John Cadwallader, et al. r. Evans & Swift.

confirmed before a deed could be made to the purchaser, was passed for the express purpose of removing all doubts as to the necessity of proving, when a title derived from a judicial sale was questioned, any of the preparatory steps.

Before the cases of 15 Ohio, 441, Lessee of Paine v. Mooreland; and 17 Ohio, 409, Lessee of Cochran's heirs v. Loring, it had been held that failure to give notice, by publication, in cases of foreign attachment, was fatal to the jurisdiction of the court who had assumed it. The decision in these cases, however, settled the question, and declared that the jurisdiction attached, by the affidavit, issue, and service of the attachment. And such was the ruling of the Supreme Court of the United States, in 10 Peters, 460, Voorhees v. Bank of the United States; where the same question was made under the attachment law of Ohio.

On the same principle, it was held, in 3 Ohio, 107, Allen's Lessee v. Parish, overruling 1 Ohio, 27, Patrick's Lessee v. Oosterout, that a purchaser at a sheriff's sale depends upon the judgment, the levy and the deed, and that all other questions are between the parties to the judgment, and the officer; and the vendee at administrator's sale is equally protected; 7 Ohio, part 1, 203, Ewing's Lessee v. Higby. See also 9 Ohio, 19, Stall v. Macalester.

It was not required, then, before the statute, when the sale was made, and the deed delivered, without any supervision by the court of the administrator's or sheriff's proceedings, in a subsequent contest relative to the property, that the publication referred to should be proved.

We do not find, in any view we can take of this objection, that it can be sustained upon any principle known to our law, or which has hitherto governed the action of our courts. We suppose, however, that all these objections are removed if the court had jurisdiction to make the orders of sale and confirmation. These being granted, or found to exist, the purchaser must be protected. It has long been the policy of our courts to uphold judicial sales, and in this general description we include those made by trustees, administrators, or

John Cadwallader, et al. v. Evans & Swift.

sheriffs, whether upon a decree, an order, or an execution. No technical irregularities are permitted to deprive the purchaser of the right he has acquired. There must be, not mere informality, however gross, or error, however apparent, but a palpable defect of power in the court, before his claim can be defeated.

The security of titles requires this at the hands of every tribunal whose aid is invoked, in a case like the present, where nearly the full term of years has elapsed to complete a perfect right of possession, and the property has greatly increased in value. We must apply the strict rule to the party who seeks to set the sale aside, and look with favor upon the title of the purchaser.

On the whole case, the judgment at special term is affirmed.

Judgment affirmed.

Acknowledgment-Action.

INDEX.

ACKNOWLEDGMENT. See DEDICATION, 4.

ACTION-

1. An assignee of a claim of damages, resulting from injuries to personal
or real estate, may bring an action in his own name; Hall v. C. H.
& D. R. R. Co. 58.

2. An action to quiet title can only be brought by a person in actual pos-
session; Harvey v. Jones, 65.

3. An action for damages will lie against a justice of the peace for refus-
ing to allow an appeal, or for doing any act whereby a party is de-
prived of the benefit of his right to appeal; Cohen v. Marchant, 113.
4. A right of action to recover possession of premises is vested in the
executors where the will devises the property to the widow for life,
"but the same is to be managed and controlled by my executors for
her use and benefit," and the widow elects to take dower; Roberts v.
Roberts, 177.

5. An action will lie against the county commissioners in favor of a ser-
geant-at-arms appointed by the court, where the commissioners have
failed or refused to make the appointment; Mayhew v. Ham. Co. 186.
6. A citizen of the county may maintain an action, in his own name, in
behalf of himself and other citizens, whether a tax-payer or not, to
restrain the county commissioners from the performance of acts
which are fraudulent, in breach of their trust, or in excess of their
power; Ruffner v. Ham. Co. 196.

7. A bona fide holder of a check has a right of action against the drawee,
in case payment is refused while the drawer has sufficient funds on
deposit; McGregor v. Loomis, 247.

8. In actions for causing death by wrongful act, etc., the petition must
show pecuniary damage; such damage will be presumed in actions
for the benefit of widow or children; Dunhene v. Ohio Life Ins. §
Trust Co. 257.

9. An action will lie against the county commissioners to recover com-
pensation for land appropriated by them for public use, as a county
road, where the same was taken without notice to the plaintiff, a non-
resident; Badgely v. Ham. Co. 316.

10. This court has jurisdiction of an action to compel an administrator to
render an account of his administration; Cadwallader v. Longley, 497.
11. An agent may bring an action, in his own name, on negotiable paper,
if he holds the possession and the legal title at the time, although in
trust for another; the defendant can not prevent judgment by setting
up the fact that the property is in another; Smead v Fay, 531.
12. The non-compliance with a municipal regulation does not subject the
individual to a civil action in favor of an injured party; Vandyke v.
Cincinnati, 532.

13. See COUNTY COMMISSIONERS, 3. MORTGAGE, 9.

Administration Bond-Arbitration and Award.

ADMINISTRATION BOND-

1. An administrator de bonis non has, at common law, no right of action
on the bond of his predecessor; such right of action exists under the
statute of April 7, 1854; Chatfield v Faran, 488.

2. This court has no jurisdiction of an action founded on an administra-
tion bond; that jurisdiction rests with the court of common pleas; Ib.
3. The sureties on an administration bond are under no obligation to
render an account; before they can be held liable on their bond, the
liability of their principal must first be ascertained and established;
Cadwallader v. Longley, 497.

ADMINISTRATORS AND EXECUTORS-

1. The executors or administrators of a deceased mortgagor should be
made parties to a suit in foreclosure; Hall v. Musler, 36.

2. In an action to recover compensation for causing death by wrongful
act, etc., the petition must show pecuniary damage; upon a petition
for the benefit of the widow and children, such pecuniary damage
will be presumed, and in no other case; Dunhene v. Ohio Life Ins. §

Trust Co. 257.

3. In case of the death of the maker of a note, the presentment should be
made to his executor or administrator; if there be no executor or ad-
ministrator, then at the dwelling-house of the deceased; Huff v. Ash-
craft, 277.

4. Where a feme sole is co-administratrix with others, and afterward mar-
ries, her power is determined; but where she is sole administratrix,
her husband becomes jointly interested with her in the trust; Cad-
wallader v. Evans, 585.

AFFIDAVIT-

1. Alleging causes of attachment in the disjunctive is bad for uncertainty;
Rogers v. Ellis & Sturges, 1.

2. Verification may be made on belief, but the averments of the pleading
should be positive statements of fact; St. Bank of Ohio v. Oliver, 159.
AGENT. See PRINCIPAL AND AGENT.

1. A demurrer and an answer to the same cause of action is not permis-
sible; Smead v. Chrisfield, 17.

2. A motion to strike out defenses for uncertainty will not be entertain-
ed; Ib.

3. Under sections 124 and 125 of the code, the defendant in an action for
libel may set up in his answer the defense of justification, or allege
facts in mitigation, or may set up both at the same time; Van Ingen
v. Newton, 458.

4. A motion will not be entertained to strike from an answer the state-
ments of fact alleged as probable cause; a demurrer would lie if the
facts as stated did not constitute such defense; Wilson v. Ferrari, 579.
5. See PLEADINGS.

ARBITRATION AND AWARD-

1. To authorize an award to be made a rule of court, the names of the
arbitrators must be set forth in the arbitration bond; Western Female
Seminary v. Blair, 370.

Assessments-Attorneys at Law.

ARBITRATION AND AWARD-Continued.

2. A submission once duly made, can not be revoked; Ib.

3. If one of the arbitrators is biased or interested, it is a disqualification
as against the party ignorant thereof; Ib.

4. If the arbitrators receive testimony from one party without the knowl-
edge of the other, the award will be set aside; Ib.

ASSESSMENTS. See CONSTITUTIONAL LAW, 1.

ASSIGNMENT-

1. A conveyance, in trust, in form of a mortgage, made to one creditor
to secure the specific claims of all assenting creditors, and with the
consent of all the creditors save one, is an assignment to prefer cred-
itors, and will be held to inure to the benefit of all; Hunnewell v.
Scarborough, 427.

2. See DAMAGES, 3, 4; PARTNERSHIP, 2, 3.

ATTACHMENT-

1. An affidavit in the disjunctive is bad for uncertainty; Rogers v. Ellis
& Sturges, 1.

2. Under section 230 of the code, in order to justify an attachment, the
fraudulent intent to injure the creditor, or secure some benefit to
the debtor, must appear actually to exist; it is not necessarily suffi-
cient proof of that intent that it appears that the actual, or even the
necessary, consequences of a sale are to hinder and delay creditors;
Heidenheimer v. Ogborn, 351.

3. It is proper practice to dismiss the action where an attachment has
been discharged, when allowed on a debt not due at the time; Ib.
4. The duty to attach in the presence of two credible persons, is directory
and not imperative; if omitted, it would not avail third parties; Dav-
idson v. Kuhn, 405.

5. The rule that property under levy is not subject to further seizure by
other officers, is only adopted for the protection of the officer in pos-
session, and to avoid collisions of authority and conflicts of title; Ib.
6. The same goods may be taken on a second writ by the same officer;
and if he consents to a levy by other officers, and to hold the goods
as trustee for them, the levies are valid; Ib.

7. An obligation fraudulently incurred is no cause for an attachment,
unless it is an obligation by contract; Merch. Bank of Cleveland v.
O. L. Ins. & Trust Co. 469.

8. The fraudulent conversion of notes, bills, etc., received in the usual
course of business, for collection, is a breach of the contract of bail-
ment, but does not create "an obligation fraudulently incurred;" Ib.
9. Where an order of attachment has been allowed and issued before the
debt is due, and it is subsequently discharged, it is a matter of dis-
cretion with the court whether the action shall proceed or be dis-
missed, after the debt has become due; Ramsay v. Overaker, 569.
ATTORNEYS AT LAW-

1. An attorney, assigned by the criminal court to defend an indigent
prisoner, has no right of action to recover the value of his services
from the county; Handy v. Ham. Co. 263.

2. It is the duty of the court to assign counsel in such cases, and it is the
duty of the attorney, as an officer of the court, to accept, and the
county commissioners should allow a reasonable compensation for
such service, but the matter is discretionary with them; 1b.