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be prejudiced by the negligence of public offi. I laws which regulate the rights, duties and cers, to whose care they are confided. Without conduct of officers, in the service of such procundertaking to lay down any general rule as ess, according to the exigency, upon the person applicable to cases of this kind, we feel satis- or property of the execution debtor; and also fied that when, as in this case, a statute which all the exemptions from arrest, or imprisonproposes only to regulate the mode of proceed- ment under each process, created by those ing in suits, does not devest the public of any laws." right, does not violate any principle of public This quotation covers the whole ground of policy; but on the contrary, makes provisions controversy, on the effect of these words, "proin accordance with the policy which the govern ceedings thereupon.” We are of opinion, therement has indicated by many acts of previous fore, that the Act of 1828 gives to debtors im. legislation, to conform to State laws, in giving prisoned under executions from the courts of to persons imprisoned under their execution the United States, at the suit of the United the privilege of jail limits; we shall best carry States, the privilege of the jail limits in [*317 316*] into *effect the legislative intent by the several States, as they were fixed by the construing the executions at the suit of the laws of the several States at the date of that United States to be embraced within the Act act. of 1828.
We give no opinion whether that act would Having come to this conclusion, it only re-extend so far as to enable the imprisoned debt. mains to inquire whether the words in the Actors of the United States to avail themselves of of 1828, “the proceedings thereupon” (that is the benefit of the insolvent laws of the States, on executions), embrace as a part of those pro- as the question does not arise in this case. ceedings, the rights of an imprisoned debtor to Upon the whole view of the case, we think the have the privilege of the jail limits. Upon judgment of the Circuit Court correct, and it this question we are relieved from the necessi-is, therefore, affirmed. ty of argument by the decisions of this court. This cause came on to be heard on the tran.
In the case of Wayman v. Southard, this script of the record from the Circuit Court of court was expounding the meaning of the the United States for the District of Maine, words, “modes of proceeding,” in the Process and was argued by counsel; on consideration Act of 1792; and the question was, whether whereof, it is now here ordered and adjudged these words included "proceedings on execu- by this court that the judgment of the said tions." They decided that they did; but the Circuit Court in this cause be, and the same is Act of 1828, passed after the decision of the hereby affirmed. case of Wayman v. Southard adopted the very terms, “proceedings on executions,” because the expression is, “proceedings there. ! *SAMUEL L. FOWLER, Plaintiff in [*318 upon,” referring to executions, which had
Error, just preceded it. And the reasoning of the court in Wayman v. Southard, proves clearly HARRIS BRANTLY et al., Defendants in Er. that these last words would include proceedings by debtors to obtain the privilege of the jail liberties. In the same case of Wayman v: Purchaser of a note of peculiar form, chargeSouthard, it was objected that the Process Act
able with knowledge of custom of bank where of 1792 ought not to be construed as embracing the proceedings on executions, because if it
negotiable-fraud. did, it would furnish the rule as well for writs Action on a promissory note for two thousand of capias ad satisfaciendum as of fieri facias; dollars, drawn for the purpose of being discounted and that the marshal would be as much bound cashier of the bank or bearer, and upon which was
at the Branch Bauk at Moblle, payable to the to allow a prisoner the benefit of the rules un written an order to credit the person to whom the der the Act of Congress of 1800, as to sell upon the bank for the use of the drawers, the order be.
note was sent to be by him offered for discount to the notice, and on the credit prescribed by the ing signed by all the makers of the pote. The bank State laws; and that as the Act of 1800 had, refused to discount the note, and it was marked by separate and distinct legislation, provided with a pencil mark, in the manner in which notes for the jail limits, Congress could not be are marked by the bank wbich are offered for dis
The agent of the drawers, to whom the supposed to have provided for the same sub- note was intrusted to be offered for discount, put jects in the Process Act. But the court con it into circulation, after Indorsing it; baving dissidered this separate provision as to the jail for his own benefit, without the knowledge of
posed of it for one thousand two huudred dollars, limits merely as a cumulative act of legisla- | the drawers : and communicated to the purchaser tion, with a view to remove doubts that might of the note that it had been offered for discount have arisen from the jails in which prisoners wards given to other persons in part payment of a
The note was afterwere confined not belonging to the United previous debt, and credit for the amount was givStates. And this answers the argument urged en in the account with thelr debtors. at the bar, upon the ground of the several acts
of the note was that required by the bank when
notes are discounted, and had not been used bewhich especially provided for jail liberties, fore it had been so required by the bank. The Ciragainst the construction of the Act of 1828; cuit Court instructed the jury that the plaintif which would extend to embrace the privilege was not entitled to recover from the drawers of of jail liberties, within the terms, proceed The known custom of the bank, and its ordinary ings thereupon,” that is on executions. In modes of transacting business, including the preBeers et al. v. Houghton, Peters, 302, this
NOTE.-Notes and bills : Who will be deemed to court, in construing this very Act of 1828, say, have acted in good faith in taking same. "the words, the 'proceedings on writs of execu is notice to prevent holder recovering. tion and other final process,' must, froin their
What circumstances will amount to actual or very import, be construed to include all the the title to the note, so as to let it lo as a bar or
constructive notice of any defect or infirmity in
scribed forms of potes offered for discount, en at the Branch Bank of the State of Alabama, tered into the contract of those giving notes for
at Mobile. the purpose of having them discounted at the bank; and the parties to the note must be under
(Signed) “Harris Brantly, stood as having agreed to govern themselves by
"Peyton S. Graves, such customs and modes of doing business, and this, whether they had actual knowledge of them
"Hugh Ferguson, or not; and it was the especial duty of all those
“Credit: Diego M'Voy. dealing with the note to ascertain them, if un
"Harris Brantly, known. This is the established doctrine of the Supreme Court, as laid down in Renner v. The
"Peyton S. Graves, Bank of Columbia, 9 Wheat. In Mills v. The Bank
"Hugh Ferguson.” of the United States, 11 Wheat, and in The Bank The note had on it the two indorsements of of Washington v. Triplett and Neale, 1 Peters, 32. Diego M'Voy and William D. Primrose; and stance of suspicion to put those dealing for it that of Taulmin, Hazard & Company was afterwards on their guard, and in whose hands it stricken out. On the face of the note there 18 open to the same defenses It was in the bands was, in pencil, the figures 169. of the holder when it fell due. After maturity, such paper cannot be negotiated.
The defendants, the three makers, introduced
evidence to prove that the note, in its present N ERROR to the Circuit Court of the United form (except the indorsements), was sent by
one of the makers to M'Voy, who was his bama.
factor in Mobile, to be offered for discount in In the Circuit Court of Alabama an action the Branch Bank of the State in that city as an was instituted on a promissory note, by the accommodation note; the proceeds of which plaintiff in error, against the defendants, and a
were to be forwarded to said maker. That the verdict and judgment were entered for the de- note was offered for discount and rejected. fendants. The plaintiff took exception to the The factor then proposed to raise money on the charge of the court, and prosecuted this writ of note for his own use, without the knowledge of
the makers, and intended to conceal the approerror.
The facts of the case, and the matters which priation of the note from them. The first perwere the subjects of the exceptions taken to the
son to whom he offered to sell the note deemed rulings of the court, are fully stated in the the attempt a fraud, and refused to purchase. opinion of the court.
M'Voy then indorsed and transferred the note The case was argued at January Term, 1839, to Primrose for one thousand two hundred by Mr. Ogden for the plaintiff in error, and by' dollars, communicating to him it had been Mr. Van DeGraff for the defendants. It was
offered for discount at the bank and rejected. held under advisement, for a reference to a
Taulmin, Hazard & Company held a note for statute of Alabama, until this term.
three thousand two hundred and fifty dol. lars, on Black, indorsed by Vail and Dade,
and by Primrose, and which was past due; to Mr. Justice Catron delivered the opinion of discharge which, in part, Primrose transferred the court:
the note in controversy to Taulmin, Hazard & This is an action of assumpsit by the assignee Company; and Taulmin, Hazard & Company 319") of a note against *the makers. The indorsed the same before its maturity to the questions of laws arising in this cause depend plaintiff
, Fowler, and received credit on their on the construction of a note of hand, in the account, they being largely indebted to him at following words:
the time. "Selma, Dallas County, Alabama, March The leading feature in the cause, involving 1st, 1836.
the principle on which it turns, is this: the “Eleven months after date, we, Harris Brant- note was in the form prescribed by the bank to ly, Peyton S. Graves, and Hugh Ferguson, those who desired accommodations at it, which jointly and severally, promise to pay Andrew form was not in use before its adoption there. Armstrong, cashier, or bearer, two thousand The memorandum on the left hand side of the dollars, value received, negotiable and payable I note, and signed by the drawers, was designed defense against a holder for value, bas been a ter, 1 Cromp. Mees. & R. 849; Arbodien v. Aomatter of much discussion, and of much diversity derson, 1 Ad. & Ell. New R. 498, 509 ; Story on of judicial opinion. It is agreed on all sides, that Bills, secg. 415, 416. express notice is not indispensable ; but it will be
The rule laid down in Gill v. Cubit, 3 Barn. & suficient if the circumstances are of such a strong
C. 466, and Down v. Halling, 4 Barn. & C. 330, and pointed character, as necessarily to cast a
that the negligence of a party taking a negotiable shade upon the transaction, and put the holder
instrument fixes him with the defective title of upon inquiry. Cone v. Baldwin, 12 Pick. 545 ;
the party passing it, is no longer law. Bank of Hall v. Hale, 8 Conn. 336 ; Story Prom. Note, sec.
Bengal v. Macleod, 5 Moore Ind. App. 1; 7 Moore, 197 ; Knapp v. Lee, 8 Pick. 452.
P. C. 35; 13 Jur. 945. For a considerable length of time the doctrine prevalled, that if the holder took the note under A person who takes a bill under circumstances Buspicious circumstances, or without due caution calculated to excite suspicion, and, having the or inquiry, although he gave value for it, yet he means of knowledge, willfully abstains from makwas not to be deemed a bona fide holder without ing, any inquiries, must be considered a holder notice. Gill v. Cubit, 3 Barn. & C. 466; Snow v. with notice of the fraud, if any exists. Jones v. Peacock, 3 Bing. 406; Strage v. Wigney, 6 Bing. Gordon, 37 L. J. N. S. 477; 2 L. R. App. Cas. 616; 677 ; Slater v. West, 1 Dan. & LI. 15 ; Easley v. 26 W. R. 172, H. L. Crockford, 10 Bing. 243; Nicholson v. Patton, 13 What circumstances are sufficient to excite fosLou. 213, 216 ; 3 Kent's Com. 81, 82, Marg. p. ; picion in the mind of a prudent man, relative to Down v. Halling, 4 Barn. & C. 330; BeckwithTM v. the title of a holder of negotiable paper offering. It Cowell, 3 Bing. 444 ; Chitty on Bills, 277–284. for sale. Goodman v. Simonds, 20 How. 343, 361.
But this doctrine has since been overruled and Suspicion of defect of title, or the knowledge of abandoned, upon the ground of its inconvenience, circumstances which would excite suspicion in the and its obstruction to the free circulation and ne mind of a prudent man, or gross negligence on the gotiation of exchange, and other transferable part of the taker, at the time of the transfer, will paper.
Goodman v. Harvey, 4 Ad. & Ell. 870; not defent his title. That result can only be proUther v. Rich, 10 Ad. & El. 784 ; Stephens v. Fog- I duced by bad faith on his part. And the harden
to show the officers of the bank to whose credit | not for circulation out of it. The pencil mark 320*! the money was to be placed, *should on its face when sold, was common to all re. the note be discounted; and by the usages of jected paper, and was put there by the officers the bank, no other person than the one thus of the bank as evidence of the fact that it had named could receive the money.
been offered and rejected; and those dealing Primrose testified he knew from the pencil for it, with the mark on its face, must be premark on the face of the note it had been offered sumed to have had knowledge what it im. for discount and refused, when he purchased it. ported, as the slightest inquiry would have as. The cashier proved the pencil mark was made certained its meaning. These were the legal according to the usage of the bank on all notes presumptions attached to the contract when the offered for discount and refused.
plaintiff purchased it; and the explanatory eviTo a part of the first instruction, that held, if dence to prove the custom of the bank was in. the plaintiff took the note in payment of a pre-troduced to enlighten the court and jury in existing debt due to him from Taulmin, Hazard regard to the rules governing the transac& Company, then the jury ought to find for tion, and furnishing the law of the case, the defendants, exception is taken; and the and which the plaintiff, when he purchased court refused to instruct the jury that, if the the paper, is presumed to have known and plaintiff took the note fairly in payment of a understood, as the court knew and understood debt due to him, before its maturity, without it after it was proved on the trial. notice of the purpose for which M'Voy had This was the case made up of law and fact, held it, then he was entitled to recover.
on which the court *was asked to [*321 And also refused to instruct, if the jury be charge the jury; and not the abstract proposi. lieved plaintiff took the note bona fide in pay. tion whether, on a proper construction of the ment of a previous debt, that he had no notice statutes of Alabama, negotiable paper, payable of any kind, and there were no circumstances in bank, purchased bona fide, and without noto put him upon an inquiry into any fraud tice of an existing infirmity, but taken in discommitted on the part of M'Voy, he was en charge of a pre-existing debt, carried the titled to recover.
infirmity with it into the hands of the pur. There were other instructions asked and re. chaser, for the reason that the mode of pay. fused; but, as they are in effect the same as ment was not in the usual course of trade. those recited, an answer to which will cover A note overdue, or bill dishonored, is a cirthe whole case, they need not be further noticed. cumstance of suspicion, to put those dealing
The known customs of the bank, and its or for it afterwards on their guard; and in whose dinary modes of transacting business, including hands it is open for the same defenses it was the prescribed forms of notes offered for dis. in the hands of the holder when it fell due. count, were matters of proof, and entered into 13 Peters, 79. After maturity, such paper the contract; and the parties to it must be cannot be negotiable "in the due course of understood as having governed themselves by trade," although still assignable. such customs and modes of doing business; So the paper before us carried on its face cir. and this, whether they had actual knowledge cumstances of suspicion so palpable as to put of them or not; and it was especially the duty those dealing for it, before maturity, on their of all those dealing for the paper in question to guard; and as to require at their hands strict ascertain them if unknown. Such is the estab- inquiry into the title of those through whose lished doctrine of this court, as laid down in hands it had passed. Failing to be thus diliRenner v. The Bank of Columbia, 9 Wheaton; gent, they must abide by the misfortune their Mills v. The Bank of the United States, 11 negligence imposed, and stand in the condition Wheaton; and The Bank of Washington v. of M'Voy. Triplett and Neale, 1 Peters, 32, 33.
As between him and the defendants, there The note sued on is peculiar in its form; it was no contract or liability on their part; nor was made for the purposes of discount, and as bearer of the note could he lawfully pass it only intended for negotiation at the bank, and off in the due course of trade, 80 as to commu. of proof lies on the party who assalls the right rity, takes it free from Infirmities, as it was in the claimed by the party in possession. Murray v. hands of such holder, notwithstanding the second Leadner, 2 Wall. 110, 121.
purchaser bought with notice. Marion County v. Where the supposed defect or infirmity in the Clark, 4 Otto, 278; Cromwell v. Soc. County, 6 title of the instrument appears on its face at the Otto, 51; Shell y. Telford, 4 N. Y. Leg. Obs. 307. time of its transfer, the question whether the party One, who acquires negotiable paper from an unwho took it had notice or not, 18, in general, a ques. lawful holder in the usual course of business, for tion of construction, for the court. Goodman v. value and in good faith, has a perfect title thereSimonds, 20 How. 343, 365.
to; notwithstanding circumstances of suspicion But to impeach the title of a holder for value, by about the mode of its transfer to him, which might facts and circumstances outside of the instrument put a prudent man upon Inquiry. Good faith, and Itsell, it must be shown that he had knowledge of not care or negligence in any degree, is the quessuch facts and circumstances when the transfer tion for the jury. Steinbart v. Boker, 34 Barb. was made. Goodman v. Simonds, 20 How. 343; 13 436 ; 17 C. B. 161; 16 Barb. 550 ; 17 N. Y. 230; 1 Pet. 65; 14 Id. 318; 3 T. R. 80; 4 Mass. 270 ; 12 C. M. & R. 849; 5 Tyrw. 870 ; Carton v. Ireland, Johns. 305; 12 Pick. 345 ; 6 Wend. 566 ; Gould v. 5 E. & B.; Crook v. Jadis, 5 B. & Ad. 909. Segee, 5 Duer, 260.
The title of a holder of negotiable paper in good The question whether the party had such knowl. faith and for value is good, notwithstanding it was edge, is a question of fact for the jury. If the jury obtained from the maker by fraud, and the holder find that he did not, then unless there was bad had notice of facts which should bave put him upfaith, he is entitled to recover. Mere want of care on inquiry. Magee v. Badger, 30 Barb. 246. and caution is not enough. _Goodman v. Simonds, The rights of the bolder are to be determined by 20 How. 343, 366; 4 Ad. & E. 870 ; 10 Id. 784 ; 33 the simple test of honesty and good faith, and not Eng. L. & Eq. 278; 1 Cromp. M. & W. 849; 1 Ad. by a speculative issue as to diligence or negligence. & Ě, N. 8. 498; 16 Mees. & W. 355 ; 20 Pick. 645 ; He owes no duty of active Inquiry. Magee v. 11 Conn. 368.
Badger, 34 N. Y. 247 ; Belmont Branch Bank v. A purchaser of a negotiable bond from a bona Hoye, 35 N. Y. 65. Ade holder who obtained it for value before mato.
nicate a better title to another; the face of the necessary to prove the decree. The deed was good paper betraying its character and purposes, and without the decree.
The possession of a deed, regularly executed, is M'Voy's want of authority.
prima facie evidence of its dellvery. Under ordi. All the rulings of the court below must be nary circumstances, no other evidence of the delivreferred to this paper, and to the special case
ery of a deed than the possession of it, by the per
son claiming under it, is required. made by the proofs. Any instruction asked,
The grantor in the deed was David Carrick Buwhich cannot be given to the whole extent chanan, and he declares in it that he 18 the same asked, may be simply refused; or it may be person who was formerly David Buchanan. The modified, at the discretion of the court. No that it was necessary to convince the jury, by instruction was asked that could have been proofs in court, that David Carrick Buchanan 1s lawfully given; to every one the court could the same person as the grantor named in the pat
tent, David Buchanan; and that the statement by well say, and did in substance say, that un
the grantor was no proof to establish the fact. der no circumstances could a purchase of The Circuit Court instructed the jury that they this note be made by the plaintiff, from Taul-must be satisfied from the deed and other documin, Hazard & Company, so as to exempt it in grantor 10 the deed is the same person to whom the hands of the assignee from the infirmity it the patent was issued ; and they declared their was subject to in the hands of M'Voy.
opinion that such was the fact. And in regard to the last part of the first in
BY THD COURT : The principle is well established
that a court may give their opinion on the evi. struction, where the jury is in substance told dence to the jury, being careful to distinguish be that if they believed the note was taken in pay: tween matters of law and matters of oplnion, in ment of a pre-existing debt, due to plaintiff by the court to the jury, it should be considered by from Taulmin, Hazard & Company, still they the court as conclusive ;' but a mere matter of opin. should find for the defendants: the court might lon as to the facts, will only have such influence on have gone farther, and instructed the jury that the Jury, as they may think it entitled to.
The law knows of but one Christian name, and neither could the plaintiff recover had the note the omission or insertion of the middle name, or of been purchased bona fide, and without notice the initial letter of that name, 18 immaterial, and of the fraudulent conduct of M'Voy.
It is competent for the party to show that he is
known as well without as with the middle name. The judgment is, therefore, ordered to be af- A deed of lands sold for taxes cannot be read in firmed.
evidence, without proof that the requisites of the law which subjected the land to taxes had been complied with. There can be no class of laws
more strictly local in their character, and which This cause came on to be heard on the tran- more directly concern real property, than laws imscript of the record from the Circuit Court of posing taxes on lands, and subjecting the lands to the United States for the Southern District a rule of property, but their construction by the
They not only constitute of Alabama, and was argued by counsel; on courts of the State should be followed by the courts consideration whereof, it is ordered and ad
of the United States, with equal if not with greater judged by this court that the judgment of the strictness than any other class of laws.
The Supreme Court of Ohio bas required & said Circuit Court in this cause be, and the claimant under a tax title to show, before his title same is hereby affirmed with costs.
can be avallable, a substantial compliance with the requisites of the law.
In an action of ejectment, the defendants hav. ing entered into the consent rule, the plaintif in Ohio is not to be called upon to prove the calls of the patent under which he claims, on the ground of establishing the different corners. The defend
ants are bound to admit, after they have entered 822*] •JOHN F. GAMES and Nathan Gilbert, into the consent rule, that they are in possession Plaintiffs in Error,
of the premises claimed by the lessor of the plain
tiff. Y. JOHN STILES, ex dem. Walter Dunn, De- IN error to the Circuit Court of the United ceased, Defendant in Error.
In 1836 the lessee of the defendants in error
instituted an action of ejectment against the Deed in pursuance of decree of United States plaintiffs in error, in the Circuit Court of the
Court--not necessary to produce decree-pos- United States for the District of Ohio, for a session of deed as evidence of delivery--Chris. tract of land lying between the Little Miami tian name-what is taxable.
and Scioto rivers, in that part of the State of Ohio known as the Virginia Military District,
being on a survey *under a part of a (*323 A deed was executed in Glasgow, Scotland, by military land warrant for one thousand acres. which land in Oblo, which had been patented to the cause was tried at July Term, 1838, and a veyed to Walter Sterling. The deed recited that it verdict and judgment were entered for the was made in pursuance of a decree of the Circuit plaintiffs in the action, the defendant in error. Court of the United States for the District of Vir
On the trial of the cause, the defendant ten. ginia.
No exemplification of the decree was morf: dered a bill of exceptions. The bill of excepfered in evidence in support of the deed. court held that as Buchanan was the patentee of tions states that the plaintiff ordered in evi. the land, although he made the deed in pursuance dence in support of his actionof the decree of the Circuit Court of Virginia, the decree could add nothing to the validity of
First. A certified copy of the deed from David the conveyance, and therefore it was wholly un- / Carrick Buchanan to Walter Sterling, dated
NOTE.-As to recitals in deed, will, or other not material, or a misnomer, initials; "senior" or Instrument, and estoppel thereby, note to "junior" forms no part of name, see notes to 7 L. 7 L. ed. U. S. 761.
ed. U. S. 581 ; 20 L. ed. U. S. 830. As to questions of law and fact, for court or As to acquisition and use of name by individual, jury, see note to 3 L. ed. U. S. 155:
see note to 14 L.R.A. 690. 48 to pame; omission or error in middle name
June 27th, 1825. The patent from the United | Ohio, in a case wherein White's Heirs and J. 8. States, dated 22d May, 1802, for the land in Wills' Heirs, and H. Brush were complainants, controversy, was granted to David Buchanan and David Buchanan, in his lifetime, was deby the President of the United States, and the fendant; and his unknown heirs, after his dedeed was executed by David Carrick Buchan cease, were, by bill of revivor, made defend. an, stating that he had formerly been David ants; wherein the title to the premises in ques. Buchanan. The defendants asked the court tion was decreed to the complainants in that to instruct the jury that the statement in the suit. deed by the grantor, that he had formerly been The defendants asked the court to instruct David Buchanan, is no proof that he was Da the jury that the record of the proceedings and vid Carrick Buchanan. This instruction the decree given in evidence by defendants, may court refused. The deed from David Carrick be considered by the jury as conveying the Buchanan recited that the deed was executed title to the land in controversy in that suit to in conformity with a decree of the Circuit Court the complainants therein, and will, and ought of the United States for the Fifth Circuit, in to affect parties and privies, who had knowlthe Virginia District, to convey the land de edge of the same, to prevent their taking title scribed in it to Walter Sterling in fee-simple. from the defendant therein from the time such The defendants excepted further to the intro- knowledge existed. In place of this instrucduction of the deed in evidence, because the tion, the court instructed the jury that to preproceedings of the Circuit Court of the United vent Buchanan from making a good deed to States in Virginia, recited in the deed, were those lands, it was necessary he should have not produced with it. But the court overruled notice, actual or constructive, prior to the mak. the objection.
ing such deed, and of the commencement of Second. The defendants in their defense the suit; the service of the process or the oroffered in evidence a certified copy of a paper, der of publication, giving such notice to appear purporting to be a deed from William Middle and answer; and such publication made, to be ton, auditor of Brown County, to John S. Wills, proved: if the jury should find the deed from bearing date April 22d, 1824, for two hundred Buchanan to Sterling was dated June 27th, acres of land, and insisted it was duly acknowl. 1825, and was at that time delivered, and the edged as such deed, and such copy was duly order of the court for the publication not mado certified by the recorder of Brown County. until August following, as appears in the recThe deed from William Middleton, the auditor ord aforesaid, it was competent for Buchanan of Brown County, recited that a sale had been to make such deed to Sterling; and the court made of two hundred acres of land, by William declared their opinions accordingly. Middleton, county auditor, to John S. Wills, The defendant prosecuted this writ of error. on the 29th December, 1823, for arrearages of The case was argued by Mr. Mason for the taxes due to the State of Ohio, for 1821, 1822, plaintiffs in error, and by Mr. Corwin, with 1823, for the lands conveyed; the land being whom was Mr. Bond, for the defendant. part of the land patented to Buchanan. The The counsel for the plaintiffs in error, Mr. deed particularly described by metes and Mason, assigned the following reasons for the bounds the tract conveyed, and granted the reversal of the judgment of the Circuit Court: same to John S. Wills in fee-simple. It was First. That on the trial of the cause, the duly acknowledged according to the laws of court admitted as evidence in the cause a paper Ohio, and recorded in the proper office.
purporting to be a deed from, or signed by The plaintiff objected to this deed as not David Carrick Buchanan to Walter Sterling, competent to go to the jury without evidence as appears by bill of exceptions; which, for the of the proceedings and acts of the public offi- reasons stated in the bill of exceptions, should cers, prior, and at the sale of said land for the not have been admitted in evidence. tax, and insisted it ought to be admitted; and Second. There is also error in this, that the the court sustained the objection and overruled court, on the trial aforesaid, admitted in evi. the evidence, and declared their opinion that dence to the jury a copy of another paper, purthe same evidence should not be admitted, and porting *to be a deed from Walter Ster: (*3 25 the same was rejected accordingly.
ling to Walter Dunn; which, for the reasons The defendants then offered the same deed, stated in the bill of exceptions, ought not to or copy of deed, accompanied by a duly certi. have been admitted in evidence. fied copy of the record of the proceedings, at Third. There is also error in this, that the and before the sale of said land for taxes, bear court refused to admit a certified copy of a deed ing date 9th May, 1838, certified by Hezekiah from William Middleton, auditor of Brown Lindsey, county auditor of said County of County, to John S. Wills, for two hundred 324") *Brown; which copies or papers, and acres of land, for the reasons stated in the bill certificates thereon, are referred to as a part of of exceptions; whereas the same evidence ought the bill of exceptions; whereupon, the plain to have been admitted. tiffs, by counsel, objected to the admission of Fourth. There is also error in this, that said the same on the ground that the same did not court refused to admit the same deed or copy contain all the legal requisites to justify and accompanied by a duly certified copy of the authorize said sale and conveyance of said land record of the proceedings, at and before the for taxes; and of this opinion was the court, sale of said lands for taxes, for the reasons and declared their opinion to be that the same stated in the bill of exceptions; whereas, said ought not to be admitted in evidence in this evidence ought to have been admitted. case, and the same were rejected accordingly. Mr. Corwin, for the defendants, contended
The defendants below gave in evidence a that the proceedings of the court in Virginia transcript of the record of the proceedings and were not necessary to the validity of the deed; decree of the Supreme Court of the State of that a good consideration is stated in the deed