Volume 1 — Disney's Superior Court Reports (Ohio)

<p>An affidavit in attachment, alleging several causes of attachment in the disjunctive, is had for uncertainty.</p>

<p>1. The city of Cincinnati has rights and duties in respect to the public streets, in two characters: one, as representing general public interests, in virtue of which, order is preserved, nuisances punished, etc.; the other, individual and corporate, in virtue of which, grades are fixed, pavements laid and repaired, etc. From the exercise of its powers in the latter character, individual liabilities accrue. "When, in the latter capacity, it has constructed works, which are destroyed by individuals, or the county, or the State, under proceedings to vacate the street, the city is entitled to compensation.</p> <p>2. It is not barred of this right by having failed to appear in the proceedings, under the statutes providing for the vacation of streets, because it’s right so to appear is not express and clear.</p> <p>3. So much of these statutes as authorizes the assessment of damages, hy way of compensation, without the intervention of a jury, is inconsistent with the present State constitution, and void.</p>

<p>Special Term. — Application for a discharge from the cus-' tody of the sheriff, the petitioner being in arrest, under a capias from the court of common pleas of Hamilton'county.</p> <p>On March 12, a. d. 1852, an act was passed, creating and conferring criminal jurisdiction on the criminal court of Hamilton county, and divesting the court of common pleas of such jurisdiction. On May 1, A. d. 1854, the act creating the criminal court was abolished.</p>

Special Term. — Action in attachment, to recover from Chrisfield & Peale, as payees and indorsers of four promissory notes. Samuel Peale, one of the defendants, has filed a general demurrer to the petition, and, at the same time, has filed his answer, alleging three defenses to the action. Plaintiff now moves to strike out the answer and demurrer, on the ground that the defendants can not demur and plead to the same matter, at the same time.

Special Term. — On demurrer to counterclaim. This is an action in attachment, to recover the amount of two promissory notes, the defendants being the makers of the one and indorsers of the other, in the firm name. Samuel Peale files his separate answer, and as a third cause of defense alleges: “ Third.

<p>Special Term. — On motion, by plaintiff, to set aside verdict.</p> <p>The facts sufficiently appear in tbe decision.</p>

Special Term. — An action to recover damages, caused by delay in the transportation and delivery of an iron boiler, shipped at Cincinnati, for carriage to Knightstown, Indiana. The facts sufficiently appear in the decision.

Special Term. — Action to recover money advanced to and expended by one partner in payment of partnership debts. The facts appear sufficiently in the decision.

Special Term. — Action to recover money on bank-bills, issued by the defendant. . The facts appear sufficiently in the decision.

Special Term. — Petition in foreclosure, filed against the. widow and children of a deceased mortgagor. Defendants demur, for reason that the administrator is a necessary party.

Special Term. — Application for an injunction to restrain John E. Miller and John Patton, two of the commissioners of Hamilton county, and John Hawkins, builder, from all proceedings under a pretended contract, made by Miller and Patton, as commissioners, of the one part, with Hawkins, as builder, of the other part, for the erection of an insane asylum, near Carthage, in Hamilton county.

<p>General Term. — On error. The facts sufficiently appear in the decision.</p>

<p>Special Term. — Action upon a bank check. The facts sufficiently appear in the decision.</p>

<p>1. Where the mortgagor of chattel" property, under an agreement with the mortgagee, made at the time of the delivery of the mortgage, continues in possession of the mortgaged property, and proceeds to sell the same in the usual course of trade, with the view of appropriating the proceeds of sale to the payment of the mortgage debt, the mortgage is void.</p> <p>2. It is immaterial whether the power of sale is reserved in the mortgage itself, or is conferred by a separate agreement.</p>

<p>1. Under the code, an assignee of a claim of damages, resulting from inju-' ries to personal or real estate, may bring an action in his own name.</p> <p>2. Such claim for damages, as assignee, is a separate cause of action from a claim arising by injury to the same property, after its purchase by such assignee; and a demurrer will lie, if not separately stated and numbered.</p>

<p>■ Special Term. — The facts of presentment, demand, etc., are stated in the decision.</p>

Special Term. — On demurrer of Jones and Eaton to the answer, and counterclaim against them of their co-defendant, George W. Tucker. The facts sufficiently appear in the decision.

<p>Tlie notarial protest of a promissory note is prima facie evidence of all the facts to which the officer has certified.</p>

Special Term. — Action on an instrument in the words and figures following, to wit: “ No.- Cincinnati, Nov. 11,1854. G-eo. Milne & Co. Pay to John Bugler, on the 13th, or bearer, two hundred and twenty-one dollars and twenty-seven cents.

¡'Special Term. — The plaintiff a body corporate, organized, ppd^r the laws of the State of Ohio, brings its action, on January 20, a. d., 1855, to recover, in money, the amount of seven jinpáid ten per cent, instalments, assessed upon certain stocks, subscribed in the name of George Hatch, by two certain contractsof subscription, executed by Hatch — the one on the 10th, and the other on the 12th of April, 1852, in words and figures following, to wit: “We do hereby subscribe…

Special Term. — This is an action against R. M. Moore? John O’Dowd, and Sylvester Leonard, to recover tbe possession of forty United States muskets, with .accoutrements, delivered by tbe plaintiff as commandant of tbe third brigade o'f tbe first división of Ohio militia, to tbe defendant Moore, as commandant of tbe Sarsfield Light Artillery, one of tbe companies of said brigade, and which tbe defendants refuse to redeliver to tbe plaintiff, wherefore be asks damages in tbe…

<p>Special Term. — •Proceeding in habeas corpus.</p> <p>The facts are sufficiently stated in the decision.</p>

<p>The indorser of a negotiable note is discharged from liability thereon in ‘ case his indorsee gives the maker an extension of time by taking a new note and receiving the interest in advance.</p>

Special Term. — This is an action to recover damages for an alleged misconduct of the defendant, a justice of the peace. The petition Salleges that on December 29, 1854, in a cause pending before said justice, wherein one William Parker was plaintiff, and the plaintiff herein was defendant, a judgment of ten dollars’ damages, and costs of suit, was rendered against the plaintiff, from which he claimed an appeal to the court of common pleas of Hamiltorf county.

Special Term. — This was an action for libel, tried before Storer, J., at the December term, A. d. 1855, resulting in a verdict for the defendant. Thereupon the plaintiff files his motion for a new trial for reasons: 1. That the verdict was contrary to the evidence. 2. That it was contrary to the law, as given in charge by the court. 3.

Special Term. — This was a petition, filed July 23,1855, for the assignment of dower in certain real estate in Cincinnati, of which .the defendants, the commissioners of Hamilton county, were seized in fee simple. The material facts were agreed upon as follows: The plaintiff and John Jaquess intermarried on the 11th day of April, 1848. The husband died the 29th of April, 1855.

Special Term. — Action for tbe specific execution of a covenant in a lease by making a conveyance of the premises, by deed in fee simple, to the assignee of the original lessee. The facts are sufficiently shown in the decision.

Special Term. — Plaintiffs brought their several actions upon policies of insurance issued respectively by the Cincinnati and the Washington Insurance Companies.

Special Term. — On motion of plaintiff to permit the sheriff to amend his return, so as to show the real name of pai’ty served with process of summons, by substituting the real name of the defendant, Christopher Schumm, for that of Charles Schumm.

Special Term. — It appears that Moore and Rogers purchased a leasehold estate, and certain fixtures, constituting á planing mill, of one Hamline. Powell at the time had judgments against Hamline. On these judgments executions had been issued, which were levied on the leasehold and fixtures. The officer, after the levy, appears to have kept actual possession of the premises for only a short time.

Special Term. — Aetion on a promissory note, made by O. Q-. Wayne to the order of Horsley & Ehlen, by them indorsed to Amasa Higbee, and by him indorsed to. the plaintiff. Horsley, Ehlen, and Higbee have filed their answers, alleging that the plaintiff contracted with the maker, Wayne, for an extension of that note, and Wayne agreed to pay ten per cent, interest thereon; all of which was done without the knowledge and eonsent of these defendants.

■ General Term. — This case arises on a petition in error, to reverse the judgment of Gholson, J., rendered at special term, in favor of the defendant. The facts of the case sufficiently appear in the decision.

<p>1. In an action for non-performance of contract, brought by A against B, wherein a discovery is asked against O and D, and that a judgment, for the damages sustained, may be rendered against them, in ease it appears that they were parties to the contract, a general demurrer to the petition will be sustained on behalf of C and D.</p> <p>2. A discovery can not be claimed in a petition to enable the plaintiff to find out the character and extent of his actual cause of action. The petition must contain a concise statement of facts, showing, of itself, a cause of recovery against the defendants named.</p>

Special Term. — On general demurrer to the petition, on behalf of Joseph Cox, one of the defendants. The allegations of the petition are sufficiently stated in the decision.

<p>1. The facts necessary to constitute a cause of action should be stated in the body of the petition, and, except in the case of actions founded upon written instruments for the unconditional payment of money provided for in section 122 of the code, should be concisely stated, without the necessity of a reference to an exhibit.</p> <p>2. In an action for recovery of money upon an undertaking in error, where the bond is referred to in the petition as “filed herewith marked A,” and it becomes necessary to look beyond the petition to the exhibit, in order to discover the character, amount, and condition of the bond, the pleading is not sustainable by any provision of the code.</p> <p>3. The nature and extent of the obligation should be alleged in the petition, showing the facts, amount, and foundation of plaintiffs’ claim.</p>

Special Term. — On general demurrer to the original and amended petition. The allegations of the, original and amended petition are sufficiently stated in the decision.

<p>The right to set off one judgment against another can not he defeated hy the plaintiff, in the later judgment, making an assignment of his expected judgment to a third party.</p>

Special Term. — On motion to distribute tbe proceeds arising from a sale of mortgaged premises. The facts are sufficiently stated in the decision.

Special Term. — This is an action by Joseph Landis & Co., commission merchants of New Orleans, to recover from Gooch & Campbell, manufacturers of lard oil, in Cincinnati, a balance of account, arising in their favor, for advances made to the defendants on merchandize consigned to plaintiffs for sale.

General Term. — On error to reverse a judgment rendered, at the special term of November, A. D. 1854, in favor of the executors of the last will and testament of John Roberts, deceased, and against the plaintiff in error, widow of said Roberts, deceased. John Roberts, the defendant’s testator, died, leaving a will, which, after his death, was properly probated, and is now in full force.

Special Term. — Action to recover for services as janitor of the rooms of the probate court. The facts of appointment and service appear in the decision.

Special Term. — Action against Miles A. Bradley, maker, and Vanaken Wunder, indorser of a promissory note in words and figures following, viz: “ $1,000. Cincinnati, July 21,1848. Thirty days after date, for value received, we, jointly and severally, promise to pay, to the order of Yanaken Wunder, one thousand dollars. And it is agreed that the liability of neither of us shall be affected by further time being given for payment.

General Term. — Proceeding in error to reverse a judgment rendered for plaintiff in error, at special term of June, A. D. 1855, heretofore reported on p. 39 ante. The petition, in this case, was filed by Marine Ruffher, describing himself as a tax-payer of Hamilton county, and also one of the three members of the board of county commissioners, and suing, as well for himself, as the other tax-payers of Hamilton county, who are too numerous to be made parties.

<p>Special Term. — Action upon a bill of exchange.</p> <p>The facts sufficiently appear in .the decision.</p>

<p>General Term. — Proceeding in error to reverse a judgment rendered for the defendant in error, at special term of April, a. d. 1855.</p>

<p>1. The remedy, by injunction, exists under special circumstances, to enforce the-execution of a trust with regard to chattel property, and to preserve the same from waste; or, when the ordinary remedies in law would be inadequate to correct the mischief.</p> <p>2. It will be exercised in favor of a trustee acting-under a mortgage, given by a railroad company, upon all its property, for the security of bondholders, in ease it is desired by such trustee, to prevent the sale of the driving wheels of a locomotive, temporarily detached for the purpose of repair, and afterward levied on by other creditors of the corporation.</p> <p>?. "Where the mortgage is made in Kentucky upon property situated there, and valid by the laws of that State, it will be recognized and enforced, as to property brought into this State, in good faith, although there has been no compliance with the laws of this State requiring chattel mortgages to be filed in this State.</p>

Special Term. — Action against the,general assignee of a firm to compel the payment of a debt incurred by a former firm, which, was composed of two members of the latter firm. The facts are sufficiently stated in the decision.

General Term. — On error, to reverse a judgment rendered in favor of the defendant in error, at the special term of February, a. d. 1855, by Spencer, J. George Milne & Co., bankers, etc., made a general assignment to the plaintiff in error for the benefit of creditors, and he, as such assignee, brought his action against M. D. W. Loomis, as maker, and Henry II.

Special Term. — On demurrer to amended petition. The allegations of the amended petition are sufficiently stated in the decision.

<p>Special Term. — On demurrer to petition.</p> <p>The allegations of the petition appear in the decision.</p>

Special Term. — Action to subject moneys and credits of the wife to the satisfaction of a judgment obtained against the. husband. The facts sufficiently appear in the decision.

General Term. — Proceeding in error to reverse a judgment rendered against Powell and others, at the special term of May, a. d. 1856. The facts sufficiently appear in the decision.

Special Term. — Action by the husband of Sarah Murdock, deceased, to recover possession of real estate, from her children and heirs at law. The facts sufficiently appear in the decision.

General Term. — This was an action upon a promissory-note, made by William Irwin and indorsed by the defendant. The defense was that there had been no sufficient demand of payment to charge the indorser.

General Term. — Proceeding in error to reverse a judgment rendered in favor of the defendant by Gholson, J., at the special term of December, a. d. 1855. The facts are sufficiently stated in the decision.

General Term. — Proceeding in error to reverse a judgment of Gholson, J., rendered against the plaintiffs in error at the April special term, a. d. 1856.

General Term. — Proceeding in error to reverse a judgment of Storer, J., rendered at the November special term, A. D. 1856, in favor of the defendant in error. The facts sufficiently appear in the decision.

G-eneral Term. — Proceeding in error to reverse-a'judgment of Spencer, J., rendered in favor of the defendant in error at special term of February, a. d. 1856. Tbe facts are sufficiently stated in tbe decision.

General Term. — Proceeding in error to reverse an order made by Storer, J., at tbe special term of May, a. d. 1856, whereby the plaintiff in error was required to pay a monthly allowance for the maintenance and support of his wife, the defendant in error, pendente lite, and a further allowance to enable her to prosecute her suit. The facts are sufficiently stated in the decision.

General Term. — Proceeding in error to reverse a judgment of tbe June special term, a. d. 1856, rendered by Storer, J., in favor of Elizabeth Smith, defendant in error.

<p>Special Term. — Action upon a policy of insurance.</p> <p>The facts of the case sufficiently appear in the decision.</p>

(3-eneral Term. — This case was reserved, at special term, for hearing before all the judges sitting in general term, upon the questions arising on a demurrer, filed by the county commissioners, to the sufficiency of the plaintiff’s petition to sustain his action as against the county.

Special Term. — On motion to set aside a verdict rendered in favor of plaintiff at the January term, a. d. 1857. The plaintiff instituted his action to recover damages for an alleged libel published of and concerning him in the Cincinnati Gazette, on August 8, A. d. 1856. The facts are sufficiently stated in the decision.

General Term. — On reservation, from special term, by Storer, J., for decision in general term, on plaintiff’s motion for a new trial. The facts sufficiently appear in the decision.

General Term. — These two cases were reserved from special term upon a question as to the measure of damages to be awarded to the plaintiffs, as lessees under a perpetual lease, with warranty, incurred by reason of dower having been recovered, and assigned in rent, in favor of the widow of the lessor.

General Term. — Proceeding in' error to reverse a judgment rendered by Gholson, J., in favor of the defendant in error, at the special term of June, A. D. 1855. The facts sufficiently appear in the decision.

General Term. — Proceeding in error to reverse a judg-ment of dismissal rendered by Storer, J., at February term, .A. d. 1857. The facts in the case sufficiently appear in the decision.

Special Term. — This action was brought upon a policy of insurance, issued by the defendant, on the life of George ~W. Sessions. The policy stated that, in consideration of ninety dollars and forty cents paid by the assured, and of a like sum to be paid on the 22d day of February in every year during the continuance of the policy, the life of Sessions was insured for seven years from the 22d day of February, 1855.

Special Term. — On motion to make an award a rule of court, and for judgment. The facts are sufficiently stated in the decision.

General Term. — Proceedings in error to reverse three several judgments, rendered, in several causes, in favor of the plaintiff below, by Gholson, J., at the special term of January, A. d. 1857. The facts sufficiently appear in the decision.

Special Teem. — The plaintiff states, that in the months of September and October, 1858, Lewis Stagg was a dealer in flour in Cincinnati, and that the defendants were then produce and commission merchants in the city of New York; that Roots & Coe were the agents at Cincinnati for the defendants; that the said defendants (by agents) and said Stagg entered into an agreement whereby the defendants were to advance to the said Stagg, on the acceptances by defendants of bills of…

Special Term. — The petition states that on the 20th day of December, 1855, Thomas Higdon, a constable in Cincinnati township and one of the defendants, levied upon as the property of one Russell Miller, one gray horse, on an execution issued by a justice of the peace in a case wherein the defendant, N. Longworth, was plaintiff, and said Miller defendant; that said Higdon sold said horse, and that said seizure, levy, and sale were made and done at the instigation and by…

General Term. — Proceeding in error to reverse a judgment rendered in favor of the defendants below by Gholson, J., at the special term of March, a. d. 1857. The record in this case presents the following facts : On the 8th of January, 1852, the plaintiff; on the application of J. II.

Special Term. — The plaintiff claims the legal estate in, and that he is entitled to the possession of, certain premises now used as an alley, in McFarland’s subdivision in Cincinnati. He derives his title from an instrument of writing from McFarland to Yail, dated December 16,1832; by deed from Yail to plaintiff, dated November 6, 1848; and by deed from Yail to plaintiff’, dated June 10,1850.

<p>Special Term. — Action upon a constable’s bond-</p> <p>Tbe facts are sufficiently stated in tbe decision,</p>

Special Term. — Petition for a new trial and to enjoin proceedings on a judgment rendered against the plaintiff herein, at a former term. The facts are sufficiently stated in the decision.

Special Term. — On motion by plaintiff for a judgment on the verdict and motion by defendant for a new trial. The facts are sufficiently stated in the decision.

General Term. — Reserved to the general term upon plaintiff’s motion to retax costs. The facts sufficiently appear in the decision.

General Term. — Proceeding in error to reverse a judgment, rendered at the January special term, a. d. 1857, by Spencer, J., in favor of Isaac Greenwald against Seybold & Co. The facts are sufficiently stated in the decision.

Special Term. — The facts in this case, as they appear from the pleadings and evidence, are these: In March, 1852, P. E. & G-. P. Tuttle, proprietors of the Woodruff’ House, being in insolvent circumstances, were desirous of getting an extension from their creditors, and accordingly proposed to give them all a mortgage upon their furniture in the Woodruff House, upon getting an extension of one and two years.

Special Term. — The action in this case was brought on a note, the. consideration for which was the premium on a policy of insurance issued by plaintiff to the owners of the steamboat Ambassador. The note was made by the owners, and indorsed for their accommodation by the defendants. The insurance was on the steamboat for one year, from Nov. 2,1855, to Nov. 2,1856.

General Term. — Reserved from special term, by Storer, J., for the opinion of the entire court. Action to foreclose a mortgage: the facts sufficiently appear in the decision.

Special Term. — This action was brought on the bond of E. H. Pugh, a justice of the peace, to recover the sum of '$113.65, received by the justice and not accounted for. Defense was made by the sureties on the bond on two grounds: 1. That the bond had never been delivered to, or approved by, the proper authority. The justice was elected on the first Monday in April, 1853, for the city of Cincinnati, the township and city having the same limits.

'Special Term. — This was an action for the recovery of certain personal property, being merchandize, which had been sold by the plaintiff, a merchant in the city of Cincinnati, to John Johnston, a merchant, residing and doing business in Ripley, Ohio. The sale of the goods took place in September, 1856. The terms of the sale were cash, or, according to the course of business, a note payable at a short date.

Special Term. — This action was brought to recover the value of a quantity of bulk shoulders, which were alleged to have been wrongfully taken by the defendant from the plaintiff. The defendant being the owner of the shoulders, was induced to part with the possession of them to one Bailey, under the following circumstances: Bailey was a produce broker in Cincinnati, the defendant a packer of pork.

Special Teem. — Motion to strike from the answer certain allegations of fact stated in justification and mitigation, in an action for libel. The facts are sufficiently stated in the decision.

<p>Special Term. — On demurrer to amended petition.</p> <p>The allegations of the amended petition sufficiently appear m the decision.</p>

At Chambers. — On motion to discharge an attachment for reasons: 1. Because the affidavit upon which said attachment issued is insufficient in law. 2. Because said attachment was wrongfully and improperly issued.

Special Term. — On demurrer to petition. Plaintiff' brings his action to recover the amount of an assessment issued to him by the city of Cincinnati to defray the cost of grading a public street, upon which the defendant owns property. The alleged cause of demurrer is that the petition is insufficient by reason of the assessment, and the several resolutions and ordinances of the city council, in relation to the work, being not made part of the petition.

Special Term. — The action was brought for the failure to deliver goods received on a contract for their carriage from Cincinnati to Cairo by railroad.

<p>Special Term. — Action of libel,-on trial to a jury.</p>

Special Term. — Tbis action was instituted by the admintrator de bonis non of the estate of Isaac L. Clark, deceased, to recover from tbe estate of tlie original administrator, and the sureties on the original administration bond, a balance of moneys claimed to have been collected previous to the administrator’s death, and still remaining unadministered. The defendants demurred to the petition for causes: 1. That the plaintiff has no capacity or right to sue. 2.

Special Term. — On demurrer to petition. The plaintiffs, as heirs of David B. Bassett, deceased, file their petition against the original administrators of Bassett’s estate, and their sureties; against the administrator de bonis non, of that estate, and the other heirs, together with several unpaid creditors, alleging that the accounts were fraudulent, and that there are moneys in the hands of the original administrators unadministered, and claiming a distribution to the…

Special Term. — On demurrer to answer. This was an action under the water-craft law, instituted against “ a raft of pine lumber without a name, navigating the waters within and bordering upon the State of Ohio,” to recover for an injury to the plaintiff’s flat-boat, in consequence of the improper navigation of a raft of pine lumber.

General Term. — Proceeding in error to reverse a judgment, rendered in favor of the defendant, by Storer, J., at special term of May, a. d. 1857. The facts are sufficiently stated in the decision.

Special Term. — On motion, by defendants, to require the plaintiffs, in their amended petition, to separate their causes of action into distinct counts. The contents of the amended petition are sufficiently stated in the decision.

General Term. — Proceeding in error to reverse a judgment rendered at the June special term, A. D. 1856, in favor of the defendant upon a demurrer to the plaintiff’s amended petition.

G-eneral Term. — Proceeding in error to reverse a judgment rendered by Grholson, J., in favor of Marsh, plaintiff below, at May term, A. D. 1857. The facts are sufficiently stated in the decision.

General Term. — Proceeding in error to reverse a judgment of Gholson, J., rendered for the defendant at the special term of February, a. d. 1857. During the pendency of the suit, Stephen Hambo, the original defendant died, and thereupon the cause was revived against. John C. Iiolzhab, administrator of defendant’s estate. The facts sufficiently appear in the decision.

Special Term. — On demurrer to petition. The plaintiffj in the petition, states that in May, 1855, he was employed in a banking-house, in Cincinnati, as book-keeper, at tbe annual salary of $2,000, with the prospect of advancement.

Special Term. — On motion to confirm commissioners’ assignment of dower. The first order of assignment provided for the selection of the commissioners by the sheriff which was done and a report made; thereupon that order and all proceedings under it were set aside, and a further order of assignment issued, appointing the same individuals as commissioners to assign dower.

Special Term. — On motion, by defendant Eay, to set aside a confessed judgment, rendered on a judgment note with power of attorney, made by the defendants to the plaintiffs.

Special Term. — On demurrer to petition. The petition sets forth that Seventh street, between Race and Elm, in the city, is a public highway, opened and used as such, and improved for the accommodation of such as choose to pass on the same; that the city of Cincinnati, by virtue of ownership and occupancy, is bound to keep the same free from obstruction, and in a condition to be safely used by the public; that about two o’clock of the day, December 27, 1856, the plaintiff…

General Term. — Proceeding in error to reverse a judgment rendered for the defendant in error, hy Gholson, J., at the special term of June, a. d. 1857. The action below was brought by Hall, to recover the' amount alleged to be due on a promissory note, dated July 25, 1855, made by Charles E. Schmidt, for the sum of $2,000, payable to the order of Henry Brachmann, in one year after date.

Special Term. — On motion to make the reply more definite and certain. Petition on a promissory note made by defendant.

Special Term. — Plaintiff alleges that at the J anuary term, a. d. 1857, of this court, he recovered a judgment against Ogborn for the sum of $1,200.87; that the defendant, Ogborn, has no property subject to an execution at law, but that he has an equitable title to certain real estate in Missouri and Illinois to which Thomas Davis and other parties defendant hold the legal title; and plaintiff prays that a receiver may be appointed, and that the lands may be subjected to…

Special Term. — On demurrer to the petition. Action to restrain proceedings under an execution and levy, made at the instance of Hurd as a judgment creditor, upon certain personal property belonging to the Cincinnati and Marietta Railroad Company. The plaintiff claims that he is the mortgagee, in trust, for certain holders of bonds issued by the Cincinnati and Marietta Railroad Company.

Special Term. — On demurrer to petition. Action by the payees against the maker of a promissory note.

<p>1. Usurious interest will be deducted by tlie court whenever it appears that tbe creditor has received a greater interest than the law permitted, and the transaction is a loan, or an ordinary purchase.</p> <p>2. "Whenever exorbitant interest has been paid, it is a liquidation y>ro tanto of the principal, whenever the court is so advised of the fact; and any party to the instrument may claim the privilege thus allowed.</p> <p>3. If, however, the note represents a single transaction, and the holder has sold it bona fide, for a sum less than its value, a different rule obtains ; it is then a purchase, like that of any(other chattel; and as the maker would 'be liable to discharge it, at all events, he can not complain that his paper is sold below its intrinsic value.</p> <p>4. Where the original note was given for a loan, and the subsequent renewals have been granted upon the same terms upon which that loan was made, the party is entitled to the deduction of the usurious interest.</p> <p>5. It is immaterial whether the parties agree to the usurious interest or not; if it appears, on trial, that it has beep, paid or demanded, no judgment can be rendered which includes it.</p>

Special Term. — On motion, after the dissolution of an attachment, to dismiss the action, commenced in attachment, on a promissory note, which fell due subsequent to the bringing of the action.

Special Term. — On motion by the sheriff to have an allowance made for storage expenses, to be taxed in the costs and collected of the plaintiff’, under the judgment rendered against him for costs. , The plaintiff in this action obtained an order of attachment. The sheriff levied on a stock of groceries. It became necessary to store them; and in this way, a charge of about one hundred dollars was incurred by the sheriff.

Special Term. — Action to recover rent and taxes claimed to be due to the plaintiff under a certain contract of lease. The facts are sufficiently stated in the decision.

Special Term. — The action was to recover damages for a malicious prosecution of the plaintiff, in the police court of Cincinnati, on a charge of larceny, made by the defendant.

Special Term. — This is an action brought by the plaintiff as indorsee and holder of a promissory note for $350, made by the defendant, payable to the order of W. D. Ludlow, and indorsed by him, for accommodation of the defendant, to S. R. Smith, who indorsed it and delivered it to Horace Bronson, who transferred it to plaintiff. It is admitted that the plaintiff' is entitled to judgment, unless the facts set up by way of defense are an answer to the action.

General Term. — Proceeding in error to reverse a judgment rendered for tbe defendants below by Gbolson, J., at special term, June, a. d. 1857. Tbe plaintiffs brought their action, as heirs of David B. Bassett, deceased, to recover the possession of an undivided half of certain real estate on the north side of Ninth street, between Main and Sycamore streets, and of an undivided third of certain leasehold premises on the the north-west corner of Ninth and Sycamore streets.