Kelly et al. v. Collins.

order of the court? The amount of costs are already ascertained by the original judgment.

It would read, on this construction, "the clerk shall issue, at the instance of the person entitled, and by order of court." The clerk shall issue by order of the court. This he would have been compelled to do without this act. Whenever the court award execution for costs, it is the duty of the clerk to issue it. What is awarding execution but ordering execution? It then comes to this: that, whenever the court order execution, the clerk shall issue. Why, then, say he shall issue at the instance of the party entitled? It appears to me, that the phrase, "by order of the court," applies to taxation of costs, and embraces such costs as the court order, in the progress of a suit, either party to pay.

We all are of opinion, that a special order is in no case necessary; but a general order, directing the clerk to issue in all cases, as in the order set out, is sufficient to authorize the clerk to issue a writ of execution for costs. Upon the construction, that some order of the court is necessary to authorize a clerk to issue execution under the statute for costs, a general order is a full compliance with the statute; and, hence, it is not necessary to decide more than this point to determine this case.

*Such general order, being in full force at the time that [310 the clerk issued the execution, the court below erred, both in setting aside the execution, and taxing the costs accruing under the same to the clerk. Proceedings reversed.

IRAD KELLY ET AL. v. ALEXANDER L. COLLINS.

The omission to make the certificate, which judgment debtor is principal, and which is surety, can not be corrected by a writ of error.

THIS is a writ of error to the Supreme Court of Cuyahoga county.

The plaintiffs in error gave a joint promissory note, which came by indorsement into the hands of Collins. The signatures were as follows: "Gay & Hubbell, Irad Kelly, surety, Abraham Hickox."

In the suit on this note, the common general judgment was ren.

Lamb v. Rickets.

dered against all. A writ of error was prosecuted, because the court omitted to find, or certify the fact, that Kelly was surety. At the term of the Supreme Court of Cuyahoga, in 1841, the judgment of the common pleas was affirmed. This writ of error is brought to reverse both the original judgment and the judgment of affirm

.nce.

No arguments came to the hands of the reporter.

LANE, C. J. Whenever it is made to appear to the court rendering a judgment, that one of the parties is a surety, the court is 311] required to certify which is principal and which is surety, so that execution may be first levied on the property of the former. Swan's Stat. 482. The plaintiff in error insists, that where this fact appears of pleading, as in this case, it is matter of error to omit the certificate. We think the party has mistaken his remedy. The judgment in such case is right, and there is nothing to reverse. There may be good cause why the certificate is omitted by the court. If it were refused in a proper case, and the facts appeared in a bill of exceptions, we would correct it; but bare omission can be corrected only in the court where the judgment was rendered. Judgment affirmed.

ROBERT M. LAMB V. THOMAS C. RICKETS.

Where a deed calls for an object on the bank of a stream, thence south, thence east, thence north to the bank of the stream, and with the course of the bank to the place of beginning, the stream, at low-water mark, is the boundary.

Where the owner of land is bounded by a stream, he owns to the center of the stream, subject to the easement of navigation, etc., but to calculate the quantity in a survey, no reference is had to what lies between low-water mark and the center of the stream.

THIS is a bill in chancery from Coshocton county.

The bill sets forth, in substance, that on April 13, 1837, a writ ten agreement was entered into, under the hands and seals of the parties, by which the complainant bargained and sold to the respondent lot No. 216, in the town of Coshocton, with the improve

Lamb v. Rickets.

ments thereon, immediate possession, rents, etc. That, in consideration thereof, the respondent bargained and sold to the complainant the tract of land lying east of the town of Coshocton, and adjoining the out-lots, known as the Hamlin lot, containing forty-two acres, more or less; and also out-lots, Nos. 22 and 23, being the same lots deeded by *Wm. Cantwel, to Joseph [312 Rickets, and supposed to contain ten acres.

That the said agreement contained a proviso, if the Hamlin lot, and the out-lots, jointly, should contain more than fifty-two acres, the excess was reserved to the respondent; that the complainant, Lamb, executed his deed, and delivered possession of lot No. 216, in pursuance of the agreement, on May 8, 1837; that Rickets, the respondent, conveyed the Hamlin lot, and described it as containing forty-one acres, and being the same tract deeded by James Moore and wife to James Calder; that the description in this deed is in these words: "Beginning at the south bank of the Tuscarawas river, where the line between the first and second quarters of the filth township intersects the same, where there is an old dogwood, with a notch and blaze in it, and a nnmber of shoots springing from the roots, from which a white oak, fifteen inches in diameter, bears south twenty-eight degrees, west fifteen links; thence south, with the division line, thence east, etc.; thence north, etc., seventy-two chains and ten links, to the south bank of the Tuscarawas river, from whence a maple, four inches in diameter, bears south thirty-six degrees, east eleven links; a forked maple bears south, etc., thence with the courses of the south bank. of the Tuscarawas river to the place of beginning."

The bill also states, that the respondent, Rickets, refuses to convey the two out-lots, and prays for the specific execution of the

contract.

The respondent, in his answer, admits his refusal to convey the two out-lots, and sets up, by way of defense, in substance, that before he conveyed the Hamlin lot, large accessions had been made. to the southern shore of the Tuscarawas river, along where the line runs, on the bank, from the forked maple to the place of beginning, and claims the benefit of these alluvial formations to make up the quantity of fifty-two acres, which he obligated himself to convey, and which he claims is nearly, if not wholly, sufficient for that purpose.

*MATHEWS and HUMRICKHOUSE, for complainant, cited [313

Lamb v. Rickets.

Stoner v. Freeman, 6 Mass. 439; Hopkins v. Kent, 9 Ohio, 15; Sibley v. Holden, 10 Pick. 249; 4 Pet. Cond. 694; 7 N. H. 241; 17 Pick. 357; 3 Pick. 356; 10 Mass. 149; 11 Pick. 193; 5 N. H. 520; 10 Pet. Cond. 716; 3 Ohio, 495; 2 Ohio, 309; 6 Ohio, 507; 17 Mass. 289; 3 Sumn. 178, 179.

SPANGLER, for defendant, relied on Lessee of McCulloch v. Aten, 2 Ohio, 307; Gavit v. Chambers et al., 3 Ohio, 495; Benner's Lessee v. Platter et al., 6 Ohio, 504; New Orleans v. The United States, 10 Pet. 717; 4 Pick. 268; 2 N. H. 369.

WOOD, J. It is very clear if the Hamlin lot contained fifty-two acres, when conveyed to the complainant in exchange for lot No. 216, the contract is satisfied by merger in the deed, and the complainant has no rights to enforce in the case at bar.

It was the manifest intention of the parties, as arising upon the face of the agreement, that no more than the quantity, fifty-two acres, was, in any event, to be conveyed by the respondent, unless contained in the Hamlin lot; but it was supposed by the parties there was not so much in that tract, and the deficiency not being ascertained, the proviso was inserted in their agreement, "that if there should be more than fifty-two acres in the Hamlin lot and out-lots, the excess was reserved to the respondent."

It is admitted that if the line of the Hamlin lot, on its northern boundary, is extended so as to cover the alluvial formation to lowwater mark, the complainant has his fifty-two acres in that lot. By a survey made under an order of court, the lot, without the alluvion, contains 42.68 acres; with it, 52.25.

It is a well-established principle that formations, by slow and gradual accretion, belong to the owner of land, when made by a stream forming his boundary, and opposite thereto; and whether 314] those slow and gradual accretions were those of the *respondent, when he conveyed the Hamlin lot, depend entirely on the fact whether the Tuscarawas river was his boundary, where these deposits were made. This question must, therefore, be ascertained. The deed of Moore and wife to Joseph Rickets is the oldest deed, and the one on which both the parties rely, and it describes the tract by metes and bounds as follows: "Beginning on the south bank of the Tuscarawas river, where the line between the first and second quarters of said fifth township intersects the sume, etc.; thence south, with the division line of the first and

Lamb v. Rickets.

second quarters, etc.; thence east, etc.; thence north, etc.; to the south bank of the Tuscarawas river, from which a maple, four inches in diameter, bears south, etc.; thence, with the courses of the south bank of the Tuscarawas river, to the beginning." As counsel suggest, in argument, it commences with the bank, returns to the bank, and thence, with the courses of the bank, to the beginning. Not from, to, or with the bank, as it was twenty-five or thirty years ago, but as it was when the Hamlin tract was conveyed to the complainant; to the bank, with it, and from it, as the lines of the survey must now be extended, so as to include the alluvion to low-water mark.

The counsel for the defendant contend that from, to, and with the bank of a stream, as here expressed, does not extend to low-water mark, but leaves a narrow strip between low-water mark and the break of the bank, not covered by the deed, to which the alluvion attaches, and therefore belongs to Moore, or the original owner. If so, it is not probable the parties had any such intention. The Tuscarawas, around the north end of the Hamlin lot, is a curve, and a curved line, with the course of the river, would be inconvenient in other respects, as well as by depriving Hamlin of access to the river, while the strip not conveyed, as it then was, if the counsel for the defendant is right in his conclusion, could have been of no use to any other person. We need not, however, elaborate this principle. It has been done by those who have gone before us, and, as we think, the rule, as there laid down, ought to be adhered to.

*In the case of the Lessee of McCulloch v. Aten, cited by [315 counsel, 2 Ohio, 307, the court say: "When a deed calls for a corner standing on the bank of a creek, thence down said creek with the several meanders thereof, the boundary is the water's edge at low-water mark. In this case a white oak called for by the deeds was found on the ground, about four rods from the channel of the creek, and about one rod from the top of the bank."

This authority settles this case so far that it is clear the alluvion attaches to and forms a part of the Hamlin lot; but the west line of this tract of Hamlin divides the quarter township, and cuts off a part of this alluvion, which, it is admitted by counsel, does not belong to this tract; the quantity is 3.97 acres. The plaintiff's counsel claim, however, that the line of the Hamlin lot should be