of locating her military warrants, which are evidences of purchase. Such a measure was necessary for the safety and convenience of those concerned, as well as to insure an equitable distribution of the good lands. But it is enough to say that the legislature had a right to prescribe, and that she did prescribe the mode in which all entries should be made, and that no other power can dispense with it or substitute an equivalent.

It will be noted, that the mode of entering and locating the warrants in question was declared by statute in 1779. The law for ceding the territory north west of the river Ohio, did not pass till 1783, and when it did pass, it was on condition that congress should hold the lands between the Scioto and Little Miami, subject to the claim of the holders of Virginia military warrants, for which purpose it had been previously set apart.

It seems to follow, from these premises, that the holders of military warrants are vested with certain rights, which are ascertained by the statute, and should be regarded by the government, which is to be viewed in the light of a trustee. One of those rights is, that until the land be legally appropriated, any holder of a warrant may locate and secure it-consequently, a conveyance to a locator, who has not entitled himself to a patent by conforming to the statute, would be an abridgement of that right and a breach of trust.

It is also contended, that if an entry, defective in its origin for want of notoriety, become known to a subsequent locator before his entry is made, that circumstance ought to operate as notice in ordinary cases, and charge the second locator with the equity of the first claim. This, however, is only presenting the same question in a different form, and does not, in the least degree, free it from the difficulty and inconsistency before noticed. The cases of Wilson v. Mason and Craig v. Pelham, before cited, maintain the contrary doctrine. In both cases it is decided, that actual notice is not sufficient. In the former case, the Supreme Court of the United States say, "that land cannot be lawfully appropriated without an entry-that notice of an illegal act cannot make it valid that a survey not founded on an entry, (by which we understand a legal entry,) is a void act, and constitutes no title whatever, and that consequently the land so surveyed remains vacant, and liable to be appropriated by any person holding a land warrant." It would be difficult to point out the difference between a survey made without an entry, as was Mason's, and a survey made on an illegal entry, as was the defendant's; because an illegal entry is as no entry. The land, therefore, in either case, must remain vacant, and liable to be appropriated.

The doctrine of notice, however, it is believed, has never been applied to cases under the land laws of Virginia, when the parties claim under distinct entries. In every such case, each claimant must rest on the validity of his own title, and if the elder entry be so defective as to be pronounced illegal, which must be the case if the junior is sustained, those defects will vitiate that entry independent of any influence arising from the junior entry. Each entry must stand or fall on its own merits, and the knowledge of the last location can neither aid nor injure the first location; if that be illegal it is rendered so by its own defects, which can neither be increased nor diminished by any thing connected with an adverse entry, or with him who holds it.

If a person in possession of land has purchased it for a valuable considera

tion from one having no right or title whatever, and a third person, with a knowledge of the facts, afterwards purchases the same land from the real owner, his knowledge shall not affect him, because it cannot aid the defective title of his adversary. In like manner, if a person contract for the purchase of real estate, by parol, contrary to the form of the statute, and afterwards another person, with full notice of such notice makes a legal contract for the same land, his purchase shall not affect him, nor aid the first purchaser. For the same reason, the notice of Kerr can neither affect him nor aid the illegal title of his adversary. The doctrine of notice applies strictly to cases in which a person contracts for a title with notice of a prior legal contract for the same title, and not to persons who claim under different titles, one of which must necessarily be void, as is the fact in the case before us. Upon the whole, we are clearly of opinion that the decree is erroneous and must be set aside.

GARDENER v. WOODYEAR.

A bond for the prosecution of a writ of error is good, though the terms required by the statute are not precisely followed. A substantial compliance is only requisite. The court will not aid a party to avoid the obligation of such a bond, by adopting strained and rigid maxims of construction.

This was an action of debt upon a bond. The declaration was in the usual form; the defendants craved oyer and demurred. The condition of the bond is as follows: "whereas Thomas Woodyear hath this day obtained our writs of error and supersedeas to a judgment of the court of Common Pleas for Ross county, obtained by John Gardener plaintiff, against the said Thomas Woodyear defendant, April term, 1819. Now if the said Thomas Woodyear will prosecute our said writs to effect, and abide the judgment of the court thereupon had, then the above obligation to be void, otherwise to remain in full force and virtue."

The Court of Common Pleas of Ross county gave judgment on the demurrer for the plaintiff, but assessed his damages to only fifteen dollars, a sum sufficient to pay the costs on the writ of error. The plaintiff appealed to the Supreme Court, and the question arising on the demurrer was reserved for decision here.

Atkinson and Leonard in support of the demurrer.

Bond for the plaintiff.

By the COURT.

The bond in this case was taken under the 95th section of the judicial act, which directs that it shall be taken "in double the amount of the judgment obtained or decree rendered, conditioned for the payment of the condemnation money and costs, in case the judgment of the Common Pleas should be affirmed in whole or in part." This direction is not pursued in terms, the words used being, "that he will prosecute the said writs to effect, and abide the judgment of the court thereupon had." The defendants insist that the condition not being in conformity with the statute, the bond is inoperative, that it never was operative, and that the writ of error might have been quashed.

The principal point of the defendants' argument is, that the stipulation contained in the condition, is different, and more disadvantageous to them than that required by law. By the latter they are to pay the judgment and costs, if the judgment be affirmed. By the bond they forfeit the obligation, if for any cause the party should fail to prosecute his writ to effect.

The 9th section of the judiciary act of 1803, regulating appeals from the Commmon Pleas to the Supreme Court, directed that bond should be given "for prosecuting his appeal to effect." The 7th section of the act of 1805, on the same subject, contains the same provision; and the 9th section of the same act, directs that, on writs of certiorari and habeas corpus cum causa, the condition of the bond shall be, "that he will prosecute the same to effect, and abide the judgment of the court thereupon had."

The 11th section of the judiciary act of 1806, in relation to writs of error, certiorari, &c., directs that bonds shall be taken, conditioned, "that he will prosecute the same to effect, and abide the judgment of the court thereupon had."Section 13, of the act of 1808, makes the same provision.

In the revision of 1810, this phraseology was changed, and that introduced which is contained in the present laws. From 1803 to 1810, the courts uniformly decided that the undertaking to prosecute the writ to effect, and abide the judgment of the court thereon had, subjected the parties in the bond to the pay. ment of the amount of the judgment and costs. The change of language in 1810, was adopted to express, in more explicit terms, the same thing which the courts had adjudged the other terms to express.

The bond in question contains precisely the very terms required by the earlier statutes in such cases, and which were interpreted by the courts to subject the obligors to the same liability imposed by the existing law, and to no other. This interpretation was adopted from a clear conviction that such was the effect which the legislature intended the terms used should have. Because the legislature have now adopted more explicit terms, the court cannot be warranted in deciding that the same terms, used for the same purpose, meant one thing in 1810, and another thing in 1820. It is, therefore, the opinion of the court, that the condition is, in substance, the same as if it had contained the express terms now required by the statute.

Upon an examination of the cases cited, as far as the authorities are within reach of the court, it is found that, taken altogether, the courts of other states have gone much further to support the statutory bonds, than it is necessary to go in this case. Where the bond has been held inoperative, the circumstances were materially different from those which arise here. There is no case where a bond, fairly and regularly executed, and comprising, substantially, all the requisites of the statute, has been adjudged void because it departed, in some one or more particulars, from the exact words used in the statute authorising it to be taken. It has been the uniform object of our courts, to support bonds executed under the provisions of law, where, by a reasonable interpretation, such bonds can be made to meet the intention for which they were required and taken. Where the party has had all the advantages of making the bond, the court cannot aid him to avoid its obligations, by adopting strained and rigid maxims of construction.

Judgment must be given for the plaintiff.

SMITH v. GODDARD.

A contract to pay in current bank notes, is a contract to pay in money, if bank notes be not tendered at the day.

An action of assumpsit was brought in the Common Pleas of Green county, upon a promissory note in the following words:

"I promise to pay Abbott Goddard, or order, at Xenia, two hundred dollars, in current bank notes, such as are passing in the common course of business, on or before the first day of June, 1822-value received this 25th March, 1820."

The defendant pleaded non assumpsit. Upon the trial the plaintiff gave the note in evidence to the jury; and the defendant then offered evidence to prove, that at the time the note was given, the circulating medium of the country consisted of bank notes, passing at a discount of from twenty-five to thirtythree and a third per cent., and of a few bank notes passing at par with specie. That on the first of June, 1822, depreciated bank notes had ceased to circulate, and that no bank notes were in circulation but those which passed current at the amount called for, as specie. To this evidence the plaintiff objected, and it was rejected by the court of Common Pleas. The defendant excepted to this opinion, and a writ of error was allowed. The question was reserved by the Supreme Court in Green county, for decision here.

B. COLLET for the plaintiff in error. J. ALEXANDER, contra.

Judgment affirmed. For the grounds of the decision, see the opinion of the court in the following case.

MORRIS v. EDWARDS.

A contract to pay in current bank notes of the city of Cincinnati, is a contract to pay money, if the notes be neither paid or tendered at the time.

For certain purposes, and in fact for every purpose, in the ordinary transaction of business, bank notes, ever have been and still are considered as money, though they are not a lawful tender.

A contract to pay in current bank notes is not ambiguous and cannot be explained by parol testi

mony.

Public history, not of the state at large, but of a particular town or city, will not be taken notice of ex officio by the court.

Morris brought an action in the Supreme Court of Hamilton county, upon a note in writing, in the following words:

"On the first day of February, in the year 1822, I promise to pay James C. Morris, or order, (in current bank notes of the city of Cincinnati,) two thousand dollars, with interest, for value received. December 25, 1819."

The case was put to trial on the general issue. The defendant offered evidence, that at the time of making the contract and executing the note, business was done in Cincinnati upon a depreciated circulating medium, consisting chiefly of the notes of the banks of Cincinnati and vicinity-that the value of property

was estimated by the numerical value of these notes, and that when payment was stipulated to be made in current bank notes, property was put at a higher price than it would have been if the contract was for specie-that the differ. ence between the numerical value and the specie value of current bank notes, when this contract was made, was thirty-three and one-third per cent.—that at the time the note became payable, there was no depreciated bank paper in circulation in Cincinnati, nothing being current but specie, or bank notes of specie value. This evidence was offered for the purpose of showing that the plaintiff ought not to recover the full sum of two thousand dollars, but twothirds of that sum, with interest. The question, as to the admissibility of this evidence for the purpose proposed, was reserved for the decision of this court. Wade and Hayward for plaintiff. Hammond and Este, for defendant. Opinion of the Court by Judge HITCHCOCK.

This case presents two questions to the consideration of the court.

1st. Whether the sum of two thousand dollars, mentioned in the contract, with the interest due thereon, shall be recovered?

2d. If, in the opinion of the court, this sum cannot be recovered, whether the damages are to be ascertained by proof of the value of "current bank notes of the city of Cincinnati," on the day the contract was entered into, or on the day when the payment fell due?

That the first question may be correctly decided, it is necessary to ascertain what character is to be attached to bank notes. If they are considered as money, then this contract is a contract for money; if not, it is a contract for the payment of a certain sum in specific articles. By the term money, we generally understand that which is the lawful currency of the country-that which may be tendered, and must be received in discharge of a subsisting debt. With this understanding of the term, it cannot be contended that bank notes are, in themselves considered, money. They are not a lawful tender. No person is bound to receive them in discharge of a debt, unless in pursuance of a previous contract. But for certain purposes, and in fact for every purpose, in the ordi. nary transaction of business, bank notes, it is believed, ever have been and still are considered as money. They do not come under the denomination of goods, wares and merchandise. Evidence of the receipt of bank notes, will support an action for money had and received. The delivery and receipt of them, in discharge of a debt, will be considered as payment of so much money, not as accord and satisfaction. By the universal consent of mankind, when they pass from one to another, they pass as money. In the course of business, they are charged and credited as cash, as money. They have been estimated as money, not only by men of business, but by courts of justice.-Lord Mansfield, in speaking of bank notes, says, "they are not esteemed as goods, securities nor documents of debt; but are located as money, as cash in the ordinary course and transaction of business, by the general consent of mankind; which gives them the credit and currency of money to all intents and purposes." "They pass by a will which bequeaths all the testator's money or cash, and are never considered as securities for money, but as money itself.—(1 Bur. 457.) The Supreme Court of the state of New York, say that bank notes are considered