text:
    *Sharpless and Phinney v. George Taylor.
    A justice of the peace is not bound to issue execution, without special order of the judgment creditor, until the time allowed for putting in bail for stay of execution has expired.
    He may, upon a special order, issue execution within that time; but when the time has expired, he must issue execution, although not specially directed.
    This was an action on the case, against the defendant as a justice of the peace.
    The declaration has two counts.
    First: That on the 28th of February, 1842, Sharpless and Phinney recovered a judgment against one Morris Wilcox, for $31.24J, before the defendant, Taylor, as a justice of the peace ; that said Wilcox, at the time said judgment was rendered, and up to the 7th of March, 1842, had sufficient goods and chattels, liable to execution, to satisfy said judgment; that said Taylor, as such justice, neglected and refused to issue an execution on said judgment, until the 8th day of March, 1842, when he did issue execution, and the same being levied on all the property the judgment debtor then had, produced but $10.74; and, therefore, the justice is liable for the balance of the judgment.
    Second : The second count is like the first, except it has this averment : “ The plaintiffs, by their agent, to wit, on the 28th day of February, 1842, at the township of Sharon, aforesaid, did order and direct the said George Taylor, so being such justice, as aforesaid, to proceed and collect the debt due from the said Morris Wilcox to the said plaintiffs, and for which the said judgment was rendered, as speedily as the law would permit,”
    There is a demurrer to both counts.
    Swayne and Bates, for plaintiff.
    The justice was bound to issue execution immediately. Swan’s Treatise, 127.
    ^Section 66, Swan’s Stat. 517, makes it his duty to issue execu- [244 tion, unless otherwise directed.
    Section 68, same page, if stay or appeal be taken, within the time allowed, and after execution issued, it shall be recalled.
    By section 1, Swan’s Stat. 530, ten days are allowed to enter in recognizance, for stay; but execution is to be issued as provided by 66th section.
    The only questions in this case are, whether the declaration is sufficient, in not averring that the justice did not issue an execution in a reasonable time, instead of showing that he did not issue for nine days, whereby the debt was lost?
    The plaintiffs contend that he was bound to issue immediately, or, at any rate, earlier than the 9th day; especially, as he had been charged, as alleged in the second count, to “ make the money as soon as the law would permit.”
    The defendant contends that he was not bound to issue until the ten days allowed for taking the stay had expired : or, at any rate, that he had a right to exercise a discretion on the subject, and that nine days might 'not have been too long to wait.
    P. B. Wilcox, for defendant.
    The attention of the court is first called to the act of 1831, sec. 63, 66, 68, Swan’s Stat. 516.
    Now, it is to be remarked, that this act of 1831 fixed no time at all, within which a recognizance for the stay of execution should be entered into. That was left to the discretion of the justice. This appears from the 68th section; it speaks of a recognizance put in, “ within the time allowed for entering the same.” Allowed by whom ? Where there is something to be allowed there must be an allower. The act of 1833, as will be seen hereafter, took away this discretion, and fixed the time at ten days.
    Then, it is to be remarked, that the 66th section directs the justice to issue execution on the “ refusal” or “ neglect” of the defendant to 245] put in a recognizance. The language is, “ if” he *shall “ refuse” or “ neglect.” If he shall “ neglect” or “ refuse,” when, or within what time ? The answer must be, within the time limited, or allowed, by the justice for entering into the recognizance. The justice gave the party such time as he thought reasonable for putting in his recognizance. If he “ refused” or “ neglected” to put in a recognizance, within that time, it was then the duty of the justice to issue execution.
    The justice, might, if he 'chose, issue execution before the time was .out for putting in a recognizance ; and the party might demand one to be issued, as appears from the latter part of the 66th section, 517, which provides that the party, at his option, might have a capias for the body. Tet the justice was not to be personally liable unless the defendant refused or neglected to put in the recognizance within the time allowed, and then the justice omitted to issue execution.
    The construction of the act of 1831, taken together, then, is this : “ If the defendant shall refuse or neglect to put in a recognizance within the time allowed by the justice, then the justice shall issue execution, or be liable to pay the debt.” And such is said to have been the practice in those days.
    Then came the amendatory act of 1833 (Swan’s Stat. 530,) which took away from justices of the peace the power of fixing the time for putting in recognizances, and fixed the time by law, to wit, ten days. The language is this (see. 114 :)
    “ That the recognizance to be entered into, as specified in the 63d section of the act to which this is an amendment, shall be entered into within ten days after the rendition of the judgment; provided, however, it shall be the duty of the justice to issue execution, as required by the 66th section of said act.”
    We suppose the intention of this act was simply to fix the ten days, and no longer leave it to the justice to fix the time for putting in the recognizance. The proviso, it is said, may bear another interpretation. It says the justice shall issue execution, as required by the 66th section. How does the 66th section require it to be issued? Why. upon the “ refusal;” or “ neglect” to put in a recognizance. The party has ten days to do this in ; and how can there be a “ neglect,” or “ refusal,” *until these ten days have run out ? The proviso [246 says the justice shall issue execution, as required in the 66th section. That section says it shall be issued on“ neglect” or “ refusal.” Now, until there has been really a “ neglect” or “ refusal,” how can the justice be sued ? When does the cause of action accrue against the justice ? Suppose in this very case, a good recognizance had been entered into on the last of the ten days, could the justice be made personally liable in such a case ? How can a cause of action arise against the justice till the ten days have expired — till the time has expired which the law gives the party for putting in a recognizance ? Suppose this suit had been brought five days after the judgment, and the next day afterwards a recognizance had been put in, what would have become of the suit ? Can a reasonable answer be given to this question ?
    The only effect, then, of the act of 1833, is to fix a certain time (ten days) for putting in a recognizance, instead of leaving it open to the discretion of the justice.
    On the whole, we suppose the true construction of the two statutes, taken together, is that which has been commonly put upon it by our justices of the peace, i. e., “ the party has ten days to put in his recognizance ; if he neglects or refuses to do it within the ten days, then the justice is bound to issue execution, at his peril.”
    The party may demand execution within the ten days ; but, no such demand being made, the justice can not be personally liable till the ten days expire.
    Swan’s Treatise on Justices of the Peace puts a different construction upon these two statutes, and requires execution to be issued immediately on the rendition of the judgment, but gives no reasons for it; nor does it compare one part of the statute with the rest.
    But suppose we are mistaken, how then does the case stand ?
    The position taken by the other side is, that the justice is bound, at his peril, to issue execution immediately after the rendition of tbe judgment. Now, how long a time has he to issue his execution in ? As he enters his judgment on his ^docket, must he go right on [24K and make out his execution ? — or may he wait an hour, or till the next morning? How long may he delay? 'The statute fixes no time, at all, and consequently, the law says he shall have a reasonable time. And this reasonable time is a question for the court, where the facts are known ; and where the facts are not known, then the jury are to fix it under the direction of the court. Is not ten days, then, a reasonable time for the justice to have ? It is a highly penal statute. The justice has the whole debt to pay. Or, is every case to be determined on its own circumstances ? May this case now be put to the jury, for them to say whether the execution was or was not issued in a reasonable time ? Take the case as the plaintiff makes it in his declaration. He says the defendant had plenty of goods on the day the judgment was rendered, and continued to have plenty till the 7th of March, and execution was issued on the 8th of March, eight days after the judgment. Now, was not this execution issued in a reasonable time ? On the plaintiff’s own showing, has the justice been guilty of such negligence as should throw upon him the whole debt ? Why did not the plaintiff order out execution, if he wanted one ? Where a justice acts in good faith, and is not hastened by the party, ought suoh a rigid rule be adopted against him ?
    The construction contended for by the other side, leaves every thing at loose ends. It fixes no certain time for the justice to issue execution. Every ease is to depend on its own circumstances. The justice may show any reasonable grounds why he did not sooner issue execution.
    Another thing shows that at least ten days is a reasonable time. The party has ten days to put in a recognizance. If a justice is sued any time within the ten days, and a recognizance is put in, what is to become of the suit?
    Wo then claim that, on the very case made by the plaintiff himself, in his declaration, the execution was, in fact, issued in a reasonable time.
    If an attorney at law has a claim to collect, and he causes execution 248] to be issued in eight days after the judgment, especially *if the defendant has plenty of property during the time, is not this reasonable diligence ? An attorney is only liable for gross negligence. 4 Pet. 172 ; 2 Sarkie’s Ev. 133.
    Ought not the declaration to aver a notice and demand before suit brought ?
    In England and in Pennsylvania, this is required by statute. In 4 Binney, 20, C. J. Tilghman says ; “ Justices of the peace are not often lawyers, and are frequently called on to act in the discharge of their duty without an opportunity of taking advice. It is but reasonable that they should have time to reflect, and to make amends to the person injured, in case they should inadvertently do wrong.”

      Our statute enacts, (Swan’s Stat. 398,) “ that justices of the peace shall he allowed to receive the following fees :
    “ Eor issuing execution, twenty-five cents.”
    Now, is a justice bound to issue an execution without a tender of his legal fees ; and ought not such tender to be averred in the declaration ?
    In 10 Serg. and Rawle, 373, a justice of the peace was indicted for refusing a copy of his proceedings, and the court say, page 376 . “No man could legally demand this copy without tender of the fee. The fee hill allows the justice for the copy of a judgment, 25 cents. He has a right to his fee, instanter, before he delivers his copy. He is not responsible civiliter, (and that fact should be set out), till his fee is tendered.”
    The statute, under which this decision was made, is in these words : “ It shall be the duty of the justice, on demand, made either by plaintiff or defendant, to make out a copy of his proceedings at large, and deliver the said copy, certified by him, to the party requiring the samo, and if, on such demand, he shall refuse so to do, it shall be a misdemeanor in office.”
    The second count seems to be substantially like tho first. The language seems to import, that the direction to proceed, etc., was given before the judgment. If it was an order for execution, why not say so at once? The inference is, that the direction was given (if any) when the claim was first put *into the justice’s hand; and [249 the judgment was afterwards confessed on the same day, and no specific direction for execution. Such ambiguity, or doubt, is to be taken against him who uses it. If an execution was really demanded, it was very easy to say so ; if not, what could be expected but such indefinite language ?
   Read, Judge.

The determination of this question depends upon the time within which the statute makes it the duty of a justice of the peace to issue execution.

The 63d section of the act of 1831, relating to justices of the peace, provides for stay of execution, upon condition of entering into a recognizance, etc.

The 66 th section provides that if the person against whom judgment was rendered shall refuse or neglect to enter into such recognizance, it shall be the duty of the justice, unless otherwise directed, to issue execution.

The 68th section provides, that if execution issue before entering into a recognizance for stay, and afterwards a recognizance be entered into for stay within the time allowed for entering the same, execution shall be recalled.

. Under this act no time was fixed within which a"recognizance for stay should be entered.

The first section of the act of 1833, amendatory of the act above mentioned, provides that a recognizance for stay of execution shall be entered into within ten days faom the day of judgment.

The duty of the justice, by the 66th section, to issue execution, arises upon the neglect or refusal of the person against whom judgment is rendered, to enter into a recognizance for stay of execution. The first .section of the act of 1833 gives to the person against whom judgment was rendered, ten days to put in a recognizance for the stay. How, then, can a person be said to neglect or refuse to enter into a recognizance for the stay, before the time expires, given by law, to enter into such recognizance ? If, then, it be no refusal or neglect of 250] the judgment debtor, not to enter into a recognizance until *the ten days given him by law have expired, it follows, of course, that ’until the lapse of that time the contingency has not happened which makes it the duty of the justice to issue execution. This conclusion is irresistible.

Upon a construction of the whole statute, it resolves itself into this : A justice of the peace is not guilty of neglect of duty if he do not issue execution until ten days after judgment. He may issue execution within ten days; he should do so if the judgment creditor specially direct it; he must do so after the ten days have expired, unless directed by the judgment creditor, or his agent, not to do so.

This view of the statute is in conformity with the general construction placed upon it in practice, and such as fairness, justice, and the provisions of the statute would seem to require.

In this case the execution was issued within ten days, and there was no special order to issue sooner.

It is the opinion of a majority of the court that the magistrate performed all that was required of him by law.

Demurrer sustained.


source: Caselaw Access Project

author: Wood, Judge.

license: Public Domain

text:
    James L. Gage v. Hiram H. Robinson.
    "When the publication complained of is libelous in itself, an averment in the declaration of plaintiff’s official or professional character will not be ground of demurrer, although the libelous matter can not apply to that official or professional character. •
    All inferences are to be taken most strongly against the pleader, and where the libelous matter imputes a dishonest, corrupt, or criminal intent, a plea of justification must show not only that the facts charged are true, but also that they were accompanied with the intent imputed.
    This is an action on the case for Libel, from Morgan county.
   Wood, Judge.

The declaration contains seven counts, in all of which, save the second, among other things, the defendant is ^charged with composing, publishing and circulating a certain [251 malicious and defamatory libel of and concerning the plaintiff, in which the plaintiff is accused of being a low, sneaking rascal — no better than a traitorous scoundrel — a scoundrel, rogue and villain — a defaulting scoundrel — dishonest, and guilty of dishonest practices ; and, in those counts, it is averred the plaintiff is an attorney and counselor at law, but not that the publication was made of him in his official character.

To these counts the defendant pleads, that the plaintiff was clerk and agent of the fund commissioners of Morgan county, and, as such, received large sums of money, that he used, converted and applied to his own use, and wholly neglected and refused to pay them to the commissioners, or their order.

To this plea the plaintiff demurred, and the defendant joined in demurrer ; and the question is, whether this plea is an answer to these counts in the declaration. In other words, doos it follow, because the plaintiff was clerk and agent of the fund commissioners, and, as such, received large sums of money, which he converted and applied to his own use, and wholly neglected and refused to pay to the commissioners, that he is a low, sneaking rascal — no better than a treacherous scoundrel — that he is a scoundrel, rogue and villain — a defaulting scoundrel . — dishonest, and guilty of dishonest practices ? It does not seem to us that such an inference can be drawn from what is stated in the plea in bar, without overturning well established rules.

The pleadings of parties are to be taken most strongly against themselves, and most favorably for their adversaries. Coke Litt. 303 ; 6 Plowden, 29, 202 ; Gould’s Plead. 153.

It is the duty of the pleader to state the ground of his action or defence, so as to explain himself fully and clearly. Any omission is at the peril of the party, in whose allegations it occurs. In trespass, if the defendant plead a release, without stating the time of its execution, it shall bo intended that it was made before the trespass committed. So, if the defendant to an action of debt, on bond, payable on a given day, pleads payment or tender, without alleging the time, 252] the legal *intendment must be that it was made after the day appointed for payment. Com. Dig. Plead, Equity ; 6 Plowden, 104 : Gould Pl. 153.

Try this plea by these rules, and the defence attempted to be set up in it vanishes at the touch. There is nothing averred inconsistent with the most perfect integrity. The plaintiff was the clerk and agent of the commissioners, and, as such, received a large sum or sums of money ; he converted and applied such moneys to his own use, and wholly neglected and refused to pay such sum or sums to the commissioners, or their order. From any thing averred in this plea, the commissioners may have given the plaintiff leave to use the money; they may have loaned it to him; the plaintiff may have used it because it was in funds that had become perilous longer to keep on hand, and with the intention to repay, on demand, and with a full belief in his ability to do so. It is the intention with which the act is done, that gives it character; and no corrupt design is alleged in this plea.

Adhering to the rule that the plea is to be taken most strongly against the pleader, the reason why the plaintiff has not repaid the money to the commissioners may be, and such is the inference, because it is not yet due, or has not been required, and that he has not paid to the order of the commissioners, that no order has been presented. It, therefore, appears to us, that the plea is no answer to the libelous matter laid in the plaintiff’s declaration.

The second count of the declaration charges the defendant with publishing of the plaintiff another certain libel, etc., and also of and concerning him, in his official character, as an attorney and counselor at law, in these words : “ To Columbus Landlords. If any one of you have missed an umbrella, you will probably obtain it by calling on Jim Gage, attorney and counselor at law, of this town, as we heard him boast, yesterday, in a sly way, that he hooked an umbrella the last time he was in Columbus. He, no doubt, told the truth,”

To this count the defendant has demurred, and the plaintiff joined in demurrer. The count is said to be defective, because *it avers [253 the publication, that the plaintiff was guilty of larceny, was made of him in his official character; but several authorities are cited by plaintiff’s counsel to show that where the slanderous matter is actionable, in itself, and independently of professional character, it will not be fatal to introduce an averment of the plaintiff’s profession, and to state that the matter was published of him, and of and concerning him in his profession, because the averment is divisible. 1 Chitty Pl. 430 ; 3 B. and C. 113 ; 10 Eng. Com. Law, 25 ; 6 Carr, and Payne, 475 ; 25 Eng. Com. Law, 496, 499, 500 (note.) The allegations of this count are thus made, and come within this rule.

Goddard and Converse for plaintiff.

A. Ramsey, for defendant.

We are, therefore, of the opinion, that the demurrer to the second count of the declaration should be overruled, and the demurrer to the plea in bar sustained.


author: Lane, C. J.

text:
    The Lessee of Demas Adams v. Samuel Jeffries.
    An administrator’s sale, made under an order of court, since 1824, without showing that the heirs were parties to the proceeding, is void.
    The case of Weyer v. Zane, 3 Ohio, 306, explained.
    This was an Action of Ejectment from Licking county, submitted to the court upon an agreed statement of facts.
    To support the plaintiff’s title, he offered in evidence—
    First: Proof that John Faulkner died seized of the tenements.
    Second : An order of sale to his administrator, from the Common Pleas of Franklin county, in April, 1833, which, after reciting ^that the case came on to be heard on an agreed statement of [254 facts, and the court, being satisfied that the estate of Faulkner was insolvent, orders the premises to be sold. Further proceedings show a regular sale, confirmation, order for a deed, and administrator’s deed. The plaintiff has whatever title passed by these proceedings.
    The question, therefore, for trial, is, whether the plaintiff can recover by the bare production of the order for sale, without proof of petition filed, service of process, or of proceedings anterior to the order.

      The transcript from the record, which was offered in evidence, is as follows:

      Court of Common Pleas — April Term, 1833.
    B. Sells, administrator of John Faulkner, v. Faulkner’s Heirs, et al.

    Petition to sell land.
    This cause came on to be heard upon the agreed statement of facts, and the court, being fully advised, and being satisfied that the claims, mentioned in said statement, are legal claims against the estate of said Faulkner, and that said estate is insolvent, and that there are no personal assets belonging to said estate, the administrator is ordered to sell the premises, in the petition described, according to law, and make return of his proceedings to our next term, to which time this cause is continued. And afterwards, to wit, at the September term of said court, in the year first herein aforesaid, came Benjamin Sells, the administrator, and reports to the court here, that, in pursuance to the order of the court at the last term, he offered the lands, in the petition mentioned, at public auction, having advertised the same agreeably to law ; and Demás Adams and Ralph Osborn having bid, for the 173 53-160 acres, in the petition mentioned, to wit, range twenty-two, township five, half section one, the sum of $2.50 per acre, the same was struck off to them ; and the said Demás Adams and Ralph Osborn, having bid, for the tract of 320 acres, the east half of section seven, township nineteen, and range seventeen, in Licking 255] county, in the petition mentioned, the sum of $2.50 *per acre, the same was struck off to them; and Elizabeth Henry, having bid, for the 150 acre tract, off the south west corner of section one, township five, and range twenty-two, in the petition mentioned, $2.10 per acre, the same was struck off to her, she being the highest and best bidder, and said several bids being more than two thirds the appraised value. And the court, having carefully examined said report of the premises, in the petition mentioned, and finding the same made agreeably to their orders, and the statute in such case made and provided, it is ordered, that said sale be, in all things, confirmed; and it is further ordered that the administrator make deeds to the several purchasers accordingly.

      The State of Ohio, Franklin county, ss.

    I, Lyne Starling, Jr., clerk of the court of Common Pleas of said county, certify the foregoing to be truly and correctly taken and copied from the journal of said court, in my office. In testimony whereof, I have hereunto subscribed my name, and affixed theseal of said court, at the court house, in the city of Columbus, this 12th [L. S.] day of November, A. D., 1842.
    Lyne Starling, Jr., Clerk.
    Upon the circuit, the order for sale, and proceedings under it, were ruled out, and the case now comes up, on a motion by the plaintiff, for a new trial.
    T. Ewing and Henry Stanbery, for the plaintiff.
    The first objection urged to the admission of the record in evidence is, that it is not a full record, but a transcript merely ; and counsel cite Gilbert’s Ev. 17 ; 2 Institutes, 273 ; and Starkie’s Ev. 189, in support of their objection.
    There is some mistake as to the authorities, as we can find nothing on this subject in Gilbert’s Evidence, or 2 Institutes, at the place referred to ; and Starkie merely says, that, in some special eases which he puts, a judgment may be given in evidence, between persons who are not parties, or privies *to it, but he does not, at all, intimate, [256 that a complete record must be produced, in order to make the judgment evidence.
    It is obvious, that the necessity of producing the whole record depends upon the object for which it is to be used. If it be a question of res judicata, or estoppel at law, you must have the whole record to show that the exact case arose in the pleading, and that there were a verdict and judgment upon the very matter, and so of like cases.
    But there is no objection to giving a certified transcript of part of a record in evidence, if the part of the record certified be evidence, of itself, without the whole record. If the judgment, or order, in this ease, would be evidence, the record book being produced, then also the certified transcript of the judgment, or order, would be evidence. So this objection resolves itself at last into the question, whether it is sufficient to show the order, etc., without the other proceedings ; not whether these orders are sufficiently verified to make them evidence. And so are the authorities. It is said, in Buller’s Nisi Prius, 235, that where a party wants to avail himself of the decree only, and not of the answer, the decree, under the seal of the court, and enrolled, may be given in evidence, without producing the bill and answer. And it seems very clear, that, when the existence and contents of the decree are all that need be proved on the trial, a certified copy of the decree is good evidence to prove it.
    So it is held in the case of Jones v. Randall, Cowper, 17, if the fact to be shown is merely that a decree has been made in the Court of Chancery, or, that a decree made there has been reversed on appeal, proof of the previous proceedings will not be necessary. And in case of an ancient decree, if the bill and answer can not be found, after proper search, the decree alone may be admitted.
    If a part of a document be lost, and part be in the power of a witness, the part must be produced, and he may testify to the rest. Rowe v. Brenton, 3 Mann, and Ryl. 271.
    Pratt, C. J. The bare producing the postea, is no evidence of the 251] verdict, without showing a copy of the final judgment, *because it may happen the judgment was arrested, or a new trial granted : but it is good evidence that a trial was had between the same parties, so as to introduce an account of what a witness swore at- the trial, who is since dead. Pilton v. Walter, 1 Strange, 162.
    An affidavit of Lee was offered to be read ; objected, that he stood convicted of perjury, and the conviction was produced But, per Lord Mansfield, a conviction upon a charge of perjury is not sufficient unless followed by a judgment. I know of no case where a conviction alone has been an objection, because, on a motion in arrest of judgment, it may be quashed. Lee v. Gansel, Cowper, 3.
    To prove a setoff, the defendant produced the record of a verdict, on a trial wherein the present defendant had been plaintiff, in an action against the present plaintiff, in which he had obtained a verdict for £245. The postea was so indorsed, etc. Counsel for plaintiff contended that the mere production of the postea was not, of itself, sufficient evidence ; that the judgment ought to be proved. Lord Kenyon ruled, “ that the mere production of the postea was sufficient to establish the demand, to the extent of the sum indorsed, as the verdict in the catise.” His Lordship added, “that, in cases of issues out of chancery, the chancellor always admitted the production of the postea, as conclusive of the extent of the demand.” Garland v. Scooms.
    A verdict, in an action before a justice of the peace, is evidence, without producing the judgment; for the justice can neither arrest judgment, nor grant a new trial, but is bound to give judgment on the verdict. Felton v. Mulliner, 2 Johns. 181.
    If a record be entirely lost, proof by parol may be given of it.
    In ejectment, on trial for lands, where a recovery was shown to cut off an entail, it yas objected, that no sufficient evidence of it appeared, because neither the recovery itself, nor a copy of it, was shown ; for, in truth, it was lost. But the court did admit other proof of it to be sufficient, and said, *if a record be lost, it may be proved to a [258 jury by testimony. Ventris, 257.
    It appears, therefore, that there can be no question as to the admissibility of these orders and proceedings of the court of Common Pleas in evidence, but only as to their sufficiency. They are certainly evidence tending to prove the issue ; and if insufficient, parol evidence is admissible to show that the petition and process are lost, and, also, that due service was made upon all the defendants. The evidence, therefore, was, on this account, improperly rejected.
    In England and in New York, an execution can not issue on a judgment until the record is complete, signed and enrolled. The judgment is not entered on a minute book, and then signed by the judge, as with us ; but that book is a mere memorandum by the clerk. But with us, it is otherwise. An execution issues forthwith, upon the signing of the judgment in the minute book ; and the judgment in that book, so signed, is a justification to the party, and to the officer, for issuing and executing final process. The minute book itself, and, consequently, a certified or sworn copy from it, is good evidence of the judgment, in all cases where the judgment only is required to be proved.
    And there are many cases, besides those which have been cited, in 'which a verdict, a decree, or a judgment alone, would be admissible in evidence, and sufficient proof of a fact. Suppose a clerk issue an execution which is delivered to a sheriff, who levies it, and an action is brought against the sheriff and clerk for trespass. Is not the judgment on his minutes, signed by the judge, sufficient to justify the clerk, and the judgment and execution sufficient, also, for the sheriff?
    And what is sufficient for the officers is sufficient also for the purchaser, under a judicial sale. If the sheriff be not a trespasser, his sale transfers the property. Doe ex dem. Bland v. Smith, 2 Stark. Cas. 199 ; Eng. Com. Law, vol. 3 ; Doe v. Thorn, 1 M. & S. 425; Dyer, p. 363, pl. 24.
    The authorities cited with respect to jurisdiction, relate to entirely different matters from this ; no such question was ever *heard of, [259 upon a judgment of a domestic court of general jurisdiction — as of the court of King’s Bench, or Common Pleas, in England, and the like of our court of Common Pleas — they have jurisdiction of all persons, and all things, prima facie. You do not affirmatively show jurisdiction, in order to sustain their judgments ; that is necessary only in case of judgments in courts of limited or special jurisdiction, and, as it would seem, in foreign courts. It is not, therefore, here, a question whether the court had jurisdiction to render this judgment or order, but whether enough is shown to prove this an order of the court, between the parties in the cause. In order to prove the judgment, in behalf of a purchaser at a judicial sale, must we prove, as an affirmative fact, that the defendants were brought into court by the service of process, or voluntarily appeared in the cause ? If we must, it unsettles all our notions on this branch of the law.
    In England the record contains no such proof — that is, the full record, or roll — or, if it contain it, it is a merely accidental circumstance, as when a defendant appears by attorney, and files a plea, or makes a motion in a cause; but, where a judgment is rendered by default, there is no record evidence that the defendants appeared, except the presumption arising from the fact that the court rendered a judgment, and this is evidence enough.
    But it would be a very great injustice, if a judgment should be rendered against a defendant who was not served with process, and his property should be thereupon seized and sold; it would be against all the rules of law, as every man is entitled to his day in court, and ought not to be condemned unheard. Certainly, but our courts know that just as well when they render a judgment, as when they are about to receive a judgment in evidence, in support of a judicial sale, and they guard against that evil, by rendering no judgments, except when the parties are all before them; and the judgment is the only evidence which the law requires, to show that the parties were in court. But there is proof here beyond this. The second order offered in evidence 260] was made upon an .agreed case ; agreed *by whom? The court would not notice an agreement, and enter an order upon it, if made between others than the parties litigant. Those parties, therefore, were present, by themselves or their counsel, and agreed to the order.
    It would not do to hold that the title of a purchaser is avoided because he can not show process served upon the judgment debtor. No one, in practice, ever looks beyond the judgment, in order to advise his client that he may make the purchase ; all our books, of high and low authority, tell us he need look no further. But, suppose we do look, and find a summons duly served — who knows where the scrap of paper will be, when the complete record comes to be made up ? Court papers are already subject to many casualties; that paper will be subject to many more, if the purchaser loses, and the debtor gains title to the land by its destruction or loss.

      The reasons urged by the court, for sustaining the sales in Hoe’s case, 5 Reports, 91, apply equally in this, namely : “ If the sale of the goods, by force of the writ, should, by the non-return of the sheriff’s writ, be wrongful, then the sheriff would never find buyers of the goods of any defendant, by force of any writ of execution, which would be inconvenient,” etc.
    If the purchaser of land at sheriff’s sale hold his title subject to the proof of service of a summons, surely no prudent man will buy.
    The settled doctrine as to sales under decrees or judgments, is, that the purchaser is not concerned with the proceedings prior to the decree or judgment. 1 Vesey, sen. 195 ; 2 Scho. and Lef. 566 ; 9 Vesey, jr. 37; Jackson v. Bartlett, 8 Johns. 366; Young v. Taylor, 2 Bin. 227; Little et al. v. De Lancy, 5 Bin. 273.
    The purchaser (at marshal’s sale) depends on the judgment, the levy, and the deed; all other questions are between the parties to the judgment and the marshal. Wheaton v. Sexton, 4 Wheat. 507.
    In Armstrong v. Jackson, 1 Blackford, 212, the same doctrine is declared in the following language :
    *“ It is a fair presumption, that the judgment of a competent [2@1 court, which a bona fide purchaser sees of record, has been correctly rendered; and that the execution, shown him in the hands of the sheriff, has regularly issued. It may be safely presumed, too, that the sheriff has done his duty, in obeying the directions of the statute, as it respects the inquest, the advertisement of sale,” etc.
    “ It is important to the interests of both plaintiffs and defendants, that the title of a bona fide purchaser at sheriff’s sale should not be affected on account of any error or irregularity in the judgment or execution.”
    In Ludlow’s heirs v. Johnston, 3 Ohio, 561, purchasers at administrator’s sales are put on the same footing with purchasers at sheriff’s sales.
    “ There is no good reason,” say the court, “ why those who purchase from an administrator should not be viewed with the same favorable eye with those who purchase from sheriffs. In either case, it is proper that the order or judgment should remain final and conclusive upon all parties concerned, until set aside, annulled, or reversed.
    It will be admitted that the order of the Court of Common Pleas purported to bestow upon the administratrix sufficient authority to convey the demanded premises, and that she complied with all the requirements of the law, in the proceedings subsequent to the order of court, and in her conveyance. The grantee purchased in reliance on the authority of a court of competent jurisdiction. To deprive him of the property he thus acquired, would, in our opinion, be to act in opposition to the most established principles, and very much endanger the security of titles. Leverett v. Harris, 7 Mass. 292.
    Perkins v. Fairfield, 11 Mass. 227, is to the same effect.
    In the ease of Lessee of Goforth v. N. Longworth, 4 Ohio, 129, the defendant claimed under an alleged sale, and deed, by an administrator, made in 1814. In support of this title, he showed—
    1. An appointment of appraisers. 2. An appraisement, made December 11, 1813. 3. An account of sales, dated December 15, 1813, four days after the appraisement. But no other order of court. 4. A deed made by the administrator, which recited that the sale was made under an order of court.
    The court held that the want of an order of sale was fatal. They say that the settled policy is to give a liberal construction to statutes authorizing sales by executors and administrators, and that all reasonable intendments are to be made in their favor.
    They speak of the order, or judgment, for the sale as the essential thing ; “ the foundation of the executor’s or administrator’s power to sell.” Again, they say : “ Were such a judgment, order, or direction produced, it would be correct to infer that it was rendered or made upon a proper state of facts.” Ibid. 130.
    The statutory provisions, in respect to cases of sale of real estate, by the personal representative, are intended to protect the interest of heirs and creditors, as well as that of the purchasers. The power of the personal representative, over the real estate of the deceased, is derivative, and limited. It is derived from the act of the court, in conformity with the law. The discretion of the court must be exercised and declared upon the subject; and, without this, the act of the' executor or administrator is void, because based upon no legal foundation. It is a case of acting under a power, where no power is conferred. The act, must, therefore, be void. Ibid. 131.
    And, in the close of the opinion, referring to the necessity of a substantial compliance with the requisitions of the statute, it is said, “ This must appear in the record, or arise on a just implication from it.”'
    The doctrine of this court, in reference to sales by administrators, is yet more distinctly declared in the case of Ludlow’s heirs v. Johnston, 3 Ohio, 560. It is there said:

      “ If the Court of Common Pleas, acting as a court of probate, or Orphan’s court, had jurisdiction, an end is put to the question; the evidence ought to have been received. We can not ^inquire, col [203 laterally, whether that jurisdiction was properly exercised. The order may have been unadvisedly or erroneously made, but the purchaser has innocently acquired rights of which he can not be divested, so long as it remains unreversed. Under our present existing laws, real estate can not be sold for the payment of the debts of a deceased person," until it is ascertained that there will be a failure of personal assets. The Court of Common Pleas must be satisfied of such failure, before it can, with propriety, order a sale. Yet, when a sale has been made, and its validity is questioned, this court will go no further back than to inquire whether it was ordered by competent authority. So far as the interests of the purchaser are concerned, we consider such orders equally available as judgments. The former can be no more impeached collaterally, because there was an abundance of personal estate to have satisfied all debts, than the latter can, by showing that the evidence under which they were recovered was insufficient.
    “ We are aware that, by adhering to this principle, great injustice may many times be done to heirs, for, it is too often the case, that those who attempt the settlement of estates are regardless of all other interests than their own. The consequences to be apprehended are not equally dangerous as those which would follow a different course of decision. While lands are sold for the payment of debts of deceased persons, every inducement should be held forth to encourage purchasers to give the full value of what they buy; and nothing can have a greater tendency to produce this effect than to afford them, when they have purchased, a reasonable protection.”
    It seems to us quite useless to go further in the citation of authorities on this question.
    But it is contended, and what was said by the court in this case, on the circuit, has given countenance to the argument, that it does not appear that the order for sale was made by a court of competent jurisdiction. If that be so, it is quite certain the proceedings are all .void; for the constant language of the authorities is, that the court rendering the judgment or decree must have jurisdiction of the subject matter.
    *There is no controversy as to the law, but, as we think, a [204 singular misapplication of it by the opposite counsel.
    No one doubts that the Common Pipas of Franklin, at the time they made this .order, was a court of general jurisdiction, and that it was the proper court having jurisdiction for the sale of this land by the administrator; and that is all that it is necessary to show. Here we find an order made by a court in a matter within its jurisdiction, and finding that, the intendment is in favor of a purchaser, that the pre^ liminary proceedings were all correct.
    It is argued, that the subject matter must not only be within the jurisdiction of the court, but, also, that it must be shown affirmatively, in support of the judgment, that the proceedings preliminary to the judgment were such as properly to bring the jurisdiction into exercise.
    If this is the doctrine, what is the meaning of the familiar rule that the purchaser need only look to the judgment, the levy and the sale?
    In tracing title through a purchase upon execution, who thinks of looking at the summons, to find whether the judgment debtor was duly served? All we look for is the judgment, being careful to see that it is such a judgment as the court had jurisdiction to render. Finding such a judgment, we stop, upon the legal presumption that all the preliminary proceedings were correct.
    There is one class of purchasers, in whose favor no intendment is made, who are bound to see that all the preliminary proceedings are strictly correct. These are purchasers of tax titles. The doctrine contended for by. the opposite counsel places purchasers at judicial sales upon the same footing.
    But there is. no warrant in the books for this doctrine. The eases which are relied upon give no sanction to it. They relate to judgments or decrees rendered by courts which were not competent to take jurisdiction over the subject matter, and in favor of which no presumption could be made; for that would be to raise a presumption against the law defining the jurisdiction of the courts.
    *Quite enough has been said, and decided by this court, to sot this question at rest.
    In Allen v. Parish, 3 Ohio, 191, the court refer to the case of Wheaton v. Sexton, 4 Wheat. 503, (quoted in the commencement of this argument,) and re-affirm the rule, that the purchaser at a judicial sale relies on the judgment, the levy and the sale. At page 191, it is said : “ The purchaser must look to see there is a judgment on which to found an execution ; that an execution has been issued, and a levy made, but is not bound to inquire into the regularity of all the ministerial acts of the sheriff, before or after the sale.”
    Weyer v. Zane, 3 Ohio, 305, was a scire facias to revive a judgment rendered without service upon, or notice to, defendant, upon summary motion. On demurrer to the scire facias, the court say : “ The demurrer assumes that the judgment set forth in the scire facias is so utterly irregular as to be absolutely void, and of no effect. We can not adopt this opinion. The court that rendered it was a court of compent jurisdiction over both parties and subject. However summary their proceedings, or however irregular, the solemn judgment of a competent and authorized tribunal can not be treated as a nullity. There is an explicit and formal judgment, and, although the proceedings upon which it is predicated may be unknown to our jurisprudence, Still, as in all other judgments, they are not open for inquiry except in a regular mode of re-investigation on writ of error or certiorari. It is seldom that the error complained of is in the manner of rendering the judgment itself. Generally, it is founded on some of the intermediate matters, for mistake in which, it is supposed the judgment stands upon an incorrect conclusion, with respect to facts or principles. There is no substantial distinction between this and other cases, that we can perceive. The demurrer must be overruled,” etc.
    The language of these cases is explicit. They declare the true and safe doctrine. Following this doctrine, it may happen that injustice is sometimes done to individuals whose lands are sold under judgments or decrees. No system of law can *be made all perfect. ‘This [206 occasional injustice would be remedied at a fearful price, if the title of a purchaser was made answerable for it.
    From the earliest times, the law has favored purchasers under its judgments and decrees. The caveat it interposes is not a warning against the validity of its own solemn proceedings.
    This long continued encouragement has led to great confidence upon the part of purchasers. The tendency of modern decisions has been to strengthen this confidence.
    We do not pretend to say how much of evil would follow a decision against the title of this plaintiff; for, in one generation, a great proportion of .the real estate of Ohio passes, in some form, through a judicial sale. If all these titles depend upon the regularity of indorsements on writs — if the judgment or decree is nothing — if no intendment is made in favor of it, but the purchaser, or his remote assignee, is always bound to show affirmatively the regularity of the first steps in the proceeding — if this is to be so, we are very much mistaken, if a wider door was ever opened for rapacity and speculation.
    James R. Stanbert, for defendant.

      Where a record is offered in evidence, as the foundation of a title or claim, the only legal evidence is the whole record, or an exemplification of it; and “ where any record is exemplified, the whole must be exemplified, for the construction must be gathered from the whole taken together.” Starkie’s Ev. 189 ; Gilb. Law Ev. 17 ; 2 Inst. 273. In South Carolina, by statute, attested copies of all records, certified by the clerks of the court, are admissible as evidence. But the whole record-must be given ; it is not sufficient to produce extracts. 2 Nott and McCord, 201.
    Here is nothing but the statement of the case, the' names of the parties, and the orders of sale and confirmation. These orders recite that a petition was filed, or, at all events, refer; for a description of the land sold, to the petition; but the petition forms no part of the 267] record, the exemplification of *which was offered in evidence. The statute requires a complete record to be made in all cases, both at law and in chancery, and requires the record should contain the process, return, petition, exhibits, etc.
    Here is no order for the sale of the land in dispute. It is true, there is no order for the sale of the lands in the “ petition mentioned ;” but the petition itself, forming no part of the record, it can not be told from the order of sale whether this particular land was included in the petition. If the petition did not embrace the disputed land, and pray for its sale, the court could not direct such sale.
    In Goforth v. Longworth, 4 Ohio, 129, the court say — " To sustain a sale of lands by executors or administrators, the record must show an order of sale by the court, or the sale is void.” This record shows what is called an order of sale ; but of what land ? The order says, “ of the land in the petition and appraisement mentioned.” But neither the petition or appraisement form any part of the record, and therefore it can not be ascertained what land was ordered to be sold, except by inference and argument founded upon the recitals in the order of confirmation ; and it may be said this order of confirmation cures all objection to the obscurity of the previous order, and makes certain that which before was doubtful. But the validity of the sale, according to the language of the decision in Goforth v. Longworth, depends upon the order of sale. It is that which confers authority upon the administrator — without it he had no power to act; and if he did act in its absence, the confirmation of his acts by the court can not supply his original want of authority.
    This record does not show upon its face that the court had jurisdietion to order the sale of the lands in dispute. There is, in the first place, no petition filed by the administrator for license to sell; and, what is still more important, there is nothing to show the service of process, or notice of any kind to the heirs of Falkner, the intestate. These are questions, however, it is said, with which the plaintiff, who was a purchaser at this sale, has nothing to do ; and if there be a total want *of service or notice, the objection could-only be available [268 upon certiorari. Sales by an administrator, it may be said, are governed by the same rules as sales by a sheriff on execution; and the purchaser is only bound to look to the judgment, the levy and the sale, and the judgment can not be impeached collaterally. But even if the plaintiff, in this case, claimed, as purchaser of the land, under the judgment of a court, and, in making out the evidence of his title, produced the record of a court which did not show on its face that process was served upon the defendant, the proceedings would be absolutely void — not erroneous merely, but a nullity. For without proceás, the court rendering judgment acts without having jurisdiction. It is true, as a general principle, that where a court has jurisdiction it has a right to decide every question which occurs in a cause; and whether its decision be erroneous or otherwise, its judgment, until reversed, is regarded in every other court as binding. But, if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. Elliott et al v. Peinol, 1 Peters, U. S. C. 340.
    “ This distinction runs through all the cases on the subject; and it proves that the jurisdiction of any court exercising authority over a subject may be inquired into in every court where the proceedings of the former are relied on and brought before the latter by the party claiming- the benefit of such proceedings.” 1 Peters, 340, S. C.
    In 2 McLean, 479, Lincoln v Tower, it is said : When any court is called to receive, as evidence, the record of a judgment, foreign or domestic, its form and substance must necessarily be examined. Not, it is true, as a court of errors, but to see that it is what it purports to be, the record of a judgment. And if, upon the face of such record, want of jurisdiction appears, it can not be received as evidence. It does not bind the defendant, nor can it conclude his rights.”
    The question, then, is, had the Court of Common Pleas of Franklin county, where this order of sale was made, jurisdiction *of the [20§ matter ? And this depends upon the provisions of the law in force when the proceeding to sell was commenced. The statute of 1831 (3 Chase’s Stat. 1782, sec. 31) was then in force. This law required, that where the executor or administrator applied for authority to sell real estate of his testator or intestate, his application should be by petition, to which the widow and the lawful heir or heirs, etc., should be made defendants, and that the defendants should be served with process, or otherwise notified, in the manner prescribed in chancery proceedings. In order, therefore, to give the court jurisdiction to order a sale, the parties should have had notice, either by personal service, or by process of publication.
    I am aware the Supreme Court of this state has decided, in several instances, that they will give a liberal construction to statutes authorizing the sale of real estate by executors and administrators, and that they have also said, public policy requires that all reasonable presumptions should be made in support of such sale, especially respecting matters in pais. 4 Ohio, 129. And Judge Grimke, in his opinion, in the case of St. Clair v. Morris, 9 Ohio, 18, says, the proceedings of a court of probate are strictly in rem, and not in personam. But to appreciate the force of these decisions, as applicable to the present question, reference must be had to the legislation of our state, in existence at the time the land in dispute was ordered to be sold. The case of Goforth v. Longworth, 4 Ohio, 129, was decided under the law of February, 1810, and that of St. Clair v. Morris, under the law of January 5, 1816. Neither of these statutes required that any petition should be filed by the administrator, nor that any process should be served on the heirs or next of kin to the intestate. The court of probate was required to make the order of sale, upon the representation and proofs produced by the administrator, as to the situation of the personalty. The lands of a decedent, as well as his personalty, were considered a fund in the hands of his representative for the discharge of debts, and the administrator had the power of control over both. The application to sell was granted on the exparte 270] representation of the administrator, %nd was strictly a proceeding in rem. Hence the propriety of holding that the purchaser at such sales had no concern with any thing else than the order of sale. It was that which showed the authority for the sale; and when the parchaser could produce it, it was conclusive as to the regularity of all the previous proceedings. It was conclusive of the fact, that the administrator had produced satisfactory proofs to show the necessity for the sale, and had made the proper representation to the court of the condition of the personal estate. But it was conclusive only because the statute did not require that any record should be kept of any other part of the proceedings, except the order to sell. The representation and proofs of the administrator, preliminary to the order of sale, were merely matters in pais, and were not required to appear of record.
    But under the law of 1831, 3 Chase’s Stat., ut supra, which required process upon the heirs, and the filing of a petition, the proeeeding to sell lands to pay debts, became an adversary proceeding, and in all respects assimilated itself to a proceeding in chancery. This change of the law, so salutary in itself, and designed, no doubt, to prevent the mischiefs and abuses which had resulted from the former laws, which recognized the right of the heir of a deceased person in the lands of his ancestor, and gave him the privilege of contesting the claim of the administrator to subject it to sale, made it necessary that the greater caution should be exercised in the proeeeding, and that, like all other cases in chancery or at law, a record should be made of the whole pro - eeedings.
    The application to sell was no longer a proceeding purely in rem, but became also a proceeding in personam. The person of the heir, or next of kin, must be before the court before his interests in lands descended could be forfeited. The heir held the estate descended, subject to the claims of creditors; but his right could not be divested except' in the mode pointed out by statute. This record, therefore, not showing any service upon the heir, the order to sell his land is absolutely void. For it would be a violation of all legal principle to hold that the estate and property of a person may be confiscated, without ^notice to him, and without allowing any opportunity of [271 resistance ; and, especially, where the law requires expressly that the court rendering the judgment must have the party before them. It is assuming for the orders of a court a more conclusive character than justice or reason can warrant, and is opposed to the whole current of decisions on the subject.
   Lane, C. J.

The validity of transfers of land, by virtue of legal proceedings, are frequent subjects of examination in courts of justice. The governing principle in these eases, is, that whoever assumes to exercise powers conferred by law, must first show jurisdiction over the subject

The judicial proceedings of courts of general jurisdiction, exercising the ordinary powers of chancery or of common law, are presumed to he regular, and such courts are presumed to act within the scope of their authority. Every intendment will be made to support their powers. Yet, even in the proceedings of these courts, if they transcend the limits which the law prescribes, and assume to act where they have no jurisdiction, their acts are utterly void. Borden v. Fitch, 15 Johns. 121; Mills v. Martin, 19 Johns. 33; Latham v. Edgarton, 9 Cowen, 227 ; Snyder v. Snyder, 6 Binney, 483 ; Sumner v, Parker, 7 Mass. 79 ; Smith v. Rice, 11 Mass. 507.

I do not here inquire whether the mere omission of showing jurisdiction on the record invalidates their acts, or whether such judgments, although void when viewed as the foundation of rights, may not have some efficacy when used defensively, as ground of protection; but it may well be doubted whether it is not necessary to impeach them by positive proof of a want of authority.

Tucker v. Oxley, 5 Cranch, 185 : Exparte Tobias Watkins, 3 Peters, 193,202; Voorhees and others v. Jackson, 10 Peter, 449; Wood v. Mann, 1 Sumner, 578; McCormick v. Sullivant, 10 Wheaton, 192.

But how far such judgments are void or voidable, and whether there 272] exists any difference between the law and the *chancery rules of our courts, on these points, are matters which may be settled when eases shall arise that demand it.

Neither is it necessary that I should do more than allude to proceedings in rem. Of this class are proceedings among heirs for partition.

Glover’s heirs v. Ruffin. 6 Ohio, 255 ; Pillsbury v. Dugan’s Administrator, 9 Ohio, 117.

Proceedings by guardians to sell the land of their wards. Stall v. McAlister, 9 Ohio, 19. And proceedings by administrators before 1824, to sell decedents’ lands. 7 Ohio, 201.

These have properly no parties ; the possession of the object is sufficient notice to all who have rights to assert them. The authority of the courts depends upon having the subject of their action within their control. The legislature may require or dispense with notice; but the acts of courts are valid, when they have established their jurisdiction over the thing.

Where the law confers upon courts an authority, not after the course of the common law, over property, whose owners are required to be before them as adversaries, they act'as tribunals of special and limited jurisdiction. Bend v. Susquehanna Bridge and Bank Company, 6 Harris and Johnson, 130 ; Thatcher v. Powell, 6 Wheaton, 119 ; Denning v. Corwin et al., 11 Wendell, 647 ; Smith v. Fowle et al, 12 Wendell, 9.

It is necessary that such tribunals show they act within the scope of their powers. But after jurisdiction is once acquired, however irregular or erroneous their proceedings may be, they can not be collaterally impeached , and they conclude all persons, unless annulled by certiorari or appeal. A vast body of authorities, bearing on this point, may be found collected in 3 Cowen and Hill’s Notes to Philips on Evidence, 803 ; Ludlow’s heirs v. Johnson et al., 3 Ohio, 553 ; Atkinson v. Jordan et al, 5 Ohio, 294; Glover’s heirs v. Ruffin, 6 Ohio, 255 ; Pillsbury v. Dugan’s administrator, 9 Ohio, 117 ; Stall v. McAlister, 9 Ohio, 18 ; Thompson v. Tolmie, 2 Peters, 164; Voorhees and others v. Jackson, 10 Peters, 449.

*All these cases, however, assume that the jurisdiction of the [273 court is first established ; and no attempts are made to sustain their proceedings by intendment or presumption until after this essential prerequisite. Those judges who have been most ingenious in surmounting the irregularities of such tribunals, have been careful to show how the jurisdiction was not contested.

In Voorhees and others v. Jackson, 10 Peters, 449, the judge while obviating objections to irregularities, is careful to say they do not apply “ to the jurisdiction of the court over the case, to the cause of action, or to the property attached.” So Duncan, J., in 11 Serg. and Rawle, observes, that “ the purchasers need not look to matters previous to the decree, except to the jurisdiction and the parties.” And the reports of our own state carefully notice in this class of eases, that the jurisdiction has first attached. Glover’s heirs v. Ruffin, 6 Ohio, 255 ; Pillsbury v. Dugan’s administrator, 9 Ohio, 117.

But this want of jurisdiction may always be shown, as it renders the act done void or unavailable for every purpose. Slocum v. Wheeler, 1 Conn. 429 ; Mills v. Martin, 19 Johns. 33 ; Hyde v. Stone, 9 Cowen, 230.

The case of Weyer v. Zane, 3 Ohio, 306, deserves a passing notice in this' connection. The report assumes that a judgment without process is not void, and that the proceedings of a competent and authorized court can not be so irregular as to be a nullity. We find no fault with the judgment; it was in strict accordance with law. The practice act of 1813, 2 Chase’s Stat. 795, sec. 8, provided that the sheriff might take a “judgment bond ” from a defendant to whom he had returned goods, after levy; and when amerced for not making money, he might have judgment on the bond, at the same term, without further process.' The proceeding in that ease was under this statute ; and the reporter, without adverting to these provisions, has sought to justify a sound judgment, by stretching good principles too far,

*Applying our doctrines to the ease before us, we find that the Common Pleas, exercising the powers of a court of Probate, possessed the jurisdiction of ordering the sale of the decedent’s estate, upon a petition by the administrator against the heir. The jurisdiction did not vest unless the land belonged to the decedent. Griffith v. Frazier, 8 Cranch, 9, 24 ; Moore v. Tanner’s administrator, 5 Monroe, 46. Nor unless process was served upon the heirs. Messenger v. Kenter, 4 Binny, 97 ; Smith v. Rice, 11 Mass. 507, 513 ; Procter v. Newhall, 17 Mass. 81, 91 ; In the matter of Hemiup, 2 Paige, 320 ; In the matter of Hemiup, 3 Ibid. 310 ; Hallett v. Hare, 5 Ibid. 316.

The heir has a right to be a party to the proceedings, which deprive him of his estate; and we are constrained to deny the jurisdiction of a court which attempts to proceed without him.

It will be seen that this opinion affects no proceedings except those since 1824.

Motion overruled.

Note. After the foregoing opinion was pronounced, a motion was made for a new trial, on the ground of newly discovered evidence, which, upon special circumstances in this case, affecting subsequent purchasers, was sustained, and a new trial ordered.


author: Birchard, Judge.

text:
    *William H. Marshall, for the use of H. N. Kearny v. Tolivar Thrailkill’s Executor.
    In a suit against one on a joint obligation, a co-obligor, although not sued, can not be called as a witness for the plaintiff, to prove the execution of the instrument by the defendant.
    The interest of such witness is against the defendant, for he may relieve himself of a part of the' debt by charging the defendant.
    This was an Action of Debt from Licking county, and is reversed on the following case.
    “ The jury being sworn to try the issue in this ease, the plaintiff produced a single bill purporting to be executed by one Thomas L. Marshall, and Toliver Thrailkill, the defendant’s testator, which said single bill is in the words following, to wit:
    “ ‘ $153.75. Nine months after date, we, or either of us, promise to pay W. H. Marshall the sum of one hundred and fifty-three dollars and seventy-five cents, for value received, this thirteenth day of August, 1838.
    “ ‘ Thomas L. Marshall, [seal.] his
    “ ‘ Tolivar x Thrailkill, [seal.] mark.’
    “ And called to the stand the said Marshall, one of the obligors, to prove the execution of said single bill by said Thrailkill. The counsel for defendant objected to the competency of the witness, which objection was overruled by the court, and the witness examined touching said point, reserving the question of. his competency for a motion for nonsuit, after verdict. On this question, the case is now reserved for decision in bank. If the court are of opinion that the witness was incompetent, a nonsuit to be entered; otherwise, judgment on the verdict, as of the present term.”
    *This ease was elaborately argued by Goddard and Converse, [27Í» for plaintiff, and T. Ewing, for defendant. The authorities cited, being reviewed in the opinion of the court, the arguments are omitted.
   Birchard, Judge.

All the elementary writers treat the question arising in this case, as a settled one. Philips, in his Treatise on Evidence, (vol. 4, p. 67,) states the principle thus : “ In an action on a bond, against one of several obligors, another of the obligors is competent for the plaintiff to prove the execution of the bond. So, in an action on a promissory note, by the payee against the maker, a joint maker of the note, who is not sued, is competent to prove the defendant’s signature ; for if the plaintiff recover against the defendant, the witness would be liable to him for contribution ; and, if he fail, he might resort to the witness for the whole ; and in that case the witness would be entitled to contribution from the defendant ; so that, in either point of view, the witness stands indifferent between the parties.” To sustain this text, Philips, as well as all the other elementary writers, refer to Lockhart v. Graham, 1 Str. 35 ; and York v. Blott, 5 Maule and S. 71 ; and the cases seem to sustain the doctrine, but without throwing any light upon the subject beyond what is to be gathered from the above quotation. In Blaskett v. Weir, 6 B. and Cress, 385, which was an assumpsit for goods sold, etc., to a partnership, one Gibson, who alleged that he was a partner in a yacht company, to whom the goods were delivered, was called by plaintiff and admitted as competent to prove that defendant was also a partner. Abbott, C. J., was of opinion that the interest of the witness was to defeat the plaintiff; for, in the event of his recovery, the defendant would be entitled to contribution; and that his testimony tended to bring a liability upon himself.

Bailey, Judge, reasoned in the same way; and added, “if the defendant can hereafter make out that he was not a partner, I think he may, perhaps at law, and certainly in equity, recover from the witness all that he is compelled to pay in this action.”

*Holroyd, Judge, went still further into the merits of the question, and observed, “ It has been argued, that unless the defendant were fixed with a part, the witness might be liable to pay the whole debt. But it appears to me that the defendant would have a right to recover from the witness, in an action at law, for money paid to his use, the -whole sum recovered in this action, if he could show that the witness was originally liable to pay it.

The case looks much as if the judges of the King’s Bench had met with authorities in Strange and in M. and Sel. which they were afraid to overrule, and were pressed to find reasons that would sustain them. The Chief Justice does not even attempt to show that Gilson’s interest was balanced, on the ground that the defendant might recover back the whole debt of the witness. He insists upon nothing of that kind, as showing an equilibrium of interest. Bailey, Judge, has no such opinion, unless the defendant could prove the negative of the fact to which the witness was called; and even then, he seems to doubt as to the mode of the recovery. Holroyd, Judge, thinks the whole could be recovered at law, if defendant could also show a negative. How ho could do this seems to have been a matter not entirely clear to any of them.

The eases of Greely v. Dow, 2 Metcalf, 126; 2 Hill, 131 ; 18 Johns. 456 ; 1 Pick. 118, seem to add little, if any thing, to these authorities. It may be doubted, if some of them are in point. 9 Cowen, 44, may be clearly distinguished from the one at bar. Also, 12 Vermont, 582.

Directly opposed to Blaskett v. Weir, is Marquond v. Webb, 16 Johns. 93. The original action in that ease was assumpsit, for work and labor done on a vessel, against an owner; and one Gomez, a part owner, gave material evidence against the defendant below. He was objected to as incompetent; and the question on error was brought before the'Supreme Court of New York, and the judgment reversed. Spencer, Judge, in delivering the opinion of the court, says: “ He (Gomez) was undoubtedly interested to render the burden upon himself as light as possible, and to throw it on the defendant in part. It *is true, the witness was liable to contribution; but the defend- [278 ant could never controvert, afterwards, with the witness, (in case he sued him for contribution,) that he was not a part owner of the vessel. He could not take the ground that a verdict had been recovered against Mm by the present plaintiff, wrongfully. The very basis of a suit, to be brought by Mm for contribution, must be, that he was part owner. Upon any other principle, he would be remediless. The recovery, in this 'case, would be evidence of the amount he was compelled to pay.”

In 2 Dessausure, S. C. 4 and 5, it was held that one partner was not a competent witness to prove the defendant a partner because he was interested to fix his liability.

Purveance v. Dryden, 3 Serg. and Rawle, 406 and 407, is similiar in principle. In the opinion reversing a judgment, for error in admitting such testimony, Tilghman, C. J., says : “ The effect of the witness’ evidence was to take half the burden off his own shoulders, and throw it on the defendant’s.- Tracing the consequences of his testimony to their final results, he gets rid of half the debt, to the whole of which he would otherwise be liable.”

Gibson, Judge, in the same case: “ It is true, the defendant might have an action against the witness for a contribution, in which the record of the recovery in this suit would be conclusive ; but still the witness would be a gainer, and the defendant a loser, of one-half of the sum recovered by the present plaintiff.”

To the same effect is Ripley v. Thompson and others, 12 Moore, 55, determined in the Common Bench, in 1826. Gray, a partner, was offered and rejected. Lord, C. J., Best says : “ Prima facie, Gray was the principal — the contract was with him; and if he were allowed to prove that others were jointly liable with Mm, Ms evidence would tend to exonerate himself from paying three-fourths of the debt. Parker and Barrough, justices, concurred ; and Gasellee, Judge, said : “ I am of the same opinion. In Brown v. Brown, 4 Taunt. 752, in an action against two, on a joint contract, it was held that one who had suffered judgment by default, was not admissible, as a witness ^against the other, to prove that he joined in the contract; be- [279 cause, if the plaintiff succeeded in the action, the witness would obtain, by his own testimony, contribution against the other.”

It is difficult to reconcile the English decisions with each other. It would seem that Lockhart v. Graham, and York v. Blott, are inconsistent with the later decisions referred to. This state of the authorities will, at least, show that the question before us is not devoid of interest. The doctrine, that in a suit for contribution, the record of recovery against the plaintiff is, as to certain facts, conclusive, seems to be established. It fixes him, so far as the question of his original liability is concerned; for that is a point upon which he has had his day in court. Unless, then, it be true that Thrailkill’s executrix may recover over against the witness, Marshall, the whole debt recovered in this suit by the plaintiff, the witness, Marshal, was not disinterested. What is to distinguish this case from those cited from New York, Pennsylvania, and South Carolina, and from Moore ? In those cases, the witnesses were severally partners with the defendants. As to this contract, Thrailkill and Marshall were, upon the hypothesis of plaintiff, partners, also ; that was the point to be proved. The very question in issue was, were they joint contractors ? There was no doubt that the witness himself was liable, in any event, to the plaintiff for the full amount of his claim. So, in the cases cited, were the witnesses, who were held incompetent, liable to the plaintiff for the whole demands. Let us assume the facts of this case to be as we would be bound to find them, without the testimony of the witness, Marshall. The note was executed by himself, and bound him. Thrailkill’s name and mark were attached wrongfully to the note, and did not bind him; it was, therefore, the debt of Marshall, only. Suppose it paid by Thrailkill. Before he could recover the money of Marshall, the witness, it would be incumbent upon him to show that the payment was made at Marshall’s instance and request; for no man can make another his debtor against his will. The law raises no implied promise on such a state 280] of *facts. Now, in the supposed case, the record itself would be the best evidence of which the ease would admit, to show a payment by Thrailkill to plaintiff for the use of Marshall; but when introduced, it would not show that the whole payment was made for Marshall’s use. On the contrary, it would be, as to him, conclusive evidence that a part of it was made on his own account; and, at most, would only entitle him to a contribution. Gould he get along without the record ? Not well. Lay it out of view, and he must still prove that the payment was made at the request of Marshall, express or implied ; and the ease still stands no better for him. The only act of Marshall, upon which an implied request of payment for his own use could he raised, is the very evidence given on the trial; and that, if used at all, must be taken entire, and, like the record itself, would show that but half of the demand was paid for Marshall’s use. So, take the matter any way, manage it the best way he can, and the witness, Marshall, will have the benefit of his own oath, in transferring one-ha’f of his own debt from his own shoulders on those of another. The result is inevitable ; one, at least, from which we can see no way of escape. The witness was, therefore, interested and incompetent.

Judgment, nonsuit.

Lane, C. J. dissented.


text:
    *George Gilmore v. Daniel Lewis.
    The detention, arrest, and conviction of a felon, or the discovery and return of stolen money, is, in general, a good consideration to sustain a promise of reward.
    "When the condition is complied with, he who performs it becomes the promisee; the legal interest becomes vested in him, and he has a right to cfeúm the reward.
    It is the civil duty of every individual to use exertion to effect the detection and punishment of crime; but the law imposes no obligation on the private citizen, unless called on for assistance, by its ministerial officer.
    It is an indictable offence, in public officers, to exact and receive any thing more for the performance of their legal duty than the fees allowed by statute.
    A promise to pay them extra compensation is absolutely void.
    A reward -offered for tbe apprehension of a thief, and money, can not be claimed by a constable, who arrests the thief by virtue óf a warrant delivered to him for that purpose.
    This was au Action of Assumpsit, from the county of Fairfield. The declaration, in this case, contains but a single special count, in which the plaintiff declares, that, heretofore, to wit, etc., the defendant and one Brooke, not served with process, printed, published and circulated, a certain advertisement, that their store had been broken open, and about soven hundred dollars, in money, stolen therefrom ; and, by the said handbill, or advertisement, the said defendant and tho said Brooke, under the name and style of Brooke and Lewis, did then and there promise, and undertake, to pay the sum of three hundred dollars to any person, or persons, who would apprehend the aforesaid thief and money, or two hundred dollars for the cash alone, and one hundred dollars for the thief alone.
    The plaintiff avers, that, afterwards, to wit, etc., confiding in the said promises and undertakings, he sought out. and discovered, that one James Nelson was the thief ; and,'to effect his arrest for the commission of the crime, he applied to a justice of the peace, made oath to the fact, and obtained a warrant, which was delivered to the plaintiff, he being one of the acting constables of Walnut township, in said county ; and the plaintiff, afterwards, by virtue of said warrant, ar282] rested the said ^Nelson, who was duly convicted, and the money restored to defendant and -Brooke, of which premises the defendant and Brooke had notice, and thereby became liable, and promised, etc.
    To this declaration tbe defendant demurred, generally, and asks the judgment of the court, whether the case made entitles the plaintiff to judgment.
    H. H. Hunter and H. Stanbery, in support of the demurrer.
    In behalf of the defendant, we insist, that the plaintiff is not entitled to recover upon the case made in the declaration—
    First: Because, on general principles of law, the plaintiff, being, as the declaration avers, a constable, and having made the arrest “by virtue of a warrant” placed in his hands, as such constable, to be executed, it would be against good morals, and tend to oppression and malversation in office, to allow him to recover.
    Second : Because it is made a criminal offence, by our statute, (Swan’s Stat. 242, sec. 58,) for a constable, or other judicial or ministerial officer, to ask, demand, or receive, any fee or reward, to execute or do his duty, other than such as is allowed by law.
    But, aside from the statutory provisions just referred to, the same result equally follows on general principles of law.
    .The principle is well stated in the case of Bridge v. Lage, Cro. Jac. 103, which is, perhaps, the earliest case to be found in the reports. It was an action by an under sheriff, on a promise by the defendant to pay him a reward to execute a writ of elegit. The principle is thus stated; “ That it was not any consideration to maintain the action, for the sheriff, by his duty and oath, ought to execute the writ, and, therefore, to have a promise of consideration for executing it is not lawful, as it is quasi extortion, and, therefore, ill and unlawful.”

      The same principle is laid down and more extensively discussed in Stolesbury v. Smith, 2 Burrows, 924.
    *Lord Mansfield — It is oppression to take money (by a sheriff) [283 for doing what he ought to.
    Justice Dunnson — Never saw such a demand stated in a court of justice.
    Justice Foster — It would be a great inlet to oppression, if established as legal.
    Justice Wilmot — Thought it a shameful and scandalous action. It would be a strange thing to assist him (the sheriff) in establishing a contract for which he would have been punished, if indicted, for extortion. An officer ought not to take money for doing his duty.
    In Colligan v. Brown and Halstead, 1 Cane’s N. Y. 103, the same doctrine is reviewed and discussed ; also, 13 Wend. 43.
    John T. Brazee and T. Ewing, for plaintiff, contra.
    The objection to the case made in the declaration is, that, to permit the plaintiff to recover, would invade both that principle of the common law, and that provision of our statute, prohibiting officers from taking any but legal fees for the performance of their duties. If the case made be obnoxious to this objection, we admit the demurrer to be well taken. Had the defendant, after the commission of the offense, himself discovered who the depredator was, and made complaint against him, and procured a warrant for his arrest, and delivered that warrant to the plaintiff, to be executed, as constable, and promised him a reward of $300 for its faithful execution, and had an action then been brought to recover that sum, the case would have been exposed to the objection made, and analogous, in circumstances and principle, to the different cases cited by defendant’s counsel.
    But this is not the case made. The defendant published to the world the fact that his store had been broken open, and seven hundred dollars in money stolen therefrom ; and undertook to pay any person who would apprehend the thief and money the sum of three hundred dollars. The defendant has *here used inappropriate [284 and unapt language to express his purpose and intention, although that purpose and intent is clear and obvious. The statement in the declaration shows that, at the time of the making and publishing of the advertisement, it was not known to the defendant who the depredator was. His object in making the publication was to offer a sum of money that would insure the discovery of who the thief was, his apprehension and punishment, and a return of the money stolen.

      The declaration avers, that the plaintiff, by diligent inquiry and attention, searched out and discovered that Nelson was the thief; that he then went before a justice of the peace, and made an affidavit, ac cusing him of the crime; that the justice, thereupon, issued a warrant, and delivered the same to the plaintiff, as constable, to be executed. Up to this time, it is admitted, by opposing counsels, that the plaintiff acted in pursuance of the advertisement, in hopes of legally entitling himself to the reward; that he did those things which, by law, it was not his legal duty to do, as constable. ' The warrant, however, being delivered to plaintiff, as constable, to be executed, and, infaet, executed by him, as constable, it is claimed, destroys the right of the plaintiff to recover, although it is admitted, that if the plaintiff had procured any other officer to serve the writ, and had the arrest, conviction, and return of the cash followed in the same manner, the plaintiff would have been entitled to the three hundred dollars.
    The error into which the counsel for the defendant has run, as we apprehend, is in supposing that we claim the three hundred dollars for serving or executing the writ as constable; such is certainly not the case. The plaintiff was entitled to his legal fees for the service of the writ, without any regard to the proceeding resulting in the conviction of the accused, and the return of the money. And this official act of his, in our opinion, neither makes his claim to the reward any better, or any worse, than it would have been had the same official act been done by some other official personage. This official act being done by the plaintiff was as beneficial to the defendant as though it 285] had been done by any other; and it ought not, ^therefore, to vary or change the rights of the plaintiff. The plaintiff has entitled himself to the reward, as we claim, by the acts that he has done in his individual and private capacity ; and the case mide is clearly misapprehended, in supposing that the reward is claimed by the plaintiff as additional to the legal foes for executing the warrant. Nor is there any thing in the case made, as we apprehend, against good policy and sound morals, in permitting the plaintiff to recover. It is the interest of the public, when a depredation has been committed, that the offender should be sought out and punished. It is know.n that the officers of the country are the persons, of all others in the community, whose habits of life, and whose leisure, enable them most successfully to engage in the business of searching out and detecting offenders. But should it be decided that an officer is cut out and prevented from recovering a reward, under the circumstances here existing, it is much to be feared that the incentives to the detection, and apprehension of depredators would be withdrawn from the community.
   Wood, Judge.

No doubt is entertained by us, as a general rule, that the detection, arrest, and conviction of a felon, or the discovery and seizure, or return, of stolen property, is a good consideration to sustain a promise made on such condition. When the condition is complied with, he who performs it becomes the promisee ; the contract is then complete and executed on his part; the legal interest is vested in him, and he has the right to claim the reward, as the benefit of his exertion.

So long as the administration of criminal justice is necessary to secure the peace and safety of society, such contracts should be regarded with a favorable eye, They often stimulate to exertion, where civil duty is insufficient, in obligation, to ferret out crime, hunt down the offender, and bring him to public justice. As a civil duty, every individual is bound to use reasonable exertion to effect the punishment of crime ; but the law imposes no such obligation on the private citizen, unless called upon for assistance, by its ministerial officers; and ^an offered reward is, frequently, the only hope of remuneration [286 for a meritorious service rendered to the commonwealth.

But public officers, on whom the law casts this duty, from whom it requires exertion, and to whom it affords adequate compensation, occupy different ground.

It is an indictable offence, in them, to exact and receive any thing, but what the law allows, for the performance of their legal duties. A promise to pay thorn extra compensation is absolutely void, under the statute of Ohio. Such promise could not be enforced at common law, being against sound policy, and, quasi, extortion. English judges have declared, that such claims by them are novel in courts of justice, and that actions founded on such promises are scandalous and shameful. 2 Burr. 924; and in the Court of Errors in New York they meet with no more favor. 15 Wend. 46.

While the counsel for the plaintiff does not controvert these principles, their application to the case at bar is strenuously denied. It is said the three hundred dollars is not claimed for executing the writ, as constable, by the plaintiff. For that service he was entitled to his legal fees, without any regard to the proceeding resulting in the conviction of the accused, and the return of the money, and that this official act of his neither makes his claim to the reward better or worse than it would have been, had the same official act been done by some other official personage.

But it will be seen that this view of the ease can, by no means, be sustained. It is not the case made by the declaration. The promise of the reward, as laid, is for the apprehension of the thief and money ; and this arrest of the thief, and seizure of the money, are averred to have been made by the plaintiff, by virtue of a warrant delivered to him as constable. The promise is, therefore, illegal and void. True, it is stated the plaintiff searched out the thief, and ascertained where the money was, and made the oath on which the warrant issued ; but, for this service, no promise of reward is laid. It is for the apprehension of the thief, and seizure of the money ; and as this was done in 287] virtue of his office, the plaintiff must be content *with his legal fees, and the reflection that he has done the state some service.

Demurrer sustained, and judgment for defendant.