
    In Bank.
    Dec. Term, 1846.
    John Walke and others vs. The Bank of Circleville.
    Where a writ bears the proper test, and is signed by a deputy clerk, it is sufficient 5 although it would be more technically corroct for the deputy to sign for his princi- , pal.
    It is sufficient service if the sheriff return that he left a copy of the writ at the residence of the defendant.
    This is a Writ of Error, directed to the Court of Common Pleas, of Pickaway County.
    The original action was Assumpsit.
    The declaration contains a special count upon a bill of exchange, and the common counts. The writ bears date on the seventh of June, 1840; declaration was filed the twelfth day of July following. At the November term of the Court of Common Pleas of Pickaway county, judgment was entered by default against the defendants for $5,402.55, damages and costs.
    To reverse this judgment, this writ of error is prosecuted, and the errors assigned are:
    First: That the writ of summons against the said John Walke and others, is not signed by the Clerk of the Court of Common Pleas of the said county of Pickaway, and State of Ohio, and that said writ is void.
    Second: That the return of the sheriff upon said writ of summons issued against Anthony Walke, one of the plaintiffs in error, does not show that a copy of said writ of summons was served personally upon said Anthony Walke, or left at his usual place of residence.
    Third: The precipe filed in said cause, and the indorsement upon said writ of summons against the plaintiffs in error, specifies only, as the cause of action, a bill of exchange, without the addition of the common counts, or any of.them, while the declaration adds the common counts in full; and the judgment is taken by default, without any actual appearance of the plaintiffs in error.
    
      J. II. Geiger, and Swan &f Andrews, for Plaintiffs in Error.
    First: The test of the writ, and the signing by the clerk, are distinct requirements of the statute.
    The statute of March 8, 1831, (Practice Act,) section first, provided that, “ all writs and process, issuing from the Supreme ‘ Court, shall bear test by the Chief Judge thereof; and all £ writs and process issuing from.Courts of Common Pleas, shall ‘ bear test by the President of said courts; which said writs £ and process shall be under the seal of the court from whence £ they issue, and be signed' by the clerk thereof; and all writs ‘ and process shall run in the style of the £ State of Ohio,- £ county, ss.,’ and shall be dated of the day on which the same £ may issue.” '29 Statutes, 58.
    This act was repealed April 1, 1837, by an act passed March 14, 1837, in which it was provided, that ££ all writs and process ‘ issuing from the Supreme Court, or Courts of Common Pleas, ‘ shall be under the seal of the Court from whence the same £ shall issue, and shall bear test and be signed by the Clerk of £ the Court issuing the same; and all writs and process shall £ run in the style of the £ State of Ohio,-county, ss./ and £ shall be dated of the day on which the same may issue.” Swan’s Stat. 690.
    Thus it appears, that the test and signature are substantially different things, and neither can be dispensed with.
    Second: The deputy, as such, cannot sign process, except in the name of the principal.
    The statutes in relation to the powers of clerks’ and sheriffs’ deputies are identical. See Swan’s Stat. 284, 285, of which section third reads as follows:
    ££ The sheriff of any county may appoint one or more depu- £ ties, to be approved by the Court of Common Pleas, or Asso- £ date Judges of sudi county; and the clerks of the Supreme £ Court, and Courts of Common Pleas, may each appoint a £ deputy, to be approved by their respective courts.” And it is provided by sections fourth and fifth, ££ that the 'appointment ‘ of every such deputy shall be evidenced by a certificate £ thereof, signed by his principal, and shall continue during the £ pleasure of the principal; and every principal may take such £ bond and .security from his deputy as he shall deem necessary £ to secure the faithful discharge of the duties of his appoint- £ ment; and the principal shall, in all cases, be answerable for £ the neglect of duty, or misconduct in office, of his deputy and ££ that every such deputy shall, previous to entering on the £ duties of his appointment, take oath or affirmation faithfully £ to perform all the duties of his appointment; and when so £ qualified, the deputy may do and perform any and all of the £ duties appertaining to the office of his principal.”
    That the sheriff’s deputy, as such, cannot sign except in the name of the principal, is fully settled in the case of the Lessee of Anderson v. Brown et al., 9 Ohio Rep. 151; in which it was held, that although a deputy sheriff could make a deed in the name of his principal, yet a deed executed by a deputy, in his own name as deputy, and not in the name of his principal, was void, and on the general ground that, where delegated authority is exercised, it must be exercised in the name of the principal. We suppose this case to be identical in principle with the one before the Court.
    So the return to a writ by a person who signs himself ££ deputy sheriff,” is erroneous for the same reason. See Ryan v. Eads, Bre. 168, where it is held, that a return to a writ ££by a person who signs himself deputy sheriff,” is ££ clearly erroneous ;” for ££ a deputy sheriff can only act in the name of his principal.” Also, see Gilman’s Dig. 637.
    So also in Simonds v. Gatlin, 2 Caine’s Rep. 61, where a return had been made by a deputy sheriff, in his own name as deputy sheriff, the Court held, that ££ when a man acts in con- £ templation of law, by'the authority and in the name of an- 
      ‘ other, if he does an act in his own name, though alledged to f 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, c although stated to be made for and in the name of the prin- ‘ cipal, and the lease was held to be void, because made in her ‘ own name. This case was recognized as good law so late as 4 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.
    
      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.
    
      II II. 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, 1842. [l. s.]”
    “ 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 bo 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 those 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 ?
    
      - If so, I answer that 'the statute does, hot .provide that the 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. Daírst, 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' óf?. — hviz;-
    ■ “Witness Wm-'P. Darst, Clerk, this.— day of ——, is — -.- '-- ‘ " '• a;d. •
    [n, s.] . “Geo. W. Jones,.CÍerk,”.
    ■ But, at- the most-- this can only:be called-‘tan-''irregularity'.” ' The writ is under.'thé 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, &o. : ■ • • ■
    ' If, therefore, they had any matter of defence upon the-merits, they peed not to haVe lost the. privilegé óf making ifi -by reason, of théir 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 tliis 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 dp 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 motion on the part of the defendants to take advantage of it, 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.
    
      Second: If the writ were simply signed by the deputy 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 at, in which the Court only considered the relation in which a deputy sheriff stood to the sheriff, at common law.
    
      Sioan 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 at, 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 pin the' name of the .principal“the deputies of a sheriff £ compose but-one office, and ¡they have no authority, except £ that ex.ercised in the name of the-principal”— is'equally ,ap- ' plicable- to deputies, as well since, as before .the statute relating to deputies was passed; unless, indeed, it be. held'that deputies •.do not, under our statute,' hold delegated powers: appointed as they are, and liable as their principals are for -their conduct.
    '■ It is not claimed that usage — the geiier.al. custom over, the State — Or any thing, peculiar in reference, to. deputy clerks, should influence the Court in'this case. It is simply a .question, whether'delegated power, exércised in the name of the delegate, is, in law, the act of the principal? .'
    .'. Second': As. to.. the sufficiency of the sheriff’s return, - we beg leave,to refer to'the record in the case-of Ingram v. Wilcox, decided some years since in.the Supreme Court of Franklin' county. If the ££residence” for.the time being, and <£usual place of residence” of the citizens of this State,.in their various occupations and callings,' be the samé; then there is'-ri.othing in this assignment of error. ' But if a citizen can have a-residence at one . place, while his usual place of residence is at another place, the Legislature meant something-.by superadding, to the word resided,ce,' the. words, “ the usual place o'f residence. — - One of .'the counsel, in this case, remarks, that'such, an-assignment was. sustained in' the opinion announced, ih the case of Ingram ,v.' Wilcox.,
    
    ..'■Third: As to. the. last point; we-'deny..'that the common count c.an: be added to/a’ declaration, where the precipe and indorsement'upon the writ set forth simply á bilí. óf. exchangé as the cause of action. What additional matter may have beén proven..under ,such a declaration, ..the Court c'anriot know, on etror'. -,, " . ■ • , ■ ..
    If- this thing can'.be done, .a thousand causes .of action may be offered in evidence, and judgment'taken upon themj which are not indorsed upon the writ. We have not- supposed that this could be done. '
   Hitchcock, J.

The exceptions to the record; in this case, will be considered in the order in which the errors are assigned; and, first, as to the summons :

The record shows, that a summons was issued under the seal of the Court of Common Pleas, in due form, and attested and signed, as follows: “ William P. Darst, Clerk of said Court, £ this 7th day of June, in the year of our Lord one thousand £ eight hundred and forty-two. George W. Jones, Dep’y Clk.” It is supposed by the counsel for plaintiffs in error, that this writ was void, because it does not purport to be signed by the clerk, but only by the deputy clerk. Formerly, all writs bore test in the name of the President Judge of the circuit, or, in case of a vacancy in that office, then in the name of the senior Associate Judge; but it was necessary that they should be signed by the clerk. By the act of April 1st, 1837, this law was changed, and it is provided, that writs shall “ bear test and be signed by the clerk of the court issuing the same.” Under this act, different modes of testing and signing writs, in different parts of the State, have been adopted. But, in the case before the Court, there is no pretence but that the writ is properly tested — the only objection is, that it is not signed by the clerk, and the question presented is, whether a writ bearing test in the name of the clerk, and signed by the deputy, is a void writ?

The act of February 17, 1831, “for the appointment of certain officers therein named,” (Swan’s Stat. 284,) provides: “ That the Clerks of the Supreme Court and Courts of Com-f mon Pleas may each appoint a deputy, to be approved by £ their respective courts.” It is further provided, that “ such £ deputy shall, previous to entering on the duties of his appoint-c ment, take an oath or affirmation to perform all the duties of £ his appointment, and, when so qualified, the deputy may do and perform all the duties appertaining to the office of his 1 principal.” Under this law, a practice has grown up in many parts of the State, for deputy clerks to sign writs, as was done in the case now under consideration. It is one of the duties of clerks of courts to sign writs, and the act expressly provides, that the deputy may do and perform all the duties appertaining to the office of his principal.” Such being the provision of the statute, it is not surprising that such a practice should have been adopted. It would have been more technically correct to have signed, in this case, as follows: “ Wm. P. Darst, Clerk, by George W. Jones, Deputy Clerk.” But, as it is, the statute is literally complied with, and no injury is done. For. such cause, we should not feel ourselves justified in reversing a judgment. It may be supposed, that this opinion contravenes the decision of this Court in the case of Anderson v. Brown and others, 9 Ohio Rep. 151, but we think not. In that case it was held, that a deed upon a sale upon execution, in 1799, might .be .executed by a sheriff’s deputy, in the name of his principal, but that the acknowledgment of such deed, made by the deputy after the death of his principal, is void. In 1799, there was no written law of. the State authorizing a sheriff to appoint a deputy, but the Court held, that, by the common law, .such appointment might be made, but said that,' where delegated authority .is exercised, it must be exercised in the name of the principal. The deputy sheriff, in that case, was, in truth, the mere agent, the attorney in fact of the sheriff. But a deputy clerk, under the law of 1831, is, in effect, the officer of the Court. lie cannot be appointed without its approbation, and fakes the same oath of office which is administered to the clerk. Still we think, as .before said, that it would be more correct for him to sign process in the name of his principal, although we do not hold it to be indispensable.

The next error assigned is, that there was no service upon, one of the plaintiffs in error. If this be so, the judgment'must be reversed. The record shows, that ‘service was made “ by ‘ leaving a true copy of the summons at the residence of the ‘ party named.” The law authorizes service to be made by leaving a copy at “ the usual place of residence.” Now, if there is any substantial difference between the “residence” of a person and his “ usual place of residence,” the service in this case may have been defective. But, not being able to perceive such difference, we cannot say there was no service. A case is cited where it is said that this Court held, that service by copy left at the house of a defendant, was not good. There is a material difference in the two cases. A man may have two or more houses, and may not reside in either of them. But he can hardly have two places of residence, or two residences at one and the same time.

It is next assigned for error, that the indorsement on the writ is, that the suit is brought upon a bill of exchange, whereas the declaration contains not only a count upon the bill of exchange, but, also, the common counts.

If there be any error in this, it is rather late to take advantage of it. The plaintiffs in error, having been served writh process, were, in contemplation of law, in court. The proceeding against them were regular, or, if not so, the time to take advantage of any irregularity was during the pendency of the suit. They neglected, however, to do it, but suffered judgment to go against them by default, thereby admitting the cause of action. Certainly, a default cures some informalities and irregularities. But this indorsement was well enough. It disclosed the cause of action, and it does not appear that there was any recovery, but for this cause of action. Certainly, an indorsement upon the writ need not be as specific as a bill of particulars.

There is no error in the record, and the judgment of the Court of Common Pleas must be affirmed, with costs.  