But

It

Lemmon pointed out, ahd which W. Waters promised to have corrected. that in consequence of a defect in the sale for taxes it could not be done. is also charged in the original bill, that the whole quantity sold for taxes, was seventy acres, of which the twenty is part, and that for the remaining fifty acres, an ejectment had been brought against W. Waters, and a recovery had, he being unable to sustain the tax sale. The bill prayed, that the contract for the sale of the twenty acres of land might be rescinded, and that Lemmon might receive compensation for his improvements, and other general relief.— This bill was filed December, 1823.

In his answer, W. Waters, admits the sale, and that part payment was made, and judgment for the balance. He denied all fraud or misrepresentation. He denied that the twenty acres was the chief consideration for the two thousand dollars, and alleges that the whole sixty acres of land, considerable stock, mill stones, and valuable implements to a grist mill, and a saw mill, were sold in gross, for the gross sum of two thousand dollars. Alleges that every thing was fairly represented, and all the papers exhibited at the time of the sale.

Much testimony was taken in the cause, and upon an interlocutory decree, it was referred to a master commissioner, upon whose report, a final decree was made in the common pleas, cancelling the contract for the twenty acres of land, enjoining the recovery of the judgment at law, and decreeing that W. Waters pay to Lemmon 1372 dollars, 52 cents, and costs. This decree was pronounced at April term, 1828, and upon petition the Waterses obtained a rehearing.

At August term, 1828, the Waterses excepted to the Master's report, and the cause was again heard, and a decree pronounced, corresponding with the previous decree, except that Wm. Waters was decreed to pay to Lemmon, 1384 dollars, 22 cents. No disposition was made, by the decree, of the possession of the sixty acres of land, which was left with Lemmon. To reverse this de. cree the writ of error was brought.

M. Marshall, for plaintiff in error. H. Brush, for defendant,

By the COURT.

Upon a writ of error, to a decree in chancery, nothing is examinable, but the bill, answer, and exhibits, made part of them, the decree itself and such mat. ter as may be made part of the case, by a bill of exceptions. The court do not rehear the cause upon its merits. This case must, therefore, be decided upon the allegations of the parties, and upon the decree. From these it appears that Lemmon, the complainant below, purchased from the Waterses sixty acres of land, with some personal property, and was put in possession of the whole. These purchases were made at different times. The first, for twenty acres, the latter for forty acres of land, the two tracts lying contiguous and adjoining. Lemmon remained in undisturbed possession of the whole of both tracts, and of the improvements made upon them. His bill contains no offer to surrender all, or any part to the Waterses, from whom he received it; but prays that the contract may be rescinded, and the purchase money paid by him refunded. The decree conforms to this prayer. It directs the contract, so far as it relates to the twenty acres, to be rescinded; and it restores to Lemmon the purchase

money, leaving him, also, the possession of the land.

This we deem inequita

ble, and therefore erroneous. For this cause, the decree must be reversed, and the cause remanded for further proceedings. As the cause may, possibly, come before us again, upon its whole merits, as presented by the proofs, it has not been considered necessary to make up, or express an opinion, except upon this single point.

Decree reversed.

LESSEE OF SYMMES, ET AL. v. BEAVER.

This cause was adjourned from the county of Licking. It was submitted to the Court upon the facts, involving a question of fraud, in the original conveyance to the lessor, Symmes. The Court were of opinion that the fraud was fully established by the proof, and gave judgment for the defendant. It was deemed unnecessary to report the mass of testimony necessary to an understanding of the case. Without this report could be worth nothing.

PARKER v. DUNN, ET al.

Notoriety of Entries.

The holders of resolution warrants have repeatedly been recognised by Congress as equally entitled to bounty lands within the Virginia Military reservation, with others having certificates. It is not competent to institute an enquiry upon what evidence a warrant issued.

It

This cause was adjourned here for decision from the county of Brown. was a bill in chancery by the junior patentee of the elder entry, seeking a conveyance from the elder patentee. The case is stated in the opinion of the Court.

M. Marshall, for complainant.

By the COURT.

Thompson and Scott, for defendants.

The bill states, that, in July, 1799, Josiah Parker, being an owner of a land warrant, issued by the Commonwealth of Virginia for revolutionary services, caused an entry of the same to be made between the Little Miami and Scioto rivers. The entry is as follows: "January 29, 1799. No. 3549, Josiah Parker enters four hundred and fifty acres of land on part of a military warrant, No. 1920, on White Oak creek, about four or five miles from the mouth, beginning at the southwest corner of Curry's, and northwest corner to Heath; thence N. 45, W. 370 poles, crossing White Oak to a sycamore and hackberry marked with painted letters; thence S. 45, W. 370, to an ash and hackberry ; thence S. 12, W. 30 poles to a stake; thence eastward to the beginning." The bill further states, that Josiah Parker was the grandfather of the complainant, and that he died leaving a will devising to complainant all his estate, including

the tract in controversy, upon condition that his devisee should assume the name of Parker, which he has done.

John Graham has made an entry covering the same land, and has the elder patent. The prayer is, that the defendant may set out his title, and convey to the complainant his right, &c.

Walter Dunn, the trustee of the said John Graham, and the defendants, who claim under him, say, in their answers, that the warrant of the complainant was issued by a resolution of the Commonwealth of Virginia, and was therefore by law void, as respects the complainant's right to locate the lands in the Virginia military tract. One of the complainants also insists upon the statute of limitations, &c. By the agreement of parties, it is admitted that the complainant was a minor residing in the state of Virginia, where he continued to reside until some time in the year 1824, and also that Josiah Parker was a resident of the same state, and never was in Ohio. Upon well settled principles, the statute of limitations does not apply.

The case furnishes the most abundant proof of the notoriety of the entries of Heath and Curry for more than thirty years. As the facts furnish no deviation from the settled principles applicable to notoriety, it is unnecessary to detail them as exhibited in evidence.

It is urged this entry is vague in its calls for Curry's and Heath's, as those entries are not identified by quantities or numbers; but those entries are well defined, not only by fixed, but by artificial monuments, and there is an entire absence of proof that there are any other claims, in the name of Curry or Heath, on White Oak run. A subsequent locator could not, therefore, be misled or confused for the want of a more exact and precise description of these entries.

The other point made in this cause was considered and decided in the case of Parker v. Wallace, (3 Ohio Rep. 490.) Upon a review of the principles of the last mentioned case, the court is entirely satisfied with the decision. It may be added, that the h lders of resolution warrants have repeatedly been recog. nised by Congress as equally entitled to bounty lands within the Virginia military reservation with others having certificates, and particularly by the acts of March 3, 1807, April 11, 1818, and March 1, 1823. This, however, was a vested right in the holder when the cession was made to the General Government. In the reservation, no distinction is made between those entitled to bounty by resolution or otherwise, nor is it competent to institute an enquiry upon what evidence the warrant was issued.

The court is, therefore, clearly of opinion the complainant is entitled to the relief sought.

WALLACE v. THE OHIO INSURANCE COMPANY.

The rule of one third new for old, in the law of marine insurance, is applicable to the insurance of steam-boats on the Ohio river,

This was an action on a policy of insurance taken by the defendants upon the steam boat Hercules, for the sum of eight thousand dollars. Cincinnati was the home of the Hercules and of the plaintiff. She was run against by the B. Franklin and injured, but was nevertheless brought to Cincinnati, and there repaired. The whole amount of charges claimed by the plaintiff for repairs, was eleven hundred and thirty-six dollars. Of this sum, six hundred and fortyseven dollars was admitted to be for repairs properly chargeable as such. The residue of the charges were for kitchen and table furniture, and for wages to captain, mate, steward, cook and clerk. By the terms of the policy, the insurers were not to be charged, unless the loss amounted to ten per cent. upon the amount insured. The insurers refused to pay, because they contended that the loss, when reduced according to the marine law, one third, upon the doctrine of new for old, did not amount to eight hundred dollars, and because the items charged above the sum of six hundred and forty-seven dollars were not legally chargeable against the insurers. The action was an amicable one, and the facts were all agreed, reducing the case to the points here stated, and agreeing also that the boat was not improved by the repairs. It was adjourned here for decision from the county of Hamilton.

Caswell & Starr, for plaintiff. Hammond and Garrard, contra.

By the COURT.

In its practical application, the whole doctrine of insurance is new to us. We cannot, therefore, undertake to settle principles, so as to conclude us, should further litigation arise, and further investigation diffuse new lights upon the subject.

The question now necessary to decide, is, whether an established doctrine of the law of maritime insurance, shall be applied to the case of insurance, upon steam boats navigating our interior rivers. The plaintiff contends that it is wholly inapplicable, and should, for that reason, be rejected.

It is admitted, that, if a sca vessel be injured to an extent less than one half her value, she shall be repaired at the expense of the insurer. But in that case, one third of the charges of repair shall be borne by the owners. The reason upon which the rule seems to be founded, is, that the repairs place the vessel in a better condition than when she was insured. In this case it is agreed, that the vessel was not improved by the repairs, and the drift of the plaintiff's argument appears to be that, when the reason for the rule ceases, its obligation is at an end. We understand that the rule is of universal application, and that it is not one adapted to each particular case. It is so laid down by judge Story, in Peel and others v. The Merchant's Insurance Company, 3 Mason, 73.

"The rule itself is somewhat arbitrary, and not founded upon an exact cal. culation, with reference to the particular case. The ship may be almost entirely new, and then the reason for the deduction would altogether cease. The ship may be very old, and the reason for a much greater allowance would apply. The general principle upon which the rule is founded, is, as stated by MAGENS, that the underwriters ought to pay for the actual damage or injury, but not for the wear of the things lost or injured; and therefore proper allowance ought to be made for the difference in value between the new and the old. But if this difference were to be ascertained, in every particular case, by actual inspection and estimates, there would be no end to controversies, and therefore general usage, which the law follows, as founded on general convenience, has applied a certain rule to all cases, not upon the notion of perfect justice, but as generally reaching, in substantial equity, the mass of them.

The doctrine, as here asserted, makes it wholly immaterial whether, in the case before us, the steam boat was actually improved, or not, by the repairs. So we must declare that the principle, new for old, is applicable to steam boats, or else that fact, in the case, can have no weight in deciding our judgment.

We are not prepared to say, that, in general cases, steam boats, when not injured more than half their value, at the time of injury, may not be greatly improved by repairs. That is, improved from the actual condition, when the injury was sustained. We think this may be the case, and if so, we are not now willing to declare that this branch of the law of marine insurance should not extend to steam boat insurances.

If we understand the counsel for the plaintiff rightly, they propose that we shall take upon ourselves to revise the whole doctrine of marine insurance, and retain part as properly applicable to the case of steam boats, and reject part as wholly inapplicable. We think this work, if necessary to be performed, should be undertaken where there is more experience and knowledge upon the whole subject. Steam boats commenced running in the waters of New York, before they did in the western waters. The city of New York is the great commercial emporium of the Union. Her jurists, both bench and bar, are eminent for their deep and sound learning. Questions of insurance must have arisen, yet neither in the books of reports, nor in the excellent elementary treatise of chancellor Kent, have we any intimation that the general doctrines of the law of marine insurances are inapplicable to steam boat insurance. Steam boats have been in use in England for years. We have no information that the principle now pressed upon us, has been urged there. Under these circumstances, we hold it safest to adhere to the doctrine as we find it settled, and administer it as an entire system, to those who claim, at our hands, the administration of part of it. When the amount of one-third is deducted from the whole charge for repairs, the loss is reduced to a less sum than eight hundred dollars. This not being ten per cent. upon the actual value, the terms of the policy do not entitle the plaintiff to recover. The whole case is thus disposed of, and it is unnecessary for us to say any thing upon the other points presented in it. Judgment for defendants.