An entry originally void because of the disproportion between its length and breadth, may be
made good by a withdrawal of a part so as to give it the proper proportion. McArthur v.
Phœbus et al. 426.

Notoriety of entry. Ib.

If the complainant 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. Parker v. Wal-
lace, 640.

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. Ib.

The holders of resolution warrants have repeatedly been recognised by congress as equally en-
titled to bounty lands within the Vir. Mil. District, with others having certificates. Parker v.
Dunn et al. 783

It is not competent to enquire upon what evidence a warrant issued. Ib.
Notoriety of entrise. Ib.

ERROR.

For Error in Chancery Proceedings, SEE Chancery Title, V.

The minutes of the daily proceedings of courts, form no part of the record, nor can they be con-
sidered as the foundation of an assignment of errors. Harvey et al. v.
A writ of error and supersedeas does not vacate a levy upon real estate.
Heirs, 202.

Brown et al. 129.
Arnold v. Fuller's

In foreign attachment under the act of 1810, it is error to render judgment unless three months
notice be given. Colwell v. The Bank of Steubenville, 234.

It is errror for the Court of Common Pleas to direct a sci. fa. to subject lands to sale on the
judgment of a justice, unless the transcript from the justice shows that an execution was re-
turned "
no goods" and a suggestion made that the defendant owned no lands. Edmiston v.

Edmiston, 348.

In an action on a Sheriff's bond, the judgment must be for the debt, with leave to take out exe-
cution for the damages: a judgment for damages only is erroneous. Smith v. The Commis-
sioners of Licking County, 375.

A judgment will not be reversed for an error manifestly beneficial to the party seeking the re-
versal. Sterret v. Creed, 386.

An injunction does not operate as a release of errors. Gano v. White, et al. 456.

A writ of error may be prosecuted in the name of the casual ejector. Roe v. Bank U
States, 460.

Where one party to a writ of error is within the saving clause of the statute of limitations, the
case is saved as to all. Wilkins v. Phillips, 464.

The death of the defendant in error after assignment of errors and joinder, does not abate the
writ. Spurk v. Vangundy, 590.

Double replications to a plea is no ground of error, after a verdict finding both true. Rich-
mond v. Patterson et al. 608.

Burrows y. Vandevier et al. 613.

An order for a County road forty feet wide is erroneous.
Where a judgment is reversed on error, and a general judgment of restitution awarded, a writ
of restitution cannot be issued without a sci. fa.-Otherwise, if the judgment of reversal speci-
fy the precise thing to be restored. Cowden v. Hurford, 832.
To refuse such instructions as properly arise in a cause in error.
Ohio, 839.

Lewis v. The State of

Error in fact may be assigned on certiorari. Hartshorn v. Wilson, 244.
SEE Bills of Exception, Certiorari.

ESCAPE. SEE Jail.

ESTOPPEL.

Where the ancestor conveys with warranty, his heirs are estopped to claim the same land. Les-

see of Bond v. Swearengen, 174.

Where a grantor having an equitable interest, conveys with general warranty, and a patent for
the same land is afterwards granted to him, the patent enures to the benefit of his grantee, and
the grantor and those claiming under him, are estopped to claim the land. Lessee of Allen v.
J. R. Parrish, 486.

ESTRAYS.

Incorporated towns cannot subject stray animals owned by persons not residents of such town
to their corporation ordinances. The Town of Marietta v.

EVIDENCE.

Fearing, 847.

A contract to pay in current bank notes is not ambiguous and cannot be explained by parol testi-
mony. Morris v, Edwards, 222.

Publick 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. Ib.

When a sealed bill is assigned and suit brought in the name of the assignee, he must prove the
assignment under the plea of non est factum. M'Murtry v. Campbell, 125.

An averment, though immaterial must be proved. Conn v. Gano. 210.

Where the subscribing witness to a writing denies his signature, other witnesses may be called to
prove its execution. Dnckwall v. Weaver, 234.

A note partly destroyed may be declared upon as entire, and proof received on the trial of the
mutilated part. Ib.

Where the person taking the acknowledgment of a deed, gives himself no official character in his
certificate or subscription, the acknowledgment is insufficient, and the record of the deed irreg-
ular, and a duly certified copy of such deed is inadmissible evidence. Lessee of Johnston
v. Haines, 249.

Quere. If the original instrument had been produced, whether evidence can be received, that
the person taking the acknowledgment was a justice. Ib.

When a subscribing witness resides out of the jurisdictiou of the court, proof of his hand writing
is prima facie evidence of the execution of the instrument. Clark v. Boyd, 250.

Evidence of the usage and customs of merchants may be admitted, but not the opinions of wit-
nesses. Taylor v. Williams et al. 252.

When the defendants are named in the declaration as administrators, evidence may be given to
charge them in their individual character, Waldsmith v. Waldsmith, 298.

The omission of a material averment cannot be supplied by testimony at the trial. Ib.

In an action by the plaintiff to recover money paid by him as bail of the defendant, a transcript
from an appellate court is not the proper evidence of the proceedings in the court below,
Gibbs v. Fulton, 311.

Another consideration than that expressed in the deed may be shown under circumstances.
Steele et al v. Worthington, 312.

Declarations made by a witness previous to his examination contrary to his statement when ex-
amined, are admissible to discredit his testimony. Lamb v. Stewart, 334.

In an action by the Sheriff against the County Commissioners, for damages recovered against
him by a judgment creditor for an escape occasioned by the want of a jail, the record of the
suit against the Sheriff, is admissible to show the amount of injury. Commissioners of
Brown County v. Butt, 390.

The confessions of a party cannot be substituted in the place of a subscribing witness to a written
agreement. Zerby v. Wilson, 462.

A Justice who took an examination in a criminal prosecution, cannot in a subsequent action for
malicious prosecution, testify to the facts sworn to before him. Richards v. Foulke, 465.
Proof of general reputation and acting as constable is competent evidence, Johnston v. Sled-
man 479. S. P. Barret v, Reed, 422,

Copies of deeds, made by disinterested persons of good character and under circumstances that
create no suspicion of fra ud, may be received in evidence where the original is lost, Lessee
of Allen v. J. R. Parish, 486,

Evidence relating to different points of fact may be given to the jury en masse. Ib.

In Slander the defendant may give in evidence in mitigation of damages, facts which do not a-
mount to a justification. Wilson v. Apple, 568.

A former recovery cannot be proved by parol. Inman v. Jenkins, 568.
A former recovery cannot be given in evidence under the general issue. Ib.

Upon a question of boundary neighborhood report cannot be received to contradict record evi-
dence. Lessee of M'Coy v. Galloway, 576,

Copies of records from another State though sworn to, are not admissible as evidence, unless it be
shown that the original records are kept under authority of law. Richmond v. Patterson
et al, 605.

In a suit against the sureties of the Sheriff, the judgment in an action for a false return against the
Sheriff, is admissible as Prima facie evidence of the amount recovered, though the sureties had
no notice of the pendency of the suit against the Sheriff. State of Ohio v. Colerick et
al. 638.

An order of court authorizing an administrator to sell real estate, made after the sale, cannot be
given in evidence to sustain such sale. Lessee of Ludlow's Heirs v. Park, 699.

A like order to sell real estate with certain exceptions, cannot be given in evidence to sustain a
sale of part of the excepted lands. lb.

The original surveys and entries in the office of County Commissioners are admissible evidence
instead of authenticated copies. King v. Kenny, 722.

A receipt may be explained by parol. May v. Babcock et al. 817.

Where a bill of lading was signed by the master of a vessel, acknowledging the receipt of certain
goods, and stating that they were to be transported from Buffalo to Cleveland, the dangers of
the Lakes and Rivers only excepted--Held, that the legal effect of this agreement was, to
carry the goods from Buffalo to Cleveland, by the most direct route, conveniently adapted to
that purpose; and that a parol agreement between the master and shipper, before and at the
time of executing the bill of lading, permitting the master to deviate from the usual course, was
inadmissible evidence, in an action by the shipper against the owner of the vessel, to recover
for the loss of the goods. May v. Babcock et al. 817.

Parol evidence of the custom of navigating Lake Erie is admissible. Ib.

A defect in the description of lands levied upon by execution may be supplied by parol. Lessee
of Mathews v. Thompson et al. 569.

A variance between the levy and the description in the Sheriff's deed may also be explained
by parol. Ib.

EXECUTIONS.

The plaintiff in execution is not bound to furnish lodgings to the defendant while within the
prison limits, though he make oath that he is unable to support himself, Buller v. Carl-
ton, 123.

An equitable interest in lands cannot be sold upon execution at law. Roads v. Symmes et
al. 138.

The law of 1802 regulating executions extends only to judgments rendered after its passage Ib.
Where a fi. fa. is returned levied upon real estate, another f,fa. issued before the first levy is
disposed of is void, Arnold v. Fuller's Heirs, 202.

The equity of redemption may be sold on execution at law. Lessee of Ely v. McGuire, 330.
S. P. Lessee of Phelps v. Butler, 331.

A defendant arrested upon execution for a fine, may surrender land in discharge of his body.
Lessee of Walsh v. Ringer, 381.

That goods are taken in execution and undisposed of is a good plea in bar to an action on an
appeal bond. Cass v. Adams et al. 545.

A lease for 99 years may be sold on execution. Lessee of Bisbee v. Hall, 627.

The execution law of Feb. 1805, did not authorize the sale of decedents lands on a judgment
against executors or administrators, and there is no course of practice or current of decisions
warranting such sales. Lessee of Gray v. Askew, 630.

On a sci. fa. to subject lands to execution on the judgment of a Justice, it is not necessary that
the constable should retain the execution thirty days; nor is it necessary to take a rule upon
the defendant to plead to the sci. fa. but execution may be awarded by the court at the return
term of the sci, fa. Hill v. Kling, 754,

The words "Supreme Court" in an execution from the Common Pleas may be struck out as
surplusage. Lessee of Mathews v. Thompson et al. 569.

SEE Levy. Appraisement, I. Judgment. Tittle. Lien.

EXECUTORS AND ADMINISTRATORS.

A conveyance made by Executors under defective a order of Court cannot be aided in equity.
Tiernan v. Beam et al. 406.

The securities upon an administration bond are not responsible to the heir until the administra-
tor's accounts are closed or a judgment be had against him. Treasurer of Pickaway v. Hall,
546. S. P. Stewart et al. v. The Treasurer of Champaign county, 733.

Under the law of 1795, for settling intestate estates, the Orphan's Court could not direct sales of
land by administrators, lying out of the county where the Court sat. Lessee of Ludlow's heirs
v. McBride, 557.

The execution law of Feb. 1805, did not authorise a sale of decedents lands on a judgment a-
gainst executors or administrators, and there is no course of practice or current of decisions
warranting such sales. Lesse of Gray v. Askew, 630.

There was no law in the Territory no. th west of the Ohio, authorising executors or a ministra.
tors to sell the real estate of decedents previous to August 1795. The Heirs of Ludlow v.
Johnston et al. 679.

Where a Court of competent jurisdiction makes an order for the sale of real estate by an ad-
ministrator, such order cannot be questioned collaterally: It will protect a purchaser though
unadvisedly or erroneously made. Ib.

Under the act of 1803, organising the Judicial Courts, the Court of Common Pleas had jurisdic-
tion to order the sale of real estate of a decedent. Ib.

The act of Feb. 1804, defining the duties of executors &c. did not repeal the law of 1795, author-
ising the Court to direct the sale of real estate; but the same was repealed by the general re-
pealing law of Feb. 1805. Ib.

An order of Court authorising an administrator to sell real estate for the payment of debts, made
while the Court had jurisdiction, but not entered of record, cannot be rendered valid by a
nune pro tune order, made at a subsequent term, and after the jurisdiction and power of the
Court had terminated. Ib.

The granting of letters of administration does not confer upou the creditors, such a lien upon
the real estate of the intestate, as to preclude the Legislature from repealing the law author-
ising the sale of real estate for the payment of debts. Ib.

The securities of an administrator are liable for the proceeds of real estate sold by the adminis-
Wade v. Graham et al. 748.
trator under an order of Court for the payment of debts.

It is now well settled that Courts give a liberal construction to Statutes authorising sales of real
estate, by executors and administrators, and will make all reasonable presumptions in support
Lessee
of such sales: but where no record of any order of sale is produced, the sale is void.
of Goforth v. Longworth, 750.

cr

Where the obligor is appointed administrator of the obligee, the debt is not thereby extinguished,
but is merely suspended, and the debt becomes assetts in the hands of the obligor. Bigelow
v. Bigelow, 756.

The power of administrators to sell real estate are strictly legal powers and if defective cannot
be aided in equity. Leiby v. Parks et al. 861.

If a person advance money to pay the debts of the intestate, he thereby acquires no lien upon the
Jands of the intestate in the hands of the heir, Ib.

A power given by will to executors to sell real estate, may be executed by one executor, if one
only accept the office under the will. Taylor et al. v. Galloway et al. 107.

A power to sell does not authorise a baiter or exchange.

Ib.

A power to sell lands lying in Ohio, given by a will executed in Virginia, to an executor, cannot
be executed by an administrator with the will annexed appointed under the laws of Virginia,
A power given by will to an executor to sell and convey lands is a personal trust. Ib.
A testator after appointing his executor, says "I do invest him with full, ample and complete
power to dispose of (after my decease) in such manner as he thinks proper, all my estate of
every description, real and personal, and invest him with full power to settle and adjust all
my worldly affairs as he pleases; meaning expressly to invest him with as full power to that
effect as I might possess, not incompatible with the tenor and substance of this last will and

INDEX.

Steele et al.

testament."-This confers upon the executor full power of cale over the estate.
v. Worthington, 312.
Where a power is given by will to an executor to sell lands when in his opinion a sale can be
made to good advantage, and the proceeds divided to children as they come of agc, such power
is connected with a trust and the executor is entitled to the possession of the lands. Dabney
v. Manning et al. 594.

SEE Wills

FORCIBLE ENTRY AND DETAINER.

The complaint in forcible entry and detainer must describe the premises in such a manner as will
afford a guide to the Sheriff, in execnting the writ of Restitution. Murphy v. Lucas, 350.
Forcible entry may be tried in any township within the county where the lands lie. Ib.
In forcible entry and detainer, a Bill of exceptions cannot be tested by a by-stander. Ib.

FOREIGN ATTACHMENT. SEE Attachment.

FORFEITURE.

An estate forfeited to heirs in consequence of a conveyance for a gambling debt, is taken and held
by the heirs, subject to the debts of the grantor. Lessee of Bond v. Swearengen, 174.

FORMER RECOVERY.

A former recovery cannot be proved by parol, nor can it be given in evidence under the general
issue. Inman v. Jenkins, 468.

FRAUD AND FRAUDULENT CONVEYANCE. SEE Statute of Frauds.
A conveyance made voluntarily by a debtor to his creditor is without consideration, if the parties
afterwards treat the debt as still subsisting. Starr v. Starr et al. 146.

The grantor exercising control over the property conveyed, selling and receiving the purchase
money, and making conveyances, are badges of fraud. Ib.

A voluntary conveyance, without consideration, and made to defraud creditors is not void as be-
tween the parties, but only as against creditors and subsequent purchasers. Lessee of Bur-
gett v. Burgett, 207.

A mortgage executed in January 1821, for the express purpose of keeping the property out of
the reach of a creditor who had cominenced his suit, and retained by the mortgagor in his
own possession until 1823, and then delivered and recorded, is fraudulent and cannot over-
reach the lien of a judgment rendered in July 1821. Hood v. Brown, 357.

A conveyance by a debtor of his whole estate, whilst a suit is pending against him, is not abso-
lutely fraudulent, but circumstances may be admitted to explain and justify the transaction.
Barr v. Hatch et al. 662.

Where the vendor retains the possession of lands sold after the deed is executed and recorded,
upon a verbal understanding to pay rent, the transaction is not per se fraudulent. Ib.

A stipulation that the vendor will repurchase the lands at the same price within twelve months,
at the option of the purchaser, is not evidence of a secret trust for the benefit of the ven-
ǝr. Ib.

A debtor may prefer one creditor to another. Ib.

The holder of a recorded mortgage is not guilty of a fraud, if he as counsel prepare a subsequent
Paine v. French et al. 807,
mortgage and remain silent as to his own,

GENERAL COURT.

GRANT.

SEE Courts.

The act of congress of Feb. 18, 1801, operated per se as a grant. Lessee of Allen v. J. R.
Parish, 486.

It is indispensable to the vali lity of a grant that the grantee be capable of receiving it; that is,
that he be a person in esse, at the time of the grant. Sloane v. McConahay, 761.

SEE Deed.