dollars, a motion was made to arrest the judgment, and its determination ad journed to this court, by the Supreme Court sitting in Hamilton county.

The first count in the declaration states in substance, that on the 5th May, 1818, one Nathaniel Pope, was indebted to the plaintiff, 500 dollars, and delivered to the plaintiff a pleasure carriage in part, and directed and authorized the plaintiff to sell the same to any person for a sum not less than 300 dollars, and to receive and apply the moneys to the plaintiff's own use. That on the 1st May, 1822, J. W. Pope, the defendant, in consideration, that the plaintiff would deliver to him the carriage, promised to pay him 300 dollars, when thereto afterwards requested; and avers a delivery confiding in this promise.

Hammond, in support of the motion.

By the COURT.

Guilford, contra.

It is not necessary to constitute a good consideration for an assumpsit that the party making the promise should receive any actual value or benefit from the party to whom the promise is made, if, in consequence of the transaction, a loss has been sustained by such party; this has long been settled.

In this case the plaintiff parted with his pledge, by which he lost a security for so much of his debt, and also rendered himself liable to N. Pope, the owner, for the value of it. This prejudice to him, incurred at the request, and upon the promise of the defendant, constitutes a good consideration to sustain an ac. tion of assumpsit. It is of no importance that the defendant could gain no advantage from the contract; he took that risk upon himself; and the fact does not render the contract nudum pactum. The motion must be overruled, and judg ment rendered for the plaintiff.

HUNT ET AL. v. FREEMAN.

A court of equity will carry into effect the intention of the parties, where by fraud or mistake, such intention is not embodied in a written agreement,

Where there is no court of equity, and the parties do that which a court of chai.cery would direct to be done, a court of Law will sustain what hat us been done.

THIS was a bill in chancery, prosecuted by the complainants, to obtain a decree quieting their possession of section 35, township 4 east, 2d entire range in Symmes' purchase, and to enjoin perpetually execution upon a judgment in ejectment recovered against them in the supreme court of Warren county, from which court the cause was adjourned for decision here.

The material facts charged in the bill were as follows: On the 16th of July, 1789, Clarkson Freeman, under whom both parties claim, made a contract with J. C. Symmes to purchase of him eight sections of land specifically described, one of which is the land in dispute.

In January, 1790, Freeman agreed with Elias Boudinot for the purchase of six land warrants, for a section of land each, and agreed, upon certain terms and conditions, to locate them in Boudinot's name upon six of the sections purchased of Symmes. The warrants were numbered 235, 6, 7, 8, 9, 40. On the 22d of May, 1790, three of these warrants, numbered 237, 238, 239,

were located upon three of the sections as agreed upon; the warrant 239 being located upon section 35, the land in dispute.

In the year 1792, Clarkson Freeman, being in prison in New Jersey, for. a judgment for a large sum of money, escaped, and in the October of the same year he made a power of attorney to his brother, Ezra Freeman, authorizing him to dispose of the lands held upon the six warrants purchased from Boudinot.

The judgment creditor of Clarkson Freeman prosecuted a suit against the sheriff for the escape of Freeman, when, for the purpose of indemnifying the sheriff, on the 7th of December, 1795, an agreement was entered into between Clarkson Freeman, by his attorney, Ezra Freeman, Elias Boudinot, and Aaron Ogden. By this agreement the interest of Clarkson Freeman in three of the sections of land, held upon the warrants purchased of Boudinot, was pledged in trust to Aaron Ogden as trustee, to be sold at certain times and upon certain terms and conditions, to raise the money recovered against the sheriff. The entries being made in the name of Boudinot, he covenants to convey the legal title to Ogden should a sale be required, and Freeman covenants that if payments are not made this shall be done. In this covenant the lands subjected to the trust are described only by the number of the warrants supposed to be located upon them, which are specified as numbers 235, 236, 237, neither of which is located on the section 35 now indispute.

Immediately after the completion of this arrangement, the complainants, Hunt and Phillips, purchased the judgment against the sheriff, and on the 17th of May, 1796, released it as against the sheriff upon receiving from the trustee a deed declaring the trust.

In September, 1796, the complainants received from Symmes a deed for section 34, covered by warrant 237, for the first instalment which was not then due. This deed was made with the assent of Freeman.

The second instalment fell due December 8th, 1797; it was not paid, and no measures were taken to execute the trust with respect to it. It remained unpaid, and on the 5th of November, 1798, Symmes conveyed to Boudinot the sections 34 and 35, neither of them located upon the warrants described in the trust agreement; and on the 5th of December following, Boudinot conveyed these two sections to Ogden, under the contract of trust, to be sold to raise the remaining instalments, the latter of which would fall due December 8, following. On the 8th of January following, Ogden, in execution of the trust, sold the two sections of land to the complainants. Upon this title the complainants rested their claim.

The defendant claimed under a conveyance duly executed from Symmes to Clarkson Freeman, in September, 1796, for the section 35, and a deed from C. Freeman to himself, dated February 5th, 1799.

The bill charged that it was the intention of the parties to cover and secure such sections as had been located, let them be covered by any number of the warrants, provided there were not other sections located more correctly answer. ing the description. It also charged that. Ezra Freeman gave assurance at the time the trust agreement was made, that all the warrants were regularly located; but that in fact three only of the six warrants were located, and that the other

three never were located. The three located warrants covered the three rections sold, including that in dispute.

The principal facts stated in the bill were admitted in the answer. It was si. lent as to the allegation that Ezra Freeman represented all the warrants as lo cated, and it averred that each of the six warrants was located, and described the land upon which the location was made. It claimed to be a purchase for valuable consideration, but did not deny notice.

AARON OGDEN testified that Ezra Freeman informed him that the warrants were all located, and that the trust contract was entered into under that opinion. That land, and not floating warrants, was understood to be the subject of the contract.

JON. DAYTON testified that Ezra Freeman and A. Ogden requested him to value the lands. That he understood from Ezra Freeman that the warrants were all located, and made the valuation upon that impression.

It was in full proof that two of the warrants named in the trust agreement, numbers 235, and 236, were not located at the time that agreement was made. The sections upon which the answer alleged they were located, were not of the number sold to Freeman, upon which he contracted with Boudinot to locate them; and besides this the same section had been conveyed by Symmes to Boudinot, before these warrants were located upon them. The time of the location of the other warrant was not explained, nor was it certain that it had been located. The section named in the answer as covered by it, was not one of the number sold by Symmes to Freeman, and referred to in the agreement to Boudinot.

Two witnesses testified, that so early as 1796 they heard the defendant state, that he knew the complainants had a mortgage on the land in dispute.

Este, for the complainant. Hammond, contra.

By the COURT.

There is no doubt but that it was the intention of the parties to the contract creating the trust, upon which the complainants found their title, to subject lands and not floating warrants. This is manifest from the whole testimony, and the reason why the numbers of the warrants was adopted by way of description, is obvious. Freeman had agreed to locate the warrants upon six out of eight specified sections. Proceeding upon the ground that all the warrants were located, but the parties not being informed of the six sections they covered, this mode of description was the best within their reach. If the warrants had been all located as Ezra Freeman asserted, the description would have been sufficient. That it was defective, is to be attributed to the mistake or the fraud of Ezra Freeman, and is in no respect the fault of the other parties.

The intention of the parties to describe particular and distinct tracts of land was not carried into effect by the writing executed between them in consequence of a common mistake. The defendant cannot ask to place the case upon fairer ground than this, because if Ezra Freeman was not mistaken, when he assured the parties that all the warrants were located, he was guilty of misrep resentation and fraud, which is a more unfavorable view than attributing it to a common mistake,

The mistake was that three only of the six warrants were located, and of these three, one only of those upon which the trust was given: the other two were still unappropriated. It is not to be doubted that upon the discovery of this fact, a court of equity would have charged the trust upon the three located sections, because in doing so, they would do nothing but perfect the original object and intention of the parties. It would be but correcting the mistake into which the parties fell from a deficiency of correct information at the time the contract was executed between them.

When this matter was transacted there was no court of chancery in this country where the lands lie to take cognizance of the case. And if there was a court of chancery in New Jersey, neither the party nor the subject was within its jurisdiction, the parties therefore could only proceed to do that which a court of chancery would direct to be done, and when the rights of the parties were thus fixed, rely upon a court of law to sustain them.

As the property upon which this trust was created, was circumstanced, the parties did not require the aid of a court of chancery, and this aid could at no time have become necessary had not Clarkson Freeman obtained a deed from Symmes in violation of the original agreement with Boudinot. By that agree ment the control of the legal title to the whole six warrants, or the lands they covered remained in Boudinot to be transferred to Freeman upon the perform. ance of certain acts. Boudinot having a right to control the title to the whole, had covenanted to convey three, that they might be subjected to a particular trust. It rested with him to carry the intention of all concerned, in the trust agreement, into effect, by conveying any of the sections located, in the execu tion of the trust, when it was ascertained that those designated were not appropriated. It was his duty to retain his control over three sections of the land, if there were so many secured, to satisfy the trust. In the actual case a court of chancery would have enjoined him from parting with this control, had he attempted to do it. He might properly, notwithstanding the mistake in the description, have conveyed the three located sections to Ogden, and it would have been a good execution of the trust agreement on his part. No court of chancery, upon the application of Freeman, would have interfered, upon the case as it stood, to restrain Boudinot from thus proceeding; and such a proceeding must have been subsequently sanctioned by a court of law.

When Clarkson Freeman obtained the conveyance from Symmes for section 35, he knew that it was one of the three located sections, which his agent had agreed should be subjected to the trust. He knew there was no other land upon which the trust agreement could operate, and it was a fraud upon that agreement to take the legal title to himself so as to exclude the agreement from operating upon it. It was also a fraud upon Boudinot, in whom, by Freeman's own contract, the control of the legal title was to remain. By this fraud, as against those upon whom it was practised, Clarkson Freeman acquired no beneficial interest. The title passed to him, but the subject remained liable to the control of Boudinot, under both the original and trust contracts. And it was competent for Boudinot, in the execution of the trust, to enable Ogden to sell the actual ownership, though not the naked legal title to the land. And in a country where there was no court of chancery, a court of law would enforce

the validity of the sale, by giving the purchaser the possession, and regarding the beneficial ownership as superior to the naked legal title.

It is the opinion of the court that the trust attached upon the three located sections at the moment of executing the trust contract, and that the power to execute this trust was not defeated, or in any degree impaired by the convey. ance of Symmes to Clarkson Freeman, which, in respect to the trust, was fraudulent and void. The trust was well performed according to law, at the time, and the purchasers at the trust sale became the owners of the land. They are well entitled to the possession, and also to have the legal title united with that possession; such as it exists in the hands of Freeman-a perpetual injunc tion and a conveyance is decreed.

JUDGE BURNET, having been at one time counsel for Hunt, and Phillips, did not sit in this cause.

HOUGH v. YOUNG.

The plaintiff cannot support his action by proof contradicting the averments in his own declaration.

A day may be made material by averments.

Where an endorsed note is left by the holder with a cashier of a bank for collection, and the cashier neglects to take the proper steps to charge the endorser, in a suit against him by the holder, the damages are merely nominal, unless the plaintiff prove the maker insolvent.

This was an action on the case against the defendant, who was cashier of the Zanesville Canal Bank. Its object was to charge the defendant for negli. gence in so protesting a note left with him for collection, and to take the steps necessary to charge the endorser, that the endorser was not charged.

The cause was tried before the Supreme court of Muskingum county, and a verdict given for the full amount of the note. At the trial the court instructed the jury that "the plaintiff was entitled to recover, and that there being no evidence of the ability or inability of the maker of the note, nor any other evidence to show the extent of the plaintiff's injury, the jury, in estimating the damages, must exercise a sound discretion, and be guided by such light as they had upon the subject."

A motion was made for a new trial on the ground of mis-direction, and the decision reserved for this court.

It was proved at the trial, that an agent from the plaintiff handed the note to the defendant, as cashier of the Canal Bank, requesting him to have the same note legally protested; that the defendant took the note, and afterwards informed the same agent that the note was protested. It was also in proof, that the defendant took the note to the notary public on the second day of August, 1819, with the words "July 30, August 2," endorsed upon it, and informed him there were no funds in the bank to meet the note. The notary immediately protested the note, gave notice to the endorser, and returned the note to the defendant the same evening, or the next morning.

The note was dated the 2nd day of May, 1819, payable sixty days from the 1st day of June, in the same year.

CULBERTSON and GODDARD, in support of the motion, made two points 1. That upon the proof the action was not maintainable.