author: Avert, J. Birchard, C. J.,

text:
    The Trustees of the Belmont Bank of St. Clairsville vs. Andrew Patterson.
    A Notary Public, having* a bill of exchange for the purpose of demanding payment of an acceptor, who had, a short time before, been a boarder at a public hotel at Cincinnati, is under no obligation, when informed at the hotel that the acceptor has gone down the river to be absent some days, to present the bill or make demand of payment of any one there, in order to fix the liability of an indorser.

    This is a Writ of Error to the Court of Common Pleas of Belmont County.
    The original action was assumpsit, on the following bill of exchange:
    Exchange for $ 1570.
    Wheeling, December 3d, 1833.
    “ Ninety days after date of this only bill of exchange pay to Wm. Dulty, Esq. or order, fifteen, hundred and seventy dollars, ' value received, which place to account of, as advised,
    Wilson and Hadden.
    “ To Messrs; McCandless, Semple & Co., Cincinnati.”
    [Accepted McCandless, Semple & Co.]
    Indorsed “Wm. Dulty,
    Andrew Patterson.”
    This bill was discounted by the Belmont Bank of St. Clairsville, and was protested for non payment, on the 6th March 1834, and notice of protest sent to defendant Patterson.
    On the trial the plaintiffs were non-suited, —. on the ground, that no sufficient demand had been made of the acceptors, to charge the indorser.

      The testimony, so far as the same was offered, is this :
    1. The deposition of the notary who made the demand and the protest. •
    2. The deposition of the Clerk of the plaintiffs, who forwarded the notice to the defendant. ,
    3. The deposition of R. Buchanan of whom the demand was made.
    Wheeler, the notary, testified that he demanded payment at the Franklin Bank of Cincinnati, which was refused.
    He then went with the bill of exchange to the City Hotel, the boarding house of Alexander McCandless, one of the firm of McCandless, Semple & Co. — the only one residing in the city, — and wap informed that he had gone down the river, and would be absent some days. He then went to the count-ting house of C. McAlister & Co., and there demanded payment of the bill of ,R. Buchanan, who refused payment ,and finding no one-who would pay the bill he then protested it for non-payment.
    Buchanan testified that the firm of McCandless, Semple & Co. was composed of J. K. McNichols, who then resided in Pittsburgh, Semple, who resided in Covington, Kentucky, and McCandless; that they failed in the winter of 1834, and assigned their effects to him and Thomas D. Carneal for the benefit of their creditors, and that McCandless, after the maturity of the bill, removed to the State of Mississippi.,

      Wilson Shannon, for Plaintiff in Error.
    The question presented in this case is, whether there was sufficient evidence to go to the jury, that the holders of this bill had used due diligence to obtain payment of McCandless, Semple & Co. at the maturity of the bill. If the evidence (which is made part of the bill of exceptions) proves that due diligence was used by the holders of this bill to obtain payment from the acceptors at its maturity, then the Court was wrong in directing a non-suit.

      At the date of the bill McCandless, Semple & Co. had a business house in the city of Cincinnati, and the bill in question was drawn on that house; but before the bill ‘matured, that is, before the 6th of March, 1834, they broke up, and became insolvent and had assigned all their effects to R. Buchanan and Carneal in trust for the benefit of their creditors. At the maturity of the bill the firm had no office or place of doing business in the city of Cincinnati, and McCandless was the only member of the firm who had his abode in the city at the time the bill matured. John McNichols constiuted the firm of McCandless, Semple & Co. At the maturity of this bill, Mc-Candless had his abode at the City Hotel in the city of Cincinnati. The bill was placed in the hands .of Wheeler, a Notary Public of the city, on the 6th day of March, 1834, the day it fell due.
    The bill was drawn on, and accepted by a firm in the city of Cincinnati, and so described on the bill. The' holders had a right to look to that place for payment. The Notary swears he protested the bill for want of payment, first making diligent search and inquiry for the acceptors, neither of whom could be found. He first demands payment at the Bank, where the bill had been left for collection, and payment was refused. He then went with said bill to the City Hotel, where McCandless, one of the firm of McCandless, Semple & Co., then boarded; and he was informed, and he had every reason to believe him to be the only member of the firm whose residence Was at that time in the city of Cincinnati, and was there also'informed that he was absent from the city. The Notarial protest proves, substantially, the same thing; that is, that the Notary went with the original bill to the City Hotel, the boarding house of Mc-Candless, one of the firm of McCandless, Semple & Co., (the only one residing in the city,) and was there informed that he had gone down the river, and would be absent several days. He then went to R. Buchanan, in the city, the trustee [of Mc-Candless, Semple & Co., and who had all the effects of the firm in his possession, for the use of the creditors, and demanded payment, which was refused. He then protested the bill for non-payment.
    On these facts, have we shown due diligence, so as to the indorser ? The drawers of this bill resided in the state of Virginia, and the drawees in the state of Ohio; consequently, this is a foreign bill of exchange. “ A bill of exchange drawn by a person in one state of the union, upon a person residing in another state, is a foreign bill.” Rice v. Hagan, 8 Dana. 133 ; Holliday v, McDougal, 20 Wendal, 81, S. C., 22 Wend. 264; Brown v. Furguson, 4 Leigh, 37.; Carter v. Benly, 9 N. Hamp. 558; 2 Peters, 589, 591; 15 Wend. 527. In such a case, a protest, apparently under the seal of a Notary Public, made in the state where the acceptors reside, proves itself as to presentment for payment, and refusal. And so, also, it seems as to notice to the parties, if such fact be stated in the protest. Holliday v. McDougal, 20 Wend. 81, S. C., 22 Wend. 264; Townsley v. Sumral, 2 Peters, 1,79; Lansdale v. Brown, 2 Peters, 179; Chanaine v. Fowler, 3 Wend. 173 ; Nickolls v. Webb, 8 Wheaton, 333 ; 10 Peters, 581.
    The notarial protest which was given in evidence, in this case, we claim proved a demand of payment, and refusal, so as to charge the indorsers. No other evidence, as to this point, need have been produced by the plaintiffs. But it is claimed by the counsel on the other side, that the notarial protest shows the manner in which the demand was made, or the facts which constitute an excuse for not making a demand of the acceptors, and that neither the demand or the facts excusing a demand are sufficient, as shown by the protest.
    I propose, then, to examine the question upon the authorities, whether there has been a sufficient demand, or whether there has been a sufficient excuse for not making a demand; or, in other words, do the facts show that the holders of this bill used due diligence in making, or seeking to make, a demand of payment?
    Chancellor Kent says, in 3 Comm., pages-95-6, that “If a bill has been accepted, demand of payment must be made when the bill falls due; and it must be made by the holder, or his agent, uPon the acceptor, at the place appointed for payment, at his house, or residence, or upon him personally, if no particular place be appointed, and it cannot be made by letter, through the Post Office. But, (he says) there is- a great deal of perplexity and confusion in the cases on this subject, arising from refined distinctions and discordant opinions, and it becomes very difficult to know precisely the law of the land, as to the sufficiency of the demand upon the maker of the note or the acceptor of the bill. If there be no particular and certain place identified and appointed, other than a city at large, and the party has no residence there, the bill may be protested in the city on the day, without inquiry, for that would be an idle attempt. The general principle is, that due diligence must be used to find out the party, and make the demand. And the inquiry will always be, whether, under the circumstances of the case, due diligence has been used.” This I take to be the true rule which must govern every case, and the only general rule laid down in the books.
    If the acceptor has absconded, or cannot be found, or has no present, known and fixed domicil, the want of due presentment will be excused; Story on bills, § 365, 308, and note. If, at the time of presentment for payment, the holder finds that the dwelling house or place of business of the acceptor is shut up, it is said he is entitled to treat the billas dishonored, by a refusal of payment; at least this is true, (for there seems to be some discrepancy in the authorities,) if the holder makes diligent inquiries for the acceptor, and he cannot be found. Story on bills, § 352; Chitty on bills, Ch. 9, page 386-7, 400, 418; Bayly on bills, Ch. 7, page 215, (5th edition.) We have shown that we made diligent inquiry for the acceptors, and went to the boarding house of the only one that resided in the city, and that they could not be found, and that they had no house or place of business in the city. We bring ourselves, therefore, within the most rigid clause of the above rule, which appears to be recognized in all the books. The want of a demand, will be excused when the acceptor has absconded, or cannot be found. Putnam, et al. v. Sullivan, 4 Mass. Rep.45; ery v. Munroe, 6 Mass. Rep. 449; Stewart v. Eden, 2 Rep. 121.
    In the above case of Putnam, et. al. v. Sullivan, 4 Mass. Rep. 52-3, Parsons, C. J., in delivering the opinion of the Court, says that “ the first objection made by defendants, is founded on a want of demand of payment, on the promissor, where the note was payable. As to this objection, the facts are, that on the first day of grace, which was on the last day of February, notice was left at the lodgings of the- promissor, that the note would be due on the last day of grace, with a request to pay it then. But it also appears, that before the time it was known to the parties that he had absconded, and when the note was payable, he was not to be found. The condition on which an indorser of a note is holden, is that the indorsee shall present the note to the promissor, when due, and demand payment of it, when it can be done by using due diligence. Now it appears that when the note in this case was due, it could not be presented to the promissor for payment, and that there was no 'neglect in the indorsees; we are therefore satisfied that the indorsers are holdén on their indorsement in this case, notwithstanding there was no demand on the promissor.” Now here is a case where no demand ivas attempted to be made on the promissor, on the last day of grace, the day the note fell due, although he had lodgings, it would seem, on the first day of grace, at which notice was left of the time the note would fall due — which was the only diligence used by the holder. The holder was excused from making a demdnd, because the promissor could not be found when the note fell due, and consequently, no demand could be made upon him. This is a stronger case than the one at bar; for the absence of the promissor, so that a demand could not be made, excused the holder from makingTany attempt to demand payment. In the case at bar, the Notary made diligent inquiry for-all the acceptors, and went to the boarding house of McCandless, and learned, upon inquiry, that he had gone down the river, and would be absent for several days. He could not, therefore, make a demand of McCandless.
    The principle that runs through all the cases is this, that when the holders can demand payment by the use of due diligence, they must do so, in order to charge indorsors; but when the acceptors have absented themselves, so that no demand can be made, the holders are excused from making a demand. If they have left a business house, or office, or other place of doing business, a demand may be made there. If they have left a dwelling house, demand may be made there. But such was not the fact with the acceptors in this case. McCandless was a mere lodger at a public house in the city, had no dwelling house, or place of business in the city, at which a formal demand could have been made. And whether he left the city secretly, or publicly, makes no difference; the impossibility of making a demand, is as great in the one case as in the other.
    •The counsel on the other side claim that a demand ought to have been made at the lodging of McCandless, at the City Hotel. That if the demand had been so made his wife or some one might have paid the bill. There is no evidence that Mc-Candless had a wife or family, and the Court will not presume he had, from the fact of his being a boarder at the City Hotel. The Court might presume he had a family or some one to answer demands upon him, if he had been in possession of a dwelling house, but such was not the fact. When he absented himself from the city he left no place where a formal demand could have been made with the least prospect of receiving payment, and the Court will not require the holder of a bill to do an unavailing act. In the case of Widgery v. Munroe, 6 Mass. Rep. 449, the Court determine that as the maker was out of the country when the note fell due, the plaintiff was excused from demanding payment of him.
    If a notary go to the maker’s house to demand payment, and find it shut up, and that he is out of town, this is a sufficient demand. Chitty on Bills, 354; Ogden et al. v. Cowley,
      2 J. R. 274-5, and analagous to this is the decision in the case of Williams v. Bank of the United States, 2 Peters, ] 00, which I will ask the Court to read, as it furnishes a clear tion of the principle that must determine this case. See also Gilpin v. Hard, 3 McCord, 394. Want of demand is excused where the party on whom it should be made cannot be found; Stewart v. Eden, 2 Caines, 121. In the above’case of Ogden v. Cowley, 2 J. R. 274, the facts are these: The notary went to the house of the maker for the purpose of demanding payment, but found it shut up and no person there, and was informed, on inquiry, that the maker was not in town. Kent, C. J., delivered the opinion of the Court and said on this point: “We are of the opinion that the demand and notice were suffi cient. This case comes within the reason of the decision in Stewart v. Eden, 2 Caines, 127. All proper steps were taken to make a demand on the maker of the note and to communicate the requisite notice to the indorser.” The holders of a bill of exchange sent a person on the day of its maturity, to present it at the place to which it was addressed. The party so employed was informed by a woman whom he saw coming out of the house, (and who, as appeared from the evidence subsequently given, was a lodger there,) that the acceptor had formerly lived there, but had recently quitted. It was held that this was evidence to go to the jury of a presentment to the acceptor so as to charge the indorser. Buckstone v. Jones, 1 Scott, N. R. 19; 1 Man. & Granger, 83-5, S. C.
    It is sufficient to show that the bill was taken to the residence of the acceptors, as stated in the bill, for the purpose of presentment, and that the house was shut up, and no one there; and this, although the declaration alleges the bill to have been presented and shown to the acceptor. Chitty on Bills Ch. 9, page 367, 10th American from the 9th London edition.
    If the acceptor has absconded, or his place of usual residence cannot, upon reasonable inquiries, be found, that will be a sufficient excuse for non-presentment. Story on Bills, section 351. If the acceptor has absconded before the day of payment, and he cannot be found, and his place of residence deserted, the omission to make due presentment, would, it be thereby excused. Story on Bills, section 327.
    The case of Hiñe v. Allely. 4 Bam. & Adolf., page 624, to be found in 24th English Common Law Roports, page 127, is a strong case in point. This was an action of assumpsit on a bill of exchange drawn upon P. P. No. 6, Bridge row, and accepted by him; an averment that the bill when due was presented and shown to P. P. for payment, is supported by proof that the holder went to No. 6, Bridge row, to present it, but found the house shut and no one there. Upon examining this case the Court will find that the fact of going to the house and finding it shut up, was deemed a sufficient presentment, without any further inquiry being made by the holder for the acceptor.
    The demand made of R. Buchanan we think sufficient also, to charge the indorsers. He was the assignee of all the effects of the firm of McCandless, Semple & Co. He had all their property, and held it to pay the debts of the firm. The creditors of the firm had a right to look to him for payment, and he had a right undoubtedly to pay, if he had funds in his hands. And for the purpose of paying the debts of the firm, Buchanan may be considered as their agent, legally authorized to pay this bill as well as all other claims against the firm. If I am correct in this, the demand made of Buchanan, without any other evidence of demand, would be sufficient to charge the indorsers.
    If an acceptor has become a bankrupt, and assignees are appointed, presentment should be made to them, if their place of residence can be ascertained by reasonable inquiries. Story on Bills, section 362.
    The general principle of law will not be controverted, that demand may be made of an agent who is authorized to. pay the the bill. In this case we claim that the evidence proves that Buchanan had authority to pay this bill, with all other claims on the firm. He was an assignee of all the effects of the firm for the benefit of all the creditors of the firm, which gave him .authority to pay this bill.

      Daniel Peck, for Defendant in Error.
    Was there such testimony here, as should charge the indorser ? I contend that there was no evidence of any demand of the acceptors: This is the only question to be settled in this suit.
    Let it be remembered that this bill was drawn in Wheeling, on a firm who had a house in Cincinnati, and directed to them there, but that the bill was not payable at any place; a rather unusual circumstance for a bank transaction.
    The firm of the acceptors consisted of threé; one resided in Pittsburgh, one in Covington, Ky., and the other in Cincinnati. The bill was discounted here.
    Under these circumstances, what was the duty of the holder of this bill, to charge the indorsers; for the indorsers were merely sureties for either the drawers or acceptors.
    Where a promissory note is not payable at any particular place, the general rule of law is, that in order to charge the indorser, “ payment must be demanded of the maker personally, or at his dwelling house or other place of abode, or at his counting house, or other place of business. Story on Prom. Notes, § 235.
    The bill in question was not payable at the Franklin Bank, nor at C. McCallester & Co. A demand made of the acceptors at any place would have been sufficient to charge the indorsers, or of any one of the three ; this was not done. The demand was not made of the acceptors, or of either of them personally, or at the dwelling house, or other place of abode, or at the counting house, or other place of business of the firm, or any one of its members.
    ' The rule laid down by Story has several exceptions; does this case come under any of the known exceptions ?
    What are the exceptions ?
    1. Where the maker has absconded, , demand will ordinarily be excused, and notice of that fact will charge the indorser. There is no pretence of this.

      2. Where the maker is a seaman, on a voyage, having no jn the State, the indorser is charged without making a ' ° . But although the maker be absent on a voyage, if he has a domicil in the State, demand must be made there. If the present case in any respect resemble this, it is against the plantiff, for although McCandless Was absent whether from the State does not appear, yet the place of his abode was at the City Hotel, in the State,
    In every case where the maker has no known residence, or place at which a note can be presented for payment, the indorser will be charged without any demand.
    3. If a note is made by a resident of the State, who, before it is payable, removes from the State and takes up a permanent residence elsewhere, the holder need not follow him to make demand, but it is sufficient to present the note for payment at the former residence of the maker. 6 Wheat. 498. Nothing of the kind happened in this case.
    These exceptions all stand on peculiar grounds, that it would be impossible to make a demand on'one who had no domicil in the State, or was a resident of another State, or was on a voyage, when no presentment could be made.
    When a man has a place of abode, it is presumed that he has some one there to pay the money.
    A demand, at any place, if personally made, is sufficient, but it is always sufficient to make it at the domicil, or place of abode, be the maker of the note where he may, from home.
    The reasonableness of this rule is not to be looked into alone, for as the Court says in McGruder v. Bank of Washington, 9 Wheat. 598, “ precision and certainty are often of more importance to the rules of laws than their abstract justice.”
    I do not know that any of this will be denied; it may be that the case will be attempted to be sustained on three other grounds.
    1. That there was' a demand at the residence of McCandless.

      2. That Buchanan was his trustee, and,
    3. That he was the agent of McCandless.
    These points were insisted on, in the trial below.
    The diligence required by our statute is this: that a “ demand from the maker on the 3d day of grace, and notice given of non-payment to the indorser, is due diligence.” Swan’s, Stat. 588. § 7.
    I do not know that our statute intended to make any other rule in respect to negotiable paper, than the old rule.
    What is a demand ? Not going to a tavern and asking for a person without disclosing the business.
    It is not to be supposed that the family of McCandless, or the keeper of the Hotel, knew this bank minion; or if they did, that they could even guess his business.
    He did not make it known, nor did he consider it any demand, for he gives the absence of McCandless as the reason for making this demand of Buchanan.
    Presentment and demand is defined to be this.

      “ A request to pay, or something amounting to it should be made, and it is necessary that the note should be present, ready to be delivered up.”
    For the authority to most of the foregoing points, I refer the Court to the case of Taylot v. Snyder, 3 Denio’s Rep. 145, and request the reading of that case throughout, as well as the case of Gilmore v. Spies, 1 Barber, Sup. Court Rep. 158. •

      “ In general the presentment should be made to the maker, either personally or at his dwelling house or place of business.” Story on Prom. Notes, ■§> 251

      “ In case of Bankruptcy or insolvency of the maker, a presentment should still be made to the Bankrupt or Insolvent, for payment, and it will be no excuse for the holder, that he has omitted in such case to perform his duty.” Same, <§> 252.
    In the case of Boultbee v. Stubbs, 18. Yesey, 21, the Lord Chancellor says,- that, “ If the acceptor of a bill becomes Bankrupt, the holder must give notice to the drawer, as another person has no right to judge what are his remedies.”

      “ It seems that a presentment may always be made to the maker wherever he may be found, although he may not be either at his domicil, or at his place of business. But it is by no means indispensible in any case, to make a personal presentment to the maker, if he has-a dwelling house or place of business. A presentment at the former, whether he be in the house or not, if it be within reasonable hours, will be a due and sufficient presentment to charge the other parties to the note; and if made at his place of business it will be sufficient, although he be absent therefrom; for in both instances he is bound to have a suitable person there, to answer inquiries, and to pay his notes if there demanded.” Same, 235.
    In Burrows y. Hannegan, 1 McLean’s Rep. 309, the Court says: “ The demand should have been made of the drawer personally, or at their usual place of abode, or of business. This was not done,, and consequently, the diligénce which the law requires, to give a recourse against the indorsers, was not used by the plaintiff.”
    A non-suit was ordered.
    “ If the maker has gone abroad, and has temporarily left the country, or be absent upon a journey, that will not be sufficient excuse for want of a due presentment of a note for payment, if he has left his family behind at his house, or it remains open, or if he has left his counting house or place of business open and accessible; or if he has a known agent to transact his business at the place of his domicil during his absence : For in all such cases a presentment should be made at his dwelling house, or place of business, or a demand should be made upon such agent: as in either case it is obvious that the funds may have been provided to meet the exigency.” Same, § 236.
    As to agents, it. seems that it must be an agent for such a purpose.

      Phillips v. Astling et. al. 2 Taunt. 206, is referred to as authority for this. G. Haughton, when this bill was accepted, was at sea, and remained some months after it became due, but had a sister in London to whom he had given authority to fill up and accept bills in his name, and to transact other business for him, and who had in fact filled up and accepted this very bill. No presentment was made to the sister, or to one else. The acceptor was absent at sea.
    The Court intimates the opinion, that a presentment to the sister as the agent, would have been sufficient. This was a suit against a guarantor for the payment of the. bill by the acceptor.
    It is said that when the acceptor becomes Bankrupt, a pre sentment ought to be made to the assignee in Bankruptcy. I have not seen any such case. It may be so decided under our Bankrupt law, but that question cannot arise in this case; the transaction happening in March, 1834. Insolvency is certainly no excuse.
    Was Buchanan the agent of McCandless, Semple & Co. for any such purpose, or in fact for any purpose whatever ? ■
    There is no such evidence in the case; he and Carneal had the property of the firm as trustees for them and the creditors, to be by them realized, and paid over according to the terms of the assignment,- of which we are entirely ignorant.
    ■ We can infer from the testimony nothing else, than that they were ordinary assignees. Buchanan’s testimony was taken, and if he had been agent he would so have testified.
    It seems that any agent who is to perform any such duty, must be clothed with p'ower to transact such business, and must be the known agent for such a purpose. Being assignee is not sufficient, and it would seem that he must be at the place of business of the maker, and it must be in his absence.
    Now in this cas?, McCandless, one of the acceptors, was temporarily absent for a, few days only: a circumstance that might happen to any one often, and no one would think of making an agent for such an absence, except to leave the matter with his family, or some one at his business place. There was no agency here.
    There was then no presentment and demand sufficient to charge the indorser, and the nonsuit was properly directed.

      I have hitherto considered this case as though McCandless was (-¡ie g0]e acceptor of this bill. r
    will now consider it as a joint acceptance of the three partners.
    If McCandless had died, it would not have been sufficient to have presented .the bill to his personal representative; the right of action would have survived against the surviving partners.
    Suppose that none of the acceptors lived in Ohio at the time of the acceptance, or at the time the bill became due, what would have been the duty of the holders, to have charged the indorsers ?
    The diligence necessary to charge the indorsers, would have been" to have made the demand of some of the acceptors, wherever they reside, if their residence could be discovered. See 3 Denio,il45.
    If the plaintiffs put this upon the ground that McCandless could not be found, why did not the notary take the papers 400 yards across the river, to make the demand of Semple ?
    The case of Taylor v. Snyder, 3 Denio, 145, was where the maker lived in Florida, and dated and made the note in Troy, New Fork.
    The Court held, that in order to charge the indorser, a demand should be made of the maker at Apalachicola in Florida, and the indorser was discharged.
    The Court says, (page 153,) “ the indorser voluntarily consents to take such an order, and why should he not perform the condition on which the ultimate liability of the indorser depends ? I confess I see no reason why he should not. There is no mistake or misapprehension of the fact, at the time the indorsement is made. The indorser knows where the maker resides, and that it is in another State. He knows by law, unless the intervention of a State line makes a difference, the maker must be sought where he resides, and the demand must be there. When the time for payment arrives, the maker is still at his former residence ; the facts of the .case are precisely as they were when the order was drawn.

      “ Why in such a case, should the State line make a difference in the construction and legal effect of this contract of the indorser ? It was fairly entered into by the parties ; let it be fairly observed and performed by them.”
   Avert, J.

The single question raised in the case is, whether due diligence has been used by the holder of the bill, to make demand of payment upon the acceptors.

None of the acceptors lived in the city of Cincinnati when the bill fell due, except McCandless, andas the bill had been drawn onjthe firm at Cincinnati, and accepted there, the holder had a right to treat that as the place of payment.

The notary testifies that he made diligent search and inquiry for the acceptors, but could find neither of them — that he went with the bill to the City Hotel, the boarding house of Mc-Candless, the only one of the firm residing in the city, and was informed that he had gone down the river and would be absent some days — that the firm had no office or counting house at that time in the city, that he knew of — that he then went to the counting room of McAlister &, Co., and demanded payment of Robert Buchanan, who was represented to him as the agent or trustee of one of the firm of McCandlesss, Semple & Co. As Buchanan is not shown by the evidence to have been an agent of the firm, or either of them, for any purpose connected with the bill of exchange, the demand upon him was not sufficent to charge the [indorser, and can be of no avail in the case, except to show the diligence and good faith of the notary. His inquiries enabled him to ascertain that McCandless had, not long before, been a boarder at a hotel in the city, and accordingly, as it was his duty, he went there to seek for him, taking the bill along. By the information obtained, it appeared that he had gone down the river, and would be absent some days. Was the notary excused after receiving this information, from attempting any further to make demand of payment at that boarding house ? That is the only question; if he was, then this defendant, the indorser, is charged.

If he had exhibited his bill, either to the landlord or bar-keeper, ma(^e known the purpose for which he took it there; no can be found, I think, to deny the sufficiency of such an effort to demand payment. Where a bill or note is payable at a specified place — by this is not meant a town or city at large — a presentment and demand, if practicable, must be made. Where the party is himself met with by the holder, when on the day of payment he is seeking to make a demand, where the party has a known agent transacting business for him, or has a known place of business, or a dwelling house in which his family is residing; there is good reason for requiring the holder to make known his errand. It may fairly be supposed in each one of these instances, that some interest will be felt, to see the demand satisfied, and provision may be found to have been made for the very purpose. It has not, however, been shown, by any of the numerous authorities cited, so far as they have been examined, or the points in them referred to, that the holder has ever been required to exhibit his claim to strangers (that is, strangers in no way connected with the person indicated by the contract,) or to be guilty of any intrusion upon them, in order to fix a liability upon the indorser. If the dwelling house is shut up, or the house of business, no demand is necessary; and in such case, it is not required to present the claim, or address inquiries about it, either to the neighbors or others. The boarder at a public hotel can scarcely be said to stand in any such relation to the keeper or any of the inmates, as that which exists between him and his family, his agent or his partners. It is the judgment of a majority of the Court, upon a view of the authorities, that no further act was required on the part of the notary. The non-suit, therefore, was improperly directed by the Court; the evidence should have been left to the jury. Judgment reversed.

Birchard, C. J.,

dissenting. I agree with the majority of the Court on all the points in this case, save one. Upon that, I entertain strong doubts, whether the learned judge of the Court of Common Pleas was not right. Many commercial men, engaged in extensive business in our large cities, are domiciled, with their families, at the public hotels, or boarding Should one of them, having closed his business, in consequence of a sale, or of other cause, find occasion to leave home, for a temporary purpose, and having out-standing against him commercial paper which would mature in his absence, he would, if an honest man, desirous of maintaining his credit, provide for the payment by leaving the necessary funds in, the hands of some member of his family, or friend, at his boarding house or hotel.

Now if it is due diligence, and sufficient, for the Notary to call at the hotel or boarding house, and on receiving information that the individual had left town, (not absconded,) to depart without further act or inquiry, and without making his business known, the paper of a man of credit may happen to be protested, wrongfully. , The wife, or friend, holding the means of payment, with special instructions to take up the bill, or note, might very innocently give the information that the acceptor, or maker, was from home, and would not for several days be in town. If polite, well bred people, they would give this answer without indulging in inquisitiveness, especially if the Notary was a gentleman, and a stranger. It would have been a very easy matter for the Notary, in this case, when inquiring at the City Hotel, to have stated his business, and also to have asked if any one had instructions, and had been provided with means to meet the demand. Had that been done, I should have found' in the case evidence of due diligence, and that the paper was well protested. As it is, my judgment is the other way. Who knows that the landlord, or person in charge of the books of the City Hotel, had not the money in his hands for the purpose of meeting this note ? Who knows that he would not have paid it, if the Notary had informed him that he was a Notary, and charged with the duty of demanding payment, and entitled to receive payment and discharge the paper ? To say that it is not probable the payinent would have been made, had this been done, is no answer to the question. I-agree that there is very little reason to suppose payment was provided for, yet it may have been. No one, from the protest, can say the fact was not so.

The principle, as applied to the case at bar, may work no injustice. - Still, when established, it will operate upon all cases. The rule should be a safe one, for solvent men, as well as for those of doubtful means.


source: Caselaw Access Project

author: Birchard, C. J.

license: Public Domain

text:
    Adam Short and others vs. The Town Council of Lancaster.
    A bond in these words, “Know all men by these presents, that we A B and G D, are held and firmly bound unto E, in the penal sum of $3000, for the true and faithful payment of which we do hereby bind ourselves, our heirs, executors and administrators, firmly and severally by these presents,” &c., is a joint and several bond.
    To a breach in a declaration upon the bond of a town Marshal, that, having in his hands for collection the duplicate of taxes for said town, he did collect $2000 thereon in receipts of indebtedness of said town, and receipt therefor as money, and that he afterwards sold and converted the same to his own use, contrary to his duty, &c a plea averring that before the Marshal collected any money on the duplicate, the plaintiff, without the knowledge of the defendants, authorized the Marshal to receive the certificates in the breach mentioned, is bad — not answering the material allegation in the breach.
    This is a Writ of Error to the Court of Common Pleas of Fairfield County.
    The facts of the case sufficiently appear in the opinion of the Court. i

      John T. Brazee fy Henry Stanbery, Attorney General, for Plaintiffs in Error.

      Thomas Ewing fy Son, for Defendant.
   Birchard, C. J.

This was a suit upon the official bond of the Town Marshal. The action was joint. The bond when offered in evidence was objected to on the ground of variance from the one set forth in the declaration. The bond is in these words: “ Know all men by these presents that we Adam J. C. Cassel (and others naming them) are held and firmly bound unto the Town Council of the Town of Lancaster, in the penal sum of three thousand dollars, lawful money of the United States, for the true and faithful payment of which we do hereby bind ourselves, our heirs, executors- and administrators, firmly and severally by these presents/’ &c.

If this is a several, and not a joint, or joint and several obligation, the Court below erred in admitting it in evidence. What then is its true character? The first clause of the obligation acknowledges a joint indebtedness,, we are held and firmly bound in the penal sum,” &c. “ for the true and faithful payment of which we bind ourselves firmly.” Thus far, the obligation is clearly á joint one. Had the draftsman added nothing more, there would be no room to doubt as to the character of the engagement. It would be too clearly a joint contract to admit of argument. But there comes next after the word firmly the words “ and severally,” from which words it is argued that the force of the prior general language of the instrument is so controlled, that the character of the whole instrument is changed. No such conclusion follows. The word “ severally” might have been so placed in the obligation as to exclude the idea of a joint liability. Yet it is not. It follows the copulative and, which so connects it with the preceding sentence as to imply an addition to, or enlargement of the liability previously expressed, and not a restriction or limitation upon the preceding member of the sentence. The force, of the engagement, supplying the elipsis, is this: “ for the payment of which we bind ourselves and our heirs firmly,” and (for the payment of which we bind ourselves and our heirs) severally by these presents.” This makes the bond a joint and several obligation. The Court therefore did not err in holding that it was well described in the declaration.

The next error assigned is, that the Court sustained the demurrer to defendants’ rejoinder to plaintiffs’ replication to defendant’s fifth plea to the second breach set forth in the declaration. The demurrer reaches back to the first defect in pleading. The substance of the second breach assigned in the declaration, is, that Short, being Marshal, and having the duplicate of taxes in his hand for collection, did collect about $2000 thereon, in receipts of indebtedness of said town, and receipted therefor as money, and afterwards sold and converted the same to his own use, contrary to his duty as Marshal, &c.

The substance of the fifth plea, to this breach, is, that before Short collected any money on the duplicate, the plaintiff, without the knowledge or consent of defendants, authorized the Marshal to receive the said certificates in the breach mentioned, commonly called shinplasters. Now this plea stops short of answering the whole breach. It does not even profess to notice the sale and conversion of the shinplasters to the use of the Marshal. It is a bad plea. The gravamen of the breach was not merely the receiving the certificates of indebtedness as money, but the receiving and using of them for private purposes. If authorized to receive this description of paper as money, in payment of taxes, it was his duty to pay it over, when collected, to the treasurer, as money.

But it is said that these persons are securities, and cannot be bound beyond the scope of their undertaking. That the obligation resting upon them shall not be extended by implication. The doctrine is sound, yet its applicability is not perceived.

The receipt of the duplicate of taxes by the Marshal, imposed upon him the burthen of accounting for the amount of taxes appearing to be due thereon. Whether he received the whole amount in money, or under lawful authority received a part or all in evidences of debt existing against the Town Council, his liability was still the same, i. e. for the amount of the duplicate. If faithful, his securities had no cause to complain. If unfaithful, they had agreed to be bound for his misconduct. This view of the fifth plea renders it unnecessary to notice the objections taken by counsel to the subsequent pleadings.

Judgment affirmed.


author: Reed, J.

text:
    Alexander Wells vs. Alexander McLaughlin and others.
    The power conferred upon County Commissioners, lo lay out and establish county roads, authorizes them to locate a road within or through an incorporated town or city.
    This is a Writ or Error, directed to the Court of Common Pleas of Columbiana County.
    / The original action was Trespass quare clausum fregit, ,'and the record shows these facts: The Commissioners of Columbiana county, established a road from the landing place at Wellsville, in that county, commencing at low water mark on the Ohio river, to intersect the State road to Cleveland, whose termini were within the same township, and within the town of Wellsville. In the location of the road, a portion of the property of the plaintiff was appropriated to the public use, and for the injury thus sustained, the action was brought.
    The defendants, in addition to the general issue, pleaded in bar the proceeding of the Commissioners in establishing the road and ordering it to be opened. To this special, plea, the plaintiff replied, that the road was wholly within the limits of the town. To the replication the defendants interposed a demurrer which was sustained by the Court, and judgment thereupon rendered ,for the defendants.
    To reverse this judgment this writ is prosecuted.

      James Mason and Wadsworth &f Lee, for Plaintiff in Error.

      Umhstaetter &f Stanton, and W. K. Upham, for Defendants.
   Reed, J.

The question in this case is, have the County Commissioners the power to lay out and establish a road entirely within the limits of an incorporated town.

General power is conferred upon the Commissioners of the , ; county to lay out and establish roads within the limits of the county, in the mode-prescribed by law. See the' act for opening and regulating roads and highways, Swan’s Stat. 796.

The power of the Commissioners is general, to be exercised or withheld by considerations of public utility.

All incorporated cities and towns are subject to the control of the. general laws of the State, unless specially exempted. There is nothing in the act incorporating the town of Wellsville, which limits the power of the County Commissioners to establish a county road through or within its corporate limits. It would be a little remarkable if all our county roads were compelled stop at or go around every incorporated town or city. True, all streets, lanes and alleys, in towns are, by statutes, declared public highways. But still, it is not left to the town authorities to decide, unless such power be expressly conferred, the streets and alleys of such town are all the roads which shall pass through its corporate limits. Roads arejjmatters of general and public concern, in ■ which the whole community have an interest and a voice. The fact that corporate privileges are conferred upon the inhabitants of a city or town, does not exempt them from the operation of the general laws'of the land. A municipal corporation is no more exempt .from the operations of general laws than a private corporation.

But it is said that the County Commissioners could not establish the road in question, because it is not a county road ; and that it cannot be a county road because' it lies wholly within the corporate limits of the town of Wellsville ; that the county authorities can only establish roads for the county; township authorities for townships, and town authorities for- towns. Now it is not pretended that the county authorities can establish township roads or streets for an incorporated town. But this does not prove that the county authorities may not establish a county road through or within the limits of a tpwnship or incorporated town. Whether a road be a county road or not, does not depend upon its length ; but whether the County Commissioners establish it as a county road ; and whether they should establish it or not depends upon considerations of public' utility of which the law has made them, the judges; subject only such control as is provided by law on appeal to the Courts. There could not be a better illustration of the remarks just made than the road under consideration ; it is a road connecting the public landing place, on the Ohio river, at Wellsville, with the State road leading to Cleveland.

That this road occupies a part of one of the streets of Wells-ville is a matter of no concern to this plaintiff.

The remarks that private property cannot be seized for public use without compensation, does not affect the question ; the Statute provides the mode of compensation, and the plaintiff has made his claim under the law.

The pleadings raised meet the single question whether the County Commissioners have power to establish a county road within or through the town of Wellsville.

We have decided that they can.

Judgment affirmed.


text:
    John Butman and others vs. Frederick W. Fowler and others.
    County Commissioners have power to establish county roads whose termini are wholly within the limits of an incorporated town or city.
    Road viewers appointed by the Court of Common Pleas, may adjourn from time to •time, so that they are prepared to report at the return day 5 and though they may at one time have resolved to report against the road, it is not errorfor them afterwards to change their determination, and report in favor of the road.
    In the matter of an appeal from the decision of the County Commissioners, it is error in the Court of Common Pleas to render judgment for costs.
    This is a Wr.it ok Certiorari to the Court of Common Pleas of Erie County.
    The record shows that on the 3d of December, 1845, a petition was presented to the Commissioners of Erie county, praying the establishment of a county road about forty rods long, whose termini were within the limits of the town of Milan, and that viewers were appointed who reported in favor of the road.
    A petition for a review was then presented, reviewers appointed, who reported adversely, and the road was annulled.
    Thereupon an appeal was taken to the Court' of Common Pleas, and in that Court a new committee was appointed, who reported that they met at the time named in the order, “ and were then of opinion that as the location of the road was on ground which would render the construction very expensive, and the chief burden would fall on the people of Milan, whose interests are mostly against the road, the expense and inconvenience attending its construction would more than counterbalance the good the public would derive from it, and had resolved to report adversely to the road. A few days afterwards it was discovered that a majority of the committee had been laboring under a mistake as to the power conferred upon the Court to change the location of the road,” &c., and thereupon reported in favor of the road; which report was approved by the Court, the road established, and judgment rendered against the remonstrants for costs.
    Itjis assigned for error :
    1. That County Commissioners have no authority to establish county roads within the limits of an incorporated town.
    2. That the committee had exhausted their power previous to the time when they made their report in favor of the road.
    3. That the Court had no power to render judgment for costs.

      Lane Taylor, for Plaintiffs' in Certiorari.

      E. Andrews, for Defendants.
   Birchard, C. J.

This road having its termini within the corporate limits of the town of Milan, is'claimed te have been exclusively within the jurisdiction of the corporate authorities of that town, and beyond the control of the county commissioners. It has already been decided at this term, that the board of commissioners have jurisdiction to establish, alter and vacate county roads, and that the rights and interests of the county are paramount to the control of village corporations, so that the commissioners may enter the limits of the corporation, and establish a county road when demanded for public convenience. The exception to this rule must depend upon an express restriction in the acts of incorporation, when such exception exists. That decision is decisive of the main question in controversy in this case, and I refer to the report of that case for the grounds of this opinion.

But it is claimed that there was error in affirming the first report of the committee appointed by the Court of Common Pleas to review the road. It appears that the committee were directed to meet on the 10th day of March, 1847, or within five days thereafter, and view said road, and to report at the next term of the Court the order for review, and how they shall have executed the same. . The committee, in executing the order, met at the appointed place on the 10th of March, were duly qualified, took to their aid the necessary assistance, and made their examination. In their report, which was returned into Court at the return term, they say. that they were then of opinion the road would be too expensive, and were resolved to report adversely, but a few days after, discovering that a majority of their number had been under a mistake, &c., they again met on the 22d day of March, &c., agreed to reconsider their former conclusion, and now report favorably, &c. This report was approved, and the Court ordered the road to be established, and rendered judgment against the defendants for costs.

The point taken in support of the first assignment of error is, that the powers of the viewers expired at their first meeting. That they were functus officio, when they met on the 22d of May. We have not been able to discover anything in the statutes, which would require us to come to any such conclusion; and there is nothing in the case to call for an interpretation of the order given to the viewers of the road, different from that given by the Court from which it emanated. It was in the na- ■ ture of a writ, and following the provisions of the fifth section of the statute, (Swan’s St. p. 798,) which specifies that the writs issued by order of the commissioners, shall appoint a time for meeting; the order of the Court, in this instance, fixed a time for the meeting. The 17th section, under which the Court acted, however, contains nothing requiring any limitation of the time within which the committee were to act. The order, and journal entry, in virtue of which the clerk issued it, neither of them, fix any limit to the force of the writ. They merely direct the meeting of the viewers, on the 10th, 'or within five days thereafter. And for aught that we can discover, it would have been competent for them to meet at any time between the 10th and 15th, and adjourn to such time as might suit their convenience, so that they had their report in Court, at the return day.

The only question which remains to be disposed of is,' was there error in rendering a judgment for costs, against the re-, monstrants ?

The 11th section of the act, (Swan’s St. p. 801,) fixes the rates of compensation for services under the act, w'hich are to be charged as costs and expenses, and provides for their payment out of the county treasury, on the order of the county auditor.

To secure the county treasurer, the commissioners are required to take bonds. Thus, the 2d section requires a bond to be taken from one or more of the petitioners for the road, condi - tioned for the payment of the costs, &c., unless the road shall be established.

The 16th section authorized a bond from the remonstrants, conditioned for the payment of the costs into the county treasury, in the event of failure to succeed in their application.

The 17th section provides for an appeal bond, to be approved by the county auditor.

Section 1st, of the act passed March 14, 1836, (Swan’s St. p. 803,) makes provision for collecting ■ these bonds, by suit, on neglect or refusal of the party liable “ to pay into the ury, agreeably to the tenor of their bond, all costs and ses.” In view; of all these enactments, it seems to us that the intent of the Legislature was that the county treasury should be liable in the first instance, for the costs in casesdike this, and that the commissioners, should see that the treasury was rendered secure, by the means thus provided for reimbursement. When the méans are thus provided, to meet a particular case, there would seem to be but slight reason for resorting to any other, not named in the statute. The jurisdiction exercised by the Courts of Common Pleas, under these statutes, is purely statutory. It is unknown to the common law, and hence the propriety of gathering from the words of the statutes, and from that source alone, the extent of their powers in reference to the subject. We find nothing warranting a judgment for costs, in the law, and inasmuch as the costs are provided for in another way, feel constrained to declare the judgment for costs against Fowler and others, erroneous.

The proceedings of the Court of Common Pleas, will be affirmed in all things else, and reversed as to the costs. Under the act regulating the practice in writs of error, the costs in this Court will be equally divided.


author: Avery, J.

text:
    John B. Purcell vs. Nicholas Goshorn and Lorenia his WIFE.
    A feme covert, owner of the fee of land, does not pass her title by a deed executed by husband and wife, unless she joins her husband in the granting part of the deed.
    Though it was the intention of husband and wife to execute a deed conveying the fee, a Court of chancery will not, as against the wife, correct the mistake in the instrument of conveyance,, and compel the execution of a perfect deed.
    This is a Bill in Chancery reserved in Hamilton County.
    The bill states that Goshorn and wife, on the 30th day of April, 1823, conveyed to Bishop Fenwick his heirs and assigns a certain tract of land in Cincinnati, giving the boundaries. That on the 12th of September, 1829, they conveyed to said his heirs and assigns, another parcel adjoining the first mentioned tract, giving the boundaries, and beginning as follows : “ At the South East corner of the lot heretofore sold by said N. Goshorn to said Fenwick.” A copy of each of the deeds is exhibited. The bill states that the legal title at the time of executing the deeds, was in said Lorenia, and that said ' Nicholas had no other title than as her husband, and then traces the title from said Fenwick to the complainant. That defendants are giving out in speeches that they have some interest, title or claim to the premises, owned by the complainant as aforesaid, and thereby cause trouble and anxiety to the complainant, and the members of the Catholic Church who have their dead buried there.
    The prayer of the bill is, that defendants answer under oath, and exhibit their claim. That on final hearing, they be decreed to release all interest which they now set up, and if they be found not to have any interest in the premises, that then complainant’s title be quieted, and such other relief granted as may be equitable.
    The bill was filed June IT, 1845, to which the joint answer of Goshorn and wife was put in, September 22d, 1845. The defendants therein admit that the complainant has the title to the estate so far as it was conveyed to said Fenwick, but deny that he has any other title than that conveyed by the deeds, in the bill and exhibits described; they disclaim all interest in the property held by complainant under the deeds; but claim that all interest, not conveyed by the deeds, remains in said Lorenia as one of the children and heirs of Seth Cutler deceased.
    On the 10th of January, 1848, the complainant filed the following amendment to the bill:

      “ Your petitioner further states that it was the intention of the said Goshorn and wife, by both of the aforesaid deeds, to convey a complete and perfect estate, in fee simple, to said Fen-wick, from whom they received a consideration accordingly; but by reason of a clerical error or blunder in the scrivener who filled up the blanks in the first deed, but not noticed either by grantors or grantee at the time of executing said deed, the name of the said wife is omitted in the granting clause thereof, and in the attesting clause she is only described as relinquishing her right of dower, whereas her intention was to convey her fee in the premises therein described.”
    To this amendment there is a general demurrer.

      T. Walker, for Complainant;
    The deed from Goshorn and wife to Bishop Fenwick, it will be seen has been executed with all the formalities required by the Statute for conveying the estate of a married woman. It is duly signed, sealed, attested and acknowledged. But in filling it up there is an admitted clerical error, and the question is, whether this shall be permitted to defeat the admitted intention of the parties, which was to convey to the Catholic Bishop not only the life estate of Nicholas Goshorn, but also the fee of Lorenia his wife ? This would not be a question, if the deed were not the deed of a married woman. Had Mrs. Goshorn made this deed before she married, or after she became a widow, a Court of equity would not hear argument upon the question of correcting the mistake. It is the coverture of Mrs. Goshorn that creates all the doubt which exists. -It is the false and senseless theory of marriage, started in a barbarous age, and not yet wholly done away — that by marriage the husband and wife become one person, and that person is the husband ■— that by marriage a woman is changed from a rational, capable, and responsible being, into a mere appendage or appurtenance of her husband, a thing without rights, capacities, or responsibilities, except such as have been created by positive law — it is this false, absurd, and monstrous theory, which ages of progress have not been able wholly to expel from the common law, that makes it necessary to argue before this high tribunal the question, whether Mrs. Goshorn shall be allowed to assert a right, or do a wrong, which no other created being but a married woman, would be allowed to do, in any Court of law or equity, anywhere in Christendom.
    And I am greatly encouraged, in entering upon this argument, by the evidence I find in the latest reported decisions of this Court, that the light of reason has at length dawned upon the judicial mind of Ohio with respect to. the true legal theory of married women.
    A few years ago I had occasion to present an ■ argument to this Court in the case of McFarland v. Febiger, 7 Ohio Rep. Part 1, 194, in which a married woman united1 with her husband in the execution of a deed, so defectively drawn as not to convey her dower in express terms, she having first taken professional advice as to the defect, yet knowing at the time, that the purchaser supposed her dower was relinquished, and that he paid an additional price for such relinquishment. And this Court then held that she was not accountable for this downright fraud, because she was a married woman. Judge Lane, who delivered the opinion, said: “The alleged fraud consists in the fact, that a married woman joins her husband in a deed, which she conceives to be inoperative as to herself, but is silent upon that subject. Whatever might be the effect of such conduct in one acting in her own right, and making her own contracts, it cannot be imputed as a fraud to a married woman, disabled to contract, except upon one subject, and upon that only in prescribed forms. * * She had no agency in making the contract, or in preparing the deed. All this the purchaser transacted with the party whose title he obtained. The wife was passive. She was not bound to be otherwise.”
    Such was the state of judicial ethics, in regard to married women, in this State some twelve years ago. And it had not varied much when the decisions were made in Connell v. Connell, 6 Ohio Rep. 358 ; Good v. Zercher, 12 Ohio Rep., 364; Meddockv. Williams, 12 Ohio Rep. 377; Sillimanv. Cummings, 13 Ohio Rep. 116. But at the last session of this
      Court in Bank, in Chesnufs Lessee v. Shane, 16 Ohio, 399, these four decisions were reversed, in an opinion, the reasoning of which appears to me unanswerable. I quote with pride pleasure from Birchard, C. J. (page 611:) “Now, had an unprotected feme sole, without the aid of any friend, executed her deed, and the Magistrate had omitted, through mistake, or other cause, to certify it in due form, she would transfer an equity, which the Legislature c might convert into a legal estate, ’ and ‘cure the title to the property? And yet it is by a supposed failure of the Magistrate’s certificate only, that the legal title of the feme covert did not pass. And it cannot be denied, that her grantee has an equity against her, flowing directly from her own act, as binding upon her conscience, and not less substantial in point of fact than is the equity against a feme sole, in a case of defective certificate to her conveyance. The cases are not distinguishable in reason. If the Legislature can heal the defect in one case, they may in the other. If a Court of Chancery ought to interfere in the one case, so ought it in the other. The fiction of law which merges the legal existence of the wife during coverture, is a mere fiction. It does not deprive her of the intellect and soul that God gave her. She is still a moral and intellectual being, the fit companion of man, and morally responsible for her conduct•”
    In the same spirit is the decision in Smith v. Handy, 16 Ohio Rep. 191; the Court say, (page 232) “In the case before the Court, Mrs. Willey joined with her husband in the execution of the deed of mortgage. She joined with him in the granting part of the deed. The commencement is in the usual form. “ Know ye, that we, James T. Clarke, John W. Willey, and Laura M. Willey, wife of John' W., in consideration,” &c., “ do give, grant, bargain, sell and confirm,” &c. The only defect claimed in the deed is that there is nowhere an express relinquishment of dower. All that the statute requires of a married woman in order to convey her own estate, or her dower interest, is that she should join with her husband in the deed. But it is said that there is nothing to show that the female intended to release her right of dower. If she did not intend this, what did she intend ? She had no more interest the property than a ■ contingent right of dower. Why did she join in the deed ? Was it a vain thing ? She must have intended that the deed should operate for some purpose, and so far as she was concerned, it would be entirely inoperative, unless it operated upon her right of dower. It is a well known rule that deeds shall be construed most strongly against the grantor, and the same rule must be applied to a feme covert when she conveys in conformity to the statute. If the statute is complied with, the conveyance is as effectual as if made by a feme sole”

    I understand these cases to establish these two positions: First, that you may inquire into the intention of a married woman, in executing a deed, and, in so doing, apply the same rules as if she were not married; and, secondly, if you can ascertain her intention, it shall be carried into effect in the same manner, and to the same extent, as the deed of any other person. Nor does this Court stand alone in the expression of these rational views. In Baker v. Child, 2 Vernon, 61, “where a feme covert, by agreement made with her husband, is to surrender or levy a fine ; though the husband die before it be done, the Court, by decree, will compel the woman to perform the agreement.” And in Jordan v. Jones, 16 Law Jour. Rep. Chy. 93, decided in December, 1846, the Lord Chancellor says, where a married woman had been previously ordered to execute a conveyance — “I shall be very much surprised if the Court has no jurisdiction, and if, when the Court has directed what ought- to be done, it is to be stopped because one of the conveying parties is a married woman” Again, in McCall v. McCall, 3 Day, 402, the husband had made a conveyance to his son, which, under the statute of Connecticut, had it been a valid conveyance, would have barred the wife of dower without her joining in it; and the Court held that it still had that effect, although it must first be reformed in equity — saying: “ It is such a conveyance as a Court of equity may validate, and when validated and the defect of the conveyance cured, it will have relation to the time of delivery of the deed, and not only bar the widow of her dower, but destroy all claims of the heirs.” And Constantine v. Van Winkle, 6 Hill, 177, a similar doctrine was held: “ The deed, after describing the husband and wife as parties of the first part, stated that he, by and with the volununtary consent of his wife, for and in consideration of the sum of, &c., to him in hand paid, granted and conveyed the premises to V.j his heirs, &c., and also all the estate of them, the said husband and wife, in every part or parcel thereof, to have and to hold the same, with the appurtenances, to the said V., his heirs and assigns forever.” Then followed a clause to this effect: “ And the said J., (the husband,) and his said wife, for themselves, their heirs, &c., do grant to and with him, the said V., his heirs and assigns, that he may at all times, and from time to time forever hereafter, peaceably and quietly have, hold, possess and enjoy the premises, &c., without any let, suit, trouble, denial or interruption of them, the said J. and his wife, or any other person or persons claiming by, from or under them or either of them.” And it was held, that the deed, though informal, sufficiently indicated an intent to convey the estate in fee of the wife, as well as the life estate of the husband.
    Let it be borne in mind that this is not a case which seeks the curing of a defective conveyance, by enforcing it, in equity,, as a contract to convey. As. before said, the deed containing the clerical error is duly signed, sealed, attested, and acknowledged. It has all the solemnities required by the statute, for conveying the. wife’s estate. The contract is executed, and not executory. The Court have only to correct, or what is the same thing, overlook a mere clerical error in the body of the deed, and the conveyance is complete.
    And therefore the reasoning of this Court in Webster v. Harris, 16 Ohio Rep. 490, becomes applicable. On page 501, the Court say: “ It matters little what was the form of the contract when the intention of the parties is palpable, and a full consideration has been paid and received. It would be a reproach to a Court of equity, could it be said that in such a case form must work a denial of justice. Whatever it might at law, this contract with Johnston was in equity, the contract of Moses, not Payne Cleveland, and for the simple reason that both intended that it should be so. That was what they designed, and the accidental circumstance of affixing a seal to the signature of Payne, will not be allowed in this Court to make it otherwise. We look to a result that will be consistent with the ends of justice, and where the way to attain it is so manifest, shall not be turned out of it, unless the well settled rules of law present insuperable obstacles. • No well settled rule or well considered adjudication will be contravened by rejecting the seal and reforming this contract, so as to make it effect the objects of the contracting parties. The omission to sign as the attorney of Moses, and the affixing a seal, were accidental circumstances, which originated in unskillfulness, ignorance, or mistake, and ought not to defeat an agreement which all parties, for many years, treated as obligatory, which on one part was fully executed, and upon the other was thirty years without disaffirmance.”
    The true test of a clerical error, which will not vitiate a deed, is, that taking all the parts of the deed together, you can with certainty arrive at the meaning of the parties; in which case the error is of no account. Apply this test to this deed. It begins: “ This Indenture, made between Nicholas Goshorn and Lorenia, his wife,” &c., “ witnesseth that the said Nicholas Goshorn hath granted,” &c. After the description comes this expression: “ And all the estate, &fc., of them, the said Nicholas Goshorn and Lorenia, his wife” In the habendum clause are these words: “ The premises hereby bargained and sold, or meant or intended so to he.” In the attesting clause the words are : “ Nicholas Goshorn, together with Lorenia, his wife, who hereby relinquishes her right of dower in the premises, have,” &c. And the deed is duly signed, sealed and acknowledged by Goshorn and wife. Now, looking at this matter in the light of common sense, it is an inevitable inference from the deed itself that the intention was to convey the wife’s estate. Goshorn had no fee, yet the conveyance is to Fenwick “ and his heirs and assigns forever.” Mrs. Goshorn had dower to relinquish, and therefore could not have intended to relinquish dower. But what both parties did intend was to convey, as the deed says, “ all the estate of them,” the husband and wife. The omission, then, of the wife’s name, in the granting clause, and the insertion of dower in the attesting clause, are both clerical errors which can be corrected from the deed itself, when we know the fact that the fee was in the wife. And to all this may be added, that in the second deed, in which there is no pretence of defect, Goshorn and wife refer to the first conveyance as a valid one. The land conveyed "by the second deed adjoins that conveyed by the first; and in giving the boundary of the second tract, they specify “ the south line of the grounds heretofore sold to Edward Fenwick.”
    In Spooner v, Payne, 16 Law Jour. Rep. .C. P. 225, where the submission to an arbitration mentioned a mortgage executed “ on or about the 29th of September, 1818;” and the award was made upon one executed “ on the 26th of September, 1817,” but admitted to be the mortgage in the submission mentioned as executed “ on or about the 26th of December, 1818;” this last expression was held to be a mere clerical error, which did not vitiate the award; Coliman, J. says: “Perhaps this part of the award does not properly describe the deed mentioned in the submission; but when we look at the submission, and see that there is but one Indenture mentioned, I cannot entertain a doubt that the difference in the date is a mere clerical error.” And such errors are very likely to occur in filling blank forms. Thus in Berdoe v. Spittle, 16 Law Jour. Rep. Exch. 258, in filling a blank declaration, it stood “ h . been summoned and ha not paid,” but the Court held it good.
    But a case more in point, is that of Carr v. Williams, 10 Ohio, 305. There the fee was in the wife, and the deed commenced thus: “ Know all men by these presents, that in consideration of seven hundred and fifty dollars to them in hand paid, have,” &c., omitting the names of both husband and wife as grantors. A bill was filed to correct the mistake. The Court held that the mistake could not be corrected against a married woman; but that this was a mere clerical error which did not vitiate the deed. Grimke, J. said : “ Considering the omission of the names of the grantors in the granting clause of the deed as a mere clerical error, it is contended that the conveyance is in truth not defective, and yet the complainant is entitled to the interference of a court of equity.” [In that case complainant was not in possession.] “ But if this is the effect of the omission, where the deed is signed and sealed by the husband and wife, and in all other respects executed according to law, then the complainant has a valid, legal title, and his remedy at law is perfect.” And if the deed were produced, so that the fact could be certainly and distinctly ascertained, we should probably have no hesitancy in so deciding.” In accordance with this intimation an action of ejectment was afterwards brought, and the Supreme Court, on the Circuit, held the deed good. Now in comparing these two cases, so far as the omission is concerned, the case at bar is the clearest. Here the parties are named as parties to the Indenture; there they were not; the form being that of a deed poll. Here only the wife is omitted in the granting clause ; there both are omitted. If, then, a Court, on the production of that deed, would supply both names, they will a fortiori supply the wife’s name in this deed. And when this is done, Goshorn and wife will have conveyed “ all the estate of them, the said Goshorn and wife,” by the very terms of the deed; and the insertion of dower after-wards, when the wife had no dower, will be regarded as surplusage.
    In this connexion I also lay great stress upon the case of Constantine v. Van Winkle, 6 Hill, 177, before quoted. That case is identical with the case at bar in every particular but one, namely, that it contained a joint “grant” or covenant of the husband and wife for quiet enjoyment, which ours does not, though the covenant of warranty was, like ours, by the husband only. But Senator Bokee, who gave the leading opinion in the Court of Errors, (where the judgment was unanimous against the.wife,) laid no stress upon this covenant. On page 187 says : “ As to the construction of the deed, I do not believe to be considered merely as a conveyance of the life estate of John Van Winkle. There would have been no necessity for making Jane Van Winkle a party tó such a conveyance. It purports to convey all the estate of John Vaft Winkle and Jane his wife, (just as our deed does,) ‘with the voluntary consent and good liking of the said Jane,’ testified by her. bemg made a party thereto, and signing and sealing the same. The deed, though inartificial, contains sufficient granting words to convey the fee simple of the estate, and at this late period it ought not to be set aside for mere, informality.” Senator Porter likewise says, on page 191: “ It must.be conceded that it is a very informal conveyance, so far as relates to her interest in the premises ; but if her intentioh to convey that interest appears from the deed, with reasonable certainty, it must be allowed to operate accordinglyand he afterwards refers to her joining in the covenant only as evidence of such intention. And why should this covenant make any difference, when the theory of the common law is, that a married woman can make .no binding executory contract whatsoever ?
    I hardly need to suggest to this Court that there never can be a stronger reason for quieting title, than exists in this case. The land was purchased and has been used as a burial ground. As such it has been consecrated by the solemn rites of the Catholic Church; and the kindred of those whose ashes repose there, look to it as holy ground. If then the law be not very clearly the other way, the Court will quiet this title, as a religious duty. Let us then examine the leading authorities likely to be cited against us, and see if they are really against us. The Court will find that not one of them is precisely like our case. In every one of them, there was the absence of any words in the body of the deed to show what the wife did convey; in other words there was something more than a clerical error, which could correct itself by the context, as in our case.

      ■Catlin v. Ware, 9 Mass. 218. Here the wife merely signed and sealed the deed, but did not acknowledge; and her name was not mentioned in the body of the deed. Held, that this did not bar dower. The Court said: “ A deed cannot bind a party sealing it, unless it contains words expressive of an intention to be bound.”

      Lufkin v. Curtis, IS Mass. 223. Here the deed was executed and acknowledged by husband and wife ; but the wife was only mentioned in the testatum clause', as signing and sealing, but without any granting words. Held, that this did not bar dower. The Court said: “ It contains no release of her right, nor any declaration for what reason she executed it.”

      Fowler v. Shearer, 7 Mass. 14. Here the husband had given a power of attorney to his wife to convey lands held in her right. In the beginning of the deed she described herself as grantor in her own right, and as attorney for her husband. This ivas the only mention of her attorneyship, for she covenants and executes in her own right only. Held, that she could act as attorney, but did not in this case; and that the deed, as in her own right, was void, because her husband did not join in it. The Court said as to her covenants: “ The usage therefore has never extended to make her liable to an action on the covenants in the deed, further than they may operate by way of estoppel.”

      Powell v. Monson Man. Co., 3 Mason, 347. In this case it would seem that the wife, in whom was the fee, only joined with her husband in signing and sealing, but was not named in the body of the deed. For Story says: “ Riddle was seized of the land in right of his wife, who was owner of the fee, and she has signed and sealed the deed, but the husband alone is named as grantor in the deed, and there are no words in the body of the deed, containing a grant or release on her part. Under these circumstances, it is very clear that nothing passed by the deed, but the life estate of Riddle.”

      Cox v. Wells, 7 Blackford, 410. This deed purported to be an indenture between the husband alone and the grantees. The wife was not mentioned until the testatum clause, and then only as joining in the execution without any words of grant or relinquishment. She also joined in the acknowledgment. Held, that this did not bar dower. The Court said : “ The deed does not convey the interest of the wife in the premises; her name not being inserted in the body of the deed.” Cited :— Catlin v. Ware, 9 Mass. 209; Lufkin v. Curtis, 13 Mass. 223.

      .Martin v. Dwelly,6 Wendell, 1. Here the wife joined with the husband in executing a deed to convey her land, but not in the acknowledgment, which she expressly refused to do. Held, “ that as the statute of New York expressly required her to join in the acknowledgment, this deed did not pass her title ; that she was not estopped by joining in the covenants; and the deed, as to her, was not operative as a contract to convey.”
    The case, then, which we present, is one where the statute has been complied with in the execution of the deed; where a full consideration was paid for the fee ; where the intention to convey the fee is admitted, and if it had been denied, might be gathered from the deed itself; where provision is made in the habendum clause, for supplying any omission or mistake, by inserting the words, “ meant or intended to be bargained and sold; ” and lastly, where the precedents, if not all for us, are none of them directly against us.
    Shall then the clearest justice be defeated, and the ashes of the dead remain liable to be disturbed, in consequence of a manifest blunder of the scrivener in filling up a deed, merely because the grantor was a married woman ? Let a Court of conscience, sitting in a Christian land, in the middle of the nineteenth century, give the answer.

      A. iY. Riddle and J. H. Clemmer, for Defendants.
    The complainant seeks to have a decree in this case against Lorenia Goshorn, who was and is the wife of N. Goshorn, quieting his title as against her on the ground of mistake, clerical error, or blunder of the scrivener, the complainant only holding the title of N. Goshorn, the fee simple being in his wife, Lorenia, and she never having parted with it. The defendants ’ admit title in complainant as far as the title was conveyed under the deed to Fenwick, and no farther; and the bill in this case being filed under the 14th section of the Chancery Act, we submit to the Court whether Mrs. Goshorn, a feme covert, has set up such a title to said property as is contemplated by said section, so as to afford the relief to the complainant which he seeks; but be this as it may, there is not a,case in the books, where a Court of Chancery has undertaken to enforce, specifically, the executory conduct of a married woman. In the case of Butler and Athwater v. Buckingham, 5 Conn. Rep. 492, it was held, “ that an agreement of a married woman, with the consent of her husband, for the sale of her real estate, was absolutely void at law, and that a Court of equity would never enforce such a contract against her.” It has been held in Ohio, “ that a deed so defectively executed as not to convey the legal title, would be considered as a contract to convey and be enforced in Chancery,” but an executory contract of a married woman cannot be enforced against her.
    A deed duly executed is the only instrument known to the law, by which she can convey or incumber her estate. McFarland v. Febiger, 7 Ohio Rep. 194 ; Silliman v. Cummins et. al, 13 O. Rep. 116.
    The question in the case is, whether the deed of a feme covert, so imperfect as to convey nothing, may be rectified so as to convey her estate. The defendants insist that no such decree can be taken against the acts of a married woman. The deed from Goshorn and wife is defective, or it is not: if the estate is granted, and the deed executed in due form, then it is not defective, but if there is no estate granted, then it certainly is defective.
    In the case of Catlin v. Ware, 9 Mass. 218, where the wife merely signed and sealed the deed, it was held that it did not bar the wife of her dower, and that “ a deed cannot bind a party sealing it unless it contains words expressive of an intention to be bound.” The same doctrine was held in the case of Cox v. Wells, 7 Blackford, 410.

      So in the case of Lufkin v. Curtis, 13 Mass. 223, the deed was executed by the husband and wife, but the wife was only mentioned in the testatum clause as signing and sealing, out any granting words. Held that this did not bar dower. The Court say, in speaking of the deed, “It contains no release of her right, nor any declaration for what reason she executed it. To have been valid for the purpose contended for by the tenant, it should have contained words importing a release of her claim of dower.”
    Again, in the case of Martin v. Devetty, 6 Wend. 9, it is decided that a contract with a married woman with respect to her real estate is absolutely void; and the Court say, “ He that wishes to divest a married woman of her land, must take care that the statute is complied with before he parts with his money.” •
    But a case very similar to this, and which involved the same principle as that before the Court, is that of Powell v. Monson Man. Co., 3 Mason, 347.
    Justice Story, in delivering the opinion in said case, says: “ Riddle was seized of the land in right of his wife, who was owner of the fee, and she has signed and sealed the deed, but the husband alone is mentioned as grantor in the deed, and there are no words in the body of the deed containing a grant or release on her part; under these circumstances it is very clear that nothing passed by the deed but the life estate of Riddle, for though by our local law, a wife, by joining with her husband in the deed, may convey her estate, yet the deed must contain apt words to make her a grantor, otherwise the deed conveys only the right of her husband.”
    But a still stronger case, and more in point, if possible, is that of Carr v. Williams, 10 Ohio, 305. In that case, the defect consisted in the ommission of the names of both grantors in the deed, but both Williams and wife joined in the other parts of the deed, and in the covenants. It is true that after-wards, when the case came up in the Supreme Court on the Circuit, the Court held the deed to be good, but then that has nothing to do with the principles of the case as decided in 10 Ohio, 305. There it was held that a defect in a deed of a huskan<* an<^ wife cannot be rectified as against the wife. Grimke, in delivering the opinion in the case, says: “ Our Statute prescribes the mode in which a married woman may execute a conveyance of her land. It directs that she and her husband shall join in the conveyance, and if this provision is not complied with, then the deed stands as it would at common law, absolutely void and inoperative as to her; and if a deed, the body of which was defective, was still to be treated as an agreement to convey,'or as an imperfect conveyance, other provisions of the statute equally essential would be disregarded. The acknowledgment and separate examination would not be to such an instrument as the law contemplates. I believe no case can be found where a mistake in the deed of a married woman has been rectified, as against her.” Such is the language of the Court. And, again, in the same case of Carr v. Williams, the Court say, “ Either the conveyance is defective, or it is not. In the first case, the mistake cannot be corrected as against a married woman; in the second, there is no defect to be rectified; and in either event the bill must be dismissed.” The bill in that case was filed to correct the mistake of the scrivener in not filling up the blank in the deed. The Court say that if the deed were produced, they should probably have no hesitation in deciding whether it was valid to pass the legal title or not, but then that could have made no difference in the decision, for the principle is there laid down emphatically, that if the deed was defective, it could not be cured, and if not defective, there was nothing to cure. So it is in this case precisely. If the deed of N. Goshorn and wife to Fenwick is defective as to Mrs. Goshorn, it cannot be corrected; and if it is not defective, there is nothing to rectify.
    The defendants contend that the deed is defective, and that there is no clerical error about it; that it differs from the deed in the case of Carr v. Williams, in this; that in that case it was clearly the intention to have the grantors’ names filled in the blank, but by mistake or blunder they were omitted, but in this case there are no blanks left; all the names are in it that the person who drew the deed intended to have in it, and there are no accidental omissions in this deed from Goshorn and wife. This is evident by the reading of the deed itself.
    If the Court can grant relief in the case before them on the grounds claimed by the complainant’s solicitors, after examining the deed itself, then there will be no difficulty in Ohio hereafter to procure a decree to perfect the most imperfect conveyance, wherein a married woman is a party, and conveyed- nothing. You may as well abolish the restrictions of the statute altogether, for they will be perfectly useless, and say that all a married woman has -to do, to convey her estate, is to sign a deed, and it makes no difference what is in that deed; if wrong, it will be corrected by the Court. But we do not think that the Supreme Court of Ohio is prepared to establish Such a doctrine.
    If a life estate is only conveyed, in. consequence of the omission of the word “ heirs,” will the gentlemen contend that relief should be granted ?
    If the name of' N. Goshorn alone appeared in the granting part, and the name of his wife only appeared in the. testatum clause, without releasing anything, would a Court of equity, in the face of the authorities We have here cited, supply the defects, and insert her name in the granting part of the deed for the purpose of passing her estate, either in fee simple or in dower, as the case might be ? This would be precisely the case now before the Court, for the recital of parties and estate granted, amounts to nothing as far as Mrs. Goshorn is concerned, because she did not unite in granting it.
    Or would the Court insert in the testatum clause of a deed, which was signed by husband ánd wife, when the wife had a dower interest, the words (where the wife’s name only appeared in said clause,) “ who hereby releases her doWer,” when no dower, without the insertion of said words, had passed by deed ?
    Ignorance of the law cannot be set up as a ground for reforming a deed, founded on such a mistake. Story’s Equity, p. 129; 6 John. Chy. Rep. 169, 170.

      The Court well say in 13 Ohio Rep. p. 118, “A married woman has no legal existence or power to transfer her interest in real estate, except through the statutory channel.” Again, “ when a married woman attempts to convey, and lacks power from not pursuing the prescribed mode, Courts of equity will not relieve, because to amend the mode is to create the power.”
    The same doctrine is held by the Court in the case of Good v. Zercher.

    The complainant’s solicitors insist that Mrs. Goshorn is barred, on the authority of the case of Smiley v. Wright, 2 Ohio, 506. This is a case where a widow, being present at the sale of the premises in which her dower was assigned, suffered it to be sold free of her estate, inasmuch as she did not contradict the auctioneer selling the property, who announced it as sold free of her dower, and the proof in the case going to show that she authorized it. Now we see no similarity between that case and the case now before the Court. The widow in that case, at the time, was a feme sole, under no restraint of coverture, and at perfect liberty to act as she thought best in respect to her property. In this case, Mrs. Goshorn is a married woman; has not the right to control and dispose of her property, in any other way than that prescribed by the statute. The question whether a feme covrt would be barred in permitting another to purchase her estate, did not come up in that case; the parties were sole, and neither of them under any restrictions of coverture.
   Avery, J.

The distinct relief sought by the bill is, that Goshorn and wife exhibit their title, and that the Court decree that they release to the complainant all the right, title and interest they now set up, and if they be found not to have any title or interest, that complainant’s title be quieted against the claims of the defendants. There is no prayer, indeed, in this bill, for the specific execution of a contract; still, if there is any title or interest in the premises, left in this married woman, the bill seeks to obtain it, and seeks fo do this by a decree of the Court. It is, in effect, nothing less than compelling a married woman to convey what she intended, but failed to convey by her Has the Court authority, upon principle or precedent, to do either under its common equitable jurisdiction, or ■ by virtue of any further authority, supposed to be found in the fourteenth section of -the act directing the mode of proceeding in Chancery ? That section, (Swan’s St. p. 703) or so much of it as may be of use in the present inquiry, is as follows: “ Any person having the legal title and possession of lands, may file a petition against any other person setting up a claim thereto; and if the- complainant establishes his title to said lands, the defendant shall be decreed to release his claim.”

The bill, as alleged in the argument, is brought to quiet title, and founded on the above section. The complainant claims the “legal title and possession,” and one of the defendants, Lorenia Goshorn, “ sets up a claim thereto,” in reversion, after her husband’s death.

Founding the right to proceed, upon this section alone, it is not any equitable title to the premises, but the legal title which must be shown to be in the complainant. This title, if he has it, is claimed from a deed made an exhibit in this case, executed by the defendants, Goshorn and wife, to Bishop Fenwick. Had the husband, when the deed was given, been the owner in fee simple, without any doubt, the title in fee would have passed ; it is a deed precisely adapted to such a state of the title. It is the husband alone that grants and conveys throughout the entire body of the deed; her name is never there mentioned but once, and then just as it would have been, had the husband owned the land, and the wife possessed only a contingent dower interest. At the end of the deed the same appearance is kept up, and there the wife relinquishes her dower. Had the husband been the owner, then the conveyance would have been perfect and the complainant would have needed no assistance from, a Court of Chancery.

• Now by what principle can a Court of equity take this deed, which is regular and perfect upon its face, drawn strictly ac.cording to the statute, to convey a fee by the husband and dow1 er by the wife, and alter it, so that it shall convey a fee simple, • instead of a dower interest by the wife ? There is not a word of grant by the wife, nor any thing equivalent to it in all the deed. This deed, by its terms and at law, does not convey any fee from the wife. The authorities produced, show that no fee of her’s in the land, passed by a deed so drawn. A life estate passes by this, deed, and that is a legal title, which may satisfy the demands of the statute. But to this neither of the defendants sets up any claim ; a case therefore seems not to be made out under the statute. No precedent, as it is supposed, can be found, of a decree against a feme covert to convey lands,, held by descent or by the usual conveyance, upon the ground of her having agreed to convey, or her having executed any defective conveyance, whether upon a full consideration paid or not; and the fraud of the wife in the transaction would make no difference. That a mistake in a deed cannot be corrected against a married woman, was decided in the case of Carr v. Williams, 10 Ohio Rep. 305.

But it is contended, that there is nothing in the case, as stated, that has reference to the principles governing the specific execution of contracts. And no relief is asked because the deed was drawn differently from the instructions given to the draftsman. The difficulty all arises, it is said, from a clerical error; and this error may be corrected even in the case of a married woman, by a Court of equity. What is termed a clerical mistake or error, can be corrected at law as well as in chancery. If it is obvious, as such a mistake must be, upon the face of the instrument, it will always remain so, and lapse of time will not increase the difficulty of correcting it; the correction will be made, or treated as made, whenever occasion shall require it.

There is nothing in this deed, which, in the opinion of the Court, has the character of such an error. To alter it in such a manner as to conform to what may have been the intention of the grantees, would be equivalent to making a new deed. This, against a married woman, cannot be done.

The deed, after the usual words of grant by Nicholas Goshorn alone, of the fee simple, to Bishop Fenwick, and for consideration expressed of $1,218 75, describes by metes bounds the premises so conveyed in fee; then immediately following is this clause, “ and all the estate, right, title, interest, claim and demand of them, the said Nicholas Goshorn and Lorenia his wife, in and to the premises and every part thereof.” This is much relied upon as evidence, that it is by a mere clerical mistake, that no words of grant, by the wife, appear in the deed. But all these words are entirely consistent with an intention, on her part, not to part with her fee in the land, and would be appropriate words to convey a less estate, to wit, a dower interest.

The fact further, that a full consideration was paid for the fee, that, to the words, “ to have and to hold the premises hereby bargained and sold,” are added, the words, “ or meant, or intended so to be,” together with the reference in the second deed, to the conveyance of the premises in the first, all may show strongly, that the land ought to have been conveyed in fee by the deed, and warrant the exercise of the equitable power of the Court, if any such is found to exist, in decreeing that to be done, which ought to have been done by the parties. But all this, we think, does not prove that here is only a clerical mistake which needs to be rectified.

There must be a decree against the complainant.