text:
    Hays v. The Village of St. Marys.

      Municipal Corporation — Powers of — Regulation as to explosives stored in village— Validity of ordinance — Sections 8963 and 8853, Revised Statutes.

    An ordinance of a village prohibiting the storage within its limits and the transportation along its streets of dynamite or nitroglycerine in quantities larger than five quarts, being within the power conferred upon cities and'villages by section 1692, Revised Statutes, and not inconsistent with the provisions of sections 6953 or 8853-7, Revised Statutes, is valid.
    (Decided October 20, 1899.)
    Error to the Circuit Court of Auglaize County.

      George JJ. Phelps, for plaintiff in error.

      John T. Schoonover, for defendant in error.
   By the Court:

On a trial before the mayor of the village of St. Mary’s the plaintiff in error was found guilty of violating an ordinance of the village and adjudged to pay a fine of fifty dollars and the costs of prosecution. On successive petitions in error this judgment was affirmed by the court of common pleas and the circuit court. A reversal of those judgments is sought here.

No ground for such reversal is assigned except that the ordinance under which the plaintiff in error was convicted is invalid for want of power in the village council to pass. it. The substantial portion of the ordinance is as follows:

Section 1. Be it ordained by the Village Council of the Village of St. Marys, Ohio, that it shall be unlawful to store or keep in larger quantities than five quarts in any one place, any dynamite nitro-glyeerine, or other like explosives within the corporate limits of the Village of St. Marys, Ohio, or to carry, convey or transport the said explosives, or any of them, over, along or through any streets, alleys, ways oV public grounds of said village in larger quantities than five quarts in any one vehicle or conveyance.

Held: 1. The ordinance is within the power conferred upon cities and villages by sub-division . three of section sixteen hundred and ninety-two of the Revised Statutes “to prevent injury or annoyance from anything dangerous,, offensive or unwholesome, and to cause any nuisance to be abated” and sub-division fourteen of the same section “to regulate the transportation and keeping of gunpowder and other explosive and dangerous combustibles, and to provide or license magazines for the same.” White v. Kent, 11 Ohio St. 550.

2. Nor are the provisions of such ordinance inconsistent with those of sections 6953, 8853-4-5-6-7-8, of the Revised Statutes relating to the manufacture, transportation and storage of dynamite.

Judgment of the cwcuit court affirmed.


source: Caselaw Access Project

author: Minshall, J.

license: Public Domain

text:
    Thornton et al. v. Stanley.

      Will — Bequest of income to trustee for life of certain person — Bequest absolute and subject to creditors,
    Where a testator bequeathed all the net income of his estate to a trustee in trust for the education and support of a certain person for life, without other limitation: Held, that the bequest so made is an absolute one, and is subject to the claim ' of creditors.
    (Decided November 17, 1896.)
    Error to the Circuit Court of Hamilton county.

      William L. Avery, for plaintiffs in error.
    The intention of the testator is the polar star in the construction of a will and testament. Decker v. Decker, 3 Ohio, 157, 169. And in searching for that intention, regard will be had'“to the time when, and the circumstances under which, the will was ’ made.” Attorney-Gen. v. College, L. R., 4 Ch. App., 722.
    The trust created was for an infant who has since grown to be a woman, but the character of the trust has not changed. It was for an infant at the time; but it was for life, and is the same for the woman as the infant. ' Plainly, the fund, for education and support was not intended to be left to the appropriation of the infant or woman, at discretion; but was confided to the discretion of the trustee. It .was given to him. He was to have it. The written words, without punctuation as they are, leave no manner of doubt of this. Punctuated, to conform to the only possible sense, they run:
    “The said trustee and executor to have the rents, issues and interest, after deducting his compensation, taxes and charges of every description to the said Emma, for her education and support during the life of the said Emma only.”
    The development of the doctrine of spendthrift trusts, as sometimes called, or that the beneficial estate under a trust may be fettered against alienation, is peculiar to the United States. In England, such restraint is permitted in case of the separate estate of a married woman, for the reason, as given, that the estate is the creature of equity, and that equity may act upon its own creature and so modify the estate as to advance the object. Tullet v. Armstrong, 1 Beach., 22. Bub this reason, while seeming to extend as weLl to all trusts, since all are creatures of equity, has not gone further, or, at least, has not been allowed by English chancellors to go further. Brandon v. Robinson, 18 Ves., 429; Snell’s Principles of Equity, 1 Am. Ed., 333.
    In this country, however, it has been different. The policy of not permitting an interest in property to be given to be enjoyed, without at the same time being subject to the claims of the creditors, which policy influences the English rule, has been distinguished against on the ground that our registry laws furnish information of the title; and, upon principle, it has been frequently held, that the whole being out of the bounty of another, the donor, in the exercise of rights of proprietorship, may, through trust, determine the conditions of the gift, and control its enjoyment according’ to occasion. The only essential to protection against creditors is, that by the terms of the gift, the interest shall be made inalienable. But this does not need to be declared in express terms. It is a .question of intention, ascertainable like any other, from the instrument creating the trust, when construed in the light of the attendant circumstances. And that such trust was intended, in other words that the beneficial interest given was intended to be inalienable, is a necessary inference from the giving but of the right of support out of a fund, which, itself, is given to another. Nichols, Assignee, v. Eaton, 91 U. S., 716; Leavitt v. Beirne, 21 Conn., 1; Barnett v. Montgomery, 79 Ga., 726; Steib v. Whitehead, 111 Ills., 247; Pope’s Exrs. v. Elliott, 8 B. Mon., 56; Roberts v. Stevens, 84 Me., 325; Smith & Son v. Towers, 69 Md., 77; Wemyss v. White, 159 Mass., 484; Partridge v. Cavender, 96 Mo., 452; Mehaffey’s Estate, 139 Penn. St., 276; Jourolomon v. Massengill, 86 Tenn., 81; Barnes v. Dow, 59 Vt., 530; Garland v. Garland, 87 Va., 758.
    The effect of the cases is to ‘ ‘pat an equitable cestui que trust upon the same footing, as a married woman, under the English decisions.” Wemyss v. White, 159 Mass., 485.

      Hobbs v. Smith, 15 Ohio St., 419, sometimes cited, has, it is submitted, no relation to the point involved; nor has Anderson v. Cary, 36 Ohio St., 596. Both were eases of the devise of an absolute interest or ownership.
    The only question is of the conditions of the trust. In the analogous ease of a married woman, the whole current of authority holds that no particular form of words is necessary. Such restraint is implied when a different interpretation would defeat the purpose of the donor. Baker v. Bradley, 7 De. G. M. & G., 595; 1 Lead. Cas. Eq. (4 Am. Ed.), 748.
    Ordinarily if a trust be to pay over to the beneficiary, the power of the beneficiary to assign is not repugnant to it, in the absence, at least, within the cases cited, of some such words implying restraint upon anticipation, as “to the beneficiary’s own hands.” And although to the beneficiary “for education and support,” it is the same; for the fund will be left to be expended by the beneficiary, and the trust therefore would not exclude the absolute property and. right of disposition.
    Upon the other hand, if not to be paid over to the beneficiary, but to be expended by the trustee, the case would be different. The difference would be in the expenditure being a duty of. the trust, no more to be diverted out of the hands of the trus tee, or the trustee to be divested of it, by act of the beneficiary, than by act of any stranger.
    The cases and text books are in accord upon this distinction. Henson v. Wright, 88 Tenn., 502; Leavitt v. Beirne, 21 Conn., 1; Perry on Trusts, 386, and cases already cited.
    The decision of the circuit court was upon the ground that it was not left to the discretion of the trustee to determine the sum for education and support, but that the whole income was made applicable.
    That this was a mistaken distinction is submitted, upon the rule of decision from above citations. In the nature of the trust there could be no difference, so far at least as the duty of application to education and support were concerned, whether the trust fixed the amount, or left it to be fixed by the trustee. Of course, if the discretion of the trustee were absolute, whether to appropriate anything or nothing, the case would be good, even under the English rule. Twopeney v. Peyton, 10 Sim., 487, 490; Holmes v. Penney, 3 K. & J., 90, 104. Such case would exclude any interest in the beneficiary, or, at least, any that could he enforced; and as the trustee could withhold from the beneficiary, he could of course, likewise, from the assignee or creditor of the beneficiary.
    This is illustrated with much pertinency, by comparing Slattery v. Wason, 151 Mass., 266, the only case cited by the circuit court, with the very recent case, decided since the circuit court’s decision, Wemyss v. White, 159 Mass., 484.
    Argument indeed would be unnecessary, but for the lingering influence of the English rule, that the amount under'a trust for education and support must be left to the discretion of the trustee; otherwise, that if fixed by the donor of the trust, without express words against alienation, it may be diverted and subjected by general creditors.

      Scott Bonham, for defendant in error.
    Under the terms of. the will the beneficiary, Emma C. Thornton, was entitled to the sum of at least $300 per year from the estate of Stephen Clark, in the hands of the trustee, C. C. Murdock, and not merely to such sum as in the judgment of the trustee is needed for her education and support, the testator directing that if the clear or net income did not amount to $300, enough of the principal should be appropriated each year to make that sum. There is not even the break of punctuation mark or capital letter between this proviso and that directing the payment of rents, issues and profits for her education and support. The trustee had no discretion. Gillen v. Kimball, 34 O. S., 364.
    The interest to be used as she may need means as she may desire. Maynard v. Cleaves, 149 Mass. 307. Sparhawk v. Cloon, 125 Mass., 263.

      A testatrix devised all her property to a trustee for the sole use and support of her husband. Held, that he took an equitable fee which he might alienate and apply to payment of debts. Sears v. Choate, 146 Mass., 395.
    The words, “to be for her comfortand support,” at most express the motive and purpose of the gift, but cannot be held to make the gift conditional. * * * The executor has no right to withhold any part of it on the ground that she does not need the whole for her comfort and support. She has an absolute estate in the income, which she can alienate, and which can be reached by her creditors. Slattery v. Wason, 151 Mass., 268.
    When the whole income or a definite sum is given to the beneficiary for his support, the whole belongs to him, and is to be applied by him at his discretion, and the expression of the purpose for which it is given is not deemed to be the expression of an intention that the right to secure it shall not be alienable.
    See also Pope’s Exr. v. Elliott, 8 B. Mo., 65, distinguishing case at bar “from a devise of specific property in trust to apply the proceeds or profits to his support. ’ ’
    And though the statutes of Illinois (see Hurd’s Rev. St. Ills., 195, Chancery Practice Act, §49 ch. 22) provide that a creditor’s bill may reach property held in trust, “except where such trust has in good faith been created by, or the fund so held in.trust has proceeded from, some person other than the defendant himself.” 111 Illinois, 249.

      Hunter, Admr., v. Steenbridge, 12 Ga., 192, held that a testator used the word.“allow” to express his intention.

      There is no limitation in the will on the beneficiary’s right to alien, assign or charge said sum with the payment of her debts.
    And not even in those courts where the so-called doctrine of “spendthrift trusts” is recognized, would the trust created by Stephen Clark’s will be held to be such a trust; but the rents, issues and profits under this will would be subject to the debts of Emma C. Thornton. Roberts v. Stevens, 84 Maine, 326. Maynard v. Gleaves, 149 Mass., 308. Broadway Bank v. Adams, 133 Mass., 170.
    King’s Estate, 177 Pa. Stat., 411, affirming case from Philadelphia Orphan’s court, 47 Legal Intelligencer, 455, in which “the trust was to pay the income to the testator’s wife for life upon her sole and separate receipt or order in writing, to be from time to time and not by anticipation, given,” held not a spendthrift trust; citing also Hahn v. Hutchinson, 159 Pa. Stat., 133, and McConnell v. Wright, 150 Pa. Stat., 275, with approval.
    Mehaffey’s Estate, 139 Pa. Stat., 276, holds that “apt words” must be used to create such a trust.
    It will be found that in the entire line of Maine, Massachusetts, Pennsylvania, Virginia, or other cases, peculiar forms of expression by testator are used, which convey with certainty his intention to make the trust free from liability for beneficiary’s debt.
    But were there a limitation in the will of Stephen Clark on the beneficiary’s right to charge the trust with her debts, or were there any circumstances from which the conclusion must be reached that Stephen Clark intended that the trust should not be liable to the debts of Emma C. Thornton, still under the rule of English decisions and that of the majority of our American State courts, the net income devised in the will to Emma C. Thornton would be subject to her debts. Bierce v. Bierce, 41 O. S., 256.
    The policy of Ohio law is unfavorable to entails. Is it not also so unfavorable to provisions “tying’ ’ up property, that it will not by liberal construction create such limitations? Drake et al. v. Rogers, 13 O. S., 29.
    In the absence of legislative enactments and as auxiliary to, and for the enforcement of such enactment and so far as the reason of its rules remained applicable to our condition and circumstances as a people, the common law of England has always been received and accepted as the common law of this state. Hobbs v. Smith, 15 O. S., 424. Anderson v. Cary, 36 Ohio St., 517.
    Your intention is called to a decision of the Cincinnati superior court in general term, by Justices Spencer, Gholson and Storer, in 1855, found in 2 Handy, 79. This decision is in record with the rule of the English cases and of most of the American cases where the question has arisen. Brandon v. Robinson, 18 Vesey, 429. Rochford v. Hare, 9 Hare, 480. Graves v. Dolphin, 1 Simmons, 66. Tillinghast v. Bradford, 5 R. I., 205. Dick v. Pitchford, 1 Dev. & Bat. Eq., 480. Pace v. Pace, 73 N. C., 119. Heath v. Bishop, 4 Rich. Eq., 46. Kemper v. McWhorter, 56 Ga., 183. Ringley v. Robinson, 10 Ala., 702. James v. Reese, 65 Ala., 134. Spinde v. Shreve, 111 U. S., 546. Nichols v. Levy, 5 Wallace, 441.
    Surely the obiter dicta of Nichols v. Eaton, 81 U. S., 716, did not overrule Nichols v. Levy, 5 Wallace, 441.
   Minshall, J.

The suit below was an action commenced by A. Stanley against Emma C. Thornton and Charles C. Murdock, her trustee, under the will of Stephen Clark, deceased, to subject money in his hands to the payment of a judgment he had recovered against her, and on which execution had been issued and returned unsatisfied for the want of property whereon to levy. The case was appealed to the circuit court, where judgment was rendered in favor, of the plaintiff. The only question in the case is, whether the provision made for Emma C. Thornton in the will of Stephen Clark is subject to the claims of creditors — she being the person therein named as “Emma, the natural child of Mary Maiden.”

•The provision of the will is as follows :

“I, Stephen Clark, do hereby dispose of all my property, real and personal, by this, my will — to the Hon. C. C. Murdock, in trust, and as executor herein for Emma, the natural child of Mary Maiden or Mary Craid, now residing in Covington, Kentucky. The said trustee and executor to have the rents, issues and interests after deducting his compensation, taxes and charges.of every descrip- ' tion, to the said Emma, for her education and support during the life of the said Emma only, and if the clear income should not amount to three hundred dollars per year for the said Emma, enough of the principal' to be appropriated to make up three hundred dollars for her per year, and if the said Emma should die leaving lineal descendants of her blood, near or remote, natural or legitimate. Then said property to be delivered to said descendants in the order of the statute of descents and in fee. ”

It will be observed that the testator gives all his property to his trustee, upon the express trust, however, that the net income shall go to the child, Emma, during her life, for her support and education. The purpose named, however, is not a limitation upon the gift itself. It only expresses the motive of the gift. No discretion is given the trustee as to the amount he may so apply. It is all the income, after deducting the expenses and a reasonable compensation to himself. Whilst, under the rule that is admitted to prevail in England, such a bequest might be aliened, and would, without doubt, be subject to the claims of creditors, it is claimed that under the rule that prevails in Massachusetts and many of the other states, such is not the case. This rule permits a testator, through the agency of a. trustee, to make a bequest in such wise as to preclude the claims of creditors against the beneficiary, where the purpose is clear]y expressed, on the ground that a testator has the right to dispose of his property as he sees fit; and may, therefore, so limit a bequest as to protect it from the claims of creditors against an improvident beneficiary. Whether this is so in Ohio, need not be determined, for, as shown, it is clear that the provision in the will of Stephen Clark in favor of the natural child of Mary Maiden manifests no such intention.

It is said, by Morton, C. J., in Sears v. Choate, 146 Mass., 395 ‘This court has held that the founder of a trust may give an equitable life tenant a qualified estate in income which he cannot alienate and which his creditors cannot reach.” Broadway National Bank v. Adams, 133 Mass., 170. But in order to give such a qualified estate, instead of an absolute one, the language of the founder must be clear and unequivocal to that effect. And observing that, in the will then in question, “there is no limitation over of the estate in any contingency to any other person; there is no discretion given to the trustees, and there is no provision that the income of the estate shall not be alienable by the plaintiff or attachable by his creditors,” said, “it cannot be doubted that under this will plaintiff took an equitable estate which he might alienate, and which equity would apply to the payment of his debts.” Citing Sparhawk v. Gloom, 125 Mass., 263.

The claim that the bequest in this ease is a limited one, is founded solely on the fact that it was given for the education and support of the beneficiary. But, in Slattery v. Wasson, 151 Mass., 268, it is said by Allen, J.: “When the whole income or a definite sum is given to the beneficiary for his support, the whole belongs to him, and is to be applied by him at his discretion, and the expression of the purpose for which it is given is not deemed to be the expression of an intention that the right to secure it shall not be inalienable; but when the right is for a support out of a fund which is given to another, the right is in its nature inalienable, and the intention of the donor that it shall not be aliénated is presumed.” Taking this to be a fair expression of the rule and its limitations in Massachusetts, where it has apparently received its widest application, the bequest in question must be-regarded as an absolute one. As before observed, the net income is all given to the beneficiary for her education and support, not such sum as may be allowed by the trustee or by him thought necessary; nor is it a support out 'of a particular fund given to another, for here, to her, is given the whole fund, the net income from the testator’s estate. For a statement of the doctrine of the English Chancery, and adopted in many states of the Union, see Perry on Trusts, section 386, and notes; and for the qualified doctrine of some of the states, section 386« and notes of the same work.

We therefore think it is subject to the claim of creditors, and

The judgment is-affirmed.


author: Shauck, J.

text:
    Hale v. The State.

      Contempt of court — Power to punish inherent m court — General Assembly without authority to abridge such power of the court— Sections 6906 and 6907, Rev. Stat. — Removing witness to prevent appearance, contempt of court.

    1. The general assembly is without authority to abridge the power of a court created by the constitution to punish con-tempts summarily, such power being inherent and necessary to the exercise of judicial functions ; and sections 6906 and 6907 Revised Statutes will not be so construed as to impute to the general assembly an intention to abridge such power.
    2. Removing a witness from the county of his residence where he is under subpoena to attend upon the trial of a cause pending, with the purpose and effect of preventing his appearance upon the dayof trial, being ¿wrongful act which obstructs the admistration of justice, is a contempt of court. Baldwin v. The State, 11 Ohio St., 681, overruled.
    (Decided November 17, 1896.)
    Error to the Circuit Court of Jackson county.
    The plaintiff in error seeks a reversal of the judgment of the circuit court affirming a judgment of the common pleas court of Jackson county, finding him guilty upon an information for contempt of court, and adjudging him to pay a fine of five hundred dollars and the costs of prosecution. The information charged, in substance, that on the 28th of November, 1893 a witness named was under subpoena to appear before said court at its session on December 1, 1893, to testify upon the trial of an indictment charging Hale with a felony; that the accused knowing that said witness was under subpoena and that she would be a material witness against him on the trial of said indictment, by promising to pay her expenses, and other promises, induced her to leave said county and did take her from the county and beyond the reach of the process of said court, thereby preventing the appearance of said witness at said trial and obstructing the administration of justice.
    On Hale’s plea of not guilty, the evidence was heard by the court, and the accused found guilty. His motions for a new trial and in arrest of judgment were overruled. The latter motion challenged the jurisdiction of the court and the sufficiency of the information.

      Elmer O. Poioell, for plaintiff in error.

      John W. Higgins, and John T. Moore, for defendant in error.
   Shauck, J.

The case submitted to us concedes that the evidence produced in the court of common pleas established the allegations of the information. The question of law presented by the record herd is whether that court erred in overruling the motion in arrest of judgment, which challenged the sufficiency of the information and the jurisdiction of the court to try the accused summarily.

We do not understand counsel for the plaintiff in error to deny either that the act charged was a contempt at common law or that the court may punish summarily any act which, under the statute, is a contempt of court.

Their contention is that it is within the authority of the legislature to abridge the power of courts in this regard, and that such authority has been exercised in the enactment of sections 6906 and 6907 of the Revised Statutes, which make certain acts, formerly punishable as contempts, punishable by indictment as “offenses against public justice.” The former section provides for the punishment of persons who, in the manner pointed out, evaae the service of subpoenas or refuse to appear and testify after service. It contains the express provision that “this section shall not prevent summary proceedings for contempt.” The latter section provides for the punishment of persons who “corruptly, or by threats of force, endeavor to influence, intimidate, or impede, any juror, or witness * * * in the discharge of his duty, etc.; ” and it is not by any express provision made cumulative to summary proceedings for contempt. It is said that the actual removal of the witness from the jurisdiction of the court which this information charges, is wholly comprehended within the attempt to influence to which the statute affixes a penalty; and that from the omission of words making the section cumulative to summary proceedings for contempt, it results that it is exclusive of such proceedings.

However justifiable this inference might be, if a proper view comprehended the provisions of the statute alone, it will, according to a familiar rule, be a sufficient reason for rejecting it, if it leads to such an interpretation of the statute as would impute to the general assembly an intention to exercise power which it does not possess.

The difference between the jurisdiction of courts and their inherent powers is too important to be overlooked. In constitutional governments their jurisdiction is conferred by the provisions of the constitutions and of statutes enacted in the- exercise of legislative authority. That; however, is not true with respect to such powers as are necessary to the orderly and efficient exercise of jurisdiction. Such powers, from both their nature and their ancient exercise, must be regarded as inherent. They do not depend upon express constitutional grant, nor in any sense upon the legislative will. The power to maintain order, to secure the attendance of witnesses to the end that the rights . of parties may be ascertained, and to enforce process to the end that effect may be given to judgments, must inhere in every court or the purpose of its creation fails. Without such power no other could be exercised.

When constitutional governments were established upon this continent there was general familiarity with the course of judicial proceedings in the administraton of the common law. .This power had long been exercised by courts as inherent. It was within every conception of a judicial court. The view of the question, then, generally taken, was stated by Chief Justice McKean, in 1788: “Not only my brethern and myself, but, likewise, f all the judges of England think that without this power no court could possibly exist; nay, that no contempt could, indeed, be committed against us, we should be so truly contemptible. The law upon this subject is of immemorial antiquity; and there is not any period when it can be said to have ceased or discontinued. ” Res publica v. Oswald, 1 Dallas Pa.) 343. The power, therefore, arose upon the creation of a court because it was implied in every conception of a court.

A people does not lose majesty by achieving liberty. The powers of government are the same, whatever may be the form. Here, the people possessing all governmental power, adopted constitutions completely distributing it to appropriate departments. They created courts, and, in some instances, authorized the legislatures to create others. The courts so created and authorized have all the powers which are necessary to their efficient action, or embraced within their commonly received definition. The power in question was lodged permanently in the courts to be exercised by those who, for the time being, may be charged with the performance of judicial duties. But judges may not remain in office and resign their functions. The suggestion that this power may be abused raises no doubt as to its existence. In the Virginia convention, assembled to .‘adopt or reject the proposed federal constitution, John Marshall answered this suggestion, and anticipated every occasion upon which it may be urged: “All delegated power is liable to be. abused. Arguments drawn from that source go in direct opposition to all government, and in recommendation of anarchy. ” In making the constitutional distribution of the powers of government, the people assumed that the several departments would be •equally careful to use the powers granted for the public good alone. Accordingly we have the familiar and generally accepted doctrine that none of the several departments are subordinate, but that all are co-ordinate. It is not, therefore, within the discretion of the judicial department to refuse to enforce a criminal • statute because to it the prohibited act may seem innocent or the prescribed penalty excessive. The power of commitment for contempt has long been regarded as inherent in legislative bodies. It is not expressly granted. If it were not inherent it could not .be created by the act of the legislature itself. The existence of that power was recognized by this court in Ex parte Dalton, 44 Ohio St. 142. The power we now assert is co-relative of that which was there recog-' nized. That it is not contempt for the legislature to abridge the power of courts to punish summarily such wrongful acts as obstruct the administration of justice has been held in well-considered cases. The conclusion is a necessary inference from the very numerous cases in which it has been held that the power inheres in courts independently of legislative authority. A power which the legislature does not give, it cannot take away. If power, disting’uished from jurisdiction, exists independently of legislation, it will continue to exist notwithstanding legislation.

Prom the numerous cases sustaining these views, the following are selected because of their elaborate review of the authorities or their clear and vigorous statement of the principles involved. State v. Frew & Hart, 24 W. Va. 416; Little v. State, 90 Ind., 338; Yates v. Lansing, 5 Johns, 282; State v. Morrill, 16 Ark., 384; Arnold v. The Commonwealth, 30, Ky., 300; People v. Wilson, 64 Ills., 195; In re Wooley, 11 Ky., 95; United States v. Hudson Goodwin, 7 Cranch, 32; Watson v. Williams,

36 Miss., 331; Darby's Case, 3 Wheeler’s Crim. Cases, 1; Neel v. State, 4 Eng. 259; State v. Matthews, 37 N. H., 450; Cartright's Case, 114 Mass. 230. In the case before us, a court, created by the constitution punished summarily, as for a contempt, one guilty of a wrongful act which, interfered, with the exercise of .its jurisdiction. Upon a careful examination of the reported cases we find but one which seems to deny its power to do so. We are not concerned with eases which hold- that the power may be exercised by courts or legislative bodies only when they are proceeding within the sphere of duty when the alleged contempt is committed. However clear it may seem from a consideration of the principles involved that the authority conferred by the constitution upon the legislature to create additional courts, has reference only to courts with all the attributes and inherent powers that are requisite to the efficient performance of judicial duties, we are not now concerned with any reported case which holds that the legislature may create a judicial tribunal without power to enforce respect for its sessions ,its writs or its process.

We are mindful that in reviewing the judgment of the circuit court in this case, we are exercising jurisdiction conferred by the statute, as was the circuit court when it reviewed the judgment of the court of common pleas. This we do without doubt as to the validity of the statute which authorizes the review. It does not in any manner, or to any degree limit the power of the judicial department of the government of the state. Its object is to diminish as much as may be the liability of the power to abuse, but without assuming a revisory authority in another department.

The sections of the statute considered do not in terms seek to limit the judicial power considered, and it would be indecorous to place such construction upon them as would impute to the general assembly either ignorance of the limitations upon its authority or a purpose to transcend them. We conclude that the insertion of the provision in section 6906, making its provisions cumulative to summary proceeding’s for contempt, was not necessary to that end, and that its omission from section 607 is not significant.

In Baldwin v. The State, 11 Ohio St., 681, without statement of reason or citation of authority, a conclusion is announced apparently in conflict with the views here expressed. That case is overruled.

Judgment affirmed.

Minshall J., dissents.


author: Spear, J.

text:
    The Toledo Commercial Company v. The Glen Manufacturing Company.

      Foreign stock corporations — Attempting to do business in this state — Requirements for certificate from Secretary of State— Requirements do not apply to mere sale of goods by traveling agent.

    ■The act of May 19, 1894,' (91 Ohio Laws, 355-6), which provides, ‘•that no foreign stock corporation, other than a banking and insurance corporation, shall do business in this state without first having procured from the secretary of state a certificate that it has complied with all the requirements of law to authorize it to do business in this state,” etc., and that no such ‘ ‘corporation doing business in this state with, out such certificate, shall maintain any action in this -state upon any contract made by it in this state until it shall have procured such certificate,”, etc., does not apply to a foreign corporation whose business within the state consists merely of selling through traveling agents, and delivering goods manufacttired outside of the state.
    (Decided November 17, 1896.)
    Error to the Circuit Court of Lucas county.
    The petition declared upon an account for two bills of paper sold by the Manufacturing Company, a Massachusetts corporation, having its home office and principal place of business at Boston, to the Commercial Company, .an Ohio corporation. By its answer the defendant company set up that the paper was sold and delivered at Toledo, Ohio, and that all transactions and negotiations respecting the matter were carried on at that place. Also, in substance, alleged that the plaintiff company had not complied with the requirements of the statute giving foreign corporations authority to do business in Ohio, but was doing business in the state m violation of law, and was without power to maintain the action.
    A demurrer to this answer was sustained by the common pleas, and defendant not desiring to further plead, a judgment was rendered for the amount of plaintiff’s claim, which judgment was affirmed by the circuit court. • To reverse these judgments the present proceeding' in error is brought.

      Hamilton <& Kirby, for plaintiff in error.

      Potter <& Emory, for defendant in error.
   Spear, J.

The question arising upon the record is whether or not the facts, appearing by petition and answer, bring the case within the operation of the act of May 19,1894,(91 Ohio Laws, 355-6), which provides that no foreign stock corporation other than banking and insurance shall do business in this state without procuring from the secretary .of state a certificate that it has complied'.with all the requirements of law to authorize it to do business in this state. No such foreign stock corporation doing business in this state without such certificate, shall maintain any action in this state upon any contract made by it in this' state until it shall have procured such certificate. Then follow certain requisites which the .statute requires of foreign stock corporations before such certificates shall be issued, viz: The filing with the secretary of state of a sworn copy of its charter or certificate of incorporation and a statement under its corporate seal stating the amount of its capital stock, the business or objects of the corporation which it is engaged in or proposes to engage in within this state, and the place within this state which is to be its principal place of business, and designating in the manner prescribed in the code, a person upon whom process against such corporation may be served within the state.

It may be remarked, in passing, that the allegation in the answer that the plaintiff company was doing business in this state cannot aid the pleading, unless it can be shown that the performing of any act in the nature of a business transaction in the state is a doing of business against the terms of the statute. No fact is stated which will assist the court in determining whether the claim was true as applied to the contention of the parties here, and unless every business act in the state is forbidden without such certificate having first been obtained, it is but the statement of a legal conclusion. It is tó be further noted that there is no averment in the answer that the goods were manufactured in the state of Ohio, and, in the absence of such averment, the natural inference would be that they were manufactured in the state of Massachusetts, inasmuch as the petition shows that the plaintiff company is a corporation of that state, having its principal place of business in Boston.

The question, therefore, is : Is the sale and delivery, within the state of Ohio, by a corporation of another state, of goods manufactured without the state of Ohio, the “doing of business” in this state within the meaning of the statute?

It is contended by plaintiff in error that, as held in Telegraph Co. v. Mayer, 28 Ohio St. 521:’ “Foreign corporations can exercise none of their franchises or powers within this state except by comity or legislative consent. That consent may be upon such terms and conditions as the general assembly under its legislative power may interpose.” And further that, under the facts, there, is no question of interstate commerce involved, because the sales and delivery were at Toledo, Ohio; and a clear case is thus made of a foreign corporation undertaking to maintain, without having complied with the terms of the statute, an action which the statute permits only upon the condition precedent of a compliance with its terms.

The general proposition announced in the Mayer case is established law. But it is there applied to facts which admittedly showed that the telegraph company was the owner of lines of telegraph in Ohio, maintaining offices and transacting as fully as in the state where incorporated (New York), a general telegraph business, and the question involved was whether such a corporation could be required to pay a tax on gross receipts in Ohio of its telegraph lines, which transactions were clearly an exercise of corporate franchises and powers. The decision fails to cover the case before us.

In arriving at the meaning of the statute, it is the duty of the court to avoid, if practicable, giving to it such construction as will render it void or inoperative. •

Whatever view might have been entertained, if the question with respect to interstate commerce were an open one, it is now, as applied to facts like those in the case at bar, settled, that the attempt to forbid sales of this character is an interference with interstate commerce, and is beyond the power of the legislatures of the several states. The holdings are numerous that it ,is the right of persons and of corporations residing in one state to contract and sell their commodities in another, unrestrained except where restraint is justified under the police power. This rule does not deny the right of any state to impose conditions upon the power of foreign corporations to establish themselves within its boundaries for the performance generally of their business, involving the exercise of corporate franchises and powers, but does hold that the selling through traveling agents and delivering of goods manufactured outside of the state; does not fall directly within the purview of their corporate powers. The pertinent provision of the federal constitution is that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states” and that instrument gives to congress power ‘ ‘ to regulate commerce ' * * * among the several states. ” The distinction to be noted is that the sale and delivery of merchandise is a right possessed in common by all the citizens of the state; the exerci.se of corporate franchises and powers, is not — it is a special privilege conferred only on corporations. And the sale and delivery in one state of goods manufactured in another state, by a citizen of that state, is interstate commence. Amid a score of authorities it is sufficient to cite Cooper Manuf'g Co. v. Ferguson, 113 U. S. 727; Robbins v. Shelby County, etc., 120 U. S. 489; Horn Silver Mining Co. v. New York, 143 U. S. 314; Brennan v. Titusville, 153 U. S. 289, and Coit v. Sutton, 102 Mich. 324. The decisions of the Supreme Court of the United States are controlling. They forbid the exercise by the legislature of the power claimed by the plaintiff in error, and hence its construction of the statute cannot be maintained, because it would result in a conflict upon a question, as to which question the authority of the general government is paramount to the governments of the states.

But if it were determined that the power exists, do the terms of the act bear the construction contended for? The act requires, on the part of a foreign corporation, a showing of its condition, its capital stock, the business it proposes to engage in within the state, and the designation of a place as a principal place of business, and of a person upon whom process against it may be served, and such- person must have an office at the principal place of business. He is given authority to maintain actions in the courts of the state. And where the agent dies or resigns, the corporation is required, within thirty days, to appoint another. For the certificate of the secretary of state, a fee is to be paid, from $15 to $50, according to amount of capital stock

Why should all this machinery be necessary in case of the sale and delivery of. .g-oods ? Of what importance is it to know the amount of capital stock in order to permit the sale? Why is a principal place of business of consequence when the business may be only one sale ? Why require a general agent and an office in a specified place when the sale is to be made by an itinerant agent anywhere in the state? Do not these provisions imply that the purpose of the act is exactly what is stated in the title, viz: “An act to regulate foreign stock corporations?” And does this not mean their regulation in respect of their exercise of corporate franchises and powers?

The provisions of the law'are not, as it seems to us, consistent with an intent to interfere with the enjoyment by corporations of other states of the ordinary privileges enjoyed, as matter of right, by .citizens of the states generally, and hence the act does not apply to sales and delivery of goods such as are shown by the record in this case.

A point is made that, for all'that appears in the answer, the Glen Company may be a banking or insurance corporation. It is not worth while to take time to discuss this, for it is not pretended that it is such corporation, and an amendment would easily cure that defect, were the answer otherwise sufficient.

An act is found in -the volume of Ohio Laws, heretofore cited, at page 272, relating- to the regulation of foreign corporations doing business in this state. But this act is not relied upon by plaintiff in error, and its bearing upon this case is not, for that reason, here considered.

Judgment affirmed.


author: Burket J.

text:
    The State ex rel. Bateman et al. v. Bode et al.

      Candidate's name'on ballot more than once — Validity of act of April 17,1896 — Constitutional' law.

    The act of April 17th, 1896, 92 O. L. 185, which prohibits the name of any candidate for office from being placed upon the official ballot more than once, is a valid law.
    (Decided November 17, 1896.)
    Mandamus.
    The defendants constitute the Board of Elections of Hamilton county, and are ex-officio deputy state supervisors of elections in said county. The proceeding is a petition in mandamus to compel said board to place the names of Alexander B. Huston and Alfred B. Benedict upon both the “Democratic Judicial Ticket,” and upon the “Lawyers’ Judicial Ticket,” said two persons having been duly nominated by the parties representing both 'of said tickets. The board refused to place said names upon both tickets, but offered to place them upon such tickets as the persons might respectively designate, and upon failure to so designate, to place them upon the democratic ticket, as that nomination was first certified to the board.

      E. W. Kittn-edge, L. 0. Black and William Worthington,, for relators.
    The constitution, second section, first article, declares that “government is instituted for the equal protection and benefit of the people.”
    The court has recently denounced the law placing an unequal tax upon inheritances, as being in violation of this section. And, in the same volume, it denounced a law imposing a burden upon a certain class of litigants, for violating the same provision. (53 Ohio St., 12, 314.)
    Equality of right in the exercise of the elective franchise is not less important, nor less secured by this article of the bill of rights, than equality of right to exemption from an unequal tax, or from a partial imposition of costs in the course of the administration of justice.
    The second section of the fifth article of the constitution provides that
    “All elections shall be by ballot.”
    'When we come to the question as a practical question whether this law of 1896 does deprive the class of voters who shall nominate and desire to vote for an independent or selected ticket of equality of right, there can be little difficulty in answering that it does, if we regard our common knowledge of men and of the methods of voting.
    The consideration which must, of necessity, in the great majority, of cases, determine 'the elector’s choice, is knowledge of who has selected and indorsed the several candidates for whom he is called upon to vote. ,
    A law which provides for furnishing information to one party, upon the ballots themselves of this controlling fact, and denies the same means to another class; and a law which enables the former class to vote by a single mark for all the candidates of their choice, thus determined, and denies this privilege to another class, denies equality of right in the exercises of the elective franchise. Fisher v. Dudley, 74 Md., 246.
    It is clear from the reported decisions of this court, that any act which is passed to regulate suffrage, or its exercise, must be reasonable, and
      impartial. The test to be applied is stated with great simplicity and clearness by Judge Welsh, in the case of Monroe v. Collins, 17 Ohio St., 691.
    The state of Ohio has taken away the right formerly given to electors to prepare and deposit their own tickets in such form as seemed to them best. It was this “ticket” which was in the minds of the members of the convention when they declare that “all elections shall be by ballot.” Under the present law, the state undertakes to prepare one ballot, upon which all “tickets” are printed. And not only this, it undertakes to preserve as an entirety each ticket, and to advise the elector by whom each ticket has been nominated or proposed; and to allow ' each elector to cast a straight ballot, as he had done before.

      August 11. Bode, for defendants.
    It is claimed by the plaintiffs that the provisions of said act are in violation of section 1, article 5, of the constitution quoted above.
    When the power of the general assembly is drawn into question, the proper inquiry is, whether such an exercise of legislative power is clearly prohibited by the constitution.
    The grant of power being general, the question is as to the existence of a limitation arising from special prohibition.
    Such prohibition must either be found in express terms, or be clearly inferable by necessary implication from the language of the instrument, when fairly construed according to its manifest spirit and 'meaning. Lehman v. McBride, 15 Ohio St., 592; Cass v. Dillon, 2 Ohio St., 607; Evans v. Dudley, 1 Ohio St., 437.

      Section 1, art. 10, of the constitution provides that “The general assembly shall provide by law for the election of such county and township officers as may be necessary.” Capen v. Foster, 12 Pick., 485; Monroe v. Collins, 17 Ohio, 665; Daggett v. Hudson, 43 Ohio St., 548.
    The constitution simply provides that all elections shall be by ballot and conducted in a manner as the g’eneral assembly shall provide by law, and that a qualified elector shall be entitled to vote at all elections. This very general power leaves all the details regarding the manner and mode of holding and conducting elections — with the above exceptions — to legislative discretion. Lehman v. McBride, 15 Ohio St., 573. Cooley, Const. Lim., § 602. Paine, Elections, § 301.
    In order to condemn a statute as unconstitutional, as in conflict with fundamental law, a clear' and substantial conflict must be found to exist. People v. Morris, 80 Mich., 637.
    There is no attempt to divest any elector of his constitutional right; no new qualifications to his right to vote are added. Nothing is put in his way which would prevent him, or render it more difficult to vote for the candidate of his choice.
    There is no possibility in this law, as there was in the old registration law, that a voter might lose his vote for a particular candidate by reason of absence, physical disability, etc., except by his own default and negligence. Simpson v. Osborn, 25 Kan., 329; Miller v. Pennoyer, 23 Ore., 364.
    The same proof is required in Michigan as in Ohio to find a statute unconstitutional (8 Mich., 637), and the same authority is the acknowledged polar star of the Michigan court, viz: Caden v.
      Foster, Vide Atty. Gen. v. Detroit, 78 Mich., 545; Com. Council v. Bush, 82 Mich., 532.
    Having undertaken this task, the state must carry out its work so as to favor none, and to give to all equal rights. It cannot -facilitate a straight vote for one elector and forbid or embarrass it to another. It must give each elector the same right to have his own party ticket printed upon the state ballot, or else allow him to print his party ticket himself. Parties have a strong hold upon the affections of electors. Whether commendable or not it is certainly true that some men will not vote for a name appearing under a party emblem not their own. Simpson v. Osborn, 52 Kan., 329; State v. Stein, 35 Neb., 860; Williams v. Dalrymple, 33 S. W. Rep., 447; Daggett v. Hudson, 43 Ohio St., 548.
   Burket J.

It is conceded bj^ counsel for the\ relators that section 6a of the act of April 17th, 1896, 92 Ohio Laws, 185, prohibits the printing of j said names twice on the same ballot, but it is in- Í sisted that said section, in that regard, is unconstitutional. The only question, therefore, to be determined in this case is, whether the general i assembly has the power to pass an act providing, as this one does, that the name of a candidate for office shall appear but once upon the ticket or ballot prepared by the board of elections.

Full legislative power is vested in the general assembly by section one of article two of our constitution, and the power in question is included in that grant of power, unless taken away by some other provision of the constitution.

The only limitations upon this general grant of power cited by counsel for the relators in this case, are section two of article one, which reads: “All political power is inherent in the people. Government is instituted for their equal protection and benefit * * *,” and section two of article five, which reads: “All élections shall be by-ballot.”

The relators seek to compel the board of elections • to place the names of the two candidates upon both the Democratic and upon the Lawyers Judicial Ticket. This necessarily concedes that those tickets are ballots within the meaning of the constitution, because if they are not ballots, there is no right to have these or any other names placed thereon. If they are ballots when the names of certain candidates are on twice, they are equally ballots when the names are on but once. As the constitution is silent as to the number of times a candidate’s name shall appear on a ballot, the matter is open to be regulated by the general assembly. The ballot now authorized by statute is-different in form from that in use at the time of the adoption of the constitution, but it is nevertheless a ballot. No form of ballot is prescribed by. the constitution, and therefore the general assembly is free to adopt such form as in its judgment shall be for the best interests of the state. ‘

The election must be by ballot, but the form of the ballot, so long as it is a ballot, is left to the sound discretion of the general assembly. The ballot or ticket in question is clearly a ballot, and therefore does not contravene the second section of the fifth article of the constitution.

By the second section of the first article of the constitution it is provided, in substance, that government is instituted for the equal protection and benefit of the people. It seems clear that the placing of the name of each candidate upon the ballot once, and only once, would be equal protection and benefit to all the candidates. To place the name of one on the ballot in two places, and the name of his opponent in only one place, would not be exactly fair. It would give the candidate whose name appears twice, an advantage over the candidate, whose name appears but once. So that the statute, instead of being in conflict with this section of the constitution, is in harmony with it, and may have been passed for the purpose of doing away with this advantage which existed under the former statute. It is a proper regulation of the; elective franchise, well calculated to avoid and/ prevent corruption and fraudulent practices, as: well as undue advantage to one candidate over another.

But it is argued that the voters have a right to have the names appear upon both ballots, so that they may more easily vote for the candidates of their choice. No legislature and no court can know in advance how the electors desire to vote, and if an opportunity is given them to vote for the candidates of their choice, by placing the names once in plain print upon the ballots, it is all that can in; fairness be required. The ballot is the same for all, and gives equal protection and benefit to all. < There is no discrimination against or in favor of any one; and if any inequality arises, it arises not from any inequality caused by the statute, but by reason of inequalities in the persons of the voters, and such inequalities are unavoidable. It is always much more difficult for some electors to cast their ballots than for others. Distance, bad roads, means of transportation, bad health, and many other considerations, may and do render it much more difficult for some men to cast their ballots than others. But these difficulties inhere in the men themselves, and not in the law. Before the law all stand equal, with equal protection and equal benefit, and if their condition becomes such as not to enable them to enjoy the protectior or reap the benefit, it is their fault or misfortune, and n'ot the fault of the law.

The act in question was passed to secure purity in our elections. Certain evil practices had grown up by reason of placing the name of a candidate: upon the same ballot more than once, and the general assembly attempted to prevent such practice; by providing that the name of each candidate1 should appear on the ballot but once. This is a reasonable regulation of the elective franchise, and not in any sense a destruction thereof.

But grant, as is urged by the relators, that some voters may be somewhat-inconvenienced by reason of the name of each candidate appearing but once upon the ballot, yet such voters are not thereby deprived of any protection or benefit in casting their ballot. The inconvenience is onlyj that which is experienced by every one who votes ! other than a straight ticket. Such slight inconvenience to the voter should be endured rather than permit the advantage which one candidate has over another, when the name of one is placed upon1 the ballot twice, and the name of the other but once.

The subject is clearly within legislative discretion, and that body has the power to provide that the name of each candidate shall appear but once upon the official ballot, or it may permit the name to appear more than once. Whatever, inconvenience there maybe to either the candidate or voter in such cases,does not arise to the importance of a failure of equal protection or benefit, and therefore does not conflict with the provisions of the second section of our Bill of Rights.

When rights secured by the constitution seem to conflict when applied to the practical affairs of men, the general assembly is at liberty to so adjust the matter as to cause the least injury to the conflicting interests, and thereby protect the rights of the community as a whole. The equal protection and benefit guaranteed by the constitution does not cover every little inconvenience which may be distorted or reasoned into a seeming inequality, but has reference rather to cases in.which it is attempted by statute, to grant rights or privileges to some, which are withheld from others in the same substantial situation or relation.

The case of Fisher v. Dudley, 74 Md. 242 is cited by the relators and relied upon to show that the names of candidates maj appear more than once on the official ballot. In that case the power of the legislature to pass the act was not questioned, but the case involved the construction of a statute which did not prohibit the name from appearing more than once on the official ballot, and the court held that not being prohibited, it might properly appear as many times as nominations of the same person had been made by different parties. Such was the practice in this state under a similar statute, before the enactment of the present statute.

The Maryland case would, therefore, be an authority to show that our practice was right under the former statute, but it can have no bearing upon the question as to whether the general assembly has the power to prohibit the names from, appearing more than once upon the official ballot.

The case of Todd v. Board of Elections, 104 Mich. 474; 64 N.W. Rep., 496, is very much like the present case, and fully supports the conclusions here reached.

We regard the act in question as clearly within the power of the general assembly, and therefore a valid law.

Writ refused.


author: Williams, C. J.

text:
    The Coal Company v. The First National Bank.

      Sale of property on writ of execution — Statutory provisions— Validity of levy as against subsequent creditors — Foreign execution — Extent of judgment lien — Constructive notice of lien.

    1. Statutory provisions prescribing the order to be observed by an officer in subjecting the debtor’s property to sale on a writ of execution, are directory in their nature, and for the benefit of the debtor, who may waive strict compliance therewith; and such waiver will be presumed unless he assert his right by a direct proceeding to set aside the action of the officer.
    2. As against subsequent purchasers and creditors, it is not essential to the validity of a levy of an execution on land, that the debtor be without chattel property on which to levy ; nor will the levy be rendered invalid, or ineffectual to create a lien, by the omission pf the officer to indorse on the writ, no goods.
    3. A valid levy of a foreign execution on land of the debtor has the effect of extending the lien of the judgment to the land seized ; and the lien is not limited in duration to the time the writ has to run, but may be preserved and continued in force as long as the judgment remains unsatisfied and is not allowed to become dormant, in like manner that the lien of the judgment on land in the county where rendered, may be.
    4. Return of the writ by direction of the creditor, without a sale of the property, is not a discharge of the lien.
    5. The entries on the foreign execution docket, which the sheriff is required to make, of the date and amount-of the judgment, with a copy of the levy, and description of the land, are constructive notice of the lien, binding upon subsequent purchasers and creditors, while the lien remains in force.
    (Decided November 17, 1896.)

      Error to the Circuit Court of Jefferson county.
    The case is stated in the opinion.
    Swa/yne, Ilayes <& Tyler and John M. Cook, for plaintiff in error.
    In the consideration of the matters here involved, three important questions of law present themselves for the determination of this court:

      First — Was the real estate in the petition described legally seized in execution on the 21st day of June, 1888?

      Second — If so, was said real estate, from said date, bound for the satisfaction of the judgment of the defendant in error until said judgment became dormant, or only during the life of the writ of execution?

      Thvrd — Was it the intent and purpose of the legislature, by the' enactment of section 5372 of the Revised Statutes, authorizing writs of execution to be issued out of one court to the sheriffs of all the counties of the state, to thereby create judgment liens, or to enable judgment creditors to enforce the collection of their debts ?

      Fi/rst — It is. not claimed by the defendant in error that the return of the sheriff, indorsed upon the writ, complies with the requirements of statute, section 5382, and it must be conceded that no sale of the real estate in question could have been made thereunder which would have been confirmed by the court. Koehler v. Ball, 2 Kansas, 160.
    The statute is not only mandatory in its terms, but the power, thereby vested in the sheriff, to levy the writ upon the real estate' of the debtor, depends, as a condition precedent to the exercise of that power, upon the existence, as a matter of fact, of a search and a failure to find goods and chattels sufficient to satisfy the same. There is no evidence, either in the return of the sheriff or in the record of this case, that said condition precedent to the exercise of that power had any existence in fact, and none will be presumed in law.
    It is an elementary principle of law, long since established by this court, that the record of an instrument, required by law to be recorded and which is not duly executed, is not constructive notice to bona fide purchasers. White v. Denman, 1 O. S., 111.
    If it be the opinion of this court that James M. Ham, and consequently his grantee, this plaintiff in error, were bound by constructive notice of the entries contained in this foreign execution docket, to what extent are their rights, as subsequent bona fide purchasers, affected thereby?
    Before purchasing the real estate, therein described, and paying therefor, they found that this writ of execution had been, by the order of the plaintiff’s attorney, returned without further proceedings. Were they, or either of them, by reason of this entry, bound to assume that the judgment had not been satisfied? Did they not have the right to assume that, because said writ was returned unexecuted by virtue of and in accordance with an order of the attorney of the judgment creditor, the judgment had been satisfied? Will it be claimed that, because the execution creditor saw fit to stay the hand of the court and to waive his right, under the writ, to subject the real estate of the judgment debtor to the payment of his debt, prospective purchasers were thereby put upon inquiry, and that it became their duty to investigate the records of a foreign court for the purpose of ascertaining whether the judgment had been fully satisfied of not. We believe that no such duty devolved upon either James M. Ham or this plaintiff in error and we assert that, in the furtherance of justice, no such burden should be imposed.

      Second — If this court should hold that the real property of the. judgment debtor, situated in the county of Jefferson, was, on the 21st day of June, 1888, legally seized in execution and that the plaintiff in error was bound by constructive notice of that fact, then we ask, what was the nature of the rights thereby acquired by the judgment creditor ?
    Did the judgment, by virtue of the seizure, become a lien upon that real property ?
    Was that land bound for the satisfaction of the judgment so long as it remained alive?
    Was not that land bound only so long as the seizure continued under the writ and did not the right, thereby vested in the execution creditor, expire the very moment seizure was abandoned, ■ and the land released by the sheriff in accordance with the order of the former ? Sturgeon v. Hull, 8 C. C., 269; Bank v. Coal Company, 11 C. C., 412.
    By section 5375 of the statute the property of a debtor, bound for the satisfaction of a judgment, is classified as follows:

      First — Lands situate within the county where the judgment is entered;

      Second — All other lands and goods and chattels.
    The fact, that the statute has placed goods and chattels in the same class with lands, not situate in the county where the judgment was rendered, is significant. Neither can be bound for the satisfaction of a judgment until there has been a seizure in execution by the officer to whom the writ is directed.
    The officer to whom the writ is delivered, is required to take the goods and chattels levied upon into his possession, but this is not true as to real estate. It has been long since decided by this court that an indorsement by the officer upon the writ, to the effect that for want of goods and chattels whereon to levy the same, it was by him levied upon the real estate, therein described, is in law, equivalent to a seizure thereof, but the question which still remains for determination is, how long’ does that property remain bound for the satisfaction of the judgment?
    It is elementary law that goods and chattels, which' have been seized in execution and .released from the operation of the writ, cannot, when they have become the property of an innocent purchaser, be subjected to the satisfaction of the judgment of the execution creditor.
    If the lien, which attaches to goods and chattels by seizure in execution, is determined by the return of the writ without sale, in accordance with the order of the execution creditor, why does it not necessarily follow that the lien upon lands, not situate in the county wherein the judgment was recovered and which is created by the seizure in execution of such lands, is also determined by a return of the writ, without further proceeding’s, and in accordance with the instructions given the officer, by the judgment creditor. .
    This question -is, by the learned judge of the court below, answered in the negative and for the reason that the lien, acquired by the seizure in execution of goods and chattels, is different from the lien acquired by the seizure of lands, not situate in the county wherein the judgment was rendered; that the former is an execution lien, and the latter a judgment lien, and that, therefore, the law applicable to the one has little or no application to the other.
    To the soundness of this reasoning we cannot accede. The premises, from which his conclusion is reached and upon which the judgment of the court below was based, are not,' in our opinion, correct, and, if not, the judgment must necessarily be reversed.

      Third — Has the legislature of this state, by statute, provided that a judgment rendered in one county shall, under any circumstances, become a lien upon real estate situate in another county ?
    This question we must answer in the negative and we maintain, as was held by the court in the case of Sturgeon v. Hull, 8 C. C., 269, that the purpose of sections 5372 and 5375 of the Revised Statutes is ‘ to enable a judgment creditor to enforce the satisfaction of his judgment by a seizure and sale of the real estate of his debtor, which is situate in a county other than the one wherein it was recovered, and not, by such-seizure, to constitute his judgment a lien upon said real estate. In other words, we maintain, as was held by that court, that he could not use the execution laws to create a judgment lien.
    The court below, in refusing to follow and to concur in the decision just referred to, held that by the seizure of goods and chattels, the execution became a lien thereon and that by the seizure of lands situate in a county other than the one in which the judgment was rendered, the judgment became a lien thereon; that these are two separate and distinct things ; that the law applicable to the one has little or no application to the other, and that the one relates almost exclusively to personal property and the other to real property. Bank v. Coal Co., 11 C. C. Rep., 418; Revised Statutes, section 5374.
    Upon what ground can such a construction of the statute 5375 as made by the court, be logically based ?
    The purpose of sections 5372 and 5375 of the Revised Statutes is to enable a judgment creditor to satisfy his judgment in one or both of two ways.

      First — By causing a writ of execution to issue out of the court in which the judgment was recovered, directed to the sheriff of any county in the state and by his seizure and sale, thereunder, of the goods and chattels of the debtor.

      Second — If no goods or chattels can be found, whereon to levy the writ, or if those found are insufficient, in value, to satisfy the same, then by a seizure and sale of the lands of the debtor.
    In both instances, the purpose and the manner of accomplishing that purpose are the same. In both instances, the character of the lien acquired by the seizure of goods and chattels or of lands, not situated within the county wherein the judgment was rendered, is the same. The statute makes no distinction and its language warrants none. Section 206 of Freeman on Executions.
    There is no doubt that, ás a matter of law, a judgment never does and never can become a lien upon personal property, or that goods and chattels, when seized under the writ, become subject to the lien of the execution. Freeman on Executions, second edition, chapter 13, section 201.
    Among the states the author includes our own, and for his authority in so doing, refers to section 421 of the Ohio Code, now section 5375 of the Revised Statutes.
    This undoubtedly being- the law, conceded to be so by the learned judge of the court below, what statutory authority is there for attributing to a seizure of real estate, under a writ of execution, an effect any different from, that which follows the seizure of goods and chattels, under the same writ? And, as it must necessarily be admitted that there is no such statutory authority, what is there in the nature of the property which prevents the principles of law applicable to the one from being applicable to the other ?
    There is no doubt that goods and chattels, seized in execution for the satisfaction of a jiidgment, are bound by the lien, thereby created, only so long as the writ remains in force. Freeman on Executions, section 202.
    The case of Moore v. Rittenhouse, 15 Ohio State, 310, is cited by the court below, as substantially decisive of the case at bar and is, therefore entitled to careful consideration.
    The court, on page 318 of the report, says as follows:
    “Now, as Moore’s levy was made subject to the lien created by the prior levy of Emmett, it is clear that had the property been sold upon execution, Emmett’s judgment must have been first satisfied.”
    This statement of the law, applicable to the case, is inconsistent with the assumption, of the court below, that either or both of the judgments were liens upon the land.
    If Emmett’s judgment became a lien upon the land, by virtue of a seizure in execution, and the land has been sold, under the writ issued upon Moore’s judgment, the money arising therefrom would not have been applied in payment of Emmett’s judgment, but the purchaser would take the land subject thereto.
    The language employed by the court in its decision, and its judgment, upon the facts presented for adjudication, show that the. liens created by the levies upon the real estate of the debtor were regarded as execution and not judgment liens.
    The particular question here involved is, for the first time presented for the determination of this court, and the authorities upon which the judgment of the court below was based, are not, in our opinion, sufficient to justify the position by it taken.
    "We maintain that the purpose of the statute, in authorizing a writ of execution to be issued, is to enable a creditor to subject the property of his debtor to the payment of his judgment, and not to forever bind the property by constituting the judgment a lien thereon. Freeman on Executions, second edition, section 206.
    A sale under awritof execution,maynotbebeneficial to a judgment creditor because made subject to all prior liens, but in such event, should the creditor not desire to avail himself of the remedy granted by the statute, because inadequate, he may and should apply to a court of equity which would grant him relief and, by proper proceedings, all liens could be marshaled, their priorities determined, the lands sold and the proceeds arising therefrom distributed in accordance with the order of the court. Thus no injustice would be done and the rights of all would be protected.
    James M. Ham paid full value for the stone coal, underlying the real estate of the judgment debtor, and his grantee, this plaintiff in error, is entitled to the ownership thereof, free and clear from any and every claim or demand now asserted by this defendant in error which, through its own laches or negligence, has lost the right to satisfy its judgment by the sale of real estate which is now the property of one other than its debtor.
    Certainly the equities of this case, and as we assert, the law are with this plaintiff in error and, having come into a court of equity, the defendant in error should be compelled to do equity and, therefore, the judgment of the court below should be reversed.

      Ernest L. Finley, for defendants in error.

      First — -Was said real estate legally seized in execution?
    The allegation of the petition as to the recovery of the judgment, the issuance of execution and the levy of the same by the sheriff on the premises described are not mentioned in the defendant’s answer in the common pleas court, but are referred to in its answer filed in the circuit court, which reads as follows:

      “Seventh — This answering defendant says that neither it nor the said James M. Ham had, on or prior to the 28th day of December, 1888, any notice or knowledge of the judgment or of the execution issued thereon out of the court of common pleas of Franklin county, Ohio, or of the proceedings of the sheriff thereunder, as in the petition alleged, and that it has not now any knowledge thereof. ”
    That is certainly not a denial of the allegation of the petition as to either of the facts referred to Bombarger et al., v. Turner, Adm'r., 13 Ohio St.,270.
    It is in effect rather an admission. A general denial cannot apply to averments, included in admission. Stephen v. Incorporated Village of Leesburgh, 33 Ohio St., 475.
    It is not the indorsement of “no goods,’’butthe fact that no goods and chattels can be found, which justifies a levy on lands and tenements. Martin v. Cook, et al., Ex'rs, v. William Dinsmore, et al., 5 C. C., 391.
    It is true there is no finding’ as a conclusion of fact by the court below whether the defendant, George E. Medill, had or had not “goods and chattels whereon to levy,” but even if the defendant below had been entitled to a finding under the state of the pleadings and the court’s findingof its conclusions of fact were not responsive in that. particular-, no exceptions were taken on that ground, and this court will not go beyond the assignment of errors upon the record, unless it be to consider errors relating to jurisdiction. Levi v. Daniels, 22 Ohio St., 38.
    The presumption is in favor of the regularity of the officer’s acts, and that a levy on the land was made on account of a want of personal property. Jones v. Austin, 10 Ired., 20.
    The provision of the statute which directs the officer to whom an execution is delivered to proceecl to levy the same upon the goods and chattels of the debtor, but if no goods and chattels can be found, * * * forthwith levy the same upon the lands and tenements of the debtor which are liable to satisfy the judgment, Sec. 5383, Rev. Stat., has its origin in the assumption of law, that the interest of the debtor requires that he be permitted to retain his realty in preference to his personal estate. So that a judgment debtor may waive his right to have his personal property taken first. Freeman on Executions, section 279. Smith v. Randall, 65 Am. Dec., 475. Ford v. Skinner et al., 4 Ohio, 378.
    Proceedings under execution, though tainted with irregularities, are usually valid between the parties until vacated by some appropriate. motion or action. If parties do not see proper to make such motion or institute such action, they waive the irregularity and impart conclusive validity to the proceedings. What the parties, by their non-action chose to confirm, strangers cannot impugn, Hence the general rule, that strangers to a suit will not be allowed to impeach or deny that which the parties treat as valid and indisputable. Freeman on Executions, 365. Phelps v. Parks, 4 Vt., 488.
    Errors and irregularities must be corrected by a direct proceeding and not by way of a collateral attack. Freeman on Executions, section 390. Frakes v. Brown, 2 Blackford, 295. Dunham v. Holman, 71 Am. Dec., 198.
    The provision of section 5383, Revised Statutes, with reference to first levying on goods and chattels, is directory.
    Laws which prescribe the order in which different species of property of a defendant in an execution ' shall be sold, are directory and not mandatory, and do not invalidate proceedings in violation of them, unless the proceedings are vitiated by fraud. Hayden v. Dunlap, 3 Bibb., 219. Farris, etc., v. Banton, 6 J. J. M., 235. West v. Cooper, 19 Ired., 1. M. S. v. Denham, 1 Hemp., 320. Note. Buler v. Bullet, 3 J. J. M., 320.
    The entry of the sheriff on his foreign docket fulfills every requirement of section 1212, Revised Statutes, and hence was notice to subsequent purchasers of the matters contained therein. Cook et al., Ex'rs, v. Dinsmore et al.,.5 C. C., 392.

      It is difficult to see how such an entry could he either construed or distorted to mean that the judgment had been satisfied — and especially in view of the universal practice which has so long obtained in this state in such cases and the well established rule, “that nothing short of a sale oí land under a levy, can be held a satisfaction.” Reynolds et al. v. Ex’rs of Rogers, deceased, 5 Ohio, 165.
    A cautious and prudent man could not have been misled thereby.

      Second — The judgment, by virtue of the seizure in execution, became a lien upon the real estate and the land was bound for the satisfaction of the judgment so long as it remained alive. Section 5375,' Revised Statutes.
    If we were to omit from the section the words “as well as goods and chattels of the debtor,” there could hardly be two opinions as to the correct intrepretation of the section, which might be read as follows: “Such lands and tenements, within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term, and all other lands shall be bound for the satisfaction thereof from the time they are seized in execution.”
    The judgment is the lien in each instauce — the only difference being as to the time the liens attach.
    A very good and familiar rule of construction is “If laws of a doubtful meaning be connected with or relate to other laws which throw any light on their purport, the interpretation thus derived is the one that should be adopted.” Section 5380, ' Revised Statutes. '
    , The operation of section 5380 must be limited to the county where the judgment is rendered if the lien obtained on land in other counties is merely an execution lien and the provision for renewal every term of five years would be meaningless, and nugatory as to the latter. Davidson v. Root, 11 Ohio, 100.
    In Moore v. Rittenhouse et al., 15 Ohio St., 310, Scott, J., page 315, interprets section 421 of the Civil Code — which is sec. 5375 of Revised Statutes.
    Is there any good reason for discriminating under the provisions of the above section or of section 5376, between lands of the debtors .in the county where the judgment is rendered and those of' the debtor in other counties seized in execution?
    . This court has heretofore said there was no reason for such a discrimination.
    As to personal propertj7-, the officer in order to make a valid levy, must- assume control of the property with the avowed purpose of holding it to answer the demands of the writ. The officer must maintain his possession’ and control to such an extent as to divest the possession of the owner.And such possession is prima facie a satisfaction •of the execution. Cars v. Adams, 3 Ohio, 223. Reynolds, et al., Ex’rs of Rogers, deceased, 5 Ohio, 169.
    As to real property, the officer does not disturb the debtor’s possessions, and no entry upon the real estate is necessary to constitute a levy. 'His indorsement upon the execution of a levy will ■constitute one to all intents and purposes. Morgan v. Kinney, 38 Ohio St., 610.
    And a subsisting levy, of an execution upon land is not a satisfaction of the judgment. Reynolds et al., Ex’rs of Rogers, deceased, 5 Ohio, 168..
    Keeping that distinction in view, what difficulty 'lies in the way of treating the liens on lands in another county as a judgment lien with all it implies? And thus make plain and consistent the interpretation of all sections of the statute bearing upon this subject.
    But it is claimed that section 5384 provides that the officer must proceed to appraise, etc. It suffices to say that that séction has as much reference to land in the county where the judgment is rendered as to lands of the debtor situated in another county. No distinction is made, and can it be contended that this section compels an appraisement and sale in every instance where lands are levied upon in execution? If so, of what utility is section 5380?
    It would seem that the case of Sturgeon v. Hull, 8 C. C., 269, stands alone, in this state, as authority for the proposition, that the lien upon lands in a county other than the county where the judgment is rendered is a mere execution lien, and that decision is apparently based upon provisions of section 5389, Revised Statutes.
    There is another ease decided by a majority of the same court, Martin V. Cook et al., Ex'rs, v. Dinsmore et al., 5 C. C., 385, which is perhaps not consistent with that view, but sustains the issue for the defendant in error.
    The question now raiséd as to the legality of the seizure in execution was not directly referred to • by the court below, for the reason, that it was not there made an issue. Aside from that, it has seemed to me quite unnecessary to do more than to refer this court for answer to the second and third questions of law presented by plaintiff in error, to the able, clear and convincing opinion of the court below, as reported in 11 C. C., 418.
   Williams, C. J.

The First National Bank of Smithfield, defendant in error, duly recovered a money judgment -against George Medill and others, in the court oí common pleas of Franklin county, on the 19th day of June, 1888, and on the same day caused an execution to be issued thereon to the sheriff of Jefferson county who, on the 21st day of the same month, levied the writ on a tract of land situate in that county. The levy was indorsed on the writ, with a full description of the land, and an entry theren .of was duly made by the sheriff in his foreign execution docket, showing the amount of the judgment, the description of the land, the date of the levy, and all other facts required by law to be entered on his docket. Those entries were made at the time of the levy, and indexed in the docket, direct and reverse. Afterwards, on the 10th day of July, 1888, the execution was returned, by order of the plaintiff’s attorney, without further proceedings; which fact was also entered in the foreign execution docket. Both the levy and entries fail to state that no goods or chattels could be found whereon to levy the execution, and it does not appear that an effort was made to find any.

The land on which the levy was made, was at the time owned by Medill, the judgment debtor, but was encumbered by a mortgage previously executed by him, which had been recorded. Underlying the surface of the land was a vein of stone coal known as “Number 8 vein, Pittsburgh coal,” which, after the levy of the execution, was released by the mortgagee from the operation of his mortgage, and soon thereafter sold and conveyed by Medill to one Ham, who then sold and conveyed the same to the plaintiff in error. These purchases were made in good faith, for value, and without actual knowledge of the execution levy, or the judgment. After the last purchase was made, the mortgage was foreclosed, and all of the land sold except the vein of coal which had been released, and the proceeds of the sale were insufficient' to reach the judgment of the bank, but were exhausted in the payment of the mortgage indebtedness, and prior liens. Thereupon the action below was brought by the bank, to which the plaintiff in error was made a party defendant, to obtain a sale of the vein of coal and subject the proceeds to the satisfaction of the bank’s judgment. The plaintiff in error set up its claim as a purchaser of the coal vein, and prayed that its title might be protected. The circuit court, to which the cause had been taken on appeal, found the facts substantially as above stated, and decreed the sale of the property in question, and the application of the proceeds to the satisfaction of the bank’s judgment; holding, that by the levy, the bank obtained a valid lien, and, that the plaintiff in error, under its purchase, took subject thereto.

The contention of the plaintiff in error here is, (1), that the bank acquired no lien on the land, because the levy was defective; or, (2), if a lien was thereby obtained, it expired with the execution, and therefore was not subsisting when the plaintiff in error made its purchase.

The defect in the levy, which it is claimed defeats the lien attempted to be obtained by it, is the omission of the sheriff to indorse on the writ the want of goods and chattels of the judgment debtor on which to levy the execution, and the absence of any showing that there was not sufficient property of that kind to satisfy the judgment. This claim is based’ upon section 5383, of the Revised Statutes, which provides that: “The officer to whom a writ of execution is delivered shall proceed, immediately to levy the same upon the goods and chattels of the debtor; but if no goods and chattels can be found the officer shall indorse on the execution the words ‘no goods,’ and forthwith levy the same upon the lands and tenements of the debtor which are liable to satisfy the judgment.” This section of the statute, it is contended, precludes the making of a valid levy on lands, -until the officer, after a proper search, has failed to find sufficient chattel property of the debtor to satisfy the writ; and the abseneé of an indorsement on the writ of the want of such property appearing in the entries on the execution docket, prevents •their operation as constructive notice binding- on subsequent purchasers or creditors. But it is generally held, that statutory provisions like those contained in the section referred -to, prescribing the order to be observed by the officer in subjecting the property of the debtor to sale on writs of execution, are for the benefit of the debtor, and may be waived by him. They are directory in their nature; and though a failure to observe the order prescribed is an irregularity which maybe corrected in a direct proceeding instituted by the debtor, the levy is not open to collateral attack on that ground. While the statute enjoins the duty on the officer, in making a levy of his writ, to first seize the debtor’s personal property before resorting to his real property, it does not declare that unless that order is pursued a levy on the debtor’s land shall be invalid, or ineffectual to create a lien; and the failure of the officer to proceed in the precise order directed should not deprive the creditor of the benefit of the levy, so long, at least, as fche debtor himself makes no objection to it. It may be to the advantage of the debtor to save his real property from sale, in preference to his chattel property; and this he may do by compelling resort first to be had to his chattel property when that is sufficient to satisfy the writ; but if he chooses not to exercise his right in that respect, a stranger who, at the time had no interest in the property, cannot be heard to assert it for him, nor interposeit as aground of objection to a levy on the debtor’s real property; nor would he seem to have any just ground of complaint where he buys after the lien has attached, and with legal notice of its existence.

An entry upon the land by the officer holding the writ is not necessary to constitute a valid levy; it is sufficient if the levy be indorsed on the writ, with a proper description of the land. The sheriff is required to keep in his office, a foreign execution ■ docket in which it is his duty to make entries of the date of each execution received by him from another county, and the date and amount of the judgment, and copy therein with his return, a full description of any real estate levied on; and the statute declares that “such entries so made shall be notice to subsequent purchasers and creditors of the matters therein contained.” When a levy is made upon land, the presumption is there were no goods on which to levy; but if a counter presumption should arise from the absence of an indorsement of no goods on the writ, that could only affect the burden •of proof in a controversy where the fact is material; that is, where the validity of the levy is attacked in a direct proceeding by a party entitled to attack it. So that, when, as in the case now-before us, lands are purchased from a judgment debtor after the levy of an execution upon them and while the levy is a subsisting one, with legal notice of its existence, the omission of the officer to indorse no goods on the writ, or to make search for chattel property, does not render the levy invalid, or ineffectual as a lien, as against such purchaser.

The further inquiry in the case relates to the question whether the lien created by the levy had expired, or ceased to be operative, when the plaintiff in error acquired his title to the real property involved in this litigation. This question must find its solution in our legislation on the subject, the most important provisions of which are contained in sections 5374, 5375 and 5380, of the Revised Statutes.

By the provisions of section 5374, the lands and tenements of a judgment debtor, not exempt by law, situated in any County in the state are liable to be taken on execution. And section 5375, provides that: “Such lands' and tenements, within the county where the judgment is rendered, shall be bound for the satisfaction thereof from the first day of the' term at which the judgment is rendered, * * * and all other lands, as well as goods and chattels of the debtor, shall be bound from the time they are seized in execution.” It is not doubted that, by force of this last section, the judgment operates as a lien on all the lands of the judgment debtor in the county, where the judgment is rendered. " This is so because the statute declares such lands shall be bound for the satisfaction of the judgment; and, as the same language is employed to create a charge upon the debtor’s lands situate in another county, when taken on execution issued on the judgment, it would seem to follow that, when so taken, the lien of the judgment operates upon them thereafter, as it does upon lands in the county where the judgment is ■rendered. No distinction in this respect is made by the statute; the only difference being with regard to the time when the lien attaches; and, in the one ease the lien is general upon all the debtor’s lands in the county, while in the other it becomes specific, and is limited to the lands actually seized., The reason for these differences is manifest. The judgment appears upon the public records of the county where rendered, and is constructive notice to all persons dealing with the debtor’s land situated in that county. Its existence and amount can be readily ascertained by an examina tion of the records. But it would be an unreasonable requirement that a person should make an examination of the public records of all the counties of the state, before he could safely acquire property which is shown to be clear by the records of the county where it is situated. When, therefore, an execution' issued to another county is there levied on lands, the sheriff is required to enter upon his foreign execution docket, • the date and amount of the judgment, by what court rendered, with a description of the land levied upon. This docket is a public record of that county, and the' entries become, by force of the statute, constructive notice, like other records of the county. Thereafter the judgment has the. same effect and operation as a lien on the lands so taken, as it has upon lands in the county were rendered, and the lien may be preserved and continued in force in the same way. The effect of the levy is to extend the lien of the judgment to the land seized, with all the legal-consequences incident to the judgment. The duration of the lien is not limited to the time the writ has to run. The language of section 5380, if execution he not sued out within five years from the rendition of the judgment, or if that period intervenes between executions, ‘ ‘the judgment shall become dormant, and shall cease to operate as a lien on the estate of the debtor, ’ ’ plainly imports that it shall not so cease to operate when executions are issued within the times mentioned; and that language is not limited in its application to the lien of the judgment on the lands of the debtor in the county where the judgment is rendered.

It is contented, however, that other provisions of the statute require the sheriff to immediately proceed after levy of the execution to cause the lands to be appraised and sold; and, that a return of the writ after a levy, and before sale, by order of the creditor, thereby interrupting the officer’s proceeding, and preventing the performance of his legal duties, discharges the levy, and terminates the lien. It is apparent that to sustain this contention would practically defeat the provisions of section 5380, which clearly permit the lien to continue for a period of five years between executions. Under' that section it has been the common practice to cause executions to be levied and direct a return of the writ without sale, in order to obtain or preserve a lien; and we do not understand^ to be questioned, that the statute permits this to be done where the levy is on lands situate in the county where the judgment was rendered. The operation of the statute authorizing the continuation of judgment liens in that mode is general, and without restriction as to where the lands may be situated; and the statutory provisions regulating the appraisement and sale of lands taken on execution are applicable alike in all cases without regard to the county in which the lands may be located. Any argument of inconvenience or delay to other creditors, resulting from that method of perpetuating the judgment lien, applies with no more force where the writ is levied outside the county, than it does to other execution levies; and there, can be no greater inconvenience or delay, in either case, than usually exists where property which other creditors seek to reach is encumbered with a valid lien. Such a lien does not interfere with the acquisition of subsequent liens, nor the remedies for their enforcement, nor the remedies of other creditors; and a purchaser always buys subject to a lien disclosed by public records which he is bound to examine. An examination of the sheriff’s foreign execution docket, by the plaintiff in error, before the consummation of his purchase, would have afforded sufficient information of the bank’s lien upon the property, and that the judgment had not been satisfied or suffered to become dormant; and the circuit court, in our opinion, committed no error in directing the application of the proceeds of the sale to the satisfaction of the judgment.

Judgment affirmed.