The Court cannot try the facts in a cause without the consent of both parties
226.

Mills. Noles,
When a cause is cerified to the Sup.eme Court, Gem the con rien Pleas in account of the in-
terest of the judges, the facts upon which the interest arses must be set out in the certificate.
Knaggs v. Conunt, 243.

When ther is other proof that y suhec ibing witness to a writing resides ont of the jur's 'let'en of
the court, it is not necessary to take out a subjana and have a retain of Let found.
Clark v.
Boyd, 250.

After the appearance of the defendant and continuance of the cause, it is error to dismiss it for
want of security for costs. A ule for security should be taken. Nelickar v. Ludlow's
Heirs, 253.

Upon a motion for the Sheriff to make a deed, the court look only to the execution on which the
sale was ma le, an I the proceedings un ler it. Buckingham and Co. v. Gran. Alex. So-
ciety, 397.

Hunt et al.

A judgment irregularly entered may be set aside at a subsequent term on motion.
v. Yeateman, 454.
The Bank of the U. States cannot remove a cause from a State to the Circuit Court under the
act of congress of 1798. Heirs of Ludrow v. Heirs of Ki'd et al. 463.
When a Plaintiff appeals to the Supreme Court and recovers no more than in the common
Pleas, two judgm uts are rendered, one in favour of the plaintiff for the amount recovered,
and the other or the defen lant for costs on the appeal. Waters v. Lemmon et al. 476.
An inveterate practice for a series of years will not be departed from. Brown v. Farron, 509.
The court in Bank a ter int mating an op ́n on upon a general demurrer will permit it to be with-
drawn and the pleadings amendet. Cassy. Adams et al. 545,

An application to set aside a levy is addressed to the sound discretion of the court and is not sub-
ject to revision in the Supreme Court. Bliss v. Enslor, 567.

The court may confo rm a ver 'ict to the intention of the jury without consulting them. Hay v.
Oosterout, 614.

When a party puts a witness upon his roir dire as to his interest, he cannot afterwards except
to him on the groun I of interest. Lesse of Bishte v. Hall, 627.

The Governor and Ju 'ges of the Ferritory in a looting the laws of other States did not necessari'y
adopt the practice of the courts of those States, under sich laws. Lessee of Gray v. As-
keir, 630.

Where no process is served on a defendant, and an attorney enters an appearance for him with-
out authority, and judgment is rendered against him, the court rendering such judgment may
set it aside at a subsequent term. Crichfield v. Porter, €56.

When a case is re-erved on the circuit, the facts imterial to its decision, must be trɩwn up in
writing, approved by the court, file with the papers an transmitted to the court in Bank.
Lesser of Ludlow's eirs v. Park, 699.

Upen a met ou 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. Ib.

Where a party is in court when an order is made affecting his interest and he makes no objec-
tion, he cannot, cf right, be heard upon a motion to rescind such order.
Fouble v. Walk-
er, 713.

Judgments between the same parties, and due in the same rights may be set off on motion.
Holmes v. Robinson, 728.

On a sci. f. to subject lands to execution on the judgment of a justice, it is not necessary to take
a rule "pon the defendant to plead to the sci. fa, an execution may be awarded by the Com-
mon Pleas at the return tern of the writ, Hil v. King, 754.

Where the defendant appeals an action for a nuisance from the judgment of a justice, he may
move to quash the proceedings for want of jur's 'iction, after dec aration and plea filed and
continuance granted. Nichol v. Patter on, 775.

Upon such motion no judgment can be given for costs. Ib.

The party who takes a bill of exceptions, must distinctly point out where he may have been prej-
udiced, by the opinion excepted to. McDougal v. Heming, 838.

The Court cannot be called upon to charge the Jury upon abstract propositions, but only those
arising upon the evidenee. Lewis v. The State of Ohio, 839.

Where counsel for the plaintiff address the Jury (the testimony being closed) and the counsel
for the defendant decline a reply, the counsel for the plaintiff cannot address the jury a second
time. Goodenow v. Tuppan, 33.

PRINCIPAL AND SURETY.

A court of equity will aid a surety in subjecting the estate of the principal to the payment of the
debt, without first paying the money. Stump v. Rogers, et al. 225.

One of several sureties, against whom judgment has been obtained, cannot sustain a separate ac-
tion against the principal under the act for the relief of sureties. Litler v. Horsey, 327.
Where an application of an insolvent is dismissed upon hearing, on the ground that he was not
two years resident the sureties are liable. Loines, et al. v. Philips, 764.

Where the charter of a bank is extended, and no new security taken from the cashier, the securi-
ties under the old charter are not liable for defalcations under the new charter.
Young et al. 383.

Thompson v.

Where an ebligation is made by principal and surety, an the special bail of the principal are
compelled to pay the debt, the surety are not responsible to the special bail for any part of the
money. Smith v. Bing, 460.

The heir cannot sustain an action against the surety on an administrator's bond, until the admin-
istrators' accounts are settled with the court, or the plaintiff's right establishe 1 by a judgment
against the administrator. Treasurer of Pickaway v. Hall, 516. S. P. Stewart et al. v.
The Treasurer of Champaigne County, 733.

The surety is not bound where the plaintiff, by his own art, prevents the principal from performing
his contract. The Trustics of Section 16 v. Miller, 562.

A creditor, by releasing the property of the Principal taken in execution, exonerates the surety.
Dixon et al. v. Ewing, 575.

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 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.

A devastarit cannot be proved, in a suit on an administration bond, against the administrators
and his sureties Stewart el al. v. the Treasurer of Champaign County.
Where persons covenant as sureties, that their principal shall sell an 1 tccount for all goods pla-
ced in his hands, within a stated time, it is not necessary to aver notice to the sureties, of a
failure, in an action on the covenant. Bush et al. v. Crichfield et al. 733.

The sureties of an administrator are liable for the proceeds of real estate sold by the administra-
tor under an order of court for the payment of debts. Wale v. Graham et al. 748,
The surety in a bond for the assignment of property by an Insolvent, is liable for the whole debt
of the creditor, on a breach of the bond, though the Insolvent had no property to assign.
Loines et al. v. Phillips, 761.

Where a surety gives notice to suc under the Statute, it is not a compliance with the Statute to
sue the surety alone. Starling v. Butler, 370.

PROMISSORY NOTES. SEE Bills of Exchange and Promissory Notes.

RECOGNIZANCE.

In a recognizance to appear and answer, the words "in case said party was legally imprisoned on
sail charge" are surplussage. State of Ohio v. Wellman, 453.

RELIGIOUS SOCIETIES.

Where the claims of a Religious Society, for a dividend of Section 29, have been erroneously
rejected, and the proceeds divided among others, for the proper year, such clain cannot be
charged upon the proceeds of a subsequent year. State of Ohio v. Township 4, 268.
SEE Burial Ground.

REPLEVIN.

In Replevin the plaintiff may appeal from a voluntary non-suit. Reed v. Carpenter, 261.
If an a ministrator take goods on replevin as the property of his intestate, from the possession of
a person who is not the owner, and on the trial judgment is renderred against him, equity will
decree an assignment of the judgent for the use of the real owner of the goods. Stecle v.
Lowry, et al. 7 8.

Where a party pro-ecutes a groundless action of replevin equity will not relieve him from the
lega con eque. ces. Lowe v. Lowry, et al. 721.

RIVERS.

Where a deed cal's for a corner standing on the bank of a creek "thence down said creek with
the meanders thereof" the boundary is the water's edge at low water mark. Lessee of Me-
Cullough v. Alen, 373.

The owner of land situate on the banks of navigable streams is entitled to the bed of the rivers
to the middle of the streams.
Gavil v.
Chambers, et al. 643.

ROADS. SEE Highways.

SATISFACTION.

A sci. fa. is a proper remedy to vacate a satisfaction improperly entered up. Arnold v. Fuller's
heirs, 202.

SCHOOL-LANDS.

A lease for School-lands is not valid unless it be acknowledged by the grantors before a judge or
justice. Lessee of Alkinson v. Daily, 326.

SCIRE-FACIAS.

A judgment upon a sci, fa. on a mortgage, extinguishes a bond, note, or other evidence of the
original debt. Recder v. Burgett, 75.

A sci. fa. is a proper remedy to vacate a satisfaction improperly entered up. Arnold v. Fuller's
Heirs, 202.

Where a sci. fa. is prosecuted to make the heirs party to a judgment rendered against the admin-
istrator, and thereby subject lands taken by descent to sale on execution, the sei. fa. must al-
ledge that the judgment is in force and unsatisfied, and that the personal estate is exhausted,
McVickar v. The Heirs of Ludlow, 345.

The sci. fa. must contain every thing necessary to constitute a good declaration. Ib.
Wolf v. Poundsford, 841.

S. P.

Quere, whether the lands must not be particularly described either in the body of the writ, or in
the return of the Sheriff. Ib.

It is error for the 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 returned "no goods"
and a suggestion made that the defendant owned land. Edmiston v. Edmiston, 348.
Lands mortgaged since June 1805, must be sold upon execution issued on a judgment upon sei.
fa. in the manner prescribed by the execution law in force at the time of the sale.

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 from the Justice thirty days; nor is it necessary to
take a rule upon the defendant to plead to the sci. fa, and execution may be awarded by the
Common Pleas at the return term of the writ. Hill v. Kling, 754.

Where a judgment is reversed on error and a general judgment of restitution awarded, execu-
tion cannot be issued without a sci. fa. otherwise, if the judgment of reversal specify the pre-
cise thing to be restored. Cowden v. Hurford, 832.

A sci. fa. to revive a judgment, is only a continuation of the former suit, and is not an original
proceeding. Wolf v. Poundsford, 841.

Where the original judgment was for 2500 dollars and the sci. fa, to revive, recited a judgment
for 918 dollars and judgment of revivor was taken by default, for the sum named in the sci.
fa. the judgment of revivor is erroneous. Ib.

SEAL.

Previous to the act of 1818, a seal was not necessary to the acknowledgment of a deed, except where the estate of a feme covert was to be conveyed. Paine v. French, et al. 807.

SECURITY. SEE Principal and Surety.

SEISIN. SEE Possession.

SET-OFF.

Where the proportion of the land tax due to the county has not been paid, the collector in an aetion on his official bond, cannot set-off county orders against the claim. Ohio, 267.

SHERIFF.

Byers v. State of

I. SHERIFF'S SALE.

II. SHERIFF'S DEED.
III. DIVERS MATTERS.

1. SHERIFF'S SALE.

Lessee of Patrick v. Oos

A sale of real estate upon execution, without appraisement is void. terout, 20. Contra, Lessee of Allen v. O. Parish, 526. That the debtor owned lands not aliened, at the time of the execution, cannot be given in evi

dence, to defeat a sale upon execution. Roals v. Symmes et al. 138.

Where a news-paper is printed in a county it is sufficient for the Sheriff to advertise in it, sales upon execution. Notices need not be set up in other places. Fitch v. Dunlap, 260.

A writ of error and supersedeas from the Territorial General Court to the Common Pleas, staying proceedings when the Sheriff has a rendi, in his han is, and judgment affirmed, a procedendo from the General Court to the Sheriff, authorising him to proceed to sell is irregular; and a sale under such procedendo is void. Conn v. Doyle, 373.

Previous to the act of 1824, where a Sheriff in office had levied a fi. fa. upon real estate, a vendi. might issue to the same person after his office expired, and a sale made by him would be valid. Fouble v. Rayberg et al. 706.

Where a bidder at Sheriff's sale refuses to pay the money, the Sheriff is not bound to return "money made" and prosecute the purchaser. Lessee of Bisbee v. Hall, 627.

II. SHERIFF'S DEED.

The deed of a Sheriff is not valid unless the sale be approved by the Court and an order made for the deed, Lessee Curtis v. Norton, 136.

The acknowledgment to a Sheriff's deed is indispensable, nor can such acknowledgment be presumed, when the deed itself is produced, nor can such acknowledgment be made in any other Court than that in which the judgment is recorded. Roads v. Symmes et al. 138. Where a return was made on a vendi by the late Sheriff, to Dec. 1810, that he had sold certain lands previously levied upon, and this return at Dec. Term 1812, the old Sheriff being dead, was ordered to be so amended, on motion of his representative, as to state the property was unsoli for want of bidders, and Feb. Term 1828, this order of amendment was rescinded, on motion of the purchaser at the first sale, and an order made upon the Sheriff to execute a deed— Held, that these proceedings were regular and the deed valid. Fouble v. Rayberg et al. 706. Where land has been sold by a former Sheriff who makes no deed till his office expires, the deed must be made by his successor. Ib.

The deed of a deputy Sheriff for lands sold on execution by himself or the Sheriff, is valid. see of Haines v Lindsey, 276.

Les

A variance between the levy and the description of the premises in the deed of the Sheriff, may be explained by parcl evidence. Lessee of Matthews v. Thomson, 569.

III. DIVERS MATTERS.

The Sheriff has no authority to provide a jail, or to imprison a debtor in any other place than the public jail. Campbell v. Hampson, 75.

No action lies against the sheriff for imprisoning a debtor in the same room with criminals, if the
county jail contain but one apartment. Ib.

Money collected on execution by the sheriff cannot be attached in his hands; and if he refuse to
pay over such money, he may be amerced, notwithstanding the service of an attachment.
Dawson v. olcomb, 134.

The county is liable to the sheriff, for not providing a jail, where he has been subjected for an
escape, occasioned by the want of a jail, or where the jail was insufficient.

of Brown County v. Butt, 390.

Commissioners

The sheriff is liable to the creditor for an escape, occasioned by the want of a jail, and he has his
remedy over against the county. Ib.

A sheriff cannot be require to pay money made on execution, before the return of the writ; and
a refusal to pay such money, is no ground for an amercement. Stone v. Ruffin, 441.
Where an injunction is all wed to stay execution levied on chattels, the sheriff is bound to restore
the chattels to the owner. Lessee of Bisbee v. Hall, 627.

Where a bidder at Sheriff's sale refuses to pay the money, he is not bound to return "money
made" and prosecute the purchaser. Ib.

The warrant deputising an Under-Sheriff, is valid, if filed with the Clerk, though the filing be
not en 'oised. Lessee of Haines v. Lindsey, 726.

Pondage is only Gue to the Sheriff where he has actually made and received the money on exe-

cution. He is not entitled to poundage when the money is paid by the debtor directly to the
Plaintiff. Vance v. Bank of Columbus, 327.

Where the Court of common Pleas make an order under the Statute, to distribute the fees be-
tween the present and a former Sheriff, a strong case of abuse must be presented to induce
the Supreme Court to interfere. Avery v. Rufin, 844.

SLANDER.

Words spoken in the discharge of official duty are not actionable, otherwise, if spoken wantonly
and maliciously, under pretence of official duty. Goodenow v. Tappan, 33.

A plea of justification, in slander, is bad on demurrer, if it do not expressly admit the speaking
of the words. Davis v. Matthews, 352.

The defeneaut may give in evidence, in mitigation of damages, facts which do not amount to a
justification. Wilson v. Apple, 568.

In slander, the death of the defendant abates the suit.

Long v. Hitchcock, 571.

Separate sets of words may be laid in the same court. Churchill v. Kimble, 618.

Quere, whether the substance of the words only may be charged. Ib.

SLAVES.

Where a Slave is purchased under a promise to emancipate hin, such promise may be enforced
in equity. Tom v. Desha et al. 828.

It is a well settled rule that when a law enacts a thing to be done different from the requirements
of a former law, the first thereby becomes repealed, without any direct expression of such in-
tention by the law-making power, Lessee of Moore v, Vance, 5.

It is frequently the duty of Courts, to restrain, or qualify or enlarge the ordinary meaning of
words, in order to carry into effect, the intention of a Statute. Lessee of Burgell v. Burgett, 207.
The execution law of 1824, is not unconstitutional. McCormick v. Alexander. 254.

The act of Congress of Feb. 18, 1801, operated per se as a grant to the Refugees from Canada
and Nova Scotia. Lessee of Allen v. J. R. Parish, 486

The act of Feb. 1804, defining the duties of executors &c. did not repeal the law of 1795, au-
thorising the Court to direct the sale of real estate, but the latter was repealed by the general
repealing law of Feb. 1805. The heirs of Ludlow v. Johnson et al. 679.

The Statutes imposing a tax upon Merchants are not unconstitutional. Raguet v. Wade, 739.