
    E. F. Gaylor et al. v. David Hunt et al.
    1. The neglect of a justice of the peace to issue an execution when required by law, is the breach of a ministerial duty for which an action may be maintained by the judgment creditor on his official bond. The measure of damages in such cases is not necessarily the amount for which the execution should have issued, but the loss suffered .by the creditor from the neglect.
    2. The neglect of a justice of the peace to enter on his docket an undertaking for the stay of execution, is not a breach of duty for which the judgment creditor may maintain an action against the justice. Until an undertaking is so entered, the right of the creditor to an execution is not suspended, nor is the justice justified in withholding it.
    3. Where, under the revenue law in force April 25, 1865, an instrument is required to be stamped, the omission of the stamp, where there is no intent to evade the law, will not vitiate the instrument.
    Error to the District Court of Cuyahoga county.
    The facts appear in the opinion of the court.
    
      Bishop & Adams and W. C. McFarland, for plaintiffs in error:
    I. After notice that the bail offered was not satisfactory to Hunt & Hayden, the justice, in omitting to enter the giving of bail for stay of execution, was not only not guilty of neglect, but did as his duty required.
    II. The judgment debtor alone could complain of suck omission. Execution was never suspended by stay, and so Hunt & Hayden lost nothing in that view.
    III. The taking of bail for stay is a judicial, and not a ministerial act, and is not covered by the official bond of the justice. See Stallcup v. Baker, 18 Ohio St. 544; S. & C. 788, see. 107; Phelps v. Sill, 1 Day, 315; Way v. Townsend, 4 Allen, 114; Chickering v. Robinson, 3 Cush. 543; 11 Wend. 545; Howe v. Mason, 14 Iowa, 510; Wasson v. Mitchell, 18 Iowa, 153; S. & C. 797, sec. 156; Ib. 804, 805, sec. 203. The cases of Kearns v. Schoonmaker, 4 Ohio, 331, and Herig 
      v. Nougaret, 7 Ohio St. 480, do not sustain the judgment of the District Court in this case.
    IV. Without the testimony of Boardman as to Benham’s statements to him, no case of neglect against the justice-can he made out. .
    This was objected to as incompetent:
    1. Because that which the record is competent to show can not be helped out in this way by verbal testimony aliunde.
    
    2. Because it was the admission of a person not party to the record; was hearsay; was not part of the res gestee; and the principal could not thus, by his declarations made “ after the fact,” mulct his sureties. On this point we are clearly sustained by Stetson v. City Bank N. O., 2 Ohio St. 175-178, and cases there cited; 1 Phillips’ Ev. (4 Am. ed. by Edwards), 307, 308, and notes.
    Boardman’s testimony was improperly received, unless it related to what was said when Hayes signed the docket, to say the least of it; but it is also claimed by us that it is incompetent in every respect. Ogden v. Peters, 15 Barb. 560 (14 U. S. Dig. 275, sec. 255).
    There is no such thing as verbal approval of an undertaking, any more than there is a verdict .and judgment -without the same being on the docket; in either case there-is required “ consideration' and discretion.”
    The only way a justice can accept and approve of the surety, is: 1. By an undertaking written on his docket; 2. By the signature of the surety thereto; 3. By entering' the date thereof, and his approval.
    Therefore it is only the docket entry that is competent-to speak. See also Wickware v. Bryan, 11 Wend. 545.
    V. The justice’s official bond was not properly admitted' in evidence without sufficient stamp on it.
    The United States, having power to legislate upon, this subject, may prescribe the rule of evidence as to it, and. the effect of want of stamp, etc., and the state courts should-Ire governed by that legislation. This court has -so held in-the case of Murphy, Adm’r, v. N. T. Co., 15 Ohio St. 553. See also Harper v. Clark, 17 Ohio St. 190; The C. & R. T. Turnpike Co. v. Rudge, Am. Law Rep. of March, 1873, p. 157.
    
      W. J. Boardman, for defendant in error:
    1. The alleged notice of dissatisfaction with the bail was in fact this only: Boardman expressed a doubt as to the-pecuniary ability of Hayes, and the justice replied: “ Í have had occasion to investigate as to that, and he was good.”
    2. The defendants being liable severally as well as jointly,, it was not necessary to have an administrator of Benham in court as a party defendant. Beeson v. The Commonwealth, 13 Serg. & R. 249; Peabody v. Ohio, 4 Ohio St. 387; State v. Bowman, 10 Ohio, 445.
    3. The official bond was properly admitted in evidence. The omission of a proper stamp renders an instrument invalid only when it is omitted with intent to evade the provisions of the stamp act, and the mere fact of omission is-not prima facie evidence of such intent. With the party who questions the validity of the instrument rests the burden of proof to show that the omission was with the intent to evade the act. Green v. Holway, 101 Mass. 243.
    Congress can not enact rules regulating the competency of evidence on the trial of cases in the state courts. Green v. Holway, 101 Mass. 243; Sporrer v. Eifter, 1 Heisk. 633; Clemens v. Conrad, 19 Mich. 170; Carpenter v. Snelling, 97 Mass. 452; Griffin v. Ranney, 35 Conn. 239. See also State v. Gaston, 32 Ind. 1; 40 Ill. 459; Jones v. Davis, 22 Wis. 421.
    4. It was the official duty of the justice to write out the-undertaking for stay of execution. The statute is peremptory. S. & C. 797, sec. 156; Ib. 804, sec. 203; Kerns v. Schoonmaker, 4 Ohio, 331; Chase’s Stat. 1439, sec. 26.
    It is of no consequence in this case, whether the law requires the justice to write out the undertaking upon his, docket before it is signed, or permits him to do so afterward. Without doubt, one who offers himself as bail for stay of execution and is accepted by the justice, and writes his name as such on the docket, leaving a blank space above for the bond, will be held as firmly by a bond written in the blank space by the justice, as he would have been had it been there when he signed. Herig v. Nougaret, 7 Ohio St. 480; Wiley v. Moor, 17 Serg. & Rawle, 438.
    5. The entry of such undertaking on the docket is & ministerial act. It required no exercise of judgment. Melhurst v. Waite, 3 Burr. 1259; Tompkins v. Sands, 8 Wend. 462; Smith v. Trowle, 1 Root, 165; Matthews v. Houghton, 11 Maine, 377. The case of Stallcup v. Baker, 18 Ohio St. 544, was one of a neglect to enter a judgment — an unmistakably judicial act.
    Apply another test. The justice might have employed .a clerk to write out the undertaking over Hayes’ signature. See 3 Kent, 572.
    6. While the stay of execution is for the benefit of the judgment debtor, the undertaking therefor is for the benefit of the judgment creditor.
    7. Boardman’s testimony was rightly admitted. It falls strictly within the rule laid down in Stetson v. City Bank of New Orleans, 2 Ohio St. 167. Benham’s statements referred to a ministerial act commenced but not completed, and were made within the time allowed the justice for writing out the undertaking. They were made' in the -course of his official duty, for the fact as Jo whether it has - or has not been put in, determines the rights of the judgment creditor in regard to the issuing of execution within that time. S. & C. 796, secs. 154, 155. See also Commonwealth v. Kendig, 2 Penn. St. 448. They were part of the res gestae. Matchum v. The State, 11 Ga. 615 (14 U. S. Dig. 275).
    The statements of the justice were admissible as declarations of a person since deceased and against his interest. 1 Greenl. Ev., secs. 147-149; Middleton v. Melton, 10 Barn. & Cress. 317.
    8. It is claimed that Hunt & Hayden should have ordered out execution. Had they done so, the justice would have ¡refused to issue it, on the ground that bail for stay had been put in; or if he did issue execution, the judgment debtor could have obtained an injunction staying proceedings on the writ.
   White, C. J.

The defendants in error sued the plaintiffs in error in the Court of Common Pleas of Cuyahoga county, upon the official bond of George H. Benham, a justice of the peace, on which the plaintiffs in error were sureties.

The breach assigned as the cause of action, though stated somewhat indefinitely, consists of this: The, plaintiffs having recovered a judgment before the justice, the judgment •debtor, within the ten days allowed by law for that purpose, •offered one Hayes as bail for stay of execution. The justice deeming Hayes acceptable as bail, the latter, by direction of •the justice, signéd his name in blank on the docket of the justice, for the purpose of beconling such bail; but the justice neglected to write an undertaking above the signature •of Hayes.

It appears from the petition, that after the expiration of the time allowed for stay of execution, Justice Benham having in the meantime died, his successor issued an execution against the judgment debtor, which was returned “ no property found whereon to levy.” That the plaintiffs below then instituted suit against Hayes to charge him as bail, which resulted, on account of his signature being merely in blank, in a judgment against them.

There is no averment in the petition that Justice Benham neglected to issue execution; nor do the plaintiffs rely for their cause of action on such neglect.

They claim that, by reason of the neglect of the justice to write out the undertaking, they have suffered damages to the amount of the judgment.

The petition was demurred to, on the ground that it did •not state facts sufficient to constitute a cause of action. The demurrer having been overruled, the defendants filed an answer, admitting the execution of the bond and the recovery of the judgment before the justice, as alleged in the petition, but denying the other allegations.

Issue was also joined by answer and reply as to whether Hayes had become insolvent between the time of his signing the docket and the time allowed for stay of execution.

On the trial certain exceptions were taken to the admission of evidence, which, in the view we take of the case,, become immaterial.

The court instructed the jury, among other things, in substance, that if Hayes was accepted by Benham as bail for stay, his omission to fill up the blank over Hayes’ signature, with the proper undertaking for stay of execution,, rendered the defendants liable, upon the official bond of the justice, for such omission, to the amount of the judgment recovered by the plaintiff's before the justice, as set forth in tbe petition, unless the amount should be reduced in consequence of the insolvency of Hayes at the time-the stay would have expired, if the undertaking had been valid.

The jury returned a verdict in favor of the plaintiffs for the amount claimed, on which judgment was rendered. This judgment was affirmed, on error, by the District: Court; and the object of the present petition is to obtain the reversal of this judgment.

It seems to us the plaintiffs, in framing their petition,, misconceived their grounds of action, and this misconception, seems to have governed in the conduct of the case throughout. The duty of the justice, in regard to the matter in question, is prescribed by the statute; and for his neglect to perform a ministerial act enjoined on him by law, to the-injury of the plaintiffs, they have a right of action on his bond. Their damages are, of course, to be estimated with reference to the loss caused by such neglect.

The statute makes it the duty of the justice to issue execution on a judgment, on the application of the party entitled thereto, at any time after its rendition, unless the necessary steps have been taken, by appeal or otherwise, to stay the enforcement of the judgment.

If no such steps have been taken within ten days from the entry of judgment, it is made his duty at the expiration of that time, to issue execution without demand, and to proceed to collect the judgment, unless otherwise directed by the judgment creditor. If the justice refuses or neglects to perform this duty, he is guilty of a breach of his bond, for which he and. his sureties are liable to the ¡creditor. The extent of such liability is to be measured by the extent of the loss. If the judgment creditor should be insolvent, and thus the issuing of the execution could not have benefited, the creditor, no more than nominal damages would be recoverable, in the absence of malice or corrupt motive.

In the present case, as already remarked, it is not averred that the justice neglected to issue execution; but if such ¡neglect could be implied, there is neither averment nor proof to show that the judgment debtor had any property subject to execution whereby the plaintiffs could have been injured by such neglect.

The duty the law imposes on the justice to issue execution, is for the benefit of the creditor. The neglect of the justice in this respect would afford no ground of action to the judgment debtor.

The right to have the execution stayed, by giving bail in the mode prescribed by statute, is a privilege provided by law for the judgment debtor, of which he may avail himself or not. If the justice should wrongfully refuse to allow him to enter bail for stay or for appeal, or should, by culpable negligence, deprive him of the benefit of either, .such conduct would afford no ground of action to the plaintiff.

The signature of Hayes in blank did not affect the right of the plaintiffs to have execution issued, nor relieve the justice of the duty to .them of issuing it. In order to have that effect the undertaking must be entered on the docket and be signed by the surety. And the legal effect of the undertaking is the same whether the docket remains with the justice who rendered the judgment, or has passed under the law, into the hands of his successor.

When the undertaking becomes operative, so as to suspend execution, it inures to the benefit of the creditor, but not till then, and is additional security, which the law provides for the creditor, as a consideration for compelling him-to submit to delay.

We do not consider the question here made as concluded’ by the decision in Kerns v. Schoonmaker, 4 Ohio, 431.

The decision in that case was in favor of the justice. It is true it was placed altogether on the ground that the action was barred by the statute of limitations; but that was the only question presented in argument, and the only question considered by the court in the opinion.

In Herig v. Nougaret, 7 Ohio St. 480, the suit was brought upon the record of a justice, against the bail, for stay of execution. The record contained the judgment, and an-undertaking, in the usual form, for stay, signed by the defendant. The latter offered evidence to impeach the record,, which this court held was properly rejected.

The undertaking was a debt of record, and, like a recognizance, or the judgment to which it related, imported,, in a collateral suit, as between the parties, absolute verity. In the present case there was no such record.

It appeared that the bond sued on had been stamped with a revenue stamp of fifty cents, the act of Congress, as-it is claimed, requiring a dollar stamp. The defendants contended the bond was void on this account.

On this point the court instructed the jury as follows:

“No testimony having been offered on either side to explain the omission of the proper stamp on said bond, the bond will not be held invalid, for the simple omission of the proper stamp, without proof that it was omitted with the-intention to evade the revenue laws of the United States,, if the jury were satisfied from the then recent change in-the law of Congress, or otherwise, that no such intention-existed.”

We see no error in this charge of which the plaintiff' in. error can complain. The action was brought on a certified copy of the bond, as authorized by the statute. The bond was dated April 25, 1865, and its execution by the plaintiffs in error was admitted by the answer. No question, therefore, properly arises under section 163 of the revenue law,, as to whether the bond was admissible in evidence. The simple question is whether the insufficiency of the stamp renders the bond void, under section 158 of the act. We regard this question as already determined in Harper v. Clark, 17 Ohio St. 90.

It appeared, from the testimony of the city clerk, that at the time of the presentation and approval of the bond, it was supposed that only a fifty cent stamp was required. The plaintiffs had no connection with the making of the bond, nor with its possession or custody. They were charged with no duty in respect to it. The nature of the instrument rendered it unassignable. If a stamp was required, the duty of affixing it rested on the makers, and not on suitors who might become interested in the bond by the official misconduct of the principal.

In confining our remarks to the ground on which the charge was placed in the court below, we do not mean to be understood as conceding that the act of Congress, in regard to stamping official bonds, can be made to apply to bonds required by the state of its officers, in carrying -on the functions of the state government, in any of its departments. That question we deem it unnecessary to consider.

The judgment of the District Court, and that of the Court of Common Pleas, will be reversed, and the cause remanded to the court last named, for further proceeding.  