text:
    John Powell v. James Jones.
    Whenever it appears, in the progress of a trial, that the plaintiff is not entitled to maintain his action, the court may interpose, and direct a nonsuit, although the same objection appears on the face of the declaration, and might have been made upon demurrer.
    An action may be maintained before a justice of the peace, by scire facias, against a constable, for a false return upon mesne process.
    A justice of the peace has jurisdiction of such cases under the statute.

      This is a writ of Error to reverse the proceedings and judgment of the court of Common Pleas of Coshocton county.
    The action is in case by Powell, the plaintiff in error, against Jones, the defendant in error, as a justice of the peace, for non-feasance in office.
    The declaration contains two counts, in which it is averred, in substance, that the plaintiff required the defendant, as justice of the peace, to issue mesne process, in his favor, against one William Q. Hill, then a resident of Adams township, in said county, for the purpose of enabling the plaintiff to recover, from said Hill, the sum of seventy-two dollars and fifty cents, damages, which the plaintiff had sustained by means of a false return made by said Hill, as a constable, on a certain writ of summons before that time issued against the plaintiff, by the defendant, as such justice.
    * It is averred, also, that it was the duty of the defendant, as [30 such justice, to have issued such mesne process, but that, not regarding the statute in such case made and provided, nor his duty in that behalf, but contriving, and wrongfully intending, unjustly to aggrieve and oppress the plaintiff, and to prevent and hinder him from recovering his said damages from said Hill, so sustained, the defendant, against his duty, as such justice, then and there absolutely refused to issue said mesne process, and by means of the premises, the plaintiff was greatly injured, prejudiced, and oppressed, to the damage of the plaintiff of five hundred dollars, etc.
    To this declaration tho defendant plead not guilty, and a jury was impanneled to try this issue.
    A bill of exceptions was taken on the trial, from which it appears-the plaintiff proved the defendant was a justice of the peace, and that, before the commencement of the suit, the plaintiff, by his agent, applied to him, as such justice, for mesne process against said Hill, who had then lately been a constable, etc., to recover damages against the said Hill, as such constable, which gaid damages the plaintiff alleged he had sustained by means of a false return, by said Hill, as such constable, "on a certain writ of summons, before that time issued against the said plaintiff, by the defendant, as such justice.
    The plaintiff, also, offered to prove, that on his application to the defendant, as such justice,- for process, he offered to file his hill of particulars against the said Hill, as such constable, and that the defendant, being such justice, refused to permit the plaintiff to file his said-bill of particulars, and refused, wrongfully, to issue said mesne process.. The counsel for the defendant then moved the court to arrest the testimony from the jury, and directa nonsuit, for the reason that a justice of the peace has, by law, no jurisdiction over a constable for a false return on mesne process. This motion was sustained, the testimony already given, arrested from the jury, the testimony offered not permitted to go to the jury, and a nonsuit directed.
    The decision of the court is, in various forms, assigned for error.
    * David Spangler, for plaintiff in error.
    It is maintained, imthe first place, that the defendant, having taken issue upon the charges contained in the declaration, by the plea of not guilty, and that issue submitted to a jury, it was not competent for the court before whom the case was being tried, to decide, as on demurrer, that the plaintiff had no good cause of action set out in his declaration.
    Had a verdict been rendered for the plaintiff, a motion, in arrest, would have been sanctioned by good and approved practice. But I know of no good practice that will sanction the procedure in this case ; and I respectfully claim that this court decide the point whether a parol demurrer can be interposed during the trial, to the country, of an issue of fact — the trial arrested in its progress — the testimony arrested from the jury — the parties arrested from their issue — and the plaintiff turned out of court because the opposite party, by his counsel, has found, or thinks he has found, some defect, either of form or substance, to the declaration.
    If such a practice be established by judicial authority, I would be for going one step further,'and say, go back, at once, to the practice •of the early ages, and have all the other pleadings, as well as the demurrers oretenus. But I am not certain that even the antiquity of •orefenus pleading furnishes a precedent for trying issues, in law, to the court, and issues in fact, to the country, both at the same time.
    The very point now under consideration was before the Supreme •court of New York, in the ease of Van Vetchen v. Graves, 4 Johns. 404, and that tribunal held, thal; “ on a motion of nonsuit, the court do not take notice of objections to the sufficiency of the declaration; they properly arise on a motion in arrest of judgment.”
    But, passing from this point, I maintain that the decision is wrong,
    The decision is, that a justice of the peace has no jurisdiction of a case against a constable for making a false return on mesne process. 38] But the statute says, that, “ in all cases * when a constable in this State shall make a false return, it shall be lawful for any justice of the peace,” etc. Swan’s Stat. 531, see. 116. It is contended, on the other side, that the language used means only false returns on final process. That all means part, and that the Common Pleas, having so decided, the decision must stand. What good reason is there for thus ■ wresting the language employed by the legislature?
    The object of the law undoubtedly was to give an easy, a speedy, and cheap remedy to a party conceiving himself injured by the misconduct of a constable, and to give that remedy before the tribunal whose officer he is : and where neither the delay or expense attendant ■on proceedings before higher courts shall intervene to prevent parties injured by the neglect, or the perverseness of constables, from holding them to their just responsibility. There is as much reason for the exercise of the jurisdiction of a justice .of the peace, for the injury caused by a false return on mesne, as on final process, and so thought the legislature ; and hence the provision, that “ in all cases, when a constable in this State shall make a false return,” etc.; notwithstanding which, it is sought to limit the provision to false returns on final process. The reason of the ease does not so limit it. The statute does not so limit it. And I would call the attention of the court to a rule o'f interpretation laid down by a celebrated writer on the law of nations. “ The first general maxims of interpretation,” says he, “ is, that it is not permitted to interpret what has no need of interpretation. When an act is conceived in clear and precise terms, when the sense is manifest, and leads to nothing absurd, there can be no reason to refuse the sense which the treaty naturally presents. To go elsewhere, in search of conjectures, in order to restrain or extinguish it, is to endeavor to elude it. If this dangerous method be once admitted, there will be no act which it will not render useless.” Vattel, Book II, 308 ; see, also, Powell on contracts, title, “ Interpretation-of Agreements.” The same rule is, in effect, laid down in Blackstone’s Commentaries, for, he expressly says, that the words of a law must be first regarded, but where the words are ambiguous, we must then resort to construction.
    *In conclusion, it may be asked, why reason the question ? [39 What tribunal is better suited to deal with a ministerial officer who disobeys process, or makes false returss thereon, than that from which the process issued. And, indeed, in this case, there is no room for legitimate reasoning, or for construction. The statute is as plain and explicit as language can make it. It is its own interpreter. It says, “ in all cases where a constable in this State shall make a false return, a justice shall have jurisdiction.” And I presume it means what it says.
    Goddard and Converse, for defendant in error.
    Two points are made for the plaintiff in error.
    First: That the court, below, could not properly direct a nonsuit, where the plaintiff’s evidence, though inadequate to sustain an action, proved his declaration. In other words, that, as the objection was apparent upon the record, it could only be taken advantage of by demurrer, or by motion in arrest.
    Such a practice would lead to a very injudicious consumption of time, and would place the court somewhat in the power of the bar. It is the practice of the Supreme Court to arrest the progress of causes which can result in nothing, without inquiring whether, or not, the same question would arise upon the record. The ease of Sadler v. Robins, 1 Camp. 256, is directly in point. Lord Elienborough says : “ If there is evidently no consideration to raise a promise, so that the action can not be supported, why should the defendant be put to move in arrest of judgment? The plaintiff ought not to have brought his action here,” etc. “ In many other cases, where it is clear, the action will not lie, although the objection appears in the record, and might be taken advantage of by motion, in arrest of judgment, or by writ of error, judges are in the habit of directing a nonsuit.” This was a nisi prius decision, but the report shows that the point was reserved, and the opinion of Lord Elienborough was concurred in, unanimously, by the court of King’s Bench.
    * Second: The second position can not, we admit, be disposed off so easily. The whole question is as to the true interpretation of the 116th sec. of chap. 66, of the statutes. Undoubtedly, the language is broad enough to cover the plaintiff’s ease. But this admission leaves the question as before. The language of the law, which punished the drawing blood in the streets, was broad enough to cover the case of the surgeon who let blood in the streets to save. life. But the question was, there, as here, did the ease fall within the true intent and meaning of the law ? Is it not evident that the whole scope and design of that section was to afford a summary remedy against constables for a failure of duty in relation to final process ? Observe the connection — “ fail to make return,” “make a false return or, “-refuse to pay over money.” Observe, further, the process which the justice is to issue; a writ of “ scire facias’’ as if founded on some matter of record, to show cause why an “ execution ” shall not issue against him ; then the penalty given, and the stay of execution prohibited, all tend to show that final, and not mesne process, was in the mind of the legislator. All this, too, is analogous to a suit against a justice of the peace for a failurev to pay over money made on execution. He is suable before another justice; is liable for ten per centum penalty, and is not entitled to stay of execution. This construction of the statute makes our code a consistent one. Section 106 prescribes the general rule, that actions shall not be brought in a justice’s court against any officer for misconduct in office. But, it is obvious, that such a rule, with no exception, would lead to gross injustice. A summary remedy should be given to a party, who, having pursued a claim to judgment and execution, is defrauded of the fruits of his recovery by the misconduct of the justice or the constable. Such a remedy, we conceive, is given, and it, only, is given; and that all other suits against justices, against constables, as against all other officers, must be brought in the higher courts.
    The sections in the act of 1831, for which this amendatory act was a substitute, have not been adverted to. We * do not know that [41 they affect the question. They are sections 96, and 97, and may be found in 3 Chase, 1755.
   Wood, Judge.

The plaintiff argues that an issue having been submitted to the jury, it was error for the court, during the progress of the trial, to decide that the action was not sustainable; and nonsuit the plaintiff; or, in other words, as .the objection to a recovery was apparent on the face of the declaration, advantage could only be taken of such objection by demurrer, or after verdict, by motion in arrest of -judgment.

We think otherwise. Such a practice, if sanctioned no where else, is almost the necessary consequence of our system. It frequently saves a wasteful consumption of time, which would be occupied in fruitless litigation, and prevent the disposition of other business. It will be found, however, that such a practice is sanctioned by high authority. Lord Ellenborough once said, at Nisi Prius : “ In many cases where it is clear the action will not lie, although the objection appears in the record, and might be taken advantage of by motion in arrest of judgment, or by writ of error, judges are in the habit of directing a nonsuit.” Sadler v. Robbins, 1 Camp. 256. And this opinion was unanimously sustained by the King’s Bench. It has also been the practice of this court, and no injustice has been found to result from it. Slipher v. Fisher et al., 11 Ohio, 299.

An important inquiry, however, remains: Did the Common Pleas err in deciding that the magistrate had no jurisdiction over the constable for making a false return on mesne process ?

This depends on the correct construction of the 116th section of the act entitled “ an act defining the powers and duties of justices of the peace and constables in civil cases,” passed March 3, 1834; Swan’s Stat. 531. The section is in these words : “ That in all cases when any constable within this state shall fail to make return, as is provided in the act to which this is an amendment, or shall make a false return, or refuse to pay over money,” etc., “it shall be lawful for 42] any * justice of the peace in the township where said delinquent constable may reside, on being satisfied thereof, on application of any person or persons aggrieved thereby, his, her or their agent or attorney, to forthwith issue a scire facias against said constable, directed to any responsible individual who may be named by said justice, and who will consent to serve the same, commanding said constable to appear before said justice, to show cause why an execution shall not issue against him; and if the constable neglects to appear within five days from the time of serving said writ, or does not show proper cause why execution should not issue against him, then, and in that case, the justice shall enter judgment against said constable for the amount of the damages sustained, with costs, and ten per cent, penalty; on which judgment there shall be no stay of execution; and the justice shall, forthwith, issue execution for the amount of such judgment,” etc.

Is not the language of this section sufficiently broad to give the justice jurisdiction over a constable for a false return on mesne process ? and, also, to confer that jurisdiction by scire facias ? The terms of the act are general — “ or shall make a false return” — without defining whether upon mesne or final process, and without reference to the provisions of the act to which this is amendatory. It, therefore, appears to us a false return, on either, is within the statute. The pro-coeding by scire facias, it is true, may be considered as novel, against an officer for a false return, for the writ of scire facias, at common law, lies only on matter of record; but it is within the power of the legislature to modify the common law, and prescribe the forms of process and the mode of redress for any injury. By this enactment it was, probably, the intention of the Legislature to simplify the remedy against constables for malfeasance, or nonfeasance, in office — ■ to give speedy relief by subjecting them to the jurisdiction of justices, and to punish their delinquency by the addition of a ten per centum penalty on the damages, when liquidated, and sustained by their malfeasance or nonfeasance, and by prohibiting the stay of execution on judgments for such causes against them.

We are, therefore, of opinion that the court of Common Pleas [43 erred in deciding the justice had no jurisdiction over a constable for such false return, on mesne process, and in directing a nonsuit

Judgment reversed, and cause remanded.


source: Caselaw Access Project

author: Wood, Judge.

license: Public Domain

text:
    Solomon Shoemaker v. The State of Ohio.
    To constitute the crime of murder in the first degree, when the purpose to maliciously kill, with premeditation and deliberation is found, the length of time between the design so formed and its execution is immaterial.
    Where a person, indicted for murder, elects to be tried in the Supreme court, the original indictment must be sent up.
    But the clerk of the Common Pleas need not certify in the transcript that he has deposited the original in the office of the Supreme court; the fact may be shown aliunde. ,
    It is good cause of challenge to jurors, in a capital case, that they are not electors and householders; but it is no error that they are not described as such, in the record.
    This is an application for the allowance of a Writ of Error to the Supreme court of the county of Muskingum.
    The record shows the indictment of Shoemaker, at the last February term of the court of Common Pleas of said county, for the crime of murder in the first degree, and that he made his election to be tried in the Supreme court. It also appeárs from the record that at the last October term of the Supreme court in said county, on being arraigned, Shoemaker plead not guilty, to the indictment, was tried, convicted, as charged, and ordered for execution on the 12th day of January, 1844. Several assignments for error are made on this record—
    First: That the record does not show that the original indictment was deposited in the office of the clerk of the Supreme court, nor that the said original indictment was in or before said court;
    ' * Second : That the original indictment was not in or before the [44 Supreme court;

      Third : That the defendant pleaded to, the verdict was rendered, and judgment given on, a copy of the indictment;
    Fourth : That the record does not contain the original indictment, but only the copy thereof, certified from the court of Common Pleas;
    Fifth : That the record does not show that the jurors summoned by the sheriff, and the jurors who tried the case, had the qualifications required by the statute ;
    Sixth : That the court erred in the charge to the jury, as set forth in the bill of exceptions.
    The charge of the court, as stated in the bill of exceptions, is in these words :
    “ The law fixes no length of time, if the person has actually formed the purpose maliciously to kill, and deliberated and premeditated upon it before he performs the act; he is guilty of murder in the first degree, however short the time may have been between the purpose and its execution. It is not time that constitutes the distinctive difference between murder in the first degree and murder in the second degree; but the actual existence of such purpose, malice, deliberation, and premeditation, constitute the crime of murder in the first degree. It matters not' how short the time, if the party has turned it over in his mind, weighed, and deliberated upon it.”
    R. Stillwell, argued in behalf of Shoemaker.
    I am fully aware of the decisions in other States, and that they support the charge of the court; indeed, those m Pennsylvania go much beyond it. For instance,in the cases decided and reported by Addison, it is held, that if the intention to kill is formed before the act is done, it is murder in the first degree ; and in the ease reported in 2 Dallas, that the intention to kill determines the grade of crime. In the States of Pennsylvania and New York, although the statutes in each of those States, requires that, to constitute murder in the first degree, 45] * the act of killing must be deliberate and premeditated, yet an indictment, in the common law form (not containing the additional qualifications of bhe statute), will sustain a conviction of murder in the first degree. It is clear that neither of these decisions is law in Ohio. The court on the Circuit might not feel willing to depart from the decisions in the other States, (above referred to). • But, presented as this question now is, for the first time, to this Court in Bank, and as the decision of this case will form the law of the State under the present statute, I have no doubt but that the court will be willing to review the ground.

      The defendant is entitled to a strict literal construction of the statute in his favor. He can not be found guilty unless he come within the very letter. And I trust that the court will not consider my construction of the statute or of the charge of the court hypercritical, Murder in the first degree is defined in the first section of the act for the punishment of crimes. To constitute that crime, the act of killing must be both “ deliberate and premeditated.” An act may be premeditated, which is not deliberate,. And I submit that the decisions in the other States, and the charge of the court in this case, include and define a premeditated, but not a deliberate, act. The verb, “ to deliberate,” the substantive, “ deliberation,” and the adjective, “deliberate,” are not convertible terms.
    A man may deliberate — he may perform the act of deliberation, and yet the quality, deliberate, be not applicable to the act consequent on such deliberation. It is premeditated, but it is not of necessity deliberate. The act of deliberation may not be completed ; or, it may have been interrupted. I ask no better example to elucidate my meaning than the charge of the court, in this case. The words of the charge on this point, are : “ However short the time may have been between the purpose and the execution; ” and, “ it matters not how short the time.” An instant — an indivisible point of time, fills the requisition of the charge. The court, throughout the charge, say that the defendant is guilty of murder in the first degree, if he has deliberated; and that it is deliberation that determines the * grade [46 of the crimes — instead of saying, and explaining to the jury, that, in addition to this, the act itself must be deliberate. The words, weighed and “ turned it over in his mind,” in the latter part of the charge, make no difference ; they are. also qualified as to time, in the same manner as the part of the charge before referred to, and the same remarks are applicable.
    I claim that I have given a correct, philological exposition of the statute. Such is also the popular meaning. Did any man ever say that an act, done on the thought of the moment, was deliberate ? When we use that qualification we emphatically mean that all the grounds and circumstances have been coolly and carefully examined and balanced — again and again reviewed — the consequences of the act weighed, and a determination formed not likely to be changed by further examination. This can not, in any case, be performed in an instant — much less in the still less time specified in the charge.
    Such is the true meaning of the statute, as gathered from the words —such the popular meaning — and no doubt, the intention of the Legislature enacting the law. And in all cases of trial for murder, the jury should be so charged. It is true, that no exact time can be stated for the deliberation. This must depend on the circumstances of each particular case — certainly, in all cases, longer time than the infinitesimal portion of time dealt out in the charge ; and sufficient to meet the construction which I claim should be given to the statute.
    The view that I have taken is sustained by former charges of the Supreme court. State v. Town, Wright 77. In that case, the Court say, to "constitute murder in the first degree, the intention to kill must be coolly and deliberately formed.
    I deny that the words “ deliberation and premeditation,” in the second section, can be taken into consideration in giving a construction to the first section of the statute. ' The construction must be given from the definition of the crime itself.
    * N. A. Guille, Prosecuting Attorney, and Charles C. Convers, for the state.
    The exceptions taken in this ease, by the prisoner, leave but a single question for discussion, viz : “ Does time constitute the distinctive difference between murder in the first and second degrees, as known to our- statute ?'” Can time become more than a circumstance, which may be taken and weighed by the jury, with all the other circumstances of the case, in making up their opinion as to the actual existence of the fact of purpose, malice, deliberation and premeditation ?
    We hold that the deliberation and premeditation necessary, under our statute and in different states, to constitute the crime of murder in the first degree, means nothing more than the “ malice prepense,” or “ malice aforethought,” of the common law. People v. Enoch, 13 Wendall, 159. That this charge, to which exceptions are taken, would have been good at common law, admits of no doubt. Wherein does our statute make any distinctive difference? Is it more than declaratory of the common law ?
    The best method of arriving at its true meaning, is to have reference to the decisions of the judicial tribunals of the different states, where the same question has arisen, and where the true legal definition of the terms used in our statute are declared. First, then, in the state of Pennsylvania, since the act of 1794, as in our state, the whole doctrine of constructive murder, so called, ceased, so far as to involve the life of the accused ; such murders being nothing more than murder in the second degree. To constitute murder in that state, since the act above referred to, the killing must be “ with intent to take life, willful, deliberate, and premeditated.” Wherein does it differ from our own statute ?
    As early after the act of ’94, as the next year, a judicial construction was given to it by Chief Justice McKean and Judge Smith, in the case of The Commonwealth v. Mulatto Bob, where the court say : “ The intention still remains the criterion of crime. . That intention is to be collected from the words and * actions of the prisoner ; [48 and that on the supposition, a man, without uttering a word, should strike another on the head with an axe, it would be deemed premeditated violence.”
    At a later date, in the case of Commonwealth v. O’Hara, tried before C. J. McKean and Judges Shippen and Smith, at Philadelphia, in 1797, the Court held, “ If the murder be committed with an instrument likely to kill, it is willful, and that, to make it deliberate and premeditated, the party must have time to reflect and frame the design, however short the time may he. If the defendant .has time to think, and did intend to kill, for a minute, as well as an hour or a day, it is deliberate, willful, and premeditated killing.”
    The above authorities are referred to, and relied upon by Judge Rush, in the celebrated ease of The Commonwealth v. Smith, in 1816, •where the Judge remarks : “ But does the law fix the time for deliberation? No such thing. The truth is, in the nature of the thing, no time is, or can be, fixed by law for the deliberation necessary to constitute the crime of murder. If the party did reflect, though but for a minute, it is, unquestionably, sufficient. It is equally true, both in fact and experience, that no time is too short for a wicked man to frame in his mind a scheme of murder.” 2 Wheeler’s Oases, 84, 86. The same doctrine is more fully explained in the case of Commonwealth v. McGee, in 1826, by Judge King. 1 Ashmead, 299, 300 ; Commonwealth v. Dougherty, Browne, (appendix) 221. It is sufficient if the circumstances of willfulness and deliberation were proved, though they arose, and were generated, at the period of the transv action. Pennsylvania v. Fall, 1 Browne.
    The law, then, in Pennsylvania, is clear and conclusive on this point. Wherein, then, may we again inquire, can any essential distinction be made between the act of ’94, and our own statute, on this point? The two last cases, with others, are also cited and relied on, in the ease of The State v. Cheatwood, 2 Hill, (South Carolina), 464.
    In Yirginia, the Legislature, in their description of murder in the 49] first degree, at first enumerated some of the most striking ^instances of deliberate and cruel homicide; such as starving, whipping, poison, etc.; then go on, finding it impossible to enumerate all, and provide that murder, by any other kind of willful, deliberate, and premeditated killing, shall be murder in the first degree. Rev. Code, 616. Under that act: “ To constitute murder in the first degree,” it is said, “ it is not necessary that the premeditated design to kill, should have existed for any particular length of time. If, therefore, the accused, as he approached the deceased, and first came in view of him at a short distance, then formed the design to kill, and walked up with a quick pace, and killed him without any provocation, then, or recently received, it is murder in the first degree.” 6 Rand. 721 ; Whitford v. Commonwealth, Nov. 1828, Brockenborough, Judge. It may be remarked that this case went up, on exceptions from the court below, to the Court of Appeals, on exceptions similar to the case now under consideration.
    In the state of Tennessee, the point now at issue has received, in many instances, the consideration of their Superior Courts. The latest case is that of Anthony v. State, Meigs, 277, where it is held “ that, in the absence of passion or provocation, the length of time during which the prisoner deliberated, was immaterial. If the design was formed to kill, it would make no difference whether that design was deliberated upon but one moment, one day, or one week.”
    I-Iere, then, we have the concurrent construction of the courts of the different states, running back to a period of nearly fifty years, against the exceptions taken in this case, sustained, too, by a construction of our own court, in 1831, in the case of The State v. Turner, Wright, 30, 31, where it is said that the deliberation or premeditation necessary to constitute this offence, is not required to be of any particular length of time. “ If the design to kill was formed coolly but a moment before he struck the fatal blow, it is a premeditated killing.”
    It is unnecessary to enumerate the many reasons for the correctness of this construction, as they could only be a repetition of those col-50] lected in the cases above referred to, wherein the * question has received every consideration of which it was susceptible; but, it may be added, in addition to those authorities, that, by the provision of our statute, a killing on purpose, and maliciously, but without deliberation and premeditation, is murder in the second degree ; but if there is deliberation and premeditation — not how much, or how long did it last — not when was the purpose formed before the consummation of the act — but does the fact exist ? — was there any deliberation and premeditation ? If there was, it is murder in the first degree ; if there was not, but the ingredient of malice and purpose remaining, it falls to the second degree. The fact, itself, of deliberation and premeditation, is made the essence of the offence — the distinctive difference between the degrees of murder — and not the length of time during which that fact existed, So, then, we conclude that, in Ohio, under our statute, to adopt the more clear and explicit language and reasoning of the Judge who pronounced the charge in this case, “ the law fixes no length of time. If the porson has actually formed the purpose, maliciously to kill, and deliberated and premeditated upon it before he performs the act, he is guilty of murder in the first degree, however short the time may have been between the purpose and its execution. It is not time that constitutes the distinctive difference, between murder in the first and second degree; but the actual existence of such purpose, malice, deliberation and premeditation, constitutes the crime of murder in the first degree. It matters not how short the time, if the party has turned it over in his mind, weighed it, and deliberated upon it.” What other meaning can be given to the act of the Legislature, consistent with justice, than to suppose that, in the adoption of the terms,-“deliberation and premeditation,” they meant to adopt their legal meaning; that meaning which the courts in England, and in this country, so far as we have any reported decisions, have always given them ? in fact, no other construction being at this day known. If they did not so mean that the jury, before finding a verdict of murder in the first degree, should be satisfied of the existence of the fact of deliberation and premeditation, and not its duration for a specific period, * this clause of the section would have [51 no definite meaning, and the crime of murder, in the first degree, could only exist when death occurs in the perpetration of rape, etc., or by poison.
   Wood, Judge.

The law upon which the first four assignments are based will be found in the 18th section of the act entitled “ an act directing the mode of trial in criminal cases.” Swan’s Stat. 725. The language is in these words : “ That if the prisoner elect to bo tried in the Supreme Court, the clerk of the court of Common Plea.? shall truly record the indictment, and forthwith make out a certified transcript of the same, with the proceedings of the court on such indictment, and deposit such transcript, with the original indictment, in the office of the clerk of the Supreme Court; which clerk shall docket the same ; and the Supreme Court shall proceed thereon to trial and judgment.”

It is only when the provisions of this act are complied with that the Supreme Court acquires jurisdiction of the case. State d. Turner, Wright, 33. And in a case involving life great caution is required, and parties are held to a strict compliance with the law. Idem. The original indictment must he sent up, for it is on that the prisoner must be arraigned; to it he must plead, and upon it must be tried. The reason why the indictment is to be recorded, and included in the transcript sent up of the other proceedings of the Common Pleas, is, perhaps, not very clear; but, probably, that it might be compared with the indictment, and show to the court that it was the same indictment on which the election was made to be tried in the Supreme Court.

The law requires the clerk of the court of Common Pleas to deposit the indictment in the office of the clerk of the Supreme Court; but it does not require the clerk of the Common Pleas to certify this fact in the record of the proceedings — for he is not required to deposit it until after the record is made, and then with the record.

An inspection of this record shows that no error has intervened, so far as these assignments are concerned. It appears the case was 52] docketed in the Supremo Court; and that the * court were satisfied the same indictment was there which is set forth in the transcript, and on which the election was made ; that the trial was upon it, and not on the transcript.

The record in the Supreme Court is in these words : “ The State of Ohio v. Solomon Shoemaker. Indictment for murder in the first degree. The prisoner being brought into court, and arraigned, etc., and the indictment being read to him, plead .not guilty, thereto.” The jury, in their verdict, say, that he is guilty,” etc.s “ as he, the said Solomon Shoemaker stands charged in the indictment.” It was, therefore, on the indictment that Shoemaker was tried and convicted, and not on the transcript or copy of the indictment. It docs, also, clearly appear, that the original indictment is copied into the record from the certificate of the clerk. Shoemaker, therefore, can take nothing from these assignments for error.

It is also assigned for error, that it does not appear from the record that the jurors had the qualifications required by law. The record describes the iurors as “ good and lawful men.” The statute requires them to have the qualifications of electors, and to be householders. Suppose the - jurors do not possess those qualifications, it is only a cause of challenge, and if waived by the accused, he can not avail himself of the objection on error. By such waiver he consents to their qualifications, and submits to be tried by them.

The sixth and last assignment, is, that the court erred in their charge to the jury.

A bill of exceptions was taken to the instruction of the court, from which it appears that the court charged the jury that the law fixed no length of time; if the person had actually formed the purpose maliciously to kill, and deliberated and premeditated upon it, before he performed the act, he was guilty of murder in the first degree, however short the time might have been between the purpose and its execution ; that it was not time that constituted the distinctive difference between murder in the first and second degree ; but the actual existence of Such purpose, malice, deliberation and premeditation, constituted murder in the first degree; that it mattered not * how [53 short the time, if the party had turned it over in his mind, weighed and deliberated upon it.

It is admitted by counsel, that the decisions in Pennsylvania sustain the charge, and even go far beyond it; for while the statutes of that state, to constitute murder in the first degree, require that the crime should be committed with deliberate and premeditated malice, an indictment in the common law form, merely, would there be sustained.

It is insisted the court erred in their charge in this case, in saying to the jury that however short the time may have been between the purpose and its execution, if the design were formed maliciously to kill, and deliberated and premeditated upon before the act was performed, it constituted murder in the first degree. It is said that a purpose or design may be premeditated, hastily formed, and executed so quickly, that time does not intervene for deliberation, and that without deliberation the crime of murder in the first degree is not complete ; and that, from the charge to the jury they may have supposed if the design was formed beforehand, it need not be deliberated upon.

We can not so understand the language of the charge ; but it is expressly said the jury must find the accused deliberated and premeditated upon it, that is, upon the formed purpose maliciously to kill, before he did the act. This language seems to us to satisfy the statute, ' and it would seem to make no difference whether the deliberation was in forming the' design maliciously to kill, or, in the continuance of such design after being formed, until the same was executed. The statute makes no distinction. The charge in this case is sustained by the case of the State v. Turner, Wright, 30; State v. Gardner, ibid. 399 ; State v. Thompson, ibid. 622.

On the whole, therefore, we are of the opinion the application for a writ of error should be refused.

Application refused.


author: Birchard, Judge.

text:
    * Joel B. Burnet v. the Auditor of Portage County.
    A writ of mandamas will lie against an officer vested with discretionary power who wholly refuses to perform his duty.
    It is, also, an appropriate remedy against an officer who refuses to perform a merely ministerial duty.
    But the writ will not be allowed against a County Auditor who refuses to audit an assistant appraiser’s account, that has not been finally acted upon by the County Commissioners.
    Tbe act allowing a per diem compensation to assessors, (Swan’sStat. 79, sec. II), gives a rule by which the account is to be made up, but does not fix its amount.
    This is an application for a writ of Mandamus to the Auditor of Portage county, to compel him to audit and allow an account against the county of Portage, amounting to $88, for forty four days labor performed as assistant appraiser of real property.
    The relation sets forth sundry presentations of the account to the auditor, and his uniform refusal to audit and allow it. The last presentation was on the 9th day of September, 1841, at which time there was appended to it an affidavit, by the relator, that the account was just, and was still due. At the September term, 1841, of the Supreme court, a rule was entered, requiring the auditor to show cause, if any he had, why a writ of mandamus should not issue against him, to compel him to audit and allow this account.
    The'auditor, in obedience to this rule, answers, setting forth, that his predecessor had audited and settled an account of the relator, for one hundred and forty-three days services as assistant appraiser, amounting to $286. That the present account had also been presented to his predecessor, who deemed it unjust, and referred it to the commissioners of the county. That the aggregate amount of allowances for the appraisal of real property was $650 25. That the commissioners, having ascertained that the sum paid by the county of Trumbull, containing fifteen townships more than the county of Portage, was less than $400, required of the relator, on his presenting *this claim, an account of the whole-number of the days of [55 service, rendered by him, verified by oath, which account, so attested, he has failed to render ; and that the auditor, finding the matter thus in the hands of the commissioners, he considered it improper for him to interfere.
    Lucius V. Bierce, for Burnet.
    If an auditor refuse, in a proper case, to give an order for fees due, he may be compelled by mandamus. Smith v. Commissioners of Portage county, 9 Ohio, 25.
    Otis, for defendant.
    If the relator have any claim against the county he has mistaken his remedy.
    The superintending control over inferior courts, magistrates, corporations, etc., by mandamus, is in subsidium justitice. In the case of the King v. Archbishop of Canterbury, etc. 15 East. 117, Lord Ellenborough said; “ This court, in the exercise of its authority to grant the writ of mandamus, will render it, as far as it can, the suppletory means of substantial justice, in every case where there is no other specific legal remedy for a legal right; ” cited in the ease in the 19 Johns. 484.
    When a party has an adequate remedy by action, by the usual and ordinary proceedings at common- law, a writ of mandamus will never be granted. This is the settled law upon this subject. This was the decision in the case of Ripley v. Mechanic’s Bank, 10 Johns. 484.
    Under this rule, the question then arises, can the relator be aided in the collection of his claim against the county of Portage by a writ of mandamus. The 19th section of the act entitled “ an act to provide for the revaluation of real estate in this State,” provides — “That the appraiser in each county, appointed in conformity with this act, shall receive, for each day he shall be employed in performing the duties thereof required of him, the sum of two dollars, to be paid out of the respective * county treasuries.” Whenever, therefore, the [50 labor was performed by the appraiser, under this act, a debt was created against the county, and the laiv would raise an assumpsit on tbe part of the county commissioners, to pay the same; and his remedy, by action of assumpsit, would be as full and adequate for his redress as though the claim existed against an individual.
    Should the county auditor refuse to audit a just account against the county, such refusal would still leave the party to his remedy, by action against the commissioners, to recover the amount due him on such account.
    But, again, when a discretionary power is vested in officers, and ■they have exercised that discretion, a mandamus, to them, will not be granted. 12 Johns. 414. “ When an officer refuses to act, ‘ the court will interfere by mandamus, so far as to set the jurisdiction of the officer in motion,’ by compelling him (as in this instance) to allow, or disallow, the account, but not, in any manner, to direct or control his discretion.”
    While the compensation for each day’s services is fixed by the legislature, the auditor is still left to the exercise of his discretion, in determining the number of days which the appraiser has actually been employed in the business of his appointment. The testimony offered to establish this fact, he is to act upon, and upon it he is to determine.
    The cause shown by the auditor, for not allowing the claim of the relator, is, that he believed it to be unjust. That it was some two hundred dollars more than was allowed by the auditor of Trumbull county, for a far greater amount of similar services, and that he required of the relator some evidence that his account against the county was just and true ; aud such evidence, too, as it was in the power of the relator to furnish, that is, a bill of his whole services as appraiser, verified by affidavit, or by his own oath ; and upon his refusal to furnish this evidence the auditor refused to allow his account. This is the official delinquency sought to be rectified by the mandamus of'this 57] court. Conduct which can only be regarded as the * prudent exercise of discretion vested in the auditor by the laws of the state.
   Birchard, Judge.

The case of Smith v. The Commissioners of Portage county, 9 Ohio, 25, is cited to show, that if an auditor refuse, in a proper case, to give an order for fees due, he may be compelled to do it by mandamus.

Recognizing that authority in its fullest extent, the question arises, is this a proper case for its exercise ? The duty of the auditor is prescribed by the 12th section of the statute. Swan’s Stat. 109. He is to settle all accounts, debts and demands, justly chargeable against the county, and which are not directed by law to be settled and allowed by some other person or tribunal, etc.; “ and for all demands against the county, the amount of which is fixed by law, he shall issue orders on the treasury of the county.” If the amount of this account is fixed by law, and within the meaning of the act, the writ prayed for should be allowed ; for, in that case, the duty to be performed would be merely ministerial, and a writ of mandamus would be a proper remedy. So, if vested with a discretion, the .officer should refuse to act. In this case, however, the auditor has acted by rejecting the account. The proper remedy, if the account be just, and the auditor authorized to audit it, is an action of assumpsit against the county. It can not be contended that the amount of the account is fixed by law, for the law only professes to fix the per diem at $2. This is but a rule for fixing the amount of the account; and whether it should be $84, or a less sum, depends entirely upon the amount of services performed.

The case, upon paper, shows a difference of opinion between the authorities of the county and the relator, respecting the amount of services rendered.

It is a question upon which the county has a right to be heard before a jury of the country. That right would be sacrificed by proceeding in this summary manner, were there no other obstacle in the way. But there is another objection. The eighth section of the act entitled “ an act for the election of county assessors,” (Swan’s [58 Stat, 78, sec. 8,) makes it the duty of each assessor, and deputy assessor, at the end of each week in which he shall have been engaged in the performance of his duty, to enter an account, in writing, of the number of days, or parts of .days, Iiq may have been engaged during the week, and at some stated meeting of the commissioners to present such original account to them; to testify, under oath, to the accuracy of the' account, and to answer such questions respecting the same as they may put to him. The auditor’s answer shows that the relator has totally neglected to comply with this part of his duty; and the relator is silent upon the subject. The amendatory act (Swan’s Stat. 79, sec. 11,) allows the $2 per day to the assessor and deputy only for each day that the county commissioners shall be satisfied “ they were employed in the discharge of the duties required of them by law.”

These statutes show that this proceeding was instituted under a misapprehension of the duties of the county auditor. The account must be acted upon by the commissioners of the county, and they must be satisfied of the performance of the service, before the auditor can legally issue any order upon the treasury. The case made, as we understand the law, would not sustain an action against the county. Much less this proceeding.

The board of commissioners must first act in the matter: That is the tribunal which the law has provided for settling the question; and when adjudicated there, the decision will be final, unless vacated by an appeal to the court of Common Pleas, as provided for in Swan’s Stat. 207, see. 16.

In this ease the writ can not be allowed.

Judgment accordingly.


author: * Read, Judge.

text:
    *The State of Ohio, for the use of Nathaniel Haines v. Charles F. Alden’s Securities.
    Where a sheriff absconds with money in his possession, collected on execution, having previously made a tender to the party entitled, who refused to receive it, such tender and refusal is no defence to the sheriff’s securities in a suit upon his official bond.
    This was a motion for a new trial from Morgan county.
    Suit was brought upon the official bond of Charles F. Alden, sheriff of Morgan county, to recover money collected by him on execution in favor of Nathaniel Haines. Process was served upon the securities alone, being returned, “ not found,” as to Alden.
    To the plea of non est factum, was appended a notice, “ that the defendants will give in evidence, and insist, that before the commencement of this suit, to wit: on the 1st day of January, 1841, at said county, the said C. F. Alden tendered, and offered to pay to the said' Haines, the said sum of money to which he, the said Haines, was entitled, under the proceedings set forth in the declaration, which the said Haines, then and there, refused to receive, but left the same voluntarily in the hands of said Alden, as his bailee ; and that after-wards, to wit: on the 1st day of April, 1841, the said Alden absconded, without the privity, knowledge or consent of the defendants.”
    A trial being had, and verdict, under the direction of the court, for the plaintiff, the defendants moved for a new trial, “ for the reason that the court erred in charging the jury that if it were found that Alden tendered to Haines the amount to which he was entitled under the proceedings mentioned in the declaration, and Haines refused to receive it, such facts would not constitute any defence to the present action.”-
    Goddard and Converse, in support of the motion.
    It is well settled that any thing done by the creditor, prejudicial to the sureties, discharges them from further liabilty. * Why will [60 not this rule discharge the sureties in the present case ? The sheriff offers the money to the'ereditor — the full amount due, as assumed by the court in their charge to the jury — and without any cause or reason, the creditor refuses; shall he now be permitted to call upon the securities for it ? It seems to us that it will be laying down a harsher rule than the law, in most other eases, enforces against a security, who takes no benefit from the contract, and whose liability is, stricti juris, to hold him liable, when the loss of the money arose from the unreasonable refusal of the creditor to receive it.
    The relation of creditor and surety is different from that which subsists between the creditor and principal. The law exacts of the creditor, in many cases, in favor of the sureties, what, as between debtor and creditor, it never demands. That Alden, himself, remains liable, notwithstanding the demand and refusal, may be admitted. But so, in most other cases, does the principal remain liable, after the discharge of the surety, where that discharge occurs without actual payment. The good sense and reason of most of the cases discharging sureties, (except that class of cases where time is given to the principal,) is, that it is inequitable, when the principal has put the means of payment within the creditor’s reach, to permit the creditor to part with those means, to the injury of the sureties. And surely the same reason requires that the same consequence should follow where the full amount due has been tendered — been virtually put into the hands of the creditor, and by him returned to the principal.
    We rely upon the following authorities : Commonwealth v. Vanderslie, 8 Serg. and Rawle, 452; in which the court lay down the general principle, “ that when the creditor. has the means of satisfaction in his hands, and does not choose to retain it, but suffers it to pass into the hand's of the principal, the surety is discharged.” And to the same effect are, Baker v. Briggs, 8 Pick. 122, and Lichtenthaler v. Thompson, 13 Serg. and Rawle, 157.
    In the case of Trustees etc., v. Miller, 3 Ohio, 264, this court described the principle that, “ the surety is not bound * where the [61 plaintiff, by his own act, prevents the principal from performing his contract.”
    See, also, Dixon v. Ewing, 3 Ohio, 280; and Capel v. Bullen, 2 Sim. and Stu. 457, S. C. 1 Eng. Cond. Ch. 543.
    The case of McCollum v. Hinckley et al. 9 Vermont 143, is a yet stronger case than' any we have cited. It was there held, that if the creditor, by mere negligence, fail to present his claim to the commissioners of a decedent’s estate, within the time limited, so that he loses his remedy against the estate, he can not afterwards recover of the surety. I this case, the creditor merely neglected to present his claim. He was passive only. He did not even refuse to present the claim ; for he was not requested to present it.
    Yet the Chancellor says : “ We think sound policy would require that the surety should be discharged, to the amount that might have been realized out of the principal,” by presenting the claim. So, in the ease before the court, the sureties ought to be discharged for the whole amount. The plaintiff was more than passive. He was active in presenting the extinguishment of the sureties’ liabilities. He expressly refused the payment, although requested to receive it.
    Isaac Parish, for the plaintiff.
    Against this motion it is argued that, to discharge a security there must be some agreement by which the injured party’s right to prosecute or enforce the fulfillment of the contract is suspended.
    This rule is the same at law and equity. Reynolds v. Ward, 5 Wendall, 501; Note to 15 Johns. 436 ; and King v. Baldwin, 2 Johns. ch. 554, 559.
    Tender is not payment. It does not discharge or suspend the right of action. The party may demand, personally, or by action, the next hour, and prosecute to satisfaction.
    Delay does not discharge. 8 Pick. 156 ; 9 Cowen, 693 ; 1() Wend. 162 ; 8 Wend. 194; 2 Kinne’s Law. Comp. title, Security ; 15 Johns. 433.
   * Read, Judge.

The only question is, will proof of tender by a sheriff, and refusal to accept by the person entitled, discharge his securities, if he afterwards abscond with the money ?

The condition of a sheriff’s bond is for the faithful discharge of duties. It is urged by counsel that if tender and refusal will not relieve his securities, it is the application of a harder rule than exists in ordinary suretyships. The principle of discharge, arising from an act done by the creditor, prejudicial to the surety, does not apply. An ordinary suretyship is a mere contingent obligation, for the payment of money, in default of the principal. The securities upon an official bond guaranty the faithful performance of official duty. The payment of money, and other acts done by the creditor, injurious to the surety, may discharge the one, but the faithful and honest performance of official duty alone can fulfill the condition of the other. The fact of tender and refusal does not convert the official trust into a mere private liability for a money demand. The obligation' to pay over money received by a sheriff in his official capacity, continues an official duty until performed by payment to the party entitled. As long, then, as the obligation to pay continues an official duty, so long were the securities responsible for its violation, upon their bond. Equities never blossom upon corruption. And no such considerations arise in favor of securities for official fidelity, to avoid the letter of their bond and discharge them from their responsibility for the act of official turpitude, upon the ground that the injured person might, by care and diligence, have withdrawn himself beyond the power of being harmed by the official delinquent, The officer must, at all times, and to every intent, perform his whole duty; and this is the undertaking of his securities. They can find no excuse in the fact that the injured individuals have not been cautious to fortify themselves against official misconduct. Their undertaking is, that there shall be no such thing as official misconduct. Upon this the community have the right to repose.

Motion overruled, and judgment upon the verdict.


text:
    * Clement A. Buckley and others v. Andrew Gilmore and Jared Hopkins.
    When an entry calls for 1000 acres on the lower site of Brush creek, “ beginning at a marked cherry tree, supposed about ten miles above Todd's road, running thence west 400 poles, and from each end of this line for quantity,” the distance is understood to be in a direct line, and not by the meanders of the creek, it being a small stream, and the usual line of travel not upon its banks.
    If the marked tree be notorious, so as to be easily found by a surveyor with reasonable diligence, the entry will not be invalid, although its distance from Todd’s road exceeds that called for.

      The apparent intention of the locator is to be regarded; and if the lower side of a creek be called for, not as a boundary, but as designating the position of the starting corner, lands on both sides of the creek may be included, if they come within the descriptive boundaries.
    This is a Bill in Chancery, to review a decree of the Supreme court, on the Circuit in Highland county.
    The original bill was filed by Gilmore and Hopkins, stating that, on the 17th of August, 1787, Josiah Tannehill entered 1333J acres, No. 1326, on the waters of the east fork of Brush creek, “ beginning, for said entry, at the south-west corner to Thomas Jones, and others’ survey, No. 1269, running thence west, 400 poles, and from the termination of this line, and from the beginning with Jones and others’ line, north, for quantity.” On the 15th October, 1790, Tannehill’s entry was surveyed, duly returned and recorded, and a patent issued thereon, on the 23d day of February, 1818, to Thomas. Morgan, assignee, under whom Gilmore and Hopkins now claim.
    That, on the 20th day of February, 1797, John Clemson entered 1433J acres, No. 2771, which was surveyed the sixth of March, in the same year, and patented on the 12th day of May, 1800, to the assignee of Clemson, one Daniel Buckley, under whom Clement A. Buckley, and the other complainants in review, claim.
    The bill charges, that Clemson’s entry, and survey, were fraudulently made, so as to interfere with Tannehill’s ; Clemson having knowledge of Tannehill’s prior entry.
    * That the patent having first issued upon Clemson’s entry, No. 2771, Buckleys have brought an action of ejectment against those holding under Tannehill’s entry, and have recovered, upon the strength of their elder patent. The bill charged, that this recovery was contrary to equity, and claimed relief agaimt it, praying that Buckleys might be compelled to convey to complainants so much of the land covered by their patent as falls within Tannehill’s entry, and for general relief.
    In the answer to this bill, all fraud was denied. The validity of Clemson’s entry was insisted upon, and it was claimed that Tannehill’s entry was invalid, as it called for and depended upon that of Jones and others, No. 1269, which was vague, uncertain, and not sufficient as a locative call. The cause was put at issue, and a decree entered in the Supreme court, in favor of Gilmore and Hopkins, the complainants in the original bill.
    To review this decree the present bill is filed.-

      The main question raised, is as to the validity of the entry, No. 1269, by Jones and others. If this entry be sustained, it was conceded that the case is with the defendants to the bill of review.
    The entry was as follows:
    “ August 16, 1787. No. 1269. Thomas Jones, Laughlin McLain, Michael Kairns, and Samuel McCaul, enter 1000 acres of land, etc., on the lower side of Brush creek, beginning at a cherry tree marked T, supposed about ten miles above Todd’s road, running thence west, 400 poles, and from each end of this line, north, for quantity.”
    The notoriety of Brush creek, and of Todd’s road, is admitted, and it is agreed that the latter crossed the former at the place indicated by .the surveyor. The sufficiency of Jones and others’ general, or neighborhood call, is, therefore not questioned.
    The relative position of the surveys, their interference, and the distances, are designated on the draught.
    * The substance of the testimony was as follows :
    Zephania Wade stated, that he has resided in Manchester, Adams county, Ohio, since 1790. From 1790 to 1794 he was almost constantly engaged as marker for locators of land, particularly on the waters of Brush Creek. In October, 1793, he was out in capacity of marker, when Jones and others’ entry, No. 1269, was surveyed. When in pursuit of the beginning corner of that entry they found the cherry tree, called for on the lower, or west side of Brush Creek, without any difficulty. This witness, by direction of surveyor, marked the said cherry tree, together with a white oak and buckeye, standing immediately on the lower or west bank of Brush Croek, as a corner, and then ran round and marked the whole tract No. 1269 Cherry tree marked T, when said entry was surveyed, was very visibly cut, so that any one who could see the tree could also see the letter ; and the letter bore the appearance of having been made several years before the date of survey. As early as the spring of 1791 he became well acquainted with Brush Creek, and its branches, all known then by names they now bear. That branch of the creek called East Fork has borne that name since 1791 ; and being much the longest and largest of the forks of said creek, has always been considered as the main source of the creek. It has also been called and known as Brush Creek, and main East Fork. Since 1791, any one receiving directions to meander Brush Creek to its source, would have passed up that fork called East Fork. Any one wishing to find the beginning corner of Jones and others’ entry, No.-1269, with a copy of the entry in his hands, could not fail to find the cherry tree marked T, for the tree was situated immediately on the lower, or west bank of the creek, and the letter T was cut upon the tree, and was exactly opposite to any person going up on that side of the creek, so that he could not miss it with his eyes open. The letter was large, and plain to be seen. In 1790, and for several years afterwards, Manchester was the nearest settlement to entry No. 1269; and the waters of Brush Creek wore well known in said settlement by their present names as early as 1791, 66] except Elk Run, which *did not obtain much notoriety until 1793, when it was as well known as the others. There are three well known points on Todd’s road, which are about ten or twelve miles from and below the corner of Jones’ entry, No. 1269 : the Painted Trees, Hanging Rock, and Coffin Spring. I knew of no cross traces from Todd’s road to Brush Creek, north of where that trace crosses Brush Creek, at or before October, 1793. When going to make Jones and others’ survey, we started from Manchester; commenced making surveys at mouth of Beasley’s Fork, and made several surveys ; were out twenty-two days. On our return, started from the three forks of Brush creek, and struck Todd’s road about one mile north of where it crosses Brush creek. Had I started from Manchester to find a marked tree about ten miles above Todd’s road, the surest way would be to strike the creek where the road crossed, and follow it up ; and,'it is more than likely, I should have kept on the lower side of the creek.
    George Yinsonhaler stated that he lives, and has lived, in the neighborhood of the lands in controversy for the last twenty-six years ; was well acquainted with Jones and others’ and Tannehill’s surveys. At least twenty-five years ago saw corner of Jones’ entry, No. 1269, on the lower bank of Brush creek; at this corner was a tolerably large cherry tree, with a large letter T cut upon it. The marks on the corner trees appeared as old as any marks at that early day. Todd’s road crosses Brush creek about a half mile below where G. Sample now lives. Distance from corner of Jones and others’ entry, down the creek, to Todd’s road, is ten miles, on a straight line. Last time I saw cherry tree marked T, corner of entry No. 1269, was about twenty-two years'ago.
    George Collings, for complainant in review.
    The first objection to the entry of Jones and others, and which must be fatal, is the great disparity of the actual distance from Todd’s road and the distance called for. Grubb v. Rice, 2 Bibb, 108, 109 ; Hill v. Graham, 2 Bibb, 141. This * disparity is not removed by [67 the notoriety of ths cherry tree, for notoriety it had none.
    The term “ about ” does not cure the defect, for the same qualification is found in both the above eases, and it was held of no significance. And if the entry of Jones shall be sustained, I do not perceive what limit is to be set to distances. About ten miles may be construed two miles or twenty miles. Such calls are calculated to bewilder and mislead.
    In Haws v. Marshall, 2 Marshall, 415, Haws had entered 5000 acres, etc., “ beginning at a large ash tree, marked J C, standing on the Buffalo road leading from Grant’s Station to the lower Blue Licks, about five or six miles from the Licks, thence,” etc. This entry was surveyed, beginning at a large ash, marked J C, eight and three quarter miles from the Licks, on a direct course, and ten miles, forty-three poles, by the windings of the road. Per Curiam: “ The Blue Licks, Grant’s Station, and the Buffalo road passing from the one to the other, are proved to have been generally known at the date of the entry ; so that, in deciding upon the validity of this entry, it is material, barely to inquire what effect is produced upon it by the marked tree standing at a distance of upwards of ten miles from the Licks, instead of five or six.

      “ Assuming the tree not to have obtained notoriety, and the distance at which it stood from the Licks not to have been generally computed to be five or six miles, at the date of the entry, the mistake in the description of distance would, most clearly, be fatal to its validity; for, although a mistake in description, or a defective description, may be aided by the notoriety of the object called for, in the absence of proof of notoriety, an entry defective in description can not furnish information sufficiently certain, to others, of the land intended to be located, so as to be deemed a valid appropriation.”
    I rely, with no less confidence, on the second point; that Jones and others’ entry, as now located, is noton the lower side of Brush creek, but on either side of a fork, extending across the fork at and from the beginning. The entry is, therefore, defective.
    *Nash v. Atherton, 10 Ohio, 163. Locators are bound to [68 give a true description of the land intended to be appropriated; and whether a misdescription has occurred from mistake, arising from a Want of due diligence in ascertaining the true boundaries, or, from intention to cover other land than is described, it is equally fatal.
    “ It is not sufficient that we should now, from our own knowledge of tilings as they are, ascertain the intention of the locator. That there were such objects is not alone sufficient to the validity of an entry. A reasonable connection of the objects, and the certain moans of finding them, must be given to the entry.” Brown v. Forbes, 3 Bibb, 124.
    This want of correspondence, between the call of the entry and the land now claimed, seems to me fatal to Jones’ entry. Bodley et al. v. Taylor, 2 U. S. Cond. 230, maintains the rule of boundary I contend for; so, also, Hunter v. Hall, 1 Call, 206 ; and Blaine v. Thompson, 3 Bibb, 142, is full to the point, that Jones and others were confined to the lower side of the creek, and were bound, by their calls, to run west and north.
    There is a third objection, which I regard of much weight, but do not rely upon it with such full confidence as upon the other points, viz : the entry is made on Brush creek. The location, as now claimed, is on the east fork of Brush creek.
    Thomas Scott, for defendants in review.
    The positions of complainants counsel will be examined in the order of time in which they are stated, but, in order that my answers to them may b.e the more readily understood by the court, I shall first refer to a few general rules by which the validity of the entry in question must be tested. In the case of Massie and Watt, 6 Cranch, 170, it was decided by the Supreme court of the United States, that if an entry, by any reasonable construction, can be sustained, the court ought, and will sustain it. A locator is not bound to give the best 69] possible * description. If the description he gives is not calculated to mislead the subsequent locator, but is certain to a common intent, and will lead others, using reasonable diligence, to the place intended, the entry is sufficient, and will be sustained. Johnson v. Nall, Kentucky printed decisions, 393 ; Roberts v. Huff, Hard. 382 ; Bush et al. v. Todd, 1 Bibb, 64, 65 ; Whitaker v. Hall, 1 Bibb, 73, 74 ; and Hite v. Graham et al. 2 Bibb, 144. Description is general or locative. General, serves to lead into the neighborhood; locative, to the very object, or tract of land intended to be surveyed. Bush v. Todd, 1 Bibb, 64; Swearingen v. Smith, 1 Bibb, 92, 93; Davis v. Bryant, 2 Bibb 112; Shannon v. Buford, Ibid. 117: Marshall v. Dupay, 3 Bibb, 133; and Feyer v. Holden, Ibid. 136. General description is not permitted to control such as are locative. Bush v. Todd, 1 Bibb. 67 ; Davis v. Bryant, 2 Bibb, 112 ; Shannon v. Buford, Ibid. 117. In construing an entry, it ought to be viewed in all its parts, as one entire instrument, and thereby give to each expression its proper bearing, and t.o each word some operation. McKay v. Bodley, 2 Bibb, 481, 482; Buckner v. Frazier, Ibid. 138; Hite v. Graham, Ibid. 147; Baker v. Hardin, 3 Bibb. 415.
    When one object of the character called for is shown, that shall be taken as the one intended, if no other of like kind or character is proved. McKay v. Bodley, 2 Bibb, 481, 482; Buckner v. Frazier, Ibid. 138 ; and Hite v. Graham, Ibid. 147,
    A mistake, or defeet, in one part of the description of an entry may be corrected, or supplied, by accuracy of description or notoriety of objects employed in another part. Speed v. Wilson, Kentucky printed decisions, 92; Taylor v. Kincaid, Hard. 82; Barker’s heirs v. Craig, Ibid. 112; Respass and Arnold v. Melton, Ibid. 113; Couchman v. Thomas, Ibid. 275 ; Markham v. McKee, Ibid. 371 ; Lee v, Watts, Ibid. 450; Craig v. Macker, 1 Bibb, 11, 12 : Evan’s Heirs v. Morrison’s Executors, Ibid. 5, 8; Swearingen v. Smith, Ibid. 92 ; Smith v. Harrow, Ibid. 102, 104; and Blaine v. Thompson, 3 Bibb, 143.
    Distance, on a water course, to ascertain the beginning, etc., shall be taken on it reduced to a straight line, and not by the * meanders. [70 Johnson v. Brown and Brackenridge, Kentucky printed decisions, 02 ; Craig v. Hawkin’s Heirs, 1 Bibb, 53; Green v. Watson, 1 Bibb 107, 108 ; Calk and Wear v. Stribling, Ibid. 123; Webb v. Buford, 2 Bibb, 259; Greenup v. Lynes’ Heirs, 2 Bibb, 371 ; Mercer v. Irvin, Ibid. 478; Smith v. Watson, 3 Bibb, 153 ; Carland v. Rowland, Ibid. 127, Stephens v. Hedden, 4 Bibb, 108; and Morrison’s v. Craighill’s Heirs 4 Bibb, 380.
    No entry can answer as notice to others, which is destitute of reference to some certain object of general notoriety, and a direction which can be pui’sued from thence to the beginning. Key v. Matson, Hard. 70, 73 ; Moore v. Whitledge, Hard. 90 ; Crow’s Heirs v. Hardin’s Heir, Ibid. 493 ; Ward and Kenton v. Lee, assignee of Young, 1 Bibb 28 ; Hogland v. Shepherd, Ibid 122 ; Vance v. Marshall, 3 Bibb, 148; Hardin v. Hargus, Ibid. 164; Harrison v. Johnson, Ibid. 165 : Fowler v. Halbert, 3 Bibb, 359.
    By these rules, in part, and others to which we shall presently refer, Jones and others’ entry, on which the entry of Tannehill, in question, must be tested, depends.
    The expressions, “ supposed to be about ten miles above Todd’s road,” are. mere words of general description, intended to lead the subsequent locator into the neighborhood in which the land covered by Jones and others’ entry lay, and can not control the locative calls of the entry.

      We have shown that distances of objects, called for on water courses, are to be ascertained by a direct line extended from the object of notoriety to the beginning, and not by the meanders. In Johnson et al. v. Brown and Brackenridge, Kentucky printed decisions 62, the court of Appeals in Kentucky say : “ It is conceived, that in determining distances by land, to follow the meanders of water courses is too rare and ridiculous to authorize a general rule for the construction of entries; so that, in all cases where it is not otherwise expressed or implied in the entries, there can be no rational alternative, but to presume that, either a direct course, or the nearest possible route, was intended.” 71] The only exceptions to this general rule, namely, * “ that distances, on a water course, etc., must be taken on it reduced to a straight line,” are the following:
    First: Distances, between two intermediate objects called for on a road, shall be measured by the meanders, as in the case of Preeble and Vanhoover, 2 Bibb, 120.
    The second exception to the general rule, is that laid down in Hite v. Graham and Grayson, 2 Bibb, 143, cited and relied on by the complainant’s counsel. Powell’s entry, in that case, was for 2000 acres, on Harrod’s Salt Lick creek, running into the Ohio, about sixteen miles above the Scioto river. The court decided that, as the usual way of travel from one object to another, on the Ohio, was along the meanders, the distances between the objects called for ought to be ascertained by measuring the meanders of the river, because it was reasonable to presume that the locator, in calling for a distance on that stream, which was impassable by a company of surveyors, did not intend a direct line, but the usual way of travel, and, consequently, that the calls of the entry negatived the idea of a direct line being intended.
    The third and last exception to the general rule I have laid down, is that laid down in the case of Bowman v. Melton, 2 Bibb, 155. In that case it was decided, that the distance called for between two objects on a small stream were not to be ascertained, either by a right line or the meanders, but by the reputed distance, because it was to be presumed, from the language used in the entry, that the reputed distance was contemptated by the locator, when he made his entry. The intention of the locator is to govern. The general rule, 'above referred to, must, therefore, govern, and the beginning of Jones and others’ entry be sought, not by the meanders of Brush creek, but by a direct line.

      The distance from the termination of a right line of ten miles, in the creek, (from the point where Todd’s road crossed the creek), to the cherry tree called for, is not an unreasonable distance within which to require the subsequent locator ,to search. Henderson’s Lessee v. Long, 1 Cooke’s Tenn. 128 ; Simm’s Lessee v. Dickson, 1 Cooke’s Tenn. 137.
    *In the case of Taylor v. Kincaid et al, Hard, 82, the entry, on [72 which the entry then in question depended, called to lie on the head of Willis Lee’s branch, four miles from Leesburg,” etc. The distance from Leesburg to the head of Willis Lee’s branch, called for in the entry, instead of being four miles, as called for, was actually eleven miles ; so that the subsequent locator had to search for the beginning seven miles beyond the actual distance called for. The entry was sustained. Numerous other eases, in support of the principles recognized in these cases, might be cited, but let these suffice.
    There is a marked difference between the case relied on by the complainant’s counsel, of Haws v. Marshall, 2 Marshall, 415, and the ease at bar. In that ease the court applied the rule laid down in Preeble v. Vanhoover, 2 Bibb, 120, that distances between objects called for on a road shall be measured by the meanders ; but this case falls precisely within the general rule stated above, namely, that distances on a water course are to be ascertained by a direct line, and not by the meanders of the stream called for.
    As to the second exception, it is, “ that the location, as now claimed, extends the entry across the stream, and throws a large portion, about one half, of the land on the upper side.”
    In the construction of entries, the same rules are applied as in the construction of deeds. It is a maxim of the highest antiquity in the law, that all deeds shall be construed favorably, and as near the apparent intention of the parties as possible, consistent with the rules of law.
    In fixing the construction, the primary object will be to ascertain from the entry itself, the main intention, of the locator. Was it the locator’s main intention to appropriate no land but what lay on the west side of Brush creek ? In other words, was it his intention to make the creek, on its west side, one of the boundaries of his entry ? If such was his intention, he has omitted, in the description giving or describing the boundaries of his entry, to insert a single word indicative of such an intention.
    * May we not, therefore, safely infer that the locator intended to [73 appropriate the identical lands embraced within the specific calls of his entry, as well those lands which lay on the east, as those which lay on the west side of the creek. There was nothing in the law which prohibited him from extending the entry across that creek. The call to lie on the west side of the creek can not, control the specific boundaries called for in the entry. The main intention of the locator was to extend, from his beginning, west, 400 poles, thence, and from the beginning, north, for quantity; and, as subsidiary to that main intention, his entry called to lie on the lower side of Brush creek ; and the question is, which must govern ? the main, or the subsidiary ?
    Wherever an entry, by any reasonable construction, can be sustained, the court will sustain it.
    The case of Calk and Wear v. Stribling, 1 Bibb, 122, 124, cited and relied on by the learned counsel on the other side, fully sustains Jones and others’ entry, for all the land embraced within its specific calls, lying west of Brush creek; and as Tannehill’s entry, under which the defendants in review claim, adjoins the west end or side of Jones and others’ entry, it results, that Tannehill’s entry is good, and that there is no error in the decree complained of.
    It is conceded, that where an entry calls to lie on the east or west side of a road, a river, or the claim of another person, and there are no other calls in the entry, to control the location, or specific boundaries, the entry must be construed to lie on the east or west side of the road, river, etc., called for, as the case may be. But where specific boundaries are also given, those boundaries must not be departed from, even if a portion of the entry should be thereby thrown across the road, etc., because a specific call in an entry, as for course and distance, can not be made to yield to an indefinite call for the east or west side of a road, etc., as the case may be.
    The third, and last objection, to wit: that the entry is made on Brush creek, and the location now claimed to be established, is on the 74] East Fork of Brush creek, I do not deem of any ^moment. Upon this point, the court are referred to the testimony, and the surveyor’s return; which, if I rightly remember them, places Tannehill’s entry, so far as respects this objection, beyond a reasonable doubt. At the date of Jones and others’ entry, the stream now called the East Fork was. by many, called Brush creek.
    W. Scott, also, submitted an argument on the same side, citing the following authorities :

      Shannon v. Buford, 2 Bibb, 114 , McKee v. Bodley, 2 Bibb, 481 ; 3 Bibb, 380 ; Taylor v. Kincaid and others, Hard. 83 ; 3 Marshall, 598 ; Stephens v. Heddon, 4 Bibb, 108 ; Morrison v. Cornell, 4 Bibb, 380 ; Smith v. Walton, 3 Bibb, 23 ; Carlan v Rowland, 3 Bibb, 127.
   Birchard, Judge.

This bill raises the question, whether Tannehill’s entry, No. 1326, was too vague and uncertain to appropriate the land claimed by respondents. This supposed vagueness arises from alleged defects in the entry of Thos. Jones and others, No. 1269, on which entry No. 1326, depends. Entry No. 1269, bears date Aug. 16, 1787. Tannehill’s entry, No. 1326, bears date Aug. 17, 1787 ; and Clemson’s entry. No. 2771, under which complainants claim, covers 419|- acres of the land embraced by entry No. 1326, and bears date Feb. 27, 1797. Upon the simple question of priority, the respondents have the preference, and the elder patent upon the junior entry, would be forced to yield to the elder entry, to the extent of the conflict between the two.

Entry No. 1269, is in these words; “Thos. Jones, etc., enter 1000 acres on,” etc., “ on the lower side of Brush creek, beginning at a cherry tree, marked T, supposed about ten miles above Todd’s road, running thence west 400 poles, and, from each end of this line, north, for quantity.” On the circuit, and upon trial of the original cause, it seems the Judges who tried it were, upon a careful consideration of the testimony, satisfied that the starting point for Jones’ entry, to wit., the c-herry tree, was sufficiently identified as a localive call, and that the general * call was an object of such notoriety, and suffi- [75 ciently accurate, to enable any subsequent locator, exercising proper diligence and caution, to find the entry, and avoid an interference.

Upon review we should, as a rule of practice, treat such finding, upon the facts, with not less respect than we would the finding of a jury, upon a matter of fact fairly submitted to them; and we would not reverse that finding, upon a mere difference of opinion as to the weight of the evidence. If the party thought the facts of the case wrongly determined, he should have asked a rehearing, rather than pursue a bill in the nature of a writ of error. But, with the finding of the facts in this ease, we are not dissatisfied. The proof seems to sustain it. The cherry tree, standing on the lower side of Brush creek, distinctly marked so as to be seen at some distance by a person passing up that side of the creek, is established by the testimony. Brush creek, and the crossing of Todd’s road, were objects of notoriety at the date of the entry. This crossing is found, by actual survey, to be thirteen miles and ten poles, in a right line, from the marked eherry tree. Following the meanderings of the stream the distance is still greater, as is shown by the survey. It is urged, that this disparity is so great as to render the entry invalid. In determining whether this position is well taken, let us consider, first, what a subsequent locator would have understood from the descriptive words of this general call, “ supposed to be about ten miles above Todd’s road.” In the first place the distance would not be understood to have been precisely ascertained. The language used would warrant no such inference. “ Supposed ” indicates, very clearly, that the distance was put down, not from actual measurement, but as a matter of opinion, either of the locator, or those who were possessed of some general knowledge of distances in that part of the forest. Again, would he have been misled by the greater distance, as found by meandering the stream ? Undoubtedly this would have been the case if Brush creek had been a large stream, and the usual route of travel were upon its 76] banks ; for, in that case, the subsequent * locator would have so understood the distance to have been estimated. The stream, however, is small and fordable, and irregular in its course, and its banks were not the route traveled; hence the subsequent locator would, necessarily, have understood the distance given, to be a supposed distance of about ten miles, by a direct line, from Todd’s road to the cherry tree, called for as Jones’ first corner. The tree being, then, an object of notoriety, marked, and standing on the west bank of the creek, reasonable diligence and care would have enabled Clemson, in 1797, after the entry was surveyed, to discover the 1000 acre tract. The ten miles would have brought him into the neighborhood. About ten miles, which, as distances are usually estimated ia the woods, may mean twelve or more, would have brought him on to the stream at a point where, if he followed the right bank upward, he could not have gone far enough to include the area required to fill his warrants, without, necessarily, coming upon the marked cherry, which was well known to other locators at that time.

In Johnson v. Pannel’s heirs, 2 Wheaton, 206, it is held “that entries, made in a wilderness, most generally refer to some prominent and notorious natural object, which may direct the attention to the neighborhood in which the land is placed, and then to some particular object exactly describing it. The first of these is denominated the general or descriptive call, and the last the particular or locative call of the entry. Reasonable certainty is required in both; if the descriptive call will not inform a subsequent locator in what neighborhood he is to search for the land, the entry is defective unless the particular object is one of sufficient notoriety. If, after having reached the neighborhood, the locative object can not be found within the limits of the descriptive calls, the entry is also defective. A single call may, at the same time, be of such a nature as to constitute, within itself, both a call of description and location.”

Subsequent locators are bound to use care. If they overlook an elder entry it is their own fault, provided the calls of that entry be such that, with reasonable care, they might have * identified the [77 land appropriated. There seems, from the testimony, to have been no difficulty on this point.

In the case of Garnet and others v. Jenkins and others, 8 Peter, 75, the court remark : “ Some of the witnesses say that, being at Bryant’s Station, with the calls of Garnet’s entry to direct them, they could have found his land on Lecompt’s Run without difficulty. If this were correct, the entry must be sustained, for it is the test by which a valid entry is known.” Now, it is stated by Wade, in the ease at bar, that “ any one wishing to find the beginning corner' of Jones and others’ entry, with a copy of the entry in his hands, could not fail to find the cherry tree, marked T, called for as the beginning corner.” It is stated by this witness, who was present when Jones’entry was surveyed, in 1793, four years before Olemson’s entry, that no difficulty was experienced in finding the chérry tree called for ; and it would appear from his testimony, and that of Yincenhaler, that this tree was notorious, and the locators of that period well acquainted with its position.

A second objection is, that the location, as now claimed, embraces land on both sides of the stream.

If this was the manifest intention of Jones, the objection is not a serious one. What his intention was, is to be gathered from the entry, which should be favorably construed. We must take into consideration the whole entry, and thus gather the intention. The description given, is: “ Beginning at the cherry tree, marked T, (which stands on the lower side of Brush creek,) running thence west 400 poles, and from each end of this line, north, for quantity.” Would a surveyor meet with difficulty in running this tract of land? The base line is given. It is a line 400 poles in length, drawn west from the cherry tree. The side lines are each 400 poles, to be drawn at right angles, on the extremities of the base ; and a line, parallel to the base, drawn to intersect the side lines at their northern extremities, closes the survey. Where is then the difficulty, admitting that Brush creek divides the tract ? It was a stream that afforded no obstacle to the survey of this, or of any adjacent entry. Its banks are not the boundaries of 7§] any of the then unascertained Clines. It is called for or needed, only, to determine the starting point. But preceding this specific description, are the words: “Jones, etc., enter 1000 acres on the lower side of Brush creek.” Hence the claim, that the entire tract must be found on that side of the creek. Were the stream navigable, and the descriptive calls of the entry less certain, the discrepancy might create a serious difficulty. Yet, take the whole entry together, and apply to it the facts of the case, and the intent of the party could be gathered with certainty,by regarding attentively the specific boundaries. The general call for the lower side of the creek must yield to them.

In Massie v. Watts, 6 Cranch, 148, it was hold, that if a location have certain material calls sufficient to support it and to describe the land, other calls less material, and incompatible with the essential calls of the entry, may be discarded. The rectangular figure is to be preserved, if possible. Yet, if this were not so, the entry would be good for all that portion of Jones’ survey lying west of the creek, and that is all that is necessary to fix the starting point of Tannehill’s entry.

The remaining objection, is, that the entry of Jones is on Brush creek; whereas the actual location is on the East Fork of Brush creek. The question upon this poiut is, not which branch is the main stream ; not which is the largest or longest, nor what is the name they now bear; but, simply, what stream at the time was known as Brush creek? The proof tends to show, that what is now called the East Fork was, in 1787, supposed and reputed to be the main branch of the stream, and was so considered, in 1797, when John Clemson made his entry. It was so found upon the circuit. With that finding we are satisfied.

Bill dismissed.


author: Lane, C. J.

text:
    * The Lessee of Joseph Canby v. Robert Porter.
    The freehold-of an husband in his wife’s lands may be sold on execution.
    This is an Action of Ejectment upon an agreed state of facts,, from Warren county.
    The defendant is in possession of the premises by virtue of a deed, made since his marriage, and conveying to his wife, Thalia, an estate in fee.
    The plaintiff makes title by a regular sheriff’s sale, of the same lands, under a judgment rendered against Robert Porter. If Porter, holding the land in right of his wife, and after issue born, has an estate capable of being passed by a sale under execution, the plaintiff may recover.
    J. Wilton Williams, for plaintiff.
    The defendant was tenant by the curtesy, in right of his wife, Thalia Porter, of the real estate in controversy; and his interest therein as such tenant, was sold under execution at law, to satisfy a judgment against the defendant, in favor of the plaintiff’s lessor, who became the purchaser of the premises.
    The plaintiff contends that the estate was a legal one; that the defendant himself could have sold it; and that his vendee could have obtained possession thereof by ejectment. Well, if this is the fact, can not this same legal estate be reached by execution at law, and sold ; and will not the purchaser at such sale be invested with the same rights and remedies as the vendee obtaining his -deed immediately from the defendant himself? The defendant’s estate in the premises was not an-equitable one.
    Upon the following question, he cited authorities :
    As to what rights, generally, the husband acquires, by marriage, in his wife’s property ; 2 Kent’s Com. 110, et seq.

    *What constitutes tenantcy, by the curtesy ; 2 Black. Com. 126, [80 et seq.; 4 Kent. Com. 27 et seq ; 1 N. Y. Digest, 560. 5 Cow. 74, Jackson ex dem. Swartwout v. Johnson.
    What seizin necessary to constitute tenantcy by the curtesy; McLean, 476, et seq. ; Jackson ex dem. Beekman v Sellick, 8 J. R. 262 ; 1 N. Y. Digest, 560.
    “ If the assignee, or creditor, of the husband, who takes possession of the estate on a sale on execution of his freehold interest, commits. waste, the wife has her action against him, in which the husband must join ; for though the assignee succeeds to the husband’s rights to the rents and profits, he can not commit waste with impunity.” 2 Kent’s Com. 111, (in which the case of Babb et ux. v. Perley, 1 Greenleaf, 6, is referred to.)
    Right of the tenant by the curtesy, sold on execution. By the seizin of the wife in fee, of one undivided third part of certain premises, and the birth of a child alive, the husband became tenant by the curtesy, and then his interest was sold on execution. Schermerhorn and Clute, v. Miller et ux. 2 Cow. 439 ; 2 N. Y. Digest, 997.
    I believe it has been the uniform practice in our state, ever since its settlement, to sell the husband’s interest, acquired by marriage, in his wife’s real estate, as tenant by the curtesy, under judgment and execution.
   Lane, C. J.

We have been furnished with no argument by the defendant; but the plaintiff’s right to recover seems plain. For the interest of the husband is a legal estate : it is a freehold during the joint lives of himself and wife, with a freehold in remainder to himself for life, as tenant by the curtesy, and a remainder to the wife and her heirs, in fee. It is a certain and determinate interest, whose value may be easily ascertained by reference to well known rules. It is, in every sense, his “ land,” within the meaning of the statute, and liable to respond for his debts.

The doctrines applicable to sales, by execution, of lands in the possession of the mortgagor, have little bearing on the present case. 81] Those depend on the ambiguous relation of the ^mortgagor. To his mortgagee, he is a tenant at will only ; to others, he is the owner of the land, liable to the contingent burden of the mortgage. As no true, perfect, authoritative, binding estimate of the value of the incumbrance can be taken by the appraisers, the law forbids the inquiry, and admits of no sale except as of unincumbered property; Ely v. McGuire, 2 Ohio, 223, 224; Baird v. Kirtland and others, 8 Ohio, 21 ; Bank of Canton v. Commercial Bank, 10 Ohio, 72.

The effect of this rule is, to throw into chancery sales of mortgaged land, except where the purchaser is willing to encounter the risk of -the burden ; and, in such cases, the possession is at least a legal estate, which passes ; 18 John, 94 ; Gray v. Tappan and Wells, Wright 117.

But the sale of a freehold is incumbered with none of these difficulties. Its value is the complement of the value of the fee, after deducting the value of the remainder, the elements of computing which, as in ease of insolvent estates, incumbered by dower, are entirely within reach of the appraisers.

Judgment for plaintiff.