author: *By the Court :

text:
    *Lessee of N. Massie’s Heirs v. Edw. Long and others.
    Execution issued after the death of defendant, upon judgment rendered in his lifetime, and levied upon lands of which he died seized, sale void.
    Sale of lots for taxes void, where taxed as “part of a lot,” “one acre of a lot.” Inscription too vague and indefinite.
    Tenants in common may make a joint demise.

      Prochein amie can not make a demise to sustain an action of ejectment.
    This was an action of ejectment, reserved for decision in Ross county.
    The title of the lessors of the plaintiff was founded on a patent issued to them since the death of their father, as heirs at law, to take as tenants in common and not as joint tenants. This patent was given in evidence, and the possession of the defendants was admitted.
    The defendants set up a title in themselves: First, under a sale upon execution; second, under a sale for taxes.
    The sale upon execution was founded upon a judgment rendered against Nathaniel Massie, in his lifetime, upon which executions had been sued out, so that it had not become dormant. Nathaniel Massie died in 1813. On January 19, 1818, execution was sued out against Nathaniel Massie as against a person then in life, was levied upon the property in question, which was sold by the sheriff. The sale was regularly conducted and the deed duly made. The defendants are in possession under the purchaser.
    The premises in dispute are part of out-lot No. 43, on the plat of the town of' Chillicothe. The title set up under a sale for taxes rested upon the following facts: The corporation record showing the levy of the tax for the year 1816 was adduced in evidence; the appointment and qualification of the collector, the advertisement of the time of sale, the sale and'deed to John Hillings, wore all in evidence. The list or duplicate, in which the lots were set for or charged with the tax, was given in evidence. In one place upon this list a part of out-lot No. 43 was charged with a tax. In another place “ one acre of out-lot No. 43 ” was charged with tax in the name of Edward Long, one of the defendants. Parol proof was offered that the “one acre” named on the list was on the north quarter, where Long lived, which is the lot in question. But the testimony was objected to and overruled.
    Yerdict for the plaintiff.
    The defendants moved for a new trial upon four distinct grounds:
    *1. The title under the sheriff’s deed was a valid one.
    2. The title under the marshal’s sale for taxes was valid.
    3. Tenants in common can not make a joint demise.
    4. An infant can not make a lease by prochien amie.

    Douglas, in support of the motion r
    Contended, upon the first point, that the judgment attached a lien upon the land, which the death of the defendant, Massie, did not affect; that suing out execution after the death of Massie, as if he were alive, was, at most, but an irregularity, which could not be taken advantage of to defeat the sale under the execution in an ejectment. He cited and i’elied upon Jackson v. Delancy, 13 Johns. 550; Jackson v. Robins, 16 Johns. 576; Young v. Young, 2 Bin. 227; M’Crea v. Bartlett, 8 Johns. 361; 3 Mass. 523; 4 Mass. 150, 512; 1 Dallas, 481; 1 Mass. 204; 10 Mass. 170.
    On the second point he urged that the proof was complete as to the regularity of the sale. The description of the property taxed was sufficient, for it could be rendered certain by proof. “ One acre ” to Edward Long, who was then a resident upon it, distinguished it as his part. As such it was advertised and sold.
    Third. Tenants in common can not make a joint demise; Coke Lit. 45, a note; 2 Wils. 232; Run. Eject. 222; 2 Bac. Ab. 423; 4 Bibb, 241, 568.
    Fourth. A prochein amie is appointed only to take charge of a suit. ' He has nothing to do with the estate, and can not make a disposition of it for any purpose.
    It makes no difference that the lease in ejectment is a mere fiction. That fiction must be founded upon what might be real, not what is impossible, and is always so treated.
    Bond, for the plaintiff, argued:
    That an execution sued against a dead man was void, and not merely irregular. That the cases cited by the defendants’ counsel were none of them in point. That the dictum of Judge Kent, in Jackson v. Delaney, was not authority, and was not recognized as such by the Supreme Court of New York, in Jackson v. Robins, 15 Johns. 169. *That the reiteration of the same opinion by Judge Kent, in the court of errors, 16 Johns. 572, was also but a dictum, and that none of the cases were decided upon that ground.
    1. In the case from 2 Bin. 227, a scire facias had issued, but the service had been irregular, and such was the fact in the New York cases also. The case from 8 Johns. 361, was not that of a dead person, but an execution against a living person upon a dormant judgment.
    2. As to the tax title, the evidence did not show any assessment of a tax, nor was the lot listed by a proper and sufficient description. A conveyance for “ part of out-lot No. 43 ” would be void for uncertainty; a conveyance for “ one acre of out-lot No. 43 ” would constitute the grantee a tenant in common, and could not entitle him to any particular part. The sale of a particular corner was a direct departure from the authority, which was to sell one acre, without any location. Parol evidence could not be received to explain or help these insufficiences.
    3. The better and modern doctrine is that tenants in common may make a joint demise. But in this case it has been decided that the lessors of the plaintiff took by descent; they are therefore parceners, and upon the old principle can make a joint demise.
    4. The statute supplies an answer to the fourth point: “If an infant be entitled to any action, his guardian or next friend shall be admitted to prosecute for him.” 22 Ohio L. 83.
    An infant can make a lease, and it is not void, but voidable only. Landlord and Tenant, 79; Bac. Ab., Leases, B.
    Leonard also submitted an argument for the defendants.
    On the validity of the sheriff’s sale, he insisted that the award of execution was a judicial act, upon which a writ of error would lie. He cited Bac. Ab. (Error), 450, 452, 453, 484; Hardin, 151-153. If a judicial act, then, it must be reversed direct on a writ of error, and can not be questioned collaterally.
   *By the Court :

It is well settled that if the defendant die after execution is sued out and levied, that the execution px-oceeds as if the death had not taken place. The reason generally given for this is, that execution is an entire thing, and having once commenced, can no.t be stopped. Bat there is undoubtedly a much more satisfactory reason to warrant the proceeding, at least in the case of a levy upon chattels. By the levy the property of the defendant in the goods is divested, and the sheriff acquires a special property, which it is his duty to divest himself of according to the exigent of the writ. No rights are affected by this proceeding but those of the actual parties; no other interests are touched.

If the defendant die after execution sued out and before levy made, the execution can not proceed. And the reason is this : the sheriff is commanded to take the property of the defendant, but by his death this becomes impossible. His right of property terminated and other rights have commenced. Whether this right rests in the heir, administrator, executor, or devisee, it matters not. The right of property is changed, and with that change the authority of the sheriff, under the execution to take it, is gone. He might as well levy the property of an entire stranger.

This proposition is not affected by the fact that the property of a deceased person remains liable, in some shape, for the satisfaction of the judgments against him. The law has prescribed the mode of reaching it in the hands of those to whom it passes at the death; and that method must be pursued.

It may, for the sake of argument, be conceded that an execution issued upon a judgment, where the defendant is dead, is not void, but voidable only; its effect is not the less nugatory. There is nothing upon which it can operate. It commands that to be done which is impossible. If the officer seize chattels of which the defendant died possessed, they belong to the personal representative. If he levy on land, it is the property of the heir or devisee. The only true return he can make is that there is nothing upon which he can levy.

*We have carefully examined the cases cited by the defendant, in which it is said to be adjudged that a sale of lands, upon execution sued out and levied, after the death of the judgment debtor, is so far valid that it can not be questioned collaterally on the trial of an ejectment. The cases do not sustain this position. In the case of Jackson v. Delaney, a scire facias to revive the judgment was issued, served, and a judgment rendered upon it. It was alleged that the person to be affected was not a party, and that, as to her, the case stood as if no scire facias had issued. What weight this had in the decision we can not tell. Judge Kent, himself, placed the cause upon the ground, that the description of the lands, in the sheriff’s deed, was too indefinite and vague to convey title.

The case of Jackson v. Robins is open to the same objection There was a scire facias, and it was served upon the party claiming in that case, and judgment rendered on it. So that the point now before us was not decided, although discussed, and some remarks made upon it by Judge Kent.

We have every possible respect for the opinions of that distinguished jurist. But we can not adopt the arguments he has thrown out upon this subject. He says he “ takes the law to be, that even the omission altogether of the scire facias will not, as of course, render void a sale under execution.” He illustrates this position, by referring to cases where executions, sued on judgments, after a year and a day, were held not to be void, but a justification to the party who acted under them. He supposes that there is no difference between such cases, and one where the defendant was actually not in existence. And he cites the case from 2 Binney, as in point, to sustain his opinion. But we think the cases are materially and essentially different.

In the first case, there is no change of parties, nor of interests. The defendant on the judgment against whom execution issues, is a living party, competent to protect his own rights. It is upon his property that the execution is to be levied, and when so levied, the command of the writ is strictly complied with. No rights are interfered with but those of a party to the judgment. It has been already shown, that in the case of the defendant’s *death, the rights of property are changed, and other parties are interested. This single consideration destroys all analogy between the two cases.

By our laws, the personal goods of a decedent constitute the primary fund for the payment of debts. It is only when they aro exhausted that land can be subjected in aid of them. If, upon execution against the deceased, a sale of land could be valid, the heir might be greatly prejudiced. The personal representative having the personal estate in his possession, the sheriff could not touch it, the land only could be levied on, and thus might be swept away, for the payment of debts, when in fact the personal estate is sufficient. The heir or devisee may thus be deprived of his estate without any opportunity to defend it. The concession, that such execution is irregular and may be set aside, at a proper time, does not remedy the mischief. The heir is no party, and is not bound to know, or take notice of the proceeding. On the contrary, the maxim of the law is, that he should have a day in court, not to be sought for by himself, but upon the call of the plaintiff. We think that there is a much stronger necessity, in this case, for a scire facias against the heir or devisee, than in the case of judgment, where the defendant is alive, but no execution has been sued within the time limited by law.

We do not consider the case from Binney as any more in point than those from New York. In that case, a scire facias was sued out, as in the New York cases, and there was a judgment upon it. The defect in the service was an irregularity, but the judgment upon it was not therefore void. The execution issued upon a judgment, against a living defendant, party to that judgment, not, as in this case, against a deceased defendant. In that case, the execution was levied upon the land of a living defendant; not, as in this, upon the lands of persons neither parties nor privies. It was clearly a case of irregularity, which amounted to error, but could not make the judgment a nullity.

The cases from Massachusetts are all judgments against executors or administrators; and in that state lands are assets, in their hands, so that the doctrine there can have no application here.

*It is therefore the opinion of the court that the sale by the sheriff was inoperative, and did not divest the lessors of the plaintiffs of their title.

Upon the second point there can be no difficulty. The assessment of a tax upon a “part of a lot,” or “one acre of a lot,” without quantity or location, in the one case, or without location in the other, is too vague and indefinite to authorize a sale of any part or in any place.

By section 59 of the judicial act, it is provided that “in all actions of ejectment the plaintiff shall have the same benefit and advantage from a joint demise that he could from several demises.” This embraces the case of tenants in common. We have so settled this term in the case of the Lessee of Wilkinson v. Fleming, from Butler county.

The objection that infants can not make a lease by prochein amie is fatal to the plaintiff’s recovery for all that he claims upon the demises of the infants.

Although the demise is a mere fiction, it is treated for many purposes as a real transaction. If the lessor of .the plaintiff die pending the suit it does not abate, because the nominal plaintiff survives. If, pending the suit, the lessor convey his interest in the land, the plaintiff may still recover. The lessor by transferring the fee can not destroy the term of the lessee, but must convey subject to it. The demise, for the purpose of justice, is thus considered a real transaction, and must therefore have the appearance of a legal one. A prochein amie has no power to lease the lands of his protege. He is neither attorney nor guardian. His office is solely to prosecute the suit, and for this purpose it is not necessary he should execute the supposed lease. A person acting in the character of an infant’s friend could not make a lease of lands that would bind the infant, or give the lessee a right of possession. Such a lease, though fictitious, yet being a necessary part of the plaintiff’s right to recover, must be equally inoperative for that purpose. The verdict is incorrect, and must be set aside. Except for the undivided part of the lessor, who, being of age, joined the prochein amie in the demise.

Judgment accordingly.

      NoTE by the Bditor. — That tenants in common may make joint demise, see also ii. 301; vii. part 2, 136; viii. 180; vi. 391. As to levy of execution after defendant’s death, see also i. 458; v. 221. Revival by scire facias on death of defendant, see Swan’s Stat. 669, secs. 86, 87; also, xlv. Ohio L. 25. Eor the cases when descriptions in tax sales have been held defective, iii. 569; v. 458; x. 152; vi. 161; xi. 316; xvi. 24.


source: Caselaw Access Project

author: Judge Burnet

license: Public Domain

text:
    *John and G. R. Gilmore v. Miami Exporting Company and others.
    An execution upon the judgment at law, and a return that sufficient property could not he taken to satisfy the debt, is not indispensable to authorize a proceeding in chancery, under section 59 of the chancery law.
    Sale of lots for taxes void, where taxed as “part of a lot,” “ one acre of a lot.” Description too vague and indefinite.
    Tenants in common may make a joint demise.

      Prochein amie can not make a demise to sustain an action of ejectment.
    This cause was adjourned from the Supreme Court of Hamilton county. It was a bill in chancery, under section 59 of the statute regulating proceedings in chancery, to charge debts due from the other defendants to the Miami Exporting Company, with the payment of a judgment obtained by the complainants against the company. Upon one judgment no execution had been sued out; upon the other, execution had issued, was returned nulla bona, and levied upon real estate, which, upon a vendí, had been sold for a very small sum. No new ft. fa. had been taken. The bill did not charge that execution had been sued and returned, nothing to be found, and for this cause the respondents demurred.
    N. Wright, in support of the demurrer, contended:
    That the common doctrine in equity is, that the complainant must show in his bill that execution had issued and been returned, no property, before an application could be made in equity to aid an execution or obtain satisfaction of a judgment. He cited Coop. Eq. 149; 1 P. Wms. 445; Mit. Pl. 115; 1 Ver. 399; 2 Atk. 477; 3 Atk. 200; 1 Eq. Cas. 77; 4 Johns. Ch. 671; Id. 691; 20 Johns. 565.
    He further contended 'that the rule previously established was not changed by our statute. A rule settled is not changed by a change of phraseology in a subsequent statute. 2 Caine’s Cas. in Error, 150; 4 Johns. 359.
    The different statutes authorizing proceedings against banks, all concur in requiring that an execution shall issue and be returned, no property found, before chancery proceedings or attachment shall go against the credits of the bank.
    Section 59 should be construed in connection with the three preceding sections. They make provision for reaching, in equity, different species of property in aid of executions at law; and they require an execution to issue and be returned, as the foundation upon which to commence ^proceedings in equity. Section 59 merely extends the same remedy to creditors generally; and, although it does not in terms require that an execution should issue and be returned, that omission indicates no intention to introduce a new mode of proceeding.
    A process of this character is entitled to no favor or liberal construction ; it' is a high-handed interference between debtor and creditor, and opens the door for great abuses. 4 Mass. 121; 3 Id. 91.
    Storer, Caswell, and Hammond, for complainants, argued:
    That the rule in England and New York had no application in this state. That the cases cited were cases in which a court ot equity upon general principles, and upon rules prescribed by themselves, interfered to aid an execution at law. The doctrine maintained in the cases from P. Williams, Atkyn, Vernon, and Equity Cases, had been abandoned in England. 1 Anst. 381; 1 Ves. Jr. 196; 9 Ves. 189; 10 Ves. 366; 1 Hopk. Ch. 89. In Hadder v. Spade, 20 Johns. 575, Judge Platt admits that there is contrariety of decisions and dictas in the English court, and declares his unwillingness to go farther, as a chancellor, than to aid in reaching goods liable, in themselves, to the execution. >expressly disclaims a power to reach choses in action, because .1 had not been conferred upon courts of equity.
    The statute of Ohio gives a new remedy, and it presents the terms upon which it is given. It does not require that an execution should issue. But authorizes this bill in all cases where there is a judgment, and the defendant has not sufficient personal or real property which can be taken in execution to satisfy the same. He specifies the allegations to be made in the bill, and they are: that there is a judgment which the debtor has not sufficient real or personal property that can be taken in execution to satisfy, it is not a bill in aid of an execution at law, to subject to execution property liable to be taken and sold. On the contrary, it proceeds independent of an execution to subject debts and credits which could not be taken in execution. By the statute itself execution may be taken out pending the bill, if anything can be found to be taken upon it. The allegation ^required is not that there is no property, but that there is not sufficient. It is, therefore, in its character totally different from the cases cited for the demurrants. I
    The law gives a new remedy entirely, and prescribes the prerequisites. The Ohio statute is not additional legislation extending an existing provision. It is new altogether. No established rule existed in respect to it.
    If, by the phraseology of the preceding sections, an execution is required, the omission to require it in this is to be taken as a deliberate act, placing this subject upon distinct ground.
    The fact that the defendant in the judgment at law has not sufficient real or personal property upon which execution can be levied to pay the debt is one which may be controverted. The plaintiff files his bill at his peril. If, without a proper cause, he binds up his debtor’s credits by a bill of this nature, not only must his bill be dismissed, but he may be otherwise answerable. On the other hand, if the judgment creditor must wait until an execution is sued out and returned, the debtor may collect his debts, or place them beyond the reach of even this description of bill. To be effectual, the remedy should be free from the clog of a previous execution.
    Este, in reply,
    urged, that admitting this was a new proceeding, given by statute, and that without it chancery could only aid in execution at law, in cases of fraud or trust,' still chancery ought not to interfere without an execution had been issued, and returned that there was not property liable to be taken on execution to satisfy the debt. The law imposed two indispensable conditions: a judgment, and insufficiency of property. The court should receive no evidence of the latter but a return upon an execution. A- more rigorous execution ought not to be adopted where there was no imputation of dishonesty than in case of fraud. This kind of bill locks up all the debtor’s means. Its effect may be to prevent a disposition of property, or a collection of funds to pay the debt. The party resorting to it should be held to the strictest compliance with the statute.
   *The Court overruled the demurrer.

Judge Burnet

being a stockholder in the Miami Bank did not sit in the cause. Judge Sherman dissented. A majority of the judges not uniting in the opinion, no reasons were given.

      Note by the Editor. — That execution need not issue before creditor’s bill will be entertained, see also vi. 227.


author: By the Court :

text:
    Wright v. Lepper and Ledley.
    .Bond for the redelivery of property taken in execution, and not sold for half the appraisement, under the act of 1820, and not redelivered or tendered to the officer who made the levy, or his representatives, within six months, is forfeited, though no new execution sued out.
    This case was adjourned from the Supreme Court of Columbiana county. It was an action of debt upon a bond given under section 12 of the act of February 24, 1820, for the redelivery of property taken in execution, and not sold for one-half of .its appraised value.
    The condition of the bond, after reciting the previous facts of execution, levy, and redelivery, is in these words, “If the said James Orr doth, well and truly, and without fail, deliver unto the officer having an execution on the above judgment, the above-mentioned goods and chattels, within six months from this date, then this obligation to be void.”
    There were several pleas and notices, but the facts in the cause intended to be presented, and upon which the cause was decided, were, that the plaintiff did not sue out any execution upon his judgment within six months from the date of the bond, and no delivery was made of the goods to the officer, or plaintiff, nor any offer made to deliver them.
    J. C. Wright, for plaintiff, contended:
    That upon giving the bond, the defendant was entitled to a stay of the execution and possession of the goods, until the expiration of six months. When that period elapsed, it was the business of the securities in the bond, if they wished to save the condition, to deliver the property to the officer who had the execution and took the bond, or to his representatives or successor. That the plaintiff was *not bound to sue out a new execution, .and under the law could not sue, until the six months expired. That the ambiguity in the law must be so interpreted as to give effect to its obvious intention, and not to defeat, that intention. If it were in the plaintiff’s power to sue out a new execution immediately upon the return of the first, and thus compel a redelivery of the property, or a forfeiture of the bond, the object of giving the bond, and the intention of the legislature to relieve the debtor by giving him time, would be entirely defeated.
    Loomis and Metcalf, for the defendants, maintained:
    That the bond could not be forfeited unless the plaintiff sued out a new execution within six months, and put it into the hands of an officer, to whom the condition of the bond could be performed. That unless this was done, it was impossible for the defendants to discharge the obligation, and that impossibility being produced by the neglect of the plaintiff, the condition of the bond was saved.

      They protested against the interpretation that the goods were to be redelivered to the officer who made the levy, as being one directly repugnant to the terms of the statute, which were that the delivery should be made “to the officer, having in his hands th,e execution upon the same judgment, within six months thereafter.” The words employed contemplate a second execution, else why use the words “upon the same judgment.”.

    They urged that the officer who had, the execution might be no longer an officer; that he might not be in existence; that the power over the subject might be transferred to an officer unknown to the defendants; and insisted that the defendants could only be subjected by a call for the redelivery of the goods, by some person duly authorized to receive and dispose of them.
   By the Court :

The defendants in this case are securities in a bond for the redelivery of property seized in execution, at the suit of the plaintiff against James Orr. After the execution of the bond no second execution was sued out within six ^months, and no tender was made by the defendants, or by Orr, to perform the condition of the bond. The question to be decided, is whether the condition of the bond is forfeited under these circumstances.

By section 12 of the act of. February 24, 1820, it is provided, inter alia, “that it shall be lawful for such officer to deliver such article or articles to the judgment debtor, upon his giving bond, with two securities, to the satisfaction of the officer, that he will deliver said article or articles to the officer having in his hands the execution upon the same judgment, within six months thereafter, which bond shall be made payable to the other party to the execution, and shall be returned with the execution to the court or justice of the peace from which the same issued.”

The case turns upon the construction to be given to this provision. It is contended for the defendant, that the words “to the officer having in his hands the execution,” must refer to the time when the obligor is to redeliver the property, and that, therefore, the execution creditor, if he mean to resort to the bond, must sue out and place in the hands of an officer, a second execution, before the expiration of the six months. If he omit this, he prevents the performance of the condition by his own act, and the bond is discharged.

"We do not think that the law can correctly receive this interpretation. It was undoubtedly the intention of the legislature to give the debtor a stay of execution for six months, if his property would not sell for one-half its appraised value, and it is our duty, if possible, to give the law such construction as it shall give effect to this intention.

The phraseology of the act is very loose and indefinite; “within six months'” are terms of uncommonly general import. But there can be no question that he, who is bound by a condition to do an act within six months, has the whole period of six months to perform it in, and can not be called upon, by the other party, to perform it before the last day. It would be a violation of just principles to read the provision so as to connect the words,' “ within six months,” with the fact of the officer having in his hands an execution, and thus enable the plaintiff, by suing out a new execution, to enforce a performance of the condition within six days instead of six months.

*The principal difficulty is to determine the true meaning of the words uthe officer having in his hands the execution upon the same judgment.” The present participle “ having,” may refer to the period of time when the bond was taken; it may also refer to the period when the bond is to be performed. The first is its most natural interpretation. The officer now having the execution upon the judgment is the plainest reading. If it referred to the future, its proper reading would be the officer who shall have an execution. The most obvious sense of the language of the act is in accordance with its intention.

When the officer having the execution made the levy, he acquired a special property in the chattels levied upon; he became entitled to the possession, and could sell them without an execution, if they were not sold in the first instance for want of bidders. The special property of the officer excluded all other claims upon the property of subsequent date.

Was his special property divested by the redelivery of the goods to the plaintiffs and receiving a bond ? We are of opinion that it was not. The bond was in the nature of a security, that the property should be safely kept, and returned to the officer when the time of keeping it expired. But the special property of the officer remained, until the condition of the bond was broken. Up to that period the possession of the judgment debtor was the possession of the officer. Before the forfeiture of the condition, no other execution could be levied upon the property. This construction is consistent with principle, and for the security and ease of the debtor. It enabled him to obtain security, because the redelivery of the property to him did not expose it to the grasp of another creditor.

The forthcoming bond, in Virginia, is of the same character with the bond to redeliver in this case. And it has been settled in that state, after great consideration, by two judges to one, that the redelivery of property taken in execution, to the defendant, upon giving a forthcoming bond, does not divest the right of property from the sheriff, and that the security has a right to deliver the identical property, to save the condition of his bond. Lusk v. Ramsay, 3 Mun. 417.

*If, then, the special property in the goods, in this case, vested in the sheriff, upon the levy, and remained in him while the condition of the bond was unbroken, it is a necessary consequence, that the condition only could be saved by a redelivery, or an offer to redeliver to him or his legal representatives, at the time stipulated in the bond, which, at the option of the defendants, might be the last day of the six months. The plaintiff could not sue out a new execution, for the levy was quo ad a satisfaction. This interpretation, a majority of the court are of opinion, gives force and effect to the intention of the legislature; is consistent with the literal meaning of the language employed, and harmonizes with established principles. Judgment for the plaintiff. '

Judge Burnet dissented.


text:
    Doe, on the Demise of Wilkinsons, v. Thomas Fleming.
    Tenants in common may make a joint demise in,-ejectment.
    This cause was reserved in Butler county, it was an action of ejectment, in which the declaration contained a single demise. The lessors of the plaintiff were six in number. They deduced title under the will of John Wilkinson, their father, who devised his lands to his seven children, as joint devisees. One of the devisees had conveyed his share to a co-devisee, one of the lessors of the plaintiff.
    The plaintiff having exhibited his title, as above stated, the defendant’s counsel moved for a nonsuit, upon the ground that the title exhibited, showed that the lessors of the plaintiff were tenants in common, who could not make a joint demise. This motion was sustained by the court, and the plaintiff became nonsuit: The question, whether the nonsuit was correctly ordered, was, by agreement, reserved for decision at Columbus. If the decision was correct, judgment of nonsuit to be set aside, and a new trial awarded.
    *Higgins, for the plaintiff,
    cited Jackson v. Bradt, 2 Caine, 169, where the courts of New York overruled the English decisions, and settled that tenants in common could join in a joint demise. He argued that the reasons alleged in New York were equally operative in Ohio. The doctrine originated in a technicality, which there was no propriety in adhering to. He also contended that the statute of Ohio had authorized tenants in common to make a joint demise. 22 Ohio Laws, 62, sec. 29.
    Woods, for the defendant,
    examined the decision in the case of Jackson v. Bradt, relied upon by the plaintiff, contested its correctness, and dispmted its authority. Ho argued, also, that the statute did not authorize a recovery upon a joint demise, by tenants in common. Its intention was merely to declare what the law was,.not to introduce a new rule. The provision that “separate demises should only be laid in the names of tenants in common,” is inconsistent, upon any other construction, with other provisions.
   By the Court :

In the case of the Lessee of Massie’s Heirs v. Long and others, decided at this term, the court have settled that, under our statute, tenants in common may make a joint demise. That decision is decisive of this case.

The nonsuit must be set aside, and a new trial directed.

      Note by the Editor. — See note to Lessee of Massie’s Heirs v. Long et al., ii. 287, and that case.


text:
    *L. Starling, Executor of J. A. McDowell, v. Joel Buttles.
    Where surety gives notice to the creditor to sue, it is not a compliance with the statute to sue the surety alone. •
    This was an action upon a promissory note, and was adjourned from Franklin county.
    The declaration was upon a promissory note, executed by Eli Adams, J. B. Gardiner, and Joel Buttles; and it appeared on the face of the note that Adams and Gardiner were principals, and Buttles a security.
    The defendant pleaded that he was a security only, and the other two parties principals; that before the commencement of the suit against himself, he gave notice, in writing, to the payee of the note, and requested him to commence suit against the principals, agreeably to the provisions of the act for the relief of sureties and bail in certain eases, but that the payee wholly neglected to commence such suit.
    To this plea the plaintiff replied, that within a reasonable time after receiving such written notice, the plaintiff commenced the present suit against the defendant, and has proceeded with due diligence. To this replication the defendant demurred.
    Wilcox, for the defendant, and in support of the demurrer:
    Insisted that the replication was bad. The statute provides that if, after the note becomes due, the principal shall be in failing circumstances, the surety may give the holder notice to sue the principal. That notice the holder disregards at his peril. It is no relief to the surety to be sued himself, and the commencement of such a suit can not be a compliance with the law. He cited, as in point, 13 Johns. 174; 15 Johns. 433. ui
    There was no argument on the other side.
   By the Court :

The act for the relief of sureties and bail, in certain cases, provides that in cases where the principal debtor is likely to become insolvent, or remove from the county or state, without discharging the debt, the security may give the ^holder of the obligation notice, in writing, forthwith to put the obligation in suit. And if the holder do not, in a reasonable time after such notice, commence a suit and proceed diligently to judgment and execu-. tion, he shall forfeit his right to demand the money of the surety.

The object of this act is plainly to enable sureties to compel a creditor, where his debt is due, to pursue the principal debtor by a suit, or exonerate the surety. It was intended to relieve sureties where the creditor felt safe in the responsibility of the surety, and took no steps to collect his debt, and it contemplates extending this relief, in a different form from that of compelling the surety to pay the debt himself, and thus become the creditor, and bring suit. If, upon receiving the notice, it would be sufficient to sue the surety alone, the object of the law would be evaded; indeed, its provisions would be converted into insulting mockery. Upon receiving the notice, the creditor is bound to bring suit against all the parties, and pursue them all to judgment. He need not sue the principal separately. But a separate suit against the surety, without any suit against the principal, is not a compliance with either the letter or spirit of the law.

The demurrer is well taken, and must be sustained.

       Note by Editor. — Notice to sue must be in writing, vii., part 1, 72. -In plea by surety, that the principal extended time, he must aver that he did not assent thereto, v. 207. Defense that time was'given available at law, ib.; vi. 18; xi. 299. But not when suit is against principal and surety, x. 543; xi. 299. What acts of principal will discharge security, see v. 273; xiii. 84; xiv. 348; xviii. 6; and xviii. 54, where it is decided that bills of exchange are included in the meaning of the “ act for the relief of sureties and bail."


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    Lessee of Dawson v. Joshua Porter.
    In ejectment, deed from the lessor of the plaintiff, made after suit brought, is inadmissible evidence to defeat plaintiff’s recovery.
    This case came before the court, upon a motion for a new trial, adjourned from the Supreme Court of Clermont county. The case was this: In an action of ejectment, the plaintiff gave in evidence, a patent for the land in dispute, to his lessor. The defendant then gave in evidence, a deed for the same premises; from plaintiff’s lessor to James Robb and others, dated after the commencement of this suit, and after the consent rule had been made, and the issue joined.
    The plaintiff objected to the admission of this deed; but the court overruled his objection, and a verdict was given *for the defendant. The plaintiff moved for a new trial, on the ground of mistake in the law, in admitting the deed offered by the defendant.
    T. Morris, in support of the motion,
    cited 2 Wheat. 223; Adams on Eject. 31; 1 Marsh. 166.
   By the Court :

The authorities cited are conclusive that the court erred in receiving the deed offered by the defendant. There must be a new trial.


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    James Sergeant and Wife v. Peter H. Steinberger and others.
    No joint tenancy in Ohio.
    Devise to husband and wife, and their heirs, devisees take as tenants in common.
    This was a writ of error, brought to reverse a decree in chancery, dismissing the complainants’ bill, and was adjourned for decision from Pike county.
    The, bill was filed to obtain partition of certain lands, one-fifth, of which the complainants claimed in right of Mrs. Sergeant as heir at law to her mother.
    The bill charged that D. M’Neil by his last will and testament, dated June 17, 1806, made the following devise: “I give and bequeath unto my daughter, Sarah, and unto her husband, Charles Steinberger, and their heirs and assigns forever, three hundred acres of land,” etc. That Steinberger and wife took possession of the land. That Mrs. Steinberger died before her husband, leaving five children, of whom the complainant, Mrs. Sergeant, was one. That Charles Steinborger, after the death of his wife, made his will, and'devised the lands in question to the defendants, his three sons. The defendants demurred. The court of common pleas sustained the demurrer, and dismissed the bill. ■
    *King, for the defendants, insisted :
    That, the devise to Mrs. and Mr. Steinberger, vested each with an entirety of the interest, so that neither could separate it without the consent of the other, and consequently, by the death of the wife, the whole survived in the husband — that, therefore, the complainants showed no title. He cited 1 Co. Lit. 187, B; 2 Ver. 120; 2 Black. 1211; 6 Term, 652; 1 Ver. 233.
    Bond, for the complainants, maintained:
    That, admitting the estate to be of the character alleged by the defendants, yet the right of survivorship was claimed upon the principle of aj'oint tenancy, which was contrary to the genius of our institutions, and was, in effect, abrogated by the course of descents prescribed in the ordinance, by our subsequent laws, regulating descents, and by the law providing for the partition of real estates, which, in certain cases, authorized the executor or administi’ator of a deceased joint tenant to compel partition.
   By the Court :

It has more than once been decided, by the Supreme Court, on the circuit, that estates in joint tenancy do not exist under the laws of Ohio. The reasons which gave rise to this description of estate in England, never existed with us. The jus accreseendi is not founded in principles of natural justice, nor in any reasons of policy applicable to our society or institutions. But, on the contrary, it is adverse to the understandings, habits, and feelings of the people.

We have no statute recognizing the existence of any such principle as the right of suvivorship. But we have various statutory provisions inconsistent with it. The laws passed, both during the territorial government and since, authorize joint tenants, tenants in common, and coparceners, and, in some cases, the executors, administrators, or guardians of such persons, to demand and have partition. It is from this evident that the legislature have treated a joint tenancy as a tenancy in common.

*It is well settled that the joint tenancy of husband and wife varies in many principles from other joint tenancies. The estate could not be severed, which resulted, most probably, from the fact that the wife could do no act separate from her husband. The conviction of one of the parties of treason did not work a forfeiture of the other’s right. And this was, we may fairly infer, a principle introduced to lessen the number of forfeitures, which were always odious. But the right of survivorship was the same as in other cases of joint tenancy, and in the case of husband and wife, is as much at variance with our laws and usages, as in the common case. Upon the death of Mrs. Steinberger, her undivided half of the land devised, descended to her children, who became tenants in common with their father. The complainants show a good title to one-fifth of their mother’s part, constituting one-tenth of the whole tract, and appear to be entitled to have that tenth set off to them.

The decree of the court of common pleas is reversed, and the cause sent back to be further proceeded in.

       Note by the Editob. — No joint tenancy in Ohio, x. 1.


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    Lessee of McCullock v. Aten.
    When a deed calls for a corner standing on-the banlc of a creek, “thence down said creek, with the several meanders thereof,” the boundary is the water edge at low-water mark. ,
    This case came before the court upon a motion for a new trial, and was reserved by the Supreme Court of Jefferson county.
    Upon the trial, deeds were given in evidence from Emons the patentee to Smalley, from Smalley to Burson, and from Burson to McCullock. Each of these deeds contained the following description of the boundary which was in dispute, “ beginning at a white oak, on the southeast bank of Yellow creek, thence down said creek, with the several meanders thereof, two hundred and seven perches,to a post on the point, at the mouth of Hollow Bock, upper side.”

    The defendant gave in evidence a deed from Emons to Nesslv, for a part of the same section of land, of prior date to that of Smalley.

      This deed conveyed to Nessly, *land “to the north bank of Big Yellow creek, thence up said creek.” etc., contained a covenant to allow Nessly to raise a dam on said creek ten feet high, for waterworks, acknowledging satisfaction for all damages done to the residue of the section.
    Also, a deed from Emons to Aten subsequent to that of Smalley, under which the lessor of the plaintiff claimed, in .which the line in controversy was thus described: “to land, the property of Burson, thence up Yellow creek, the several courses and distances thereof, to a marked white oak, corner of said Burson’s land, thence across Yellow creek.” Excepting to Nessly the right to back water, etc.
    The white oak called for by both deeds was found on the ground about four rods from the channel of the creek, and about one rod from the top of the bank.
    There was a salt well on the beach, below the break of the bank, but not within the water channel, and this was the matter in dispute. The defendant Aten was in possession of the well.
    The defendant offered evidence to prove that at the time of the sale from Emons to Smalley, it was understood that the line was to run at the top of the bank, or along the beach and slope of the bank. But the court rejected tho evidence and instructed the jury that according to the calls of the deed, the plaintiff had a right to recover to low-water mark on the creek as a common boundary. Yerdict for the plaintiff and a motion for a new trial.
    J. C. Wright, in support of the motion, argued:
    That ascertained boundaries, whether natural or artificial, controlled both course and distance. That from boundaries ascertained, lines were to be extended so as to connect them, and that if this can not be effected by straight lines, it is to be done by lines as near straight as may be. 1 Hen. & Mun. 131; 1 Bibb, 54, 123; 6 Wheat. 580; 7 Wheat. 7.
    The white-oak corner and the stake were both found, and both stood on the bank above the beach or commencement. A line commencing at one of these corners can not touch the beach unless it depart from the calls of the deed, *and proceed first to the beach. If the calls be clear of ambiguity, it must be because they proceed direct from the boundary ascertained on the course specified. If the position on the corners or boundaries on the ground, when compared with the deed create ambiguity, that ambiguity may be explained by parol proof. And such was the state of the present case.
    The case of Denn v. Wright and Hill, 1 Peters. 65, was relied on as full in point for the defendant.
    The different grants from Emons, the source of all the titles, show what was his intention and how he understood the matter. He did not convey the creek to Nessly, but covenanted with him to permit the use of it for a dam. He did not convey any interest in the water to Smalley, under whom the plaintiff claims, for he commenced and continued the grant to him on the southeast bank of Yellow creek. To the defendant he conveyed the creek itself. His grant is bounded by the grant to Smalley, up the creek to the white oak, thence across the creek, and it contains a reservation of the use previously granted to Nessly. The grants should take effect according to the intention of the parties, when the terms used fairly admit of a construction consistent with that intention, as is the case here.
    Doddridge, for the plaintiff,
    maintained that when a proprietor of lands divided by a stream not navigable, conveyed upon one side to one party, bounded by the stream, and to another party on the other side, bounded by the stream, each grantee is entitled to a moiety of the bed of the stream. He cited Hays and others v. Bowman, 1 Rand. 420.
   By the Court :

The single question to be decided in this case is, what boundary is described by the terms, “ down the creek with the several meanders thereof ?” And we think it perfectly clear that these terms describe the water in the bed of the creek, and not the top of the bank. This we understand to be a settled rule, wherever the stream is made the boundary. It is the water, and not the bank of its channel that is referred *to. The state is bounded by the Ohio river; but it can scarcely be supposed that the beach, below the break of the bank, is not within her jurisdiction. In the case of Handly’s Lessee v. Anthony, 5 Wheat. 374, this doctrine is distinctly recognized by the Supreme Court of the United States as being a rule of boundary. And it is one to which this court have always adhered.

An attempt is made to distinguish this case from the general ap* plication of the rule, upon its particular circumstances. The boundaries described as corners are found on the bank, at a considerable distance from the water’s edge. And it is maintained that by these corners, the grantee must be concluded. This position involves the consequence that corner trees always stand in the mathematical line, which technically is the boundary.

■ But this is not the fact, either with respect to corner or line trees. It is not unfrequent that both stand a-greater or less distance from the actual line. The nearest and most permanent trees are usually marked. A tree marked as a corner, upon the bank of a stream, never can stand upon the water line at low-water mark. And where the call is for the meanders of the stream, the corner is not supposed to be exactly in the line.

The fact that the marked corner called for stands four rods from the water, does not create any ambiguity in the terms, “ down the creek, with the several meanders thereof." They import the water edge, at low water, which is a decided natural boundary, and must control a call for corner trees, or stakes upon the bank.

There is nothing in the various deeds inconsistent with this interpretation. Emons did not grant the creek to Smalley, but the land southeast of it. He did grant it to Aten, and made Smalley’s line the boundary of the grant to Aten, and his repetition of the calls in Smalley’s deed can not change their legal import. Nor does such repetition evidence any intention to do so, or to confine Smalley’s grant to the top of the bank. When we decide that the plaintiff’s boundary is the water, and not the bank, we impugn none of the principles laid down by Judge Washington in the case of Wright and Hill, so strongly relied upon by *the plaintiff. New trial refused, and judgment for plaintiff on the verdict.

      Note by the Editor. — The law of this case is reaffirmed in a number of cases in Ohio, for which see xi. 311, where, in the opinion of the court, the leading cases prior to the date of that decision are cited.


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    D. Dorflinger v. George Coil.
    Equity can not grant a new trial where party seeking it has been guilty of neglect.
    This cause was adjourned from the Supreme Court of Ross county. It was a bill in chancery, praying that a new trial might be granted at law.
    The bill charged that the respondent brought an action of covenant against complainant, in the court of common pleas of Ross county. That after the service of the process, he was informed by the clerk of the court that no security for costs was given, and that there could be no trial upon that account. In consequence of which information, he did not attend to make defense. That judgment passed against him in the court of common pleas by default, of which he obtained information, and took and perfected an appeal to the Supreme Court. That he employed Judge Thompson to defend it, who advised him there could be no trial at the first term of the Supreme Court. Reposing upon this advice, he did not attend the court; and Judge Thompson, his counsel, was absent at the sitting of the Supreme Court, in his place as a member of Congress, at Washington. That judgment, by default, was rendered against him in the Supreme Court, of which he knew nothing until served with an execution. He also charges a full and complete performance of the contract upon which the suit is brought, which he could establish by proof, if a new trial were granted. He prays a new trial. The respondent demurred, and the cause was heard upon the bill and demurrer.
    Sill and Leonard, for defendant,
    cited 1 Johns. Ch. 320, 465, 466; 2 Hen. & Mun. 139; 4 Hen. & Mun. 369.
    *Bond, for complainant,
    cited 2 Tidd’s Prac. 816; Bul. N. P. 327; 2 Caine, 181; 2 Marsh. 153; 2 Salk. 645; 4 Mun. 68.
   By the Court :

The bill makes no case of either surprise or mistake, but only a case of negligence. Had the defendant attended the sitting of the court, and paid proper attention to his business, a judgment by default could not have passed against him. It is no sufficient apology for abandoning all attention to a suit in court, that counsel informed the party it could not be tried at the first term. However great the hardship, a court of equity never relieves in a case of this character.

The demurrer must be sustained, and the bill dismissed.

      Note by the Editor. — See note to case of Steel et al. v. Worthington, ii. 182.


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    Smith’s Administrators v. Commissioners of Licking County.
    In an action on a sheriff’s bond, judgment must be for the debt, with leave to take execution for the damages. Judgment for damages only is erroneous.
    This was a writ of error to the judgment of the court of common pleas, in Licking county, adjourned here, for decision by the Supreme Court, sitting in that county.
    This suit was brought by the commissioners against the administrators of Smith, who was security upon a sheriff’s official bond. The defendant pleaded non est factum, upon which issue was joined, and also a special plea, to which there was a demurrer. The common pleas sustained the demurrer. And upon the plea of non est factum, the jury found a verdict for the plaintiff, and assessed the damages sustained by the person for whose use the suit was brought. Judgment was entered for these damages only, and not for the debt, to have execution for the damages.
    The case was argued at large, upon the question presented by the plea and demurrer, as well as upon the form of entering the judgment.
    *Irwin, for plaintiff in error.
    Ewing, for defendants in error.
   By the Court :

There is a difference of opinion among the judges as to the validity of the plea. But as they are unanimous in the opinion that the judgment was erroneously entered, they do not decide upon the other matters. The statutory provision, in cases like this, is express, that the plaintiff shall “recover judgment for the amount of the bond, on which judgment an execution may issue for such sum as it may be ascertained will be sufficient to indemnify the person so suing.” The judgment in the case before us does not conform with this provision. It is, therefore, erroneous, and must be reversed. The court award a venire de novo, and remand the cause to the court of common pleas of Licking county, with leave to the parties to amend their pleadings.


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    James and Richard Loines v. James Philips.
    Original application of insolvent debtor is ex parte.

    When application of an insolvent debtor is dismissed upon bearing, on the ■ ground that be was not two years a resident, security is liable.
    This was an action of debt', upon a bond executed by the defendant, as security for Stephen Loines, upon his application for the benefit of the act for the relief of insolvent debtors.
    The declaration set out the bond, the condition of which was, that the applicant, Stephen Loines, “ should faithfully assign all his property, for the benefit of his creditors, to such trustee as the court may appoint. The defendant pleaded seven pleas, some of which were demurred to, and to others there were replications and rejoinders, and demurrers again, presenting all the complexity and nicety of special pleading. The state of facts upon which the judgment of the court was required, is as follows: Stephen Loines, being arrested upon mesne process, in October, 1822, applied to the court of common pleas of Boss county, then in session, for the ^benefit of the act for the relief of insolvent debtors. The usual order was made, that it appearing to the court that the applicant had been two years a resident of the state, he should be discharged out of custody upon giving a bond, with security, to assign his property to such trustee as the court might appoint upon the final hearing. The defendant, with the applicant, executed the bond in question, and the applicant was discharged out of custody.
    The regular notice was given, and at the next term the applicant appeared in court, and applied to have a trustee appointed, that he might make the assignment of his property, in compliance with the condition of his bond. The plaintiffs in the action also appeared, and objected to the appointment of the trustee, upon the ground that the applicant had not, in fact, been two years in the state, and, therefore, was not entitled to the benefit of the act for the relief of insolvent debtors. This fact being made out to the satisfaction of the court, they refused to appoint the trustee, and made an order dismissing the petition. The question was, whether, upon this state of facts, the plaintiffs were entitled to recover ?
    Douglas, for the defendant, contended:
    That the defendant, a mere surety, was not liable upon this bond, because the performance of the condition was prevented and rendered impossible, by the interference of the plaintiffs, and by the act of the court.
    Conditions annexed to personal contracts are to be interpreted according to the real intention of the parties. Sir T. Raym. 464.
    If a party undertake that a stranger shall do this or that, and the stranger refuses, the obligation is broken, unless the refusal be procured by the other party. But if the obligation be, that the obligor will do an act upon the performance of another act by a stranger, the obligation is saved, if the first act be not performed. 1 Saund. 216; 1 Term, 642; 6 Term, 200.
    Had the defendant undertaken that the court should appoint a trustee, then the obligation would be broken, if such trustee were not appointed. Even then the interference *of the plaintiff, to prevent the appointment, would have saved the obligation; but here is no such undertaking.
    The court refused to appoint a trustee, thus rendering it impossible that the condition to assign should be performed. The undertaking of the security was only that the applicant should do what the law required him. If the law did not require him to assign, but rendered it impossible for him to do so, the security ought not to be subjected. A security can not be charged unless brought within the strict letter of his undertaking. 9 Wheat. 680.

      Leonard, for plaintiff:
    The defendant has not performed the condition, and must, therefore, be liable, unless he is legally excused. He would be excused, if the condition was manifestly impossible at the time the obligation was made. But this is not the case.
    So he would be excused had the performance become impossible by the act of God, as by the death of the petitioner; or if rendered impossible by the act of the obligee, or by some subsequent legislative enactment. The defendant brings himself within none of these rules. The petitioner knew all the facts of the case, including the very fact that prevented the appointment of the trustee. The defendant stands on precisely the same ground.
    The suggestion that the act of the court prevented the performance is but a more plausible mode of stating the proposition. The appointment of the trustee by the court was refused, because the facts of the case did not warrant such appointment. They had no discretion or power over the subject. The fault was in the petitioner, who wrongfully obtained his release from custody, which was the very case the bond was given to cover.
    Brush and Fitzgerald, in reply, made two points:
    1. Is performance excused by the facts of the case?
    2. Are not the plaintiffs estopped by the record of the court, at the time the bond was given, from alleging that Stephen Loines was not two years a citizen of the state?
    *Upon the first point, they argued that the order of the court directing the discharge, upon giving the bond, was the basis of the obligation, and it was entered into by the security in good faith, confiding in the truth of the facts set forth in that order. That if in this there was mistake or error, it could not affect the security, nor charge him on the bond. They maintained that upon any other hypothesis, the proceeding was but a trap to deceive and inveigle honest men into unexpected liabilities.
    Upon the second point, they contended that the facts set forth in the order first made were conclusive as to the matters decided, and that upon the second hearing the only subject of consideration was the fairness of the petitioner’s conduct, and the fidelity of the schedule he might present; that, therefore, the plaintiffs were estopped from alleging the matter of their replication, that the court had .made a subsequent order deciding the same facts different-ly. The plaintiffs were estopped, and the defendant was not, for this reason. They were parties to all the proceedings; the defendant was neither party nor privy. He could not be concluded by the second order. But had a right to contest the facts upon which it was grounded. To these points they cited 10 Mass. 164; 11 Id. 193; 14 Id. 222; 17 Id. 365; 14 Johns. 81.
   By the Court :

The application of a debtor in custody, under the act for the relief of insolvent, debtors, in 1822, when this bond was taken, was altogether ex parte. It was only after the petition was filed, the order made, and the bond taken, that notice was to be given of the proceedings. The object of that notice was to bring in the parties interested to contest the right of the applicant to the relief sought. The facts assumed in the first order can not, therefore, conclude anybody.

The bond is required in the first place, for the security of the plaintiff in the action, that he shall lose nothing by discharging the defendant out of custody; the security of all the debtor’s creditors is a secondary object. The applicant can not be admitted to obtain his discharge upon false ^grounds, and then protect himself upon the plea of ignorance. The power of the court to appoint a trustee,- receive his assignment, and finally discharge him, depended upon the fact that he had been two years a resident of the state. The court were not bound to investigate this allegation when it was made. But it was the right of those interested to make this investigation when they came in under the notice. Parties were then, for the first time, properly before the court, to litigate the applicant’s right to a discharge. The order made, upon that litigation, is the first adjudication between the parties, and it is the first proceeding that concludes them.

The opposition made by the plaintiffs to the appointment of a trustee, and the acceptance of the assignment, is not of that character which discharges the obligation. No act of a plaintiff pursuing and insisting upon his legal rights, can be attended with such a consequence. It is an illegal and a mala fide interference on the part of the plaintiff, that excuses the performance. Here the plaintiffs did nothing but require a legal decision upon facts presented to the court. And this they had a right to do without prejudice to any matter in the case.

The applicant voluntarily undertook to do that which he knew the law did not permit. His object was to obtain a benefit for himself to the prejudice of another’s rights. For this purpose, he imposed upon the court a statement of facts that did not exist. The truth is elicited, and the applicant's purpose is defeated. This can not be a case where the performance of the undertaking may be excused.

The defendant, Philips, was a security only, and it is insisted that he shall not be prejudiced by an error or mistake of the court. But how can he separate himself from the applicant, his principal? He joined him in the undertaking, and must stand or fall with him. He volunteered his aid to procure the applicant’s discharge from custody, at the suit of the plaintiffs. If he did this upon a false statement, surely he to whom it was made, and upon whom it operated so as to produce confidence, ought to suffer, not the plaintiffs, who had no control over the subject, who ^legally were not parties, and who reposed no trust whatever. The error of the court was induced by the applicant. It operated to his advantage, and to the prejudice of the plaintiffs. The security, and not the plaintiffs, incurred the risk. The court are all of opinion that the plaintiffs are entitled to recover.

Judgment for the plaintiffs, and the cause remanded to the Supreme Court of Ross county, for an inquiry of damages.


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    James Conn v. Thomas Doyle.
    Writ of error and supersedeas from the territorial general court to common pleas, staying proceedings when sheriff has vendi. in his hands, judgment affirmed. Procedendo from general court to sheriff, authorizing him to proceed to sell, is irregular, and sale under such procedendo is void.
    A motion was made in the Supreme Court for Hamilton county, by Charles Yattier, for an order on the present sheriff of Hamilton county, successor of James Smith, a former sheriff, to make the applicant a deed for tho lot No. 86, in Cincinnati, alleged to have been sold by Smith, as sheriff, upon legal process, to Yattier. The facts of the case, material to be stated, were as follows:

      At February term, 1801, in the common pleas of Hamilton county, James Conn obtained a judgment against Thomas Doyle for debt and costs; fifty dollars and seventy-three cents. C. Yattier, at the same term, also obtained a judgment against Doyle for debt and costs, thirty-seven dollars and fifty-two cents. On February 11, 1801, a writ of ft. fa. et. lev. fa. issued on each judgment. On each of these writs, the sheriff made the same return, that he had levied on the house and lot, No. 86, and held an inquest, which appeared in the schedule annexed to the return. The inquest attached to each writ, found the yearly issues to be of the value of twelve dollars.
    On May 12, 1801, a writ of vendí, issued on each judgment, upon which the sheriff returned, “stayed by writ of supersedeas from the general court.”
    *In April, 1801, writs, of error were allowed and issued in both cases, and on the 30th of April, writs of supersedeas issued to the sheriff, commanding him, that if final process of any kind was in his hands, or should come into his hands, in the causes stated, he should forbear, and altogether surcease proceedings thereon until the judgment of the general court should be signified to him.
    On March 27, 1802, a writ of procedendo issued from the general court in the case of Conn and Doyle, directed to the sheriff, reciting the issuing of the writ of supersedeas and the writ of error, and the affirmance of the judgment, and commanding the sheriff as follows: “Therefore, you will now proceed to do execution in the premises, as the law directs, our writ of supersedeas aforesaid, to you before directed, to the contrary thereof in any wise notwithstanding.” Upon this writ of procedendo is indorsed the amount of damages, interest, and costs, in the common pleas, the costs in the general court, and sheriff's fees, amounting in the whole to ninety-five dollars and ten cents. The sheriff has also indorsed upon this writ as follows: “I have sold the property within referred to, being in-lot No. 86 in Cincinnati, to Charles Yattier, for ninety-five dollars, and have made the money.”
    It was proved by parol testimony, that Yattier purchased the lot at sheriff’s sale, and that the sale was advertised in a newspaper, in the manner prescribed by law.
    The question arising upon these facts was reserved for decision here.

      Caswell, for the application.
    Doddridge and Haynes, against it.
   By the Court :

This application is made to us, upon the ground that the writ of procedendo, from the general court, was the process upon which the sale was made, and that the Supreme Court of the state now represents that court.

By the judgment of affirmance, upon the writ of error, in the general court, the judgment of the common pleas, *and the proceedings under it, were placed in the situation in which they stood when the writs of error and supersedeas issued. The party was at liberty to sue out a new writ of venditioni, upon which the sheriff could proceed as he would have done upon the writ previously superseded in his hands. The procedendo, if it were well directed to the sheriff, which is certainly doubtful, conferred no power to sell. It only removed the prohibition interposed by the writ of supersedeas. The authority to sell was originally given by the process of the common pleas; it had been suspended, but was not taken away by the writs of error and supersedeas. The procedendo restored it, but did nothing more. If the sale was really made without other process than the procedendo, it was made without authority. As no other process issued from the general court, this court, now representing that one, can not make the order asked for. They have no jurisdiction of the subject,'and the application must be overruled.


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    T. and J. Sarchet v. The Administrators of P. Sarchet, Deceased.
    ■Where, upon an equitable adjustment of partnership transactions in two parties are in equity, creditor of a third partner, equity will set off such credits against a joint 'debt due from the same two parties to the third.
    This case was adjourned from the Supreme Court of Guernsey county. The facts, material to understand the point decided by the court, were as follows:

      In May, 1809, Peter Sarohet, whose representatives are the principal defendants in this case, with John and Thomas Sarchet, the complainants, and Thomas Knowles, purchased of Chandler a lease upon the Muskingum salt works. Price, five thousand dollars. One thousand dollars to be paid in hand, and one thousand dollars on the 10th of June, annually, until completed.
    The terms upon which the purchasers agreed to carry on the manufactory of salt, were, that they were to be jointly and equally interested.
    By an indorsement on the article, dated June 12, 1709, Knowles sold out his interest to Peter Sarchet, who agreed to comply with the article in Knowles’ place.
    *The three Sarchets proceeded to engage in manufacturing salt, and in the course of their business, before 1811, Peter Sarchet sold one-third of Knowles’ interest, purchased by him, to Thomas Sarchet, and one-third to John Sarchet. Knowles received what was estimated at thirteen hundred dollars of Peter. Thomas Sarchet paid Peter four hundred and thirty-three dollars and thirty-three cents, one-third of that sum, and John Sarchet agreed to pay the same amount.
    Upon the dissolution of the salt manufacturing firm, controversy arose between John and Peter Sarchet, as to John’s indebtedness to Peter, for one-third of Knowles’ share. John claimed that he was to pay for it out of the profits of making salt; that no profits were made and nothing was due. Peter claimed the whole sum, four hundred and thirty-three dollars and thirty-three cents, as a subsisting debt. Though other private accounts existed, and although the partnership affairs were unsettled, this seems to have been the only item of dispute. They agreed to refer it to men. An arbitration bond, in the penalty of five hundred dollars, submitting all matters in dispute between the parties, was drawn up and executed by John and Thomas to Peter, conditioned that John should abide the award. The arbitrators proceeded to make an award embracing all subjects of controversy between the parties, and specifically and in terms including matters connected with the partnership. It also awarded that John should pay Peter six hundred and thirty-three dollars and thirteen cents in money.
    So soon as this award was delivered, an allegation was made by John Sarchet, that it was founded in a great mistake. Explanations took place among the arbitrators, and an attempt was made to draw them to a re-consideration, but it did not succeed, because Peter was not to be found.
    Subsequently the arbitration bond and award were transferred to Loyd Talbot, and a suit prosecuted at law upon the bond, and judgment rendered for the whole penalty. There is nothing in this case to show the character of the proceedings at law.
    Peter Sarchet left the country in 1813, and is since dead, insolvent. Pending the litigation upon the arbitration bond Chandler prosecuted two suits against the Sarchets and Knowles, for the purchase money, upon which John and Thomas Sarchet have paid the amount recovered, being *four thousand and seventy-six dollars and sixty-five cents, except one hundred dollars paid by Peter, credited on the first judgment, and five hundred dollars paid on the second by Knowles and others, which was carried to the account of Peter Sarchet, leaving three thousand four hundred and seventy-six dollars and sixty-five cents.
    The object of the bill is to be relieved against the award upon the ground of mistake, and if that fail, to off set, against the judgment, the amount paid the Chandler, which was Peter’s part of the original purchase money.
    The case was elaborately argued upon all the grounds, by G-oodenow, for the defendants, and Culbertson and Hammond, for the complainants. But as the court confined their decision altogether to the question of set-off, it is deemed unnecessary to report the argument on the other points.
    Goodenow, for defendants:
    I do not perceive how the question of set-off can properlybe made in the cause as it presents itself to me in the bill. However, I will meet the question and discuss it as briefly as I can to do it justice.
    In the first place, it is to be noted, that all the matters of set-off specified in the bill, have arisen since the submission and award, and most of them since the suit at law was commenced; and they are all in different rights from the judgment, or the award against which they are offered.
    In Murray v. Toland, 3 Johns. 569, one item in the bill is, that one defendant, T., had brought suit against the plaintiffs and recovered ; and that one of the plaintiffs, M., had a claim cn one of the defendants, M., which the plaintiffs claimed to set-off. Upon this point in the cause, Chancellor Kent remarks: “ In this case T. was part owner of the goods, and he held the residue as agent, or factor of M. He dealt with the plaintiffs jointly,, as a commercial house, and there was no privity between him and one of the plaintiffs, individually considered. If there could be any set-off allowed in this case, it ought to be of a joint demand of the plaintiffs, and not of theseparate demand of one of them. The plaintiffs assumed, and are responsible for those proceeds in their joint capacity. This fact itself is decisive against th e alleged right to retain. The debt demanded, and the debt to be set-off must be mutual, i. e., they *must be due to and from the same persons in the same capacity.”

      “ They must be mutual debts,” says the same distinguished chancellor, in Duncan v. Lyon, 3 Johns. Ch. 351. “ There can not be a set-off, even of a debt against the demand of the plaintiff, unless that demand be of such a nature that it could be set-off by a debt, if it existed in him. This is the settled doctrine in the court of law. Colson v. Welsh, 1 Esp. N. P. R. 378. Lord Mansfield said, in Howlett v. Strickland, Cow. 56, that not only the statute, but the reason of the thing, related to mutual debts only, and that unliquidated or uncertain damages, arising from a breach of covenants, were no debts. The same doctrine was held in Weigall v. Waters, 6 T. R. 488, and in Gordon v. Browne, 2 Johns. 150. The same rule prevails, also, in courts of equity. The courts of law and equity follow the same general doctrines on the subject of set-off.”
    Although in some cases there appears to have been a practice in the courts of equity in England, under peculiar circumstances, to relax these doctrines, as in ex parte Stephens, and ex parte Hanson, 11 Ves. 24; 12 Ves. 346, yet this practice only established exceptions to the general rule ; and as recently in the case of Addis v. Knight, 2 Merivale, 121, the master of the rolls observes, that “ in equity, as well as in law, a joint could not be set-off against a separate demand;” and in Duncan v. Lyon, where Chancellor Kent collates and comments upon divers cases beside those I have referred to, he observes, “one judgment may be set-off against another ; but here is a demand on one side raised to a debt certain, by a legal assessment, and an uncertain claim on the other, depending on a settlement of accounts.”
    In Dale v. Cook, 4 Johns. Cr. 11, the chancellor repeats the doctrine laid down in Duncan v. Lyon. “ The debts, or the credits, for credits are considered as subject of set-off, must be mutual and due to, and from the same persons in the same capacity.” In the same case the chancellor further remarks, “ the cases in which there has been more relaxation in the rule of law, which forbids a set-off between joint and separate debts, are separate cases *in bankruptcy; and it is said that the chancellor’s jurisdiction in bankruptcy, relative to set-off, is derived from the statutes of 13 Eliz. and 5 Geo. 11, and is wholly unconnected with the general set-off act of Geo. 11, 2 Maddock’s Treatise on the Principles and Practice of Chancery, 512, 515. Even in these bankrupt cases, the departure from the general rule, seems to _ be questioned, and, at last, prohibited, notwithstanding the statutes of bankrupts embrace mutual credits as well as mutual debts.”
    In ex parte Twogood, 11 Ves. 517, Lord Eldon said, “that he did not understand the reason or the principle ” of the decision in the case of ex parte Quintín, 3 Ves. 248, in which Lord Rosslyn allowed a party to set off the share of a bankrupt partner in a joint debt, due from the bankrupt individually to him, “ for the partnership debts were all actually paid.” If, he observed, there be debts which could not be set off at law, must all the affairs of the bankruptcy be suspended, until all the accounts are cleared, in order to see what rights of set-off there may be in the result ?
    The case ex parte Hanson, 12 Ves. 346, which was before Lord Erskine, was this : H. and W. were indebted on a joint bond, H. as principal, and W. as surety, to C. and P., who were bankrupts, and who owned H. The assignee sued H. on his bond, and he applied by petition to be allowed to set off. It was admitted upon the argument that there could be no set-off at law, between joint and separate debts, and the petitioner relied upon ex parte Stephens, 11 Ves. 24, which the other side said was decided upon equitable grounds administered in bankruptcy, viz: the fraud. The chancellor allowed the set-off on account of the joint debt being that of principal and surety; and he said that his jurisdiction in bankruptcy was equitable as well as legal. When this cause came again before the court on the Master’s Report, 18 Yes. 232, Lord Eldon observed, that the joint debt in that case was nothing more than a security for a separate debt. Chancellor Kent, from whom I have taken the above notes, observes, in Dale v. Cook, ante, upon all these cases, and some others, which I have not cited, that “ they leave the general rule very much as it had existed before,” and adds, “ my conclusion *is, that joint and separate debts can not be set-off in equity any .more than at law.”

    Culbertson and Hammond, for complainants:
    Mr. Goodenow very correctly concedes that Talbot has no other right than Peter Sarchet had. How then stands the case between P. Sarchet and complainants? P. Sarchet bound himself to Knowles, to comply with the article to Chandler. Thus, in equity, he became liable to Chandler for one-half the purchase money. John and Thomas Sarchet purchased from Peter two-thirds of Knowles’ interest, by which, in equity, the three Sarchets became equally bound to Chandler. Had Chandler compelled payment from Knowles, in equity, he could have compelled the Sarchets to reimburse him: but had not Peter made the contract with Knowles, and subsequently with John and Thomas, Knowles, in case of payment by himself, could have recovered from John and Thomas but half, or, perhaps, but one-fourth from each of them. The sale by Knowles to Peter, and Peter’s agreement to pay Chandler, and the subsequent agreement of John and Thomas to become equally interested with Peter in the purchase from Knowles, though it did not change the liabilities of the parties at law, changed them in equity. The three Sarchets were, in equity, debtors to Chandler for the balance of purchase money. That balance was paid by John and Thomas. The five hundred dollars paid by Knowles, though agreed to be credited to Peter, was, in fact, a payment by the three Sarchets, equally, for their interest was equal.
    The whole payment was four thousand and seventy-six dollars and sixty-five cents. Peter’s one-third is one thousand three hundred and fifty-eight dollars and sixty-six cents. Credit this sum with the one hundred dollars on the first judgment, and the five hundred dollars on the second, leaves seven hundred and fifty-eight dollars and sixty-six cents due to John and Thomas, which exceeds the recovery in this case at law two hundred and fifty eight dollars and sixty-six cents.
    It seems to us, there never was a clearer case of equitable set-off. John,and Thomas Sarchet owe Peter five hundred dollars upon their bond. Peter owes John and Thomas seven hundred and fifty-eight dollars and sixty-six cents for money paid to Chandler. This could not be set off at law, because at law Knowles stood joined with John and Thomas, as making payment for Peter. Equity alone *could take notice of the facts which fixed the liabilities of the parties, and exonerated Knowles. The case is strictly one of mutual debts in equity, between Peter, on the one- part, and John and Thomas on the other, and is within the doctrine of Dale v. Cook, 4 Johns. Ch. 11, and the cases there cited, referred to by Mr. Goodenow.
   By the Court :

The purchase of the lease of the salt works, by the three Sarchets and Knowles, to carry on salt works, constituted them partners. When Knowles sold out to Peter his one-fourth, and Peter sold an equal proportion of that fourth to Thomas and John Sarchet, the three Sarchets became, in equity, partners in the salt works property. Sarchet covenanted with Knowles to perform to Chandler, Knowles’ covenant with him, and Thomas and John became parties to this contract, by their subsequent agreement with Peter. In this state of the case, Thomas and John Sarchet, when they paid the whole purchase money to Chandler, could not compel Knowles to contribute his fourth part, because, in equity, Knowles owed nothing. The three Sarchets were the real debtors. Thomas and John owed two-thirds, and Peter one-third. Peter was, therefore, the debtor to Thomas and John, for all the money they paid beyond their own proportion of that contract.

But as between the original parties, no change was made in their respective legal rights. The three Sarchets and Knowles remained bound to Chandler, upon their covenant, for the purchase money; and the new arrangements between Knowles and the Sarchets, was never reduced to such legal forms as to create new legal interests. When suit was prosecuted against Thomas and John Sarchet by Peter, they had not paid the amount due to Chandler, and had they made such payment, a doubt might have arisen whether it could have been set off at law, because it was only by a resort to equity that the true state of their respective interests and 1‘abili-ties could be determined and adjusted.

If there were no debt due from Thomas and John Sarchet to Peter, and they, having paid the whole amount due *to Chandler, sought to subject Peter to the payment of his proportion, it would be necessary for them to resort to equity, as well upon account of the partnership, as that the contract with Chandler, upon which the payment was made, embraced other parties. In a bill to account by Thomas and John against Peter, it would be sufficient to make Peter defendant, and there can be no doubt that he could have set off his judgment against Thomas and John. This view of the situation of the parties, seems to demonstrate the propriety of allowing the set-off now claimed. It is a case of mutual credits, “ due to and from the same persons in the same capacity,” and is within the principle laid down in Dale v. Cook, relied upon by the respondent’s counsel. In Quintin’s case, 3 Ves. 218, and in James v. Kynnier, 5 Ves. 108, set-off's were allowed in equity, which, it was admitted could not be made at law. These; it is true, were cases of a bankruptcy of one of the parties. But in Dale v. Cook, Chancellor Kent correctly remarks, that the set-off cases in bankruptcy leave the general rule very much as it existed before.”

Set-off decreed — each party to pay his own costs.