ered by the administrators, and the court; otherwise the order of August would neither have been applied for, nor made.

This appears to have been a separate and distinct proceeding, carried on for the express purpose of subjecting the town lots and some other property, not embraced in the former order, of sale. It has no further connection with that order than as relates to the description of the property. If this proceeding can be assimulated to a "suit or prosecution," it is a new suit or a new prosecution. Another point made is, that if the law in question was repealed by the general repealing law of 1805, still it could have no effect upon the administration of Ludlow's estate, inasmuch, as letters of administration were granted thereon, before the latter law took effect. If this position be tenable, it must be, either because, by the grant of letters of administration, administrators acquire rights which can neither be taken away nor varied by legislative enactment; or be cause creditors, by the death of their debtor, acquire an interest in his estate, which must be satisfied according to the laws in force at the time of his death. It is not believed that either such rights or interests have been acquired.

Whether it be good policy to change an administration law so as to affect an estate already in the course of settlement, may be questionable, but it is not a question for the court now to determine. We are not, however, prepared to say, the legislature have not the power to do it.

It has been done not unfrequently, and the propriety of the course never questioned to my knowledge, in any of the courts of the state. The adminis. trator acts in virtue of powers conferred on him by the statute law, and those powers may be varied as the exigencies of the country require. So long as he governs himself by the laws in force, he can sustain no injury. At no time has he any interest in the property of the intestate, except as trustee for those who have claims upon the estate as creditors or distributees. This trust is not conferred upon or reposed in him by the creditors or distributees, but by the law itself.

Creditors do not by the death of the debtor, acquire any rights to his property, which must necessarily be satisfied in any specific manner. It is proper that their claims should be paid, and with our present ideas of right and justice, we should say, that the real as well as personal estate of the deceased, ought to be applied for that purpose. In some other countries, however, different opinions prevail, and in our own state, it is manifest, there was a time, when this descrip. tion of property could not be appropriated for this purpose through the agency of administrators. Whether there was any other mode by which it could be reached, it is not necessary now to enquire.

The doctrine is sometimes advanced, that the creditor by the death of his debtor acquires a species of lien upon his property. The nature of this pretended lien I could never fully comprehend. It seems to be something that is indescri. bable. He undoubtedly has a right to the satisfaction of is debt so far as there is property, which gives a claim that ought to be preferred to that of heirs or distributees. But the manner, in which the property shall be disposed of to give him this satisfaction, must depend upon the law in force at the time he attempts to obtain it. It has long been the policy of this state that judgments should operate as liens upon the lands of the debtor. This lien does not attach in consequence of any natural or conventional right, or in consequence of any

influence of the judgment in itself considered, but in consequence of positive legislative enactment. Upon this principle it has been decided, that the law giving the lien might be varied or repealed subsequently, so as to effect subsisting judgments. With equal propriety might alterations be made in the law relative to the settlement of intestates' estates, even where the estate is already in a course of settlement.

The view which has been taken of the case renders it unnecessary to determine what is to be understood by the words "suits and prosecutions," as used in the proviso of the repealing law, or what effect the repeal shall have upon sales made by the administrator in pursuance of the order of May term, 1804. There can be no doubt but that many difficulties must be overcome in order to arrive at a correct conclusion upon either of those points, but it will be soon enough to solve those difficulties when a case is presented rendering it necessary. Upon the whole, the court are of opinion that, previous to the year 1795, there was no law in the territory authorizing administrators to sell the lands and tenements of an intestate.

That the law of 1795, "for the settlement of intestate estates," was the first law giving this authority, and the only one previous to June, 1808.

That this law was repealed and ceased to have effect from and after the first day of June, 1805.

That the order of the Court of Common Pleas of May term, 1804, directing the administrators of Israel Ludlow to sell a part of the real estate of said Ludlow, for the payment of debts, did not embrace the premises in controversy.

That the parol testimony offered to prove an order of sale at the May term, 1805, is incompetent.

That the order of said Court of Common Pleas, at the May term, 1805, was coram non judice and void. And

That the lessors of the plaintiffs could not be divested of their title in consequence of any act done in pursuance of that order.

Of course the testimony offered by the defendants was properly over-ruled, and judgment must be entered for the plaintiff.

4 HAMMOND. 5

LESSEE OF LUDLOW'S HEIRS v. PARK.

When a case is reserved on the circuit, the facts material to its decision, must be drawn up in writing, approved by the court, filed with the papers and transmitted to the court in bank.

An order of court authorizing an administrator to sell real estate, made after the sale, cannot be given in evidence to sustain such sale.

A new trial will not be granted because the court gave a wrong reason for rightly rejecting testi

mony.

An order of court authorizing administrators to sell real estate, with certain exceptions, cannot be given in evidence to sustain a sale of part of the excepted lands,

Upon a motion for a new trial on the ground of newly discovered testimony, such testimony must be disclosed that the court may exercise a sound discretion in granting or refusing the motion.

This was an ejectment tried before the Supreme Court, in Hamilton county, in which a verdict was found for the plaintiff, and a motion was made by the de. fendant for a new trial, which motion was adjourned here for decision. The case upon the trial appeared as follows:

The plaintiff proved that the lessors were the heirs at law of Israel Ludlow, who died in Jan. 1804, intestate. A deed from J. Cleves Symmes to Israel Ludlow, for the premises in dispute, was adduced in evidence, with proof of the possession and occupancy of Ludlow until the time of his death. The premises were a twenty-seven acre out lot claimed to be within the plat of the city of Cincinnati. An official copy of the town plat was given in evidence, on which the premises were designated. It was also proven that the premises had been improved, by clearing, enclosing and cultivation, in the life time of Ludlow. Upon these proofs the cause was rested by the plaintiffs.

The defendant then offered in evidence a deed, from the administrators of Is. rael Ludlow, to himself, for the same premises. This deed bore date on the 21st day of December, 1810, and recited that the administrators had, on the thirteenth of that same month, sold the premises conveyed, under an order of the Court of Common Pleas of Hamilton county of December Term, 1810. It was conceded that the sale was in fact made, on the day recited in the deed. A certified copy of the order of sale was produced, in the following words:"17th December, 1810. Petition of the administrators of Israel Ludlow, dec. &c. for to sell real estate to satisfy the demands, &c. which this Court grant." The plaintiff's counsel objected to the admission of this deed and order in evidence, on the ground that, the order, authorizing the sale, being made subse. quent to the sale itself, and that fact appearing upon the face of the deed, the sale and conveyance were inoperative for defect of authority in the administra. tors to make a sale. The Court sustained the objection, and rejected the deed and order.

The defendant's counsel then offered in evidence an order of the Court of Common Pleas of Hamilton county, of May Term, 1804, in the following words: "The administrators of the estate of Israel Ludlow, dec. exhibit an account current, and pray the Court to issue an order for the sale of the real

property, to defray the debts due from the estate, &c. John Ludlow and James Findlay sworn in court. The court order so much of the real property sold, as will meet the said demands, except the farm and improved lands near Cincinnati, together with the house and lots in Cincinnati." The plaintiff's counsel objected to this order being received in evidence, because the premises in question, being improved lands near Cincinnati, or a lot in Cincinnati, were not embraced by it; and also because the law in force when the order was made, was repealed in 1806, and no law substituted for it empowering the courts to order the sales of decedent's estates, until 1808. This order was also rejected by the court, and no evidence being given to the jury, divesting the title of the plaintiff's lessors, a verdict was rendered for the plaintiff, under the direction of the court.

The defendant's counsel moved for a new trial, and assigned the following

reasons:

1st. The verdict is against law.

2nd. The verdict is against evidence.

3d. The court rejected legal and proper evidence, which ought to have been given to the jury.

4th. The defendant has discovered new and material evidence since the trial.

The newly discovered evidence consisted of an old copy of the plat of Cincinnati, in which the twenty-seven acre out lots were not marked as a part of the town.

The questions arising on the motion for a new trial, were adjourned for decision to the special session, at Columbus. At the time of adjourning the cause, no statement was made and approved by the court, presenting the state of the case, and the questions to be discussed and decided. When the counsel came to prepare their arguments, the counsel for the defendants alleged they had been directed by the court, to argue only a single point, viz: "Whether any other order could be shewn than that recited in the deed." This the plaintiff's counsel denied, and insisted that the whole case was open for discussion, as presented by the facts stated to have transpired at the trial. The cause was argued by N. WRIGHT and CASWELL & STARR, upon this point, and by HAMMOND & GARRARD upon the whole case.

Opinion of the Court by Judge HITCHCOCK,

The practice of the Court requires, that when a cause is reserved for decision at the special session, a statement shall be made in writing, and filed with the papers in the cause, shewing the particular point or points to be litigated or determined. If the question reversed arises upon the sufficiency of the pleading, such statement is unnecessary. Nor is it required in chancery proceedings, where the evidence is in writing, and with the pleading submitted to the court. But where the court is supposed to have erred in the admission or rejection of evidence in the course of a jury trial, which supposed error is made the foun. dation of a motion for a new trial; or where the court, in the course of such trial, reserves questions for subsequent consideration, such statement is peculi

arly necessary.

Without it, it may many times be difficult to arrive at a satisfactory conclusion. The statement should be drawn up by the counsel excepting to the opinion of the court, submitted to and approved by the court, and filed away by the clerk. This having been done, no room is left for subsequent altercation. The propriety and necessity of this course of practice, is clearly evinced in the present case. No statement in writing was made, consequently the counsel differ as to the precise question reserved. Contrary statements are exhibited, with a view to satisfy the court as to this point. From our knowledge of the gentlemen concerned, we have not the least doubt but that they state the circumstances as they understood them, when these circumstances transpired, but it is manifest there must have been some misapprehension.

The case now comes before the court on motion for a new trial. The motion is grounded upon a supposed error in the court upon the circuit, in the rejection of certain evidence offered by the defendant; and upon the fact that the defendant, since the trial, has discovered evidence material to the issue. Other reasons are assigned in the record, but they do not appear to be relied upon, not being even referred to in argument.

On the trial of the cause to the jury, the defendant offered in evidence a deed to himself, from the administrators of Israel Ludlow, purporting to convey the premises in controversy. The deed bears date the twenty-first day of De cember, 1810, and recites the fact that the sale was made on the thirteenth day of the same month. At the same time the order of sale of the seventeenth of December, 1810, was offered in evidence to show the power of the administrators to sell.

The recital of the deed states that the sale was made in pursuance of this order. The evidence thus offered was objected to by the counsel for the plaintiff, the objection sustained, and the evidence overruled. In rejecting this evidence the court decided correctly, unless the doctrine can be maintained, that an order of the Court of Common Pleas, authorizing an administrator to sell the real estate of his intestate, will have so far a retrospective operation, as to legalize a sale made prior in point of time to the order itself. An attempt will hardly be made to sustain a principle so absurd. In fact, I do do not under. stand that there is any complaint in consequence of the rejection by the court of this order.

The defendant next offered in evidence the order made by the Court of Common Pleas at the May Term, 1804. This evidence was objected to for a vari. ety of reasons. It was urged that inasmuch as it appeared from the recital in the deed, that the administrators, in making the sale, and the defendant in purchasing, looked to the order conferring authority upon the administrators to sell. It was further urged that the order of May, 1804, did not embrace the premises in dispute, and if it did, then that that order ceased to operate from and after the repeal of the law of 1795, "for the settlement of intestates' estates." The Court sustained the objection, and overruled the evidence. In deciding the question, an opinion was expressed that the defendant, by the recital in his deed, must be precluded from giving in evidence any other order than that of December, 1810.

Counsel for the defendant contend, that the case was reserved, not so much for the purpose of determining whether this evidence was properly rejected,