Gwynne v. Niswanger. 1846. vested in Starling the purchaser; and if, after the sale, a patent IN Bank. had been issued to Ross, he would have taken it subject to the Dec. Term, rights of Starling, in trust for him. Niswanger having obtained an assignment from Ross after the sale, and having taken out a patent in his own name, takes the naked legal title in trust for the purchaser at tax sale. He stands in a similar relation to the purchaser for taxes, as does the patentee under a prior entry to him who has the older entry and survey. He is a mere trustee, and a court of equity may, with propriety, compel him as a trustee to convey to the cestui que trust. It was upon this principle that the Court, in the case of Niswanger v. Gwynne, decided that the remedy of the defendant Gwynne, if the proceedings in the tax sale were regular, was in Chancery. The next question is, whether the case made in the bill is such as to show that the proceedings at the tax sale were regular. We have carefully compared the statements in the bill with the requisitions of the statute, and have no hesitation in saying, that if the statements of the bill are true, and they are admitted by the demurrer, the complainant is entitled to relief. The demurrer is, therefore, overruled. But if the defendant would contest the facts stated, he can have leave to answer. Hyatt v. Robinson and others. IN BANK. Dec. Term, 1846. SILAS HYATT vs. LEWIS ROBINSON and others. In an action of debt upon a specialty, where the deed is merely inducement to the action, while its foundation depends upon other extrinsic matters of fact, nil debit is a good plea. It is a good defence to an action upon a "prison bounds bond," that an order was made by the Court or Judge for the issuing of the ca. sa., that the order was made without preliminary proof, or that the ca. sa, has been quashed for irregularity. It is no defence in such case, that the penalty of the bond is more or less than required by the statute, that the order for issuing the ca. sa. is not recited in, nor indorsed upon the writ, nor that the facts upon which the order was made, are not true. THIS case comes before this Court by appeal from the Court of Common Pleas of MUSKINGUM County. The declaration is in Debt, upon a "prison bounds bond.” It sets forth the condition; avers that defendants, Aaron Robinson and Isaac Robinson, were the sureties of the defendant, Lewis Robinson; that they were, at the time of its execution, residents of Muskingum county, and were duly approved as such sureties, by two of the Judges of the proper Court; and assigns for breach, that Lewis Robinson, the principal in the bond, went beyond the limits, &c. To this declaration, the defendants, Aaron and Isaac Robinson, pleaded jointly the following pleas: 1. Nil debit. 2. Non est factum. 3. That the supposed writing, called a "prison bounds bond," was taken for a sum less than double the sum for which the said Lewis stood committed, &c., and is therefore void, &c. 4. That the said supposed writing was taken for more than double the sum for which the said Lewis stood committed, and is therefore void, 5. That no order was made by the Court, or any Judge, upon the affidavit of the plaintiff or his attorney, and other testimony, authorizing the issue of ca. sa., but the writ was Hyatt v. Robinson and others. Dec. Term, 1846. issued without any such order, and without the Court or any IN BANK. Judge being satisfied by such affidavit and other testimony therewith presented, of the existence of any of the particulars or causes of arrest enumerated in the statute, and that, therefore, the ca. sa., and also the bond predicated thereon, are void, &c. 6. That the ca. sa. did not recite or set forth, any order made by the Court or any Judge, upon affidavit and other testimony, authorizing the issuing of such writ. 7. That the said Lewis was unlawfully imprisoned by the plaintiff, and detained by the force and duress of the imprisonment; the said Lewis and the said Aaron and Isaac, as his sureties, made and delivered the said writings, &c. 8. That the ca. sa. was issued under an order made by the Court, solely upon the affidavit of the plaintiff alone, and without any other testimony presented by him or his attorney, to satisfy the Court of the existence of any of the enumerated grounds of arrest. 9. That there was no record of any such judgment as that recited in the ca. sa. 10. That the ca. sa. was issued under a supposed order of the Court allowing the same, upon the affidavit of the plaintiff that the said Lewis was about to remove his body out of the jurisdiction of the Court, and without any other cause or ground alledged for such writ; and avers that the said Lewis was not, in fact, about to remove his body out of the jurisdiction of the Court. Lewis Robinson, the principal in the bond, plead separately: 1. Nil debit. 2. Non est factum. 3. Duress. 4. That the ca. sa. was issued under a supposed order, &c., being similar to the 10th joint plea of the other two defendants. After the case came into this Court, all the defendants jointly filed an additional plea, setting forth that the ca. sa. has, Hyatt v. Robinson and others. Dec. Term, IN BANK. Since the appeal in this case, been set aside, rescinded and vacated by an order of the Supreme Court, duly made in the premises, which is still in full force and unreversed. 1846. Upon the second pleas, both joint and separate, the plaintiff joined issue, and replied to the ninth joint plea. As to all the other pleas, both joint and separate, he demurs generally, and the defendants join in demurrer. George James, for Plaintiff. The plea of nil debit, is not good, the declaration being on a specialty; 1 Chit. Plea. 351. "To debt on a bastardy bond, the plea of nil debit, is bad on general demurrer;" Trimble and others v. The State, 4 Blackf. Rep. 435; Love v. Kidwell, Ibid. 554. "Nil debit not a good plea to debt on bond setting forth the condition and breach;" Janson v. Ostrader, 1 Cowen's Rep. 676. Whether the bond is for too much or too little, is not a defence to a suit thereon. "An ap'peal bond in less than double the amount of the judgment ' appealed from, is not void, but good;" Bank of Columbus v. Bartlett, Wright's Rep. 741; S. P. 5 How. Miss. Rep. 407. "A forthcoming bond taken for more than the sum due on the execution, does not vitiate it;" Scott v. Hornsby, 1 Call, 41, 45; Bell & Harrison v. Marr, Ibid. 47; Wilkinson v. McLocklin and others, Ibid. 49. "Though a bond for the 'jail limits be taken for less than double the sum for which the 'prisoner is committed, and so not within the statute, it is a good bond;" Clap v. Cofran, 7 Mass. Rep. 98;* Same point, Freeman v. Davis and others, Ibid. 200; * Same point, Burroughs v. Lowder and others, 8 Mass. Rep. 372; * Vide Gano v. Slaughter, Hardin's Rep. 76. "A replevin bond taken for too much, does not avoid it;" Nicholson v. Howsley, Littell's Select Cases, 300. *The law of Massachusetts as to the amount, &c. of the prison bounds bond, is as ours. Vide 14 Pickering, 523. Hyatt v. Robinson and others. Dec. Term 1846. As to the plea of duress of Lewis Robinson, the principal: IN BANK. This is a joint action on a joint and several bond against prin'cipal and securities. So it follows that a plea or defence, whether "joint or several," must be an answer to the entire cause of action;" and though a plea might be good for the principal, yet not for the securities: it is therefore bad; Farrington v. Galloway and others, 10 Ohio Rep. 543; Slipher v. Fisher and others, 11 Ohio Rep. 299. Duress of principal, is not a defence for the sureties. "A surety is liable on an agreement made by him to relieve his principal from duress;" Story on Contracts, p. 60, secs. 93, 94, 95. "Duress is no discharge to a surety against whom it has not been practiced;" 1 Esp. N. P. pt. 2, p. 5. "When a mother executes a bond to procure the enlarge'ment of her son, who was in duress, such duress is not plead'able in bar or discharge of the bond;" Sims v. Barefoot, 2 Hayward's Rep. 402. "At common law, a prison bounds bond, executed by sureties whilst principal is under duress, is valid as to them; Jones v. Turner, 5 Littell's Rep. 147. I respectfully solicit the attention of the Court to this case, as it is directly in point, and decides this case, even in the strongest view the defendants can ask it shall be viewed; as in the case referred to, there was no legal execution in the hands of the sheriff when he took the bond reciting it, which the defendants claim to have been the case here. 2 "If A and B enter into a bond, by reason of duress, to A, 'B cannot avoid this obligation by reason of such duress." Ba. Ab. tit. Duress B. 403; 1 Shep. Tou. 62; Huscomb v. Standing, Cro. Jac. 178; Peirce v. McIntire, 2 Dane's Ab. 224, sec. 5. "At common law it cannot be controverted, that if a bond be obtained from A and B, by duress against A, B cannot plead duress of A to invalidate the bond as Thompson v. Lockwood, 15 Johns. Rep. 259. against him." case in 5 Littell were cases on prison bounds bonds, where the |