, founded upon a survey made April 27, 1800; that under this-claim of right they took possession in the year 1803, and had ever since remained in possession. The ejectment was brought in 1825.

      Brush, Fitzgerald, and Collins, for defendants:
    In support of the motion for a new trial, relied upon the act of limitation of 1804, which limits the bringing of ejectment to twenty-one years where there is an actual adverse possession.
    They maintained that Ann Byrd, the patentee, did not take the legal title, but that in virtue of the statute 27 Hen. VIII., chap. 10, for the direction of uses and trusts, the legal title vested in the devisees of the will of Otway Byrd. -And the plaintiffs not having shown where these devisees resided, or that they resided out of the state, had not brought themselves within the proviso of the statute, and could not recover.
    ' They contended that the statute of uses was in force in 1803, when the grant to Ann Byrd emanated by special adoption *of the governor and judges, and also upon general principles. They cited 1 Swift Dig. 133; 2 Swift Dig. 104, 105; 2 Blac. Com. 327; Kirby, 368; 6 Mass. 31; 7 Mass. 189; 12 Mass. 104, 108; 14 Mass. 491.
    Having proved the defendants’ possession, so as to bring them within the statutory bar, it was incumbent on the plaintiff, and the burden of proof was thrown upon her, to make a case which would bring her within the exceptions of the act. 4 Wheat. 230, 234.
    Statutes of limitation are beneficial, and are to be treated as statutes of rest and repose. 4 Term, 308; 1 W. Black. 287; 5 Bin. 580; 8 Cranch, 74; 15 Ves. 192.
    Bond, for plaintiff, denied :
    That the statute of uses was ever in force in Ohio, so as to vest the legal estate conveyed to a trustee in the cestuy que trust. He maintained that if the right of the patentee was saved, all rights dependent upon or derived from that right were also protected. “ Beyond sea ” and “ out of the state ” are analogous terms. Cranch, 176; 3 Wheat. 541; 2 Bibb, 207.
    It is settled that in the case of a public grant, no matter when the possession commenced, the statute only begins to run at the date of the grant. 2 Marsh. 506. So whei'e the grantee is protected the statute can only begin to run at the date of the conveyance from the grantee.
   The Court were' divided in opinion upon the point whether the statute of uses, 27 Hen. VIII., chap. 10, had ever been in force in Ohio. Two judges held that that statute was in force in Ohio from 1795 to January, 1806, for all the purposes that it was in force in Yirginia or England. The other two judges held differently.

But the judges were unanimously of opinion that, it being shown that the grantee, Ann Byrd, was within the exception of the statute, it was incumbent on the defendants to show that those whose interest was dependent on hers were not within the exception. Consequently the motion for a new trial was overruled, and judgment given for the plaintiff.

      Note by the Editor. — English. Statute of Uses never in force in Ohio, vii. ¿75, part 1.


author: By the Court :

text:
    *Courcier and Ravises v. Thomas Graham.
    In decreeing specific performance, equity can not apply the doctrine of abatement or compensation to the defendant, so as to compel him to accept a less or pay a greater price. Decree upon such principles is erroneous.
    This was a writ of error, brought to reverse a decree of the court of common pleas of Hamilton county, pronounced in favor of the defendant in error against the plaintiffs in error, and was adjourned from the Supreme Court in Hamilton county. The case was this :
    In the year 1818, Graham made a contract with Courcier and Ravises, to sell them a tract of land, near Cincinnati, at a price per acre to be fixed by men chosen by the parties, and to be paid for in merchandise in Philadelphia. Merchandise estimated at eleven thousand four hundred and eighteen dollars thirty-two cents was delivered to Graham on the contract. The land, containing one hundred and two acres, was subsequently valued under the contract at three hundred dollars per acre. Exception being taken to the title, Courcier and Ravises sued upon the contract at law for the amount of merchandise delivered, and recovered. Graham brought his bill in equity to enforce a specific performance of the contract. The court of common pleas decreed a performance upon terms. The decree reduced the price of the goods delivered thirty-three and a third per cent., and the price of the land thirty-three and a third per cent., and decreed the balance of purchase money to be paid in cash. The general error was assigned.
    Gazlay, for plaintiff in error:
    This decree is erroneous for several reasons:
    1. It does not direct a specific performance of the contract between the parties, but makes a new contract, which a court of chancery can not do.
    2. It is in the nature of a new assessment of damages, in an action at law, the court substituting their assessment for that of the jury, which is unheard of.
    3. It is setting aside a judgment at law, and making a decree in its place.
    4. It does not give the defendant the right to pay in merchandise as the contract did, but directs payment in cash. And in case of failure, a sale of the land to raise the money.
    *The rules that govern courts of equity, in decreeing specific performance, are distinctly laid down and explained in Sugden’s Vend. 153, 172, 277; New Con. 342, 346, 89, 214; Coop. Eq. 133.
    C. Hammond, for defendant in error:
    The exceptions taken to the decree exist not so much in the decree itself, as in the reading which it suits counsel to give it.
    The doctrine of compensation and abatement in decreeing specific performance, is as old as that of decreeing specific performance itself. So is the doctrine of decreeing the performance of contracts, not according to their literal te'rms, but according to circumstances that exist at the time of the decree. It is settled that “under the head of specific performance contracts substantially different from those entered into have been decreed.” 6 Ves. 677; 10 Ves. 605; 13 Ves. 73, are to the same point.
    The decree proceeds upon the doctrine of the cases here cited, and they furnish answers to all the objections, which are in fact but the same objection, in a different form of words.
   By the Court :

This decree is erroneous. As we understand the doctrine of compensation, abatement, and modification, it is this. The cornplainant asks for a decree, and it may be granted to him upon terms. He may be told that he shall take less or give more, and to do so or not, is at his own option. But the court can not tell the defendant that he shall take less or give more, because to tell him so gives him no option whatever. In this case it was competent for the court to decree a specific performance at the request of Graham, upon the terms of abating thirty-three and a third per cent, in the price of the land. But the court had no power to reduce the price of the merchandise. The decree must therefore be reversed, and we retain the cause for further hearing on the whole merits.

      Note bx thb Editor. — See Townsend v. Alexander, ii. 18, and note to that case.


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    *Brice J. Sterret v. John Creed.
    Verdict against plaintiff in error for $10,953 no remittitur. Judgment for $6,600, no ground to reverse judgment.
    This was a writ of error to the court of common pleas of Fair-field county, reserved for decision here by the Supreme Court sitting in that county. The principal and only material error assigned was that the judgment did not agree with the verdict. It was an action on the case, by a subsequent against his immediate previous indorser, on a negotiable promissory note. The jury found a verdict for ten thousand nine hundred and fifty-three dollars; the judgment was for six thousand five hundred dollars, and the record contained no remittitur of any part of the damages assessed by the jury. The defendant sued the writ of error.
    Irwin, for plaintiff in error:
    It is the province of the jury, or of the court, by consent of the parties, to assess the damages. If the jury assess damages, not warranted by the proof in the case, the court may grant a new trial, but can not render judgment for any other sum than that found by the jury. To do so would, in fact, be a new assessment of damages. The question is not who is benefited, but have the court power? 4 Bac. 490.
    If judgment be rendered for a sum exceeding the amount of the award it is error. 2 Johns. Cas. 66.
    If the error assigned be the act of the court, it is immaterial whether it is beneficial or detrimental to the party assigning it. The judgment should be reversed. 8 Coke, 58; 1 Swift’s Dig. 791; 3 Bac. 772; Cro. Ja. 211; Cro. Eliz. 84.
    Ewing, for defendant in error;
    Writs of error, like other writs, are allowed for the purpose of redressing injuries, and only lie in favor of a party who has been injured by the erroneous judgment of an inferior court. And it is settled that a man shall not reverse a judgment for error, unless he can show that the error is to his disadvantage. F. N. B. 21, F.; 5 Rep. 29, 86.
    ^Before the statute of jeofails, the exceptions to this rule were, in cases where the form of the judgment was erroneous, as “ in mis ere cor dia,” instead of “ quod capiatur.” The reason for this was altogether technical and peculiar to the jurisprudence of the times, as explained in 8 Rep. 59. And it is to cases of this character that the authorities refer when they speak of the act of the court. He cited 2 Saund. 101; 3 Saund. 257; 2 Bac. 223; Yel. 45; 8 Johns. 76; 2 Johns. Cas. 66; 2 Johns. 46; 3 Caine, 218; 4 Term, 510; 4 Bibb, 182; Hard. 77.
   By the Court :

No case is cited to us; we have found none in which a judgment has been reversed for error manifestly beneficial to the party that asks the reversal. Had the plaintiff below, in this case, asked for a reversal we should .be bound to reverse; for, on the record, the judgment is to his prejudice. But the plaintiff in error has no ground of complaint. The cases cited by the counsel for the defendant in error, and the reason of the thing, unite in proving that a judgment ought not to be disturbed for an error beneficial to him who complains. He is not injured, so that his request is in contradiction to the allegations of the writ, that error has intervened to his prejudice. It is, in fact, to his advantage. There is a wide difference between a judgment in favor of a party and error in his favor. A man may be prejudiced by a judgment in his favor, where it is not for the thing he asks, or for less than he asks. But he never can be prejudiced by an error in his favor, such as rendering judgment against him for six thousand five hundred dollars, instead of ten thousand nine hundred and fifty-three dollars.

There may be cases where the court would feel justified in reversing a judgment for errors, apparently beneficial to the plaintiff in error. But this is not one of them. The judgment must be affirmed.

      NoTE by the Editor. — That can not be assigned for error by which the party assigning it would gain, xii. 112, 210; xiii. 131. This rule not applicable to errors of the court, ii, Swan’s Prac. 1136, and casos cited.


author: Judge Burnet :

text:
    *Mark Day v. Robert Brown.
    Where the clause of a deed containing the covenant of seizin is blank as to the names of those who are seized, it does not amount to a covenant of seizin by the grantors.
    Covenant to warrant and defend, “as executors are bound by law to do,” is not a personal covenant.

      Qucere, whether covenant of warranty,can be sustained without eviction under the act declaring the law in certain cases of covenants real.
    This was an action of covenant, and was reserved for decision here in Clermont county. The declaration contained two counts: one on a covenant of seizin; the other on a covenant of warranty, but without any averment of eviction. The defendant craved oyer of the deed, and demurred generally; the plaintiff joined in demurrer.
    The deed, as set out, was a conveyance from David and Robert Brown, executors of George Brown, deceased, and was a common printed blank, in the usual form, with covenants of ownership and warranty, except in filling up the blanks. The covenant of ownership was as follows: “And the said David Brown and Robert Brown, executors, for heirs of George Brown, deceased, do covenant, grant, and agree to, and with the said Mark Day, that ......the true and lawful owners of the premises,” etc. The deed being blank where the points are inserted. The covenant of warranty was that the grantors would warrant and defend the premises, as executors are bound by law to do, etc.
    Collins, in support of the demurrer, contended:
    1. That the deed contained no covenant of seizin or ownership.
    2. That the defendants had not bound themselves by any personal covenant.
    3. That as no eviction was alleged, the count upon the covenant of warranty was bad.
    Upon the first point, he relied upon the reading of the deed. The blank left it wholly indefinite as to who it was that stipulated, and who it was that were owners.
    On the second point, he maintained that the whole deed should be read in order to ascertain the extent of its covenant. General words may be narrowed according to the intention of the parties appearing upon the whole deed. 1 Inst. 313; 2 Bos. & Pul. 13; 3 Bos. & PuL 565; 4 Dallas, 440. On the third point, he cited 1 Ohio, 389.
    *Fishback, for plaintiff, insisted :
    That the deed contained a covenant of ownership or seizin, notwithstanding the blank. The terms, “ have good right, full power, and lawful authority to sell,” show clearly that it is the grantors who speak and make the stipulation.
    As to the liability of the defendants, he contended that the insertion of the terms “ as executors are bound by law to do,” did not control the former covenant of general warranty, which bound the grantors personally. Duval v. Craig, 2 Wheat. 56; Sumner v. Williams, 8 Mass. 162.
    He also urged that the case cited by defendant, from 4 Dal. 440, sustained his own position rather than the adverse one.
    The case from Ohio Reports is one where there was a covenant of seizin ; if,/in this case, there bé no covenant of seizin, the doctrine of that case does not apply, and the action is sustainable under the statute.
   Opinion of the court, by

Judge Burnet :

The declaration filed in this'case contains two counts : one on a covenant of seizin — the other on a covenant of general warranty. The defendant has craved oyer of the deed, and demurred generally, and contends:

1. That the deed does not contain a covenant of seizin.

2. That the action can not be sustained against the defendant in his private character, but as executor only, if it can be sustained at all.

3. That the second count being founded on a covenant of general warranty ought to contain an averment of eviction.

4. That there is a material variance between the declaration, and the deed on which it is founded.

1. That part of the deed which is set out and relied on as containing a covenant of seizin is insensible and contains no covenant, or undertaking of any description. If any meaning can be attached to it, it is, that the defendants covenant.for the heirs of G. Brown, that some person not named is the true and lawful owner of the premises; and to make out even that meaning, it will be necessary to supply ¿words not contained in the deed. It is true that the blank might have been so filled up, or such words might have been inserted in the deed before its execution, as would have amounted to a covenant, but as this was not done, the legal and natural inference is, that it was not the intention of the parties that such a covenant should be created. The liability of these defendants must depend on the terms they have used, and not on those they might have used. There are no cases in which the omission of a word, in the draft of a contract, will be supplied, where it appears to have been occasioned by accident, or mistake, and the meaning of the parties is sufficiently apparent, but the inference naturally arising in the case is, that the parties omitted to fill the blank in the part of the printed form calculated for a covenant of seizin, because they did not intend to have such a covenant in the instrument. But be this as it may, the deed does not contain the covenant set out in the first count, and we do not perceive anything on the face of it, from which the intention of the parties can be soaseertained as to authorize us to supply the omission. ■ It is very evident, that the latter clause of the sentence,. “have good right, full power, and lawful ■ authority'to sell and convey, in manner aforesaid,” relied on by plaintiff’s counsel, does not remove the difficulty, because there is nothing preceding those words that points out the person of whom they are predicated. They were intended to apply to the person who should enter into the covenant, but as the name of no person has been inserted, they are words without meaning.

2. The second ground is, that if the covenant of a general warranty binds the defendants at all, it does not bind them in the character in which they are sued.

It appears from the deed that the defendants were the executors of the last will and testament of George Brown, deceased.; that the land described in the deed was a part of his real estate; that the deed was executed in obedience to an order of the court of probate by the defendants, in their character of executors, and that the object of the deed was to pass the title of the testator, and nothing more.

In the covenant of warranty, they bind themselves as executors to warrant and defend the premises as far as executors are bound by 'law to do.

*The plaintiff’s counsel contends, that on this covenant the executors are personally bound, and are liable to answer the damage from their private funds, and he relies on the ease of Duval v. Craig, 2 Wheat. 46, and the authorities there cited. The principle on which this point was decided in that case admits of no doubt. Trustees and agents may bind themselves personally, and subject their private funds, though they are under no obligation to do so, and if they do so. bind themselves, they will be held to their contracts, notwithstanding their fiduciary character clearly appears. A person may describe himself as executor, or trustee, and yet bind himself as firmly and as extensively as if that description had been omitted.

The terms that are used in a contract to show the character or relation in which the parties stand, may be so used as to amount only to matter of description, or they may be so used as to limit and qualify the extent of their liability. In the cases referred to, the former was the fact, and the defendants were held personally responsible. But there is a striking difference between those cases and the one before us. Here the defendants not only describe themselves as executors of George Brown, professing to convey the title which he held at the time of his death, in pursuance of an order of the court of probate, but they expressly qualify and limit the operation of their covenant, so as to show that it was not the intention of either party that they should be personally bound. They undertake that they will warrant the title, as far as executors are bound by law to warrant, but the statute under which the order was made, and the deed was executed, does not require them to warrant in any form, or to any extent.

It can not be necessary to consider the authorities cited, to show that contracts are construed according to the intention of the parties, and that the intention must be gathered from the whole contract, nor will it be contended that the clause qualifying this covenant can be rejected. The terms used in that clause show' it was not the understanding of the parties that the defendants were to be personally bound, which is decisive of the present question.

*3. The third ground, is, that the count on the covenant of general warranty does not contain an averment of eviction.

It has already been decided in this case, that this deed does not contain a covenant of seizin, consequently the validity of the third objection will depend on the interpretation of section 1 of the statute “ declaring the law in certain cases of actions upon covenants real.” In Innes v. Agnew, 1 Ohio, 389, it was decided by this court that this section did not apply to deeds, which contained a covenant of seizin, but to such only as contained a covenant of warranty, without a covenant of seizin. The question now presented is, does it, in such cases, authorize the action without averring an eviction. Such was probably the intention of the legislature, but it seems to admit of serious doubts, whether that intention is sufficiently expressed. The first part of the section authorizes an action of covenant on a deed containing covenants of general warranty, in the same manner as if the deed had contained also a covenant of seizin. Thus far the statute does not change the common law. The latter part of the section provides that such action may in like manner be commenced before the grantee shall have been evicted, etc. Now, as the former part of the section authorizes the action on the covenant of warranty in the same manner as if the deed had contained also a covenant of seizin, the question may be made, whether the phrase in like manner in the second part, does not mean in the same manner as if the deed had also contained a covenant of seizin, or, in other words, whether this be not' the fair construction of the section, that on a covenant of general warranty in a deed, which does not contain a covenant of seizin, the grantee may maintain an action of covenant, in the same manner as he might have done, at common law, if the deed had also contained a covenant of seizin, and that such action may be commenced before eviction, in like manner as it might have been commenced at common law, before eviction, if the deed had contained also a covenant of seizin. But it has not been thought necessary to decide this point, as the case is fully disposed *of without it. For the same reason, I shall forbear any remarks on the fourth and last point.

It is the opinion of the court that on the first and second grounds, the demurrer must be sustained.

Judgment for the defendant.

      N“ote by the Editob. — The statute upon which the last branch of this decision was made was repealed, but re-enacted substantially in 1824, Chase, 1358, and this was entirely repealed in 1831, 29 Ohio L. The decisions under this act are, i. 389, the above case, and iii. 525. The law, as it now seems to be settled by the decisions in Ohio, relating to breach of the covenants of a deed, is: 1. That the covenant of warranty is not broken till after eviction by title paramount, v. 154; xvii. 66. 2. That any disturbance of the warrantee’s possession which is equivalent to eviction — as the assignment of dower, xvii. 66; a recovery in ejectment, though tenant is still in possession, v. 151 — is a breach of the warranty. 3. That the covenants of seizin, and power to convey, are beal, and run with the land, when the covenantor is in possession of the land at the time it is conveyed, xvii. 52; and personal when he is not in possession, xvii. 52. 4. These last-named covenants, when they run with the land, are only broken upon an eviction or its equivalent; but1 when they are personal, they are broken when made, if grantor has no title, iii. 211; xvii. 52. For a learned summary of the law relating to covenants of deeds, see Mr. “Wilcox’s note, x. 317, which is also found in his Digest, 167.


author:
Judge Hitchcock:
      Judge Burnet’s

text:
    Commissioners of Brown County v. Butt, late Sheriff.
    County liable to sheriff for not providing jail, where sheriff has been subjected to an escape.
    "Where there is an escape of a debtor, in prison for want of a jail, it is proper to sue the sheriff for an escape.
    In a suit by sheriff against the county, for damages sustained in consequence of no jail being provided, record of suit by party injured, against sheriff, admissible evidence.
    Commissioners liable for not supplying jail, without reference to degree of negligence.
    Special action on the case, proper form of action for sheriff against commissioners to recover damages sustained by escape for want of jail.
    This was a writ of error to the judgment of the court of common pleas of Brown county, in an action on the case, brought by the defendant in error, against the plaintiff in error, and was adjourned, by the Supreme Court of Brown county, for decision at Columbus.
    The case was this: Butt brought a special action on the case, against the commissioners, and charged that one Shaw brought an action against Parker, by capias, requiring bail, which was put into Butt’s hands, as sheriff, to be executed. That he arrested Parker, and took appearance bail. That in term time, the bail surrendered Parker, who was committed to the custody of the sheriff and escaped, the county having provided no jail. That Shaw prosecuted an action forthe escape, against the sheriff, the plaintiff in this action, and recovered, whereby he sustained damages. Plea, not guilty.
    At the trial, the plaintiff offered and gave in evidence:
    1. The record of the suit, Shaw v. Butt.
    2. The order of the court committing Parker to custody.
    3. Shaw’s receipt to Butt for the amount recovered.
    4. Butt’s commission as shoriff, with his oath of office.
    5. Proof by witnesses that there was no jail in the county when Parker was committed.
    To the admission of this testimony, the defendants objected, and their objection being overruled, they took a bill of exceptions.
    They then moved the court to instruct the jury, that the plaintiff could only recover nominal damages. This ^motion was overruled, and it was decided that the judgment obtained c.j Shaw against Butt was prima fade evidence of the damage sustained by the plaintiff. To this opinion the defendants also took a bill of exceptions.
    The defendants moved the court to instruct the ju’-y, that unless the commissioners were guilty of gross neglect, in omitting to furnish a jail, they were not liable. This motion was also overruled, and the court instructed the jury, that it was the duty of the commissioners to furnish a jail — that if no jail was furnished, the sheriff was nevertheless liable for escapes, and the commissioners liable over to him. To this opinion the defendants also excepted. Terdict for the plaintiff for the amount recovered against him of damages and costs. Judgment on the verdict — general error assigned.
    Marshall and Gilleland, for plaintiffs in error, contended :
    1. That the county commissioners were not bound to furnish a jail, and therefore could not be liable in this action. They cited Campbell v. Hampson, 1 Ohio 119.
    2. That the record of the case of Shaw v. Butt was inadmissible as evidence — the defendants, in this case being neither parties nor privies, in blood or law, to either of the parties in that case. 1 Phillips’ Ev. 226, 228.
    3. Nominal damages only ought to have been given, because there was no evidence that Shaw had recovered anything against Parker. And the recovery of Shaw v. Butt was for a voluntary escape, for which sheriff ought not to recover. 2 Phillips’ Ev. 227.
    4. Defendants were only liable for gross negligence. Commissioners are by law vested with a discretion to erect a jail, when “ they should deem it necessary.” Where discretion is given, party is only liable for gross negligence. 1 Johns. Ch. 18.
    5. If commissioners are liable, the action should have been brought direct against them by Shaw. This would avoid circuity of action, and' put the original defense in the hands of the party ultimately liable.
    6. The action ought to have been in assumpsit, and not in tort.
    *Brush and Fitzgerald, for defendant in error:
    Insisted that the case of Campbell v. Hampson, 1 Ohio, 119, was against the plaintiff in error. In that case, the court decided that tne sheriff was bound to keep the prisoner in the jail furnished by the county, and was not liable if it were not properly constructed.
    The record, in the case of Shaw w.-Butt, was properly received in evidence, and was conclusive as to Butt’s liability, and as to the amount.
    It is a mistake to suppose that the extent or degree of negligence was the matter to be tried. If the county provided no jail — and they were bound by law to furnish one — the county must be liable, where any individual is injured by that neglect.
    It has been settled in this state, by two decisions of the Supreme Court in Pickaway county, that the proper mode of proceeding is for the party injured to sue the sheriff. The sheriff is always liable to the plaintiff for an escape. And the plaintiff ought not to be turned over to a suit against the county, and tort is undoubtedly the proper form of action.
   Opinion of the court, by

Judge Hitchcock:

The first and most important question presented to the court for decision in the present case is, whether a county can be made responsible for the escape of a prisoner, confined for debts where the escape happens in consequence of the. want of a jail, or where the jail furnished by the county commissioners is insufficient. It is necessary to dispose of this question in the first place, because if the county is not liable, the judgment of the court of common pleas was erroneous, and must be reversed.

The law has been long settled in England, the country from which we derive most of our laws, as well as our ideas of jurisprudence, that the sheriff is liable for escapes. It is to him, and him alone, in such cases, that the judgment creditor can look for redress. The same principle prevails in some, although not in all, our sister states. Whenever a question of law has been settled in England, the courts in this country are in the habit of adhering to such decision. *It is undoubtedly correct that such should, as a general rule, be the case. But to adhere blindly to English decisions when no good reason can be assigned for them, or when no other reason can be assigned than that it has been thus decided, to do this without inquiring what influenced the courts to make such decisions, to do it without inquiring whether the same-reasons exist in this country as in that, would be foolish in the extreme. It is a useful maxim that when the reason of a law ceases, the law itself should cease. A particular law, or rule of law, might be very beneficial in England, or one of our sister states, which, if enforced in Ohio, would be attended with injurious consequences. Influenced by these circumstances, this court has ever been in the habit of looking to the effects which would follow the adoption of any particular rule of decision. Why is the sheriff in England made liable for an escape ? The reason is obvious. The sheriff in that country, as well as in this, is the keeper of the jail. But he is not bound to confine the debtor in the public jail of the county, if there be one, but he may confine him in a house or prison furnished by himself. If the public prison is insufficient he can make all necessary repairs or alterations, and for the expense will be indemnified. In short, he may adopt any course which is essentially necessary to secure his prisoner, provided he confines him within the proper bailiwick. Such being his situation, it is perfectly proper that if the prisoner escapes, he should be liable. The escape will not happen without a violation or neglect of duty on his part, and whenever an individual sustains an injury in consequence of the violation or neglect of duty on the part of a public officer, justice requires that the officer should make reparation for that injury. But to make the officer liable where no such circumstance intervenes, when he has in fact complied with the requisitions of law and with his own duty, would be manifestly unjust. What, then, is the situation of the sheriff in Ohio ? Can he confine the debtor in such place as he thinks proper? Can he confine him in a prison of his own choice? It will not be pretended. On the contrary, the law requires that the debtor shall bo confined in the jail of the county. And should he be confined in any other *place, the sheriff would be liable to the creditor for an escape, or to the debtor for false imprisonment. True, the sheriff may, under peculiar circumstances, convey his prisonerto the jail of an adjoining county, but this is only in extraordinary cases. Is the sheriff authorized to fix upon the placo for, or to erect a jail for the county ? In the “ act providing for the erection of public buildings,” passed January 22,1810, the law in force when the escape now complained of happened, but which does not materially vary from the present law on the subject, these duties are assigned to the county commissioners.

The sheriff has no power to provide a prison, nor can he repair one unless at his own expense. Under these circumstances, to make the sheriff ultimately liable for the escape of a prisoner, when the escape happens for the want of a jail, the law giving him no power to furnish such jail, or to make him liable when the escape happens through the insufficiency of the jail, the law conferring no right upon him to make necessary repairs, would be manifestly unjust. It would be to inflicta penalty on an officer who had violated no law, who had been guilty of no violation or neglect of duty. It would, in fact, be to punish him for a neglect of duty on the part of others.

When the escape is voluntary, or where it happens in consequence of the negligence of the sheriff, he ought to be liable. But where it happens in consequence of circumstances not within his control, the principles of justice require that he should be exonerated.

It may, perhaps, be thought by some that if the sheriff is to be exonerated on the grounds before specified, it would be proper to make the county commissioners liable in their individual capacity. But we must consider the capacity in which the county commissioners act. They are the representatives of the county. The money which they expend is the money of the county. The funds with which public buildings are erected, are the funds of the county. In fact, the acts of the commissioners are the acts of the county, and it is only through them that the business of the county can be transacted. And when it is said that it is the duty of the • commissioners to furnish public buildings, nothing more *is intended than that this should be done by the county. It is true the commissioners may, in some cases, be punished criminally for a neglect of duty, but this is a civil action, the object of which is to recover remuneration for a civil injury. The injury has been sustained in consequence of a neglect of duty on the part of the commissioners, not as individuals, but in their corporate capacity as the representatives of the county of Brown. If liable at all, therefore, they must be liable in this capacity.

Inasmuch, then, as it is duty of the commissioners of a county, or, in other words, of the county itself, acting by its commissioners, to furnish a good and sufficient jail; and, inasmuch, as the sheriff has no voice nor control in this business, it is the opinion of a majority of the court that where an escape happens in consequence of the want of, or insufficiency of a jail, the county must be eventually liable for such escape. Similar considerations influenced the court in the decision of the case of Campbell v. Hampson, 1 Ohio, 119, and we see no reason to change the principle there decided.

Having disposed of the question which I considered the most important in the case, I will now proceed to consider the other points made by the counsel for the plaintiffs in error. It is urged that admitting the principle settled by the court to be correct, Shaw could not, with propriety, have a recovery against Butt, turning Butt round against the county for his indemnity; but should, in the first instance, have commenced an action in his own name against the county. If this were a new question, I should feel disposed to concur in opinion with the counsel for the plaintiffs in error. It being the duty of the county to furnish a prison, and the escape having happened in consequence of a neglect of this duty, .it would seem to be proper that the county should be directly liable to the party injured. By adopting such course, circuity of action would be avoided. The party in fault would suffer for his negligence, while an innocent individual would not be put to the trouble of defending or prosecuting a suit. But I do not consider this question as open for discussion. It has been repeatedly decided that the judgment creditor must look to the sheriff *for his remedy, and in this case we settle the principle that the sheriff shall be indemnified by the county. The decision of the court of common pleas was, therefore, in this particular correct.

It is further objected that the court of common pleas permitted the record, in the case of Shaw v. Butt, to be given in evidence to the jury — the plaintiffs in error not being either parties or privies to the judgment in that case. The principle contended for is, as a general rule, undoubtedly correct. Had the action been founded upon that judgment, the record should have been excluded — such action could not have been sustained. But the foundation of the action was the negligence of the commissioners in furnishing a jail, in consequence of which the plaintiff below had sustained an injury. The extent of this injury must be ascertained, and this could be done only by showing the amount he had been compelled to pay. For this pui’pose the record was introduced. It was mere collateral matter, and for this purpose might well be given in evidence.

The next exception is that there was no evidence that Shaw proved that he sustained any damage in consequence of the escape of Parker, and, therefore, that the damages in the case of Butt against the commissioners should have been merely nominal. And, moreover, that the recovery against Butt was for a voluntary escape. It is the opinion of the court that the amount of damages recovered by Shaw v. Butt is the proper rule of damages in the present case. Whether the evidence submitted to the jury was sufficient, in that case, to justify them in finding that amount of damages, we know not. The reasonable presumption is that it was. Nothing to the contrary appears, nor can the correctness of that verdict be questioned in this case. As to the nature of the escape, whatever might have been the form of action against Butt —whatever might have been the evidence in the case against him — ■ it appears from the bill of exceptions before us, that the escape happened in consequence of the want of a jail. Had a sufficient jail been furnished, the county must have been exonerated. The sheriff alone would have been liable. But such was not the fact.

*It is further objected that the court of common pleas refused to instruct the jury, that unless they believed the commissioners had been guilty of gross negligence, they must find for the defendant. Such instruction would have been improper. Should the commissioners of a county be indicted for not erecting public buildings, under section 14 of the “act establishing boards of commissioners,” it might be a good defense for them to show that they had not been guilty of gross negligence. But such defense can not be allowed in a case like the present. Here, an individual has sustained au injury in consequence of the neglect of the commissioners. The injuxy to him is the same, whether the negligence was gross or othex'wise, and he is equally entitled to redress.

An objection is made to the form of action. It is said it should have been assumpsit. But this objection will not avail. The action is a special action on the case, and well brought.

In whatever point of view I can consider the case, it appears to me that the court of common pleas were correct in the determination of the sevex'al questions submitted to them, and in this opinion a majority of the court concur.

The judgment of the court of common pleas is therefore affirmed, at the cost of the plaintiffs in error.

Judge Burnet’s

dissenting opinion:

The ground on which I dissent from the opinion of the court in this case is, that I can not consider a county, in its corporate capacity, as liable for the illegal conduct of its officers; and if it is not so liable, I do not perceive any ground on which this action can be sustained. There is no statute in this state, by which it is made responsible, and if there be any principle of-common law that can sustain the suit, it has escaped my observation. There is not any contract, either express or implied, subsisting between the plaintiff and the county of Brown, on which the claim can be founded, nor has the county, in its corporate capacity, been ■guilty of a tort to his prejudice. If the commissioners, by a willful omission of duty, have caused him an injury, they may be answerable for the consequences, *in an action properly framed for that purpose. The statute made it the duty of the commissioners to provide a sufficient jail, and gave them the means of doing so. They voluntarily accepted the trust, and if they have neglected to execute it, and by that negligence the plaintiff has been injured, the injury has not proceeded from the county, but has been occasioned by the illegal conduct of the commissioners, for which they are personally responsible.

Reference has been had to considerations of policy. If there be any weight in these arguments, they are better calculated for the legislative hall than for a court of justice. They might influence the legislature to provide a remedy, but they do not show that it already exists. It way, however, be fairly questioned whether good policy requires such a recourse. A county can not provide public buildings, in any other may than by the agency of its officers. If those officers may neglect their duty with impunity, as will be the case if they can transfer the consequences of their negligence to the county, a strong inducement to the faithful and punctual discharge of duty is lost. It will be a matter of but little moment, as it regards them personally, whether they provide a sufficient jail or not, if the consequence of their negligence is to operate on the public treasury, instead of their own purses. If considerations of policy can be properly used in a case like this, I incline to the opinion that it is better to lot the officers bear the consequences of their omissions of duty than invite them to such omissions, by providing an indemnity, or by suffering them to offend with impunity. It can not be good policy to remove incentives to duty. If it be said that cases of hardship may arise, in which.the commissioners are not chargeable with inexcusable neglect, so as to be personally liable it may be replied, that in such cases the sheriff, or other person injured by an escape, may petition for relief, with a fair prospect of success, if his claim be a meritorious one. But it does not follow that a legal right of recovery must exist for every loss attended with hardship. There are cases without number in which such losses are sustained, and the sufferers are destitute of a remedy, because there is no person legally bound to indemnify. It can not be overlooked, *however, that in the case before us, all the parties acted voluntarily and advisedly. The sheriff knew the situation of the public buildings when he accepted his office, and the defendant had the same knowledge when he caused his debtor to be imprisoned. The hardship, therefore, is not as good as it would seem at first view.

If the liability contended for really existed, it is a natural inference that some adjudged eases might be found to support it, but the research of counsel has not enabled them to produce a solitary ease, in which the funds of the county, or corporation, have been rendered liable for injuries sustained by the unauthorized, illegal, and tortious acts of its officers. As far as the case of Campbell v, Hampson applies, I consider it an authority against the plaintiff. That case was decided on the principle, that a sheriff, who was expressly commanded by the statute to commit a person in his custody to the common jail, and to a particular apartment in that jail, could not be charged as a trespasser in discharging that duty, because, by the misfeasance of the commissioners, the apartment in which he was directed to confine the person had not been provided,' by which it was impossible for him to perform the duty in the precise manner directed.

And in delivering the opinion, the court do distinctly intimate, that the party injured had a remedy against the commissioners, whose duty it was to have provided a separate room for debtors. If anything can be inferred from that case, applicable to this, it is that this plaintiff was not liable for an escape which he could not prevent, etc., that he might have defended himself against the suit of the creditor,- and turned him over to the commissioners, who were exclusively liable for the injury he had sustained. And again, I do not see how a decision that the sheriff is not liable to an action of trespass, in a particular case, and that he may defend himself against it, can be improved as an authority to show that in a case of a different character, he may submit to a judgment, and then compel an indemnity from the county.

The books abound in cases, both English and American, in which recoveries have been had against sheriffs for escapes, but not an instance can be found in which they *have recovered an indemnity against the county. If it be replied that this is because the sheriffs in England are not bound to confine debtors in the public jail, but may, at their election, provide a private jail, or may repair the old one, if necessary, for which they are to be remunerated ; the same reply may be given, with equal force, in the present case. In Ohio, the county commissioners are authorized and directed to provide sufficient jails, and it is their duty to levy and collect money, or to contract debts for that purpose if necessary. Consequently, they stand in the situation of sheriffs in England, in relation to escapes, and ought to be answerable for the insufficiency of the jail, in the same manner, and to the same extent. They, as well as the sheriff, are county officers, and in providing public buildings, they all act as agents of the county.

If an escape happens in England, through the insufficiency of the jail, the sheriff must answer for it, and he has no recourse on the county. For the same reason, the commissioners in Ohio should be answerable without recourse. It is a just maxim, that “the reason of the law is the life of the law.” The sheriff, in the case put, is liable without recourse on the county. Why? Because he has been guilty of a misfeasance, in not providing a sufficient ¡ail. Therefore, and for the same reason, the commissioners should be liable without recourse, they having been guilty of a nonfeasance, in not providing a jail.

In every instance, within my knowledge, in which a county has been held liable for an escape, it has been made so by statute. It is by statute, the hundred in England, is made liable for robberies, in certain cases, and under our territorial government, a statute was adopted by the governor and judges, in August, 1792, declaring the counties liable for escapes that should happen through the insufficiency of the jail. The act pointed out the manner in which the money should be assessed and paid, and also the mode of commencing and conducting suits for the recovery thereof, in case the courts should not order it assessed and paid. The frauds that were practiced on the counties, under that law, by collusions between plaintiffs and defendants, when no debts wore really due, and when defendants were utterly ^insolvent, became so appai’ent and oppressive, that the fii’st territorial legislature, in 1799, repealed the act, and no subsequent legislature has seen proper to revive it.

Prior to the adoption of that law, I believe no attempt was made to charge a county in such a case, and this is the first suit that has been brought for that pui’pose, within my knowledge, since the repeal of the law, although escapes have been numerous, for which the sheriffs have been held answerable to the persons injured. The natural inference is, that it has been the prevailing opinion that such actions could not be sustained at common law.

From the most careful view I have been able to take of this case, it appears to me that the county of Brown is not liable, either by statute, or by contract, to pay the money demanded, nor do I discerní that she has committed any tort to the injury of the plaintiffs, and I do not know of any ground, distinct from these on which the action can be sustained.

The duty and the power of the commissioners is created by statute. While they act within the scope of their powers, the county must be bound, but if they should make a contract, to remove the seat of justice, or should seize on pi-ivate property, for county purposes, contrary to law, the county would not be bound by the conti’act, or liable for the trespass ; they would be responsible in their pi’ivate capacities. The proposition, thex-efore, that “the act of the commissioners is the act of the county,” must be taken in a restricted sense. It would be mischievous, as well as unprecedented, to hold the county answerable for their tortious and illegal proceedings.

      Note by the Editor. — As to record evidence, see Gibbs if. Fulton, ii. 180, and note. The law of this case is recognized, vi. 13, and same principle, i. 119.