them had been assigned to the defendants upon which they had obtained the judgment in question, in June, 1823. Upon others of the notes, Riddle had sued, and also obtained judgments in May, 1823. The plaintiff in error, then defend. ant at law, filed a bill in equity against Riddle and against the present defendants in error, for the purpose of obtaining an allowance by way of set off, of sundry claims against Riddle. An injunction was allowed until final hearing, and, upon a final hearing, the injunction was made perpetual as to the judgment obtained by Riddle, but dissolved as to the judgment obtained by the defendants. in error. The order of injunction contained no condition that the complainant should release errors at law, and no such release was made.

Storer, for plaintiff in error. Este, contra.

By the COURT.

The plea must be overruled. It has never been held that a bill in equity to enjoin a judgment at law, is of itself a release of errors. The execution of such a release is often, in some courts, perhaps always, made a condition of allowing an injunction. When that is done, the party proceeding upon his bill would be held to have executed the release, and precluded from reversing the judgment for error, although no release were in fact executed. But here there was no such order, and neither our statute, or any rule of court makes it necessary, that a release of errors, should precede the operation of an injunction. There is consequently no legal foundation to sustain the plea.

LOCKWOOD, ET AL. v. MILLS, ET AL.

Parties receiving separate allotments in the same tract of land are not tonants in common so as to claim partition of a surplus.

This was a bill in chancery, adjourned for decision here, upon bill and answers from the county of Huron. The object of the bill was to obtain the aid of the court to correct a partition made by the Directors of the Fire Land Company, of certain lands amongst the complainants and defendants. The case claimed by the complainants follows:

E. Lockwood and S. and H. St. John, with others, upon account of their claims, and John Cannon, upon account of part of his claim, had sec. 1, in town. 1, range 24, set apart to them, and to equalize the value, there was annexed to it part of a fractional township in these words: "to which section is annexed 1783 acres off the east end of the fraction 2783, lying between the north line of town 6, in the 22d range, and Sandusky bay, according to the mode of partition adopted by the Directors."

John Cannon had set to him upon account of other part of his claim, sec. 4, in town. 1, range 24, with an annexation in these words, "to which section is annexed five hundred acres of land, it being part of the fraction of 2783 acres, lying between the north line of town number 6, in the 23d range, and is to be taken next west of the annexation to section No. 1, in this town, leaving the remainder of said fraction, which has been already annexed to sec. 4, town. 1,

range 23." This last named section was set to other parties, and the annexation to it, in thebook of classifications kept by the Directors, preceded those before stated, and is in these words; "to which section is annexed 500 acres of land lying on the west end of the fraction of 2783 acres, lying between the north line of town, 6, in the 23d range and Sandusky bay, according to the mode of partition adopted by the Directors." The complainants claimed as heirs of Lockwood and the St. Johns, and by intermarriage as part of the heirs of Cannon. The defendants claimed as purchasers of the rights of the other heirs of Cannon.

The fraction described as containing 2783 acres, out of which the three annexations were made, contained, in fact, about 3800 acres. The object of the bill was to obtain such partition as should assign to the annexation of 1783 acres, what was claimed to be its proportion of this surplus land.

The cause was argued by Webb, for complainants,

And by F. D. Parrish and J. Mills, for defendants.
By the COURT.

We are clearly of opinion that there is no character of tenancy in common between the owners of sec. 1, town. 1, range 24, and section 4, in the same town and range, and their respective annexations out of the fraction supposed to contain 2783 acres. These allotments were made by the Directors of the company for the express purpose of vesting in the respective claimants distinct and separate rights. There is no reason that can be urged to make them tenants in common of the annexations, which would not equally apply to the principal sections allotted to each. And this has never been pretended.

The original division of the fraction, from which the annexations were made, had no reference to any joint or connected interest between those amongst whom it was divided, and the mere circumstance that their separate interests were thus brought into the same vicinity, can give no joint or common character to those interests. The annexation, by acres, shows that so many acres was deemed sufficient to equalize the allotments made to each: and we conceive that the actual contents of the fraction can neither enlarge nor diminish the quantity annexed in this case, because the claim of each to his separate annexation, was distinct from, and independent of the other. If there had been a deficiency, cach party entitled to the annexation, must have been satisfied in the order of his claim, and the one, who in point of law was last, must have been thrown upon the company for compensation, or bear the loss.

Independent of this, we are of opinion that those who claim the annexation to sec. 4, of town. 1, range 23, are directly interested in the decision to be made, and ought to be parties to the cause. If the other ground were not sufficient, we should be compelled to dismiss the bill for want of proper parties.

Bill dismissed on the merits.

GWYNNE, ET UX. v. THE CITY OF CINCINNATI.

A widow is not entitled to dower in lands given by her husband for a market house. This was a petition in chancery for dower, in a market house, in the city of Cincinnati, and was adjourned for decision, here, by the Supreme Court of Hamilton county. The facts were these. John H. Piatt, in his lifetime, in conjunction with other owners of the property in the same square, agreed to open a way, or street through the square, upon which a market house was to be erected. This agreement was carried into effect under an ordinance of the city council, and the market house erected. It stood upon that part of the square given by Piatt, a space for a street remaining open on both sides of it. Piatt, in his lifetime, conveyed the property he owned in the square, and his wife joined him. in the conveyance. It did not appear that any conveyance was made of the ground covered by the market house, by either Piatt or wife. Gwynne intermarried with the widow of Piatt, and brought the bill for dower.

Este and Storer, for the complainants. Fox, contra.

By the COURT.

The street, including the ground in question, was opened, and the market house established, by an agreement with the owners of the ground, and under an ordinance of the city council of Cincinnati. The whole space became subject to the same public regulations, as the grounds originally laid out in streets, and for other public uses and purposes. The claim of dower must stand upon the same principles that it would stand in any case to the ground thus appro. priated. The counsel for the complainants, insist that it is a case to be distinguished from that of public grounds condemned for public uses; but the court are unable to comprehend the distinction. When a town is laid out, the law requires the plat to be recorded, and by such record, the streets become public highways, and the title to grounds set apart for public uses, is vested in the county for the purposes contemplated. The uses thus created, are inconsistent with the exertion of any private right, while the use remains: consequently all private rights must be either suspended or abrogated. Such has been the general understanding, not only in this state, but, so far as we are informed, in other states also. A claim for dower in the streets of a town, or in the public jail, court house, or public offices, would be a novel one, and if sustained, could not be enjoyed without defeating the original purpose and present use of the grant. It cannot be admitted, for the same reason, that it is not admitted to a castle in England. It could yield nothing to the support of the widow, by a direct participation in the possession, without such an interference with the public right, to control the whole subject, as to render its enjoyment inconvenient and unsafe, if not impossible,

The bill must be dismissed.

3

ROE v. BANK UNITED STATES.

A writ of error may be prosecuted in the name of the casual ejector.

This was a motion to quash a writ of error, issued in the name of the casual sel ejector, after judgment against him by default, in a case where the tenant in possession did not enter into the consent rule. The writ of error was prosecuted by the person claiming the interest as landlord. The motion was made to quash the writ of error, and adjourned here for decision, from the county of Hamilton.

Storer, against the motion. Fox, contra.

By the COURT.

We are unable to perceive any reason for the doctrine that a writ of error cannot be sustained in the name of the casual ejector. He is not more a nominal person, nor less interested than the nominal plaintiff or lessee, in whose name the proceedings are conducted. The adverse claimant may be prejudiced in the progress of a suit as much as the plaintiff's lessor, and there seems to be just the same reason for one to be at liberty to use the name of the fictitious party as the other. The doctrine appears to have originated, and indeed to continue in mere dicta. We do not know that it has before been agitated in at liberty to establish the principle as to us appears conThe motion is overruled, and the cause remanded for

this state, and we feel sonant with justice. further proceedings.

SMITH v. BING.

Where an obligation is made by principal and surety and the 'special bail of the principal are compelled to pay the money, the surety are responsible to the special bail for no part of the money.

This was an action assumpsit, for money paid, laid out and expended: plea non assumpsit. It was adjourned from the county of Gallia, and the facts of the case were as follow:

Bing, the defendant, had executed a bond with one Watkins, in fact as security, but that did not appear upon the face of the bond. Suit was brought against Watkins and Bing, in Virginia, and Watkins only arrested, and upon a return that Bing was not found, the suit abated as to him. Smith became ap pearance bail for Watkins, and was subjected to the payment of a large portion. of the debt, and to recover this from Bing was the object of the present suit.-At the trial, Bing offered evidence that he executed the bond only as security for Watkins, without offering any proof that Smith, at the time he became bail for Watkins, had knowledge of this fact. The plaintiff objected to this evidence,

but it was admitted, and a verdict passed for the defendant. The plaintiff moved for a new trial upon the ground that the court erred in admitting the evidence.

Brasee and Nye, for plaintiff. King and Vinton, contra.

By the COURT.

The relation of principle and security, were the obligation itself imports a joint debt, is universally recognized by courts of justice, and parol proof admitted to establish its existence. In this case therefore, the evidence was properly received, unless the fact proved, did not constitute a legal defence.

It is urged for the plaintiff that the execution of the bond created a joint duty, which each obligor was bound to discharge, and the plaintiff having been coerced to discharge it for them has a remedy against each. But the conclu. sion does not follow the premises. When the plaintiff became special bail for Watkins, it was at the request of Watkins, and for his benefit alone. The defendant had no beneficial interest in it. The undertaking was personal for Watkins, and the party making it, can only look to him for compensation should he be prejudiced. He can acquire through his connection with Watkins, no interest against third persons, which Watkins himself did not possess. Had Watkins been security and Bing the principal, the payment of the debt by Watkins, would give him a legal right to demand it of Bing, and perhaps equity would, in such case, have permitted the bail to succeed to the right of Watkins, and recover of Bing. This would be no more than transferring to the bail the same rights which the principal would have had upon the payment of the money.But, in the case before us, if Smith is allowed to charge Bing, he acquires upon a separate undertaking for Watkins, rights which Watkins did not possess.We know of no principle of contract, or doctrine of equity, which would warrant a result of this character.

308, cited and relied upon by There all the parties subjected,

The case of Exall v. Partridge, 8 D. & E. the plaintiff's counsel, is not analogous to this. were originally liable for the rent as principal lessees, and the sub-contract be. tween themselves could not change the nature of their liabilities to third persons. In this case if the debt had in in its origin been the joint debt of Watkins and Bing, and so existed at the time the bond was given, and by subsequent agree. ment between themselves, Watkins had assumed the payment of the whole, the cases would have borne some resemblance to each other, though it might not then follow, that the bail of Watkins could subject Bing. But the original liability of Bing, being only that of security, is a material circumstance in respect to the analogy, and places the two cases on totally different grounds. In our opinion, the claim of the plaintiff to subject the defendant is supported by neither precedent nor principle: the motion for a new trial is consequently overruled.