The plaintiff objected to the admission of this deed; but the court overruled his objection, and a verdict was given for the defendant. The plaintiff moved for a new trial, on the ground of mistake in the law, in admitting the deed offered by defendant. T. Morris, in support of the motion. (Cited 2 Wheat. 223. 1 Marshal, 166 Adams Eject. 31.) By the COURT. The authorities cited, are conclusive that the court erred in receiving the deed offered by the defendant. There must be a new trial. SERGEANT v. STEINBERGER, ET AL. Estates in joint tenancy have no existence in the the State of Ohio. This was a writ of error, brought to reverse a decree in Chancery, dismissing the complainants' bill, and was adjourned for decision from Pike county. The bill was filed to obtain partition of certain lands, one-fifth of which the complainants claimed in right of Mrs. Sergeant, as heir at law to her mother. The bill charged that D. M'Neil, by his last will and testament, dated June 17, 1806, made the following devise: "I give and bequeath unto my daughter Sarah, and unto her husband, Charles Steinberger, and their heirs and assigns forever, three hundred acres of land," &c. That Steinberger and wife took possession of the land. That Mrs. Steinberger died before her husband, leav. ing five children, of whom the complainant, Mrs. Sergeant, was one. That Charles Stinberger, after the death of his wife, made his will, and devised the lands in question to the defendants, his three sons. The defendants demurred. The court of Comon Pleas sustained the demurrer, and dismissed the bill. King, for the defendants. Bond, contra. By the COURT. It has more than once been decided by the Supreme Court, on the circuit, that estates in joint tenancy do not exist under the laws of Ohio. The reasons which gave rise to this description of estate, in England, never existed with us. The jus accrescendi is not founded in principles of natural justice, nor in any reason of policy applicable to our society or institutions. But on the contrary, it is adverse to the understandings, habits, and feelings of the people. We have no statute recognizing the existence of any such principle as the right of survivorship. But we have various statutory provisions inconsistent with it. The laws passed, both during the territorial government and since, authorize joint tenants, tenants in common, and co-parceners, and, in some cases, the executors, administrators, or guardians of such persons, to demand and have partition. It is from this, evident that the legislature have treated a joint tenaney as a tenancy in common. It is well settled, that the joint tenancy of husband and wife varies in many principles from other joint tenancies. The estate could not be severed, which resulted, most probably, from the fact, that the wife could do.no act separate from her husband. The conviction of one of the parties of treason, did not work a forfeiture of the other's right. And this was, we may fairly infer, a principle introduced to lessen the number of forfeitures, which were always odious. But the right of survivorship was the same, as in other cases of joint tenancy, and in the case of husband and wife, is as much at variance with our laws and usages, as in the common case. Upon the death of Mrs. Steinberger, her undivided half of the land devised, descended to her children, who became tenants in common with their father. The complainants show a good title to one-fifth of their mother's part, constituting one-tenth of the whole tract, and appear to be entitled to have that tenth set off to them. The decree of the court of Common Pleas is reversed, and the cause sent back to be further proceeded in. LESSEE OF McCULLOCK v. ATEN. Where a deed cal's for a corner standing on the bank of a creek "thence down said creek with the meanders thereof " the boundary is the water edge at low water mark. This case came before the court upon a motion for a new trial, and was reserved by the Supreme Court of Jefferson county. Upon the trial, deeds were given in evidence, from Emons the patentee to Smalley, from Smalley to Burson, and from Burson to M'Cullock. Each of these deeds contained the following description of the boundary which was in dispute, “beginning at a white oak, on the south east bank of Yellow-creek, thence down said creek with the several meanders thereof, 207 perches to a post on the point, at the mouth of Hollow Rock, upper side." The defendant gave in evidence a deed from Emons to Nessly for a part of the same section of land, of prior date to that of Smalley. This deed conveyed to Nessly, land "to the north bank of Big Yellow creek, thence up said creek," &c. contained a covenant to allow Nessly to raise a dam on said creek ten feet high, for water works, acknowledging satisfaction for all damages done to the residue of the section. Also a deed from Emons to Aten subsequent to that of Smalley, under which the lessor of the plaintiff claimed, in which the line in controversy was thus described "to land the property of Burson, thence up Yellow. creek, the several courses and distances thereof, to a marked white oak, corner of said Burson's land, thence across Yellow-creek." Excepting to Nessly the right to back water, &c. The white oak called for by both deeds was found on the ground, about four rods from the channel of the creek, and about one rod from the top of the bank. There was a salt well on the beach, below the break of the bank, but not within the water channel, and this was the matter in dispute. The defendant Aten was in possession of the well. The defendant offered evidence to prove that at the time of the sale from Emons to Smalley, it was understood that the line was to run at the top of the bank, or along the beach and slope of the bank. But the court rejected the evidence and instructed the jury that according to the calls of the deed, the plaintiff had a right to recover to low water mark on the creek as a common boundary. Verdict for the plaintiff and a motion for a new trial. J. C. Wright, in support of the motion. Doddridge, contra. By the COURT. The single question to be decided, in this case, is, what boundary is described by the terms "down the creek with the sevaral meanders thereof?" And we think it perfectly clear that these terms describe the water in the bed of the creek, and not the top of the bank. This, we understand, to be a settled rule, wherever the stream is made the boundary. It is the water, and not the bank of its channel that is referred to. The state is bounded by the Ohio river: but it can scarcely be supposed that the beach, below the break of the bank, is not within her jurisdiction. In the case of Handly's Lessee v. Anthony, (5 Wheat. 374) this doctrine is distinctly recognized by the Supreme Court of the United States, as being a rule of boundary. And it is one to which this court have always adhered. An attempt is made to distinguish this case from the general application of the rule, upon its particular circumstances. The boundaries described as corners, are found on the bank, at a considerable distance from the water's edge. And it is maintained that by these corners the grantee must be concluded.— This position involves the consequence that corner trees always stand in the mathematical line, which technically is the boundary. But this is not the fact, either with respect to corner or line trees. It is not unfrequent that both stand a greater or less distance from the actual line. The nearest and most permanent trees are usually marked. A tree marked as a corner, upon the bank of a stream, never can stand, upon the water line, at low water mark. And where the call is for the meanders of the stream, the corner is not supposed to be exactly in the line. The fact that the marked corner, called for, stands four rods from the water, does not create any ambiguity in the terms "down the creek with the several meanders thereof." They import the water edge, at low water, which is a decided natural boundary, and must control a call for corner trees, or stakes upon the bank. There is nothing in the various deeds inconsistent with this interpretation.Emons did not grant the creek to Smalley, but the land south of it. He did grant it to Aten, and made Smalley's line the boundary of the grant to Aten, and his repetition of the calls, in Smalley's deed, cannot change their legal import. Nor does such repetition evidence any intention to do so, or to confine Smalley's grant to the top of the bank. When we decide that the plaintiff's boundary is the water, and not the bank, we impugn none of the principles laid down by Judge Washington in the case of Wright and Hill, so strongly relied upon by the plaintiff. New trial refused, and judgment for plaintiff, on the verdict. DORFLINGER v. COIL. Equity will not grant a new trial where the party seeking it has been guilty of anglect. This cause was adjourned from the Supreme Court of Ross county. It was a bill in chancery, praying that a new trial might be granted at law. The bill charged that the respondent brought an action of covenant against comp't. in the court of Common Pleas of Ross county. That after the service of process, he was informed by the clerk of the court, that no security for costs was given, and that there could be no trial upon that account. In consequence of which information, he did not attend to make defence. That judgment passed against him in the court of common pleas by default, of which he obtained information, and took and perfected an appeal to the supreme court. That he employed judge Thompson to defend it, who advised him there could be no trial at the first term of the supreme court. Reposing upon this advice, he did not attend the court; and judge Thompson, his counsel, was absent at the sitting of the supreme court, in his place, as a member of congress, at Washington. That judgment, by default, was rendered against him in the supreme court, of which he knew nothing until served with an execution. He also charges a full and complete performance of the contract, upon which the suit is brought, which he could establish by proof, if a new trial were granted. He prays a new trial. The respondent demurred, and the cause was heard upon the bill and demurrer. Sill and Leonard, for defendant. By the COURT. Bond, contra. The bill makes no case of either surprise or mistake; but only a case of negligence. Had the defendant attended the sitting of the court, and paid proper attention to his business, a judgment by default could not have passed against him. It is no sufficient apology for abandoning all attention to a suit in court, that counsel informed the party it could not be tried at the first term. However great the hardship, a court of equity never relieves in a case of this charac ter. The demurrer must be sustained, and the bill dismissed. SMITH v. THE COMMISSIONERS OF LICKING COUNTY. In an action on a sheriff's bond, the judgment must be for the debt, with leave to take out execution for the damages. A judgment for damages only is erroneous. This was a writ of error to the judgment of the court of Common Pleas, in Licking county, adjourned here, for decision by the Supreme Court sitting in that county. The suit was brought by the commissioners against the administrators of Smith, who was security upon a sheriff's official bond. The defendaut pleaded non est factum, upon which issue was joined, and also a special plea, to which there was a demurrer. The Common Pleas sustained the demurrer. And upon the plea of non est factum the jury found a verdict for the plaintiff, and assessed the damages sustained by the person for whose use the suit was brought, Judgment was entered for these damages only, and not for the debt, to have execution for the damages. The case was argued at large, upon the question presented by the plea and demurrer, as well as upon the form of entering the judgment. Irwin, for plaintiff in error. Ewing, for defendants in error. By the COURT. There is a difference of opinion among the judges, as to the validity of the plea. But as they are unanimous in the opinion, that the judgment was erroneously entered, they do not decide upon the other matters. The statutory provision, in cases like this, is express, that the plaintiff shall "recover judgment for the amount of the bond, on which judgment an execution may issue for such sum, as it may be ascertained, will be sufficient to indemnify the person so su. ing." The judgment in the case before us, does not conform with this provis. ion. It is therefore erroneous, and must be reversed. The court award a venire de novo, and remand the cause to the court of Common Pleas of Licking county, with leave to the parties to amend their pleadings. LOINES ET AL v. PHILIPS. The original application of an insolvent debtor is ex parte. When an application of an insolvent debtor is dismissed upon hearing, on the ground that he was not two years a resident, the sureties are liable. This was an action of debt upon a bond executed by the defendant as security for Stephen Loines, upon his application for the benefit of the act for the relief of insolvent debtors. The declaration set out the bond, the condition of which was that the applicant Stephen Loines "should faithfully assign all his property for the benefit of his creditors to such Trustee as the court may appoint." The defendant plead. ed seven pleas, some of which were demurred to, and to others there were repli. cation and rejoinders, and demurrers again, presenting all the complexity and nicety of special pleading. The state of facts upon which the judgment of the court was required, is as follows. Stephen Loines being arrested upon mesne process, in October, 1832, applied to the court of Common Pleas of Ross county, then in session, for the benefit of the act for the relief of insolvent debtors. The usual order was made that it appearing to the court, that the applicant had been two years a resident of the state, he should be discharged out of custody upon giving a bond with security to assign his property to such Trustee as the court might appoint, upon the final hearing. The defendant with the applicant executed the bond in question, and the applicant was discharged out of custody. The regular notice was given, and at the next term the applicant appeared in court, and applied to have a Trustee appointed, that he might make the assign |