text:
    Clark Waggoner v. Lessee of John N. Dubois and wife.
    With respect to judgments and proceedings under them, especially those of long standing, an error or misrecital does not vitiate, where enough appears to point out clearly the error, and to show how it ought to he corrected.
    This is a writ • of error to the Court of Common Pleas of Erie county.
    The action below was ejectment. The plaintiff proved a possessory title in David Hinman, the death of Hinman in 1820, the heirship of Mrs. Dubois, and her marriage with Dubois, and rested.
    The defendant,’ then, to sustain his title to the premises in dispute, offered in evidence a title from Daniel Hamilton, and proceedings in scire facias in the court of common pleas of Huron county, and execution, levy, return, confirmation, etc., as contained in the following copy from the record; which scire facias, on plaintiff’s motion, was overruled by the court, because said record and proceedings showed no sufficient title in said Hamilton, and on account of the variance between the scire facias and the writ.
    The defendant then offered in evidence title from Hamilton, and the sheriff’s deed, and the whole of the record, which evidence was, on plaintiff’s motion, ruled out, because it showed no sufficient title in said premises.
    A verdict was rendered for the plaintiff, on which judgment was entered.

      To show clearly the questions raised, and the variance and misrecitals, on account of which exceptions were taken below, the whole record and proceedings are here inserted.
    Pleas before the honorable, the president and judges of the court of common pleas, holden at Norwalk, in and for the county of Huron and State of Ohio, in the term of May, A. D. 1819.
    Franklin Rising, v. Philip R. Hopkins, James Williams, and David W. Hinman. In Case. The State of Ohio, Huron county, ss. [Seal.]
    To th'e sheriff of our said county, greeting:
    We command you that you summon Philip R. Hopkins, Jas. Williams and David W. Hinman, if they be found in your bailiwick, to appear before our court of common pleas forthwith, now in session in the town of Norwalk, to answer Franklin Rising, in a plea of trespass on the case, to-their damage fifteen hundred dollars, as he said. Herein fail not, but of this writ and your service, make due return.
    Witness, the honorable George Tod, president of our said court, at Norwalk, the 22d day of May, Anno Domini one thousand eight hundred and nineteen.
    Jambs Williams, C. C. Pleas.
    And upon the back of which appears the following return, to wit:
    I have summoned James Williams, Philip R. Hopkins, and David W. Hinman, agreeable to law. Norwalk, May 22d, 1819. Lyman Farwell, Sheriff.
    And now in the same term of May, 1819, the plaintiff, by Lee, his attorney, comes into court and files his declaration, in the words and form following, to wit:

      State of Ohio, Huron county, ss. In common pleas, of
    May term, Anno Domini eighteen hundred and nineteen.
    Philip R. Hopkins, James Williams and David W. Ilinman, being merchants, in company, under the firm of ‘ Hopkins, Williams & Co.,’ were summoned to answer Franklin Rising, of Philadelphia, Pennsylvania, in a plea of trespass on the case, and thereupon the said plaintiff, by J. B. Lee, his attorney, complains for that whereas, the said defendants, on the ninth day of September, in the year of our Lord, eighteen hundred and nineteen, at Philadelphia, to wit: at Norwalk, in the county aforesaid, and within the jurisdiction of this court, made their certain note in wmiting, (commonly called a promissory note,) signed ‘ Hopkins, Williams & Co.,’ the name of the firm, by one of the said firm, bearing date on the day and year aforesaid; and then and there deliver said note to the said plaintiff, and thereby three months after date promised to pay to Franklin Rising or order, eight hundred dollars, without defalcation, for value received, with lawful interest for the same; by means whereof, the said defendants became liable to pay said plaintiff the said sum of money in said note mentioned, according to the tenor and effect thereof; and being so liable, the said defendants, in consideration thereof, afterwards, to wit: on the day and year aforesaid, at the place aforesaid, in the-county and within the jurisdiction aforesaid, took upon themselves, and then and there promised said plaintiff to pay him said sum of money in said note mentioned, according to the tenor and effect thereof: Nevertheless, the said defendants have not paid said plaintiff said sum of money, [nor any] part thereof, although often requested; but to pay the same have hitherto wholly refused and still do refuse, to the damage of the said plaintiff of fifteen hundred dollars, and therefore he brings suit, etc.
    J. B. Lee, Attorney for plaintiff.

      Huron Common Pleas, vacation after May term 1819. And now the said David W. Hinman, one of the defendants, comes and defends the wrong and injury when etc., and for plea, saith that he did not assume and promise in manner and form as the plaintiff in his declaration hath alleged, and for trial puts himself on the country, etc.; and further saith that there was not at the time said note was given, a real firm, as alleged in the plaintiff’s declaration; and further, that said obligation is discharged by a certain judgment obtained against Philip R. Hopkins, in favor of said plaintiff, at the last February term of Huron common pleas, on which execution hath issued and property attached, to satisfy the same.
    David W. Hinman.
    And now, the said plaintiff, by J. B. Lee, his attorney, in reply to the first plea by the said D. W. Hinman above pleaded, doth the like; and as to the second plea by him above pleaded, saith that there was, at the time said note was given-firm as alleged in the plaintiff’s declaration ; and further, that said obligation is not discharged by a certain judgment obtained against Philip R. Hopkins, in favor of said plaintiff, the last February term of Huron common pleas, on which execution hath issued and property attached, to satisfy the same: all of which the plaintiff pray may be enquired of by the country, etc.
    J. B. Lee, Plaintiff’s attorney.
    And now, in the same term of May, A. D. 1819, the plaintiff, by Lee, his attorney, comes into court and files his declaration, and takes a rfile upon defendants, to plead thereto in sixty days, and this cause continued.
    And now, in the term of October, A. D. 1819, the plaintiff, by bis attorney, comes into court, and Philip R. Hopkins and James Williams being called, came not, but made default; whereupon it is considered by the court that the plaintiff recover of the said Philip R. Hopkins and James. Williams eight hundred and fifty-four dollars and ten cents damages, with stay of execution until next term 'and until ordered by the court; and the said plaintiff consents that this be continued as to the said David W. Hinman.
    Pleas before the honorable judges of the court of common pleas, within and for the county of Huron, State of Ohio, in the term of May, Anno Domini, one thousand eight hundred and twenty.
    Eranklin Rising, 1 v. * > In Case. David W. Hinman, )
    Whereas, an action was heretofore commenced by the plaintiff against James Williams, Philip R. Hopkins and the said David W. Hinman, in the term of May 1819, on a certain promissory note, given by the said Williams, IIopkin3, and Hinman, to the said Rising, for the sum of eight hundred dollars, bearing date on the 9th day of September, 1819 ; which said suit was continued until the term of October A. D. 1819, when a judgment was entered against the said Williams and Hopkins for the sum of eight hundred [and] fifty-four dollars and ten cents ; and on motion, the said suit was continued as to the said Hinman, until February term, 1820. And now, in the term of February, A. D. 1820, on motion, this cause is continued.
    And now, in the term of May, A. D. 1820, the said David W. Hinman, in his own proper person, comes into court and confesses himself to owe and be indebted to the said Franklin Rising, in the just and full sum of eight hundred eighty-three dollars and eighty cents: whereupon, it is considered by the ■court, that the said Franklin Rising do recover against the said David W. Hinman the aforesaid sum of eight hundred eighty-three dollars and eighty vcents for his damages, together with -dollars and-cents for his costs and charges by him, about his said suit in that behalf expended, and the said defendant in mercy, etc.

      The State of Ohio, Huron County, ss.
    [Seal.]
    To the sheriff of our said county, greeting:
    We command you, that of the goods and chattels of Philip R. Hopkins, and James Williams and David W. Hinman, in your bailiwick, you cause to be made $838.80, which Franklin Rising, lately in our court of common pleas, at Norwalk, in said county, recovered against them, as well for his damages which he had sustained, as for his costs and charges by him about his suit in that behalf expended, whereof the said defendants are convicted, as to us appears of record; and that for want of goods and chattels, that then you cause said damages and costs to be made of the lands and tenements whereof the said defendants were in possession, and to which they or either of them had title on the 16th day of February, A. D. 1819, or at any time afterwards: and have you that money before our next court of common- pleas, to be held at Norwalk, on the ' 19 th day of May next, to render the said Franklin Rising, —and have then there this writ.
    Witness, the Hon. George Tod, president of our said court, at the court-house, this 25th day of March, A. D. one thous- and eight hundred and twenty-three.
    D. Gibbs, Clerk.

      Franklin Rising v. Hopkins Sf Williams.

    E., Fi. Fa., returnable May term 1823 ; judgment, February term, 1819, levy; damages, $829.30 ; docket fee $5.00 ; clerk’s costs $2.50; sheriff’s do., $2: increase, viz: interest from Feb’y 1819; sheriff’s cost on ex., $0.75 ;■ Clerk’s . increase $1.23. Received this execution, March 5th 1823 ; levied 26th March, 1823.
    We, the undersigned, called upon by Enos Gilbert, Esq., sheriff of the county of Huron, to appraise a certain tract of land, in the fourth section of Milan, after being duly sworn as the law directs, do appraise fifty acres of land, to answer on an execution where Franklin Rising is plaintiff, and Hopkins, Williams and Hinrnan, defendants, bounded westerly by the road leading from Milan to Norwalk; northerly by E. Merry’s land ; easterly by Kneeland Townsend’s land; and southerly by E. Merry’s land; being a lot of land bought of Ebenezer Merry by David W. Hinrnan, seized as the property of Hopkins, Williams and Hinrnan, do appraise said land at ten dollars per acre.
    Milan, 26th March, 1823.
    Asa Sanford, [Seal.] Ralph Lockwood, [Seal.j
    Needham M. Standart, [Seal.]- Noah Baker, [Seal.]
    F. W. Eowler, [Seal.] Appraisers.
    Appraisal of Williams, Hopkins, and Hinrnan property.
    The appraisal of fifty acres of land — Hopkins, Williams and Hinrnan.
    Sheriff’s Sale.
    State of Ohio, Huron County, ss.
    By virtue of a writ of ft-fa., issued from the court of common pleas in and for the county aforesaid, and to me directed and delivered, against the goods and chattels, lands and tenements of James Williams, David W. Hinrnan and Philip R. Hopkins, in favor of Eranklin Rising, I have levied on fifty acres of land, in the fourth section of Milan, bounded westerly by the road leading from Milan to Norwalk; northerly by E. Merry’s land ; easterly by Kneeland Townsend’s land ; southerly by E. Merry’s, land. Which property I shall expose to public sale, at the court-house, in Norwalk, on the 10th day of May, 1823, at eleven o’clock A. M.
    Sheriff’s Office, Norwalk, April 7th, 1823.
    Enos Gilbert, Sheriff.
    May the 10th, 1823 ; this day offered the within property for sale, and Ebenezer Lane bid it at seven dollars and fifty cents per acre, and it was struck down to him.
    Enos Gilbert, Sheriff.
    By his Deputy, Luke Keeler.

      State of Ohio, Huron County, ss.
    Norwalk, May 1-9, 1823.
    I, Enos Gilbert, sheriff of Huron county, to whom the writ annexed is directed, which came to my hands on the 26th day of March, 1823, do now here certify and make recnrn of the same, with my doings thereon, as follows, viz: Ou the 26th day of March, 1822, by virtue, and in obedience of the said writ, I made diligent search throughout my bailiwick, for goods, chattels belonging to the said Williams, Hopkins and ITinman, but could find nonewhereupon, on the said 26th day of March, I levied said writ upon fifty acres of land, lying in the fourth section of Milan, in the county aforesaid, lying on the northeast side of the road leading from the village of Milan to A. Comstock’s; bound ed southwesterly by said road; northwesterly by land of E Merry; northerly by land of K. Townsend; and easterly and southerly by land of E. Merry; that on the same 26th day of March, I called an inquest of five respectable freeholders of said county, resident in the county, where said lands were situated, and then and there administered to them an oath to estimate the real value of said tenements so levied upon, upon actual view thereof, and return to me such estimate within four days after such view: that on the same 26th day of March the said freeholders, to wit: Asa Sanford, Ralph Lockwood, Needham M. Standart, Noah Barker and Frederick W. Fowler, did return to me their estimate, under their hands and seals, that they estimated the real value of said tenements to be at the rate of ten dollars for each and every acre thereof, a true copy of which estimate I have forthwith deposited with the Clerk of the common pleas of Huron county, being the court out of which was issued the said execution, and the original estimate, under the hands and seals of said freeholders, I do here annex and make the same a part of this my return; whereupon, on the 7th day of April, 1823, I caused public notice to be given, by posting, upon the door of the court-house, in Norwalk, for said county, and in five other public places in said county, two of which were in said township of Milan, in which said tenements were situate, that on the 10th day of May, 1823, I should expose said tenements for sale, at public vendue, to the highest bidder, at the door of the court-house, in Norwalk, at eleven o’clock of the same day; and on the said 10th day of May, 1823, at the hour of eleven A. M., in pursuance of said notice, I offered said tenements for sale at public» vendue, at said door of said court-house; at which time and place appeared Samuel Newton and bid for the same the sum of three hundred and seventy-fire dollars, and was the highest bidder for said tenements, and this bid was more than two-thirds the appraised value thereof; whereupon I struck off said tenements to said Samuel, and do declare him the purchaser of the same: whereupon, I struck off the said tenements to the said Samuel Newton, and do declare him the purchaser thereof; from which said sum I do deduct my cost for effecting the said sale, amounting to the sum of twelve and 60-100 dollars, and do bring the residue of the purchase money into court, to wit: three hundred sixty-two dollars seventy cents, ready to satisfy said plaintiff so much of said judgment as the same will cover; and as to the balance due upon said judgment, I do return this execution so far as it respects said balance, wholly unsatisfied, and do now here return this writ with my doings thereon to the court from where the same was issued, and as by such writ I was commanded.
    In witness whereof, I do hereunto set my hand and seal, on this 22d day of May, 1823.
    Enos Gilbert, Sheriff. [Seal.]
    Pleas before the honorable, the president and his associate judges of court of common pleas, at their term held at the court-house, in Norwalk, in Huron county, Ohio, pn the 27th of February, A. D. 1832.

      Franklin Rising, v. Jas. Williams, etc. i Sci. Fa. to revive judgment.
    Be it remembered, that on the 23d day of February, A. D. 1832, the State of Ohio sent to the sheriff of Huron county her certain writ, in the words and figures following, viz:
    State of Ohio, Huron county, ss.
    To the sheriff of our said county, greeting:
    Whereas, Franklin Rising [Seal] at the term of May, A. D 1819, of our court of common pleas, in said county, brought his suit against James Williams, Philip R. Hopkins, and David W. Hinman, in which the said Franklin Rising, at the term of October, A. D. 1819, by the consideration of said court, re covered judgment against said James Williams and Philip R. Hopkins; and as to said Hinman, said suit was continued till the term of February, A. D. 1820, at which term the said Franklin Rising, by the consideration of said court, recovered judgment against said David W. Hinman, for the sum of $838.80; and whereas, the said David W. Hinman, in his lifetime and at the rendition of said judgment, was seized of fee of fifty acres of land, lying in the fourth section of Milan, bounded westerly by the road leading from Milan to Norwalk; northerly by E. Merry’s land; easterly by Kneeland-Townsend’s land ; southerly E. Merry’s land — which was bound by the lien of said judgment: and whereas, said David W. Hinman, on the 9th day of October, A. D. 1820, departed this life, leaving Mary Ann Hinman, his only child and heir: and whereas, the said Franklin, on the 25th day of March, A. D. 1823, to procure satisfaction of said judgment, sued out his writ of exeecution thereon, by virtue of which the said tenements were taken and sold, and purchased in by one Samuel Newton, as the agent and trustee of said Franklin Rising, under the mistaken apprehension that such sale passed the title to said tenements ; and whereas, satisfaction hath been entered for the sum of $375, parcel of said judgment, under said mistaken apprehension: and whereas, no title passed by said sale, and said judgment in fact remains in full force and wholly unsatisfied, and the said Franklin hath besought us to provide him a proper remedy in that behalf, and we being willing that what is just in this behalf should be done, do command you, that by lawful men in your bailiwick, you cause the said James Williams, Philip R. Hopkins and Mary Ann Hinman, to know that they be and appear before the judges of our court of common pleas, at Norwalk, in said county, on the 27th day of February, A. D. 1832, to show cause, if any they have, why;the satisfaction of said judgment, heretofore entered, should not be set aside, canceled and annulled, and the levy, appraisement and sale, and all the proceedings under said execution, be set aside, and said judgment revived against said defendants and the said Mary Ann Hinman, in her said capacity as heir, and execution issue to levy and collect the amount due on said judgment and said tenements taken and sold by virtue thereof — and have you then there this writ.
    Witness, the Hon. David Higgins, president judge of our said court, at Norwalk, this 23d day of February, A. D. 1832. D. Gibbs, Clerk H. C. P.
    At which day, before the judge aforesaid, at the place aforesaid, came the said plaintiff, by his attorney, and thereupon the sheriff to whom the said writ was directed, now here returns the same, as follows, viz:
    State of Ohio, Huron county, ss.
    In obedience to the command of the within writ, I, by Seba Mathews and Hiram Spere, lawful men of my bailiwick, caused the within named Mary Ann Hinman to know that she be and appear before the judges of the court of common pleas, etc., by reading the contents, and delivering to her a true copy thereof, on the' 24th day of February, A. D. 1832. Fees, total,’ $2.15.
    John Miller, Sheriff.

      “ I accept service on this writ. P. R. Hopkins.”
    “ I acknowledge service. Jambs Williams.”
    And thereupon come the said Williams and Hopkins, and enter their appearance; and it appearing that process had been served on Mary Ann Hinman, and that she is a minor unde: the age of twenty-one years, the court appoint C. L. Boalt/ Esq., her guardian ad litem, who appears, waives process, and enters the^ appearance of the said Mary Ann herein; and the said Williams and Hopkins, and Mary Ann Hinman, by her guardian, showing no cause why said judgment should not be revived, and the said execution, levy, appraisement and sale be set aside, and it appearing to the satisfaction of the court, that said execution heretofore issued in March, 1832, was after the death of said Hinman, and was levied'on land of which he died seized, which land was sold by virtue of said levy and purchased by Samuel Newton, to the use of and interest for said plaintiff, all which was void, and conveyed to him no title, by means of which no satisfaction was in truth had of said judgment, or any part thereof: It is therefore ordered, that said execution, bearing date 25th March, 1823, and the levy made on the fifty acres of land specified in the sheriff’s return thereto, the appraisement, sale, and all other things done thereby, be set aside, and the satisfaction of so much of said judgment as arose from said sale, be annulled and held for nought, and that said judgment be revived and held in full force against said defendants, and. that a new execution issue to make the amount of said judgment, by virtue of which the lands and tenements of which said Hinman died seized, and remaining in the hands heir, may be taken and sold, to satisfy said judgment, and the costs of this application, to five dollars and eighty-two cents, by the court here to the plaintiff adjudged, and with his assent defendants in mercy, etc.
    D. Higgins, President Judge.

      State of Ohio, Huron county, ss.
    (Seal.) To the sheriff of our said county, greeting:
    Whereas, Franklin Rising, in court of common pleas, in said county, on the — day of October, A. D. 1819, recovered judgment against James Williams and Philip R. Hopkins, for the sum of $854.10 damages, and $9.50 costs of suit; to which judgment David W. Hinman, at the term of May, A. D. 1820, was made a party defendant, as appears of record: and whereas, by our writ of fi. fa., dated March 25th, 1823, we commanded you that of the goods and chattels of said defendants, you should levy and make said damages and costs, and-for want thereof, then of the lands and tenements whereof they, the defendants, were in possession, to which they or either oí them had title at'the rendition of said judgment; and that you have those moneys before our said court, at the term then next, to be held at Norwalk, in said county, etc.; and you then returned that, by virtue of said writ, you had levied upon a certain tract of land, the property of D. W. Hinman, containing fifty acres, situate in the fourth section of Milan, in said county, bounded westerly by the road leading from Milan to Norwalk ; northerly and southerly by E. Merry’s land; and easterly by Kneeland Townsend’s land — which you had caused to be duly appraised, advertised, and sold, etc.: and whereas, at the term of February, A. D. 1832, of the said court, the said levy, appraisement, and sale were adjudged to be illegal, null and void, and ordered to be set aside and held for nought; and it was further ordered that said judgment be revived against said Williams and Hopkins, and also against Mary Ann Hinman, heir at law of said D. W. Hinman, deceased ; and that said lands be taken in execution and sold to satisfy said damages and costs, etc.: Now, therefore, we command you, that of the goods and chattels of said Williams and Hopkins in your bailiwick, you cause to be made said damages and costs, and costs accruing, and for want thereof, then cause the same to be made of the lands and tenements whereof said defendants were possessed, and to which they or either of them had title on the — day of October, A. D. 1819, or at any time afterwards, and particularly of the said fifty acres of land of which said Hinman died seized; and have the moneys thence arising, before our court of common pleas, next to be held at Norwalk, in said county, on the 7th day of May, A. I). 1882, to render said Franklin Rising, for his said damages and costs, and have then there this writ.
    Witness, Hon. D. Higgins, president judge of our said court, at Norwalk, this 19th day of March, A. D. 1832.
    D. Gibbs, Clerk.

      M. fa. — R. M. T., 1832 — -judgment, October, 1819 — damages, $854.10 — costs, $9.50 — 4 executions, $1.50 — sheriff on former execution, $13.35 — clerk reviving judgment, $3.67; sheriff do., $2.15 — Latimer, attorney — Lane, praecipe.
    Received this writ, March 20, 1832.
    John Miller, Sheriff.
    State of Ohio, Huron county, ss.
    May 7th, 1832. I found no goods nor chattels whereon to levy this execution, and thereupon, I, on the 23d day of March, 1832, levied and caused to be then appraised by Ezra Sprague, Ephraim Munger, and Guy Stephens, three disinterested freeholders of said county, (who were by me duly sworn,) the within described fifty acres of land, now bounded westerly on the old state road, leading from Milan, in said county, to Comstock’s, in Norwalk, in said county; southeasterly by E. Andrews’ land; north-westerly by land of R. & G. Lockwood, L. Sales, and P. R, Hopkins; the said fifty acres of land appraised at seven hundred dollars, upon actual view thereof, as appears from the report of said appraisers, a copy of which report and appraisal I forthwith deposited with the clerk of the court of common pleas of said county; after which, to wit, on the 27th day of March, 1832, I caused the said land to be advertised in the Huron Reflector, a weekly newspaper printed in said county, that I would expose the same to sale at public vendue, at the court-in Norwalk, in said county, on the 26th day of April, then next; a copy of-which advertisement, with the affidavit of Samuel Preston, one of the publishers of said newspaper, thereunto attached, is hereunto annexed; and on the 26th day of April, 1832, between the hours of one and four P. M., at the door of the court aforesaid, I offered and exposed the said fifty acres of land for sale, at public vendue, and sold the same to Daniel Hamilton, before the hour of four P. M., for the sum of eight hundred dollars, being more than two-thirds of the appraised value of said land, and being the highest and best bid made therefor.
    Fees — Travel, $0.30 ; summoning inquest, $1.00 ; copy of appraisal, 25 cents ; advertising, 12£; printer’s bill, $2.25 ; affidavit of printer, 25 ; poundage, $16.00 ; service and return, $0.70 — $20.87£; appraisers’fees, $1.50.
    (Seal.) John Miller, Sheriff.
    By virtue of a writ of fieri faeias, issued from the court of common pleas for the county of Huron, Ohio, to me directed and delivered, I shall- expose to sale, at public vendue, at the court house door, in Norwalk, in said county, on the 26 th day of April next, between the hours of 10 A. M. and 4 P. M. of said day, the following described tract or parcel of land, situate in the township of Milan, in said county, and bounded westerly by the old road leading from Milan village to Com-stock’s, in Norwalk; southeastwardly by land of E. Andrews; and northwesterly by land of R. & Gr. Lockwood, L. Sales, and P. R. Hopkins, containing 50 acres, more or less, and formerly known as a tract of land belonging to David W. Hinman, deceased, to satisfy a judgment formerly rendered in the court aforesaid, in favor of Franklin Rising, against James Williams, Philip R. Hopkins, and David W. Hinman, and revived at the February term, 1832, of said court, against the said Williams, Hopkins and Mary Ann Hinman, heir at law of the said David W. Hinman.
    John Miller, Sheriff.
    Norwalk, March 27,1832.
    State of Ohio, Huron county, ss.
    On the 8th day of May, A. D. 1832, personally came Samuel Preston, one of the editors of the Huron Reflector, a paper published in said county, who being duly sworn, deposeth and saith, that a notice, of which the annexed is a copy, was published in the Huron Reflector for five successive weeks, commencing on the twenty-seventh day of March, A. D. 1832.
    Samuel Preston. -
    Sworn to and subscribed in open court. Deponent’s fees, 25 cents. D. Gibbs, Clerk.
    Received on the debt, belonging to the creditor in this writ, viz : seven hundred and seventy-one dollars and eighty cents, per John Miller. E. Lane, Att’y for Pl’ff.
    Received clerk’s, $3.67, of J. Miller, sheriff; E., sale confirmed third day May term, 1832.

      Journal May term, 1832, Suron common pleas — third day.

    Franklin Rising, v. James Williams, P. R. Hopkins, Mary Ann Hinman,
    This day came the sheriff, John Miller, and presents his return of the sale of certain lands made in this case on execution, dated March 19, A. D. 1832, and the court having examined the same, and being satisfied that the proceedings thereupon are in all respects in conformity with the provisions of the statute in sueh ease made and provided, do accept of said return and confirm said sale ; and thereupon it is ordered that the sheriff do make a deed of the premises so sold, to the purchaser thereof.

      State of Ohio, Huron county, ss.
    I, Henry Brown, clerk of the court of common pleas within and for the said county of Huron; do hereby
    [Seal.] certify, that the foregoing transcripts are truly taken and copied from the records and journals of said court, and true copies of the original executions issued and the endorsements and sheriff’s returns thereon, and now on file in the clerk’s office of said county.
    In testimony whereof, I have hereto set my hand and the seal of said court, at Norwalk, this 28th day of October, A. D. 1848. H. Brown, Clerk.
    Fees of the clerk, $8.00 — paid by E. Lane.
    State of Ohio, Huron county, ss.
    I, Henry Brown, clerk of the court of common pleas within and for the said county of Huron, hereby certify,
    [Seal.] that I have examined the records and files of said court, and do not find entered therein any other judgments than as above mentioned, wherein Franklin Rising was plaintiff, and Philip R. Hopkins, James Williams, and David W. Hinman were defendants, or either of them, except the case of Franklin Rising against Philip R. Hopkins, entered at February term of said court, A. D. 1819.
    In testimony whereof, I have hereto set my hand and the seal of said court, at Norwalk, this 14th day of February, A. D. 1849. H. Brown, Clerk.
    Clerk’s fee, fifty cents.
    Andrews, Lane & Son, and P. B. Wilcox, for plaintiff in error.
    I. If we were really pressed in our case, we should first take the position, that between the parties to the judgment, and their privys, (and the purchaser is a privy in law and in estate,) the production of the execution itself, from a superior court of competent jurisdiction, is all which is necessary to sustain the title.

      The distinction is between voidable and void. A void execution protects nobody, not even the sheriff, but aliter with a voidable execution. That is void only at the suit of the party, on error. As long as it stands .it is good for all purposes. “ It is the duty of the sheriff to levy an irregular execution. ” 2 Blackford 391, 393. “ It is the duty of a sheriff to levy an execution, although it varies from the judgment.” 7 Wendell 96. But if it be the duty of a sheriff to sell, a purchaser may safely buy, and the sale is good. For .the law will not do so vain a thing as to compel the sheriff to sell and hold his sale to be void.
    In view of these consequences, the rule as now understood is, that as against a party to the judgment, the execution alone is sufficient authority, it is so ruled. 12 Wendell 96. And Greenleaf advisedly adopts it. 2 Greenleaf’s Evidence, § — ,
    II. So, too, we might rely with great security upon the proceedings by scire facias. To all effects and consequences they have the force and effect of a judgment.
    1. Mrs. Dubois, the heir of Hinman, was a party by service of process.
    2. A judicial finding of the fact is conclusive evidence of the fact upon parties to the process.
    1. Finding payment on a petition to convey is conclusive. Per J. Hitchcock, 4 O. Rep. 138. Wilcox Dig. 343.
    2. Orders are as binding as judgments. Cases collected, Wilcox Dig. 346.
    3. Effect of judicial proceedings on parties concludes them and binds all third persons. Oases collected, Ph. Ev. 978, 979.
    4. An order of revivo, or a judgment of revivor, in a sci. fa., is to every intent a judgment.
    1. A judgment in sci. fa. between parties concludes them. If against a revivor, it is conclusive, and equally so if otherwise; per J. Hitchcock, 4 Oh. 327.

      2. “ Scire facias on a justice’s judgment is a judicial question, whether «there be or not any such judgment. It is triable on a plea of nul tiel record between parties; and a default concludes.” 8 Blackf. 334; 2 Sup. Dig. 435.
    3. “ ‘ Showing no cause’ is equivalent to a confession of ‘judgment.’” 8 Porter 287; w. v. 1 Sup. Dig. 743, 744; Nos. 136, 152, 154.
    If, therefore, this “finding” in the scire facias, and the order to revive, have the effect we attribute, they completely protect our title.
    III. Not waiving either of these points, we rely with entire assurance on the whole record, as furnishing full evidence of the judgment, execution, levy, sale, confirmation, and deed.
    1. There was once a valid judgment, by confession, against Hinman.
    If the court revived this judgment, ’tis all we require. It becomes a question of identity between third parties, not of issue “ nul tiel record,” between original parties, in which the question is Variance or not. The court revived some judg ment, and the inquiry is, this or another ?
    2. Undoubtedly the court intended to revive this judgment.
    1. It is the only judgment between the parties. [See clerk’s certificate.]
    2. It was instituted in Huron common pleas, in May, 1819.
    3. Judgment against Hopkins and Williams, in October, 1819.
    4. Continued and pending against Hinman, in February, 1820.
    5. Judgment against Hinman, in that suit, by confession, in May, 1820.
    6. And such a curious practice as Isaac D. Lee only could invqnt.

      7. Was the same judgment as was attempted to be executed in 1828.
    8. Same judgment as Newton purchased under.
    9. Same as the one of which the sale was confirmed.
    The judgment, therefore, in which these particulars meet, was the identical judgment intended to be revived, and no other ; and there is no other judgment to which all, or any of these particulars, are applicable.
    IY. Then rises the main question, whether the mistakes and misrecitals in the proceedings render such proceedings absolutely void. ‘
    The actual errors are two, in the scire facias.
    1. It recites a judgment of February term, instead of May.
    2. It describes a judgment for $8.38, instead of $8.83.
    If the question was directly in issue — if we had declared on a judgment for recovery of $838, on a plea of nul tiel record, we admit we could not produce such a judgment. There would be variance.

    But when the judgment is collateral only, and no variance is in issue, and any valid judgment is sufficient, no such question can arise. We are bound to show,
    1. Some valid judgment.
    2. A revival of that judgment.
    And this is all.
    Look to the consequences of holding a voidable judgment void, for mistakes in the clerk in his judicial writs. If a clerk in an execution mistakes the amount of a judgment, is a sale void ? and are all parties, lawyer, party, clerk, sheriff, and purchasers, trespassers ?
    Or will the court sustain such proceedings, until avoided by the party in interest in the regular way ?
    Is a defendant in execution permitted to await the sale and if not to his mind, hold at his choice, every thing null?

      All these principles must have been adjudicated upon; and decisions show, that in judicial writs all inconsistent parts may be stricken out, so as to render them available, however informal.
    1. A variance between a judgment and execution being amendable, cannot be taken advantage of on the trial of a land title. 4 Wendell 462, 468, 476, 572 ; 2 Dig. 323.
    2. Whenever the judgment can be sufficiently identified, it is sufficient. 7 Pet. 147, (especially the reference to J. J. Marshall.)
    “ If a scire facias contains such recitals as show what judgment is intended to be revived, with such certainty as that the defendant must know what judgment is meant, it is sufficient.” 1 J. J. Marshall 5. So, when a sci.'fa. contains an extract from the judgment, and referred to the record and proceedings in the suit, it is sufficient. 3 lb. 564.
    3. In support of a title by judicial sale, the court will overlook every defect or error, except that of want of power, either in the court, or the clerk, or the sheriff, especially in support of an old title.
    Thus, 3 Oh. 273, a judgment was rendered without process, the execution described a different court, the levy described no land, and the sheriff’s deed did not correspond with the levy, yet the title was held good.
    These principles are illustrated in 5 Oh. 524.
    But the authority on which the present title is holden void, is found in 4 Oh. 309, where the reporter makes the court to hold, that where the scire facias to revive, misrecites the amount of the original judgment, there is no revivor.
    It will be observed that the case was rightly decided. The proceedings were in error, between the original parties, to review the judgment of the common pleas. The original proceedings were before the court, and the variance was apparent.
    But not a more “ apocryphal ” case can be found in the books, if we look to the reasoning. To say that such a judgment of revivor is not good, for all other purposes, except a writ of error ; to say it is not good for all collateral purposes, or between all other parties, is a doctrine which appears in no other book, and never came from any person except the reporter.
    ’Tis amendable. It is a clerical error in a judicial writ, and enough appears in the whole proceedings to amend by. Such writs, like executions, are amendable by every day’s practice.
    1. “ The power of the court to authorize amendments, where there is anything to amend by, is undoubted.” 14 Pet. 141.
    The cases are laboriously collected in the note to 4 Cowen. They show any authority, even to enter a new judgment, if necessary for justice.
    2. In M. & M. (English Com. Law Rep. 22, 333,) a record was amended so as to describe a judgment in a different court.
    3. In 4 Oh. 54, Judge Hitchcock gives the law of amendments to Ohio, and sustains an amendment of a writ after eighteen years.
    4. In Mitchel v. Eyster, 7 Ohio 257, amendment after twenty-four years, to insert affidavit, and entering general judgment.
    5. 14 Pet. 147, Judge McLane says, where jurisdiction has attached, parties always continue in court, for the purpose of executing that judgment, and permitted an amendment after twenty-four years.
    6. Same opinion, 3 McLane R. 380.
    7. I need not call the attention of the court to our own statute, of scire facias, by which matters amendable are looked upon as amended!, no actual amendment being necessary, and judgment given according to the right of the case. The 105th sec. of the law (see note, 588, of Swan’s Stat.) is not in this respect repealed, although sunk into a foot note by the collector. But the bearing on this point is, that an amendable matter is not void until avoided. See Cowen’s note upon.
    It will naturally be asked, why we have not obtained an amendment of the record ? We did apply. We showed to the judge these, and numerous other eases; we gave the history of the doctrine of amendments in Ohio, from 3 Oh. 523, and 4 Oh. 60, and we adverted to the practice both of courts of common pleas and supreme courts. We adverted to the numerous cases where the supreme court had “ Coopered ” titles from the general court, and we showed the right of amending writs and process had never been denied, and that the common pleas were never restrained from amending anything, except final judgments, and that even this restriction had ceased. We cited the rule of the English courts, that “ in case of doubt, the judge at the trial will allow amendments to be made, under the statutebecause the law provides a remedy, if the judge allows an amendment to be made which ought not to be made, but gives no remedy, in any case, where the judge refuses to allow an amendment. Stephens N. P. 1808; C. & P. 766, To all this the common pleas replies nothing.
    We have made no allusion to the character of the case. The title now in controversy is fifty acres of land adjoining Milan, divided into small lots among many individuals, on one of which the Huron Presbyterian Institute stands. It has been sold to pay a debt of the claimant’s father, at its full appraised value, as early as 25 years ago, and the title is questioned by an heir, who has received the full value in the payment of her father’s debts. What other speculations lie behind, we have no means of knowing.

      H. 3. Hunter, for defendants.
    The execution under which the defendant below would deduce title, is copied on pages 10 and 11 of the printed copy of the record.
    We ground ourselves, in behalf of the defendant in error, (plaintiff below,) on the position that, no such judgment as is specified in ¿the execution, was ever rendered against Mary Ann Hinman; and therefore, that the evidence offered by the defendant below was properly rejected.
    We propose to. show first, that there is no such judgment ; and second, that, without such judgment, Mary Ann Hinman could not be divested of her title to the lands in question by virtue of the sale under the execution; and, as a consequence, that no title was vested by said sale in the purchaser, Hamilton, under whom the defendant below claims.
    The only judgment referred to in the execution against Mary Ann Hinman, is a judgment of revivor — the recital of which, in the execution, is in these words: “ and it was further ordered that said judgment be revived as against said Williams and Hopkins, and also against Mary Ann Hinman, heir at law of said D. W. Hinman, deceased.”
    To understand what is meant in this connection by the terms “ said judgment,” we must, of course, refer to the preceding recitals of the execution; and we find it recited, before, in the execution, “ that Franklin Rising, in the court of common pleas of said county, on the - day of October, A. D. 1819, recovered judgment against James Williams and Philip R. Hopkins, for the sum of $854-10 damages, and $9.50 costs of suit; to which judgment David W. Hinman, at the term of May, 1820, was made a party defendant as appears of record.” '
    According to the execution, therefore, it wa's issued pursuant to a judgment of revivor against Mary Ann Hinman, heir at law of D. W. Hinman, deceased, of a judgment which had been rendered against said deceased, at May term, 1820, making him a party to a judgment rendered in favor of Franklin Rising against Williams and Hopkins, at October term, 1819, for $854.10 damages, and $9.50 costs. We assert that no such judgment was ever rendered against David W. Hinman; and that none such was ever revived against Mary Ann Hinman.

      The question is, 'first, as to the judgment of revivor. The only evidence offered of any such judgment is found on pages 10 and 11 of the printed record.
    The judgment is upon a scire facias, in which Eranldin Rising is plaintiff, against James Williams, Philip R. Hopkins, and Mary Ann Hinman as defendants. In the judgment itself, (page 12,) of revivor, no judgment is specifically designated as the judgment which is revived. The language used is as follows: “ And that said judgment be revived and held in full force against said defendants^ and that a new execution issue to make the amount of said judgment, by virtue of which, the lands and tenements of which said Hinman died seized, and remaining in the hands heir, may be taken and sold to satisfy said judgment and the costs,” etc.
    No new judgment is rendered, but simply “ that said judgment be revived,” etc. What judgment ? Of course the judgment -named and specified in the scire facias. And what is that ? The recitals of the scire facias (page 10 of the printed record) must show. So far as material, these are as follows: “ Whereas, Eranldin Rising, at the term of May, A. D. 1819, of our court of common pleas in said county, brought his suit against James Williams, Philip R. Hopkins, and David W. Hinman, in which said Eranldin Rising, at the term of October, A. D. 1819, by the consideration of said court, recovered judgment against said James Williams and Philip R. Hopkins; and as to said Hinman, said suit was continued till the Eebruary term, A. D. 1820, at which term the said Eranklin Rising, by the consideration of said court, recovered judgment against said David W. Hinman for the sum of $838.80,” etc.
    In'this recital, if at all, we must find the information which discloses what judgment was revived. The first difficulty that presents itself, is, that here are two judgments, in the same ease, at different terms of the court, and against different parties; whilst the judgment of revivor, is of only one judgment, in the singular number; but which one of the two that are recited it was intended to revive, no elite whatever is to be found in the record. Hence we insist that the judgment for revivor is utterly void for uncertainty. But if this were not so, the most favorable construction, to the interest of the plaintiff in error, is, that, as regards Mary Ann Hinman (whose title is sought to be divested) the judgment against her ancestor, David W. Hinman, is the one which was intended to be revived. For the sake of the argument, let that be assumed, and how does the matter stand ? It is thus : A judgment in favor of Francis Rising against David W. Hinman, rendered at February term, 1820, for the sum of $838.80. Is that the judgment specified in the execution, under which the lands were sold ? Nothing like it. That referred to in the execution, is for $854.10 damages, and $9.50 costs. This, is for $838.80, and so far as appears without costs. That, stated in the execution to have been recovered against Hinman, is of May term, 1820. This is of February term, 1820. That, of the execution, is alledged to be a judgment making Hinman a party to a former judgment against Williams and Hopkins. This has no such terms, but is an independent judgment. Therefore, we say, that the judgment revived does not appear to be the judgment on which the execution issued, and that the two are so totally unlike each other, that there is not any legitimate ground of presumption that the one was intended to refer to the other.
    But, as before remarked, the evidence fails to show, that there ever had been any such judgment recovered against David W. Hinman, in his lifetime, as that which was adjudged to be revived, as aforesaid, against his heir at law.
    If this be so, we hold it to be inevitably fatal to the title of the plaintiff in error, for this very obvious reason: As the judgment against Mary Ann Hinman is not a new judgment, but a judgment of revivor only, it is necessarily wholly inoperative and void, if no judgment existed to be revived. It is simply impossible to revive that which never existed— as much so as to make an entity out of a nonentity.

      We have seen what judgment, as against Hinman, was revived, or attempted to be. Was there ever any such judgment rendered against the deceased Hinman ? We say none whatever ; and if we do not misunderstand Judge Lane’s brief, he not only admits, but insists on the same thing — that is to say, he admits that no judgment of equivalent terms had been rendered ; but insists that, because the clerk certifies that none such is to be found of record, it is therefore to be presumed that a certain judgment, which does appear of record, (page 6 of the printed record,) was meant and intended to be revived, and in legal effect was revived, although, as will presently appear, the two things are as dissimilar as two judgments against the same man could well be. And here we will remark, by the way, that.it is rather a novel sort of proof, that was offered of the non-existence of any other judgment of record, viz: the certificate under the seal of the court to that effect.
    That is a very proper and good sort of evidence to verify or prove a record, but the non-existence of a record requires to be proved, by sworn evidence, in the ordinary way. But this is not very material, as it was the business of the defendant to show the legal existence of such a judgment as that adjudged to be revived; and this he says he did by showing the judgment, above referred to, on page six of the record. Now, what is that judgment ? Let us carefully and particularly examine it. So far as material, it is in these words: “ And now in the term of May A. D. 1820, the said David W. Hinman, in his own proper person, comes into court and confesses himself to owe and be indebted to the said Franklin Rising, in the just and full sum of eight hundred and eighty-three dollars and eighty cents; whereupon it is considered by the court, that the said Franklin Rising do recover against the said David W. Hinman the aforesaid sum of $883.80, for his damages, together with-dollars and-cents for his costs,” etc.
    We note the following differences between this and the judg ment said to be revived:

      First. This is a judgment at the May term, 1820 ; that is of February term, 1820.

      Second. This is a judgment for $5883.80, and costs; that is for ¡$838.80, without costs.

      Third. This is a judgment in a case, the parties to which are Franklin Rising v. David W. Hinman, alone; that is a judgment in a case, the parties to which are Franklin Rising v. James Williams, Philip R. Hopkins and David W. Hinman.
    The court is requested especially to notice one circumstance, apparent in this record, which, when rightly understood, establishes, as we think, beyond any doubt, that the judgment against D. W. Hinman (page 6 of the printed record) is entirely a separate and independent proceeding, and not by any means part or parcel of the original suit with which the printed copy of the record begins, of Rising v. Williams, Hopkins, and Hinman.
    I draw the attention of the court to this circumstance particularly, because the record is so made and printed, that it might be overlooked. The circumstance referred to is this: That the judgment of May term, 1820, against Hinman alone, on page 6 of the record, is most clearly out of place, in this record. I do not by any means wish to be understood as saying or intimating, that any intentional wrong has been practiced in introducing it into the record. But any one acquainted with the records and journals of judicial proceedings, will at once perceive that this judgment against Hinman was not, in fact, and could not be, in legal effect, a part of the case against Williams, Hopkins, and Hinman. It’ does not even appear to be for the same debt for the recovery of which that suit was brought. The declaration in that case counts upon a note for 800 dollars with interest from its date, Sept. 9th, 1819. This note and interest, to the date of the judgment confessed by Hinman, amounted to about ¡$832. But the amount of the judgment confessed by Hinman is for ¡$883.80 — showing a difference of over 50 dollars.

      But even if it had been a judgment confessed, for the same debt, the proceeding was a separate one. It was so entirely separate, that if any execution had issued upon it, as no doubt might well have been done, it could only have been legally against Hinman; and so on the other hand, execution on the preceding judgment, against Williams and Hopkins, could only have been issued against them. They were two judgments, rendered at different terms of the court, against different persons, and for different amounts — and nothing in the case shows that they were even founded upon the same consideration.
    If it be legally possible so to blend these materials together as to make of them but one case, I confess it must be done by some process new to me. And Judge Lane admits that it could only be done by the gross ignorance of those who conducted the proceedings; and yet he seems to argue that, considering their ignorance, it will be right for the court not to apply the usual legal rules in disposing of the questions upon the effect of the record. Perhaps I do not properly understand the judge’s very laconic remarks, but I have certainly received from it the impression just named; and I can scarcely suppose that he would seriously argue that one rule of construction should obtain in regard- to proceedings conducted by ignorant or unskillful attorneys, and another or different rule to proceedings conducted by gentlemen of professional skill and intelligence.
    It will be readily understood from the foregoing exposition:
    1. That the execution, as against Mary Ann Hinman, purports to be founded upon a judgment of revivor agains* her, as heir at law of D. W. Hinman, deceased, to revive a judgment rendered against said deceased at May term, 1820, making him a party to a judgment against Williams and Hopkins, rendered at the October term, 1819, for $854.10 damages, and $9.50 costs.
    2. That the judgment of revivor, offered to be given in evidence to support the execution, was a judgment against D. W. Hinman, (not making him a party to any pther judgment',) rendered at February term, 1820, for $838.80, without costs.
    3. That the record fails to show that any such judgment as that attempted to be revived, ever existed.
    The manifest consequence of this state of things is, that the title of the defendant below rested upon an execution unsustained by any judgment to warrant it.
    To overcome this objection to the defendant’s title, the learned counsel for the defendant argues in substance :
    1. That the title of a purchaser of lands sold by virtue of an execution, without even the color of a judgment to support it, is good and valid.
    2. That in fact here was a judgment — -first the judgment of revivor, which of itself is sufficient to sustain the execution, although it may be true that no prior judgment existed against "the ancestor to be revived — and second, that there was a judgment against the ancestor, varying in its terms from that adjudged to be revived, but still substantially the same — such as would warrant the court to order the record to be amended to conform to it.
    3. That if the record be amendable, so as to render it consistent, the court will consider the amendment as made; or rather give the same effect to the record without its being amended, which would be given to it if amended.
    • I deny the soundness of each and all of these propositions, and will consider them in the order I have stated them.
    1. In support of the first proposition, Judge Lane, after referring to certain authorities to prove that, “ It is the duty of the sheriff to levy an irregular execution, or, one that varies from the judgment,” argues that “if it be the duty of the sheriff to sell, a purchaser may buy, and the sale is good; for the law will -not do a vain thing,” etc. And he adds: “ That in view of these consequences, the rule as now understood, is, that as against a party to a judgment, the execution alone is sufficient authority.” He cites 12 Wend. 96, and says, “ Greenleaf advisedly adopts it,” etc.

      It is a little difficult for me to know how this is to be understood. “ The execution alone is sufficient authority.” But against whom ? — “ a party to a judgment.” But without the record of the judgment how can it be made to appear who are the parties to a judgment ? It would therefore seem at last that a judgment must be shown to sustain the execution. If, however, a contrary doctrine is to be found in 12 Wend. 96, I would pronounce the case to be of that kind which Judge Lane calls “ apocryphal.” Such a doctrine is in violation of both reason and the whole current of authorities. Aside from all authority, who would consent to the doctrine that men should be divested of the title of their property by virtue of an unwarranted execution, issued in wrong by the clerk of a court without any judgment ? In how many instances might such executions be issued against non-residents, who would never hear or know a word on the subject, till their lands were sold, sale confirmed, and deed made. Yet the doctrine now advocated would require the owner, upon such a bold case of fraud, in behalf of an innocent purchaser, to surrender his possession. Now, as a matter of sound policy between such an innocent purchaser and such an owner, which would be the wiser and better rule, to require the purchaser to inform himself whether the execution is sustained by a judgment, or for his sake, to rob the owner, who has no possible means to know anything about the matter till the mischief is done ? I would favor judicial sales as much as anybody, within the bounds of reason — but' I never could consent to go the length of this proposition. And it is no answer to my objection, to say that there is but little danger that such frauds would be practiced. For myself it is enough to know that the thing is possible. In this very case it is claimed that the title of an infant has been divested; and it is gravely argued, that it is enough to satisfy the law, if this has been done by means of an execution, although unsupported by’any judgment."

      But the authorities, so far as I am conversant with them/ without exception, require that three points shall be made out to sustain or make good a title under execution. 1. A judgment. 2. An execution upon the judgment. 8. A levy, sale, confirmation, etc. Lessee of Allen v. Parrish, 3 O. Rep. 191; Wheaton v. Sexton, 4 Wheaton 503 ; Lessee of Hall v. Macalaster, 9 O. R. 23; Lessee of Perkins v. Dibble, 10 O. Rep. 433.)
    2. Is the judgment of revivor, of itself sufficient to sustain the execution ? We say it is not; and our reason is, that it is simply a judgment of revivor, not a new judgment. The effect of a judgment of revivor, such as in this case, is only to awaken from dormancy, and give life and vitality to an existing judgment, which for legal reasons, as from lapse of time, death of a party, and the like, has become dormant or abated. 4 O. Rep. 397; 5 O. Rep. 169 and 178.
    It is well understood that, upon writs of scire facias to revive judgments, either against the same party, that have become dormant, or against his representatives, legal or personal, that have become abated, the judgment may be in either of two forms — First, as in this case, simply a judgment of revivor, with an award of execution, against the same defendant, if it be the case of a dormant judgment, or against his legal or personal representative, as the case may be, if it be a judgment abated by death. In these cases the execution rests upon the original judgment, and must conform to it. Or second, the judgment may, in form, assimilate an original judgment, finding the amount due to the time of its rendition, including interest and deducting payments, etc., on the original judgment. In this form an award of execution is unnecessary — and the execution, in such ease, rests upon the new, and not the original judgment.
    The latter judgment is of modern use, and is not well sustained as a technical proceeding.' It would, however, no doubt, be a very sufficient warrant for an execution issued in conformity to it; and therefore, in such case, the inquiry never could arise, collaterally, whether any original judgment. or such an one as may have been brought to view in the proceedings, existed or not.
    Very different, however, is the case of a mere judgment of revivor. No execution issues upon it. It is a mere authority, and must be strictly followed — an sluthority to issue execution upon, and carry into effect a supposed former judgment, and that a particularly specified judgment. And such a judgment, conforming to the terms of description, as are given in the record of the scire facias, must be found, or no execution can issue ; or, if one can be issued, it is not merely voidable, but is absolutely void, as against the party who is to be prejudiced by it, in so far as it is to be regarded as an instrument to divest him of the title of his property. Undoubtedly, so long as it remains not set aside for irregularity, the sheriff, who is a mere ministerial officer, may justify his acts done in pursuance to its command. He is not bound to look beyond the writ itself, though there can be no doubt but that even as against him it is merely void as a means to charge him for disobedience to its command. He may require the party who would charge him, to show the judgment; or he may himself show the want of a judgment to warrant the writ.
    Judge Lane argues the question as if it were only a question of variance, such as would arise on an issue of nul tiel record, but which cannot be inquired into collaterally. With deference to the superior science of the gentleman, I must beg leave to dissent. It s'eems to me very obvious that if the party is bound to show a judgment to sustain the execution, it must be one that in all its essential features conforms to the one described in the execution. If this were not so, any ’judgment in favor of any body would answer the purpose. Very true, in naming the objection we call it a variance, a,nd so it is. But it is of that kind which must be inquired into collaterally, so long as the rules of law require the party to show a judgment. The question of identity necessarily arises. And, for myself, I know of no possible means to determine the question of identity, save the comparison of the ‘record of the judgment offered, with the description found in the writ of execution.
    Judge Lane says “ the court revived some judgment, and the inquiry is, this or another ?” and he answers, “ Undoubtedly the court intended to revive this judgment.”
    I deny that it is a question of intention. It is a question as to what was done, and not what was intended to be done. Is this judgment, in very fact, revived ?
    But if the question was one of intention, I deny that the evidence makes out the intention. At most it only raises a possibility.
    But over and above all this, the proceedings, whatever may have been intended, are by far too loose and irregular — too inconsistent in their several parts, by any sort of patch-work that it is in the power of this court to bestow upon themj to warrant the court in giving that effect to them which is desired in behalf of the defendant below. I shall not argue the proposition any further in detail, whether the court to which these records belong might not order such amendments as would remove the difficulty.
    Judge Lane advises us that such a motion has been made, and has not been granted by that court. And I may add that, unless something beyond what is brought to the notice of this court shall be urged to that tribunal, there are ample reasons why such a motion never can be rightfully sustained.
    3. The last proposition is, whether, admitting the proceedings to be amendable, the same effect can be given to them as if the amendment were actually made.
    This is a question of very little importance in the case, if, as we are advised, tjie court to which the record belongs refuses to allow it to be amended; for that is, at all events, evidence, and the very highest to be had in this case, that the record is not amendable. This court will hardly assume or presume that the common pleas failed to do its duty in refusing to allow the order to amend, but will presume the contrary, at least until the doings of that court are legally brought here to be reviewed. And, aside of this, I deny the power of this court in this collateral way to take cognizance of the question whether the record is amendable or not. If it were a record of this court, over which it has direct control, I do not deny but that it might take cognizance of the question. But there is a degree of absurdity in the idea that this, or any tribunal of justice, would assume to give to the records of any other tribunal, over which it has no power, any other effect than its legal effect, considered in its actual condition.
    The remaining inquiry is, what is the legal effect ? And this I have examined as above, as much upon the facts as I desire to do, to show that the judgment relied upon does not sustain the execution. Judge Lane, in effect, admits the want of identity; and we desire to refer to the following cases, as in point to show in what particulars the judgment described in the execution and that offered in evidence must be identical, for the one to sustain the other: Bixbee v. Hall, Wright’s Rep. 56; Butler et al. v. Wadsworth, 7 Conn. 6; Knight v. Applegate, 8 Monroe 335; Newson v. Newson, 4 Iredell; Maxwell v. King, 3 Yerger 460; Palmer v. Palmer, 2 Conn. 462.
   Avery, J.

The plaintiffs in the action of ejectment claimed that the title to the land in controversy had descended to Mrs. Dubois, from her father, David W. Hinman, who died in 1820. The defendant, Waggoner, insisted that the title which Hinman once held, had passed, by a sheriff’s sale, to Daniel Hamilton, from whom he purchased. If the sale to Hamilton was void, then the defense fails, and the plaintiff’s right to possession of the premises is established.

The record introduced or offered to sustain the sale commences with a writ dated May 22, 1819, in the name of Franklin Rising against Philip R. Hopkins, James Williams, and David W. Hinman, issued from the court of common pleas of Huron county to the sheriff of the same county. Service upon all the defendants, as appears by the record, was made on the same day.

In the same month of May, and at the May term of the court, the plaintiff filed a declaration in case, upon a promissory note, against all of the defendants.

In the vacation after the May term, 1819, Hinman pleaded to the declaration.

At the October term following, the plaintiff took a judgment by default against the two defendants, Hopkins and Williams, for $854.10, damages, with stay of execution till next term, and until ordered by the court, and continued the cause as to Hinman. The cause is also continued at February term, 1820.

At the May term, 1820, Hinman confessed a judgment to the plaintiff for $883.80 damages, and-for his costs.

After offering to introduce in evidence the foregoing record of the proceedings and judgment, the defendant offered an execution dated March 25, 1823, from the same court, in favor of the plaintiff, and against the same three defendants; on which execution is indorsed, amongst other things, “ levied March 26, 1823.”

Next is the copy of an appraisement of fifty acres of land. This appears to be the same land now in controversy, and which, according to the sheriff’s return of May 22, 1823, was sold by him under the same execution, on the 10th of said May, to Samuel Newton, for $375; that being the highest bid, and more than two-thirds of the appraised value thereof.

Nothing further appears upon the record, after the sheriff’s return of sale on the 22d of May, 1823, until the 23d of February, 1832, when a writ of scire facias was issued from the same court, in behalf of Rising, as the plaintiff, and against Williams and Hopkins, and Mary Ann Hinman, the only child and heir of David W. Hinman, defendants.

Service of the writ was acknowledged by Hopkins and Williams.

Actual service was made upon Mary Ann Hinman, then a minor, who appeared by a guardian ad litem, appointed for her by the court, and thereupon it was ordered by the court that the execution of March 25, 1823, the levy, return, appraisement, sale, and all other things done thereby, be set aside, .and that a new execution issue, to make the amount of said judgment. On the 19th of the next month, to wit: on the 19th of March, 1832, execution issued, and was levied upon the same tract of fifty acres of land, which on the 26th- of the April following, was sold to Daniel Hamilton. At the May term, 1832, of the court, the last mentioned sale was confirmed, and the sheriff ordered to make a deed to the purchaser.

The transcript of the record and proceedings is authenticated by H. Brown, the clerk of the Huron common pleas, who also certifies, under the seal of the court, that he had examined' the records and files of the court, and did not find entered thereon, any other judgments wherein Rising ’was plaintiff, and Hopkins, Williams, and Hinman, were defendants, or either of them, except the case of Rising against Hopkins, entered at February term, 1819.

After examining the various propositions discussed in the argument, the case,'in the opinion of the court, is narrowed down to this single inquiry — Does the record before us show the identical proceedings upon which the premises in controversy were sold ? No mere irregularities shown by the record can defeat a sale, if the proceedings were not virtually void.

There was very clearly, according to the record, a judgment in 1820, against David W. Hinman, and if, under an execution issued upon that judgment, his land had been sold in his lifetime, a good title to it would, without doubt, have passed. So by virtue of a sale on an execution after his death, issued upon the judgment revived against his heirs, a good title would have passed to the purchaser.

The proceedings in this scire facias, as shown by the record, might furnish grounds for a reversal upon error, or the defendants, being parties, and in court, might by plea, have defeated the plaintiff upon the trial. But the court had jurisdiction over the subject matter, and over the person of the defendants; the proceedings, therefore, were not void.

In looking over this record, commencing with the writ in the name of Rising against Hopkins, Williams, and Hinman, on the 22d of May, 1819, till it closes in a judgment against Hinman, at the May term, 1820, we have not been able to escape the conclusion, that it describes the parts only of a single case, a case in which the plaintiff supposed he was obtaining a valid judgment at one term against two of the defendants by default, and as a subsequent term, against the third by confession. The cause is regularly continued against this third defendant until the judgment is finally taken, and every thing appearing in this part of the record which describes the final judgment, connects it with the former part of the case, except the amount of the judgment. This is larger than that rendered at a previous term against the other two defendants, but this is not enough of itself to destroy the apparent connection in the record.

The scire facias, too, describes so much of what is actually found in the previous proceedings and judgment, that there can be no mistake about the judgment referred to. This judgment, therefore, so identified, is the one which was revived. The error in the writ of scire facias, both as to the amount and term, can be shown and corrected by the true record. And as the defendants, in the scire facias, did not object, while it was pending, to the regularity of the proceedings, and have since neglected to resort to their writ of error, all further objections to the proceedings come too late.

In like manner, the last writ of execution bears upon its face evidence enough to show that it was issued upon the judgment which had been revived. Here the true time is stated, to wit: the May term, 1820, though the amount ismisrecited. As we look upon these proceedings, enough is found by which the writ of scire facias and the last execution could both be amended so as to correspond with the original judgment against Hinman; and such an amendment, if would have been within the province of the court of common pleas to allow. But the proceedings without amendment cannot be assailed collaterally, and ¡fcreated as void, when offered to sustain a judicial sale made, under' them. And we hold, with respect to judgments and proceedings under them, especially those of long standing, that an error or misrecital does not vitiate, when enough appears to point out the error, and show how it ought to be corrected.

Such a principle, we believe to be in accordance with the course of decisions in this court.

We think in the present case > the record shows that there was an original judgment not void ; that this judgment was revived by scire facias, and that by virtue of an execution upon it, the premises in controversy were sold.

The record and proceedings, therefore, constituted proper evidence before the court of common pleas of Erie county, in behalf of the defendant in ejectment, and should have been admitted in support of his title.

The court of common pleas erred in rejecting this evidence, and their judgment, for this cause is reversed.


source: Caselaw Access Project

author: Hitchcock, C. J.

license: Public Domain

text:
    George Steinbarger’s Administrator v. Stephen Steinbarger and others.
    In order to remove a case by appeal from the court of common pleas to the supreme court, the appeal bond must be filed within thirty days after tha rising of the court from which the appeal is taken.
    Parol evidence cannot be received to prove that the order,'judgment, or decree from which the appeal was taken, was rendered on a different day from that stated in the record.
    No appeal can be taken from an order of the court of common pleas for the sale of land pursuant to a petition under the statute by an administrator, for the sale of land for the payment of debts.
    This case was reserved in Champaign county, and comes before the court on a motion to dismiss the appeal.
    -George Steinbarger’s administrator filed his petition in the court of common pleas of Champaign county, for the sale of land to pay debts. The petition iucluded land which it alleged had been fraudulently conveyed, making the vendee a party, praying a cancelment of the deed and the sale of the land. The common pleas ordered a sale of the premises.
    From this decision the defendant appealed, and the plaintiff here moves to dismiss the appeal, because, first, the appeal bond was not filed in time, and second, because the •case was not appealable.
    A more specific statement of the case will be found in the opinion of the court. ■

      John H. James, for plaintiff.

      John A. Corwin, for defendants.
   Hitchcock, C. J.

The transcript of the record in this case, shows that the order or decree of the court of common pleas, from which an appeal was taken, was entered in favor of the plaintiff at the April term of the court, 1850, which term ended on the 11th day of May, then next follow ing. The appeal bond was not filed until the 10th day of June, a period of more than thirty days having elapsed after the close of the term in which the order or decree was entered. For this cause, the plaintiff moves to have the appeal dismissed.

The provision of the statute is express, that the appeal bond shall be filed with the clerk of the court, from which the appeal is taken, within thirty days from the rising of the court. In order that an appeal may be sustained in this court, this provision of the statute must have been complied with.

On the part of the defendant, it is not contended that in ordinary cases this rule of the law can be departed from, but in this particular case, it is insisted that’ although upon the record it appears that the decree was entered upon the 11th of May, the last day of the April term of the court, yet, in fact, the decree was not rendered until the 23d day of May, and that the bond was filed within thirty days after that date. To sustain this position, a statement of the president judge of the circuit, is introduced. From this it appears that the judge, with the assent of the parties, took the ease upon the circuit, with the understanding and agreement, that the order or decree, when concluded upon, should be sent back to Champaign county to be entered, as of the preceding term of the court. This was done on the twenty-third day of May.

Now the question arises whether this court, in the determination of this question, shall be governed by the record, or by the certificate of the judge. The record says that the decree was rendered on the 11th of May; the judge, that it was rendered on the 23d. We must undoubtedly be governed by the record. And the record can, with no more propriety, be explained or contradicted by parol, in a case like the one now before us, than in any case which might be presented.

In the case of Goodins v. Armstrong, which has been decided by this court, at the present term, a question somewhat analogous to the one now under consideration, was raised and considered. It was a case in error to reverse a judgment of the supreme court of Hamilton county. In the second section of the act of April 1st, 1837, “further to amend the act to regulate the practice of the judicial courts,” it is provided “ that final judgments in the supreme court, held in any county within this state, may be re-examined and reversed or affirmed in the court in bank, upon a writ of error, which writ of error may be allowed by the said court in bank, during its session, or by any two of the judges of the supreme court in vacation, provided such writs of error shall not be brought but within one year after the rendition of the judgment complained of.”

The original case of Goodins v. Armstrong was pending, and submitted to the court in Hamilton county, but was, with the consent of parties, taken upon the circuit and decided in Miami county. These facts appeared upon the record. At the time of the allowance of the writ of error, by which the case was brought into this court, more than one year had transpired after the term of the court in Hamilton county, but less than one year after the rendition of the judgment in Miami county.

The court held that the allowance was proper, and that the case was well before the court. In coming to this conclusion we were influenced by the second section of the act of February 19th, 1848, “prescribing the times-of holding the supreme court for ” that year. In this section, power is expressly given to the court, “ when there shall not be time in any county, to dispose of the business in said county, to hear and determine, with the consent of parties, any business thus undisposed of, in any other convenient county.” By a fair construction of this provision, it must be manifest that no other rule could, with propriety, be adopted, except the allowance of one year after the rendition of the judgment in 'the county to which the case had been removed.

We are of opinion that the first exception .to the appeal in this case is well taken.

Another cause assigned for the dismissal of the appeal is that the original case is that of a petition by an administrator to sell lands for the payment of the debts of the intestate. Ii has been uniformly held that such cases were not appealable. They have been considered as appropriately within the jurisdiction of the court of common pleas, in the exercise of its probate powers. They are strictly statutory proceedings, and the furtherest this court has gone in interfering with them, has been to review them upon certiorari.

The present act for the settlement of the estates of deceased persons (Swan’s Statute, 339), does not differ very materially, so far as respects the sale of lands for the payment of debts, from former enactments upon the same subject. In the 121st section, it is provided that the real estate liable to be sold, shall include, with certain exceptions and limitations, “ all that the deceased may have conveyed, with intent to defraud his creditors, and all other rights and interests in lands, tenements and hereditaments,” etc. And the next section provides that “ if the executor or administrator shall be ordered to sell any land, so fraudulently • conveyed by the deceased, he may, before sale, obtain possession by an action of ejectment, counting upon his own seizin; or may file a bill in chancery, to avoid the fraudulent conveyance.”

'In the ease before the court, the plaintiff, as administrator filed his petition for an order to sell certain lands of the in testate, and he charged that these lands had been fraudulently conveyed -to one of the defendants, who was one of the heirs of the decedent. It, was an ordinary petition by an administrator to sell lands. The defendant, Stephen Steinbarger, set up title to the land, as a bona fide purchaser. The question of fraud was agitated, and determined by the court. This question would have been more properly raised in a proceeding under the 122d section of the statute. Still these proceedings did not change the nature of the original petition. It was still a petition to sell land, and being such, no appeal could be taken from any order made under it.

The appeal is dismissed.


author: Caldwell, J.

text:
    Cincinnati College v. The State.
    The property of literary and scientific societies is only exempt from taxation when used exclusively for literary and scientific purposes. If used for other purposes it is liable to taxation, although the proceeds are in future to be applied for the promotion of literature and science.
    All laws exempting any of the property in the state from taxation, being in derogation of equal rights, should be construed strictly.
    This is an appeal ’ from the decision of the Auditor of State. ,

    The facts in the- ease are substantially as follows:
    The Cincinnati College was incorporated by an act of the legislature, passed in January, 1819. The first section of the charter declares the object to be, the erection and main tenance of a college.
    Sec. 6th provides that the funds of the institution shall not be applied to any use or for any purpose, not therein expressed or intended. The title of the ground was obtained, first by a perpetual lease from the First Presbyterian church in Cincinnati, for purposes of education solely, at a nominal rent, and with a stipulation to educate annually, _a certain number of children, designated by the lessors; and secondly, by a subsequent release in fee, which also confines the use of the property to the support of a college or institution of learning.

      A .few years since, the college building was destroyed by fire. The corporation had no funds to rebuild it, and to raise funds for that purpose, an agreement was made with a large number of individuals, that they should loan, severally, different sums of money to erect a college building, with store rooms on the ground floor, for rent, the proceeds of which were to first applied to pay the interest on the money loaned, and then, so far as not wanted for college purposes, to pay the principal of the loan, and after such payment, the income to stand as a perpetual endowment.
    The building thus erected contains three classes of apart ments:
    1st. A tier of stores on the ground floor designed solely-for rent. These rooms are now, and have been for several years, rented for stores and shops for ordinary business. Two of the eight stores which occupy the first half of the ground floor, are occupied under five year leases, the other six are verbally rented. The rear half of this floor is occupied by the city, under a five year lease, for its public purposes, and five or six of the remaining apartments are verbally rented, for miscella neous purposes; the residue are unoccupied.
    2d. A suit of rooms in the front of the second story, belonging to the Mercantile Library Association. This association is strictly literary and scientific- — its object being to cultivate such learning as is^more especially connected with" mercantile pursuits. It has a course of literary lectures in the college hall every winter, and its rooms are occupied, one for a library, one for a reading room, and one for transacting its business, and as a place of meeting for merchants to collect and communicate information. This association contributed ¡§10,000 to the expense of the building, in consideration of which, it has a perpetual right to the use of these rooms, with certain privileges in the college hall.
    3d. A great number of other apartments, designed for the Various uses of a college, such as a large hall, various recitation and lecture rooms, and private rooms for students.

      A law school is at present maintained in the building, and a primary school occupies one or more of the apartments. There are no other collegiate exercises in the building, it being understood that the board of trustees find it impossible to procure the requisite professors to maintain a perfect college organization, until their debt shall be so far reduced, that their principal income can be applied in paying the salaries of professors. It appears to be understood by all concerned, that no part of the income, after paying the debts, can ever be applied to any other purpose than the support of a college.
    The lot and building .of the Cincinnati college, were brought in the duplicate in .1848, and valued at $65,000, on which amount the taxes were $650. For 1849', the value was decreased, by the board of equalization, to $58,000. The taxes, interest, and penalty for 1848, and the single taxes for 1849, in all, amount to $1,626.62J.
    On this state of facts, application was made to the auditor of state, to remit the taxes, on the ground that this property was that of a literary institution, and therefore free from taxation. The auditor decided that the property was legally subject to taxation, and that the corporation was legally liable to the payment of the taxes, as assessed for 1848 and 1849, and therefore refused to remit the taxes. And from this decision the appeal was taken.

      N. Wright and William Green, for appellants

      H. Stanbery, (attorney general,) contra.
   Caldwell, J.

This case presents the single question, whether this property is the proper subject of taxation ? Does it come within the exemption of the tax law of March, 1848 ? The 3d section of that statute reads as follows: “ All property described in this section, to the extent herein limited, shall be exempt from taxation; that is to say, First, All buildings occupied or used exclusively as public school houses, or as places of public worship, or both, with the furniture and books therein used, exclusively for the accommodation of schools or religious meetings, together with the grounds, not exceeding, in any case, twenty acres, occupied thereby, if not leased or otherwise used with a view to profit. Second, All lands used exclusively as grave-yards or grounds for bury ing the dead. Third, All buildings belonging to scientific, literary, or benevolent societies, used exclusively for scientific, literary or benevolent societies, together with the land actually occupied by such institutions, not leased or otherwise used, with a view to profit, and all books, papers, furniture, apparatus, and instruments belonging to said societies, used solely for literary, scientific, or benevolent purposes. Fourth, All moneys and credits belonging exclusively to universities, colleges, academies or public schools, of whatsoever name, or to religious, scientific, literary or benevolent societies, and appropriated solely to sustaining such institutions or societies, not exceeding- in amount or in the income arising thereon, the'amount prescribed by the charter of such society.”

On the part of the Cincinnati college, it is contended, that although this property is not immediately used for literary or scientific purposes, yet the fact, that the fund is to be appropriated to such uses, brings it within the exceptions of this statute.

The language of the statute is very specific. The legislature appears to have been very careful to use as explicit terms as the language would afford. The buildings belonging to scientific and literary societies, are to be used “ exclusively ” for scientific and literary purposes, to bring them within the exemption.

' It would, we think, be rather a forced construction of language, to say 'that this building, with its eight stores, its merchant’s exchange, and its other rooms used for miscellaneous purposes, is used exclusively for literary and scientific purposes. But the legislature, not satisfied with the very explicit terms which chey had used, as if to place their meaning beyond all possibility of misapprehension, proceed to specify that it shall not be leased, or otherwise used with a view to profit. This property is most of it leased and used with a view to profit. We suppose the plain and palpable meaning of this statute is, that the houses and property which these different institutions need to use whilst engaged in the pursuit of their respective objects, shall be exempt from taxation. Such property,, when thus used, does not produce an increase. It is used for purposes other than making money; and as the objects for which it is used are beneficial to community, it is exempted from the burdens imposed upon other property.

But when any society, no matter of what kind, whether scientific, literary, or religious, enters the common business of life, and uses property for the purpose of accumulating money, the government should, and we think the statute does, treat it in the same way persons are dealt with, who are using property in a similar manner, and engaged in the same business. Government cannot discriminate between the uses which different societies or individuals will make of the proceeds of their business, and determine that this society or individual will make a more worthy disposition of the proceeds of his business than that, and therefore the one shall be taxed and the other not.

The legislature could not, without a flagrant violation of the principles of equality, on which our institutions are founded, make a distinction such as is contended for, between the store of the Cincinnati college and that of an individual. The legislature, in this instance, at least, appears to have been careful not to make any such improper discrimination.

The third enumeration of this section of the statute, relating to the buildings of such societies, is the only one that we think could be supposed to have any bearing on this case; the fourth, however, appears equally explicit to the same point; it refers to the money belonging to such institutions, and exempts such as is “ solely appropriated to sustaining such institutions.”

Whilst the money is in the fund of the institution, to be used solely to meet its expenditures, it is making nothing, it is withdrawn from the common business of life to be used solely to effect the object of such institution. But should the trustees of the society use such money in business, either investing it in property, or loaning it at interest, the property thus purchased, or the money thus loaned would be liable to taxation, as much as any other property or money at interest, no matter in whose hands it might be. As we have before intimated, the law applies to the property as it finds it in use, and not to what may be done with its accumulations in future.

It is said, in behalf of the appellants, that this law should* be liberally construed in favor of the institution, its object being to promote science and literature. We think, however, that all laws that exempt any of the property of the community from taxation should receive a strict construction. All such laws are in derogation of equal rights.

The money necessary to support government, has to be raised by a tax on the beneficial pursuits of community; it all is raised from the proceeds of industry. If property, employed in one kind of business, is exempted from taxation, the burden will necessarily fall more heavily on property employed in other pursuits. It is hard to discover why those employed in producing what feeds and "clothes humanity, should not be regarded as favorably by government as those engaged in the more elegant or intellectual arts.

There is no one source of oppression or injustice which has been productive of so much human misery all over the world, and in all ages of it, as the discrimination which government, in imposing their burdens, have made between the different occupations of life, encouraging one at the expense of another.

We think the auditor of state has decided in accordance with both the law and equity of the case, and therefore con firm his decision.