be presumed to be ignorant of the law, by which it is governed. He is therefore to be considered as having taken possession at his own risk, and bound to take notice of all the consequences, resulting from his own act. He may be compared to the locator of a Virginia land warrant, who acts on his own information, takes on himself the whole risk of title, and is not protected by an averment of want of notice.

But it is not necessary to investigate this point, with a view of shewing, that this case does not come within the class of cases, in which notice has been held necessary by other courts. The doctrine of notice to quit, as it is applied in action of ejectment, depends on statutory provisions, and on rules of courts, which have often been changed, and differ materially in different tribunals. The only notice required by the laws of this state, is a notice of ten days to the ten. ant in possession, before a plaintiff in ejectment can proceed to judgment against the casual ejector. This notice has been considered as legally given by the service of the declaration with the common notice attached, ten days before the first day of the term to which it is returned.

We have no rule requiring any other, or different notice, and have never considered the rules adopted by other courts, or prescribed by the Legislatures of other states or countries, as obligatory here.

Judgment for the plaintiff.

HOOD v. BROWN.

JUDGES PEASE AND BURNET.

1826.

A mortgage executed in January, 1821, for the express purpose of keeping the property out of the reach of a creditor who had commenced his suit, and retained by the mortgagor in his own possession until 1823, and then delivered and recorded, cannot overreach the lien of a judgment rendered in July, 1821.

The governing facts in the case were these. In January, 1821, Bentley and wife executed a mortgage of the premises in question, to the complainant, for the ostensible purpose of securing a debt. The reason given for executing the mortgage at that time was, that the United States were about to commence a suit for a large amount, against a private banking company, of which Bentley was a member, and liable by the law of this state to the payment of the demand. He retained the mortgage deed in his possession, till the summer of 1823, during which time he exercised acts of ownership, leased a part of the premises for the term of twenty years, to H. Stevens, informing him at the time, that he had executed a mortgage to Hood, but that he held it in his possession, and did not intend to record it, unless the United States should recover a judgment. At the same time he informed Stephens, that the defendant, Brown, had a suit pending against him, that it was necessary to hasten the arrangement, for if Brown should get a judgment, it would bind the property. In the summer of 1823 Bentley sent the mortgage to Philadelphia, to be delivered to Hood, on condition that his creditors would give him a general release, which it appears was never executed; the mortgage however, was delivered, and was recorded shortly after.

In July, 1821, Brown recovered a judgment against Bently and Quimby, for $2,392: in August he issued a fi. fa. which was returned, by his directions, without service, at which time there was personal property in Bentley's possession, estimated by one witness, at $800. This property was alleged to be embraced in a previous assignment, for the benefit of creditors. An alias execution issued in October, 1823, which was levied on the mortgaged premises, by virtue of which they were sold, and purchased by the defendant Brown, for $567. Brown denies notice, admits he heard rumors that Bently had executed conveyances of his property, which were retained in his possession, to be de, livered, or not, as circumstances might dictate.

The object of the bill is, to avoid the sale and conveyance of the premises to Brown, and to obtain a sale for the benefit of the complainant.

Wheeler, for complainant. Stone, contra.

By the COURT.

The mortgage set up by the complainant, though executed in January, 1821, remained in the possession of the mortgagor, without any attempt to perfect it by a delivery, till some time in the summer of 1823. The judgment under which Brown purchased and claims the premises, was obtained in July, 1821, and by the statute of the state, was a lien on the lands and tenements of the defendant, from the first day of the term in which it was rendered. In order to overreach this judgment, it has been strenuously contended, that the deed took effect from its date, and operated as a lien on the premises, from January, 1821, which was anterior to the term in which the judgment was had. The authority principally relied on, to support this position, is the case of Wilt vs. Franklin, (1 Binney, 502.) in which it was decided by a majority of the court that the deed executed by Keely to Bartholomew, should take effect from its date, so as to overreach a judgment rendered against Keely, after the execution, and before the delivery of the deed. There is however a striking difference between the facts of that case, and of the one before us.

The deed by Keely was made for the benefit of all his creditors: it was retained in his possession only a few days, which was in part accounted for, by the fact, that the grantee resided in the country, at the distance of about thirty miles. In this case the mortgage was for the benefit of a single creditor; it was kept in the hands of Bentley nearly three years, subject to his disposal. It was made for the avowed purpose of placing the property beyond the reach of one of his creditors. It was not his intention to deliver it, unless that creditor attempted to enforce his claim, and Bentley treated the property, during that time as his own, exercising acts of ownership, and leasing a part of it for the term of twenty years. Whether the distinguishing facts of that case, led the court to determine, that the operation of the deed should relate back to its execution, or not, we do not know, but if it was intended to adopt the principle set up by this complainant, we are constrained to declare, that we cannot recognize that case as a rule of decision in this state. We consider the law to be well settled, that deeds are to take effect from delivery, wherever the rights of third persons are involved. The doctrine of relation exists only between the immediate parties to the transaction. It is founded on a legal fiction, intended to prevent, not to

promote injustice. As when a deed is executed and delivered as an escrow, if the grantor die before the performance of the condition, yet, when the condition is performed, the grant shall relate back to the date, so as not to be defeated by the death of the grantor. And in a similar case, if the grantor be a feme sole, and marry before the performance of the condition, the same relation shall take place, and for the same purpose. But these, and similar cases, are not consid ered as affecting the general rule. They may be considered as exceptions, or as constituting a separate class of cases, resting on a different principle. It is not necessary to examine the authorities applicable to this point. Those cited on the part of the defendant, sufficiently establish the doctrine, and it is plainly inferable from most of those relied on by the complainant. The circumstances of this case, are not such as to take it out of the general rule. They are rather calculated to illustrate the propriety of the rule, by showing the fraudulent purposes that might be accomplished, were it not in existence. Without it, a debtor might execute a deed of all his real estate, and place it in his desk, to be used as circumstances might require, and when pressed by judgments, might deliver it to the grantee, as a deed overreaching the whole of their liens. This was, at least partially, the avowed object of the mortgagor. He declared to Stephens and others, that the mortgage was under his control, and that he did not intend to use it, unless the United States pressed for their claim. In this point of view the transaction was tainted with fraud, though it is not necessary for the purposes of this decision, to consider it in that light. It is sufficient to say, that the instrument, operating from its delivery, did not take effect till the summer of 1823, and consequently, that the judgment in 1821, has the prior lien.

We recognize the doctrine of marshalling assets, when justice and equity require it, but on this subject it is sufficient to say, that if the personal property had been unincumbered, the whole amount of its estimated value, added to the proceeds of the real estate sold under the judgment, has not satisfied more than a moiety of the debt. The principle therefore cannot be applied in the present

case.

It is also admitted, that a deed, executed without the knowledge of the grantee, may be good, when it is not impeached by other circumstances. And that whatever might have been the motives of this mortgagor, at the time of executing the instrument, the mortgagee does not appear to have been a participator in them. But exonerating him from a charge of fraud, is not sufficient to establish his claim. His innocence cannot change the rules of law. If the transaction were free, both from moral and constructive fraud, the result would be the The deed as to the defendant Brown, would take effect from its delivery. The bill as to the defendant Brown, must be dismissed with costs.

same.

DECISIONS IN BANK.

1826.

SLAUGHTER v. HAMM.

A public officer who receives money to pay to a public creditor and obtains a receipt for the whole, upon the payment of a part, is liable for the residue, though na deception or fraud be prac

This was an action of assumpsit for money had and received, submitted to the court to decide upon the law and facts, and reserved for decision, at Columbus, in Muskingum county.

The facts in the case were as follows: the defendant, in 1820, was marshal of the Ohio district, and was charged by law with taking the census, then taken under a law of the United States. The plaintiff was appointed his assistant to take the census in the county of Fairfield. On the first day of August, he subscribed a written paper, engaging to perform all the duties required by law, "including an account of the manufacturing establishments, and their manufactures, at the rate of one dollar twenty-five cents for every hundred persons in said county, the marshal furnishing all the regulations, restrictions, forms, and interrogatories necessary." The district judge allowed the marshal two dollars fifty cents per hundred persons, for taking the enumeration of Fairfield county, which amounted to 336 dollars 66 cents. This sum was paid to the marshal, and an additional sum of 67 dollars 33 cents, for taking the account of manufactories and manufactures, amounting in the whole to 403 dollars 99 cents.

On the 5th of June, 1821, the plaintiff settled with the defendant and gave his receipt for 336 dollard 66 cents, "being in full for taking the census of Fairfield county," and also for "20 per centum upon that sum, being the allowance, in full, for taking an account of the manufactures in said county." The whole sum actually paid by the defendant and received by the plaintiff, was 253 dollars 49 cents. At the time of receiving this sum and giving the receipt, the plaintiff was apprised of the amount received from the government by the defendant. The suit was brought to recover the difference between the sum paid to the plaintiff and that received by the defendant.

Goddard for the plaintiff.

By the COURT.

The act of Congress distinctly marks out and defines the several duties of the marshal and of his assistants. The compensation which each is to receive, is separately provided for, and they are in no way connected. No fraud can be properly imputed to the contract between the parties, by which the compensation that the plaintiff should receive, was fixed at one dollar twenty-five cents the hundred. At the time it was entered into, the sum which the district judge might determine to be reasonable, was not known. That allowance was subsequently made, as well as the allowance, by the secretary of state, of 20 per cent. for taking the account of manufactures. When these allowances were made, they were made for the assistant, and he alone was entitled to them The marshal, when the money was paid to him, received it for the assistant, and not for himself. By receiving it, he became responsible that he would pay to the plaintiff. He was, in fact, the plaintiff's debtor for the amount.

it

The case of the defendant is not that of an individual, authorized by another to receive his money, and therefore held to account for it. He was the agent of the government, acting in an official character, and confided in by the government to pay a debt due from it, for services performed. The honor, the integrity, the justice of the government required that the payment should be fairly and fully made.

The fact that the plaintiff knew all the circumstances, at the time he received less than his due, and gave an acquittance, does not authorize the defendant to keep what never was his—what he never had any color of claim to keep. By what motives the plaintiff was influenced to give a receipt for money he did not receive, and to leave in the defendant's hands money he had a right to receive, we do not know. One thing, however, is certain:-there is no pretence that the defendant gave any equivalent to the plaintiff. His claim to retain it, rests upon the naked assent of the plaintiff that he might do so. A public agent, who retaining any part of the money, put into his hands to pay the debts of the government, by the assent of the creditor, is not in the situation of a man who voluntarily pays money, in the discharge of an alleged debt, where nothing is due. Such retaining is an abuse of the public confidence; and if the law should permit a public officer, guilty of this abuse, to secure profit to himself, by his misconduct, the mischiefs would be incalculable. The vexations that would be practised to obtain a receipt for the whole, upon the payment of part, could seldom be made out in proof, whilst the receipt would always speak for itself.Were the principle once established, that in a case like the present, the defendant was secure in his gains, it would be proposing encouragement for public agents to practice frauds, both upon the government and its creditors. The public policy, and the public justice are both opposed to such a doctrine.

The plaintiff is clearly entitled to recover both the principal retained, and interest upon it.

Judgment for plaintiff.

LYTLE v. DAVIES.

A bond for the prison limits is void unless the defendant is actually in prison, and that fact be recited in the bond.

A recital that he is arrested and in the custody of the Sheriff is insufficient. A joint bond for the prison limits in separate suits is void.

This was a writ of error prosecuted by the plaintiff, who was plaintiff in the court of Common Pleas, to reverse a judgment rendered against him in that court, and was reserved in the Supreme Court of Hamilton county, for decision here.

The suit in the Common Pleas, was an action of debt brought against the defendant, one of several securities upon a prison bounds bond.

The obligatory part was in the usual form. Wm. Lytle, administrator of A. St. Clair being the obligee. The condition was as follows, "Whereas Jacob Baymiller has been arrested by R. Ayres, Sheriff of Hamilton county, on three several writs of capias ad respondendum, returnable to the next Supreme Court, in favor of William Lytle, administrator, &c. amounting altogether to the sum of $53,419 35, and is in the custody of the said Sheriff. Now the condition of the above obligation is such that if the said Jacob Baymiller shall well and truly stay and keep within the limits or bounds of the prison of the county aforesaid, as laid off by the statute in such case made and provided, until he shall be legally discharged by law, then this obligation to be void," &c.