soventeen judgments recorded as rendered against executors or adininistrators. Two of these were rendered before August, 1775; six of them after the commencement of 1805.

The earliest judgments are rendered against the executor or administrator personally, and were so entered up to November terin, 1795. From that period, to January term, 1805, the judgments are all technically correct, "to be levied of the goods and chattels of the decedent, in the hands of the representative, to be administered." No judgment is ren lered to subject the lands of the decea el. At Nov. term, 1797, in the case of Abbot v. Manning, adm'r the regular judgment was entered, and, upon return of no goods to levy, a sci. fa. was issued against the administrator, to charge him for a devastavil, and, at August, 1498,a technical judgment was rendered against him de bonis propriis. At January term, 1805, upon a scire facias, against executors to revive a judg. ment rendered in the lifetime of the testasor, judgment is entered that the plaintiff have execution direct against the executors, as if they were original defendants, in their own rights, and such seems to have been the form of the judgments for several succeeding years.

In the case of Kitchell v. executors of Kitchell, in which the land in controversy between Gray and Askew was sold, judgment was entered, August, 1806. The following is an exact transcript of all that is to be found, in the clerk's office, concerning it, except the execution.

"Calvin Kitchell, Esq.

v.

M. Brown and Pearsy Kitchell, Executors, &c.

Debt-500 dolls., &c.

Service acknowledged, amicable suit. I acknowledge judgment for the amount

of the notes, and interest to-wit:

Costs taxed,

Fi. fa. et. lev. fa. issued."

411D. 42C. 8 48

Manassah Brown.

The execution runs that "of the goods and chattels of Luther Kitchell, dec'd. in your biliwick you cause to be made 411 dolls. 12 cents, which Calvin Kitchell lately recovered, &c. against M. Brown and P. Kitchell, Executors of said Luther, with 8 dolls. and 48 cents costs, &c. whereof the said executors are convicted, if so much goods and chattels of said executors can be found, and if not, then that you cause the same to be made of the lands and tenements of the said executors." The judgment and execution are but common specimens of the loose manner in which the proceedings of these courts were conducted. I add one other, upon account of its peculiar character. The executors of Isaac Felty, dec'd. at Feb. term 1801, commenced an action in their character of executors, against John Orbison. At August term, 1801, the cause was discontinued for want of prosecution. Afterward, to October term 1804, Orbison sued a writ of sci. fa. against the exacutors, to appear and show cause why execution should not be awarded against them, for the costs.No cause being shown, the following judgment was entered:

"Therefore it is considered by the court that the said John Orbison do recover against the said Thomas and Mary, executors, &c. their original costs, to twenty-eight dollars and twenty cents, and also fourteen dollars and twenty cents for his damages, as well by reason of the detention of said costs, as for his costs and charges by him about his suit in this behalf expended, and he have execution thereof, &c."

Upon this judgment execution issued reciting and commanding as follows:-"that of the goods and chattels of Thomas Gibson and Mary Depriest, executors of Isaac Felty, dec'd. in your bailiwick, you cause to be made forty-two dollars and eighty-seven cents, which John Orbison recovered, &c. Whereof the said Thomas and Mary are convicted, as appears to us of record. Therefore it is considered that the said John have his execution against the said Thomas and Mary executors aforesaid if so much goods and chattels of the said Thomas and Mary, executors aforesaid can be found, &c. and if not, then that you cause the same to be made of the lands and tenements of the said Thomas and Mary executors aforesaid, &c."

This execution was levied upon a part of the real estate of the testator Felty, in virtue of which i was sold, and lost to the heirs. No principle of any known law could be thought of, to authorize a sale of lan is to pay costs created by executors. Yet long after the Pennsylvania law had ceased to have eff e in Ohio, this sale unauthorized by it, or by any existing law, was effected. The facts here state. are collected and published, that the bench and the bar, in other parts of the state, may be the better enabled to understand the extent, nature and character of a practice, which has been much talked of, as having settled a rule of law obligatory upon the courts.

WILLS v. COOPER, ET AL.

This cause was adjourned here for decision, from the county of Brown. It was a bill of review, seeking to review and reverse the decision rendered in this cause, by this court, in their session of December, 1825. (2 Ohio Rep. 124.) The defendants demurred. After hearing argument, the court adhered to their former opinion, and the bill of review was dismissed.

GREENE v. DODGE, ET AL.

A general judgment cannot be amended at a subsequent term so as to make it special.

This is the same cause reported 2 Ohio Rep. 430. It now came before the court upon a motion to amend the judgment, entered generally for the defendants, at December term, 1826, and enter it specially, as predicated upon a defect in the declaration.

Ewing, in support of the motion. Goddard and Nye, contra.
Motion refused.

STATE OF OHIO v. COLERICK, ET AL.

In a suit against the sureties of a sheriff, the judgment in an action for a false return against the sheriff, is admissible as prima facia evidence of the amount recovered, though the sureties had no notice of the pendency of the suit against the sheriff.

This cause came before the Court, by adjournment from Knox county. It was an action of debt against Colerick, who had been sheriff, and his securities. The declaration was on the obligatory part of the bond. Plea conditions performed. Replication setting out a judgment against Colerick, as sheriff, at the suit of the plaintiffs, for a false return on an execution sued out by them, upon a judgment in their favor, and put into his hands to be executed. To this replication the defendants demurred. Upon argument, the Court overruled the demurrer, and neither party demanding a jury, proceeded to assess the damages, in doing which, no evidence was offered or given, but the record of the judgment against the sheriff. The defendants moved for a new assessment of the damages, upon the ground that this evidence was not admissible. And this question was adjourned here for decision.

Silliman, in support of the motion.

Goddard, contra.

1

By the COURT.

We take the distinction to be, that where the sureties have notice of the suit, and may, or do make defence, the judgment against the principal is conclusive

against them. Where such notice is not given, the judgment against the principal is prima facie only. It may be impeached for collusion, or for mistake. But, until so impeached, it is sufficient to entitle the plaintiff to recover the amount for which it is rendered. This Court have so ruled in the case of Commissioners of Brown v. Butt., (2 Ohio Reports, 347.) And we see no reason to be dissatisfied with the opinion then given. In this case no evidence was offered by the defendants. The motion for a new assessment of damages is overruled.

ROGERS ET AL. v. ALLEN.

An assignment to trustees, by an insolvent debtor in Pennsylvania, under the laws of that ştate, does neither pass the legal title to the trustees, nor create an equity, to be enforced in chancery, to lands situate in Ohio.

This cause was adjourned here for decision, from the county of Clermont. It was a bill in chancery, making the following case.

Allen, the defendant, became insolvent, in the state of Pennsylvania, and, in taking the benefit of the insolvent law of that state, made an assignment to the complainants, as Trustees of all his property, both real and personal. Among thn property surrendered, in his schedule, was a tract of land, in Clermont county, Ohio. The trustees made a sale of this land, and the purchaser took possession. Allen brought an ejectment and recovered. This bill was brought by the trustees, reciting the facts of the case, alleging that the other property assigned, was insufficient to pay the debts of Allen, and praying a decree to sell the land in Clermont, for the benefit of the creditors. The defendant demurred.

T. R. Ross, for respondents. A. H. Dunlavy, contra.

By the COURT.

The Supreme Court of this state decided, in the case of McCullock's Heirs v. Rodrick, that the assignment of an insolvent's effects, under the laws of Pennsylvania, did not vest the trustees or assignees with the legal title to lands in Ohio. We are entirely satisfied with that decision. In order to give effect to such assignment, where lands situate in a different state are included, the insolv ent should be held to make a formal deed of conveyance to the trustees. If this is not done, no title passes.

The bill here assumes that the assignment created an equity in the complain. ants, which a Court of Chancery should enforce. But we can perceive no prin. eiple upon which this doctrine can be safely founded.

It is a well settled doctrine that a commission of bankruptcy, vests in the trustees the personalities, whether situate within the jurisdiction that grants the commission or not. (4 John. Chy. 460.) It seems to be equally well understood that these commissions do not affect real property, out of the jurisdiction where they issued. It is so adjudged in the house of lords, in 1814. (2 Dow. 230.) And this doctrine stands upon the clear principle that real estate, in every country, can only be affected or transferred according to the municipal law. As, in this case, no title passed at law, we do not see any principle upon which an equity can be created to be enforced here. The bill must be dismissed.

PARKER v. WALLACE.

If the complainant in equity seeking a conveyance from the elder patentee, have no patent when the bill is filed, he is entitled to a decree if he have a patent at the time of the hearing.

A senior entry upon a resolution warrant surveyed and patented conformably to the laws of congress, may be aided in equity against an elder patent on a junior entry.

This cause was adjourned here for decision from the county of Brown. It was a bill in chancery to obtain, from the defendant, the legal title to a tract of land, upon the ground that the complainant owned the superior equity, al though the defendant had obtained the eldest patent.

The facts as they were made out in evidence were as follow. The complainant claims under an entry, made in the name of Josiah Parker, on the 11th of January, 1788. The warrant upon which the entry was made, issued to Josiah Parker, in virtue of a special resolution of the Legislature of Virginia, and was of that class usually denominated "resolution warrants."

The evidence upon which it was founded, showed, that in October, 1775, Parker was appointed a major in the 5th Virginia regiment on continental establishment, where he served until August, 1776, when he was appointed lieutenant colonel. In April, 1777, he received a full colonel's commission, under which he served to August, 1778, when he resigned. After his resignation he was in active service with the militia, upon every invasion of the state, until arrival of the Count de Grasse. The resolution directing the warrant to issue in virtue of these services, passed Nov. 18, 1773. The warrant bears date the 21st of the same month.

The survey upon which the patent issued was dated June 14, 1826, and the patent issued February 1, 1827. A witness testified that he was present more than twenty years previous, when Lucas Sullivant, a deputy surveyor under Richard Anderson, the principal surveyor, surveyed Parker's whole entry, of which the land in question was part. The complainant had been many years in possession, and made improvements. The defendant's entry was made July 23d, 1823,-surveyed and patented 12th April, 1824. Having the eldest grant, the defendant recovered in an ejectment at law. The complainant filed his bill 3d March, 1826, for a conveyance, and obtained an injunction. A question was made in the bill, and answer as to the identity and notoriety of the location, upon which much testimony was taken. The court upon the proof, decided this point for the complainant. It being a mere matter of fact, dependant upon familiar and well established principles, it is deemed unnecessary to introduce it into the report. The final decision turned upon the validity of the resolution warrant to appropriate the land, and the propriety of its being aided to do so by a court of equity.

M. Marshall, for complainant. Scott, contra.

By the COURT.

The exception that the complainant's bill is prematurely filed, because he

was not invested with a legal title at the time of filing it, is, in our opinion, untenable. It is, we think, sufficient to warrant a decree in his favor, that the patent to him has issued when the decree is pronounced, if the other facts in the case entitle him to a decree.

The equity of the complainant rests upon his elder entry, finally surveyed and carried into grant, under the laws of the United States. The defendant denies that, that entry can be sustained, because it is not founded upon a warrant issued in the ordinary way, for services performed in the Virginia line, upon continental establishment.

Whilst the territory within which these lands lie, was the property of the state of Virginia, and subject to her jurisdiction, she engaged, so early as Oc. tober, 1776, to bestow land bounties upon those who should engage in the military service of the revolutionary war. The date of the original engagements of 1776, 1778, have not been preserved in the published codes of Virginia, and consequently are not found in our own collection of land laws. In May, 1779, a general law was passed providing for granting warrants to those entitled under the laws, and describing the evidence upon which the grant should be made. It would seem that the case of Parker did not come within these general provisions, and therefore, a special resolution was passed, directing a warrant to be issued to him, as for services performed in the Virginia line, upon continental establishment. The evidence adduced, in this case, shows that he performed very nearly three years' service in that line, and that he performed other approved military services, in the commonwealth of Virginia, upon account of which the special resolution was adopted.

The same legislature that voted the resolution, at the same session, passed the law reserving the lands between the Miami and Scioto rivers to satisfy the mil. itary bounties the state had engaged to her citizens. And, at the same session, the law was passed consenting to cede the territory north west of the Ohio to the United States upon the terms proposed by congress. On the 11th of March, 1784, the deed of cession was executed and accepted. This deed contains a provision that the land between the Miami and Scioto rivers should be appro. priated, if necessary, to satisfy the legal bounties so engaged. The terms of the reservation are as follow: "That, in case the quantity of good lands, on the south east side of the Ohio, upon the waters of Cumberland river, and between the Green river and Tennessee river, which have been reserved by law for the Virginia troops upon continental establishment, should, &c, prove insufficient for their legal bounties, the deficiency shall be made up to the said troops, in good lands to be laid off between the Scioto and the Little Miami, on the north west side of the Ohio river, in such proportions as have been engaged to them by the laws of Virginia."

At the time this reservation was stipulated and made, Parker held his warrant under the resolution, for services actually performed as one of the Virginia troops upon continental establishment, and it seems to us that his case is fairly covered by the terms of the reservation. He was entitled under the laws of Virginia, as Virginia had herself decided, and he was in possession of the appropriate evidence of his right. That right was not less predicated upon the laws of Virginia, because the evidence of it issued in conformity to a resolu tion, instead of a general law. The services actually performed, were the