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The title of the lessor of the plaintiff, was founded upon a sheriff's sale. J. G. Ward was convicted of an assault and battery, at the November term, 1820, of the Common Pleas of Harrison county. Upon this conviction, an execution issued against his goods, chattels, lands, tenements, and body, for the fiue and costs, amounting to about thirty dollars. This execution was dated May 23, 1821, and upon it the sheriff took Ward in custody. To obtain the discharge of his body, Ward surrendered to the sheriff land, described in the return as follows: "Seventy acres of land, it being and lying in the south-west corner of the south west quarter of section 14, township 12, range 5, of the land sold at Steubenville;" and it was returned not sold for want of bidders. A vendi was issued to sell the land, and after a succession of writs, it was sold on a pluries vendi. March, 1824, without valuation, to the lessor of the plaintiff, for thirty-one dollars twenty five cents. The sale was approved by the court, and a conveyance made by the sheriff to the lessor of the plaintiff, dated 14th April, 1824, in which deed the description of the land conforms exactly to the levy.

The defendant claimed under a deed from James G. Ward, for seventy acres of land, described by metes and bounds-exactly including the land owned by Ward-dated August 25, 1821, which was after the surrender to the sheriff of the same land.

Beebe, for the defendant. Goodenow, contra.

By the COURT.

We entertain no doubt but that upon an execution, in a case like that against Ward, the defendant, if arrested may surrender land to the Sheriff, in discharge of his body. This surrender the Sheriff may accept, and when accepted, the effect of the proceeding is the same as that of a levy. It is a legal appropria. tion of the land to satisfy the execution. No subsequent disposition of it, by the defendant, can pass a title, so as to defeat and divest the interest attached by the execution and the proceeding on it.

We think too that judgments, for pecuniary fines, are debts due the state within the meaning of the law, authorizing, in such cases, the sale of lands without valuation, and that lands surrendered to obtain a discharge of the body seized in execution, are to be sold in the same manner, as if levied upon by the sheriff in the first instance.

The description of the land is in general terms. Seventy acres, being and lying in the south west corner. The defendant contends that this description is so vague and uncertain as, for that reason, to be void and inoperative. On the other hand the plaintiff contends, it is a good description to convey seventy acres of land, commencing in the south west corner, and extending on the west line, to the north west corner, in an oblong square. Neither of these construç, tions can be maintained.

The general position of the land conveyed, is given with sufficient certainty. It is in the south west corner. According to the rules of decision, both in this state and in Kentucky, that corner is a base point from which two sides of the land conveyed shall extend an equal distance, so as to include by parallel lines, the quantity conveyed. From this point the section lines extend north and east so as to fix the boundary west and south, the east and north boundaries only

are to be established by construction, and the rule referred to gives them with sufficient certainty.

It is argued for the lessor of the plaintiff, that the court, performing in this case the functions of a jury, are to decide not only the construction of the deed, but the intention of the parties. Where there is no ambiguity in the description, the construction of the terms employed is matter of law, independent of the intention of the parties. And here, upon legal principles, there is no ambiguity. Had the description been "seventy acres on the west side of the quarter," the whole west line must have been considered the west line of the tract, and the quantity laid out in an oblong square. It would have been a violation of the plain legal sense of the terms used, to lay out the land in a square, at either corner, upon parol proof that such was the intention of the parties. So in this case, no proof can justify us, in giving an interpretation, by which terms, that locate the land, in a square at the south-west corner, shall be made to locate it on the west side. The plaintiff must have judgment for so much of the land, in dispute, as may be included by a line, north from the south-west corner, such a distance, that the parallel line, of a square with four equal sides will include seventy acres.

THOMPSON v. YOUNG, ET AL.

Where the charter of a bank is extended and no new security taken of the cashier, the securities under the old charter are not liable for defalcations under the new charter.

A defendant cannot be concluded by an adjudication to which he was not a party.

This was reserved from Muskingum county. It was a bill in Chancery to compel contribution, upon the following state of facts:

In the year 1811, the bank of Muskingum was incorporated, the charter to continue from its passage until the 1st of January, 1818. The company was duly organized under this charter, and D. J. Marple appointed cashier. Isaac Vanhorn, Jeffrey Price, Samuel Thompson, and John M'Intire executed with Marple, as securities, a bond in the penalty of twenty thousand dollars. And Marple proceeded to discharge the duties of cashier.

Before the 1st day of January, 1818, the legislature passed a law, extending the charters of existing incorporated banks until the 1st of January, 1843, upon certain terms and conditions; and with these terms and conditions the bank of Muskingum complied, and Marple was continued cashier, without either a new appointment or a new bond.

In 1815, M'Intire, one of the securities died. In 1819, Marple became a defaulter to a large amont; and suit was commenced against Marple, Vanhorn, Price, and Thompson, the surviving obligors, and judgment obtained against them for the amount of the defalcation. At the trial, no evidence was given of any default before the first of January, 1818. Thompson, the complainant, having paid one-third of the judgment, brought this bill against the devisees and executors of M'Intire for contribution. The facts were presented by a plea, to which the complainants excepted.

Goddard, for defendants, in support of the plea.

By the COURT.

The authorities adduced by the defendants are conclusive that the securities were not bound for any defalcation that took place after the expiration of the first charter. And we hold them to be in accordance with the soundest principles of justice.

It is equally clear, that the defendants cannot be concluded by an adjudication in a case where they were not parties. The bill must be dismissed.

WADDLE ET AL. v. BANK UNITED STATES.

In an application to chancery for a new trial at law, the court being equally divided in opinion the bill was dismissed.

This case was reserved for decision at Columbus, by the supreme court in Ross county. It was a bill in chancery, to obtain a new trial at law, under the following circumstances:

The complainants endorsed a note for M. W. which was discounted, and renewed for some time, at the office of discount of the bank of the United States at Chillicothe. It was at length protested for non-payment, and suit brought against the endorsers. At the trial of that suit, the bank made no proof of demand of the drawer, and notice of non-payment to the endorsers. But in the place of this proof, gave in evidence a deed of trust from M. W., made for the security of the endorsers, upon a tract of land, equal in value to the debt. And upon this evidence, the bank recovered a verdict and judgment against the endorsers. Subsequent to this recovery, J. H. prosecuted a bill in chancery against Waddle and McCoy, upon a previous mortgage given by M. W. to him, on the same land, charging Waddle and McCoy with notice of such previous mortgage. In their answers, they denied notice. But on the hearing of the bill, the court decided that they were chargeable with notice, and decreed against them. The mortgaged premises were subjected to the payment of the debt to J. H., and no. thing was left for the indemnity of Waddle and McCoy. The bill was filed to obtain a new trial, upon the ground, that facts of subsequent occurrence, and which could not have been proved at the trial, rendered the verdict iniquitous and unjust.

Leonard and Atkinson, for complainants. Grimke, contra.

The court were equally divided upon the question of relief, so the bill was dismissed, but no opinion given.

DOE EX DEM. THOMPSON ET AL. v. GIBSON ET AL.

Where the plaintiff in ejectment shows that the original grantee was within the exception of the statute of limitations, proof that others deriving interest under the grantee are not within such exception, is unnecessary; if sued upon to defeat the recovery, it must come from the defendant. QUAERE, whether the statute of uses was ever in force in Ohio.

This case was adjourned from Highland county. It was a motion by the defendants for a new trial, where a verdict passed pro forma upon the following facts.

The plaintiffs deduced title from a patent to Ann Byrd, administratrix of Otway Byrd, deceased, with the will annexed, in trust for the uses and purposes declared in the last will and testament of Otway Byrd, deceased. This patent was dated January 31, 1803. It was admitted to include the lands in question, and it was also admitted that Ann Byrd, the patentee, resided in Virginia, and had never been in Ohio. There was no proof before the court of the nature of the bequests in the will of Otway Byrd, and none that any of the persons for whose use the lands were granted, had ever been in Ohio, or where was their place of residence.

For the defendants it appeared that they claimed title to the lands under a patent, dated February 23, 1810, founded upon a survey, made April 27, 1800; that under this claim of right, they took possession, in the year 1803, and had ever since remained in possession. The ejectment was brought in 1825.

Brush, Fitzgerald and Collins, for defendants.

Bond, contra.

The court were divided in opinion, upon the point whether the statute of uses (27 Hen. 8. Chap. 10,) had ever been in force in Ohio. Two judges held that that statute was in force in Ohio, from 1795, to January, 1806, for all the purposes that it was in force in Virginia or England. The other two judges held differently.

But the judges were unanimously of opinion that, it being shown that the grantee, Ann Byrd was within the exception of the statute, it was incumbent on the defendants to show that those whose interest was dependent on hers were not within the exception. Consequently the motion for a new trial was overruled, and

Judgment given for the plaintiff.

COURCIER ET AL. v. GRAHAM.

The doctrine of compensation, abatement and modification, is this: the complainant asks for a decree, and it may be granted to him upon terms; he may be told that he shall take less or give more, and to do so or not is at his own option: but the court cannot tell the defendant that he shall take less or give more, because to tell him so gives him no option.

This was a writ of error brought to reverse a decree of the court of common pleas of Hamilton county, pronounced in favor of the defendant in error against the plaintiffs in error, and was adjourned from the supreme court, in Hamilton county. The case was this:

In the year 1818 Graham made a contract with Courcier and Ravises, to sell them a tract of land, near Cincinnati, at a price per acre, to be fixed by men chosen by the parties, and to be paid for in merchandise in Philadelphia. Merchandise estimated at eleven thousand four hundred and eighteen dollars thirtytwo cents, was delivered to Graham on the contract The land, containing one hundred and two acres, was subsequently valued under the contract at three hundred dollars per acre. Exception being taken to the title, Courcier and Ravises sued upon the contract at law for the amount of merchandise delivered, and recovered. Graham brought his bill in equity to enforce a specific performance of the contract. The court of common pleas decreed a performance

upon terms.

The decree reduced the price of the goods delivered thirty-three and a third per cent. and the price of the land thirty-three and a third per cent. and decreed the balance of purchase money to be paid in cash. The general error was assigned.

Gazlay, for plaintiff in error. Hammond, contra.

By the COURT.

This decree is erroneous. abatement and modification, it is this. The complainant asks for a decree, and it may be granted to him upon terms. He may be told that he shall take less or give more, and do so or not, is at his own option. But the court cannot tell the defendant that he shall take less or give more, because to tell him so, gives him no option whatever. In this case it was competent for the court to decree a specific performance at the request of Graham, upon the terms of abating thirty-three and a third per cent. in the price of the land. But the court had no power to reduce the price of the merchandise. The decree must therefore be reversed and we retain the cause for further hearing, on the whole merits.

As we understand the doctrine of compensation

STERRET v. CREED.

A judgment will not be reversed for an error manifestly beneficial to the party seeking the re

versal.

This was a writ of error, to the court of common pleas of Fairfield county, reserved for decision here, by the Supreme Court sitting in that county. The principal, and only material error assigned, was, that the judgment did not agree with the verdict. It was an action on the case, by a subsequent against his immediate previous endorser, on a negotiable promissory note. The jury found a verdict for ten thousand nine hundred and fifty-three dollars-the judgment was for six thousand five hundred dollars, and the record contained no remittitur of any part of the damages assessed by the jury. The defendant sued the writ of error.

Irwin, for plaintiff in error. Ewing, contra.

By the COURT.

No case is cited to us-we have found none, in which a judgment has been re

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