from that which he had set out. The omission is as fatal as the variance and on the same principle.

See note A. at the end of the volume.

AYRES v. HARNESS.

A valid Bond cannot be made by writing it over a signature and seal, made upon a blank sheet of paper.

This was an action of debt brought upon a sealed bill, and the case made by the pleadings and submitted for the decision of the court was as follows:

The defendant, Harness, being indebted to the plaintiff a sum of money, the exact amount of which was not ascertained, made his seal and wrote his name in connection with it, upon a blank sheet of paper, and authorized the plaintiff to write over it a note for the sum found to be due, and the subscribing witness attested this sealing and subscribing. The paper thus signed and sealed was delivered to to the plaintiff an entire blank, who wrote over it, the note upon which the suit was brought, for the sum due, according to his agreement, which it appeared was parol.

The cause was originated in Ross county, and was adjourned here for decision from the Supreme Court sitting in that county.

Hammond, Bond and Creighton, for the plaintiff.

Leonard, Brush and Fitzgerald, contra.

By the COURT.

The ancient law was well settled that a valid deed, could not be made by writing it over a signature and seal, made upon a blank or an empty sheet of paper. We know of no decision by which this ancient doctrine is overruled. The cases cited by the plaintiff's counsel, are of promissory notes not under seal, and of deeds where all the material parts were written at the time of making the signature and seal. They are not analagous. An authority to fill one particular blank falls far short of an authority, to make an entire deed. While the distinction between contracts under seal, and parol contracts is preserved by our Legislature, and by our courts, the different modes of execucuting them must also be preserved. We are accordingly of opinion that the writing in this case cannot be operative, and that the judgment must be for the defendant.

TURNER v. CREBILL, ET AL.

A final decree is no notice to a subsequent purchaser. A decree, that the respondents, by a certain day, should assign a certificate of certain lands to the complainant, provided that the decree should not be operative, if the complainant did not pay the respondents a certain sum of money by a given day, and provided that before that day, the respondents should assign or tender an assign. ment of the certificate, is a final decree.

The facts of this case were as follows. Before the first Tuesday of August, 1807, the complainant prosecuted a bill in chancery, in the Common Pleas of Hamilton county, against one A. King, and M. Williams, to obtain the assign.

ment of a certificate for the tract of land now held by the defendants. At the August term, 1807, a decree was pronounced by the common pleas, from which an appeal was taken to the Supreme Court.

On the 22d day of September, 1808, the Supreme Court decreed that King and Williams should assign the certificate to Turner: but the decree not to be operative if the complainant did not pay to King a certain sum of money by the first day of June, 1809, provided King and Williams should at any time before that day, assign, or tender an assignment of the certificate.

King and Williams did not tender an assignment of the certificate, nor did Turner pay the money by the first day of June, 1809. Sequestration was ordered to enforce the decree which was not executed.

Williams carried the certificate info Grant, and conveyed the land, part in 1810, and part in 1813, to the present defendants, who had no notice of the decree in Hamilton county, or of the complainant's claim.

On the 1st day of June, 1814, Turner paid the money into the clerk's office of the Supreme Court in Hamilton county, and upon motion obtained a writ of possession for the land. This writ was superseded. Turner then prosecuted à bill against the defendants, to enforce against them the decree in Hamilton county, charging that they were lite pendente purchasers, and otherways had notice. The defendants denied notice in their answers, and the complainant's bill was dismissed by the Supreme Court in Champaign county. Upon this decree of dismissal the present bill of review was prosecuted in the Supreme Court of Champaign county, and adjourned for decision to this court.

Cooly, for complainant. Bacon, contra.

By the COURT.

We cannot doubt but that the decree made in Hamilton county in September, 1808, was a final decree between the parties to it.

The subsequent orders where such as are usually made to give effect to at final decree, and cannot lead to a conclusion that any of the original matters liti gated in the suit, were still open to be decided.

It is well settled that a final decre is not notice to a purchaser. It is not pretended that the purchaser had actual notice.

The bill of review must be dismissed.

BOTKIN ET AL. v. THE COMMISSIONERS OF PICKAWAY COUNTY.

The court of common pleas have no authority to amend a final judgment at a term subsequent to that in which it is rendered, except in mere matter of form.

This case came before the court upon a writ of certiorari to bring up certain proceedings before the common pleas of Pickaway county. An action of debt was brought in the name of the commissioners against Botkins, Kellar, and Mc Neal, securities in a sheriff's bond. At April term, 1820, judgment was rendered for the plaintiff. Instead of directing execution to issue for the sum due, the judgment was worded to be discharged by the payment of so much money.

At the July term, 1824, notice was given to the defendants that a motion would be made to amend the judgment; upon this motion the court of common pleas directed the judgment of April term, 1820, to be amended, by striking out the words "to be discharged by the payment of," and inserting in their place, "and that execution issue thereon for." To reverse this order of amendment, the certiorari was sued out, and, the decision adjourned to this court by the Su. preme court of Pickaway county.

By the COURT.

The order of the common pleas of Pickaway county must be reversed. The court of common pleas have no authority to amend a final judgment at a term subsequent to that in which it is rendered, except in mere matter of form. The alteration made in this judgment was in a material and substantial, and not a formal circumstance.

The defendant Holmes, was president of the Granville Alexandrian Society, which had for some years issued bills, discounted notes, and transacted business as a bank. The complainants having become borrowers, gave their joint note to Holmes, who received it for account of the society. In October, 1817, judg ment was rendered on this note, and upon this judgment several payments were made to the society. In May, 1820, the judgment was assigned for the bal. ance due upon it to the other defendants, who refused to receive the paper of the bank in discharge of it. The bill was prosecuted to compel them to receive it, charging that the assignment was only in trust for the bank, and claim ing that if it were not; still the assignees were bound to receive the paper in payment.

The answer denied that the assignment was a trust, and stated that the assignees were the real owners; and upon this state of the facts the cause was ad. journed here from Licking county for decision.

For the opinion of the court, see Pancoast v. Ruffin, et al. post.

PANCOAST v. RUFFIN, ET AL.

Where a bank has bona fide parted with all interest in a debt due the bank, the debtor cannot pay the assignee in the paper of the bank.

This was a bill in chancery, in which the complainant charged, that on the 20th June, 1820, he gave his note to the bank of Cincinnati, payable in sixty days, upon which note a suit was brought by the bank, and a judgment recovered. That this judgment was afterwards assigned to the bank of the Uni

ted States. That execution was sued out upon it, and placed in the hands of sheriff Ruffin to be executed.-That complainant offered and tendered to said sheriff the amount of the debt and interest in the notes of the bank of Cincinnati, which, at the request of the bank of the U. S. he refused to receive, and was about to proceed to levy the execution upon complainant's property, by the sale of which he would be greatly injured. It further stated, that the notes of the bank of Cincinnati were brought into court with the bill, and prayed an injunction, which was allowed.

To the bill the defendants demurred generally, and the decision upon the demurrer was adjourned from the Supreme court of Hamilton county, to this

court.

Este, in support of the demurrer. Hammond, contra.

By the COURT.

This case, and that of McDougal and others, v. Holmes and others, depend upon the same principle; the just construction of the "act to regulate judicial proceedings where banks and bankers are parties," &c.

The first seven sections of the act are employed in making provisions to enable those who are creditors of banks or bankers to secure their claims. For this purpose such creditors are authorised to attach the debts due to the bank or banker in the hands of their debtors, and thus secure the credits of the institution for the liquidation of its debts.

The 8th section relates to proceedings between the banks and their debtors. Its first enactment gives to the banks or banker a more simple method of suing for its debts secured by endorsement; the proviso or latter clause of the section secures to the debtors of the bank or banker, in certain cases, the privilege of paying the debts they owe to a bank or banker in the bank paper issued by the institution with which the debt was contracted. This privilege extends only to a case where the suit is prosecuted against the debtor, in any way for the use and benefit of the bank or banker. It cannot consistently with the other parts of the statute be extended further; for if the construction contended for by the complainants were adopted, all the benefical effects of the previous sections would be defeated by the eighth. The creditor of the bank, after he had been at the trouble and expense of prosecuting his attachment, and obtaining judgment against the debtor to the bank, and when he hopes that he is about to receive the fruits of his trouble and expense, is paid off with the paper of the same bank, and finds himself, after all his pains and losses, just where he started.

Statutes should be so construed as to give effect to the intention of the legisla. ture, and if possible, render every section and clause effectually operative. In this act the intention of the legislature is manifest: it is to aid both the creditors and debtors to banks.

It cannot be rationally supposed that it was intended to hold out encourage. ment to claimants to prosecute for their claims under the provisions of the act, and then mock them and disappoint their just expectations. Such trifling ought not, an dcannot be imputed to the legislature.

The terms in the eighth section to which the parties give a different and di, rectly opposite construction are these, "That in all suits or actions prosecuted

by a bank or banker, or persons claiming as their assignees, or under them in any way for their use or benefit." The complainants insist that the disjunctive conjunction or separates the sentence so as to form three distinct classes of cases, in which the rights of paying in the paper of the bank is secured: so that an assignee is obliged to receive the paper although the bank has no interest in the debt assigned.

This construction is founded upon a mere grammatical criticism, which is never received to change or control the intention of the legislature, where that intention is otherwise clearly expressed. Something may depend upon the punc. tuation in the statute book, which may be incorrect, and ought never to vary the true sense. Leave out the comma after the word “assignees,” and the plain construction is that the after words "for their use or benefit," apply to each preceeding clause of the sentence. This is believed to be the correct interpretation, either with, or without the comma, and perfectly consistent with the reason, the justice, and the spirit of the act. When, therefore, the debt has been bona fide assigned, and the bank has no interest left in it, the assignee is not bound to receive the notes of the bank in discharge of it.

Bill dismissed with costs.

JUDGE BURNET dissented.

INNES v. AGNEW.

The act concerning covenants real, does not extend to a deed containing a covenant of seizín as well as of warranty.

The declaration on the covenant of warranty must aver an eviction.

This was a writ of error to the court of common pleas of Muskingum county, in an action of covenant in which judgment had been rendered for the plaintiff, the now defendant in error.

The declaration set forth a deed for the conveyance of a lot of ground, con. taining covenants of seizin of general warranty, and against incumbrances. It assigned as breaches that the grantor was not seized. That he did not warrant and defend the premises against all claims, but that on the contrary the legal title, at the date of the deed, was in one Pierce. That the premises were encumbered with a mortgage, and that the mortgagee had prosecuted a scire facias, obtained a judgment and sued out execution, upon which the premises were sold.

To the first breach the defendant pleaded that he was seized in fee upon which issue was joined, and to the three last breaches he demurred.

The cause was submitted to the court both as to fact and law. They found the issue on the first plea in favor of the defendant, and on the other breaches gave judgment on the demurrers for the plaintiff and assessed his damages, and entered final judgment.

Upon the writ of error several errors were assigned and argued by counsel. But as the court decided upon one point only, it is not necessary to notice any other in the report.