Lewis v. State of Ohio.

defendant urging it upon the court to instruct the jury that this was necessary; that without it the allegation of property in W. and C. King was not supported. Not only are the court required to say to the jury that the goods must have been received and retained by the joint assent, and this joint assent must be given at a time when William King was capable of giving his assent. Now it is, because the court have not gone the whole length in giving this instruction, that the writ of error is brought. Nothing short of the whole instruction would satisfy the demand upon the court. Yet, as we have already remarked, if there were a subsisting partnership between W. and C. King, the assent of C. King would be equivalent to their joint assent, and this, although William, at the time of the assent given, might be insane. But the instruction required did not permit the court so to lay down the law to the jury; but, on the other hand, if they had given the instruction prayed, they would have been bound to say, notwithstanding there might have been a partnership subsisting yet, if William was incapable of assenting, the assent of Christian was not equivalent to a joint assent. We submit the point to the court, which course of instruction would be the sounder in law. That there was strong and conclusive proof, if true, of the partnership, appears 397] fully by the reciting part of the bill of exceptions. Yet that proof would clearly have been taken from the jury, if the court had given the instructions required.

Mr. LEONARD presented an argument for the state.

Mr. SWAN, one for the plaintiff in error.

By the COURT:

The court can not be called upon to charge the jury upon abstract propositions, but only those arising upon the evidence. But to refuse such instructions as properly arise in the case is error. 1 Cranch, 309, 318; 6 Wheat. 75.

By the first exception, we understand the defendant designed to contest the fact of partnership; and, for this purpose, he relied upon the legal proposition, that property purchased for a lunatic does not vest in him. The fact of partnership was material to be established by the state; and that it was material, is matter of law. The legal proposition, that the property thus purchased

Wolf v. Pounsford.

could not vest, would go far to protect the defendant, if settled in the affirmative. Upon these legal propositions, the bill of excep. tions states, the court below refused to charge, but gave an expression of their opinion upon the question of fact, as to the suf ficiency of the proof. We are of opinion that the court erred in refusing to charge the jury upon the legal propositions.

It is unnecessary to notice the second exception.

JACOB WOLF v. WILLIAM POUNSFORD.

Judgment against principal and sureties upon a bond under the insolvent law; if a creditor of the insolvent would proceed upon such judgment by sci. fa. he must set forth and establish his debt. It is error to award execution in his favor if this is not done.

ERROR to the court of common pleas of Hamilton county.

On October 13, 1820, one John J. Richey, being in custody, at the suit of Pounsford, made his application for the benefit of the insolvent law, and executed his bond to Pounsford, with Wolf and one Gabriel Hubble as securities, conditioned to make a schedule and deliver over his property. Suit was brought upon this bond, and at December *term, 1821, a judgment [398 was rendered in favor of Pounsford against Wolf and Hubble, process being returned, not found, as to Richey; judgment was rendered for the sum of two thousand five hundred dollars, the penalty of the bond, to be released on the payment of nine hundred dollars and five cents, with eleven dollars and twenty-nine cents costs.

On January 22, 1829, a writ of scire facias was sued out in the rame of William Pounsford, for the use of one Hezekiah Sanders, suggesting the death of Hubble; and after reciting that the judgment recovered by Pounsford against Wolf and Hubble, was for the sum of nine hundred and eighteen dollars and five cents, with eleven dollars and twenty-nine cents costs, called, upon Wolf to show cause why said judgment should not be revived, and why Pounsford should not have execution thereon, for the use of Hezekiah

Wolf v. Pounsford.

Sanders. The scire facias contained no allegation that the judg ment was unpaid or unreversed, or that Richey was indebted to Sanders when the bond was given, or at any other time, nor did it appear what interest Sanders had in the judgment, nor by what authority he sought to revive it.

At February term, 1829, a judgment by default was taken against Wolf, by which it was ordered that the judgment as set forth in said scire facias be revived, and that execution issue thereon. Leave granted to take out execution for the claim of Hezekiah Sanders, being two hundred and eighty dollars, with interest from October 14, 1820, amounting to four hundred and twenty-one dollars and forty cents, with costs of this suit.

HAMMOND and GARRARD, for the plaintiff in error.

STORER and Fox, contra.

By the COURT:

1. A scire facias, to revive a judgment, is only a continuation of the former suit, and is not an original proceeding. 2 Tidd, 923; 1 Term, 257. When a scire facias is issued to revive a judgment, the whole record is before the court; and if the defendant makes 399] default, and no payments appear *upon the record, it is the duty of the court to award execution for the amount of the original judgment. 22 Stat. 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 fire 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.

2. The original judgment was founded upon a bond, executed by Hubble 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,

Roll v. Raguet.

that Sanders was one of the creditors of Richey at the time the bond was executed; 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 everything 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, 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.

*PETER ROLL v. HENRY RAGUET.

[400

An action can not be sustained upon a promissory note, the sole consideration of which is an agreement on the part of the payee not to prosecute the maker for felony.

ERROR to the court of common pleas of Hamilton county.

Henry 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 dol

Roll. Raguet.

lars, he would subject Charles Roll to undergo an examination before some judicial tribunal for said supposed offense, and would endeavor to cause Charles Roll to be indicted and sent to the pen. itentiary 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 offense; 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 401] 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 & STARR, for the plaintiff in error:

The only question for the investigation of the court is, whether the consideration of the note, as set forth in the plea, makes the note void, and the plea sufficient. We contend that it does; and we think the position can be most amply sustained by authority and principle.

The two following propositions are laid down in all of the books, and if they are true, they must make an end of the case:

1. All contracts, agreements, or promises, whose consideration is illegal, contrary to sound policy and good morals, are void. Starkie, in his treatise on the law of evidence, says, in the words of our proposition, that, "if the consideration be illegal, or contrary to justice and sound policy, no action can be founded upon it." The maxim is invariable, that "ex turpi causa non oritur actio." 2 Stark. 87.

"Courts will not lend their aid to enforce a contract where the consideration is illegal or immoral." 7 Term, 601. Hence, contracts in consideration of prostitution, or whose effect is the encouragement of prostitution, have been holden to be void, because contrary to good morals. 1 Swift, 210; Cowp. 29. So, also, it has been holden that all contracts contrary to sound policy are void.