its situation. The waters of a creek and a marked tree on the bank of the creek is too general a description. It imposes on the enquirer, the necessity of examining the timber on both sides of the creek, from its mouth to its source. The length of this creek does not appear, but from circumstances it must be of considerable extent. It is called by way of distinction Big Three mile, and the witnesses speak of several branches which empty into it. The valley of such a creek must be too extensive to be searched by subsequent locators, for the purpose of finding a marked tree; and without that tree, the beginning corner of the survey cannot be determined.

But the complainant rather relies on the entry, which he contends has been surveyed in strict conformity with its calls, and which is in these words, "Callo. hil Minnis enters 1000 acres," &c. on the waters of the first creek emptying into the Ohio below Limestone, beginning at a walnut marked 1 H, by a branch, where the left wing of Colonel Robert Todd's scout crossed in June, 1787, running N. 30. E. 400 poles, &c. Although the survey appears to have been made in strict conformity with the courses and distances of the entry, yet we discover a striking difference in the calls. The entry calls for the first creek below Limestone, and for a walnut marked 1 H by a branch. The survey calls for Three-mile-creek, and for a walnut marked H, on the bank of the creek. This discrepancy was calculated to produce doubt and uncertainty. It imposed on the enquirer the task of deciding what streams were denominated creeks, in or. der to ascertain whether Three-mile was, or was not, the first creek. But suppose this difficulty overcome. Is he to look for a walnut marked H, on the bank of the creek, or for a walnut marked 1 H, by a branch of the creek, and if he should find either, how is he to know whether it be the right one or not?

But we will pass over these difficulties for the present, and examine the entry on which the complainant relies, without reference to the terms used in the survey.

1st. It calls for the waters of the first creek emptying into the Ohio below Limestone.

2d. For a walnut marked 1 H.

3d. For the branch where the left wing of Colonel Todd's scout crossed in 1787.

1st. Ellis Palmer states that Minnis' survey was on Big Three-mile-creek, which was always said to be three miles below Limestone. On being asked if it is not the first creek that empties into the Ohio below Limestone, he answers, "it is, except Fishing-gut, so called, which is the first below Limestone on the Ohio side." He further states that he never knew it called by any other name than Fishing-gut.

James Pilson being asked the name of the first creek below Limestone, answers, "Fishing-gut is the first that would be called a creek." He further states that it is not a large stream; that he does not know its length; that there is a mill on it; that he always heard it called Fishing-gut; believes he should call it a large branch; that it empties about two miles abo ve Big Three-mile.

N. Beasley states, that the first creek on the north side of the Ohio below Limestone-creek, is called Fishing-gut; that it went by that name in 1791; that according to his apprehension, Fishing-gut is of such size and description as to entitle it to the appellation of a creek; that it is such as surveyors have been in

the habit of calling creeks, and that it empties better than two miles above Three-mile-creek.

On this evidence the complainant relies, to establish the notoriety of Threemile, as the first creek below Limestone; but instead of proving that fact, it rather shows it to be the second creek. On such information, a subsequent locator would naturally go on to Fishing-gut in search of Minnis' survey, the beginning corner of which is said to be at least five miles from the nearest point of that stream. The witnesses all speak of it as a creek, though they do not remember of hearing it expressly called so. General Beasley, who has been a surveyor many years, calls it a creek, and states that in size and description, it is such a stream as surveyors have been in the habit of calling a creek.

If it be urged that its appropriate name was Fishing-gut, it may be replied, that the appropriate name of the other, was Big Three-mile, and a person hearing their names, would naturally consider them both to be the names of creeks. There is no evidence to shew that three mile was understood to be the first creek below Limestone, or that it was known by that name among locaters, or others, either when the entry in question was made, or at any time since.

Palmer states that in 1787, it was known by the name of Big Three-mile, probably to distinguish it from a smaller stream in the neighborhood, known by the In the survey, it is simply called Three-mile-creek, which varies both from the description in the entry, and from the real name, as proved by all the witnesses.

same name.

Here naturally arises the question, why was the water course designated in the entry by a description, when it had an appropriate name, notorious in the contiguous settlements. If Minnis' entry was really on the creek claimed, it onght to have been called Big Three-mile, which was at that time its appropriate name, and by which subsequent locators might have readily found it, as that name not only identified the water course, but was expressive of its true situation, in reference to the mouth of Limestone. By omitting the name and describing it as the first creek; subsequent locators were not merely left in doubt and uncertainty, but were liable to be misled and thrown on to Fishing-gut, which from the weight of evidence might fairly be considered as a creek, and the first creek below Limestone.

The next call is for a walnut marked I H.

Palmer states, that at the beginning corner of Minnis' survey there was a walnut marked, which he saw within a few minutes after the corner was made; that there were letters on it, but he does not remember what they were, though he says he saw the tree every year afterwards for more than twenty years.

Benjamin Beasley settled in Manchester in 1790. Shortly after, he heard of the tree, spoken of by Palmer. It does not appear that he ever saw it, he gives no description of it, nor does he know any thing of the letters by which it was distinguished in the entry of Minnis.

General Beasley states that he become acquainted with the beginning corner of Minnis' survey in 1803. That he has seen it several times, and has surveyed from it, but that he never saw any letters on it, and that it is five miles from the nearest point on Fishing-gut creek.

James Pilson has seen the walnut on Big Three-mile, claimed as the corner of

Minnis' entry, and has made a survey from it; he thinks he saw marks on it, but cannot tell what they were.

This is all the evidence relating to that point, and it certainly falls very far short of establishing the notoriety of the tree in question.

The entry calls for a walnut marked I H; the survey calls for a walnut marked H. The witnesses, except Palmer, do not know that the tree claimed by the complainant to be Minnis' corner, was ever marked with any letters, and Palmer does not know that it was marked with either of the letters named in the entry. As walnut is a common timber in the part of the country where the land lies, and particularly on water courses; the call for a tree of that description is of but little use, unless it be distinguished by some peculiarity generally known, of which information can be obtained in the contiguous settlements and by which it can be distinguished from other trees of the same kind. It is therefore necessary to prove, that the tree in question contained the distinguishing marks described in Minnis' entry, and that it had acquired general notoriety at the date of the complainant's entry.

The third call is "the branch where the left wing of Col. Todd's scout crossed in 1787.'

Palmer states, that the trace was generally known by the name of Todd's trace, and was plain enough to be followed.

Benjamin Beasley says, that shortly after he came to Manchester, in 1790, he heard of Todd's trace running up Three-mile-creek, the scout crossed at the mouth of Limestone, which was a place of general notoriety, and the trace commenced on the bank of the river opposite the mouth of that creek. Before, and down to the time of that expedition, the trace appears to have been known by the name of the old war road.

We will concede for the present, that these witnesses prove the notoriety of the trace, and proceed to enquire, whether this call is in other respects, suffi. ciently sustained.

1st. The entry refers to a trace running up the first creek below Limestone. In addition to what has already been said on this part of the case, we will only remark, that if Fishing-gnt is to be considered the first creek, the call for a trace on a different creek cannot help the entry.

2d. The entry calls for an object by a branch of the creek; the survey calls for the same object on the bank of the creek.

The entry calls for the corner by a branch, where the left wing of the scout crossed, not for the trace which must have been followed by the main body of the detachment, and which crossed the creek.

From the very terms used, it is apparent that the corner was not on the trace spoken of by the witnesses as being plain and notorious, but at some point on a branch where one of the wings crossed. How far the left wing marched from the trace, or at what point they left it, is uncertain, nor does it appear that there was any thing to designate the route of that wing, by which a surveyor could be enabled to follow it so as to ascertain where it crossed the branch, nor does it appear at what distance, or in what direction the branch was, from any given object. This circumstance seems to account for the discrepancy between the corner called for in the entry, and the one from which the survey was made. The latter is on the bank of the creek, where the trace most probably passed, the

the former is by a branch, where the left wing crossed, but what branch, or how far from its mouth, or from the trace, is altogether uncertain.

The survey of Minnis appears; at this day, to have acquired very general notoriety; but that was not the fact when Peyton's entry was made.

On the whole, we are of the opinion, that the complainant has not sustained the equitable claim set out in his bill.

It is therefore unnecessary to examine the case, on the part of the defendants. Bill dismissed.

McVICKAR v. THE HEIRS OF LUDLOW.

JUDGES HITCHCOCK, BURNET, AND SHERMAN.

1826.

Where a sci. fa. is prosecuted to make the heirs party to a judgment rendered against the adminstrator of an intestate, and thereby subject lands taken by descent to sale on execution, the sci. fa. must allege that the judgment is in force and unsatisfied, and that the personal estate is exhausted. The sci. fa. must contain every thing necessary to constitute a good declaration.

Quere,-Whether the lands must not be particularly described either in the body of the writ, or in the sheriff's return.

A writ of scire facias had issued, in the court below, in the following words: "Whereas, in the Term of December, Anno Domini 1818, of the Court of Common Pleas, within and for the county aforesaid, D. M'Vickar recovered a judg ment, by reason of the non-performance of certain promises and undertakings lately made, &c. against John Ludlow, James Findlay, David Risk, and Charlotte C. Risk, being the surviving administrators of the goods and chattels of Israel Ludlow, deceased, for the sum of twelve hundred and forty-eight dollars, for his damages, together with the sum of twenty-three dollars and twenty cents, for his costs and charges, by him, about his suit, in that behalf expended;—and it being represented to us, that James C. Ludlow, Israel Ludlow, A. Dudley, and Catharine his wife, late Catharine Ludlow, Jepthah D. Garrard, and Sarah Bella his wife, late Sarah Bella Ludlow, are heirs at law of the said Israel Ludlow, deceased, and that they have lands lying in the county of Hamilton, which they received from their ancestor, the said Israel Ludlow, deceased, as we, by the suggestion of the said D. M'Vickar, have been given to understand, we therefore command you, that you give notice to the said James C. Ludlow, Israel Ludlow, A. Dudley, and Catharine his wife, Jepthah D. Garrard, and Sarah Bella his wife, children and heirs of Israel Ludlow, deceased, if they may be found in your bailiwick, to be and appear before the honorable the Judges of the Court of Common Pleas, at Cincinnati, within and for the county, on the twen. ty-ninth day of November next, to show cause, if any they have or can show, why the said D. M'Vickar should not have execution of the judgment aforesaid, and the same be levied of the lands and tenements, so by them the said James C. Ludlow, Israel Ludlow, Jepthah D. Garrard, and Sarah Bella his wife, A. Dudley, and Catharine his wife, children and heirs, as aforesaid, held, agreeably to the statute of this state, in such case made and provided, if they shall think fit, and further to do and receive what may be then and there considered concern. ing them, and have then and there this writ. Witness," &c.

A rule for plea was taken, and at the August term, 1825, the defendants were defaulted, and judgment entered; and afterwards, at the same term, on motion, the judgment was set aside. The defendants then demurred to the scire facias— the demurrer was sustained, and judgment rendered for the defendants—to reverse which this writ of error was taken.

Gazlay, for plaintiff. Este, contra.

By the COURT.

In deciding this case, it will be proper to examine the errors assigned for a reversal of the judgment in the Court below, and also the grounds of the plaintiff's claim to a judgment in his favour, in this Court.

It was decided in Botkin, &c. v. the Commissioners of Pickaway county, (1 Ohio Rep. 375) that a final judgment in the Court of Common Pleas could not be altered, in any matter of substance, at a term subsequent to that in which it was rendered; but we do not know of any case that restrains a Court of Record from altering, or setting aside a judgment improperly entered, at any time during the term in which it was rendered, while the proceedings are considered as being in paper. Such a power seems to be necessary to the correct administration of justice. In the hurry of business, many entries are made, which require to be amended, or erased, and a discretionary power, exercised by the Court, to correct the journal in such cases, prevents much error and expensive litigation. The form in which applications of this kind are made, depends chiefly on the rules and practice of the Court. In this case, the judgment was by default, and was set aside on motion, without the formality of filing written reasons, which we believe is the usual mode of setting aside judgments of that character.

The second enquiry leads to an examination of the scire facias, on which the plaintiff prays for judgment. This proceeding is founded on the 27th section of the act of 1824, regulating judgments and executions; and although the section does not prescribe the form of the process, yet it is sufficiently explicit, when taken in connexion with its object, and the general rules of process and pleading, to enable us to decide without difficulty, what averments it ought to contain. Writs of this description, are entered on the record, with a mere formal charge, in the caption and conclusion, as the declaration in the cause. They must, therefore, contain every thing that is required to constitute a good declaration; or in other words, they must set out all the facts that are necessary to show a right in the plaintiff to the relief prayed for. The question then arises, does the record before us contain these requirements. The statute, as far as it governs the case, is explicit. It limits the remedy to judgments that are unsatisfied. It authorizes the procedure, only after the time allowed by the Court for the settlement of the estate, shall have expired. It requires the writ to set forth, that the defendants hold lands by devise, or descent, of the testator, or intestate, and the defendants must be called on to show cause, if any they have, why the judg ment should not be levied of the lands so by them held. It was, therefore, incumbent on the plaintiff, in setting out his title, to aver, that his judgment was unsatisfied, and that the time allowed by the Court, for the settlement of the estate, had expired. On these points, the record is wholly silent.