In testimony whereof, the parties hereto, have set their hands and seals, this fourteenth day of March, in the year 1825, in the presence of witnesses. CORNELIUS SEDAM, Seal. NANCY SEDAM, Seal.

Witness, STEPHEN FEXTEN.

Not long after the execution of this agreement, the widow intermarried with Shotwell, in consequence of which the provision under it terminated. The bill was then brought for dower. The defendants resisted the claim on the ground that, the provisions of the will being incompatible with dower, the testator intended it as an equivalent, and the widow having accepted it could not afterwards claim dower. They also insisted that the agreement with Cornelius Sedam was an acceptance on her part of the stipulations of that agreement in lieu of dower, which was made upon good consideration, and having been executed by both parties, up to the time of the marriage, could not, in equity, be avoided by either party.

Harrison, for complainants. Fox, IIammond and Storer, contra.
By the COURT.

It is certainly a nice question, whether the devise in the will to the widow, would not, upon being accepted by her, operate to bar her dower, in the premises devised to others, and charged with her support. But this question it is not necessary to decide, because the court are very clearly of opinion that the subsequent contract entered into between the widow and Cornelius Sedam, constitutes an equitable bar to the dower claimed.

Whatever indulgence is shown to the acts of feme coverts, concerning their dower, there is no reason for treating the contracts of feme soles, where dower, in an estate of a deceased husband, is the subject of contract, in any other man. ner, than the contracts of other competent persons. In this case, the widow, with a perfect knowledge of the whole subject, and for the purpose of adjusting all difficulties, agreed to submit her rights, under the will, to the determination of mutual friends. They made an award, and after that award was made, she entered into a written contract with the other party, to carry the principle of the award into effect, upon data settled between themselves.

In this agreement, it is expressly recited, that she had elected to take under the will, whether said election was matter of record or not, and that such election to take under the will, was "in lieu of dower." A respectable provision is secured to her by this agreement, besides what she takes under the general devise, being a full child's part, and she enters into the enjoyment of it. There is no pretence that she was ignorant of her rights, that any imposition was practised upon her, or that the contract itself was in any respect unequal. By her marriage she lost the benefit of it, but that being her voluntary act, cannot effect the obligation, or extent of the original contract.

It is urged that this agreement extends no further, than to settle what she was to receive under the will, and does not touch the question whether the bequest in the will, was in addition to, or in lieu of dower. The agreement itself refutes

this argument. It asserts expressly, that the arrangement is to be in lieu of dower. It was upon this basis, that both parties to the contract proceeded. And it cannot be permitted to one of them to take all that the contract gave, upon a state of facts admitted between them at the time, and then deny her own recitation of the facts, and set up a claim founded upon a directly opposite position. This would be to practice a fraud upon the heir, who agreed to do certain things, in the expeciation that, by doing them, his estate was discharged of dower.

Another argument urged against this agreement being made to operate as a bar to dower is, that dower being real estate, can only be transferred by the legal mode of conveyance. This is not a tenable position. A man may divest himself of an estate which lies in action only, by doing such acts, and making such agreements as operate to bar his action, though no conveyance be executed. Thus, a controversy about title to real estate, may be settled by arbitrament and award; so it may by accord and satisfaction, and by other acts in pais. In the case of Smiley and wife, v. Wright, 2 Ohio Rep. 506, this court adjudged that a widow barred her recovery of dower by a parol assent that the adminis. trator might sell the estate of her husband, discharged of her dower, upon the faith of which the purchase was made. So, in this case, the agreement, though not a conveyance of the estate, may be set up, in equity, to bar her recovery. Equity would enforce a specific performance were the defendant driven to seek it and as the claimant of dower comes into equity for relief, her equitable rights are all open to be considered. We are of opinion that she is barred by the agreement, and her bill must be dismissed.

STATE OF OHIO v. WELLMAN.

In a recognizance to appear and answer, the words, "in case said party was legally imprisoned on said charge," are surplussage.

This was a sci. fa. upon a recognizance adjourned here by the Supreme Court of Cuyahoga county. The defeasance was in these words:

"If the said Joseph Kuln, shall personally appear at the next Court of Common Pleas, to be holden in and for said county, then and there to answer a charge of kidnapping, and to show cause why sentence should not be pronounced against him by said Court, and not depart without leave, in case the said Joseph was then legally imprisoned on said charge, then the recognizance to be void, &c."

The sci. fa. being served on Wellman only, he appeared and showed for cause, "that the said Joseph Kuln, at the time of the supposed entering into said recognizance, by the said Wellman, was not legally imprisoned on said charge, in said recognizance mentioned," and concluded with a verification. The prosecuting attorney demurred, and the Court of Common Pleas gave judgment for the plaintiff, from which the defendant appealed.

L. Case, for the plaintiff.

By the COURT.

It is very clear that the plea is bad. The matters of fact which it was sup

posed rendered the imprisonment illegal, ought to have been set out, so.that the Court might judge of their sufficiency, if demurred to, or that the proof might be applied to them if they were traversed. As it stands, the plea alleges no fact to sustain the conclusion it asserts, that the party was not legally imprisoned; and were we to give judgment for the defendant, no person, from perusing the record, could tell upon what our judgment was grounded.

The qualification in the recognizance, that it was only to be valid in case the prisoner was legally imprisoned, can have no operative effect, and must be regarded as mere surplussage. If the party were illegally imprisoned, the law provided a means for his legal discharge, and when discharged the recognizance could not bind him or his bail, if these terms were not contained in it. If taken under any circumstances that could legally affect its obligatory force, the defendants could avail themselves, by way of defence, of such circumstances, though no reference were made to them in the recognizance. The terms inserted, cannot, therefore, either vitiate the recognizance, or enlarge, or restrict its obligation.

Judgment affirmed.

HUNT, ET AL. v. YEATMAN.

A judgment irregularly entered may be set aside at a subsequent term, on motion. This was a writ of error, to the City Court of the city of Cincinnati, adjourned for decision here by the Supreme Court of Hamilton county. The case was this: The plaintiffs in error, prosecuted a scire facias, upon a mortgage against the defendant in the City Court, to March term, 1822, and at the same term a judgment was entered up against the defendant. At a subsequent term, upon the motion of the defendant, the judgment entered against him was set aside, and the cause continued. In 1824, the case was put to a jury, and the plaintiff's evidence being overruled by the court, they suffered a non suit. This writ of error was brought to reverse the judgment, or order setting aside the judgment originally given for the plaintiff.

N. Wright, for plaintiffs in error. Storer, contra.

By the COURT.

The power to set aside a judgment, for manifest irregularity in entering it, is exercised by all courts of justice. And this power is exercised, not merely at the term in which this judgment is rendered, but at a subsequent term. To alter or amend a judgment, otherwise regularly entered, is a very different thing from setting it totally aside for irregularity. The majority of the Court entertain no doubt, that the City Court might, in a proper case, set aside a judgment entered at a previous term. Whether they erred in the particular case before them, cannot be ascertained. As they acted upon matter in pais and not upon matter of record, and no bill of exceptions was taken, we cannot go further than to decide upon the general power. e see no cause for reversing the judgment, and

it must be affirmed.

We

Judge BURNET dissented.

FOBES, ET AL. v. CANTFIELD.

An agreement to pay interest upon interest, after the interest has accrued is not usurious. This case was adjourned from the county of Trumbull. It was a bill in chancery, to foreclose the equity of redemption, in mortgaged premises, or to have a sale to raise mortgage money. The facts of the case were as follows: In the year 1801, the defendant was indebted to the complainants as security for some friends who had become bankrupt, and executed his individual notes for the amount, payable at short dates, and bearing interest at the rate of six per cent. In the year 1807, the principal and interest being unpaid, an agreement was made that the interest should be cast to that date, and that from that time the defendant should pay interest upon the aggregate amount annually. In 1812, the whole still remaining unpaid, the defendant agreed to give the mortgage in question, to secure the payment, and agreed that simple interest should be calculated to 1807, and compound interest annually, from that time. The amount due upon this calcu. lation was ascertained, and several notes with the mortgage given to secure the payment. And the question was, whether this was usurious under the laws of Connecticut, where the contract was made.

T. D. Webb and J. C. Wright, for the complainants. Tappan, contra.
By the COURT.

A sum of money due for interest, is as justly and fairly due as for any other consideration, and an agreement to pay interest upon it, after it is due, cannot be deemed usurious. Courts have been indisposed to compute interest upon interests, where the contract between the parties is silent. But if when the interest is due and payable, and constitutes a then subsisting debt, the debtor ask to retain it, and pay interest upon the amount at the legal rate of interest, the agreement is not usurious. It is nothing more than an agreement to pay legal interest for the forbearance of enforcing the collecting a debt then actually due and demandable. Such was the case before us. In 1807, the debtor agreed that upon the principal and interest then due, he would pay the interest annually. This agreement he failed to perform. In 1812, he acknowledged the existence and obligation of the agreement, and settled the account according to it, and gave his notes for the amount, and the mortgage to secure the payment. If instead of giving the notes and mortgage, in 1812, he had when the amount was ascertained, paid it in money, he certainly could not have sustained an action to recover back what he now calls the usury. Neither can he now set it up to avoid the mortgage or to escape from the payment. It was but the compliance with his agreement to pay the interest annually, and did not put the party in the same condition he would have been in, had the interest been annually paid. For the receipt of the money might be worth more than the engagement to pay it. The contract was fair, free from injustice or oppression, and not touched by the We are therefore of opinion that the complainants are entitled to a decree for the whole debt claimed.

statute.

STIVER v. STIVER.

Equity cannot review the errors of a Court of Law.

This was a bill in chancery, adjourned here for decision, by the Supreme Court of Montgomery county. The material facts of the cause were these: The defendant had prosecuted a suit at law against the complainant, who was an executor. The suit was commenced within the time, when the statute provides that, if a plaintiff sue an executor or administrator, he shall not recover costs. The case was carried by appeal to the Supreme Court, and there finally tried. The plaintiff in that case recovered, and in making up the record, a judgment was entered for damages and full costs against the defendant; the damages to be made of the goodsof the testator, the costs of the proper goods of the defendant. This was certified to the Common Pleas, and execution issued for the amount. At the next term the Supreme Court was applied to, to correct the judgment as to the costs which was not done. A suit was then commenced on the appeal bond, by the original plaintiff at law, to subject the security to the payment of the costs in question. This bill was prosecuted to enjoin the recovery, and brought by appeal into the Supreme Court.

Bacon, for complainant. Stoddert, for respondent.

By the COURT.

The single question to be decided in this case is, whether an error in rendering judgment in the Supreme Court, can be corrected by the Court of Common Pleas, or by this court on bill in equity? And we are of opinion that it cannot be so corrected. If the error be a judicial one, and has been committed by a court of the last resort, no means is provided for its correction, unless it can be corrected by motion, or upon writ of error, coram nobis. It is dangerous to attribute errors which the record imports to be judicial, to the Clerk. But if the court at law, where they are made, cannot rectify them without departing from established principles, that circumstance cannot give jurisdiction to a court of chancery. The bill must be dismissed.

GANO v. WHITE, ET AL.

An injunction against a judgment at Law does not operate as a release of errors. This was a writ of error, brought to reverse a judgment rendered by the Court of Common Pleas of Hamilton county, in favor of the defendants as assignees of Riddle. The defendants in error pleaded in bar to the writ of error, certain proceedings in chancery, which they set out in their plea, and alleged that they operated as a release of errors, and to this plea the plaintiff in error demurred. The case was adjourned for decision here by the Supreme Court of Hamilton county. The facts of the case are as follow:

The plaintiff in error was indebted to Riddle in a considerable sum of money, for which he had given separate notes payable at different periods. One of