Herrick and Stillwell, contra.

By the COURT.

The declaration states that the note in question was dated the 20th day of May, 1819, and was payable sixty days from the first day of June in the same year. It also avers that the defendant, on the 3d day of August, 1819, pro. ceeded to make the demand, and give the notice of non-payment necessary to charge the endorsers: but did these so negligently that the endorsers were not charged. At the trial the negligence proved and relied upon was, that the demand and notice were made upon the 2d day of August, which being the day before the last day of grace was inoperative. The proof is in contradiction to the declaration which avers a demand and notice on the right day. This be ing the material point of the whole case, it was certainly not competent for the plaintiff to sustain his action by proof so essentially variant from his allegations -though in personal actions generally the day is immaterial, it may nevertheless be made material by the pleadings. And such is the case here; the declaration gave no notice that the negligence complained of referred to the day of giving the notice. The defendant could not come prepared to repel that which the plaintiff averred; yet this he must do, if, upon the proof offered, the plaintiff could recover. The instruction of the court, that the plaintiff ought to have a verdict, was therefore incorrect. It is unnecessary to decide upon the principal ground of liability.

The rule laid down for assessing damages was also incorrect. If the drawer of the note is solvent, the plaintiff may yet recover from him the amount. This right is not affected by a recovery here. In that event this defendant is only answerable to the plaintiff for the expense incurred in taking measures to charge the endorsers, and for disappointment in that particular. To charge him with the whole amount of the note the plaintiff ought to have produced proof, that the maker was insolvent. In the absence of this, and all other proof, he could only recover nominal damages. New trial granted.

WILES ET AL. v. BAYLOR.

Where lands are deciced by a court of chancery to be sold absolutely they must be valued as upon executions at Law.

This was a writ of error to the common pleas of Brown county. The case was as follows. Baylor, the defendant, in error, sold a tract of land to the plaintiff in error, and retained the title in his own hands, until the purchase money should be paid. The purchasers failing to pay, he prosecuted a suit in equity to have the land sold for the purchase money due. The court decreed a sale, and that Baylor the vendor should convey the legal title to the purchaser under such sale. The decree did not require the land to be valued and sold for a proportion of its valuation: but directed a sale without regard to valuation. Upon this ground the writ of error was brought to reverse the decree.

Brush and Fitzgerald, for plaintiffs in error.

By the COURT.

Collins, contra.

The decree, in this case, directs the interest of both vendor and vendee to be sold, and the complete legal title to se perfected in the purchaser at such sale. The policy of requiring lands sold under execution for debt, to be valued, pervades the legislation of the state, and has prevailed for many years. In directing a sale of real estate, especially where the legal title is to pass, a court of chancery is not at liberty to adopt a different policy. This court have determined that mortgaged premises sold under a decree in chancery to raise the money due on the mortgage, must be valued, and seil for a proportion of the valuation. The same reason applies to this case. The decree is erroneous, in not directing a valuation, and for that cause must be reversed.

EMERICK v. ARMSTRONG ET AL

In a joint action against several defendants, one may appeal the whole cause, by giving the bond required by law.

An executor or administrator in a joint suit can appeal the cause as well as to himself as to his codefendants without giving any security.

A court will never investigate the right of parties settled by themselves, except upon suggestion of fraud or imposition.

This was a bill in chancery prosecuted by the complainant against Armstrong and Grandin, survivors of John H. Piatt, deceased, his heirs and administrators, and the admininistrators of A. H. Ernst, dec'd. While the suit was pending in the Common Pleas, the subject of it was adjusted between the parties: but they could not agree who should pay the costs. They thereupon entered into a written agreement, to submit the question of costs to be decided by the court of Common Pleas, as though no adjustment had been made, and upon hearing, the court of Common Pleas decreed costs against the defendants. From this decree the defendants appealed: but gave no bond. The administrators of Piatt and Ernst contending that they had a right to appeal, under the law, without giving security. A motion was made in the Supreme court to quash the appeal, and the de. cision of this motion as well as the final hearing of the case was adjourned to this court.

N. Wright, for the complainant. Piatt, contra.

By the COURT.

The first question to be decided in this case is, whether an administrator can, by appealing, take up the case as to his co-defendants, without any bond being given upon the appeal. Many reasons may be urged, with about equal force, upon both sides of this question.

There are some cases in which one of several co-defendants may appeal the cause separately without affecting the others. This may be done where the ac tion is in its nature joint and several. In an action of trespass, tried in the Supreme court of Warren county, against two defendants, one was acquitted and the

other found guilty by the jury. The court decided that the defendant convicted had a right to appeal without his co-defendant; and that the plaintiff, if he wished to keep both parties in court, could do it by appealing himself.

But where the action is joint, the defendants must stand or fall together, and the question presents more difficulty.

It may be said, shall one defendant, who is satisfied with the judgment, be compelled to follow his co-defendant to the Supreme court where additional costs may be awarded, and higher damages? And this in a case where the defendant who appeals is irresponsible, and that very irresponsibility a strong inducement to indulge a litigious disposition in the security of having nothing to lose? In this there would be great injustice.

On the other side it may be asked, shall the only responsible defendant, and upon whom the whole burthen rests, be deprived of his appeal, where he thinks justice has not been done him, because his co-defendant, secure in his poverty, will not unite in consummating the appeal? This result would at least be equal. ly unjust. The question, therefore, must be decided without reference to the inconvenience of either view of it, and upon the naked matter of right and power under the statute.

The provision of the law is, that in civil cases an appeal shall be allowed of course from any judgement or decree. The mode is prescribed in which the party wishing to appeal shall consummate it. One defendant can give notice, and if he can give the bond the law requires, he can perfect the appeal. No act is required calling for the joint agency of all the defendants; but the whole power of appealing the cause is given to any party who desires to exercise it. To require the concurrence of all the defendants in consummating an appeal, would be to give the statute an interpretation not warranted by its terms, nor by its general object and spirit. The court are consequently of opinion, that in a joint action one defendant or one plaintiff can appeal the whole cause by giving the notice and the bond required by law.

The law regulating this right of appeal directs, that in general cases the appellant shall give a bond; but with respect to executors and administrators the right of appeal is given upon different terms; no bond is required, and it is sufficient for an executor or administrator to give notice and docket the appeal in the Supreme court. As one defendant can consummate an appeal of the whole case by doing what the law requires in giving the bond, so, by the same rule, an executor or administrator, by doing what the law requires of him, can perfect an appeal of the cause, not only for himself, but for his co-defendants, in all cases where the interest is joint, and where an appeal as to one must be an appeal as to all. This must be the rule, otherwise the administrator cannot use the privi lege of appeal without subjecting himself to a responsibility not imposed by law.

Against this rule it is objected, that it permits the privilege given to executors and administrators alone, to be enjoyed by others for whom it was not intended, and thus prejudices the plaintiff's right to have security upon the appeal. This is true; but the absolute right of the administrator to appeal, without giving se. curity, is as clear and as strong as the absolute right of the plaintiff to have security from the co-defendant, and it is certainly the policy of our laws, that, in this collision, the right of the administrator should prevail.

The exemption is secured to him that he may proceed with confidence in protecting the interests committed to him; for were his duty to be connected with his personal responsibility, the feelings of self-interest might prevail so far that the administrator would regard rather his own safety than the interest under his direction. Require an executor or administrator to give security upon an appeal, and you require him to hazard his own estate; for, as the law now stands, he would be personnally liable to indemnify the security in case of loss. Impose this responsibility upon an executor or administrator, and its natural consequence would be to induce, at least in cases of difficulty, an abandonment of the interests he represents and should protect. It is obviously of much more public importance that the estates of deceased persons should be faithfully administered, than that an individual, setting up a claim against such estate, should fail to obtain an additional security for his claim in the progress of litigation. For it must be remembered, that in allowing the appeal to be perfected, without the bond and security, the complainant loses nothing that he ever possessed; and in respect to the right so confidently asserted to be an absolute one, it is, in fact, a decision that upon a just construction of the whole statute, no such right is, in the particular case, secured to him. The appeal must be sustained.

The merits of the case are easily disposed of. The parties have settled the subject of controversy, and by written agreement referred the question of costs to the court of Common Pleas, to be decided upon the point whether the complainant's bill could be sustained; and if sustained, to tax the costs against the defendants, otherwise against the complainant. This point the court of Common Pleas decided in favor of the complainant; and thus the whole cause is disposed of under the agreement of the parties by the umpire to whom they referred it. Nothing is left for this court to do, but decree the costs to the complainant, conformable to this agreement? This court never investigates the rights of parties settled by themselves, except upon suggestion of fraud or imposition.

NOWLER ET AL. v. COIT.

When an administrator makes a void sale of the lands of the intestate, and receives the purchase money, and afterwards the hoirs recover the land, equity will not compel them to refund the purchase

money.

But in such case, the taxes paid by the purchaser shall be refunded with interest and expenses of making the payment, where the heirs came into equity to disencumber the title.

In the year 1792, the state of Connecticut, then claiming certain lands situ ate within that tract of country in the now state of Ohio called the Connecticut Western Reserve, granted 500,000 acres, by particular description, to certain individuals to remunerate them for suffering during the revolutionary war.— This tract of country received the name of the fire lands. At the time of this grant the Indian title was not extinguished.

After the grant, and while the land was subject to the jurisdiction of Connecticut as claimed by her, the legislature of that state incorporated the proprietors of the land who were residents of Connecticut, and empowered them to do various acts for the preservation of the property, and the extinguishment of the Indian title, and among other matters, empowered them to assess a tax upon the land to raise funds for its preservation.

On the 30th of May, 1800, the governor of Connecticut, in virtue of an act of Congress, and of an act of the legislature of Connecticut, ceded to the United States the jurisdictional claim of that state to the tract of country called the Western Reserve including the fire lands, and the same were constituted part of the county of Trumbull, and made fully subject to the jurisdiction of the territorial government of the then North Western Territory.

The ancestor of the complainants was one of the grantees. He died in Connecticut, before the year 1801, and letters of administration on his estate was granted to Daniel Douglas, by the court of probate of the district of New London in Connecticut, in February, 1801, and that court upon a representation of the administrator, directed the interest of the intestate in these lands to be sold for the payment of debts. The sale was made on the 24th of March, 1801, and the defendant, D. L. Coit, became the purchaser, at a fair price and received a deed from the administrator.

In April, 1803, the legislature of Ohio incorporated the owners of these lands, for the same purpose and upon the same principles originally embraced in the Connecticut act of incorporation. It authorized the directors to extinguish the Indian title, and make partition among the proprietors, to levy and collect taxes.

Upon the tracts partitioned to the right of Douglas, the defendant, Coit, paid the taxes, as well those assessed by the company as those assessed by the But no improvement was made upon the lands, nor were any offers made by the heirs of Douglas to pay the taxes.

state.

The bill was brought by the heirs of Douglas claiming the lands as in their possession, accompanied with the legal title, and calling upon the defendant to disclose under what title he set up a claim. The defendant, in his answer, set up the purchase under the administrator, and he claimed, if the title was adjudged defective, to have the purchase money and taxes refunded with interest. The Supreme court sitting in Huron county, adjourned the cause here for decision. The judges who heard the cause in Huron county, having strongly intimated an opinion that the sale not be sustained, that question was not argued, nor insisted upon by the defendant's counsel.

Whittlesey and Newton, for defendant. Latimer, contra.

By the COURT.

The defendant's counsel have very correctly abandoned the validity of the sale, and conveyance made under the order of the court of Probate of Connecticut. At the time the order was made the state of Connecticut had no jurisdiction over the lands in question. They were subject only to be sold and conveyed under the laws of the then territorial government. The sale to the defendant is neither authorized nor sanctioned by these laws; it is, of consequence, inoperative. The title remains untouched in the heirs to whom it descended.

The purchase money paid by the defendant upon the sale, constitutes no charge upon the land in the hands of the complainant. The lands of the deceased were never legally charged with the payment. The administrator,