ed in his possession, and where no contract of sale was proved, was a mere nullity. It was in his own power and could at any time be legally erased. It gave no interest, or title, to the assignee, and when Peirce died he was the absolute owner of the note, notwithstanding the assignment. The right vested, by his death, in the executors and could only be assigned by them. The plaintiff acquired no more right by a delivery, from the hands of the executors, than he could have acquired had they delivered him a note, payable to the testator, without any endorsement. The charge of the court on this point was correct, and the finding of the jury is against both law and evidence. New trial upon payment of

costs.

TAYLOR v. WILLIAMS, ET AL.

Evidence that a sale of goods to C. was made upon an understanding that W. was his partner, and upon the credit of W, is admissible against W. but is of no avail without other proof of the partnership.

Where a firm have assumed no name, one partner may bind the others by contracting in the name of himself and Co.

Evidence of the usage and customs of merchants may be admitted, but not the opinions of wit

nesses.

This cause was adjourned from the Supreme Court of Hamilton county, and came before the court upon a motion for a new trial.

The plaintiffs lived in the city of New York, and the suit was brought upon a promissory note, subscribed William Chase & Co. This note was executed by William Chase only, and in every thing preliminary to the trial, stood exactly upon the same grounds as the case of Aspinwall v. Williams and others, reported vol. 1, 84. The parties defendants being the same, and the foundation of the partnership the same as in that case.

At the trial of this case the defendants objected to evidence being given by the plaintiff, that the plaintiffs understood, from letters in the possession of Chase, written not by the other defendants, but by third persons, at the time they sold the goods, for which the note was given, that Williams, the defendant, was a member of the firm. But the court overruled the objection, and permitted the evidence to go to the jury.

The defendant also objected to the article of agreement, between Chase, Williams and Gardner, going to the jury, as evidence of the existence of the firm of William Chase & Co. whereon to charge the defendant, Williams, but the court overruled the objection, and the article was given in evidence to the jury.

The defendant introduced witnesses to prove, that, according to the law merchant, a partnership created, without taking a name, could only make contracts in the name of all the members of the firm, and that, ac ording to the law merchant, the partnership, claimed to have been created in this case, having taken no name, the note subscribed William Chase & Co. could not bind Willians & Gardner. The witnesses examined testified that they knew of no established rule or custom, but expressed their own opinions, that, in the case stated, the note should only bind Chase, who executed, as it was admitted that

the goods, for which it was given, never came to the hands or use of the other defendants. The plaintiffs objected that the testimony was irrelevant, and the court overruled it. The court also instructed the jury, that the article of agreement constituted a partnership from the commencement, according to the decision in the case of Aspinwall v. Williams and others, before referred to.

The jury found a verdict for the plaintiffs, and the defendants moved the court for a new trial, upon the ground that the court erred in ruling all the points before stated. The decision upon this motion was adjourned here.

Gazlay, in support of the motion.

By the COURT.

The evidence that the plaintiffs understood the defendant to be a partner at the time the credit was given, was not offered or admitted to prove the partnership, but to prove that credit was, in fact, given to the defendant Williams.— For this purpose it was clearly admissible. Whether the conduct of the defendant had been such as to authorize this understanding, was a distinct fact, to be proved by other testimony, without which the plaintiff could not recover. In the case of Aspinwall v. Williams and others, (1 Ohio Rep. 84) this court decided, upon full deliberation, that the agreement between the defendants con stituted an immediate partnership; and to that opinion they still adhere. In that case too, they adjudged that the note subscribed William Chase & Co. bound the partnership. This opinion is not shaken by the authorities and arguments now urged for the defendant. The rule laid down in Chitty, and upon which the defendant relies, is thus stated: "Whenever a person draws, accepts, or endorses a bill for himself and partner, he should always express that he does so for himself and partner, or subscribe both the names, or the names of the firm, and that otherwise it will not bind the partner." This rule is broader than the defendants' counsel admits. Although neither the individuat names of the partners, nor the name of the firm is used, still the partner may be bound if the party signing express that he docs so for hinself and partner.There is no set form of words in which this expression should be made; and, where the firm have assumed no name, as in this case, the signing Willian Chase & Co. is a clear and sufficient expression, that the note was given for the drawer and his partners, and must bind the firm.

The evidence offered by the defendant of an usage and custom of merchants was overruled, after it was given, because it did not go to establish any such usage or custom as was set up. The witnesses testified only as to their own opinions. An universal usage and understanding among merchants, as in the case cited from Douglas, is very different from the mere opinions of witnesses, and upon this distinction the testimony was properly overruled. The motion for a new trial must be overruled, and judgment entered on the verdict.

CRARY, ET AL v. THE SAME DEFENDANTS.

The only distinction between this case and the foregoing one, was, in this no note was given, but the goods sold were charged and invoiced to William Chase & Co. The court held that this circumstance did not vary the case.

Same order and judgment.

MCCORMICK v. ALEXANDER,

Judgments are not, per se, liens upon property, either real or personal, but how far they shall so operate depends upon legislative enactment.

Under the execution law of 1824, judgment creditors who had not sued out and levied execution within one year from the date of judgment, bore their lien as against subsequent judgment creditors, who had sued out and levied execution within one year, and this too in cases of judgments before the enactment of the law as well as after it.

The execution law of 1824 is not unconstitutional as impairing vested rights, or changing the nature of a contract.

This cause was certified from the Supreme Court of Clarke county. It was an action against the sheriff, and the question in controversy was who, of seve ral parties, was entitled to a sum of money made upon execution. The facts of the case, as agreed between the parties, were as follows:

Several judgments had, at different periods of time, been rendered against the same defendant.

The first for the Urbana Bank, November term, 1820, upon which a fi. fa. issued, May, 1821, and another in February, 1822, both of which were returned, no goods, but not levied upon land.

A second judgment, for the same plaintiff, rendered March, 1822, upon which execution issued in May, 1822, which was regularly levied upon property, the proceeds of which are the subject of dispute, and process to enforce a sale regularly continued to July, 1823.

Another judgment, and the second in order of date, was obtained by Joseph Evans, March, 1821, upon which execution issued in November, 1822, and was levied on the same property, which was not sold, and to enforce a sale of which proper process was regularly issued up to the time of sale.

On the 21st July, 1821, the plaintiff in this action obtained a judgment, and on the 10th of January, 1822, sued out execution, and had it levied upon the same property, which was returned, not sold. In April, 1822, a vendi issued, upon which the same return was made. No other process issued until the 8th of January, 1824, when an alias vendi. was issued, which was returned and renewed until March term, 1825, when the property was sold under the vendi. in the plaintiff's judgment. The different parties all claimed the money, and this suit was brought to determine who was entitled to it. The claim of the Urbana Bank being pretty much abandoned, the controversy rested between Evans and M'Cormick. The first had the elder judgment, rendered in March,

1821, upon which no execution was sued out until November, 1822, more than twelve months after the rendition of the judgment. The latter, M'Cormick, had the junior judgment, but his execution was first issued and levied, and was levied within twelve months from the rendition of the judgment.

Anthony for Evans. Cooley, contra.

Evans's judgment being obtained under the act regulating judgments and executions, which took effect 1st June, 1820, was, when obtained, a good lien upon the real estate of the debtor, and preferable to any other judgment afterwards obtained under that act; the act pointing out no time when execution should issue, but declaring generally that the lands and tenements of the debtor should be bound from the first day of the term, at which judgment shall be rendered, when the lands, &c. lie in the county where judgment is so recorded. The house and lot, in controversy, lie in the town of Springfield, in the county of Clarke. This judgment, therefore, attached upon the real estate of the debtor, and vested in the plaintiff, Evans, a right which the legislature never intended to divest from him; but on the contrary, show clearly, they meant to preserve inviolate; for by the 16th section of the act regulating judgments and executions, which took effect 1st June, 1822, and which provides for several distinct classes of cases, it is made lawful, in all cases where judgments had been before that time rendered, and on which execution had not been taken out and levied, prior to the taking effect of that act, for the plaintiff, in any such judgment, to have executed thereon.

The opinion of the court by judge HITCHCOCK.

In the consideration of this case I lay out of view the judgments recovered by the bank of Columbus. The first of these was not followed by an execution sued out and levied in due time; the second was not obtained until after the judgments both of Evans and McCormick.

From the facts agreed in the case, it appears that Joseph Evans at the March term, 1821, of the Court of Common Please, for the county of Clark, recovered judgment against Jonah Baldwin for the sum of To enforce collection, on

the 18th day of November, 1822, he sued out his writ of fi. fa. et lev. fa. which writ, on the 23d day of the same month was levied on a house and lot in Springfield. The property not being sold on this execution a venditioni was sued out, returnable to the march term of the Court of Common Pleas, 1825. Upon this writ the property was sold to James Bishop for the sum of eight hundred dollars.

On the 21st day of July, 1821, the plaintiff, George McCormick, in the same Court of Common Please, obtained a judgment against Baldwin and on McKinnen, for the sum of debt or damages and costs. Upon this judgment a writ of fi. fa. et lev. fa. was issued on the 10th day of January, 1822, and levied upon the same house and lot in Springfield. The property not being sold, a vendi. issued on the 10th day of April, 1822, and an alias vendi. on the 8th day of January, 1824.

From this statement, it will be seen that the judgment of Evans was first re. covered; the fi. fa. of McCormick first sued out and levicd, and the property

eventually sold under a vendi. at the suit of Evans. The decision of the case depends upon the determination of the question, whether Evans or McCormick had the preferable lien.

Judginents are not of themselves liens upon property, either real or personal. How far they shall so operate depends upon legislative enactment. Hence, the laws on this subject are different in different states and countries. In some states of this union, lands are bound for the satisfaction of judgments from the time such judgments are rendered: in others, only from the time they have been levied upon by execution. In some states and countries, they are sold under execution, in the mode prescribed by law; while in others, they are set off to the judgment creditors, at their appraised value; and in others, they can neither be sold nor set off, but can only be extended until the rents and profits shall satisfy the debt. In the state of Ohio, from its first settlement, judgments have operated as liens upon the lands and real estate of the judgment debtor. Lands have always been liable to be sold upon execution, under certain conditions and restrictions, prescribed by law. These conditions and restrictions, have been, from time to time, varied as policy seemed to dictate. Since the year 1816, no material alteration has been made with respect to the conditions of sale, although there is a great change as to the effect of the lien. In the 2nd section of the "act regulating judgments and executions," passed January 31st of that year, it is enacted, "that the lands, tenements and real estate of the defendant, shall be liable to the satisfaction of the judgment from the first day of the term in which said judgment is obtained," &c. In a proviso to the 7th section of the same act, it is declared "that judgments, voluntarily confessed in open court, shall only have a lien on lands, tenements or hereditaments from the day on which they are actually signed or entered." No time is specified within which the plaintiff shall sue out his execution in order to receive the benefit of his lien. He may do it whenever it suits his convenience. It is worthy too of notice, that, although by this act, all previous laws regulating judgments and executions are repealed, yet it is confined in its operations to judgments only, which may be therafter rendered: the legislature being peculiarly careful to provide that judgments rendered before its enactment should be collected according to the laws in force at the time of their rendition.

On the 24th of February, 1820, the legislature enacted another law with a similar title with the one last named. This act, so far as it respects the subject of liens upon "lands, tenements and real estate," does not vary the act of 1816, except that it confines the liens of judgments upon lands to those lands situate in the county where the judgment is rendered, and provides that when the lands do not lie within the county where the judgment is entered, they shall be like goods and chattels, only bound from the time they are seized in execution. This act repeals the law of 1816, but, in its operations, is confined to judgments which shall be thereafter obtained, leaving those previously obtained to be collected under the laws in force when they were rendered, except so far as relates to goods and chattels, which are not to be sold wi hout appraisal.

During the existence of this law, the two judgments in favor of Evans and McCormick, were obtained, the former being prior in point of time--and during the existence of the same law the house and lot in Springfield were seized in execution at the suit of McCormick.