interests, and thus far differ from the common law of England. We have gone further, and subjected lands of the debtor to absolute sale for the payment of his debts of every description, and have made them liable to all of his debts in the hands of the heir, who by the common law was liable only for debts on record, or by specialties in which he was named. But these laws are local. They do not and can not make lands in another state subject to the debts of the deceased owner who died there, nor accessible to any process upon a judgment against the heir here. And it would seem, therefore, that upon the principle on which the liability of the heir rests, such lands should not be considered as assets rendering him liable here for the debt of his ancestor. The fact that we do not know that the land can be subjected to this or any debt of the ancestor, by the laws of Ohio, may not, of itself, be entitled to much weight. But there would seem to be an incongruity in subjecting the heir to a judgment here, on the ground of lands descended to him in Ohio, if those lands could not be subjected to the same debt by the laws of that state.

In the case of Payne etc. v. Logan's Adm'r, 4 Bibb, 402, it was decided that a devise of lands lying out of the state did not make the devisee liable, as such, to an action here. It was then expressly said, that such lands would not be assets in the hands of the heir, for which 1 Com. Dig. 563, is referred to. And although that question was not before the court for decision, the principle just stated is made the ground of concluding that the devisee was not liable, because the liability of the heir and devisee is co-extensive. The court further say, as a ground of the decision, that "it would be absurd to suppose that the legislature of this state intended to make lands lying out of the state liable for the payment of debts;" for they have no authority to do so. We consider the case and the reasoning of the court as applicable to the present case. And we think the reference to Comyn's Digest and the cases there cited does, notwithstanding the comments which have been made upon them in argument, sustain the principle, that, as between independent states, assets in one country are not to be deemed assets in another, so as to make the heir or executor liable in the latter country.

The case of Calloway's Heirs v. Mason's Heirs, MS. opinion, 1845, though, upon the facts, it seems to violate this principle, appears to have been decided without any reference to it, either by the court or the counsel. The question was not made, and there is no evidence that it presented itself to the minds of the

court, in considering and deciding the case. The decision can not, therefore, be regarded as entitled to much weight, and especially as it was a proceeding in chancery, upon a case presenting strong grounds for relief against a judgment which the non-resident heirs had obtained in this state, as heirs of their mother, and in violation of the warranty of their father, which descended upon them according to the principles of the common law. And although the decree gave relief, by subjecting to sale the land recovered by the heirs on their mother's title, it operated in effect, and was doubtless so intended, merely to defeat the effect of their judgment, which might have been enjoined.

We are of opinion, therefore, that the defendant in this case was not liable to the demand, by reason of the lands descended to him in Ohio.

And the judgment is affirmed.

ADMINISTRATOR'S SALE OF OHIO LANDS BY A VIRGINIA COURT IS VOID for want of power: Salmond et al. v. Price et al., 42 Am. Dec. 204; McLaurin v. Salmons, post, 563.

WILLIAMSON v. MCGINNIS.

[11 B. MONROE, 74.]

RELEASE OF ONE JOINT OBLIGOR RELEASES ALL.

DELIVERY OF A RELEASE WILL BE PRESUMED from the nature of the writ ing, if it was executed as such, and was intended to have that effect. JURY ONLY SHOULD ASSESS DAMAGES ON NOTE PAYABLE IN BANK NOTES. JUDGMENT AS TO ONE ONLY OF TWO JOINT OBLIGORS in an action of cov. enant against both is irregular.

ERROR to the Boyle circuit. The opinion states the facts.
Bell, for the plaintiff.

Boyle and Harlan, for the defendant.

By Court, SIMPSON, J. Williamson & Maxwell, on the twelfth day of October, 1841, executed, as partners, their promissory note to James McGinnis for two hundred and seventy-five dollars in current bank notes, payable six months after date.

In August, 1848, McGinnis brought an action of covenant on said note against Williamson & Maxwell. Williamson filed a plea, in which he alleged that the plaintiff, on the twentieth day of June, 1843, by a certain release in writing by him on that day signed, and bearing that date, and which was written on the back of said covenant, in consideration of one hundred and

AM. DEO. VOL. LII-36

eighty dollars paid to him by defendant's co-obligor, Hugh H. Maxwell, then and there released said Maxwell forever from any further responsibility on said note, whereby the defendant was in law also released. The plaintiff filed a demurrer to that plea, which was sustained by the court, and a judgment rendered against the defendant without the intervention of a jury, for the amount of the note with interest from the day it fell due, subject to a credit of one hundred and eighty dollars paid on the twenty-ninth of June, 1843.

Williamson has brought the case to this court for revision, and assigns two errors. The first one brings in question the propriety of the decision of the court upon the demurrer to the defendant's plea of release. The other, the action of the court in rendering a judgment, without a jury.

An absolute release to one of several, who are jointly bound, exonerates all the obligors. This is a well-settled rule of law. This court has, in cases where a covenant never to sue, or one of like import, if made with a sole obligor, would be deemed a release of the obligation, refused to construe a similar covenant with one of several joint obligors as a release, because such an interpretation would frustrate the intention of the parties, and operate unjustly. But those decisions recognize the rule of law, that if one of the joint obligors be released, no suit can be maintained against the others, and to avoid the effect of the rule, construed the covenant according to its literal import, not to be a release.

The instrument set forth in the plea purports to be an absolute and technical release of one of the joint obligors. The plea does not allege that the release was sealed, but it contains every other necessary averment. As the release was executed after the act of assembly of 1843, dispensing with seals in the execution of deeds and other instruments of writing, that allegation was unnecessary. The fact that the release is written upon the back of the obligation does not of itself change the character of the writing, or deprive it of its legal effect. A delivery, either actual or constructive, is, it is true, necessary to the due execution of a release. But when the releasor has a right to and does retain the writing upon which the release is also written, a constructive delivery is all that is necessary, and such a delivery may be implied from the nature of the writing itself if it were actually executed as a release and intended by the parties to have that effect.

It seems to us, therefore, that the plea contains every requisite

averment and presented a legal defense to the action, and that the demurrer to it should have been overruled.

The court also erred in rendering a judgment without a jury to assess the damages. The note was not for the payment of money, but for the payment of current bank notes. A jury therefore was necessary to ascertain their value on the day of payment.

Although the suit was brought against both Williamson and Maxwell, no process seems to have been executed upon the latter, or any appearance entered by him, nor was the suit as to him abated or disposed of in any manner. It was therefore irregular to enter a judgment against Williamson, if in other respects there had been no error in the proceedings.

Wherefore, the judgment is reversed and cause remanded, with directions to overrule the plaintiff's demurrer to the defendant's plea, and for further proceedings consistent with this opinion.

RELEASE OF ONE JOINT DEBTOR RELEASES ALL: Berry v. Gillis, 43 Am. Dec. 584; Allin v. Shadbourne's Ex'r, 25 Id. 122; Goodnow v. Smith, 29 Id. 600, and cases collected in note; Bozeman v. State Bank, 46 Id. 291.

DELIVERY MAY BE INFERRED FROM ACTS without words, or from word. without acts, or from both combined: Hughes v. Easten, 20 Am. Dec. 230; Verplanck v. Sterry, 7 Id. 348.

VIRGINIA COURT CAN NOT CONVEY LANDS IN KENTUCKY, either by order of sale or by decree, or by the deed of its commissioners, so as to pass title. INVALID DEED MAY BE EVIDENCE OF EXTENT OF CLAIM of the party in possession under it, though admissible for no other purpose.

EXTENT OF CLAIM OF ONE IN POSSESSION.-One entering upon a survey and claiming it, thereby takes possession of all of it not held by others adversely.

POSSESSOR MAY MAINTAIN EJECTMENT AGAINST INTRUDERS who are without title or authority.

ONE MAY ACQUIRE POSSESSION OF LAND, control it, and bring ejectment on it through a tenant.

STATUTE REQUIRING SURVEYS TO BE RECORDED does not make recording prerequisite to their admissibility as evidence.

EJECTMENT. The opinion states the facts.

Ballinger and Woodson, for the plaintiff.

By Court, MARSHALL, C. J. This action of ejectment upon the demise of Robert McLawrin was brought to recover land

in the possession of Salmons and others, within the boundaries of a patent for six hundred and forty acres, issued to Elizabeth McLawrin in 1798. On the trial, the plaintiff read the patent and a deed from the patentee to Joseph McLawrin, and to show a conveyance of this title to the lessor, offered to read the record and proceedings of a suit in chancery in a court in the state of Virginia, by or between the heirs of Joseph McLawrin for a sale of this land, and for other purposes, including a decree for the sale of this tract of land, a decree confirming the sale thereof, and directing its conveyance to Robert McLawrin, the purchaser, by two commissioners named in the decree, and a deed from the commissioners dated in April, 1837, purporting to convey the land to him in fee simple, and according to the boundaries described in the original survey and patent. The propriety of rejecting this record and the deed which was separately offered presents the first question for our consideration.

We concur with the circuit court, in the opinion that the court in Virginia had no jurisdiction over lands in Kentucky, and could not by its order of sale, or by its decree or by the deed of its commissioners, pass the title to the lands in controversy. It might indeed have required and used means to compel the title holder of the property before it to convey the land, and his deed properly proved or authenticated would have been as effectual here as if made at his own mere will. But it had no power over the land except through the person of the owner, and could not act for him in making the conveyance, because it had no authority under the laws of this state, and the laws of Virginia could not control the disposition of lands in Kentucky. The record therefore was wholly inadmissible as evidence of the transfer of title to Robert McLawrin. But as it may be inferred from the evidence, that he claimed and acted under the deed, and to have obtained possession of the land under claim of ownership as evidenced by it, we think the deed was admissible, and should have been admitted, not as evidence of title under the patent above mentioned, but as showing the nature and extent of his claim and defining the character and effect of his acts done under it. In this view, it was immaterial whether the persons styling themselves commissioners in the deed had authority to convey the title or not. And it was not necessary to prove that the deed was in fact executed by them, "as it is entitled to no other effect than that of showing that R. McLawrin claimed under it as a deed" to land therein described, and professed to be conveyed.