ment of his property, in compliance with the condition of his bond. The plain tiffs in the actiou also appeared, and objected to the appointment of the trustee, upon the groond that the applicant had not, in fact, been two years in the state, and, therefore, was not entitled to the benefit of the act for the relief of insolvent debtors. This fact being made out to the satisfaction of the court, they refused to appoint the trustee, and made an order dismissing the petition. The question was, whether upon this state of facts, the plaintiffs were entitled to recover.

Douglas, Brush and Fitzgerald, for the defendants. Leonard, contra.
By the COURT.

The application of a debtor in custody, under the act for the relief of insolv ent debtors, in 1822, when this bond was taken, was altogether exparte. It was only after the petition was filed, the order made, and the bond taken, that notice was to be given of the proceedings. The object of that notice was to bring in the parties interested to contest the right of the applicant to the relief sought. The facts assumed in the first order cannot therefore conclude any body.

The bond is required in the first place, for the security of the plaintiff in the action, that he shall lose nothing by discharging the defendant out of custody: the security of all the debtor's creditors is a secondary object. The applicant cannot be admitted to obtain his discharge upon false grounds, and then protect himself upon the plea of ignorance. The power of the court to appoint a trustee, receive his assignment, and finally discharge him, depended upon the fact that he had been two years a resident of the state. The court were not bound to investigate this allegation when it was made. But it was the right of those interested to make this investigation when they came in under the notice. Parties were then, for the first time, properly before the court, to litigate the applicant's right to a discharge. The order made, upon that litigation, is the first adjudication between the parties, and it is the first proceeding that concludes them.

The opposition made by the plaintiffs to the appointment of a trustee, and the acceptance of the assignment, is not of that character which discharges the obligation. No act of a plaintiff pursuing and insisting upon his legal rights, can be attended with such a consequence. It is an illegal and a mala fide interference on the part of the plaintiff, that excuses the performance. Here the plaintiffs did nothing but require a legal decision upon facts presented to the court. And this they had a right to do without prejudice to any matter in the case.

The applicant voluntarily undertook to do that which he knew the law did not permit. His object was to obtain a benefit for himself, to the prejudice of an. other's rights. For this purpose, he imposed upon the court a statement of facts that did not exist. The truth is elicited, and the applicant's purpose is defeated. This cannot be a case where the performance of the undertaking may be excused.

The defendant, Philips, was a security only, and it is insisted that he shall not be prejudiced by an error or mistake of the court. But how can he separate himself from the applicant, his principal? He joined him in the undertaking, and must stand or fall with him. He volunteered his aid to procure the applicant's discharge from custody, at the suit of the plaintiffs. If he did this upon a false

statement, surely he to whom it was made, and upon whom it operated so as to toduce confidence, ought to suffer, not the plaintiffs, who had no control over the subject, who legally were not parties, and who reposed no trust whatever. The error of the court was induced by the applicant. It operated to his advan tage, and to the prejudice of the plaintiffs. The security, and not the plaintiffs, incurred the risk. The court are all of opinion that the plaintiffs are entitled

to recover.

Judgment for the plaintiffs, and the cause remanded to the supreme court of Ross county, for an inquiry of damages.

CONN v. DOYLE.

A writ of error and supersedeas from the territorial general court to the common pleas, staying proceedings where the sheriff has a vendi. in his hands, and judgment affirmed, a procedendo from the general court to the sheriff, authorizing him to proceed to sell, is irregular; and a sale under such procedendo is void.

A motion was made in the supreme court for Hamilton county, by Charles Vattier, for an order on the present sheriff of Hamilton county, successor of James Smith, a former sheriff, to make the applicant a deed for the lot No. 86, in Cincinnati, alleged to have been sold by Smith, as sheriff, upon legal process, to Vattier. The facts of the case, material to be stated, were as follows:

At February term, 1801, in the common pleas of Hamilton county, James Conn obtained a judgment against Thomas Doyle for debt and costs, 50 dollars, 73 cents. C. Vattier, at the same term, also obtained a judgment against Doyle for debt and costs, 37 dollars, 52 cents. On the 11th of February, 1801, a writ of fi. fa. et lev. fa. issued on each judgment. On each of these writs, the sherit made the same return, that he had levied on the house and lot, No. 86, and held an inquest, which appeared in the schedule annexed to the return. The inquest, attached to each writ, found the yearly issues to be of the value of $12. On the 12th of May, 1801, a writ of vendi. issued on each judgment, upon which the sheriff returned "stayed by writ of supersedeas from the general court."

In April, 1801, writs of error were allowed and issued in both cases, and on the 30th of April, writs of supersedeas issued to the sheriff, commanding him, that if final process of any kind was in his hands, or should come into his hands, in the causes stated, he should forbear, and altogether surcease proceeding thereon, until the judgment of the General Court should be signified to him.

On the 27th March, 1802, a writ of procedendo issued from the General Court, in the case of Conn and Doyle, directed to the sheriff, reciting the issuing of the writ of supersedeas and the writ of error, and the affirmance of the judgment, and commanding the sheriff as follows: "Therefore, you will now proceed to do execution in the premises, as the law directs, our writ of supersedeas aforesaid, to you before directed, to the contrary thereof in any wise notwithstanding." Upon this writ of procedendo, is endorsed the amount of damages, interest, and costs, in the Common Pleas, the costs in the General Court, and sheriff's fees, amounting in the whole to 95 dollars, 10 cents. The sheriff has also endorsed upon this writ as follows: "I have sold the property within referred to,

being in lot No. eighty-six in Cincinnati, to Charles Vattier, for ninety dollars, and have made the money."

It was proved by parol testimony, that Vattier purchased the lot at sheriff's sale, and that the sale was advertised in a newspaper, in the manner prescribed by law.

The question arising upon these facts, was reserved for decision here.

Caswell, for the application. Doddridge and Haynes, against it.

By the COURT.

This application is made to us, upon the ground that the writ of procedendo, from the general Court, was the process upon which the sale was made, and that the Supreme Court of the state, now represents that court.

By the writ of affirmance, upon the writ of error, in the General Court, the judgment of the Common Pleas, and the proceedings under it, were placed in the situation in which they stood, when the writs of error and supersedeas issued. The party was at liberty to sue out a new writ of venditioni, upon which the sheriff could proceed as he would have done, upon the writ previously superseded in his hands. The procedendo, if it were well directed to the sheriff, which is certainly doubtful, conferred no power to sell. It only removed the prohibition interposed by the writ of supersedeas. The authority to sell was originally given by the process of the Common Pleas; it had been suspended, but was not taken away by the writs of error and supersedeas. The procedendo restored it, but did nothing more. If the sale was really made without other process than the procedendo, it was made without authority. As. no other process issued from the General Court, this court, now representing that one, cannot make the order asked for. They have no jurisdiction of the subject, and the application must be overruled.

SARCHET v. SARCHET.

When upon an equitable adjustment of partnership transactions, two parties, are in equity creditors of a third partner, equity will set off such credits against a joint debt due from the same two parties to the third.

This case was adjourned from the Supreme Court of Guernsey county.The facts material to understand the point, decided by the court, were as follows:

In May, 1809, Peter Sarchet, whose representatives are the principal defendants in this case, with John and Thomas Sarchet, the complainants, and Thomas Knowles purchased a lease upon the Muskingum Salt Works. Price $5000. $1000 to be paid in hand, and 1000 on the 10th of June, annually, until còmpleted.

The terms upon which the purchasers agreed to carry on the manufactory of salt, were, that they were to be jointly and equally interested.

By an endorsement on the article dated, June 12, 1809, Knowles sold out his interest to Peter Sarchet, who agreed to comply with the article in Knowle's place.

The three Sarchets proceeded to engage in manufacturing salt, and in the course of their business, before 1811, Peter Sarchet sold one third of Knowles' interest, purchased by him, to Thomas Sarchet, and one third to John Sarchet. Knowles received what was estimated at $1300 of Peter. Thomas Sarchet paid Peter $433 33 cts. one third of that sum, and John Sarchet agreed to pay the same amount.

Upon the dissolution of the salt manufacturing firm, a controversy arose between John and Peter Sarchet, as to John's indebtedness to Peter, for one third of Knowles' share. John claimed that he was to pay for it out of the profits of making salt; that no profits were made and nothing was due. Peter claimed the whole sum, $433 33 cts. as a subsisting debt. Though other private accounts existed, and although the partnership affairs were unsettled, this seems to have been the only item of dispute. They agreed to refer it to men. An arbitration bond, in the penalty of $500, submitting all matters in dispute between the parties, was drawn up, and executed by John and Thomas to Peter, conditioned that John should abide the award. The arbitrators proceeded to make an award embracing all subjects of controversy between the parties, and specifically and in terms including matters connected with the partnership. It also awarded that John should pay Peter $633 13-130 in money.

So soon as this award was delivered, an allegation was made by John Sarchet that it was founded in a great mistake. Explanations took place among the arbitrators, and an attempt was made to draw them to a re-consideration, but it did not succeed because Peter was not to be found.

Peter Sarchet left the country in 1813, and is since dead, insolvent. Pending the litigation upon the arbitration bond, Chandler prosecuted two suits against the Sarchets and Knowles, for the purchase money, upon which John and Thomas Sarchet have paid the amount recovered, being $4076 65; except $100 paid by Peter, credited on the first judgment, and $500 paid on the second by Knowles and others, which was carried to the account of Peter Sarchet, leaving $3476 65.

The object of the bill is to be relieved against the award upon the ground of mistake, and if that fail, to off-set, against the judgment, the amount paid to Chandler which was Peter's part of the original purchase money.

The case was elaborately argued upon all the grounds, by Goodenow for the defendants, and Culbertson and Hammond for the complainants. But as the court confined their decision altogether to the question of off-set, it is deemed unnecessary to report the arguments on the other points.

Goodenow, for defendants.

By the COURT.

Culbertson and Hammond, contra.

The purchase of the lease of the salt works, by the three Sarchets and Knowles, to carry on salt works, constituted them partners. When Knowles sold out to Peter his one-fourth, and Peter sold an equal proportion of that fourth to Thomas and John Sarchet, the three Sarchets became, in equity, partners in the salt works property. Peter Sarchet covenanted with Knowles to perform to Chandler, Knowles' covenant with him, and Thomas and John became parties to this contract, by their subsequent agreement with Peter. In this state of the case

Thomas and John Sarchet, when they paid the whole purchase money to Chandler, could not compel Knowles to contribute his fourth part, because, in equity, Knowles owed nothing. The three Sarchets were the real debtors. Thomas and John owed two-thirds, and Peter one-third. Peter was, therefore, the debtor to Thomas and John, for all the money they paid beyond their own proportion of that contract.

But as between the original parties, no change was made in their respective legal rights. The three Sarchets and Knowles remained bound to Chandler upon their covenant, for the purchase money; and the new arrangements between Knowles and the Sarchets was never reduced to such legal forms as to create new legal interests. When suit was prosecuted against Thomas and John Sarchet by Peter, they had not paid the amount dne to Chandler, and had they made such payment, a doubt might have arisen whether it could have been set-off at law, because it was only by a resort to equity that the true state of their respective interests and liabilities could be determined and adjusted.

If there were no doubt due from Thomas and John Sarchet to Peter, and they having paid the whole amount due to Chandler, sought to subject Peter to the payment of his proportion, it would be necessary for them to resort to equity, as well upon account of the partnership, as that the contract with Chandler, upon which the payment was made, embraced other parties. In a bill to account by Thomas and John against Peter, it would be sufficient to mark Peter defendant, and there can be no doubt that he could have set off his judgment against Thomas and John. This view of the situation of the parties, seems to demonstrate the property of allowing the set-off now claimed. It is a cause of mutual credits, "due to and from the same persons in the same capacity," and is within the principle laid down in Dale v. Cook, 4 I. C. R. 11, relied upon by the respondents'counsel. In Quintin's case, (3 Ves. 248) and in James v. Kynnier, (5 Ves. 108) set-offs were allowed in equity, which, it was admitted, could not be made at law. These, it is true, were cases of a bankruptcy of one of the par. ties. But in Dale v. Cook, Chancellor Kent correctly remarks, that the set-off cases in bankruptcy "leave the general rule very much as it existed before." Set-off decreed-each party to pay his own costs.

LESSEE OF WALSH v. RINGER.

A defendant arrested upon execution for a fine, may surrender land in discharge of his body. Land thus surrendered may be sold without valuation. "Seventy acres, being and lying in the south west corner" is a good description, and the land will lie in a square.

This was an ejectment, adjourned from the Supreme Court of Harrison county, upon a case agreed.

Both parties deduced title under James G. Ward. The history of the claim of each is as follows:

James G. Ward owned seventy acres of land, situate on the west side of the south-west quarter of section 4, township 12, range 5, beginning at the southwest corner of the section, and lying in an oblong square, extending north 160 perches, and east 70 perches, from the south-west corner.