from the connected plat, that, the two hickories, and beech claimed by the plaintiff, as his third, or north-east corner, must have been made as a corner for Muhlenburgh's survey, of eleven hundred and twenty acres, and not as a corner for the survey of Russel. This appears to be the substance of the testimony, as far as it appears to be in any way material, and we are clearly of opinion, that it does not establish either the second, or third corner of Russel's survey, without which, it is impossible to say, that his patent covers any part of the land claimed, or occupied by the defendant. The attempt to establish those corners by reputation, might have been successful, if the testimony did not contradict the presumption arising from the neighborhood opinion, that has been stated. It is evident that the persons who considered them as belonging to the plaintiff's survey, must have been ignorant of the calls of that survey. If they had known that the south-east corner was a sugar and an ash, and the north-east corner, two beeches and an ash, they could not have believed that the hickory, oak and beech, in the one case, and the two hickories and beech in the other were those corners. If corners can be identified, and proved by such evidence, the record testimony which the land laws have provided for, must yield to neighborhood reports, and certainty and precision. must be dispensed with.

When corners are lost, they may be proved by reputation. Witnesses may -be examined to show that a corner once existed: That it has been destroyed, and that it corresponded with the call of the entry, or survey; but they cannot be allowed to substitute one corner for another, or to contradict the evidence which is of record. They cannot change a sugar tree to a hickory, or an ash to a beech.

The length of the first line, and the number of acres contained in the entry; are strong corroborating circumstance in support of the conclusion, that the corners claimed, are not the corners called for. By the survey, Russel's south line is two hundred sixty-six poles, and a fraction of a pole; that line as he now claims it, is four hundred and eighty poles, almost double the distance in the patent, and the quantity of land which he demands, exceeds the quantity for which he has a patent, in the same proportion. These facts we admit, are not conclusive. In the Virginia military district, it generally happens, that the lines are longer, and the number of acres greater, than the calls of the patent, but it rarely happens, that the discrepancy is so great, as in the present case; and although these facts would not be sufficient to reject a corner, in other respects sufficiently proved, yet they afford a sufficient ground to reject a claim for a corner, supported only by neighborhood opinion, and particularly so, when that opinion contradicts the survey.

The fact that the hickory, ash, and beech, are in the line of Muhlenburgh's survey, and are called for as a corner for that survey, in the absence of all proof that such a corner belongs to Russel's survey, confirms the conclusion heretofore drawn.

It is admitted, that course and distance, must give way to natural objects, but this rule has its limits, and must be used with sound discetion. When a natural object is distinctly called for, and satisfactorily proved, it becomes a land mark not to be rejected, because the certainty which it affords, excludes the proba bility of mistake, while course and distance, depending for their correctness on

a great variety of circumstances, are constantly liable to be incorrect. Dif ference in the instrument used, and in the care of surveyors and their assistants, must lead to different results. Hence it is, that this rule has been established. But in the case before us, the natural objects called for, have not been proved. If the plaintiff had established his sugar and ash corner, in, or near, the direction of his first course, and the hickory and beech corner, in, or near, the course of his second line, those corners must have been sustained, although they might have varied from the course and distance in the patent, provided that variance were not too great to be ascribed to the causes just mentioned. But when the corner claimed by a party, has no similitude to the one he has made, and recorded as his land mark, he cannot aid himself by resorting to this rule.He must be governed by the converse of it, that when there is not an object called, for, and proved, varying from his course and distance, he must make his corner, where course and distance lead him.

Other grounds were taken in the argument, but we consider it unnecessary to pursue them. The plaintiff has failed to establish his second and third corners, and is therefore, confined to his course and distance, which do not interfere with the land claimed, and possessed by the defendant.

Judgment for defendant.

HARLAN v. READ.

JUDGES BURNET AND SHERMAN.

1827.

Partial failure of the consideration of a note cannot be taken advantage of at law.

This was an action of assumpsit on a promissory note, for two hundred and fifty dollars, payable in February, 1826. Plea non assumpsit. The plaintiff gave the note in evidence, and rested his cause.

The defendant examined several witnesses, by whom it appeared, that he had purchased a farm from the plaintiff, received a title bond, and taken possession; and that the note in question, was given for a part of the purchase money. He further offered to prove, that before he made his contract, he went with the plaintiff to examine the property: That he examined it in part, and as to the residue, relied on the representations of the plaintiff: That the property did not answer the description given of it: That it was of less value, and that in equity and good conscience, he ought not to be required to pay the whole amount the This testimony was objected to.

note.

By the COURT.

To avoid the payment of a note in a suit at law, on the ground of fraud, the fraud must extend to the whole consideration. We have no rule to ascertain the extent of the partial injury sustained by the misrepresentation complained of. The jury cannot make a new contract for the parties. They cannot

Pablish for them a price, or value different from the one agreed.

There is

oubt, but that a vendor who sells by a description, is bound to make it

, and in this case, if the vendee was deceived by a misrepresentation, he at have refused to execute his contract. He might have filed a bill to avoid at in place of doing this, he has affirmed it. He has taken possession, with all knowledge of all the facts, and has paid a part of the purchase money. Under these circumstances, whatever relief he may be entitled to elsewhere, he cannot avail himself of his proposed defence, in the present action. We know that courts of common law, as well as courts of equity, may relieve against fraud, in any form in which their modes of proceeding can reach it; but it does not follow, that a party who has acquiesced in a fraud, and thereby sustained a partial loss, may set that up as a defence to an action, brought on a note, for the consideration of a contract. Such a course, would not only be nconvenient, but would lead to uncertain results. It would burthen the jury innecessarily. Plaintiffs would be perpetually liable to be taken by surprise, and much of the time of the court would be wasted by unprofitable disputation. Attempts have often been made to set up this kind of defence, but it has always Deen rejected.

STRUM v. CUNNINGHAM.

JUDGES HITCHCOCK AND BURNET.

1827.

An award is bad unless it show, that the arbitrators met at the time and place specified in the submission.

This was an action of slander, brought to issue in the Common Pleas, and then submitted to arbitration. Bonds were executed in conformity with the statute, by which the submission was to be made a rule of the court of Common Pleas. The arbitrators awarded, that the defendant should pay to the plaintiff, the sum of six-two dollars: that the suit then pending, should be discontinued, and that the parties should execute mutual releases.

On motion before the Common Pleas, the submission was made a rule. The defendant took a bill of exceptions, and brought a writ of error, to set aside the rule.

Several errors were assigned. But the error chiefly relied on, was, that it did not appear from any of the proceedings, that the arbitrators had met at the time and place required by the submission.

Bacon, argued for plaintiff. Chaplain, for defendant.

By the COURT.

The statute authorizing and regulating arbitrations, requires, that the arbitration bond, shall specify some time and place, at which the arbitrators shall attend, to hear and determine the matters in dispute. The bonds executed in

this case, contain such a provision, but it does not appear that it was observed. For any thing we can discover, the arbitrators might have met at another time, or at a different place, and the award may have been ex parte. The same mo. tive which induced the legislature to require, that a time and place should be agreed on, and stated in the submission, requires also, that the agreement in that respect, should be strictly observed. They have not trusted to parol proof of this part of the agreement, but have directed that it shall form a part of the submission, and for the same reason, the performance of it should appear from the award. Buwhether parol proof be admissible or not, for this purpose it must appear from some part of the proceedings, that the auditors did meet, at the time and place agreed on. As this does not appear, the rule must be set aside, and the cause remanded for further proceedings.

HUBBLE v. PERRIN, ET AL.

JUDGES HITCHCOCK AND BURNET.

1827.

Equity will not lend its aid, to subject the separate property of a partner, to the payment of partnership debts, while the joint property of the firm is unexhausted.

The bill was filed under the 59th section of the act, directing the mode of proceeding in chancery.

The complainant alleges, that the defendant, Perrin, was formerly a partner in trade, with one Gibbs. That the firm of Perrin & Gibbs, contracted sundry debts, which remained unpaid on the dissolution of their partnership; that they are possessed of real estate in the county of Champaign: that several judg. ments were obtained against the firm, on which executions were taken out and levied on the said real estate: that one of those judgments is in favor of the complainant: that the property levied on, is wholly insufficient to satisfy the judg ments: that no other property of the said firm, or of either of them, can be found: and that the defendant, Hinkle, as clerk of the Supreme Court, has in his hands, the sum of three hundred dollars, paid by virtue of a decree of this court, for the use of the defendant Perrin. The prayer of the bill, is, that the money so held, may be applied in payment of the debt due to the complainant.

Perrin, by his answer, admits the partnership, and the judgments; but he sets out and describes several tracts of land, belonging to himself separately, and a house and lot, belonging to the firm of Perrin & Gibbs, which are liable to be taken by the judgment creditors. He admits the money in the hands of Hinkle, to be his, but insists, that it ought not to be applied in payment of partnership debts, while there is partnership property undisposed of.

Anthony, argued for the complainant. Mason, for the defendant.

By the COURT.

The facts stated in the answer, are substantially made out by the exhibits. It appears, that there is real estate belonging to the late firm of Perrin and Gibbs,

which the complainant may resort to, if the property already levied on, should prove insufficient. This being the fact, the bill cannot be sustained. The statute authorizes a judgment creditor, to resort to the chancery side of the court, to reach property, or money, in the hands of third persons, when the defendant has not real or personal property, sufficient to satisfy the judgment, which can be taken in execution. This provision was made, to prevent a failure of jus tice, and is to be resorted to, only in cases of necessity. That necessity ought to be apparent, to give jurisdiction to this court. On the point, whether the facts, on which the jurisdiction of the court depends, must be specially stated in the bill, or not, there has been, and still is, a diversity of opinion among the members of the court. But it is presumed, there can be but one opinion, whether the facts must not be fully made out, at the hearing, in order to sustain the bill. In this respect, we think there has been a total failure, on the part of the complainant. He admits, that he has an execution levied on real property, not yet disposed of, the proceeds of which cannot now be known, and it is in proof, that there is other property not levied on.

But there is another objection to the relief prayed. Equity will not lend its aid, to subject the separate property of a partner, to the payment of partnership debts, while the joint property of the firm is unexhausted. That is the proper fund for the payment of partnership debts, and must be resorted to, before the separate funds of the partners can be reached, through the agency of this court. Bill dismissed.

THE COMMISSIONERS OF CLERMONT v. LYTLE.、

JUDGES BURNET AND SHERMAN.

1827.

The Judges of the Common Pleas, are not disqualified by interest to try a cause, where the com missioners of the county are a party, and money the subject of controversy.

This case was certified from the Common Pleas, on the ground, that associate the judges were citizens of Clermont county, and as such, interested in the event of the suit.

By the COURT.

This case is not within the original jurisdiction of this court. It has been sent here, on a supposition, that the associates are interested, and that therefore, there was not a su ficent number of disinterested judges of that court, to sit on the trial. The only interest which they have, is common to every citizen of the county, and if it be sufficient to disqualify them, it would sustain a chal. lenge to the array and to the competency of every witness residing in the county. We are of opinion, however, that the interest is not sufficient to produce these embarrassing consequences. The claim of a few hundred dollars, by a county containing twenty thousand inhabitants, cannot create an interest to disqualify a judge, a juror, or a witness. We find many cases, in which citizens of towns, counties and states, have been admitted as competent witnesses, of