premises. It would also be unjust, while the defendant is in the enjoyment of the rents and profits of the estate inherited from his ancestor, to compel the com. plainants to litigate the validity of the title of a stranger, in order to enforce a lien created by the defendant.

BARRET v. REED.

QUERE, whether a constable under a plea of justification may show that he was a constable de facto, or must show that he was such de jure.

If a constable is duly elected, takes the oath of office, and gives bond, he may justify acting as a constable, though the bond be executed to a wrong obligee.

It seems that such a bond is not void.

This was a writ of error to the judgment of the court of Common Pleas of Ashtabula county. The plaintiff in error was defendant in the court of Common Pleas: and the case wes this:

Reed brought an action of false imprisonment against Barret and others. Barret justified that he was a constable, and acted under process. The other defendants justified under Barret.

In support of his plea, Barret, in the first place, offered evidence to prove that he acted as a constable, and was generally understood and reputed to be such. This testimony was objected to, and overruled; and Barret took a bill of exceptions.

It was then given in evidence, on behalf of Barret, that he had been duly elected a constable, had taken an oath of office, and had executed an official bond, made payable to the trustees of the township, in the proper form, and with sufficient security. The sufficiency of this proof was objected to, because the law required the constable's bond to be made payable to the township treasurer, and not the trustees. The objection was sustained, and Barret took a bill of exception.

A verdict was found in favor of the other defendants, but against Barret, against whom the court of Common Pleas gave judgment for the damages found by the jury, upon which he sued this writ of error, the decision of which was adjourned here, by the Supreme Court of Ashtabula county.

Giddings, for plaintiff in error.

Opinion of the court by Judge HITCHCOCK.

In this case, a number of errors have been assigned by the plaintiff in error, two only of which have been particularly considered by the court. The first is that in which it is substantially alleged, that Barret, the plaintiff in error, having proven that he was a constable de facto, the court below refused to let him prove that he committed the act complained of, under and by virtue of a warrant, to him directed, as constable, unless he would first prove that he was a constable de jure. The second is that in which it is alleged, that Barret, having proven in addition, that he was duly elected a constable, that he took the necessary oath of office, and gave bond, conditioned for the faithful performance of the duties of his office, in all things conformable to the provisions of the statute, in such case made and provided, except that the same was made payable to the

trustees of the township, instead of being payable to the treasurer, as the law then required, the court below still refused to permit him to prove that the act complained of was committed under, and by virtue of a warrant to him directed, as aforesaid, and in pursuance of which warrant, the defendant in error was arrested and imprisoned.

As it respects the first of those errors, and the question thereon arising, there is not a perfect coincidence of opinion amongst the members of this court. The principle contended for by the council for the plaintiff in error, is one which is recognized and sustained by the Supreme Court in the state of New York, as appears from the case of Potter v. Luther, (3 John. 431.) The correctness of the principle, too, seems to be sustained by many of the English decisions. Nor is it perceived that any great evil could result from the establishment of such a rule in this state. In a government like ours, where most officers are elective, it cannot be believed, that there is any danger that any person will presume to discharge the duties of an office unless he has at least some color of right; and should such a thing be attempted, it would be an offence against the law, for the punishment of which ample provision is made.

On the other hand, it may be urged with propriety, that when an individual is sued in trespass, and would justify on the ground, that the act complained of was committed by him while in discharge of the duties of a public officer, it is in the power of such individual to show conclusively, whether or not he is entitled legally to officiate in such office; and to receive evidence of reputation, or of his being an officer de facto, would seem to be a violation of the rule, which requires that the best evidence which the nature of the case admits of, shall be produced. Third persons are not supposed to know whether an officer has taken every necessary step to qualify himself; and, therefore, it is sufficient for them to show that he is such, de facto.

As to the second error, above referred to, it is the unanimous opinion of the court, that the exception is well taken, and that the court of Common Pleas, in making that decision, mistook the law on the subject.

It has been a law of the state, from its first organization, and it is a law founded in sound policy, that sheriffs and constables should give bonds with security, conditioned for the faithful discharge of the duties of their respective offices. These officers have important duties to perform. They receive in the ordinary course of business, large sums of money; and as they are the agents constituted by the law, not only of the law, but in some respects of individuals for whom they act, it is perfectly proper that every convenient method should be adopted to secure the interests of those who are compelled to intrust business in their hands. It would seem to be immaterial, however, to whom the bond is made payable. It is proper this should be fixed by law; and convenience dictates that the obligee should be a public officer, or body corporate, where there is perpetual succession. The obligee has no particular interest in the bond, and if suit is commenced upon it, cannot, under any statute, be made liable for costs, in case of failure in prosecution. The obligee can be viewed in no other light than as a trustee for those who are, or who may become interested.

The statute in force, at the time the act complained of in the present case was committed, required that the constable should give bond in any sum not

exceeding two thousand, and not less that four hundred dollars, with one or more securities resident, &c. conditioned, &c. and payable to the township treasurer. The bill of exceptions states, that Barret was duly elected constable, that he was duly sworn, and that he executed a bond in all things conformable to the statute, except that it was made payable to the trustees of the township. Having done this he proceeded to officiate as constable, and was recognized as such. The question which naturally presents itself here for consideration is, whether the bond thus executed was void. If it was not void, but obligatory on the obligors, the object of the law being to secure the interest of those, who should be compelled to entrust business with the officer, that object is, attained, and the law has been substantially, although not literally complied with. A substantial compliance must excuse the officer. It is all that can with propriety, be required of him.

Why is such bond void? Can any other reason be assigned than that it is not according to the letter of the statute? There is nothing upon the face of it which is illegal. It is not given to secure the performance of an immoral, vicious, or illegal act. The sole object is to secure on the part of one of the obligors the performance of duties, which if no bond had been required he would have been bound to perform. Suppose there had been no bond required by law, would this bond then have been void? I apprehend not, and it appears to me that the single circumstance that it is required by the statute, that a bond should be made payable to a different obligee, is not sufficient to destroy its obligatory effects. Upon the whole, I come to the conclusion that the bond if not good under the statute, is good at common law, and that any person who should be injured in consequence of the neglect of the officer to discharge any duty appertaining to his official station, might obtain redress by suit upon it. (1 Wash. 91: 2 Call. 290. 2 H. and M. 459.) Such appears to be the opinion of the courts of Virginia in several cases by them decided. Or it may perhaps with more propriety be said, that the opinion of the court in those cases, goes rather to establish the doctrine that a bond, similar to the one under consideration, is substantially in compliance with the statute.

It is stated further in the bill of exceptions that the bond had not been accepted by the trustees. (State laws vol. 18 p. 108.) The words of the statute then in force, and which has been already referred to, are "and every constable within ten days after his election or appointment, and before he enters upon the duties of his office, shall appear before the clerk of the township, and give bond, with one or more sureties, resident in the township, such as the trustees thereof hall approve," &c. The trustees, as the guardians of the township, are to approve of the sureties. Whether they did so or not, we can ascertain only from the record, or rather from the bill of exceptions which is a part of the record. It is there stated that Burnett "proved that he had given bond agreeably to the statute in all respects except" &c. From this it is reasonable to presume that the sureties were approred of, this being one question of the stat ute. It may perhaps be thought that this presumption is destroyed by the allegation that the bond "had not been accepted by the trustees." There is certainly a difference between the approval of the "sureties and the acceptance of the bond. The one will most naturally precede, and the other follow, the sealing of the instrument. Any formal acceptance of the bond is believed to

be unnecessary. It is to be left with the township clerk, and by him filed away in his office. When it is said that a formal acceptance is unnecessary, I would not be understood that the trustees may not if they deem the bond insufficient, reject it, and require another. But there are many things which would amount to an acceptance. If the bond is received without objection, it is equivalent to an acceptance. After having received it, and having it filed away by the clerk, in consequence of which the constable proceeds to officiate in his office, neither the trustee nor any other person can be permitted to say that it has not been accepted. To permit this would have a tendancy to involve the officer in difficulty and almost certain ruin. For it will be perceived, that by the law, as recognized by the court of Common Pleas, that a sheriff or constable who has not specifically and literally complied with every requisition of the law before proceeding to officiate, although he may have done it substantially, will be liable in trespass to every person he shall have arrested, and in trespass or trover for every article of property he shall have seized upon attachment or in execution. Wherever the constable has executed a bond, intended to be in pursuance of the statute, and is not notified that the same is not accepted, he may well suppose that he has done all in this respect which can be required of

him.

Further, suppose the trustees do not accept the bond, or in other words, suppose they disapprove of it, what is their duty? If the officer but neglects or refuses to give the bond, it is equivalent to a neglect or refusal to serve in the of fice. The office is, in fact, vacant. (State laws vol. 18, p. 28.) By the 15th section of the "act for the incorporation of townships" it is enacted "that when by reason of non-acceptance, death, or removal of any person chosen to any office in any township chosen at the annual meeting, or in case where there is a vacancy, the trustees shall appoint a person to fill such vacancy," &c. By the 13th section of the same act it is provided, "that any person elected to any office under this act, and not exempted by law, who shall neglect and refuse to serve in such office, shall forfeit and pay to, and for the use of the township the sum of two dollars." It is further made the duty of the township clerk to sue for and recover the same. In the case of the constable, if no bond is executed, the office is vacant, and the trustees must appoint another person to fill the vacancy. If it be executed, but is not accepted, the same consequence results. It must of course follow, that if a bond be executed, and no appointment is made, as if to fill a vacancy, the presumption is irresistible that the bond thus made or executed is accepted, especially when the circumstance is added that no prosecution is instituted against the officer elect, for neglecting or refusing to serve in his office.

In the present case it does not appear that any appointment was made to fill the vacancy occasioned by the neglect or refusal of Barret to serve in the of fice to which he had been elected. It does not appear that he was prosecuted for such neglect or refusal. It does not appear that any exception was taken, by those whose duty it was to except, to the bond which he had made and delivered, or any notice given to him of such exception. Under these circumstances he might well suppose, and undoubtedly did suppose, that he had taken all the ne cessary preliminary steps to qualify him to officiate in his office. He proceeded in good faith thus to officiate; and to make him liable in a case like the present

would be unjust and iniquitous in the extreme. It is that kind of injustice and iniquity which the law cannot countenance.

Considering then that Barret had substantially complied with the law in the giving of bonds, and even if it were not so, that he gave such bonds as were not objected to by the trustees, but were by them considered, as sufficient, as is apparent from the circumstance that they did not consider the office as vacant, and did not notify him that any thing further was required of him, the court of Common Pleas erred in rejecting the evidence offered by him to prove that the act complained of was done under and by virtue of a warrant directed to him as constable. For this error the judgment of that court, so far as it respects Barret, must be reversed, while it is affirmed to the other two defendants in the original suit.

The opinion of the court upon this question renders it unnecessary to examine the other errors assigned in this case.

MCARTHUR v. PHOEBUS, ET AL.

An invalid entry may obtain sufficient notoriety and become a good location call.

A complainant having obtained a patent, as assignee, is not bound to prove his purchase from the assignor.

The doctrine of notice has no application between the claimants of conflicting titles.

The plea of innocent purchaser cannot protect the purchase of a title originally defective against a better adverse title.

An entry cannot be made valid by subsequent notoriety.

An entry originally void because of the disproportion between its length and breadth, is made good by a withdrawal of a part so as to give it the proper proportions.

Matters not put in issue by the pleadings cannot be investigated.

Allegations made by one party and not admitted or denied by the other are in issue and may be

proven.

Proof as to notoriety of entry.

Entry defective for want of notoriety.

This was a bill in chancery between conflicting claimants of land upon distinct entries, and grants. It was adjourned from Madison county, and was elaborately argued by SCOTT and DODDRIDGE for the complainant, and Douglass, and BRUSH and FITZGERALD for the defendants. As the case is fully stated, and the arguments of counsel noticed and recapitulated, in the opinion of the court, the report is confined to that opinion.

Opinion of the Court by JUDGE Burnet.

The complainant claims under an entry in the name of Robert Means, made on the twenty-third day of May, 1808, in the following words: Robert Means, assignee, enters two thousand six hundred and sixty-six and two-thirds acres of land, on Military warrant No. five thousand three hundred and eighty-seven, on the waters of Deer-creek, beginning at three elms, south-easterly corner to Baron Steuben's survey, No. two thousand six hundred and ninety-eight, running north 30 east 296 poles, &c. On the margin of this entry is the following memorandum, fifteen hundred acres withdrawn from the north-east end, (entered