Walke and others v. The Bank of Circleville. Dee. Term, 1846. other, if he does an act in his own name, though alledged to is BANK. 'be done by him as attorney, it is void. In the case of Fron'tin v. Small, the attorney executed a lease in her own name, although stated to be made for and in the name of the principal, and the lease was held to be void, because made in her 6 own name. This case was recognized as good law so late as 'the case of Wilks v. Back. This return, therefore, is not an ' act of the sheriff, of which we can take notice." Third: The next question is as to the sufficiency of a sheriff's return, when it does not show a personal service, or that a copy was left at the usual place of residence of the defendant. It is very evident that, in this case, the return of the sheriff may be true, and yet the statute may not be complied with. This identical question was decided in Franklin county, by the Supreme Court, in the case of Ingram v. Wilcox, in the year 1826; present, Judges Pease and Hitchcock. The return in this case was, that the process was "served by leaving a copy at the defendant's house." The statute then in force required that it should be left at his "usual place of abode." A certified copy of the record in this case will be produced on the hearing. Fourth: The precipe filed in this case, and the indorsements upon the writs, show one cause of action, to wit: a bill of exchange. The declaration not only embraces this, but also other causes of action, by adding the common counts. If this can be done, a party apprized of one cause of action, by the indorsement upon the writ, and willing that judgment should go against him by default, for that cause of action, may, without having received any notice whatever of any other cause of action being involved in the case, find a judgment by default taken against him, not only for the cause of action specified upon the writ, but upon as many other causes of action as the plaintiff may see fit to offer in evidence, and can so offer under the common counts. IN BANK. Dec. Term, 1846. Walke and others v. The Bank of Circleville. Supposing that the object of the statute in requiring the cause of action to be stated in the precipe and indorsed upon the writ, is to give the defendant notice of the cause of action on which the plaintiff relies, we think the declaration cannot introduce any other. H. H. Hunter, for Defendant. The two first errors assigned are precisely the same in effect, one with the other, viz: that the writs of summons are not signed by the clerk. The statute (Swan's Stat. 690, sec. 152) provides, "that all process shall be under the seal of the Court, &c., and shall 'bear test, and be signed by the clerk," &c. These writs are signed and sealed, as follows: "Witness William P. Darst, clerk of," &c., "this 7th June, [L. S.]" 1842. "GEO. W. JONES, Deputy Clk.” The objection is, that this is not signed by the clerk, Wm. P. Darst. But is it not a signing by him, in legal effect? It will hardly be pretended that process may not be issued, signed and sealed in the name of the clerk, by his deputy. If it should be so contended, I would still think it unnecessary to disprove so absurd a proposition by argument. The objection intended is, I suppose, that the signature, "Geo. W. Jones, Deputy Cl'k," is not a signing by " Wm. P. Darst, Clerk: by Geo. W. Jones, Deputy." Even that might be admitted, if the name of the clerk did not appear; but it does. The rule relied upon is, that the act must appear to be that of the principal, and not of the deputy. I say the act does appear to be the act of the principal.— What else can be said of these terms: "Witness Wm. P. Darst, Clerk?" Will it be said that this is what is meant in the statute by the test of the writ? Walke and others v. The Bank of Circleville. Dec. Term, 1846. If so, I answer that the statute does not provide that the IN BANK, name of the clerk shall constitute a part of the test. It is all a matter of form, without any substance whatever, provided it be, in fact, the act of the proper officer, or his legal deputy; and that this was so, in fact, is not denied. The question is upon form. Now, I say, this would be a very good form under the statute: "Tested, this day of A. D. 18 "By WM. P. DARST, Clerk. "Geo. W. Jones, Deputy," What difference is there, except in the order in which the words are written down, between this and the writ complained of? - viz: "Witness Wm. P. Darst, Clerk, this 18-. [L. S.] day of A. D. "GEO. W. JONES, Clerk." But, at the most, this can only be called "an irregularity." The writ is under the seal of the Court has all the necessary substance about it to notify the defendants by whom the suit is brought; in what Court; for what cause of action; and the time and place they are required to appear, &c. If, therefore, they had any matter of defence upon the merits, they need not to have lost the privilege of making it, by reason of their not being fully advised of all essential things by the writ. For all useful purposes, they were just as well advised by the writ, even if this were, upon very technical principles, an irregularity, as they could have been by the most formal writ. What, then, was their duty, according to all the authorities, if they wished to take advantage of this formal defect, if it be one? Why, appear at the very first term of the Court thereafter, and move to quash or set aside the writ for the irregularity; and, if they failed to do that, they "waived the irregularity." I shall be loth to learn that this Court will, after the time which elapsed between this supposed irregularity, and any mo 1946. Walke and others v. The Bank of Circleville. IN BANK. tion on the part of the defendants to take advantage of it, Dee. Term. become instrumental in aiding in the commission of such gross injustice, as may follow a reversal of this judgment for this cause. Several years intervened between the judgment and prosecution of the writ of error. Second: The second error is, that the sheriff returned the writ against Anthony Walke-"served by copy at his residence," and not "at his usual place of residence." I hope to be excused from arguing this proposition. Third: That the indorsement on the writ, of the cause of action, is a bill of exchange only; whereas, the declaration is not only upon a bill of exchange, but has in it the common counts also. How is the party injured by this? It does not appear that the judgment was rendered for one cent more than it ought to have been, upon the bill of exchange. But I suppose it would have been perfectly regular for the plaintiff, on this indorsement on the writ, to have declared in the money counts above. Surely, the bill of exchange could be given in evidence under the money counts; and doubtless they were put into the declaration from prudential motives, merely to avoid the difficulty, in case of a variance between the bill and special count. Henry Stanbery, (Attorney General,) upon the same side. In addition to what is said by my associate, Mr. Hunter, I have only a word to say upon the point; that the signing of the summons by the deputy clerk, does not appear to have been done in the name of the clerk. First: If such a ministerial act must be executed in the name of the principal, we say this act was so executed. “Witness W. P. Darst, clerk, &c., Geo. W. Jones, Deputy clerk," fulfills the strictest requirements of the law, of mere principal and agent. Walke and others v. The Bank of Circleville. Dec. Term, Second: If the writ were simply signed by the deputy IN BANK. clerk, in such form as not to purport to be the act of the clerk, we claim it would be sufficient. The deputy clerk is something more than the mere agent of the clerk. He is an officer of the law; must be appointed by the clerk, that appointment be ratified by the Court, and must then take an oath to perform the duties of his appointment. All this being done, it is declared by the statute, "that when 'so qualified, the deputy may do and perform any and all of 'the duties appertaining to the office of his principal." This statutory grant of power to a deputy, distinguishes this case from Anderson's Lessee v. Brown et al., in which the Court only considered the relation in which a deputy sheriff stood to the sheriff, at common law. Swan & Andrews, in reply. The testing and signing are different acts; and, before the act of March 14, 1837, were required to be performed by different persons. After the passage of this act, they were both directed to be done by the same person, to wit, the clerk. There can be no doubt, that the writ in this case is tested by the clerk, and signed by the deputy clerk. The statute does not dispense with the signature of the clerk, because the writ is tested by the clerk: the counsel on the other side expect the Court to do it. Our position is, that the writ cannot be signed by the deputy clerk, in his own name. The statute relating to deputies, does not authorize deputies to act in the name of their principals, but, by its tenor and language, recognizes the relation of principal and deputy throughout. There is nothing, therefore, in the statute which changes the common law. The case of Anderson's Lessee v. Brown et al., 9 Ohio Rep. 151, is as applicable to deputy clerks as to deputy sheriffs; and the language of the Court in that case— "Where delegated authority is exercised, it must be exercised 1846. |