nal judgment. (Stat. vol. 22, 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 facias, or the judgment of revivor.

SECOND: The original judgment was founded upon a bond, executed by Hub. ble and the plaintiff in error, as securities for Richey, and conditioned that Richey should make an assignment of his property for the 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 exe. cuted; 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 every thing 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 Rep. 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.

ROLL v. RAGUET.

A court of justice will not 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 felony.

Whenever an agreement appears to be illegal, ima oral, 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 enforce its execution.

Error to the court of common pleas of Hamilton county.

Hy. 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 sail supposed offence, and would endeavor to cause Charles Roll to be in lcted 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 offence; 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 plea 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 assigned.

Caswell & Star, for the plaintiff in error.
By the COURT.

Storer and Ames, contra,

A father and son join in giving a promissory note, for the consideration 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 offence. 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 prosecu tion, 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 enquire whether such contracts are positively prohibited by law, or whether it is, in all cases, 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 offence, or smother its prosecution, must be sanctioned by 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 not 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 compromise of the felony, in secret, without any prosecution, the true character of the offender is unknown, and the community are subjected to depredations, which otherwise might be anticipated and prevented.

As between the parties to this action the defence may not be very honest; and we may adopt the language of Lord Mansfield, (Comp, 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, how. ever, 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. (a)

(a) Same principle, 4 Johns. 419, 12 Johus. 306, 19 Johns. 341, 3 Cowen 213, 11 Johns. 369, 2 Wils. 341.

AVERY v. RUFFIN.

Where the court of common pleas make an order under the statute, to distribute the fees between the present and former sheriff, a strong case of abuse inust be presented to induce the supreme court to interfere.

On the 4th of September, 1823, a fi. fa. et lev. fa. was issued to William Ruffin, then sheriff of Hamilton county, in favor of E. Graham v. 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 Tho, mas Graham, by Ruffin.

On the 21st of April, 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 on 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.

Store and Fox, for the plaintiff in certiorari. N. Wright, contra,

By the COURT.

a

At common law, an execution, partly executed by a sheriff, shall be comple ted by him after the expiration of his term of office; but by statute, v. 22, 201, sec. 8, he is directed to transfer all executions to his successor: and it is further

provided, by the same statute, that no vendi. expo. shall be directed to, or exe. cuted by a sheriff whose term of office has expired.

By the statute of 1825, v. 23, 18, power is given to the supreme court, or court of common pleas, to order poun lage and sees 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.

RANDALL v. PRYOR.

The statutory provision, that a decree for a deed shall operate as a conveyance, does not dives, the court of the power to enforce the actual execution of a deed by attachment for contempt.

Motion to discharge a rule taken upon the defendant, to show cause why process of contempt should not be issued against him; and was adjourned here for decision from the county of Belmont.

It appeared, that at the October term of this court, 1829, a final decree, in chancery, was rendered against Pryor, and in favor of Randall, by which, among other things, it was decreed, that Pryor, within thirty days thereafter, should execute and deposit with the clerk, for the benefit of Randall, a deed of release in fee simple, for certain lands, with covenants of special warranty.Pryor having neglected and refused to comply with this decree, a rule was taken upon him, at the May term of this court, 1830, to show cause why an attachment should not issue against him for contempt. Upon this rule Pryor ap peared and submitted the present motion.

There was no argument in favor of the motion.

Hubbard and Johnston, contra.

By the COURT.

There is no doubt of the general power of the court, to enforce its decrees by attachment. The statute, v. 22, 80, Sec. 40, gives this power in so many words. The only question is, whether the legislative provision, making a decree for the conveyance operate per se, as a conveyance, does not take away the power of the court, to enforce the specific execution of such a decree, by

attachment.

It was the intention of the legislature to discharge the party, against whom such a decree might be rendered, from the actual execution of the deed. The provision was not intended for the benefit of the party, who had agreed to exc. cute a conveyance, and who, by neglect or refusal, compelled the other party, to resort to a court of equity for a specific performance. The object of the legislature was, to furnish an adequate remedy, in that class of cases, where the proceedings were in rem, and where the court could not enforce personal obedi

ence to its decrees, for want of jurisdiction over the person. It is true that the provision in question, embraces all cases where a decree for a conveyance is rendered; but the party has an option, either to rely upon the decree, as a conveyance, by act and operation of law, or to enforce the actual execution of a deed, where the person of the defendant, is within the jurisdiction of the

court.

Whether in the event of a failure of title, the remedy of a grantee would not be more plain and simple upon a deed with covenants, than upon a decree, the court do not intend to intimate an opinion. The general power of the court to enforce its decrees, is not limited by any statutory provision; and we see no reason, in this case, why it should not be exercised. Motion to discharge is overruled.

FULTON v. MONAHAN.

Whenever an individual undertakes to justify a trespass, under the authority of government, that authority must be traced to some officer of the government, known and recognized by law as such.

When the defendant justifies the breaking of the close of the plaintiff and carrying away stone for the construction of the National Road, the plea must set forth the facts that constitute a necessity for such invasion of private rights.

This was an action of trespass, quare clausum fregit, and was reserved from the county of Muskingum.

The defendant justified, under the act of Congress, passed May 15th, 1820, and March 3d, 1825, establishing a national road through the state of Ohio, and, in his plea of justification, alleged, that the national road had been laid out, near the close in which, &c. and that the defendant, as the servant, and under the direction and authority of the government of the United States, broke and entered said close, and took, and carried away said lime stone, and used the same, in the construction of said road, and for no other purpose. To this plea, the plaintiff demurred generally.

Adams and Stilwell, in support of the demurrer. Culbertson, contra.

By the COURT.

The plea does not set forth with sufficient certainty, the authority, under which the defendant professes to have acted. The government necessarily acts by its officers: and whenever an individual undertakes to justify a trespass, under the anthority of government, that authority must be traced, to some offi. cer of the government, known and recognized by law as such.

The defendant, however, in this case seems to have rested his defence principally upon the grounds that the national road had been located near the plaintiff's close, and that stone were necessary in the construction of that road. Ad. mitting these grounds, it by no means follows that it was necessary to use the plaintiff's stone. If he chose to rest his defence upon the necessity of using the plaintff's stone, he out to have set forth the facts, that the court might judge