Upon the second point there can be no difficulty. The assessment of a tax, upon a "part of a lot" or, "one acre of a lot" without quantity or location, in the one case, or without location in the other, is too vague and indefinite to authorize a sale of any part, or in any place.

By the 59th section of the judicial act it is provided that "in all actions of ejectment the plaintiff shall have the same benefit and advantage from a joint demise, that he could from several demises." This embraces the case of tenants in common. We have so settled this term in the case of the lessee of Wilkinson v. Fleming, from Butler county.

The objection that infants cannot make a lease by prochein amie is fatal to the plaintiff's recovery for all that he claims upon the demises of the infants.

Although the demise is a mere fiction, it is treated for many purposes as a real transaction. If the lessor of the plaintiff die pending the suit, it does not abate, because the nominal plaintiff survives. If, pending the suit, the lessor convey his interest in the land, the plaintiff may still recover. The lessor by transferring the fee cannot destroy the term of the lessee, but must convey subject to it. The demise, for the purpose of justice, is thus considered a real transaction, and must therefore, have the appearance of a legal one. A prochein amie has no power to lease the lands of his protege. He is neither attorney nor guardian. His office is solely to prosecute the suit, and for this purpose it is not necessary he should execute the supposed lease. A person acting in the character of an infant's friend, could not make a lease of lands that would bind the infant, or give the lessee a right of possession. Such a lease, though fictitious, yet being a necessary part of the plaintiff's right to recover, must be equally inoperative for that purpose. The verdict is incorrect and must be set aside. Except for the undivided part of the lessor, who being of age joined the prochein amie in the demise.

Judgment accordingly.

GILMORE v. MIAMI EXPORTING COMPANY.

An execution upon a judgment at Law and a return of no property, is not indispensable to authorize proceedings in chancery under the Statute.

This cause was adjourned from the Supreme court of Hamilton county. It was a bill in chancery, under the 59th section of the statute regulating proceed. ings in chancery, to charge debts due from the other defendants to the Miami Exporting Company, with the payment of a judgment obtained by the com plainants against the company. Upon one judgment no execution had been sued out, upon the other execution had issued, was returned nulla bona, and levied upon real estate, which upon a vendi, had been sold for a very small sum. No new fi. fa. had been taken. The bill did not charge that execution had been sued and nothing to be found, and for this cause the respondents demurred.

N. Wright and Este in support of the demurrer.

Storer, Caswell and Hammond, contra.

The court overruled the demurrer. Judge Burnet being a stockholder in the Miami Bank did not sit in the cause. Judge Sherman dissented. A majority of the judges not uniting in the opinion, no reasons were given.

WRIGHT v. LEPPER ET AL.

A bond for the redelivery of property taken in execution and not sold for half the appraisement under the act of 18 20, and not redelivered or tendered to the officer who made the levy, or his representatives, is forfeited, though no new execution be sued out.

This case was adjourned from the Supreme Court of Columbiana county. It was an action of debt upon a bond given, under the 12th section of the act of Feb. 24, 1820, for the re-delivery of property taken in execution, and not sold for one half its appraised value.

The condition of the bond, after reciting the previous facts of execution, levy, and re-delivery, is in these words, "if the said James Orr doth well and truly and without fail deliver unto the officer having an execution on the above judgment, the above mentioned goods and chattles, within six months from this date, then this obligation to be void."

There were several pleas and notices, but the facts in the cause intended to be presented, and upon which the cause was decided, were, that the plaintiff did not sue out any execution upon his judgment within six months from the date of the bond, and no delivery was made of the goods to the officer, or plaintiff, nor any offer made to deliver them.

J. C. Wright, for plaintiff. Loomis and Metcalf, contra.

By the COURT.

The defendants in this case, are securities, in a bond for the re-delivery of property, seized in execution, at the suit of the plaintiff, against James Orr. After the execution of the bond no second execution was sued out within six months

and no tender was made by the defendants, or by Orr, to perform the condition of the bond. The question to be decided is, whether the condition of the bond is forfeited under these circumstances.

By the 12th section of the act of Feb. 24, 1820, it is provided, inter alia, "that it shall be lawful for such officer to deliver such article or articles to the judgment debtor, upon his giving bond, with two securities, to the satisfaction of the officer, that he will deliver said article or articles to the officer having in his hands the execution upon the same judgment, within six months thereafter, which bond shall be made payable to the other party to the execution, and shall be returned with the execution, to the court or justice of the peace from which the same issued. '

The case turns upon the construction to be given to this execution. It is contended for the defendant, that the words "to the officer having in his hands the execution," must refer to the time, when the obligor is to re-deliver the property, and that therefore the execution creditor, if he mean to resort to the bond, must sue out, and place in the hands of an officer, a second execution, before the ex

piration of the six months. If he omit this, he prevents the performance of the condition by his own act, and the bond is discharged.

We do not think that the law can correctly receive this interpretation. It was undoubtedly the intention of the Legislature to give the debtor a stay of ex. ecution, for six months, if his property would not sell for one half its appraised value, and it is our duty, if possible, to give the law such construction, as shall give effect to this intention.

The phraseology of the act is very loose and indefinite, "within six months" are terms of uncommonly general import. But there can be no question that he, who is bound by a condition, to do an act within six months, has the whole period of six months to perform it in, and cannot be called upon, by the other party, to perform it before the last day. It would be a violation of just principles to read the provision so as to connect the words “within six months" with the fact, of the officer having in his hands an execution, and thus enable the plain. tiff, by suing out a new execution, to enforce a performance of the condition within six days, instead of six months.

The principal difficulty is to determine the true meaning of the words "the officer having in his hands the execution upon the same judgment." The present participle "having" may refer to the period of time when the bond is taken; it may also refer to the period when the bond is to be performed. The first is its most natural interpretation. The officer now having THE execution upon the judgment, is the plainest reading. If it referred to the future, its proper reading would be the officer who shall have AN execution. The most obvious sense of the language of the act, is in accordance with its intention.

When the officer having the execution made the levy, he acquired a special property in the chattles levied upon, he became entitled to the possession, and could sell them without an execution, if they were not sold in the first instance, for want of bidders. The special property of the officer excluded all other claims upon the property, of subsequent date.

Was his special property divested by the re-delivery of the goods to the plaintiffs and receiving a bond? We are of opinion that it was not. The bond was in the nature of a security, that the property should be safely kept, and returned to the officer when the time of keeping it expired. But the special prop erty of the officer remained, until the condition of the bond was broken. Up to that period the possession of the judgment debtor, was the possession of the officer. Before the forfeiture of the condition, no other execution could be lev. ied upon the property. This construction is consistent with principle, and for the security and ease of the debtor. It enabled him to obtain security, because the re-delivery of the property to him did not expose it to the grasp of another creditor.

The forthcoming bond, in Virginia, is of the same character with the bond to re-deliver in this case. And it has been settled in that state, after great consideration, by two judges to one, that the re-delivery of property taken in execution, to the defendant, upon giving a forthcoming bond, does not divest the right of property from the sheriff, and that the security has a right to deliver the identical property, to save the condition of his bond. (Lusk vs. Ramsay, 3 Mun. 417.)

If then the special property in the goods, in this case, vested in the sheriff, upon the levy, and remained in him while the condition of the bond was unbro. ken, it is a necessary consequence, that the condition only could be saved by a re-delivery, or an offer to re-deliver to him, or his legal representatives, at the time stipulated in the bond, which at the option of the defendants, might be the last day of the six months. The plaintiff could not sue out a new execution, for the levy was quoad a satisfaction. This interpretation, a majority of the court are of opinion, gives force and effect to the intention of the legislature; is consistent with the literal meaning of the language employed, and harmonizes with established principles. Judgment for the plaintiff. Judge Burnet dissented.

DOE EX DEM. WILKINSONS v. FLEMING.

Tenants in common may make a joint demise in ejectment.

This cause was reserved in Butler county. It was an action of ejectment, in which the declaration contained a single demise. The lessors of the plaintiff were six in number. They deduced title under the will of John Wilkinson, their father, who devised his lands to his seven children, as joint devisees. One of the devisces had conveyed his share to a co-devisee, one of the lessors of the plaintiff.

The plaintiff having exhibited his title, as above stated, the defendant's counsel moved for a non-suit, upon the ground that the title exhibited, showed that the lessors of the plaintiffs were tenants in common, who could not make a joint demise. This motion was sustained by the court, and the plaintiff became nonsuit. The question, whether the non-suit was correctly ordered, was, by agree. ment, reserved for decision at Columbus. If the decision was correct, judgment of non-suit to be entered. If otherwise, the non-suit to be set aside, and a new trial awarded.

Higgins, for the plaintiff.

By the COURT.

In the case of the Lessee of Massie's Heirs v. Long and others, decided at this term, the court have settled, that under our statute, tenants in common may make a joint demise. That decision is decisive of this case.

The non-suit must be set aside, and a new trial directed.

STARLING v. BUTTLES.

Where a surety, under the statute, gives notice to the creditor to commence suit, it is no compliance with the statute, to sue the surety alone.

This was an action upon a promissory note, and was adjourned from Franklin county.

The declaration was upon a promissory note, executed by Eli Adams, J. B. Gardiner, and Joel Buttles; and it appeared on the face of the note, that Ad. ams and Gardiner were principals, and Buttles a security.

The defendant pleaded that he was a security only, and the other two parties principals; that before the commencement of the suit against himself, he gave notice, in writing, to the payee of the note, and requested him to commence suit against the principals, agreeably to the provisions of the act, for the relief of sureties and bail, in certain cases, but that the payce wholly neglected to commence such suit.

To this plea, the plaintiff replied, that within a reasonable time after receiving such written notice, the plaintiff commenced the present suit against the defend. ant, and has proceeded with due diligence. To this replication the defendant demurred.

Wilcox, for the defendant.

By the COURT.

The act for the relief of sureties and bail, in certain cases, provides, that in cases where the principal debtor is likely to become insolvent, or remove from the county or state, without discharging the debt, the security may give the holder of the obligation notice, in writing, forthwith to put the obligation in suit. And if the holder do not, in a reasonable time after such notice, commence a suit and proceed diligently to judgment and execution, he shall forfeit his right to demand the money of the surety.

The object of this act is plainly to enable sureties, to compel a creditor, where his debt is due, to pursue the principal debtor by a suit, or exonerate the surety. It was intended to relieve sureties where the creditor felt safe in the responsibil ity of the surety, and took no steps to collect his debt, and it contemplates extending this relief, in a different form, from that of compelling the surety to pay the debt himself, and thus become the creditor, and bring suit. If, upon receiving the notice, it would be sufficient to sue the surety alone, the object of the law would be evaded: indeed, its provisions would be converted into insult. ing mockery. Upon receiving the notice, the creditor is bound to bring suit against all the parties, and pursue them all to judgment. He need not pursue the principal separately. But a separate suit against the surety, without any suit against the principal, is not a compliance with either the letter or spirit of the law.

The demurrer is well taken, and must be sustained.

LESSEE OF DAWSON v. PORTER.

A deed from the lessor of the plaintiff, made afier the suit is brought, is inadmissible to defeat thre plaintiff's recovery in ejectment.

motion for a new trial, adjourned The case was this: in an action

This case came before the court, upon a from the supreme court of Clermont county. of ejectment, the plaintiff gave in evidence, a patent, for the land in dispute, to his lessor. The defendant then gave in evidence, a deed for the same premises, from plaintiff's lessor to James Robb and others, dated aftor the commencement of this suit, and after the consent rule had been made, and the issue joined.