We think, these partners took this property as tenants in common, and that the interest of the elder Pugh descended, at his death, to his heirs at law, subject to the right of his administrators to dispose of it, under the law, to pay his debts. No objection is made to the regularity of the proceedings by the administrators, or the sale or conveyance to the complainant. He appears to us to have a legal estate. It is not with the defendants to avoid a partition, by setting up a possible claim in the creditors of the copartners. We do not decide upon their claims, if they have any; but we leave them, if there are any, to assert their own rights. The partition is ordered to be made by three commissioners, to report to the next term in Hamilton county.

's. BANK OF THE

GRAHAM, FOR THE USE OF BARR AND LODWICK, vs.

UNITED STATES.

Where party bids in property on sale or execution, to protect a previous purchase title, third persons interested may consider the bid as money in the party's hands, and hold him accountable in an action for money had and received.

THIS cause was adjourned here from the county of Hamilton. It was an action for had and received, in which a verdict was found for the plaintif for six money hundred ninety-one dollars forty-two cents, and the defendant moved for a new trial. The state of the case was as follows: One Shipley recovered a judgment against Graham, in whose name this suit is brought, June 21, 1821, for three thousand six hundred ninety-eight dollars seventy-seven cents. As collateral security for the payment of this judgment, Graham assigned to Shipley two judgments; one against one Snyder, and another against one Schenck. In October, 1826, Shipley received on the judgment against Schenck, one thousand one hundred eighty-eight dollars twenty-three cents. In October, 1828, he assigned to the Bank of the United States, his judgment against Graham, and the two judgments held as collatéral security, the Bank being distinctly informed, in what right and character Shipley held the judgments against Schenck and Snyder. Execution on Shipley's judgment against Graham had been levied on certain lots, which, after the purchase by the Bank, were sold by the sheriff, and bid off for the Bank, for three thousand one hundred twenty-nine dollars forty-five cents; which sum the sheriff returned as made, and the Court ordered a deed to the Bank, which was executed by the sheriff. In September, 1829, the Bank received one thousand seven hundred dollars on the judgment against Snyder, assigned by Shipley, in the manner stated. The amount received by Shipley from Schenck, and the amount received by the Bank from Snyder, with the amount bid for the property scized on Shipley's execution against Graham, exceeded the whole amount of Shipley's judgment six hundred and ninety-one dollars fortytwo cents, for which the verdict was rendered, and to recover which the suit was brought; Barr and Lodwick having purchased from Graham the residuum in these claims remaining after Shipley's judgment was satisfied.

In March, 1826, Graham and wife conveyed to the Bank of the United States

1

162

GRAHAM, vs. BANK OF THE UNITED STATES.

a great variety of real property under various stages of incumbrances, amongst the rest, the property upon which Shipley's execution was levied, in payment of debts due from Graham to the Bank. Shipley's judgment, with the collateral security judgments, were purchased by the Bank, to aid in protecting the title purchased from Graham. For that purpose, the sale on Shipley's judgment was made, and the property bid in by the Bank. No money was, in fact, paid to the sheriff, the Bank being the only party interested, and the property sold having been previously purchased for the Bank, subject to Shipley's exccution. The question for decision was, whether, upon this state of facts, the plaintif was entitled to recover.

V. WORTHINGTON and N. WRIGHT, for plaintif.

CASWELL and STARR, for defendants.

JUDGE WRIGHT, delivered the opinion of the Court.

It is urged, in favor of a new trial, that the three thousand one hundred twentynine dollars forty-five cents ought not to have been considered as money in the defendants' hands, because no money was, in fact, received; nor was that sum the price of the real estate acquired by that sale. That the party acquired no title by the purchase, and the sale divested Graham of no interest; the object of the Bank being to protect the title acquired from Graham, by the deed, in 1826, against the claims of others. If it were necessary to consider the question, whether any thing short of the actual receipt of money, would sustain the action for money had and received, we should find little difficulty in deciding, that that.which was equivalent to money, or had been available to the party as such, would sustain the action. In our view of the case, that question cannot arise. If the plaintif Graham had a right to a credit on the judgment against him, for the amount bid by the Bank, receipted for, by it, as money, and returned by the sheriff, as so much made on the execution; then the six hundred ninety-one dollars forty-two cents received in money from Schenck, on the judgment in favor of Graham, beyond what was due the Bank, is so much money actually received to the use of the plaintif.

But it is said this credit ought not to be allowed Graham. First. Because it was not available to the Bank. Second. Because it only perfected the title to the land conveyed in the deed of 1826, and the party is estopped by that deed from setting up that claim.

Why was this not available to the Bank? It was perfectly acquainted with the situation of the judgments and land when it took the deed and the assignments. The release gave to the Bank the land subject to all incumbrances. With full knowledge of its rights, it availed itself of the execution for the purpose, as proved and even now claimed, of perfecting and disincumbering the title. It placed the incumbrance in the market, and in the competition of an auction, valued and bid it in at the price named. If any other person than the Bank had bid in the

land, no one would have questioned the right of Graham to the avails of it. Without applying to the Court issuing the execution to set aside the sale for any reason whatever, the Bank holds the deed as essential to its own title, and asks to be permitted to look back of its receipt and the return of the officer, and to consider that judgment open, so as to enable it to collect of the collateral security nearly seven hundred dollars more than sufficient to satisfy the judgment, and to hold it free from accountability! If the incumbrance had been a mortgage would not the Bank have been bound to satisfy it? And having done so, could it call upon Graham to refund? Neither will be pretended. Suppose the Bank, the trustee of Graham, and this suit a bill for an account, would not equity compel an account? Perhaps some other person actually bid on the property within one dollar of what the property was struck off at, and was only deterred from the purchase by the conviction of the determination of the Bank to buy, and the utter hopelessness of the competition. There is no claim of mistake, or of misrepresentation by Graham, to induce the purchase. The whole transaction originated with the Bank for its own benefit. Conceding, then, to counsel that, in this action, the plaintif only recovers what in equity and good conscience he has a right to, it seems to us he has such right to the verdict, on the case made. Does the deed operate an estoppel? It contains no covenant of warranty, and even in a suit at law would not be construed to estop the party. But considering this suit as a bill in equity, how does it comport with the principles which govern Courts of equity to set up an estoppel? The charge to the jury was the most favorable for the defendant. The jury were instructed to inquire if the purchase had availed to the Bank the amount of the bid, and if not, to deduct the deficit from the sum received from Snyder. They have found that the bid availed the Bank to the full value. If there was error in this charge, it seems to us the Bank cannot complain of it. The charge is not however objected to. In our opinion the verdict not only accords with the law and evidence, but with the justice and equity of the case.

Motion for a new trial overruled.

JAMES MCMILLEN, vs. STATE OF OHIO.

Indictment for having in possession counterfeit blank Bank notes, must specifically describe them.

THIS was a writ of error to the Court of Common Pleas of Hamilton county, allowed on the 10th of December, and made returnable to the Court in Bank. The plaintif in error had been convicted, with William Stephens, upon an indictment, in these words: "That the said William Stephens and James McMillen, on the 14th day of February, 1831, with force and arms, at the township of Delhi, in the county of Hamilton, did feloniously have in their possession two hundred counterfeit Bank notes not filled up, and the signatures not being thereto affixed; which counterfeit Bank notes were intended to be filled up with forged writing and signatures in imitation of the true and genuine Bank notes of the President.

Directors and Company of the Bank of the United States, given for the payment of ten dollars each: the said W. Stephens and J. McMillen, then and there having said counterfeit Bank notes in their possession for the purpose of disposing of the same with a fraudulent intent, contrary to the form of the statutes," &c.

Error assigned, that the papers charged to be Bank notes in blank, ought to be more specially described and set out in the indictment.

G. SWAN, for plaintif in error,

BY THE COURT.

An indictment for forgery must describe the instrument alledged to be forged, specifically. In an indictment for larceny, it is enough to set forth, that Bank notes of a general description, to a specific amount, in value, were stolen. It is not the specific character of the notes, but the theft, that constitutes the essence of the crime. In a prosecution for forgery, it is different. The forged instrument must be set out, that the Court may determine, advisedly, whether the fabrication of it constitute the crime inhibited by the law. All the precedents are so and so are the authorities. (6 Term, R. 162; 1 East. 180; Arch. C. L. 19.) The judgment must be reversed.

H. BITTLE, SUPERVISOR OF HIGHWAYS, vs. JAMES HAY.

Where supervisor sues for penalty for obstructing road, there can be no judgment against him for costs: in such case, appeal lies from judgment of justice to the Common Pleas.

THIS cause came before the Court, upon a writ of error to the Common Pleas of Hamilton county.

The plaintif in error, in his character of supervisor, brought a suit against the defendant for obstructing a highway. The justice gave judgment for the plaintif for two dollars, penalty and costs. The defendant appealed to the Court of Common Pleas, where the appeal was sustained, and, upon trial, a verdict found for the defendant, and judgment given that he recover of the plaintif his costs. To reverse this judgment the writ of error was brought. The errors assigned were: First. The general error. Second. That the Court of Common Pleas had no jurisdiction. Third. That the suit was originally commenced before a justice of the peace, from whose judgment the law gave no appeal.

STORER and Fox, for plaintif in error.

ESTE, for defendant.

BY THE COURT.

The law in force when these proceedings took place, indeed, it is not essentially different now, directs, that the supervisor shall collect, by suit, all fines and forfeitures accruing for violations of the law regulating the opening of roads, unless the collection of the particular fine is otherwise provided for. The section under which the action is brought, subjects the person, who obstructs a public road, to not less than two, nor more than ten dollars penalty; and authorizes a supervisor to sue for and recover the amount before any justice, unless some other person may have sued for and recovered the same. The judgment we are asked to reverse, is for the defendant, and awards against the supervisor, that he pay the costs. In respect to the costs, this is erroneous. The 66th section of the judiciary act, of Feb. 18, 1824, v. 22, provides for the case, and under it, the judgment for costs must be reversed.

Upon full consideration, we think the appeal from the judgment of the justice to the Common Pleas, was well taken, by the defendant. The judgment of that Court should have been for him, but without costs. It must be reversed as to costs, and affirmed as to the residue.

HENRY ARNOLD, vs. JONATHAN FLATTERY.

What sufficient proof to sustain a road laid out and used for many years.

THIS cause was adjourned from the county of Fairfield. It was an action of trespass, in which a verdict was found for the defendants, and a new trial moved for, upon the ground of the admission of irrelevant testimony. The following state of facts was agreed by the parties.

The declaration, in this case, lays the trespass to have been committed on the south-west quarter of section No. 1, T. 15, R. 19. The plea alledges, that the defendant was a supervisor of a certain highway passing through and upon said tract of land; and that he entered upon the same, within and upon said highway, in the lawful discharge of his duty as supervisor, to repair said highway, and that he committed no unnecessary injury, &c. Replication. That there was not a public highway passing through and upon said tract of land, leading from Lancaster, in said Fairfield county, to Granville, in the county of Licking, as alledged in the plea, &c. Upon which the defendant took issue.

Upon the trial, the defendant offered in evidence, a book styled, "Records of Roads-Fairfield county;" admitted by the plaintif to be the record book of roads for said county, containing the following entry:

"To the honorable commissioners of Fairfield county, now sitting, in the town of Lancaster, June session, 1806-We, the persons appointed by order issued out at November session, 1805, to view and survey a road from Mount Vernon, on Owl creek, by Granville, on Licking, to Lancaster, do report, that, in pursuance of the said order, we have viewed, surveyed, and do now return for public use, the same; the courses and distances, are as follows, to wit: from the south