Volume 1 — Handy's Ohio Reports

<p>It appeared from the bill of exceptions, that on the trial of the case at the special term before Spencer, J. defendant’s counsel offered in evidence the deposition of Henry Yenne, who was one of the owners of the raft, to the admission of which the plaintiff objected. The notice under which this deposition and others were taken, had been given in the usual form, without naming the witnesses to be examined.' Among other witnesses called in the course of the taking of the depositions, was Yenne, an owner of the raft. No objection was made, or noted, at the time. The plaintiff and his attorney being present at the taking of the depositions, proceeded to cross-examine Yenne as a witness. There was no notice before the taking of the deposition of the intention to examine Yenne as a witness, and there was no notice before the trial, either of the intention to examine Yenne as a witness at the trial, or to use the deposition as evidence, except so far as notice might be inferred from the taking and filing the deposition. No exception to the deposition was made and filed before the commencement of the trial.</p>

<p>The subject matter of an agreement under the statute of frauds, may be shown by extrinsic parol testimony.</p> <p>The mere contingent interest of the wife to dower, forms no ground for joining her as a defendant with her husband in an action for the specific performance of an agreement for sale of real estate.</p> <p>Where petition simply alleges a contract with a married woman in relation to real estate, objection is well taken by demurrer.</p> <p>Under 29th Sec. Code married woman sued with husband may defend separately by attorney.</p>

This was an application for an injunction, and, at the same time, was heard, a motion to discharge an attachment against the interest of a partner in partnership property. The application was refused, and the motion overruled.

<p>The facts, in this case, are sufficiently stated in the-opinion and finding of the Court.</p>

<p>In an action upon bill of exchange against drawer, a general allegation in the petition, that “the bill was not paid though duly presented for payment, of which the drawer had due notice,” is sufficient, under the Code.</p> <p>The explanations of the Code Commissioners, will carry a very persuasive weight, though not binding as authority on the Court.</p>

This was an action on a promissory note against the defendants as makers.

This was an action brought by the plaintiff, as captain of a steamboat which was sunk in the 'Mississippi river, for services rendered, in saving and securing the boát after the disaster. Four of the defendants were insurers by different policies; the plaintiff claims, that there was an abandonment made to, and accepted by them, and they, therefore, became liable to him for the services rendered, from the time of the loss of the boat..

Petition states that J. & J. Slevin as partners say, “ That there is due them on a promissory note, (copy annexed,) from the said Jaines Reynolds and William Irwin, late partners, as Reynolds, Irwin, & Co. as makers, and said Henry C. Borchelt and H. IT. Newman, as endorsers, defendants, the sum of one hundred and thirty-two dollars and thirteen cents, with interest from May 12th, 1847.

This was a demurrer to petition for insufficient statement of cause of action. The petition alleged, that the defendant, by promissory note, dated the 2nd day of March, 1854, promised to pay the plaintiff in seventy-five days after date$438.93, a copy of which was thereto annexed; wherefore plaintiff claimed judgment on said note against the defendant for said sum, with interest from the 10th March, 1854. The petition was accompanied by a copy of the note.

This was a petition for sale of mortgaged premises. The question arose upon a motion for judgment by default, and for sale of mortgaged premises, upon a constructive notice by publication.

<p>In an action in Superior Court of Cincinnati, it is not good cause of demurrer, tliat tlie petition sets forth only that it is in the “ Superior Court of Cincinnati,” without stating the county.</p> <p>Nor, that petition does not contain the names of the parties, plaintiff and defendant, in the caption.</p> <p>Nor, that such names are not followed by the word “petition.”</p> <p>Nor, because certain averments in petition are irrelevant, or in violation of the statute of frauds.</p> <p>The proper remedy is, to move to dismiss the petition, or strike out what is irrelevant.</p> <p>In an action against endorser of a promissory note, the petition must set forth that he had due notice that demand had been made for payment from the maker, and that it had been by him dishonored.</p>

<p>The officer who takes a deposition, must certify that it was subscribed by the deponent in his presence, and that it was written down in presence of deponent; otherwise the deposition cannot be read on the trial.</p> <p>Deponent must be sworn, before he is allowed to give any statement in the ease.</p>

Motion to discharge attachment. The affidavit on which the attachment issued is as follows : ££ The State of Ohio, Hamilton County.

The facts in this case, as they appear from the petition, answer, and proof of plaintiff himself, are, that the plaintiff, being indebted to the defendants and other creditors, in the amounts specified in three several judgments, entered into an agreement with the defendants, by which the latter undertook to procure from the other creditors of the plaintiff, a release of their several judgments, on payment of twenty five cents on the dollar; in consideration of which, the…

<p>An affidavit, alleging the causes in the disjunctive, in order to obtain an attachment, is bad for uncertainty.</p>

This was an application for injunction, made to one of the judges at a special term, and was reserved for hearing before all the judges. The facts are sufficiently stated in the opinion of the Court.

Assumpsit to recover the amount of three checks drawn on defendants by E. Easton, and paid by them after decease of B. G. Easton, etc. The facts are sufficiently set forth in the opinion of the Court.

This action was commenced against Burgoyne, as maker, and Knowlton, as endorser of a note. The summons was served on Burgoyne, and there was a return of “ not found,” as to Knowlton. Judgment by default was taken against Burgoyne, for the amount of the note, at a former term of the Court. No disposition of the case was made as to Knowlton. Afterwards, another summons was issued in the case, and returned served on Knowlton, who moved to dismiss the proceedings.

Demurrer to petition. The facts set forth in the petition, are, that in September 1851, the defendant being indebted to the plaintiffs on three promissory notes, and a book account for goods sold, amounting in all to $2,444.89, before the maturity of one of the notes, for $783.42, being in insolvent circumstances, proposed to pay the plaintiffs 50 per cent of the debt, in full of the entire demand — which proposition was accepted; the money paid; a receipt given by the…

This was a motion to dismiss an attachment,- The affiants state that Chrisfield has absconded, in fraud of his creditors, and Peale, his co-partner, is about to dispose of the partnership property, and has actually disposed of a part of it, for the same purpose. These facts are denied.

Exception to admission of a deposition. An exception was made in this case to a deposition, on the ground, that the certificate of the officer did not show that the deposition was subscribed in his presence, as required by Section 351 of the Code.

<p>This was an action to foreclose a judgment lien; and to recover money.</p>

The plaintiffs are bankers and brokers, and the defendants are bankers, in Cincinnati. Held: actually or constructively, to be a participant in the act by which the drawee has been made liable to payment,, or subjected to loss, and there is no such evidence of mala fides in the transaction on the part of the defendants. Third.

<p>A motion to arrest tie evidence in any case from tie Jury, and to grant a non-suit, necessarily assumes tie fact, tlat upon the case as presented, there can be no recovery by tie plaintiffs.</p> <p>There is an admission also, in such motion, that the testimony, offered by the plaintiffs, is true, and taking it as true, there is no ground to sustain the action.</p> <p>If there is doubt as to the facts proved; if the credibility of witnesses is called in question; if there is a dispute as to any material part of the testimony, a Jury is the proper tribunal to decide the controversy.</p> <p>But where, as upon demurrer to evidence, all the matters in evidence are held to be fully proved, and the only real question can be the application of the law to those facts, it is not only within the power, but it is the duty of the Court to take the responsibility, and direct or refuse a non-suit as in their judgment shall be right and proper.</p> <p>A party, who pays a check or draft drawn upon him, is estopped from denying the genuineness of the drawer’s signature.</p> <p>The only exception to this rule is: when the party, who holds the check or draft, has been guilty of fraud; or such gross negligence as would be equivalent to fraud.</p> <p>When payment of a forged bill or check is once made by the drawee, the party, to whom the payment was made, is entitled to notice of its invalidity the same as the endorser of a bill of exchange.</p>

This was an action submitted to be tried by the Court, and the facts were found to be as follows: “The defendant contracted to deliver 20 barrels of whisky for the plaintiff, at a place called Napoleon, in Arkansas.

This case was before the Court, on a motion to discharge an attachment as to a certain lot, levied on as the property of the defendant, Charles Guild.

<p>In a proceeding under tlie Common Carrier act, in which a steamboat is attached, a petition must be filed as in other cases, and the answer may be verified by some one authorized to appear and act in steamboat’s behalf.</p> <p>The same strictness of proof may be required under the Code, in rendering judgment by default in such cases, as was required under the law before the Code.</p> <p>Though for the purpose of being sued, a steamboat is a Quasi person, and the proceedings under the statute are instituted and carried on against the steamboat by its name or description, they are really and practically between the plaintiff and the owners or master of the boat. Proceedings under the Common Carrier’s act, come within the provisions of Sec. 604 of the Code; but as the Code nowhere provides for such process as a warrant of attachment under*the provisions of the Common Carrier’s act, recourse must he had to that act to obtain such process, and regulate proceedings under it,</p> <p>After the return of the attachment, the subsequent proceedings may be in conformity with the Code.</p>

<p>Petition, for delivery of personal property.</p>

<p>A failing debtor may prefer a creditor in Ohio, but the transaction is deemed unjust, and it must bo free from any just suspicion as to its honesty and fairness; the parties are required to act with the most scrupulous good faith, and look with an eye single to the object intended, a fair sale or security to satisfy, or provide for the debt to be preferred; and they must take care that no unjust or unnecessary delay or hindrance be offered to the rights of others.</p> <p>An action may be maintained upon the judgment of a Justice of the Peace; and it is no bar to such action that the judgment might be enforced by execution.</p> <p>In such an action the plaintiff may resort to the provisional remedies of the Code; he may sue out an attachment; and as he is not estopped as to the facts he has alleged, he may have a decision on the merits of the motion, though the Justice below discharged the attachment.</p> <p>This does not conflict with the principle of comity; that principle never forbids full enquiry into the merits, except in cases where the party against whom a decision has been had in one tribunal, would have the right to have the matter re-examined in a higher or appellate Court.</p> <p>Upon this principle, though an order of attachment may have been discharged by a tribunal of co-ordinate jurisdiction, the plaintiff, having sued out another, would have the right to ask the opinion of the Court from which it issued, as to its validity. And the party may in such case ask for the judgment of the Court independent of, and without reference to the decision of the other Court.</p>

This is au action to recover the balance of an advance made on one hundred barrels of linseed oil, sold by plaintiffs as commission merchants, for and on account of the defendants.

This was an action of covenant on a policy of insurance, by which, on the 26th day of October 1847, the defendants insured the plaintiffs, “ against loss or damage by fire, to the amount of Tour Thousand Dollars on $8000, as insured by them to D. White & Co. on stock of flour, grain, and cooperage, contained in their stone and brick steam flouring mill with cement roof, and detached from all other buildings, situated in the city of Madison, Ind. and known as the City Mills.”…

<p>The statute authorizing actions to be brought against defendants in their partnership name, is limited in its operation to actions against companies or associations of persons formed for carrying on business in Ohio, and who have a place of business in the county in which the action is brought.</p> <p>Whore a foreign firm is sued in its firm name, and answers, and a verdict is talten upon the defence set up in the answer, without objection to the irregularity,.they will be deemed to have waived their strict legal right to object.</p> <p>For the purpose, however, of regularity of practice, the court may, under a view of all the circumstances in such a case, exercise a sound discretion in ordering an amendment of the irregularity.</p>

<p>The Court will set aside a default for answer, and allow a meritorious defence to be plead, upon payment of costs by defendant. Notice to the agent, attorney, or other appropriate officer of a banking institution, is notice to the Company.</p>

<p>The absence of the first names of defendants amounts only to a misnomer, and forms no ground to discharge an attachment, or strike a petition from the files.</p> <p>The law respecting amendments for misnomer, is substantially the same as before the statute authorizing actions to be brought against defendants in their firm name.</p> <p>An objection, that the petition is in the form of the common counts in assumpsit, forms no grouna to strike the petition from the files.</p>

This was an action at common law, originally brought in the Court of Common Pleas, before the Code, and transferred to this court. The declaration charged the defendants with “ maliciously contriving and intending to injure the plaintiffs, by driving their locomotive with great force and violence against and upon six cows of the plaintiffs,” &e. whereby the said cows were killed, &c. To ■which th'e defendants plead the general issue.

This was an action of assumpsit on a policy of insurance brought before the Code of civil procedure took effect, and transferred into this court from the Court of Common Pleas. The declaration is in the usual form, and sets out, substantially, the terms and conditions con-tamed in the policy.

<p>Where in a policy o£ Insurance there is an acknowledgement o£ receipt of premium, if the insurers are not estopped from denying its payment, it at least devolves upon them to show, by clear and satisfactory testimony, the non-payment of the premium. And especially in a case where notice has not been given to the insured, before the loss happens, that such non-paymeut will avoid the policy.</p> <p>The mere fact that the hooks of the insurers show no account of, or credit for the payment, is not sufficient.</p> <p>Where an agent contracts in his own name, without disclosing his interest, though in fact for the exclusive benefit of another person, though, perhaps, in such caso the agent might be passed by and suit brought directly against the principal, yet both cannot be hound as principals. The plaintiff will be put to elect which she will pursue.</p> <p>Such suit might possibly be sustained against both jointly — on the ground of fraud or collusion, &c.</p> <p>Inconsistent and incongruous claims cannot he joined in a petition; in such case the plaintiff will be put to her election on which to proceed.</p> <p>An assignment of a claim by a oestui que trust is good so as to enable the assignee to sue under the Code.</p> <p>A plaintiff cannot in a suit against a defendant, oh a contract to recover money, join debtors of the defendant, and seek to subject their debts to payment of his judgment when recovered; there is no privity between them.</p>

<p>Sec. 116 of the Code, which provides that “ the title of a cause shall not be changed in any of its stages,” means the title or caption of the answer or demurrer, or other paper filed in the cause after the petition, shall be like that of the petition naming plaintiff first; whereas before the Code it was usual to name the party putting in the pleading first.</p> <p>Sec. 116 does not conflict with Section 137, which authorizes the Court in furtherance of justice to amend any pleading, &c., by adding to or striking out the name of any party, &c.</p> <p>When leave is asked and granted to file an amended pleading, then is the time for a party to object, and if his objection is overruled, to except to decision of the Court. It is too late, after pleading has been filed on leave without objection.</p>

Demurrer to petition. The petition contains a statement of two causes of action, founded upon two contracts, substantially alike.

This is a petition filed by the complainants, for. the purpose of obtaining an injunction restraining the defendant from collecting a tax, alleged to be illegally assessed, against the complainants, for general purposes of government.

Motion to set aside an amended entry of a judgment. This was an action against George W. Burnet, as the acceptor, and Edward M. Gregory and William Burnet as drawers of two bills of exchange. Upon a showing to the Court, and by agreement of the plaintiffs and George W. and William Burnet, the judgment was entered, so as to show, that Gregory and Burnet were the principals, and George W. Burnet the surety for the debt due.

<p>This causo came up on error to the Special Term.</p>

<p>Error to Special Term.</p>

This action was brought against the defendant as the acceptor of a bill of exchange, of which Gregory & Burnet were the drawers. The bill was payable to the order of the plaintiff. Gregory & Burnet were not sued. No defence was made by the defendant, and, on a former day of the term, a judgment was entered against him for the amount due.

Petition for the sale of real estate, under a mortgage to the plaintiff. The case is fully stated in the opinion of the Court.

Petition. The plaintiff states, that it was duly incorporated by an act of the General Assembly of the State of Ohio, passed April 3d, 1837, entitled “ An act to incorporate the Cincinnati Gas Light and Coke Company,” to which act, published at large in vol. 35 of the Local Laws, pages 420 and 421, plaintiff now refers the Court. 2.

<p>[Who sues for the use of the Executor of Ethan Stone, dec’d.]</p> <p>A policy of insurance, in respect of the rules hy which it is to he construed, and the principles hy which it is to be governed, differs nothing from other written mercantile contracts.</p> <p>The common expression, that it is “ eminently a contract of good faith,” means only, that the good faith, which is the basis of all contracts, is more especially required in that species of contract, in which one of the parties is supposed to be necessarily less acquainted with the details of the subject of the contract, than the other.</p> <p>A policy of insurance is a contract of indemnity, and the right to that indemnity, vested by the contract, can he taken away only on principles alike applicable to other instruments of that character.</p> <p>Where in reference to the use of premises, adjoining those insured, there is no condition in the contract express or implied, and there has been no representation or suppression of any fact relating to the subject matter, the insured would have the the same right to use his adjoining property, and would be governed by the same obligations, in respect of its use, as any other owner.</p> <p>If such use he in itself lawful and right, though in its consequenses a loss result, it is damnum absque injuria, and no legal responsibility rests on the owner.</p> <p>A suppression or misrepresentation of material facts, though from ignorance, mistake, or negligence, stands on the same ground in its effect on the policy, as if such suppression or misrepresentation were wilful. But the principle, on which this rule is founded, can have no application to the conduct of the insured subsequent to the making of the contract.</p> <p>There are some representations in their nature promissory. JSx gra. the estimate of the risk to be assumed, when it depends upon the continuance of material circumstances represented to the insurer.</p> <p>The materiality of a representation in no way depends upon the contingency of an injury, resulting from the failure to make it good, The falsity of the representation will avoid the policy, though the loss occurred from a cause unconnected with the misrepresentation.</p>

<p>In a common law submission, the right to enforce the award by action is, as a general rule, clear, and the contract of the parties by which this right is taken away, should be express. The fact, that the award may be enforced in another mode, constitutes no bar to the action.</p> <p>An award may be set aside for a mistalce of law, but not for error of judgment as to the law. If the arbitrator without investigation, or without any exercise of his own judgment, erroneously asstmes the law, then the award may be set aside, if it appears on its face that it was based on such erroneous assumption; but if he exercise his judgment as to the law, it is conclusive.</p>

<p>The indorsee of a hill of exchange, or promissory note, received in good faith, before due, as collateral security for an existing debt, is protected from all the equities of the maker, or acceptor, of which he had no notice, at the lime of the assignment.</p>

On the trial, the plaintiff proved ¡that his correspondent in Toledo, Ohio, in September last, shipped on the canal boat St. Mary’s, of which the defendant was master, thirty tons of ice, to be carried to Cincinnati, and delivered to plaintiff without delay; the stipulated freight being eighty dollars and the canal tolls in addition. The defendant signed a bill of lading, embodying the contract as proved.

This case was submitted to the court, upon the following statement of facts: In December 1851, the steamboat Falcon, while on her voyage from Cincinnati to New Orleans, grounded on a bar, at Diamond Island, in the Ohio river. The weather was very cold, and the ice running first, which endangered the safety of the boat; and the officers, finding it impossible to get the boat off without lightening her, threw over several hundred ploughs on the bar, in’ shoal water.

<p>C. & W„ merchants in insolvent circumstances, with a view to prefer certain creditors, conveyed by a bill of sale to P., one of their creditors, all their sioc/c in trade, household furniture, and property of every description, in consideration of $4,500, to be paid certain creditors, and the proceeds resulting from the residue of .the property, to be paid, pro rata, to other creditors as far as the same should go; Held, that an equal trust was created for all creditors.</p> <p>And the trust, thus created and accepted, cannot be changed afterwards by any act or agreement of the parties.</p> <p>Semble, that a conveyance to P., under the same circumstances and for the same object at the fixed price of $10,000, creates P. a trustee of the purchase money, for all the creditors.</p>

<p>A debtor in failing circumstances, if he acts in good faith, may prefer one of his creditors, either by payment of the debt, or securing the amount due by mortgage, or confession of judgment.</p> <p>The security of a debtor, is a creditor within the meaning of the rule, though he may not then have paid the debt, and may only be liable on a condition yet to happen.</p> <p>When the accommodation endorser has assumed the payment of notes not yet due, and thereby makes himself absolutely liable for their payment, he may in good faith take a mortgage, or other security from the debtor, to indemnify him from ultimate loss.</p> <p>A judgment confessed by the debtor to the security under such circumstances, for the amount of the debt thus assumed, is valid and will be enforced in equity.</p>

<p>In an action on a bill, drawn in Cincinnati upon a mercantile house in New ■ Orleans, payable there, and accepted by one of the drawees in Cincinnati, where he resided, and which is protested for non-acceptance or non-payment, the damages allowed by the statute, may be recovered.</p>

<p>No lien is given by the provisions of the Common Carrier Act, until an actual seizure of the watercraft under a warrant.</p> <p>If before such seizure, a valid lien has been acquired upon the watercraft in an ordinary judicial proceeding against its owner, it will have priority in right and satisfaction.</p>

This was an action on a promissory note, made by the defendant to Nelson Newman, or order, and by him endorsed to the plaintiffs. The note on which the action was brought, was given by the defendant to Newman, as a part of the consideration on a sale of a patent right.

This case was submitted to the court upon the following state of facts. Emanuel Hahn after his intermarriage with Hannah Colvin, brought a suit in their joint names to recover the amount due upon a note given to her when sole, by the defendants Dennison and others. On leaving the note with his attorney for collection, he took a receipt therefor in his own name. A joint judgment was rendered in the action, for $1,500; upon which no execution was issued.

<p>Exceptions to deposition.</p>

<p>Where B. & B, general partners o£ a firm, in which R. was a special partner, under the Act of Assembly authorizing limited partnerships, acting under the original certificate, abandoned the business and left the State, without publishing notice of dissolution; leaving certain memoranda to be delivered to R, showing the liabilities of the concern, and some assets, and also the deed for a mill, belonging to one of the general partners, to be sold by R. to liquidate the debts of the firm; and R. sold the same, and realized the assets, which produced but a small dividend for creditors :</p> <p>Held, that under these circumstances R. had not so interfered with the affairs of the firm as to render himself individually liable as a general partner, for their debts: That Section 20 of the Act, providing that “no dissolution of a limited partnership shall take place by the act of the partners, previous to the time specified in the certificate of its renewal, until notice of such dissolution shall have been recorded in the office in which the original certificate was recorded and published,” etc. has no applieatton to a dissolution during the time specified in the original certificate: That under Section 10, providing that, “ every alteration which shall be made in the names of the partners, in the nature of the business, or in any other matter specified in the original certificate, shall be deemed a dissolution of the partnership,” etc, such abandonment by the general partners worked a dissolution :</p> <p>That the interference within the meaning of the 14th Section of the law, must be an interference with an existing partnership. R.’s acts having been done after dissolution clearly did not make him liable individually, etc.</p> <p>Semble, that eren if the firm had been operating under a certificate of renewal, R’s acts were not of such a character as to render him a general partner, etc.</p>

<p>1. It is not sufficient to aver in a plea to an action upon a policy, that when the application for insurance was made, the insured concealed a fact material to the risque and which would have increased it if known; it must also appear, that the insured knew of the existence of the fact, and that the fact itself was not open and notorious at the time to all parties.</p> <p>2. It is not every fact, within the knowledge of the insured that he is bound to disclose, and if such facts as the law will require him to disclose are within the knowledge of the insurers, or so connected with the subject insured, that his knowledge may be fairly inferred, the allegation of concealment is unsupported.</p> <p>3. While the utmost good faith is required of both parties to the contract of insurance, the same degree of good faith is demanded in the formation of all contracts and the same rule applies to all.</p> <p>4. There is a more liberal rule applied in the construction of fire policies, than those issued upon marine risques; the one supposes there is more equality between the parties, as the means of knowledge are more within the power of each; the other regards those means as within the reach of the insured only; Semble:</p> <p>5. A representation must be of an existing fact, if there is an intention only to do an act at the time the insurance is asked for and the policy issued, and the act itself does not take place until afterwards, there is no foundation for a false representation, the act done can only be set up as a breach of warranty.</p> <p>6. Wherever, as in this case, it is sought to avoid a policy on the ground that the subject insured did not include machinery or a drying apparatus under the terms used in the application for insurance, the plea must state in what particulars the subject insured differs from the representation; the question is at last one of proof, and the facts to sustain the allegation, must be particularly set forth in the pleadings.</p> <p>7. The occasional use of articles denominated hazardous, or the occupation of the premises insured for purposes called hazardous in the conditions annexed to the policy, will not avoid the policy if such an occupation was connected with the buildings insured; there must be a direct appropriation of the property to such use or purpose before the covenant is broken.</p> <p>8. And if, during such occasional or temporary use, the property should be destroyed, the underwriters will still be held if there is no fraud on the part of the insured.</p> <p>9. A plea setting up a breach of warranty on the part of the insured as to the subject insured, is not sufficient unless it clearly appears in what particulars the subject said to be insured, was different from what it actually was represented to be at the time of insurance; and the rule is the same when there is a continuing warranty imposed on the risque by the terms of the policy. The precise facts must be alleged, upon which the warranty is claimed to arise, and for the occurrence of which, the policy is claimed to be avoided,</p> <p>10. The charges of the court will be regarded as a whole, and if upon comparing one with the other, the whole law is found to have been laid down, and all that could be claimed as law by the plaintiffs and defendants has been given to the jury, a Court of Error will not select detached portions and decide the case. They will look to all, and, by a comparison of every part, if possible, harmonize every clause, wherever a principle is announced or a rule prescribed.</p> <p>11. Underwriters will not be permitted to express their opinions as to the nature of a risque whether it is more or less hazardous; like other witnesses they can only testify to facts. They do not come within the rule, that experts may testify in particular cases, and that permits men of professional science to give their opir.ion upon subjects connected with the arts.</p> <p>12. A manufacturer may be asked to describe the machinery used iu his particuler business, and what parts of it have been used in other places, and how long, and whether machinery of a particular kind connected with his business has not been bi use, and where; it is a part of the history of his vocation, and may be said fairly to be within his knowledge; and his knoivledge is like that we derive from the written history of the past, whether connected with trade, commerce, or manufactures.</p>

This was an action brought to recover the compensation earned by the plaintiff, in the performance of a contract for the manufacture of certain seal presses, known as “Evens’ Percussion,” entered into between him and the defendant.

<p>A new trial will not be granted, except in very extreme cases, for inadequacy of the damages found by the jury, in actions for assault and battery, malicious prosecution, libel, and slander.</p> <p>But on actions of tort, when from the nature of the injury received, and the means by which it was produced, the damages may in a good measure be computed by estimating the loss of time, and expenditures incurred, etc., it is the duty of the court in a proper ease, when the jury have found that the injury was produced by the act of the defendant, to set aside the verdict, and grant a new trial, if a fair compensation for the injury has not been awarded. The §298 of the Code does not limit the power of the court, in such a case.</p>

The plaintiffs obtained an attachment, under Section 230 of the Code, authorizing that proceeding, in certain cases, before a debt becomes due. The claim of the plaintiffs was founded upon certain promissory notes held by them, which the defendants had endorsed, and which had not matured at the time the order of attachment was issued.

The petition in this case set forth substantially, that on the 13th day of April, 1851, the City Council of Cincinnati passed an ordinance, “ to open and extend Hammond Street,” in said city, to the width of 40 feet, beginning at a point about 190 feet south of Fourth Street, and thence running north to Fourth Street; for which purpose they condemned about 23 feet on the west side of an alley running through from Hammond to Fourth Street; part being property owned by tbe…

This was an action against the defendant as the acceptor of a bill of exchange, remitted by mail to the plaintiff, and alleged to have been lost. The proof showed, that the plaintiff and defendant had been dealing together for several years.

This was an action of assumpsit for the use and occupation of a house and lot in the city of Cincinnati, originally brought in the Court of Common Pleas, and transferred to this court.- The plea was non-assumpsit. William Woodruff, owner of the fee, mortgaged the premises to Sampson, on the 26th February, 1847. On the 6th March, 1849, Woodruff, by deed duly executed, leased the premises for five years and a half to Moore & Chester.

The action in the Court below was brought by the plaintiffs as assignees of McKeon & Reynolds, to. recover the amount of an assessment laid upon the defendants’ property, by the city of Cincinnati, to pay in part for the grading and macadamizing of the Harrison road, being a public highway within the city.

This was an action brought, by James Flynn in his life time, to recover .damages for an alleged malicious prosecution. During the pendency of the action he died, and his widow, the present plaintiff, took out letters of administration upon his estate, and, suggesting his death, moved to be made.a party plaintiff, and to proceed with the action. It was contended by defendants, that the action abated by death of the plaintiff.

<p>[Reserved by Gholson, J. from Special Term, for the decision of all the Judges.]</p> <p>An action cannot be maintained by a husband, to recover damages for the loss of his wife, or by a father for the loss of service of his child, in consequence of the death of the wife or child, by the carelessness or fault of the agents or servants of a railroad corporation.</p>

The action in this case was brought on a note by the plaintiff, as administrator of F. A. Parrish, against the defendants as makers, of which note the following is a copy: “Cincinnati, February 10th, 1851. “One year after date I promise to pay to F. A. Parrish or order one thousand dollars value received with ten per cent interest per annum. D. H. Mears. (Written on back) Jos. M. Huston.

<p>A. & B., Bankers of Pittsburgh, having dealings with C. & D., hankers of Cincinnati, in the Course of which they transmitted, on several occasions, checks upon New York and New Orleans, for credit, and sundry bills on lime for collection, and at tho same time, drew upon C. & D. for divers sums, whereby tiiey became indebted to C. & D. in a considerable balance. Held: that C. & D. had a lion upon the paper, sent them for collection, in respect of the credit given thereto, for the amount of such balance.</p> <p>And although such hills had been deposited with A. & B. by a customer for collection merely, yet the same being endorsed in blank: Held, that C. & 1). being holders for value, without notice, were not liable to an actiou by tho customer.</p> <p>A banker has a general lien upon any securities of his customers, coming into liis hands in the ordinary course of business, as banker, for auy balance-due him from such customer.</p> <p>When tho owner of a hill endorses it in blank, and hands it to another for collection, he thereby holds out the latter to the world as the owner, and is bound by any credit given in good faith to the latter, in respect of such apparent ownership.</p>

<p>Milne owed Grinnel, and to secure the debt, gave him a chattel mortgage. A judgment creditor of Milne levied on the chattels embraced in the mortgage, and Grinnel sued out a writ of replevin and filed his petition against the Sheriff and judgment creditor, to which Clearwater filed answer and counter-claim. Held,</p> <p>1st, That by suing out the writ of replevin and giving bond, the title to the property passed to the plaintiff in replevin.</p> <p>2d, That the judgment creditor has a right in equity to subject any equitable interest which the mortgagor may have in the property after the mortgage debt is paid, to the satisfaction of his judgment.</p> <p>3d, That, to estimate the value of said equitable interest, the Court will not order a sale of the mortgaged property, hut refer it to a master to ascertain its value, and what will be left after paying the mortgage debt; or hear evidence on the trial as to its value.</p>

<p>[Action for damages, upon an undertaking in attachment-.]</p> <p>1. The defendant in attachment, when a right of action has accrued upon the undertaking filed by plaintiff, under the § 193 of the Code, is not required to ask leave of the Court to obtain the possession of the undertaking, before he can commence his action.</p> <p>2. The action upon the undertaking does not preclude the defendant from instituting another suit for a malicious prosecution.</p> <p>3. It is sufficient to aver in the petition, that the attachment was wrongfully obtained, nor is it necessary to state that the attachment was sued out without probable cause. It must appear, however», that the attachment has been dismissed by the Court, or abandoned by the plaintiff.</p> <p>4. An action can be maintained upon the undertaking, and a recovery had for the damages the defendant may have sustained, though the amount sought to be recovered has not been already ascertained in another suit.</p> <p>5. In an action upon the undertaking, the recovery should be limited to such damages, as the defendant in attachment may have suffered from being deprived of his property, its loss, destruction, or deterioration, with the costs and expenses he has incurred in the defence of the original-suit; for all other damages he must resort to his action on the case.</p>

This was a petition in error to reverse a judgment rendered by Storer, J. at Special Term, in an action brought by the present plaintiff, to recover damages for an alleged trespass committed by the defendants, in forcibly entering upon certain premises, (situated in Cincinnati,) in posses* sion of the plaintiff, and evicting him and his goods therefrom.

The petition of the plaintiff alleged, that “the defendant published the following false, malicious, and defamatory libel concerning the plaintiff,” and then set out the writing claimed to be libellous. This was in the form of a petition by the defendant to the City Council of Cincinnati, imputing charges of misconduct against the plaintiff as a tobacco inspector, and praying for his removal from office.

<p>It is not proper practice for the attorney for plaintiff, to acknowledge service of process for the defendant, and thereby bring him into Court. And the Court in such case will refuse to enter up judgment.</p>

<p>Where stocks are transferred as collateral security, with a power to the creditor to sell the same at private sale, or at auction, he may, when the debt becomes due, dispose of the same, after demand of payment and notice of the time and place of sale to the debtor.</p> <p>The sale must be conducted in perfect good faith ;• the bailee is the trustee of the bailor, .and his conduct will be carefully examined by the Court. If the sale has not been made in the usual mode, but at short notice, or without notice to the debtor it will be declared invalid.</p> <p>A mortgage of personal property transfers the legal title to the mortgagee: the mortgagor holding the possession by the consent of the mortgagee only, who may .at any time reclaim it, unless there is an agreement to the contrary.</p> <p>The transfer of property as a pledge does not convey the legal title; that is still held by the owner; a lien accompanied by possession is the only right vested in the creditor.</p> <p>The measure of damages, when stocks are sold without demand and notice, will be their highest market value, at any time between the day of sale and the commencement of the suit.</p>

<p>In a suit brought by a wife for her separate property, she should sue by her next friend, and not with her husband.</p> <p>If the husband is made party to the suit at all, it should be as defendant, not as plaintiff.</p>

<p>The Superior Court of Cincinnati, has no jurisdiction to enforce a lien upon real estate, without the limits of the city. Service upon the person within the city does not authorize a decree to subject real property, foreclose a mortgage, or enforce a lien upon such property, ii the situs is not within the city.</p> <p>To give jurisdiction over the person, when the procedure is under the §14 of the law organizing this Court, or the §45 of the Code, the party served in the city must be a real party, one who is directly interested in the contract sought to be enforced, one against whom a judgment may be rendered : a mere lien-holder ought not to be regarded as such a party.</p>

<p>C. & F., insolvent partners, obtained a draft from E. & M., bankers, for $2500, which they gave their cheek on R, Same day they sent the draft by mail boat to W. & Co., one of their creditors at New Orleans. The check was presented for payment to R. and dishonored for want of funds of C. & F. to meet it. B. & M. notified O. & F. of the dishonor and demanded the return of their draft. C. & F. gave them an order for the same on W, & Co. E. & M. telegraphed the house on whom the draft was drawn not to pay it, and notified W. & Co. before its arrival at New Orleans, that it was obtained without consideration, and that it would not be paid.. After the draft’s arrival at New Orleans, defendants demanded it of W. &. Co. This was refused; it. was presented for payment, dishonored, and protested, of all which the proper notice was given to E. & M. Suit was brought upon the draft by W. & Co. against E. & M. Held:</p> <p>That as W. & Co. had notice of the fraud used in obtaining the draft, before they gave credit in account with C. & F., they could not recover.</p> <p>That the delivery to the mail, to be transmitted, was not such a delivery as to vest the property in the draft in W. & Co.</p> <p>That no acceptance of the same was to be inferred from such delivery.</p> <p>■ That though the law will presume a delivery and acceptance in certain cases, in favor of natural justice, when goods are delivered to a carrier, &c., yet it never presumes against natural justice and equity.</p>

The plaintiff obtained a judgment against the defendant, Simpson, before a Justice of the Peace, for $50 debt and $2.70 costs.

<p>When a petition is filed claiming a recovery for goods and merchandise sold, the account annexed to the petition, as required by section 117 of the Code, should contain the particulars of the claim, as well as the description and price of the goods : no general statement, by which several distinct claims are grouped together, and the aggregate of the whole value set forth, can be permitted.</p> <p>. The same strictness should be required as would be necessary, under the old practice, in .furnishing a “ bill of particulars,” when demanded by the defendant.</p>

<p>Tie disability as to absent debtors, in Statutes o£ Limitation, applies as well to those who resided in the State, when the contract was made, and have afterwards removed,' as to those who have never resided in the State.</p> <p>A return to the State, where the contract tvas made by the debtor, after the day for its performance has arrived, must he an open and public return; so notorious that creditor may have the opportunity to bring his suit against the debtor. A temporary return, for temporary purposes only, without the knowledge of the creditor or without giving him the means of knowing it, and allowing him also a reasonable opportunity to assert his claim and enforce it by suit if necessary, is not sufficient.</p>

This case came up on a motion to distribute the proceeds' of sale of certain chattel property, made under a former order of the Court. It appeared that in August 1852, Linford Mount, then in possession of the Tiende house, as tenant of the plaintiffs, executed a mortgage upon all the furniture and stock belonging to said house, to the defendants Little & Co., to secure a debt due them of $3,000.

Upon the summons issued in this case, the sheriff endorsed a special deputation to Joseph Bruen, to serve the writ on the defendant.

<p>After seftice in attachment, the Court will not allow the petition to be amended by setting up a new cause of action. ■</p>

This was before the Court upon two motions, first by the defendant to dismiss attachment, as improperly issued against a firm in the firm name, the firm being non-residents ; and the second motion by plaintiffs for leave to amend affidavit and process.

<p>In an action upon a bill of exchange, a claim for statutory damages and costs of protest need not be set forth in the petition, as a separate and distinct canse of action, disconnected from the claim on the bill.</p>

<p>Except in the cases authorized by the Code, each petition should embody in itself, and without reference to any other paper, or exhibit the facts which constitute the cause o£ action.</p>