tence of the lien being ascertained, we are to enquire whether it excluded the widow's dower? We-find that the purchase was made in 1797, and the marriage took place in 1793-consequently the lien existed before there was any pretence to the claim of dower. The right having once vested, it was not in the power of the vendee to alter or abridge it by any act of his own, so long as the purchase money remained unpaid. Such a power would be altogether inconsistent with the nature of the right, and would destroy the value of the security. A lien held at the will of him on whose land it attaches and whose estate it encumbers, would be a novelty in legal proceedings. It would form a species of security as useless as it is unknown. In fact, the idea of such a power is inconsistent with the existence of the lien, and amounts to a declaration that the lien was never in being. The law, by making this provision in favor of the vendor, intended to give him a beneficial security, and if so, the permanency of that security must be placed beyond the control of the vendee.

In principle, there is no difference between a privilege to destroy the right in part, or to abolish it entirely. We can prescribe no limit to the exercise of such a discretion. But it is apparent that the vendor had a right to hold the entire estate in security. The law gave him an equitable mortgage, and it must protect it. I, therefore, conclude, that as the lien extended to the whole of the land, it was not in the power of the vendee, by any transaction or contract of his own, to relieve a third or any portion of it from the operation of that lien; and whatever might be the decision as to the widow's claim, when prosecuted in a court of law, in this court it must yield to the prior equitable claim of the vendor. The doctrine of notice, it is conceived, does not apply to a case circumstanced like the present. The widow does not stand on the ground of a purchaser, for a valuable consideration without notice. She comes as a participator in the rights of her husband, as they stood at the time of her marriage; and as far as those rights were encumbered, she must be affected by the encumbrance. Her claim is legal, not conventional: it would therefore be doing violence to the laws-it would raise it above itself, to give it the double operation of divesting the widow of a settled right, for the arbitrary purpose of vesting it in another. On the same principle, a legal mortgage would give way; but I believe that the law, in settling the rights of the widow, has had a scrupulous regard to the rights of others. Hence we find many cases in which her claim yields to the superior equitable claim of others; as, for example, if her husband exchanges land with another person, she cannot be endowed of both tracts, although her husband was seized of an estate of inheritance in both during coverture, because it would be unjust and would operate injuriously on the rights of others. And for the same reason, if her husband, being seized in common with another person, make partition, and that the person be evicted for want of title, she shall not have her dower in that part of the land which his co-tenant may recover pro rata. (2 Bac. Dower, B. 4. F. N. B. 150.) So, if her husband were seized of a joint estate and died, she shall not be endowed on account of the survivorship, for the survivor claims from the grantor, which is prior to her title of dower. So when a vendee, at the time of receiving his deed, executes a mortgage to the vendor to secure his purchase money, the wife of the vendee is not entiled to

dower; for although her husband was seized, it was but for a moment, and it would be inequitable to support the claim in opposition to the clear understand. ing of the parties, by which the deed and mortgage are to be considered as parts of the same contract and treated as though they had been embraced in one instrument of writing. (2 Co. 77. 15 John. 459. 4 Mass. 560.

In Winn v. Williams, (5 Ves. 130.) the master of the rolls decided, that a purchaser or mortgagee might protect himself against a claim of dower by taking in a mortgage executed before the marriage, "although the consequence will be, utterly defeating the right of dower."

The decisions by the courts of different states, on this point, have not been uniform. In Massachusetts it has been settled, that a widow is not dowable of an equity of redemption generally. (10 Mass. 364.)

In Pennsylvania, the widow is dowable of land mortgaged before marriage, but the right is subject to the mortgage. (2 Searg. and Ra. 554.) But a sale on a levari facias, on a mortgage, will bar the right of dower, though the mortgage were executed during coverture. (Scott v. Crosdale, 2 Dall. 127. 4 Dall. 301, note.)

In New Jersey, dower cannot be claimed of land mortgaged before coverture. (1 South. Rep. 260.)

In Connecticut, Maryland and New York, a widow may be endowed of an equity of redemption. (1 Conn. Rep. 550. 7 John. 282.)

In North Carolina, it has been decided, that a widow is entitled to dower only of such lands as the husband died seized of, and consequently that an alienation by the husband alone, during coverture, is a bar to dower. (1 Hayw. 243.)

In Virginia, a mortgage by the husband during coverture, does not bar dow. er, unless the wife join. (2 Munf. 527.)

In South Carolina, the court said (in Wells v. Martin,) the right to dower had a preference to mortgages or any other incumbrances made or suffered by the husband in his lifetime. (2 Bay. 22.) But the Reporter, in a note to Bogie v. Rutte, &c. (1 Bay. 312.) says, that it has been repeatedly determined in the courts of that state, that "widows of mortgagors were not entitled to dower."

In Kentucky, the widow may be endowed of any beneficial interest of which her husband was seized during coverture. In the case of Winn, &c. v. Elliott's widow, &c. (Hard. 488.) which was a bill in equity to bar the widow of her dower, the husband had, during the marriage, a beneficial interest: he had acquired the legal title, and he died seized in law, whereby, said the court, the wife's right to dower became complete at law, and they decided that her claim should not be ousted by an equity against the husband derived during the coverture, and from the husband: nor should it be defeated by showing a title not derived paramount the husband's, but under it; nor by an equity that did not commence previous to the wife's, but subsequent thereto.

In Ohio, it is admitted that the widow is dowable of lands mortgaged or aliened by the husband during coverture, if she do not join in the mortgage a deed of conveyance. And it has been decided, in the case of Ewing v. Stansbury, that she shall be endowed with reference to the value of the premises at the time of the alienation.

But it is confidently believed, that no court in the United States has decided, that a widow is dowable of an equity of redemption, where the mortgage was

executed before coverture, without the qualification that her right is subject to the mortgage. In the case of Collins v. Torrey, (7 John. 283.) the court say: "The plain and necessary rule is, to allow her the dower, which she must take, as the heir or the purchaser takes the estate, subject to the mortgage."

It only remains now to enquire, whether the complainant, in consequence of his purchase, is entitled to the benefit of this lien? We have seen already, that the lien continues in favor of an assignee; but whether the complainant be considered in that light or not, as a purchaser at a sale legally made to raise the purchase money for the benefit of Taliaferro, he must be entitled to the same consideration that Taliaferro would have been entitled to had he became the purchaser otherwise the value of the lien would be measurably lost. It was immaterial to Porter who purchased. If the land were bound for its price, to the exclusion of the title to dower, it must remain so in the hands of the complainant; for if the right of dower did not attach prior to the right of sale, it certainly could not be created by the sale. If there had been a court of chancery in the territory, and if Taliaferro had filed his bill and obtained a decree for a sale, the estate in the hands of the purchaser could not have been liable to the widow's claim. But as there was no such court, and the vender was under the necessity of proceeding in a court of laws, it would be unreasonable to say that he shall lose his security, which would be the case, in part at least, were the purchaser to take the property subject to dower, as with that incumbrance it could not be expected to command its value.

This case, in principle, may be likened to a procedure on a legal mortgage, by scire facias, under our statute. If the mortgage be executed before the marriage of the mortgagor, the claim of dower yields to the lien of the mortgage, and the purchaser at the sheriff's sale, will hold the premises, to the exclusion of that claim, because the lien is prior and superior to it.

In the case of Garson v. Green, (1 John. Ch. Rep.) the decree was against the widow and heirs at law, for a sale of the premises without any reservation. It, therefore, seems to have been considered by the chancellor, that the right of dower did not exist, and that the purchaser would take the premises free of this incumbrance.

From the view that has been taken of the subject, it appears to me that Taliaferro had a lien on the land which must be treated as an equitable mort. gage, and which secures the land for the payment of the purchase money, to the exclusion of subsequent encumbrances, and consequently that the right of dower, in this case, was subject to the lien, and cannot be set up till the debt is satisfied. The objection that the proceedings were had in a court of law, seems to be obviated by the fact that there was no court of equity in the territory, and that under such circumstances courts of law will give the same relief as courts of equity, provided the forms of their proceeding will admit it. They cannot enforce a specific performance, or compel a disclosure by the parties themselves, but wherever an equitable right can be presented, investigated, and decided, in a form of action used by them, they will not hesitate to do it, and will enforce their decisions by any form of execution known to the law, and calculated to accomplish the object. Such was the fact in the case before us.

Is it objected, that the widow was not a party in the proceedings at law, and therefore has not had a day in court? Neither is she made a party in proceeding

on a mortgage, by scire facias, under our statute, although her rights are affected in the same manner and to the same extent. But she is now a party, and the merits of her claim are fully before us. If those merits have not been decided, and if, as has been urged, the proceedings at law have not concluded her, because the lien was not legal, but equitable, it would seem that the parties, being now before a tribunal of sufficient power, a final disposition may be made of the cause, by which the objection that the widow has not had a day in court would be removed. Should it be admitted, that after the proceedings in the suit at law, and the subsequent establishment of a court of chancery, the widow might enforce her claim to dower, at common law, against the complainant, and that his defence, being an equitable one, could not there be heard, the admission would not affect the question, unless by shewing that the remedy in the territorial court, for the want of full chancery power, was not complete, and that the aid of this court was necessary to perfect it. The admission would not affect the existence of the lien, or its operation on the claim of the widow, it would only show that a court of law would not continue to protect an equitable right, after the establishment of a court of equity, and that this bill was necessary to quiet the complainant and relieve him from the claim at law. If the proceedings in the territorial court did not completely silence the widow's claim at law, the only resource for relief was to a court of chancery.

Should it be admitted in the broadest terms, that the proceedings in the General Court, have had no bearing on the equitable lien of Taliaferro, or on the legal claim to dower, it would follow that the lien is yet to be enforced, and this is certainly the proper tribunal to do it. To render a mortgage operative, it is not necessary for the mortgagee to become the purchaser of the mortgaged premises. Should a third person purchase, at a sale to satisfy the mortgage, it must operate to protect him against after incumbrances, to the same extent that it would have done the mortgagee, had he been the purchaser, otherwise the mortgage would be of but little use. I do not therefore see the propriety of the conclusion, that because Taliaferro was not himself the purchaser, the lien has been discharged, and the complainant must be liable to an incumbrance that Taliaferro might have avoided had he purchased himself. If the lien existed, the whole object of it was to enable the vendor to have the land sold for the payment of the purchase money, free from subsequent incumbrances, and I consider it a matter of perfect indifference, by whom the premises were purchased. If in this case the claim of dower is to be sustained because the mortgaged premises have been purchased at the suit of the mortgagee, and purchased by a stranger, at a price sufficient to satisfy the debt for which they were bound, on the same principle the claim of dower must be good in every case where a third person purchases under a judgment by scire facias on a mortgage, for a sum sufficient to pay the debt.

Whether McArthur relied on the lien or not, is a matter not known to the court, nor do I consider it material, as a man may be ignorant of his rights without forfeiting them.

On the whole it appears to me that the equity of the case is with the complainant.

Assumpsit will lie upon a note in writing, whether negotiable or not, without setting out the consideration or original contract.

A principle once established, and continued by common consent, and with general approbation ought to be received as the law of the land.

The term "currency" means current, unless the parties by the positive term of the contract attach to it a different meaning.

This was an action of assumpsit upon a promissory note in the following words: "four months after date I promise to pay John S. Dugan or order seventy-five dollars for value received, payable in the currency of this place, if the said Dugan does not take it out in store goods at the same rate. Zanesville, August 17th, 1820."

The declaration alledges that the defendant made his certain note in writing, commonly called a promissory note, and delivered the same to the plaintiff, by which he promised to pay, reciting the note substantially; it then proceeds as follows: "And the plaintiff avers and says that the defendant did not, four months after the date of said promissory note, pay to him or order seventy-five dollars in money current in Zanesville, nor did he the plaintiff take out that sum in store goods at the same rate, by reason whereof the defendant became liable to pay to the plaintiff the said sum of seventy-five dollars in lawful money, and being so made liable to the defendant, then and there afterwards, to wit: upon the first day of January, 1821, at the county aforesaid, undertook and faithfully promised pay the plaintiff the said sum of seventy-five dollars, when thereto afterwards he should be requested." General issue pleaded, and verdict for the plaintiff. The Court of Common Pleas arrested the judgment; to reverse which the writ of error was brought; general error assigned.

to

S. W. Culbertson, for plaintiff in error. Goodard and Adams contra.

By the COURT.

It is not necessary to decide whether the note in this case is or is not negotiable, or to adopt or reject the principles of the cases cited on either side; for if it were not negotiable within the rules of decision, we should nevertheless consider it a promissory note, importing in itself a consideration.

From the first settlement of the state, it has been an universal practice among all classes of citizens, in making contracts, for the party who has received a consideration, according to the terms of agreement, to execute a written promise to pay a sum of money or other property for value received. Although the writing thus executed may want words of negotiability, or may contain conditions that destroy its negotiable character, the promissee rests in security upon this written contract, as evidence of his claim, and preserves no other proof of the transaction upon which it was founded. By common consent, actions have always been brought and sustained upon such instruments without setting forth or proving the consideration. Were the court now to establish a different doctrine, great mischief might ensue: numerous judgments would virtually be declared erroneous-existing contracts might be seriously affected, and a rule would be established contrary to the common understanding and