text:
    John Ford v. Augustus Skinner and others.
    A judgment lien upon land is not discharged, against a subsequent purchaser, by the fact that chattels were once levied upon, and the levy released, by the mutual consent of the parties to the execution.
    This was a bill of injunction, to restrain the defendants from selling certain real estate, taken in execution upon a judgment at law; and was reserved from the county of Geauga.
    The case .was as follows: On June 8, 1813, one Jacob French (mortgaged the lands in controversy to Daniel L. Coit, for the sum of five hundred dollars. On November 16,1818, French conveyed,, in fee, the same premises to John Ford, the complainant, who' afterward, on May 17,1819, purchased and took an assignment of the mortgage from Coit. At the October term of the court of common pleas, in the year 1816, the then commissioners of the county of Geauga, and whose successors were made defendants in this bill, recovered a judgment against French and others, for the use-of Abraham Skinner, the intestate of the defendant, Augustus Skinner, for the sum of four thousand dollars, to be discharged on the payment of one thousand eight hundred and eighty-four dollars and costs. Upon this judgment, executions issued from time-to time, and small sums of money collected, until October 28, 1818, when the sheriff levied upon personal property of French, *sufficient to discharge the judgment, but the same was returned by the sheriff, unsold for want of time to advertise. Oí' December 26,1818, a vendí, was issued, and on the 3d of March fol lowing, by consent of parties to the execution, the personal property thus levied upon was released, and redelivered to French. Executions were again issued, from time to time, and a considerable portion of the money made. On February 19,1828, a pi. ft. fa. was issued, and the sheriff having indorsed nulla bona, levied upon a part of the real estate purchased by the complainant of Ford, as before stated, and thereupon this bill was filed to enjoin all further proceedings upon the execution. There was no charge that the levj? upon the personal property was discharged fraudulently, or with intent to injure the complainant; but the bill contained the common charge, that the defendants combining, etc., to injure and oppress the complainant, refuse to release their lien on the-land, etc.
    Webb, for complainant:
    It will be seen that the principle which ought to govern in this case, is almost, or quite, the same as that of-marshaling assets, or that principle, that where one creditor has two funds, out of which he may be paid, and another has but one, the creditor having the two funds shall first exhaust that of which he alone can have the control, before he shall be permitted to resort to the other. This principle is so familiar with the court, that it is deemed entirely unnecessary to cite any authorities in support of it.
    I shall proceed to recite some of the leading facts in the case. It seems that a judgment was obtained by the former commissioners of the county of Geauga, for the use of the testator of one of the respondents, against Jacob French and Benj. Bates, Jr., which was a lien on certain lands deeded by French to the complainant, on November 14, 1818. That on the 4th day of that month, previous to the purchase of the farm by Ford, the sheriff of Geauga county returned that he had levied on a large amount of property belonging to French, by virtue of an execution founded on this judgment, which property, at a fair valuation, would *have paid the judgment, or nearly so. That, in any event, there was-enough, or more than enough, with a small sum of money, which had already been paid, and what was afterward collected from Bates, to have paid the judgment. That on the 16th day of November aforesaid, Ford paid French four thousand five hundred dollars for this farm. In March, 1819, the sheriff, by the direction of Skinner, releases to French this large amount of property, who received it and disposed of it as he thought was most for his interest; and after some attempt to collect this judgment from Bates at this late period, after a lapse of ten years or. more, a levy is attempted to be made upon this farm. It is evident, from the testimony of Bing, the sheriff who made the levy, and of Seely and Graham, that the property was, at a low valuation, worth more than the debt. These men were then, and now are, all men of business, perfectly conversant with the value of property. Graham gives a particular reason why his recollection as to the value of property, at that time, is so good. It was because he came to this state that year, and had occasion to purchase articles of a similar kind for cash. Ford, it will be noted, bought this farm twelve days after he knew this large amount of property was seized; and he had no conception that it would be released ; for if he had so supposed, and 'that it would have been effectually released, so as to have had effect upon third persons, he would never have taken a deed of the farm. Although I have said I would not cite any authorities, I shall refer the court to the following cases in support of our case. 1 Mad. 202, 493; Hawley v. Maners, 1 Johns. Ch. 174, 184; 19 Johns. 406 ; 4 Johns. Cn. 17, 20. These and other cases might be cited. They are not the same as our case, as we are purchasers at private sale, but in equity and good conscience, we are the same as if we were strictly creditors, and the cases are analogous.

      It may be further remarked, that this levy, so long as it remained, was a satisfaction of the debt to the creditor, and would have continued so to be, if it had not have been released by the creditor, with the consent of the judgment debtor. 3 Ohio, 223. And is so yet, as I believe, so *far as respects my client, and all other third persons, and ever will be.
    Mattoon & Card, contra:
    The doctrine of the counsel for complainant, with regard to marshaling assets, or that principle where one creditor has two funds out of which he may be paid, and another has but one, the creditor who has two funds shall first exhaust that which he alone can control, before he shall be permitted to resort to the other, is not admitted by respondent as being analogous to the circumstances of this case. Every case must be decided upon the peculiar circumstances attending it. It will be perceived by the court, that Bates and French are the joint judgment debtors, both jointly and severally liable, and their effects. The judgment was rendered November 5, 1816, and by the operation of the statute, the lands of both were incumbered by the judgment. Ford is a purchaser, and does not stand in the same relation as a judgment creditor. The statute of 1824, section 17, page 114, is broad. It provides that the execution must be levied before the expiration of one year, next after the rendition of judgment, or the judgment shall not operate as a lien on the estate of any debtor, to the prejudice of any other tona fide judgment creditor. This statute places a judgment creditor, in advance of a bona fide purchaser. There is no provision in this statute, by which any bona fide purchaser can divest the judgment creditors of the lien upon the real estate of the judgment creditor, although no execution be taken out. This shows that the application made of the authorities of the counsel for complainant bear no affinity to this case. The cases cited by Mr. Webb, from 19 Johns. 486, and others, seem not to warrant him in his conclusions. It is admitted that it appears by the sheriff’s return, that he levied on a quantity of wheat, hay, oats, flax, and fifty sheep. It also appears by the return of the sheriff, that it was supposed that the wheat, hay, oats, flax, and sheep .amounted to the quantity stated by the complainant’s counsel. There is nothing definite or certain as to the amount. This property, deducting a reasonable compensation for preparing it for market, ^and disposing of it, would not be equal to the amount of the judgment. No one can believe that this property, if it had been sold under the levy, in the fall of 1818, or the spring of 1819, could have been sold for more than one half or two-thirds of its real value. There is no direct evidence to satisfy the court, that the complainant had any knowledge of the levy, at the time he took the deed. As to the amount collected from Bates, subsequent to the purchase of the land by Ford of French, it has nothing to do with the point under consideration. For if there was not sufficient property levied upon, at the time of the conveyance, the judgment' can not be considered as satisfied, even upon the principles contended for by the complainant’s counsel. It is believed that the principle is well settled, that where one judgment creditor has a lien on two funds, out of which he can satisfy his debt, and a subsequent creditor has a lien upon one of the funds only, the second creditor must make it appear clearly that the fund which he can not touch, is unincumbered, and sufficient to discharge the claim. In the absence of this evidence, we trust the court will not say the judgment has been satisfied from the evidence of the levy. It is not denied chat a levy on personal property, sufficient to discharge the judgment, is a satisfaction, while the levy is in force, so far as it regards the judgment creditor and debtor; but it is contended that this principle does not extend to purchasers. The case cited from the Ohio Reports is one where the suit was commenced on a bond to perfect an appeal; and the levy, at the time when the suit was depending, was admitted to be in force and undisposed of-; and therefore clearly distinguishable from the present suit. By the bill of complaint, it appears that Ford, if he had any relief, has a plain and adequate remedy at law. The mortgage deed from French to Coit does not interfere with the claim of the defendant. A mortgage interest, before foreclosure, is a chattel interest, and the mortgagee can not sell without a bill of foreclosure and decree of sale. 3 Johns. Ch. 129; 2 Johns. Ch. 62 ; Stat., p, 86, see. 57; also, p. 231, sec. 1. The mortgage has never been foreclosed, and there is land sufficient to discharge both claims. 4 Johns. Ch. 534.
    The solicitor for the complainant has observed that there was *an attempt made to levy upon the land, by virtue of an execution in favor of defendant. It is claimed by the respondent, from the state of the pleadings, that the complainant can not prop•erly make this a point in the case. For, by the bill, he has admitted the right of Skinner, as executor, to control the judgment, and has stated that the levy was made, without complaining of any irregularity in that levy.
   By the Court:

The judgment in favor of Skinner was a lien upon the real estate of French, subject, however, to the prior incumbrance of Coit’s mortgage. Ford having purchased subsequent to the rendition of the judgment, took the estate, subject to the lien of the judgment, unless it was satisfied in contemplation of law, by the prior levy upon the personal estate of French.

It has been determined by this court, that a levy upon goods and chattels is a satisfaction of the judgment, while the levy is in force and undisposed of. Cass v. Lyttleton et al., 3 Ohio, 223. This principle must be understood to operate, not as an actual discharge, -but as a suspension of the right to enforce the judgment until the levy shall be disposed of.

In the present case, the levy upon the personal estate was set ' aside by mutual consent, and the property redelivered to the judgment creditor. This mutual arrangement can not affect the lien upon the real estate, at all events, as between the parties to the judgment. The parties stood in the same situation as if the levy never had been made; and the judgment creditor was at liberty again to execute the personal property, if it could be found, and if not, to prosecute his lien upon the real estate.

It necessarily follows from these principles, that the lands are liable to execution in the hands of Ford. Had the levy been discharged for fraudulent purposes, or with a design to injure Ford, the case would present an entirely different aspect. But no cir- • cumstance is disclosed from which a presumption of fraud can be raised; and the complainant, in his bill, rests his claims not upon. any fraud practiced in the ^transaction, but upon the supposed satisfaction of the judgment. We discover nothing in the case to exempt him from the operation of the general rule, applicable to all subsequent purchasers, with notice of a prior incumbrance.

Bill dismissed.

Judge Brush dissented.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Elijah Carter v. Nicholas Longworth and others.
    Where a bill to redeem mortgaged premises charges that the mortgagor fraudulently stood by and witnessed a purchaser from the mortgagee making improvements, and concealed his lien, a demurrer to such hill can not he sustained.
    This was a suit in chancery, reserved for .decision by the Supreme Court in Hamilton county.
    The bill was filed in the court of common pleas, and set forth that the plaintiff, some time in 1816, purchased of one William Stewart, a certain lot of ground in Cincinnati, for the sum of one thousand five hundred dollars, and received from Stewart a deed of general warranty. At the time of the purchase, Stewart exhibited to the plaintiff a deed for the lot, from Longworth to himself, and assured the plaintiff that the purchase money was fully paid to Longworth. At this time the plaintiff, Longworth, and Stewart were residents of Cincinnati. The plaintiff, fully believing that the purchase money had been paid to Longworth, erected a dwelling house, and made other improvements upon the lot, to the value of six hundred dollars. Longworth knew that these improvements were making, yet fraudulently concealed from the plaintiff the fact, that, a,t the time, he held a mortgage on the lot for one thousand five hundred and seventy-five dollars, the whole amount of the purchase money due from Stewart for the lot. Some time in 1818, after these improvements were made, and before any steps were taken to foreclose the mortgage, Longworth took possession of the lot, and on Nobember 15, 1822, sold a part of it to the defendant, Jacob Flagg, for one thousand three hundred dollars, and the residue to one Matthew Yandusen, for one thousand dollars. Yandusen afterward relinquished his part to Longworth, who is still the’owner.
    *The defendants, Longworth and Flagg, continued in possession and received the rents and profits, to the amount of nine hundred dollars, until the year 1826, when Longworth sued out a. scire facias upon the mortgage, and upon the return of two nihils recovered a judgment by default for the whole amount of the purchase money, with interest, giving no credits for the rents and profits. The plaintiff was not made party to the scire facias.

    The bill charges that Longworth extended credit to Stewart — gave him a deed for the lot, and thereby enabled him to defraud the plaintiff, by inducing him to believe that the lot was paid for, when, in fact, it was not. That the plaintiff is the only person injured in the premises, and that injury was sustained by the fraud and combination of Longworth and Stewart. The bill did not state the date of the deed from Longworth to Stewart, or of the mortgage; nor did it appear that either of them were ever recorded. It did not appear that the lot had been sold under the judgment upon the scire facias. The deed of the plaintiff was duly recorded. Stewart is insolvent and a non-resident.
    The bill contained a prayer for redemption, account, and for general relief.
    The defendants, Longworth and Flagg, demurred generally to the whole bill.
    The defendant, Stewart, made no defense.
    The court below sustained the demurrer, and the plaintiff appealed to this court.
    The decision of the court rested upon other grounds than those argued by counsel.
    Longworth & Worthington,
    in support of the demurrer.
    Gaines, contra.
   By the Court :

If the defendants are bound to answer any part of the bill, the demurrer, being entire to the whole bill, must be overruled. A demurrer, bad in part, is bad in toto. 1 Ves. 248; 1 Atk. 450; 2 Atk. 44; Mad. Ch. 226; 1 Johns. Ch. 51; 5 Johns. Ch. 186.

*The main question intended to be presented by the demurrer, whether a scire facias binds subsequent incumbrances, need not be determined. The bill charges “ a fraudulent concealment of title, while the complainant was making improvement.” A demurrer to such charge of fraud is bad. In the case of Higingbothem v. Burnet, 5 Johns. Ch. 184, the bill charged that the party in interest stood by and saw great and costly improvements made upon the land, by persons claiming and believing themselves to be owners in fee, and never interposed any pretension of right or title. There was a demurrer to the whole bill, which was overruled, because the charge amounted to an imposition and fraud. Here the charge of fraud is direct and positive, and must be met otherwise than by a demurrer.

Demurrer overruled.

       Contra, 2 Bibb, 484.


text:
    Richard Gatewood v. The State of Ohio.
    Indictment for stealing bank-bills must aver a scienter, or it is defective.
    Error to the court of common pleas of Hamilton county.
    Gatewood was indicted for stealing bank-bills. The indictment was founded upon section 16 of the act for the punishment of crimes, vol. xxii. 261, which provides : That if any person shall steal, etc., auy bank-bills, etc., of fifty dollars, or upward, knowing them to he such, every person, etc.
    The indictment contained no averment that the prisoner knew the bills stolen to be bank-bills. The prisoner was convicted and sentenced ; and this writ was sued out to reverse the judgment.
    Strait & Hawes, for the plaintiff in error :
    *An indictment for an offense against the statute must, with certainty and precision, charge the defendant to have committed the facts under the circumstances, and with the intent mentioned in the statute, and if any one of these ingredients be omitted, the omission is fatal on demurrer, in arrest of judgment or on error. Arch. C. L. 23, 25; Stark. C. L. 242.
    The indictment, then, ought to have averred that the defendant knew the bills to be bank-bills.
    On the statute Eliz., which makes it high treason to clip, round, or file any coin, etc., for wicked lucre or gain’s sake, the indictment must charge the offense to have been committed for the sake of wicked lucre or gain. 1 Hale, 220.
    The same doctrine applies to an indictmen t upon the black act. Leach, 556 ; Arch. C. L. 223.
    The same principle is found in Stark. O. L. 244.
    The case of The King v. Lukes and others, 3 Term, 537, under the statute 36 Geo. III., Ch. 60, see. 2, is fully in point with the present case, and shows the indictment to be bad.
    There was no argument in behalf of the state.
   By the Court :

The objection taken is fatal. Where the scienter is part of the statutory description of the offense, it must be so laid in the indictment.

Judgment reversed.


author: *By the Court :

text:
    *Joseph McDougal v. William Fleming.
    A bill of exceptions lays no foundation for reversing tbe judgment, unless it contains matter distinctly showing that the party taking it might have been prejudiced by the judgment excepted to.
    Error to tne court of common pleas of Hamilton county.
    The plaintiff in error brought an action of assumpsit, in the court below, for the use and occupation of a house and lot in Cincinnati, and also on a special contract to pay rent.
    The declaration contained three counts : First. That on May i 1827, the plaintiff demised the premises to the defendant, in consideration of which, and of the possession and enjoyment thereof, •the defendant promised to pay three dollars per month, and that ■the defendant entered and has ever since enjoyed, etc. Second. That on November 5, 1827, the defendant promised to pay the :plaintiff three dollars per month, as rent for said premises, in con■sideration that the plaintiff had demised the same by parol to the plaintiff, with an averment that the defendant had occupied. Third. General indebitatus assumpsit for the use and occupation of these premises. Plea — general issue with notice.
    Upon the trial before the jury, the defendant, under his notice, offered in evidence the record of a judgment in an action of ejectment rendered in the Supreme Court of Hamilton county, at May term, 1823, in which McDougal was lessor of the plaintiff, and Fleming defendant, and which was brought to recover possession of.the same house and lot. The demise in the declaration in ejectment was laid upon October 1, 1828, for the term of twenty-one years, and the judgment was in favor of the defendant.
    To this record the plaintiff objected, but it was admitted by the court, and a bill of exception taken. The verdict and judgment passed against the plaintiff, and thereupon he sued out his writ of error.
    Caswell & Starr, for the plaintiff in error.
    Storer & Fox, contra.
   *By the Court :

The party excepting must distinctly point out wherein he may have been prejudiced by the decision excepted to. King v. Kenny, 4 Ohio, 81, 82. In the present case, the whole evidence is not disclosed, nor any precise question raised, by the bill of exceptions. The issue, in an action of assumpsit, is so broad that we can suppose many situations, in which the record would be proper testimony. Inasmuch, then, as the record does not show that the court below erred, we affirm the judgment.

Judgment affirmed.


text:
    James Lewis v. The State of Ohio.
    Courts can not he required to instruct a jury upon abstract propositions, hut are hound to meet and decide every legal proposition that arises in a cause.
    Error to the court of common pleas of Fairfield county.
    Lewis was indicted and convicted of larceny. The indictment charged the goods stolen to be the property of Christian and William King. Upon the trial a bill of exceptions was taken, which stated, “ that evidence was given, on the part of' the prosecution, tending to prove that the chattels charged in the indictment to have been stolen by the prisoner, were the property of William and Christian King, and that it was feloniously taken from their warehouse.” There was also evidence tending to prove that the chattels were purchased, in March last, in the name of William and Christian King; that William King at the time of the purchase, and for four or five years previous thereto, was, by reason of mental imbecility, incapable of making or assenting to a contract, or transacting business of any kind. There was also evidence tending to prove a partnership between William, and Christian King, namely, that a sign had been for several years kept up and continued over their warehouse, or store door, on which were the names of William *and Christian King, and - that the books of the store were kept in their names.
    The arguments and evidence being closed, the counsel for the prisoner prayed the court to instruct the jury: 1. If there was not sufficient evidence to satisfy them that there was a partnership between William and Christian King, and if the property alleged to have been stolen was purchased in the names of -William and Christian King, at a time when William King was incapable of contracting, that the property vested in Christian King alone, and is improperly laid in the indictment as the property of William and Christian King. 2. If the jury should find that the property described in the indictment was stolen out of a warehouse of William and Christian King, yet that circumstance is not sufficient to sustain the allegation of property in the indictment, unless William and Christian King were proved to have been carrying on business in that warehouse jointly, or that the goods were received or retained there by the joint assent of William and Christian King, at a time when William King was capable of giving his assent. These instructions .the court refused to give, but charged the jury that the evidence given was, in the opinion of the court, sufficient to prove a partnership between William and Christian King.
    The jury found the prisoner guilty, and judgment having passed against him, he prosecuted this writ of error.
    Ewing, for the plaintiff in error:
    The chattels alleged to be stolen are laid in the indictment as the property of William and Christian King. This allegation is required to be established by proof.
    It seemB, by what is recited in the bill of exceptions, that the prosecution attempted to establish this fact by pi’oving: 1. A partnership between William and Christian King. . 2. A purchase of the goods in their joint names. It was denied, on the part of the defendant, that the partnership was made out in eyidence; and proof was adduced on his part tending to show that at the time of the purchase of the goods "William King was, by reason of mental imbecility, incapable of contracting. The first instruction, which was asked *and' refused, arose from this state of the pleadings and evidence.
    The question of partnership was one for the determination of the jury, not of the court. The defendant was not estopped from denying its existence; and the jury might, perhaps, have thought the proof insufficient to establish it. The court, therefore, were bound, if requested, to instruct the jury as to the law which would apply to the case, on the supposition that the point should not be sustained.
    Casting the pre-existing partnership out of the case, the instructions asked were, in substance: That goods purchased in the name of A. and B.,at a time when A. was incapable of contracting, vested no property in A., and that the goods could not properly be laid in an indictment as the property of A. and B. This would seem almost a self-evident position. G-oods are purchased by B., or his agent, in the name ot A. and B., without the assent of A. It does not make A. a partner of B. in this property, for a mutual assent is necessary to create a partnership. Watson on Part. 5. It would not vest the property in A.,*as a gift, for delivery and acceptance, that is, a contract to receive, is essential to the validity of a gift of chattels. 2 Kent’s Com. 353-355, inclusive, and cases there cited.

      Second. The second instruction asked and refused was based on the hypothesis that the jury should find the goods to have been stolen from a warehouse of William and Christian King, in which they wore not carrying on business jointly, and in which the goods were not received or retained by their joint assent. And the court were asked to instruct the jury, that the goods being found by the defendant, in the warehouse, under those circumstances, does not, in contemplation of law, make them the goods of William and Christian King.
    It will be found, on consulting the cases, that the special property in goods, which is holden sufficient to sustain trover, or an allegation of property in an indictment, is always found on the actual or legal custody. Russell on Crimes, 1132. The main fact, that these goods were in a house which was the joint property of A. and B., gave them no custody or possession of the goods, and no property in them, ^either qualified or general. It had been Otherwise, had the goods been there in the course of a joint business between A. and B.,or received there by their joint assent; but the terms of the exception precludes that state of things-; and the refusal to instruct, if sustained at all, must be supported on the broad position that ownership of the close draws after it a custody of, or property in, any personal chattel which may chance to be placed upon it.
    H. H. Hunter, contra:
    In the case two points are made for the consideration of the court, both of which, however, relate to the same thing, namely: the right of property in the goods alleged to have been stolen. The first is, whether the allegation of the indictment of property in William and Christian King, in the goods, is supported by proof of the fact that the property was purchased in the name of W. & C. King, at the time when William King was incapable of contracting, by reason of mental imbecility.
    The ground of objection which would seem to be raised by the bill of exception,to the sufficiency of this proof, is this: that by reason of the purchase being made at a time when William King was incapable of assenting to a contract, the whole property vested in Christian King. We believe this position to be unsound. If William King had been of sound mind, for the same reason that the whole property is claimed to vest in Christian King, an undivided moiety would have vested in William. We ask, if this be the case, how it is possible the want of capacity in William can entitle Christian to any greater interest than ho otherwise would have been? We should like to bo informed of the legal principle so efficacious in its operation. We believe there is none such, and whatever may have become of the interest of William King, on account of his incapacity, Christian is not vested with it. If Christian, by the purchase, only became entitled to a moiety of the goods, admitting William to have been sane, there is no good reason that he should be entitled to the whole, on account of William’s insanity. In truth, Christian would have no better right to claim 393] the interest,of ^William, on account of William’s insanity, than would any other person, a total stranger, if you please. The most that he could claim would be possession; and this he would hold as a trustee, liable to account as such to a legally constituted representative of William, whether guardian in lunacy, heir, administrator, or other representative.

      These reflections, we believe, will amply satisfy the mind that the allegation oí the indictment of property, in William and Christian King, is proper, and that it would not have been proper, as claimed by the exception, to have laid it as the property of Christian alone. But notwithstanding the whole property may not have vested in Christian King, by the purchase, yet it is worthy of inquiry whether William King, by the purchase being made in his name at a time when he was insane, could acquire an ownership or interest in the goods. This inquiry may be considered as depending upon the question whether a lunatic can take property by purchase. That he can there is no doubt, both from reason and authority. It is laid down in 1 Coke, 2 b, that a man of non-sane memory may, without the consent of any other, purchase lands. If land, he certainly may goods. All the difference between lands and goods, in transferring title, consists.in the form of doing if. In the case of lands it must be by deed — in that of goods it may be by parol. It is true where the purchaser, at the time of the contract, happens to be a lunatic, his contract may be rescinded on account of his lunacy; but notwithstanding this is the case, ho may, at a lucid interval, confirm his contract. And until it is rescinded, it is presumed such a right of property in the goods purchased would vest in the purchaser, so as to enable him to bring trover, trespass, etc. In such case it would not be allowed to the defendant to say that the plaintiff, at the time he contracted, was of non-sane memory, and therefore not bound by his contract. Such a defense would sound strangely; it would sound equally strange in the-mouth of a thief who had stolen the goods. The law will not permit the lunacy of' an individual to bo used to his prejudice. It is true he is not bound by his contract, but, as we have said, he may confirm it at a lucid interval. It is not absolutely void, but merely voidable. 2 Black. Com. 291. If, therefore, ^Christian King, by the purchase being made in his and the name of William King jointly, acquired an ownership i.n the goods, there is no legal objection which can be raised, on account of the lunacy of William, why he should not also have acquired an ownership; for if the principles we have first laid down be correct, had William stood alone in the purchase, right of property in the goods might lawfully have passed to him. And, as we have already remarked, the name of Christian being used with that of William should not- determine William’s right. The broadest ground in favor of the defendant below, on whicli the question can be placed, is to let it rest upon the inquiry whether a lunatic can acquire, during his lunacy, such right to property as will warrant the allegation of property in him in an indictment. That he can, we believe, is rendered clear from what has already been said.
    We shall, therefore, leave this question growing out of the first exception. That growing out of the second is more obviously, if possible, in favor of the prosecution.
    By a careful analysis of the second exception, it will be found to resolve itself into this: Whether proof that goods stolen out of a warehouse of W. and C. King, without its being also proved that W. and C. King transacted business there jointly, or that the goods had been received or retained there by the joint assent of W. and C. King, at a time when W. King was capable of assenting, is sufficient proof of ownership of the goods in W. and C. King to support the allegation of the indictment to that effect?
    Two hypotheses are raised by the exception. The first is, whether it is indispensably necessary, in addition to the proof of the property being stolen from the warehouse of W. and C. King, to have also proved that W. and C. King transacted business there jointly ? We deny that it was indispensably necessary, in proving property in W. and O. King, in addition to the fact of its having been stolen from their warehouse, to have proved that they transacted business there jointly. Let us suppose that the property was proved to have been bought and paid for by W. and C. King, or that they had manufactured it, or that it was theirs in any other way, and that it was actually stolen from a warehouse *owned by them, would it be at all essential to prove that they transacted business in the warehouse? Why, certainly not. How, then, have the court erred in refusing to give the instruction asked in the first branch of this exception? They are asked to say to the jury that in addition to the fact of the property being stolen from the warehouse of W. and C. King, it was necessary for the prosecution to have proved that W. and C. King transacted business in that warehouse jointly. This is the abstract proposition, and we say that the court did right in refusing so to instruct the jury. For if there had been the most conclusive evidence of ownership otherwise made out, if the court had instructed tha jury as required, and if the jury had strictly observed the in struction, they must have acquitted the defendant, if there was no proof before them that W. and C. King jointly transacted business in the warehouse. Absurd and erroneous as this first branch of the exception is, the second is equally or more absui’d than the first. What is it? Why the counsel for the defendant asks the court to instruct the jury that proof of the fact that the goods stolen from a warehouse of W. and C. King does not support the allegation of property in W. and O. King, unless it was also proved that the goods had been received and retained in the warehouse by the joint assent of W. and C. King, when William King was capable of assenting.
    Why, in the name of common sense, attach as indispensable accompanying proof that it was necessary to be received and retained there by the joint assent oí W. and C. King, at a time when William was capable of assenting? Would nothing short of this answer the purpose? Suppose that a sufficient proof of a pre-existing and undissolved partnership between W. and C. King had been given to the jury, was it necessary, in addition to that, to have proved the reception and retention of the goods, in the warehouse, by the joint assent, at a time when William King was capable of assenting? Strange idea this! If there were a subsisting partnership between William and Christian, at the time the goods were received or retained there, .although William at the time may have been incapable of assenting, yet the assent of Christian would have been equivalent to their joint *assent. This [396 must be the case, unless the insanity of a partner works a dissolution. If the partnership were dissolved at the time of the assent given, then, it is true, the assent of one partner does not ipso facto dissolve the partnership. In no instance is this the case; in some cases, however, it forms a ground upon which a court of chancery may decree a dissolution of a partnership. This is the extent. Gow on Part. 273, and the cases there referred to. It is really strange that it should be insisted upon, as it certainly is, by the bill of exceptions, that it was necessary, in addition to the fact of the goods being stolen from a warehouse of W. and C. King, to prove the particular fact of their having been received and retained there by the joint assent, etc. Would not, we ask, any other evidence but this answer the purpose? Many other species of evidence, we think, might have been resorted to, equally clear, and equally conclusive. But yet we find the counsel for the defendant urging it upon the court to instruct the jury that this was necessary; that without it the allegation of property in W. and C.-King was not supported. Not only are the court required to say to the jury that the goods must have been received and retained by the joint assent, and this joint assent must be given at a time when William King was capable of giving his assent. Now it is, because the court have not gone the whole length in giving this instruction, that the writ of error is brought. Nothing short of the whole instruction would satisfy the demand upon the court. Tet, as we have already remarked, if there were a subsisting partnership between W. and C. King, the assent of C. King would be equivalent to their joint assent, and this, although William, at the time of the assent given, might be insane. But the instruction required did not permit the court so to lay down the law to the jury; but, on the other hand, if they had given the instruction prayed, they would have been bound to say, notwithstanding there might have been a partnership subsisting yet, if William was incapable of assenting, the assent of Christian was not equivalent to a joint assent. We submit the point to the court, which course of instruction would be the sounder in law. That there was strong and conclusive proof, if true, of the partnership, appears 897] fully by the reciting part of the *bill of exceptions. Yop that proof would clearly have been taken from the jury, if the court had given the instructions required.
    Mr. Leonard
    presented an argument for the state.
    Mr. Swan, one for the plaintiff in error.
   By the Court :

The court can not be called upon to charge the jury upon abstract propositions, but only those arising upon the evidence. But to refuse such instructions as properly arise in the case is error. 1 Crunch, 309, 318; 6 Wheat. 75.

By the first exception, we understand the defendant designed to contest the fact of partnership; and, for this purpose, he relied upon the legal proposition, that property purchased for a lunatic does not vest in him. The fact of partnership was. material to be established by the state; and that it was material, is matter of law. The legal proposition,'that the property thus purchased could not vest, would go far to protect the defendant, if settled in the affirmative. Upon these legal propositions, the bill of exceptions states, the court below refused to charge, but gave an expression of their opinion upon the question of fact, as to the sufficiency of the proof. We are of opinion that the court erred in refusing to charge the jury upon the legal propositions.

It is unnecessary to notice the second exception.


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    Jacob Wolf v. William Pounsford.
    Judgment against principal and sureties upon a bond under the insolvent law; if a creditor of the insolvent would proceed upon such judgment by sci. fa. he must set forth and establish his debt. It is error to award execution in his favor if this is not done.
    Error to the court of common pleas of Hamilton county.
    On October 13, 1820, one John J. Richey, being in custody, at the suit of Pounsford, made his application for the benefit of the insolvent law, and executed his bond to Pounsford, with Wolf and one Gabriel Hubble as securities, conditioned to make a schedule and deliver over his property. Suit was brought upon this bond, and at December *term, 1821, a judgment was rendered in favor of Pounsford against Wolf and Hubble, process being returned, not found, as to Richey; judgment was rendered for the sum of two thousand five hundred dollars, the penalty of the bond, to be released on the payment of nine hundred dollars and five cents, with eleven dollars and twenty-nine cents costs.
    On January 22, 1829, a writ of scire facias was sued out in the name of William Pounsford, for the use of one Hezekiah'Sanders, suggesting the death of Hubble; and after reciting that the judgment recovered by Pounsford against Wolf and Hubble, was for the sum of nine hundred and eighteen dollars and five cents, with eleven dollars and twenty-nine cents costs, called, upon Wolf to show cause why said judgment should not be revived, and why Pounsford should not have execution thereon, for the use of Hezekiah Sanders. The scire facias contained no allegation that the judgment was unpaid or unreversed, or that Richey was indebted to Sanders when the bond was given, or at any other time, nor did it appear what interest Sanders had in the judgment, nor by what authority he sought to revive it.
    At February term, 1829, a judgment by default was taken against Wolf, by which it was ordered that the judgment as set forth in said scire facias be revived, and that execution issue thereon. Leave granted to take out execution for the claim of Iiezekiah Sanders, being two hundred, and eighty dollars, with interest from October 14, 1820, amounting to four hundred and twenty-one dollars and forty cents, with costs of this suit.

    Hammond and Garrard, for the plaintiff in error.
    Storer and Fox, contra.
   By the Court :

1. A scire facias, to revive a judgment, is only a continuation of the formorsuit, and is not an original proceeding. 2 Tidd, 923; 1 Term, 257. When a scire facias is issued to revive a judgment, the whole record is before the court; and if the defendant makes default, and no payments appear *upon the record, it is the duty of the court to award .execution for tho amount of the original judgment. 22 Stat. 68. In the present case, the original judgment was for the sum of two thousand five hundred dollars, and the judgment of revivor for the sum of nine hundred and eighteen dollars and five cents. The writ misrecites the original judgment, and the judgment of revivor follows the writ. This variance appears on the face of the record, and vitiates the judgment of revivor. The original judgment was not revived by the proceedings upon the scire facias, and the record shows no other judgment which could authorize the issuing of the writ of scire Jadas, or the judgment of revivor.

2. Tho original judgment was founded upon a bond, executed by Hubble and the plaintiff in error, as securities for Richey, and conditioned that Richey should make an assignment of his property for tho benefit of his creditors,'under the act of 1805, for the relief of insolvent debtors. It seems, from the record, and particularly from the award of execution in favor of Sanders, that Sanders was one of the creditors of Richey at the time the bond was executed; and that the scire facias was issued to enable Sanders to enforce the collection of his claims. It is unnecessary to determine in what manner Sanders might avail himself of the judgment in favor of Pounsford, to secure his debt against Richey. Admitting a scire facias to be the proper remedy, the nature and extent of his claims ought to be set forth in the writ with some degree of certainty. The writ contains no averment that- Richey was at any time indebted to Sanders in any amount, nor does it set forth any facts from which even an inference of such indebtedness can be drawn. Writs of this description must contain everything that is required to constitute a good declaration; or, in other words, they must set out all the facts that are necessary to show a right in the plaintiff to the relief prayed for. 2 Ohio, 248. The award of execution in favor of Sanders is not warranted by any matters contained in the record, and is, consequently, erroneous.

Judgment reversed.


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    *Peter Roll v. Henry Raguet.
    An action can not be sustained upon a promissory note, the sole consideration of which is an agreement on the part of the payee not to prosecute the maker for felony.
    Error to the court of common pleas of Hamilton county.
    Henry Raguet brought a suit in the court below, against Peter Roll and Charles Roll, upon a promissory note for the sum of five hundred dollars. Charles Roll was returned by the sheriff, not found, and the declaration was filed against Peter Roll, -in the common form of the payee against the maker.
    The defendant, besides the general issue, pleaded in bar, that before, and at the time said note was given, Charles Roll, who was the son of the plaintiff in error, was suspected and accused by Raguet of having feloniously taken his money, goods, and chattels, in Cincinnati; that Raguet was about to institute a criminal prosecution against Charles Roll, and cause a judicial investigation to be made touching said supposed felony, and threatened Charles and Peter Roll that, unless they would pay him five hundred dollars, he would subject Charles Roll to undergo an examination before some judicial tribunal for said supposed offense, and would endeavor to cause Charles Roll to be indicted and sent to the penitentiary for the same; but at the same time promised and agreed with Charles Roll and Peter Roll, that if they would pay him five hundred dollars he would altogether desist from instituting any criminal prosecution against Charles Roll, nor would he appear before any judicial tribunal to give evidence against him for said supposed offense; but would endeavor to suppress any investigation concerning the same. That, in order to prevent a criminal prosecution against Charles Roll, and to save him from any indictment and punishment, and in consideration of said agreement on the part of Raguet, he, Peter Roll, made and delivered to Raguet the note in the declaration mentioned.
    To this pica there was a general demurrer and joinder. The court below sustained the demurrer and gave judgment *in favor of the' defendant in error; to reverse which this writ of error was prosecuted, and the common error assignod.
    Caswell & Starr, for the plaintiff in error:
    The only question for the investigation of the court is, whether the consideration of the note, as set forth in the plea, makes the note void, and the plea, sufficient. We contend that it does; and we think the position can be most amply sustained by authority and principle.
    The two following propositions are laid down in all of the books, and if they are true, they must make an end of the case:
    1. All contracts, agreements, or promises, whose consideration is illegal, contrary to sound policy and good morals, are void.

    Starkie, in his treatise on the law of evidence, says, in the words of our proposition, that, “if the consideration be illegal, or contrary to justice and sound policy, no action can be founded upon it.” The maxim is invariable, that “ex turpi causa non oritur actio." 2 Stark. 87.
    “ Courts will not lend their aid to enforce a contract where the consideration is illegal or immoral.” 7 Term, 601. Hence, contracts in consideration of prostitution, or whose effect is the encouragement of prostitution, have been holden to be void, because contrary to good morals. 1 Swift, 210; Cowp. 29. So, also, it has been holden that all contracts contrary to sound policy are void. Such, for instance, as where a mechanic or physician should agree not to exercise their several professions, for a sum of money; for these contracts are injurious to the public welfare. 1 Swift, 218 ; 1 P. Wms. 181.
    If these authorities sustain our proposition, and if that be true, an executory contract, like that under consideration, must be void. It is surely as immoral for a man to bind himself to conceal a crime, as to suppress the evidence of guilt; and to enforce such an agreement is as much opposed to good policy as to contract for the purpose of prostitution, or to discontinue a valuable trade or profession.
    *Every man is morally and legally bound to take notice of all violations of criminal law, and to take all proper steps to procure the conviction of the offense; or, at any rate, not to throw obstacles in the way of it. To take a bribe, or the promise of one, as “ hush money,” is surely highly immoral; and no contract to pay such bribe, or hush money, ought to be sanctioned by a court of law. These views are fully sustained by all writers on the subject of contracts, and by all courts, both in England and America, have been holden to be fundamental principles of jurisprudence.
    Pothier, in his elaborate treatise on obligations, observes: “ Whenever an engagement is entered into, with a view to contravene the general policy of the law, no form of expression can remove the inherent defect in the nature of the transaction. The law will investigate the real object of the contracting parties, and, if that is repugnant to the principles established for the general benefit of society, it will vitiate the most regular instrument which ingenuity can contrive.” 2 Poth. Obi. 12; 2 Kent’s Com. 366.
    It was decided by the court of common pleas, in Parsons v. Thompson, that a promise by a person to pay a sum of money to another, in consideration that the latter would resign a public office which he held, and if the former should be appointed to succeed him, was void. Such a contract, said Lord Loughborough, is not the proper subject of an action. 1 Hen. Black. 322.
    Lord Mansfield, in deciding a case similar in principle to the present, says : “ The objection that a contract is immoral and illegal, sounds very ill from the mouth of a defendant; and it is not for his sake that the objection is allowed. But still, to permit such a defense, is politic.” . . . “No court will lend its aid to a plaintiff who founds his action on an illegal or immoral act. If it appears to the court that the action arose ex turpi causa, they will say he has no right to ask their aid. It is upon this ground the court proceeds, and not for the sake of the defendant. Holman v. Johnson, Cowp. 341.
    Pothier, in another part of his treatise, remarks, that, “Every transaction, the object of which is the violation of public or private duty, is void. A promise of a bribe to a ^public officer, agreement to stifle a prosecution for any crime of public nature,” etc. 2 Treatise on Oblig. 4.
    Powell, also, in his treatise on the law of contracts, says: “All contracts having a fraudulent design in view are void, both in law and in equity.” Pow. on Con. 185.
    Again, he says: “ A contact is unlawful, in a proper sense, if the object of it be to induce the omission of something in a person, the doing of which is a duty in the person with whom it is made.” Id. 195.
    So also of a contract to encourage a criminal act, as if a man bet with another he will seduce a certain woman. Id. 196.
    Judge Story’s pleadings contain the form of a plea similar to the one now under consideration, which he says was solemnly argued on demurrer, and sustained, taken from 7 Wentworth. Story on Plead. 125.
    And the Supreme Court of New York, in an action brought on a promise made by an insolvent debtor, applying for the “benefit of the act,” to one of his creditors, in consideration that he would not oppose the debtor’s application, after deciding the promise to be void, says: “ The promise was illegal. It was founded in fraud, and made for the purpose of stifling due scrutiny into the claim of the defendant to a discharge under the insolvent law.” 2 Johns. 386.
    In a similar case the same court says: “The consideration for the bond was illegal, and against the true interest and policy of the insolvent act.” 4 Johns. 410.
    Comyn, in his treatise on contracts, lays down the same principles very explicitly. He says: “All contracts or agreements, which have for their object anything which is repugnant to justice, or against the general policy of the common law, or contrary to the provisions of any statute, are void. The common law prohibits everything which is unjust, or ‘contra bonos mores.’ Therefore a contract or agreement which is made in contravention of these-general principles, is void.” Com. Con. 29, 30.
    On comparing these principles with the case presented in our plea, it seems impossible to restrain the conviction that they fully support its sufficiency. The plea asserts that the consideration of the note was the suppression of a felony, *and if that be not illegal, immoral, or contrary to the policy of the law, we know not what is. We have shown that a promise by an insolvent debtor, in consideration of the silence of his creditor, on his application for a discharge from his debts, was illegal, because tending to. the-injury of the public. Can anything be more injurious to the public weal than a promise to coneeal the evidence of crime ?
    Felonies of every description, almost, are .punished by the courts of' Ohio. It is of infinite importance that every citizen should feel the force of the obligation resting on him to aid in bringing felons to justice. Surely, then, this court will not say that it is not immoral, impolitic, and improper in the highest decree, for a citizen-to sell his silence on every occasion where he may have been so fortunate as to have been a speculator on the commission of a felony, or lend its aid in enforcing payment of the price of such silence.
    But to sustain his plea, the defendant need not rely upon the broad principle of' the immorality of the consideration of the note, or of its being so much opposed to the policy of our criminal code.
    There is still another general principle of law, founded perhaps, upon the principles already laid down, which bears directly upon the issue, and fully sustains the sufficiency of our plea, viz:
    2. That all contracts made to prevent the due course of justice, are void.
    This principle, if it can be established, settles the question, and no proposition is more capable of being supported by high authority. To stipulate to coneeal the evidence of guilt, conflicts immediately with the course of equal and exact justice. If this be not true, then there can be no punishment for crime, unless it chance to be associated with poverty. Whenever there is ability to purchase silence, silence will be bought, and courts will countenance such bargains and lend their aid to enforce them. But they have never yet done so, as an examination of a great many cases will abundantly show.
    The promise of Raguet was to conceal the evidence of a felony from the officers of justice, and for this, Roll promised *to pay him five hundred dollars. This was clearly “compounding a felony,” and there is no principle of law better settled than that ■such a contract is wholly invalid, binding on neither party, and at ■the common law, was of itself a high crime and misdemeanor.
    Blackstone says, that “ formerly it was holden to make a man an accessory, but is now only punished with fine and imprisonment. By the ancient Gothic institutions it was liable to the most severe and infamous punishment. 4 Black. Com. 133."
    And the Latin law, “ latronirum simüam habuit, qui furtum celare veiled, et acculte sinejudice compositionem ejus admittere." Stiernhde Jur. Goth., c. 3, 5.
    We need not resort to analogy to support this doctrine. Our reports, ancient and modern, abound with cases in which it is rec-ognized. On the authority of a very ancient case in 1 Leonard, Swift, Comzar, Pothier, and Powell all say, “that if A. promise B. money in consideration that B. shall not give evidence in a certain case, such contract shall not be enforced, for it is unlawful -and iniquitous for a man to suppress testimony.”
    The case of Collins and Blantern was an action on a bond to pay money in consideration of suppressing a prosecution for perjury, and the question arose on a demurrer to a plea similar to the one now before the court. Wilson, 341.
    In giving the opinion of the court, overruling the demurrer, •Chief Justice Wilmot uses this emphatic language: “ The manner of the transaction was to gild over and to conceal the truth, and whenever courts of law see such attempts to conceal such wicked -deeds, they will brush away the cobweb varnish and show the transaction in its real colors. This is an agreement to stifle a prosecution for willful and corrupt perjury, a crime most detrimental to the commonwealth, for it is the duty of every man to prosecute and bring to justice all’ offenders of this sort. This is a contract to tempt a man to transgress the law and to do that which is injurious to the community. It is void by the common •law, and the reason why the common law says such contracts are void, is for the public good. You shall not stipulate for iniquity. *A11 writers agree in this, that no polluted hand shall touch the pure ’fountains of justice.”
    Swift, also, says, that, “ all contracts made in consideration of compounding felonies, or crimes, are void.” 1 Swift, 217.
    Baily, in his treatise on bills, says: “ Dropping a criminal prosecution or suppressing evidence thereon, is an illegal consideration.” Baily on Bills, 357.
    In Swelt v. Poor, which was an action brought on a contract of maintenance, the court say, “no principal is more clear than that a man can not build up a right on an illegal or immoral act of his own.” 11 M. T. 564.
    So in Worcester v. Eaton, where the consideration of a deed was the concealment of a theft and an agreement not to prosecute, the ■same court hold a similar doctrine, and recognize all the principles we have laid down. Id. 368.
    In Johnson v. Ogilbie, the chancellor said that a bill in equity would not lie to compel the performance of an agreement to pay money in consideration of having stifled a prosecution of felony. 2 P. Wms. 277.
    Chancellor Kent, in his learned lectures, adopts all of the principles for which we contend. 2 Kent, 366.
    The courts of South Carolina have adjudged a case precisely in point. In Bell v. Woods, they say: “A note given to compound a felony is void at law, as well as in the hands of an innocent indorsee, as of the payee.” 1 Bay, 249.
    ■ These authorities ought to put this question to rest. It seems from them that the positions we have taken are no novelties. Contracts of this kind, doubtless, are as old as crime itself; and if we can judge from the institutions of ancient nations, they have ever been considered violations of moral duty, opposed to the best interests of social communities, and wholly invalid and void, binding neither one party nor the othér. Suppose the situation of these parties was reversed; that Raguet, notwithstanding his promise, had procured Charles Roll to be indicted, and an action had been brought by the Rolls, to recover damages against Raguet, would this court have scouted at such a suit ? It would, in our opinion, have been a contempt of court in the *attorney who would bring such a suit. It would be almost as strange a case as that of Everett and Williams, which was a bill in chancery by one highway robber against his partner, to compel an account of the profits of their busines. In that case the court decided the bill scandalous and impertinent, and the solicitors who filed it, attached and fined. In'what respect, we would ask, upon principle, are these cases different, and in what is Raguet’s merit greater than that of the robber, who filed his bill on a partnership contract to rob and plunder on the highway, or than Roll’s would have been, had they sued Raguet fora violation of his agreement'? The difference in the cases is only this, that it is a less crime to-conceal a felony than to commit it, a difference which, perhaps, may save him from an attachment for contempt of court, but adds nothing to the merit of his cause, or to the validity of his contract.
    It is a self-evident truth, that no government, where the governed have rights, can exist long, if contracts like that between Raguet and Roll are respected by courts of law. No government can enforce its laws, if they sanction, in any shape, the doings of swindlers, cheats, or felons. Fraud, crime, and force taint everything1 with which they come in contact. And every contract, or agreement, tinged with the slightest shade of either, becomes an object, too offensive for the eye of justice to endure. No other rule will protect the honest and moral part of mankind from the arts and violence of the wicked and corrupt. And upon these principles, courts have ever sat in judgment upon contracts of this description, as a host of authorities will show. Courts have said :
    That contracts against the-provisions of statutes : 4 Bun. 2225; 5 Term, 723; B. & P. 272, 551; Carth. 252 ; 1 Nott & McC. 211, 178 ; 2 Bay, 260.
    Contracts, where the consideration is the commission of some-crime : 17 Johns. 142 ; 1 Viner, 299; Bull. N. P. 146 ; 3 Bun. 1568.
    Contracts, where the consideration is an undertaking to defame government, or persons: 3 Term, 551; 2 Term, 763 ; 4 Term, 166; 6 Term, 143; 1 Chan. 87 ; Doug. 450; 4 East, 372.
    *Contracts to oppress third persons, or founded in oppression : 2 Bun. 925 ; 9 East, 416.
    Contracts to induce a violation of public duty: Cro. Eliz. 230, 199; 2 Car. Law, 66.
    Contracts tending to encourage unlawful acts: 3 Marsh. 433; 2 Bibb, 453.
    And contracts growing out of trading with an enemy, in time of war, are void. 1 Pow. 191; Bull. N. P. 146.
    The decisions in these eases have been made upon the principle, that to give effect to such contracts, impairs the benevolent operations of all laws, and furnishes a strong temptation to crime and fraud. And they show, too, that no cover however ingeniously put on, will avail, to prevent courts of justice from de« tecting the real motive of such proceedings. 17 Mass. 258; 2 Kent’s Com. 366; 2 Peters, 529.
    It may be urged here, as it was in the court below that the general principles we have laid down, on the subject of compounding felonies, apply to those eases only where prosecutions had actually been commenced. An examination of some of the cases which we have cited, shows that there is no merit in the distinction ; and it is self-evident, that a rule so restrictive would furnish but a feeble protection to the property and persons of the honest and poor. 11 Mass. 368 ; 9 East, 49; 1 Bay, 249.
    Nor is there any merit in the distinction, that there is not in this state any statute making it criminal to compound felonies Burnet’s opinion in Key v. Vattier, 1 Ohio, 144.
    It is enough, that it is highly immoral and impolitic to make such an agreement. And we think that we have shown, that contracts of this kind are contra bonos mores, and to the general policy ■of our criminal laws.
    Suppose, in this case, that Mr. Boll, the plaintiff in error, had gone to Mr. Eaguet, and said to him, somewhat in this way : “lam told, my son has stolen your property, and that you mean to prosecute him. I am unwilling he should be exposed and punished. Now, if you will say nothing about it, and desist from all attempts at prosecution, I will give you my note for five hundred dollars.” The proposition is made and accepted. (The precise case presented by the pleadings *in this suit.) Suppose, again, that an indictment had actually been found, and the trial about to come on, and Mr. Eoll, apprehending that Mr. Eaguet might appear as a witness against his son, had gone to him and said: “ If you will not .give evidence against my son, but will withdraw out of the jurisdiction of the court, so that you can not be summoned as a witness on the trial of the indictment, I will give you my note for five hundred dollars.” The last proposition is made and accepted. "Will it be said that any court would lend its aid to enforce a collection of the note in the one case, and not in the other, merely because an indictment had not been found ; or that the guilt or innocence of the suspected son could make any difference, as to the principle of law applicable to the case? Or, that the father would be subjected to the payment of the notes, if 'his son was guilty, or exempt from their judgment, if innocent ? In both cases, it would •be an agreement, on the part of Eaguet, to sell his silence; to take hush-money; to receive a compensation not to tell; to take a reward ; indeed, to suppress evidence, touching a criminal offense.. And can notes, given for such purpose, be valid and effectual in law ?
    The distinction attempted to be set up, is a fanciful one. It is a distinction without a difference in principle. It is unworthy an enlightened administration of justice, and receives no countenance from the books. We therefore think, that there was manifest error in the judgment of the court below, sustaining the demurrer' to our plea.
    In the above argument, the case of Key v. Vattier ought to have been cited, as settling all the principles for which we contend'. Judge Burnet’s opinion is conclusive on all the points we have-made.
    Storer, contra:
    The plaintiff in error contends that the demurrer to his plea in-bar, should have been overruled in the court below, and that the court, erred in sustaining the same.

      First. Because the matters pleaded, show that a prosecution for felony was compounded.
    *In order to apply.the doctrines of the common law, and the adjudications under the English statutes, to the present case, it will be necessary to examine the reasons on which those doctrines are founded,_ and to investigate the causes which produced the enactment of those statutes.
    Anciently, every felony was punished with death. The tenant followed his lord into the field, and as there was no provision made for his support, he was compelled to bring into the camp his own food, as well as his weapons; hence a most rigid and severe administration of justice was induced by necessity.
    To protect the property of the vassal from injury, and to prevent a resort to force in its defense, the punishment of death, in a. most summary manner, was instituted. As society advanced in civilization, it was deemed impolitic to dispense at once with the severity- of the ancient law, and, although the reason of the old. rule had ceased, still, it was adhered to in a great variety of instances. The person attainted, or convicted of felony, as he had deprived his lord of his services, by the forfeiture of his body to-the king, his blood became corrupted; he consequently died without heirs, and the lord became entitled to all the vassal’s property by escheat. The same held as to chattels. This principle, when, the relation of lord and vassal ceased, was extended to embrace-the relation of king and subject, and the same consequences attached.
    So rigidly was it enforced, that the forfeiture related back to the time of the offense, and avoided all intermediate alienation. 3 Bacon’s Abr., title Felony, 128, and title Forfeiture, 271.
    By the felonious act, then, it is found that the body and goods-of the offender became forfeited to the government, and all individual control over either.one or the other, on the part oí the offender, was at an end.
    Every act of the criminal, that prevented an inquiry into his case, was deemed a fraud upon the king; and it is said, that Lord Holt once held that a bill of sale was fraudulent as to the king, because the vendor was in Newgate, and had disposed of the goods-to his son. So perfect was the forfeiture of the goods by the felon, that it was held no ^action would lie, by the owner of the property stolen, to recover it. Hence the statute, 21 H. YIIL, c. 11, was enacted, by which restitution of the goods stolen is adjudged to the true owner.
    Subsequent to the passing of this act, it was held that where an appeal of robbery was brought, trover would not lie against the felon for the goods stolen, because the taking shall be adjudged felonious, and not merely a conversion. 6 Bac. Abr. 689, title Trover. And in latter times the English courts have held the rule thus laid down to be in full force.
    In Gibson et al. v. Minet et al., 1 Blk. 569, it is said “that it is against the policy of the law to permit a party who has suffered by the crime of another to seek a remedy by a civil action.” And in Masters. Miller,4 Term, 320, Buller, Judge, says, “ That where a case amounts to felony, you shall not recover against the felon in a civil action.” Now the true reason for these decisions may be traced to the statute of Henry VIII, to which I have just referred.
    Where the law gives restitution by the same act which convicts the offender, there is no necessity for a private action. And the pending of a civil suit, under these circumstances, might produce an unfavorable effect upon the proceedings against the criminal on the part of the commonwealth.
    Previous to the passage of the act alluded to, the least interference on the part of third persons with the felon, nay, even the passive silence of any one who knew of the existence of a crime, were held to be misprisions. It is matter of curious inquiry to look into some of the cases where legal subtlety, in an age of absurd legal technicality, transformed acts, indifferent in them'Belves, into offenses. “ It was held silently to observe the commission of a felony, without using any endeavors to apprehend the .offender, is a misprision.” 1 Hawk. P. C. 659, s. 2. “A man is •bound to discover the crime of another to a magistrate with all possible expedition.” 1 Hale P. C. 372. In this chapter Sir Matthew Hale remarks, “ That by the old law, in Bracton’s time, if a man knew of a treason he was bound to reveal it to the king, or some of his council, within two *days, but at this time it is. misprision if he reveals it not as soon as he can to some judge of the assize.”
    The statute of Westminster, 3 Ewd. I. Eg. is the first act upon the subject of misprision of felonies; thi3 is confined to public offenses.
    By the 3 H. VIL, c. 1, the second statute that was passed, power was given to the justices of every shire to hold inquests to ■discover all concealments of felonies, and to punish accordingly.
    From misprisions we proceed to another species of offenses, which was anciently denominated theft bote, but is now termed compounding a felony, which is, when the party robbed not only knows of the felon, but also takes his goods again, or other .amends, upon agreement not to prosecute. 1 Hawk. P. C., c. 59, s. 5. By the statute, 18 Eliz., c. 5, s. 4, it was made criminal to compound any offense without the consent of the court.
    By the statute, 4 Geo. L, c. 11, it is made felony to help a person who has stolen goods; and by 25 Geo. I., c. 36, to advertise even a reward for the return of the things stolen, the person incurs a forfeiture of fifty pounds. From the short exposition I have thus .given, it appears clearly that the reasons on which the common law principle is founded are peculiar to the age and government where that law existed in its original rigor.
    These reasons do not obtain in this country. It is equally apparent, I conceive, that the English statutes have been enacted either to mitigate the severity of the common law, in this respect, or to sanction, by some legislative expression, the existence of the. .ancient rule.

      Whatever may be said as to the principle of public policy, it. can not be urged that the common law or the statutes were founded upon it. They were both the result of arbitrary maxims, which became rules from necessity in the first place, and were .afterward so interwoven into the system of criminal jurisprudence that it was found difficult to carry into effect the penal code of the kingdom, unless those principles were pertinaciously adhered to.
    Notwithstanding the strictness with which these principles have been applied, their absurdity has been exposed, and their authority questioned by British judges.
    *As in Buller’s Nisi Prius, 131: “ In assumpsit for money received to the plaintiff’s use, proof that a lamb was driven to London and sold there by the defendant, will be sufficient unless it appear to be stolen, where trover would be the only proper action.” And another is mentioned in Buller, “ where a nurse ran off with a dead man’s money, the administrator was permitted to bring an action for the amount.”
    In this country, the reason of the rule has ceased. Felony, or that species of it which it is alleged was attempted to be compounded in this suit, is followed by no forfeiture of life, limb, or estate.
    The case of Boardman v. Gore et al., 15 Mass. 331, embraces much of the discussion on the point now before the court. Judge Parker observes, “that whatever may have been the reason in which the common-law doctrine was founded, it is plain that, the reason has ceased with us. In the few cases of felony which are punished with death here, it may be that the principle is still in force, so far as that the felon may not be sued in a civil action ¡until alter acquitted or pardoned.
    For if convicted, he will be executed, and as felonies include a. trespass, the action dies with crime. But there seems to be no reason why the injured party may not have an action for his damages, where the wrong-doer is living, and has estate sufficient to compensate the wrong.
    I assume this principle, then, that before a prosecution can be said to be compounded, there must have been one commenced. It is not alleged in the pleadings that one was pending, or that any proceedings of a criminal nature had been had.
    All the authorities quoted by complainant’s counsel proceeded on this principle. 1 Comyn on Contracts, 28, 30, 32. The text con* tains the precise proposition I have presented, and the leading case of Collins v. Blanturn, 2 Will. 341, is quoted to sustain it. On examining this authority, it appears that an indictment had been-found for perjury, and in consequence of receiving a bond for several hundred pounds, the plaintiff, who was a witness, agreed not to appear or prosecute. In a suit brought upon the bond, the court very ^properly decided that they would not lend their aid to enforce it.
    The quotation from Powell, 93, is to the same point. 1 Swift, 237, like Bacon’s Abridgment, embodies all the authorities referred to, with the addition of the judges’ comments, but no one case is. here to be found which conflicts with the principles I contend for.
    In Johnson v. Ogilby, 3 P. Wms.277, the chancellor expressly says, “This is a criminal prosecution, and the agreement is to stifle it;” and on referring to the reporter’s account of the case, it appears an indictment had been prepared for a cheat, and just before the trial, came on, it was compounded. Evans’ Notes on Pothier, which are referred to by plaintiff’s counsel, support the same position.
    In Harding et al. v. Cooper, 1 Starkie’s N. P. Cas., a prosecution had been commenced against the defendantfor having fraudulently obtained his discharge as a bankrupt, and a bill of indictment was found. An agreement was made by defendant’s father-in-law, to give his acceptance for two shillings sixpence upon the pound, and the prosecution was abandoned in consequence; and Lord Ellenborougb expressly says, in giving his opinion “that it is an agreement to drop a prosecution, and is therefore illegal.” In Waite v. Harper, 2 Johns. 386, defendant agreed to give a certain sum if plaintiff would not oppose his dischai’ge under the insolvent law; the contract was held to be fraudulent, as tending to stifle a due scrutiny into the claim of defendant to his discharge.
    Bruce v. Lee et al., 4 Johns. 110, proceeded on the same ground, that the agreement was to stifle a scrutiny into the bankrupt’s claim to a discharge.
    Thus far the plaintiff in error and his authorities. Our view of the law is this: It is perhaps the moral duty of every man to inform the proper authority of all offenses that he knows have been committed; but it is not his legal duty. The sin of omission is not a crime, however strong may be the claims of society upon the conscience. No man wishes to be a public prosecutor. The odium universally attached to such a profession would forbid any honorable man to embrace it. Until, then, some public act is performed by * which the right of the public, in the development of crime and the punishment of the criminal is clearly established— until an oath is made that an offense is committed, legally speaking — no prosecution is pending, and of course none can be “dropped” or “compounded.” It is clear that the owner of goods which have been stolen, should he obtain his property from the thief, by the promise that he would not prosecute him, would still be entitled to. retain his property. It was his before the promise was made, and no subsequent act of his, or of the felon, could deprive him of his right.
    Should, however, the felon be indicted, and the owner of the goods be the only prosecuting witness, his promise to the person, would certainly prevent his testimony from being received, and the prisoner would be acquitted; still the prosecutor would have the goods.
    On this principle, courts of equity have held that agreements between persons, the consideration of which was past cohabitation, are to be enforced. Johnson v. Ogilby, 3 P. Wms. 279; Annandale v. Harris, 2 P. Wins. 433.

      Second. It is said, however, that the contract is void because it is against public policy. The public have an interest, I readily admit, in the reformation as well as the punishment of the guilty, and the example of public punishment is both proper and necessary.
    But there is a stronger reason why a contract of the nature now excepted to should be supported' than can be urged against the execution. Crime is rendered such, not unfrequently, by being made public. Reformation is, in almost any case, made hopeless by similar means. If, then, a young man who has defrauded his employer while a clerk, to a large amount, should be induced, when accused of the act, to do justice to the injured party, and, in a spirit of penitence, be willing to make amends, and to effect so desirable an object his father should join in the security, why does not public policy sanction such an agreement?
    Is it immoral; is it opposed to a full or perfect control of the criminal laws .of the country over the subjects of these laws? Restitution is a moral duty. A moral obligation is always held to be a good consideration to support a contract. By our statutes defining and punishing crimes, no restitution *is ordered to be made on conviction. There is no judgment that the criminaL shall pay to the injured party the value of the property purloined. If the party injured had no right to receive back his goods before conviction, the doctrines of the G-oths and Yandals, whose code is referred to in 3 Kent’s Com., must prevail.
    The property stolen vested in the government, and thus the authority that framed the law, by an act of moral turpitude on the part of any man, became accessory to his guilt.
    The party injured may forbear to prosecute. He is not compelled to inform. How, then, can the state interpose and complain of a violation of her unwritten law in compounding prosecutions, ■as opposing good morals?
    In the absence of all statutory provisions on the subject, the rules of the common law, so far as they are consistent with our institutions, must doubtless prevail. In the application of these rules to the present case, whether the defense sought to be sustained is such a one as ought to have been made, is to be gathered from all the facts stated in the plea. It is alleged, that the father consented to become security, to prevent his son from being sent to the penitentiary. This implies guilt. In cases somewhat similarly situated the usual averment is, that the prosecution, if there was any, was groundless, and the accusation without any foundation in truth. A bond given to a person injured by an assault and battery, to make satisfaction and to prevent prosecution, was held to be legal and valid. Price v. Summers, 2 South. (N. J.) 578.
    We have no statute by which the concealment or compounding of offenses is punishable. Our legislature have not found it necessary to enact any law on the subject, and their silence is evidence that there was no necessity for their interference. Even in England the courts have exercised a discretion in permitting the parties to compound, and this, too, without the assistance of a statute. And in Ohio, a law was passed a few years since, that on complaint before a justice of the peace, for an “assault and battery,” the parties might compound on the trial, and prevent any further prosecution.
    *In Beeley v. Wingfield, 11 East, 56, a note was taken by the parish officers from the defendant, who was prosecuted for a misdemeanor; the amount of the note was forty-two pounds, and the consideration the expenses of the prosecution. The note was given on the intimation of one of the justices of the sessions, that the punishment would be proportionabiy lighter; and this note was held valid by the court of King’s Bench, and a similar decision, in principle, is to be found in Baker v. Townsend, 8 Taunton, 424.
    Can it, then, be contended that it is against public policy for the-injured party to receive a security for the amount of the property ho has lost, where no restitution is made by statute, and no remedy by law?
    Is the unfortunate person who has lost his goods to permit what the defendant’s counsel contend is public policy, to take from him all right to recover, all right to secure ?
    If he loses his chattels he can sue the finder, but if they are stolen the felon is protected, according to the construction of those-opposed to us. We do not thus reproach the law with injustice.
    Dr. Paley, in his chapter on promises, at page 93 of his Moral Philosophy, justly remarks, “ It is the performance being unlawful, and not the unlawfulness in the subject or motive of the promise which destroys its validity; therefore, a bribe after the vote is given, the wages of prostitution, the reward of any crime after the crime is committed, ought, if promised, to be paid. For the sin and mischief of this supposition is over, and will be neither more nor less for the performance of the promise.” And, again, “a promise can not be deemed unlawful where it produces, when performed, no effect beyond what would have taken place had the promise never been made.”
    The defense in this case is a disgraceful one to the plaintiff in error. To say nothing of the father’s duty, not to question his-motive, or suspect his integrity, we must be satisfied he has exposed the turpitude of his son, and wishes now to defend himself under-his -own consciousness that it is better for his child to become morally infamous than that the parent should expend part of his. fortune to conceal his obliquity. No parallel case with the present can be found *in the books. Every case I have met with, every case quoted by the opposite counsel, proceeds on the supposition that a suit was actually prosecuted, or an indictment or information actually pending when the composition of the offense-was made.
    Ames,
    on the same side.
   By the Court :

A father and son join in giving a promisory note, for the consid•eration that the payee will abstain from prosecuting the son for a larceny, and will not appear in a court of justice as a witness against him.

The court are not called upon to decide whether an action may be supported upon a promise to pay for stolen goods, nor whether an action will lie to recover private damages sustained by the commission of a public offense. The only question presented by the record is, whether a court of justice will lend its aid to enforce a promise for the payment of money, the sole consideration of which is another promise, made by the plaintiff, to conceal or stifle the prosecution of a crime, perpetrated against the peace and common good of mankind.

The well-being, the existence of every government, obviously depends, in a great measure, upon the due execution of its criminal laws. Any contract, therefore, the consideration of which is to conceal a crime, or stifle a prosecution, is necessarily repugnant to public policy; and it is a settled rule'of law that all contracts, whose consideration is contrary to public policy, are void. 2 Kent Com. 366; 2 Stark. Ev. 87.

It is unnecessary to inquire whether such contracts arc positively prohibited by law, or whether it is, in all eases, the legal or moral duty of an individual, cognizant of the commission of a crime, to make a disclosure to the proper authorities. Admitting the existence of cases where silence would be excusable, it by no means follows that an express contract to conceal the offense, or smother its prosecution, must be sanctioned by the law, or enforced by the judicial tribunals of the country.

*The objection, that when the contract was made, no suit had been commenced, or indictment found, is without foundation. The same, if npt stronger reasons of public policy, exist before as after the existence of a prosecution. By a public prosecution the offender becomes notorious, and the community are put upon their guard. By a composition of the felony, in secret, without any prosecution, the true character of the offender is unknown, and the community are subjected to depredations, which might other" wise be anticipated and prevented.

As between the parties to this action the defense may not be very honest; and we may adopt the language of Lord Mansfield, (Camp. 341), “that the objection that a contract is immoral or illegal, as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded on general principles of policy, that ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.”

Whenever an agreement appears to be illegal, immoral, or against public policy, a court of justice leaves the parties as it finds them; if the agreement be executed, the court will not rescind it; if executory, the court will not aid in its execution.

Judgment reversed,

         Same principle, 4 Johns. 419; 12 Johns. 306; 19 Johns. 341; 3 Cowen, 213; 11 Johns. 388; 2 Wils. 341.


author: By-the Court:

text:
    *John C. Avert v. William Ruffin.
    When the court of common pleas make an order under the statute to distribute fees between the late and present sheriff, the Supreme Court will not interfere unless a strong ease of abuse is presented.
    Certiorari to the court of common pleas of Hamilton county.
    On September 4, 1823, a ft. fa. et lev. fa. was issued to William Ruffin, then sheriff of Hamilton county, in favor of E. Graham w. T. Graham, for five thousand four hundred and fifty-four dollars, with costs, returnable at December term, 1823. This execution was levied upon the real estate of Thomas Graham, by Ruffin.
    On April 21, 1829, Ruffin’s time of office, as sheriff, having’ expired, a vendi. expo, was issued to August term, 1829, directed to Avery, the then sheriff, to sell the real estate thus levied oh by Ruffin, the former sheriff. Upon this writ Avery sold the land and made the money, and, at August term, 1829, the court, upon the application of Ruffin, ordered the poundage to be divided between the present and late sheriffs, in the proportion of two-thirds to the former, and one-third to the latter. To this order Avery excepted, and to quash it, sued out this certiorari.

    Storer and Fox, for the plaintiff in certiorari:

    We claim: 1. That the court had no power to make any distribution of the fees referred to between the former and present sheriff.

      2 and 3. That the fees for poundage belong to the officer who-makes the sale, exclusively, and no part of it could be claimed by a former officer, who may have made the levy merely.
    The act regulating sheriff’s fees (vol. xxii. 204) provides that "the sheriff shall receive “poundage on all moneys made in execution, two per cent.”
    In 1826 the legislature passed an act providing: “That in all-cases where any sheriff or coroner, having levied any execution,, and whose term of office having expired, shall have returned such execution unsatisfied, or shall have delivered the same to his successor in office, before the money could be made thereon, it shall be lawful for the Supreme *Court, or court of common pleas, etc., to order the poundage and fees, etc., to be distributed between every such sheriff or coroner, and his successor, who shall have made the money thereon, in such proportion as they shall deem, just and equitable.” The question involvéd in the present suit depends on the true construction of the act last referred to. Nothing can be gathered from the decisions of other courts to aid this court in forming a correct judgment in the present case. It is a question about which very little can be said by counsel. It is contended by counsel that the sheriff’s fees are named in the fee bill, and his right to the fees depends on the actual making of the money. It is a compensation for the risk of receiving and paying over the money, no part of which is run by the old sheriff, and, of course, he ought not to receive any portion of the compensation allowed for that risk.
    The court have already decided that no right exists to fees for-poundage, unless the money is actually received by the sheriff. The act above referred to is evidently based on the supposition that something has been earned by the sheriff who made the levy. But the decisions of this court show that the right to any fee is not acquired by a levy. The court, therefore, might as well undertake to give the poundage to the clerk as to the old sheriff, and to a stranger as well as to the clerk or sheriff.
    N. Wright, contra:
    On motion of Mr. Ruffin, late sheriff, the court below ordered that one-third of .the poundage charged in the case stated in the bill of exceptions, be paid by the defendant, then sheriff, to Ruffin, the late sheriff. To reverse this order certiorari is brought. In. the case stated, Ruffin had made the levy, and had taken various steps for making the money, but Avery made the sale. Ruffin contends that he is entitled not only to one-third, but to one-half the poundage.
    The original order and motion were made pursuant to the statute ot February 5, 1825. About that period a law had passed requiring the sheriff, who retired from office, to transfer *all executions with property under levy, into the hands of his successor, thereby changing a practice, previously common, of issuing vendíes to the ex-sheriff. In such casos a division of the poundage became necessary to a fair apportionment of reward according to labor. In our law poundage is given nominally for making the money; but, in making the money, many preparatory steps are necessary, which are all properly included in the labor of making the money, and should be compensated as such. There is no fee for searching out the property, for the hazard of seizing and keeping it, for the offering the property for sale, for the risk the sheriff runs of liability for trespass in these proceedings, or for sundry other services attending the protracted proceedings often attending levies on land. To compensate for all this, poundage is given, not accruing, to be sure, unless the money is actually made; but when it does accrue, obviously standing as a recompense for all the unfeed services necessarily attending the making of the money. If the money is made by a sale of land, the levy is as much a part of the labor by which the money is made, as the receipt of the money itself. Hence, the legislature directed in the statute above cited, that when a sheriff should make a levy and his term of office expire, the court might order such distribution of poundage between such sheriff and his successor as they might deem just and equitable. This statute provides for the exact case in question, and seems to me to settle the matter of right.
    It has been argued that, as this court have decided that poundage is given only for the actual making or receiving of the money, that the ex-sheriff has had no part in receiving the money, and, therefore, it is not equitable that he should receive any part of the compensation.
    But this decision applies only to the question when poundage is taxable; it is obvious that by the statute regulating fees, there may be many cases when poundage, or some part of it, might be justly and equitably due, although not legally so. The law deals in generalities, and so fixes a general rule, which, if it operates harshly in some cases, makes compensation by a different operation in others. The rule must, of course, be fixed, and somewhat arbitrary to avoid the ^possibility of abuse. But that rule has nothing to do with the equity of the two sheriffs, arising out of the labor they may have respectively contributed toward making the money. Our statute fixes the case in which poundage is taxable, but does not fix the class of services for which it shall be considered a reward.
    The statute of 1825 surely settles all these queries, for it is nugatory entirely, unless it applies to poundage, and contemplates a division of it between the two sheriffs. The other fees, taxed by the ex-sheriff for specific services, could never be a subject of distribution. The sheriff who performs must have the pay. The statute, therefore, would be nullified if poundage can not be divided. There is no sheriff in the state who does not feel the injustice of toiling for years with levies and attempts to sell, and losing all the poundage, because on the eve of a sale, or, perhaps, even after a sale, the execution must be turned over to his successor.
    In the present case it is obvious that Ruffin’s share of 'the labor was half, at least, and he insists that the allowance to him should have been half. One object of the parties is, to fix some rule by which successive sheriffs may be guided. A general rule of one-half would, undoubtedly, operate more justly than any other, and as both parties excepted in this case, it is claimed, on the part of Ruffin, that the judgment below shall be corrected by awarding to him the half of the poundage, if that can be done.
   By-the Court:

At common law, an execution partly executed by a sheriff shall be completed by him after the expiration of his term of office; but by statute, vol. xxii. 201, sec. 8, he is directed to transfer all executions to his successor; and it is further provided, by the same statute, that no vendí, expo, shall be directed to, or executed by a sheriff whose term of office has expired.

By the statute of 1825, vol. xxiii. sec. 18, power is given to the Supreme Court or court of common pleas to order poundage and fees taxed to be distributed between the sheriff and his *successor, in such manner and proportion as they may deem just and equitable. The power to make the order in question was vested in the court of common pleas; and wherever that court has used its discretion in the exercise of that power, a strong case of its abuse must be presented to induce this court to interfere on certiorari. Let the order be affirmed.