Volume 1 — Ohio Public Domain Citations

<p> Deeds. </p> <p>The provision of the ordinance requiring deeds to be attested oy two witnesses, repealed from August 1, 1795.</p> <p>Executed between 1st of August, 1795, and 1st of June, 1805, valid, without any subscribing witness, if acknowledged by the grantor..</p> <p>Acknowledgment taken by a judge of the territory, in one of the United States, good.</p>

<p> Chancery. </p> <p>Contract in writing, executed by one party only, stipulating to convey part of certain lands, the other party “being at one-half the expense, in land or otherwise, for procuring a title to the same,” payment of the expenses held a condition precedent, and to be paid as they were incurred, or right perfected.</p> <p>The party omitting to pay the expenses according to agreement, can not, after a lapse of years, be aided in equity against the forfeiture.</p> <p>A proposition to convey, upon receiving the proportion of the expenses, not complied with by immediate payment, no waiver of the forfeiture.</p>

<p>Lands sold upon execution must be valued, and the valuers must be sworn, or the sale is void.</p>

<p>It was an action of debt upon a prison rules bond, and came before the court upon a case stated as follows : The defendant, Carlton, was in custody upon a ca. sa. at the suit of the plaintiff, and executed the bond upon which the suit was brought, for remaining in custody within the rules of the prison — and upon its being approved of by two justices, as required by law, Carlton was admitted the prison rules. Being thus within the prison rules, he made affidavit that he was unable to support himself in prison, a copy of which was served upon the plaintiff’s agent. Carlton claimed that the plaintiff was bound to supply him, not only with provision, but with lodgings +also. The agent proffered to furnish meat and drink; the prisoner insisted upon a bed also, which he frequently called for and was refused. Considering that the refusal of a bed was a refusal to furnish support according to the statute, Carlton went out of the prison rules ? And the action is brought to charge him and his securities.</p>

<p>Special bail not liable where principal dies after'the return of the ca. sa. non est, and before the return of first sai. fa. executed, or second nihil.</p>

This cause was argued before all the judges in Ross county, at December term, 1821, by King and Atkinson for the plaintiff, and-. W. K. Bond for the defendants. The case is fully stated in the-opinion of the court by Judge Burnet.

This was an action of debt upon a prison bounds bond, originally prosecuted in the common pleas of Stark county, and brought before the Supreme Court by appeal.

This cause came before the court upon a motion in arrest of judgment, reserved in Jefferson county, and certified to this court for determination. As two important points were ruled in the previous proceedings, and as the cause is of importance to the two respectable gentlemen who are the parties, and who are now both members of the profession, a brief history of the case is here presented.

This cause was tried before the Supreme Court of Hamilton county, at May term, 1823, and a verdict rendered for the defendant. A motion was made for a new trial and reserved for decision upon a case stated, at the special session in Columbus.

The substance of tbe case made in tbe bill and answers, is this : In May, 1797, George Porter, then being unmarried, purchased of Nicholas Talliaferro, part of an entry for land standing in the name of Talliaferro, and gave his bond for the purchase money, reciting that it was given for the purchase money of the land, and specifying that the land was to be held as a security until the bond was taken up.

This was an action of assumpsit upon a promissory note in the following words: “ Four months after date I promise to pay John S. Dugan or order seventy-five dollars for value received, payable in the currency of this place, if the said Dugan does not take it out in store goods at the same rate.

This case was certified from the supreme court of Muskingum county. It was an action of trespass, and was tried by a jury upon the plea of not guilty, who found a verdict for the defendant. The plaintiff moved to have the verdict set aside as against law.

The bill was brought by the assignee of the vendor of a tract of land, against the purchaser, to obtain a decree for the balance of the purchase money, or a rescinding of the contract. The facts were these: Ludwick Wolfley, James Hunter, John Hunter, Morris Rees, Solomon Rees, Thomas Rees, and Noah Zane were proprietors in unequal proportions of sec. 11, T. 14, R. 19, situate in Fairfield county.

This was an action of covenant reserved and certified for decision from the Supreme Court in Hamilton county.

Action of trespass with force and arms, for breaking and entering plaintiff’s close, digging up stone, laying on timber, etc., commenced in the comnfcm pleas of Portage county. Damages laid, four hundred dollars. Yerdict and judgment in the common pleas, and an appeal to the Supreme Court. Yerdict in the Supreme Court for the plaintiff — damages twenty-five cents. The plaintiff claimed judgment for the damages and costs.

George P. Cotton prosecuted ejectments against Samuel G. Martin, which were finally tried in-the supreme court of Clinton county. Martin set up title in himself, but Cotton recovered. Application was then made by Martin for the appointment of commissioners to value his improvements, under the provisions of the law for the relief of occupying claimants of land:' This application was sustained.

Covenant was brought upon a writing under seal for the payment of money. The declaration was in the usual form. The defendant pleaded in bar that the note was given for a sum of money, the payment of which was secured by a mortgage upon lands, and that the plaintiff had prosecuted a scire facias upon the mortgage, under the statute, and obtained a judgment thereon. To this plea the plaintiff demurred.

This case came before the court upon a bill of review, and was reserved for decision here, in Adams county. The material facts were as follows: Robert Mack prosecuted his bill in equity against Kerr and others, to obtain from them the legal title to three hundred acres of land, alleged to be covered by his elder entry, No. 4,834, but for which the defendants had obtained a patent upon a junior entry.

This was an action of debt upon a bond. The declaration was in the usual form; the defendants craved oyer and demurred. The condition of the bond is as follows: “ Whereas, Thomas Wood-year hath this day obtained our writs of error and supersedeas to a judgment of the court of common pleas for Eoss county, obtained by John Gardener, plaintiff, against the said Thomas Woodyear, defendant, April term, 1819.

Morris brought an action in the supreme court of Hamilton county,, upon a note in writing, in the following words: “ On the first day of February, in the year 1822,1 promise to pay James C. Morris, or order (in current bank notes of the city of Cincinnati), two thousand dollars, with interest, for value received. December 25, 1819.” This case was put to trial on the general issue.

This was a bill in chancery, prosecuted in the common pleas of ■ Greene county, and carried into the Supreme Court by appeal, 'where it was decided at May term, 1822, by Judges Pease and Bur-net. The case, so far as it involved the points decided, is stated fully in the opinion of the court by Judge Burnet, and need not be .repeated.

<p>Bill in equity to foreclose the equity of redemption in mortgaged premises may be sustained, notwithstanding the statutory legal remedy by scire facias.</p> <p>Upon such hill the mortgaged premises must he valued, agreeably to the provisions of the law regulating judgments and executions, and the court will direct a sale, and not a foreclosure, if two-thirds of the valuation amounts to more than the debt.</p> <p>Such sale will he directed on the same principles that real estate is sold, under the act regulating judgments and executions.</p>

This cause was decided by Judges Pease, Hitchcock, and Bur-net, in Ross county, November, 1822. The whole case is fully stated in the opinion of the court, by Judge Burnet.

This was an action of ejectment, tried before the Supreme Court, in Athens county, 1823, upon an appeal by the defendant from a verdict and judgment rendered against him in the common pleas. The facts of the case were these: The defendant, and one Timothy Wilkins, under whom the lessor of the plaintiff derived title, were owners of leases for ninety-nine years, renewable forever, of part of the college lands, in Athens county.

This case come before the Supreme Court, on a writ of error, at the May term, 1824, in the county of Jackson, Judges Hitchcock and Burnet being on the bench. . The facts were these: The defendant in error made a parol contract with one E. Shearer, that he (Shearer) should clear and fence a certain lot of ground, in consideration of which he should be permitted to raise on the premises a crop of corn.

This cause came before Judges Pease and Burnet, at tbe August term, 1824, in Ashtabula county. The facts alleged in the bill were these: That one John Lay, being owner and proprietor, and vested with the legal title to a certain tract of land in the county of Ashtabula, contracted to sell it to one Harman.

This cause came before Judges Pease and Burnet, at the August term, 1824, in the county of Ashtabula. The plaintiff describes himself as treasurer of the State of Connecticut, and successor in office to Andrew Kingsbury, late treasurer of that state. The declaration contains two counts.

This case was decided in May, 1824, in the county of Gallia, by Judges Hitchcock and Burnet. The facts were these: In December, 1821, McMurty executed a sealed bill to William Campbell, for sixty pounds, of the value of two hundred dollars. William Campbell assigned the bill to Matthew Campbell, the defendant in error, who commenced an action of debt in his own name, *as-assignee, under the statute.

This was an action of ejectment for a house and lot in the town of Kewark, county of Licking, and was tried before Judges Hitchcock and Burnet, at the September term, 1824.

This cause came before Judges Sherman and Burnet at the July term, 1824, in Butler county, on a writ of error. The error relied on was that no regular judgment had been entered in the court of common pleas. The facts of the case were these: The cause having been called in its order, in the common pleas, the defendants were defaulted, and judgment ordered to be entered against them.

This, cause came before Judges Burnet and Sherman, in the county of Clark, at the July term, 1824. It was an action of debt brought on an administrator’s bond. From the record it appeared that the parties had submitted the cause to the court of common pleas, on an agreed case. The court referred it to a special commissioner, who reported a balance due from and in the hands of the defendant as administrator. Exceptions were filed to the report, which were overruled.

This cause came before Judges Sherman and Burnet, on a writ of error, at the July term, 1824, in Montgomery county. It appeared from the record that James L. Miller had been appointed collector for the county of Montgomery, and had executed a bond, payable to the treasurer of Montgomery, conditioned for the faithful performance of his duty.

<p> Order for Money on Regimental Paymaster. </p> <p>A colonel is not liable upon orders drawn on a regimental paymaster.</p>

<p>Justice of Peace — Cost on Appeal.</p> <p>An appellant from the judgment of a justice is not bound to pay the costs ’ before he can demand transeript.</p> <p>A justice-is liable to action for refusing transcript.</p>

This case came before the court, consisting of Judges Hitch.•cock and Burnet, at the May term, 1824, in Gallia county. It appeared from the record, that Dawson recovered these judgmerits, against Joseph Fletcher, in the Supreme Court, which were regularly certified to the common pleas, with a special mandate to carry them into execution.

This cause came before Judges Hitchcock and Burnet, at the September term, 1824, in Knox county. The lessor of the plaintiff claimed title under a sheriff’s deed, made on a sale of the premises in question, by virtue of judgments and executions against Samuel H. Smith.

These were several bills in chancery, filed in Licking county, and adjourned for decision at this court. The complainants severally were.in possession of separate parcels of the fourth section, first township, thirteenth range of United States military land, situate in Licking county. This section or quarter township contained four thousand acres.

<p>Vendor's Lien — Execution against Lands on Judgment of Justice.</p> <p>'The assignee of a note given for purchase money of land has no lien.</p> <p>Equity is not subject to lien of judgment.</p> <p>Award of execution against land upon a justice’s judgment is no lien before levy.</p>

This was a suit in chancery reserved for decision here, in Cuyahoga county. It was in the nature of a quia timet bill, and its object was to disembarrass certain lands of a title set up to them by the defendants, Truman Starr and Giles Griswold. The complainant derived title under certain proceedings in ¡attachment prosecuted by him against Ephraim and William Starr.

This was an action of covenant, founded upon an article of agreement executed on the 26th day of March, 1818, for the sale of a tract of land particularly described and upon particular terms.

This was an action of assumpsit. The first count in the declaration stated in substance that, in consideration that the plaintiff, at the request of the defendant, had before that time leased and let to the defendant a certain house and lots of ground in the town-of Pike, for the term of one year, together with the ferry and boat hear said town, the defendant promised to take proper care of the premises,' to attend the ferry, and pay the plaintiff as rent therefor a large…

This was an action of assumpsit. The declaration contained the common money counts, in support of which the plaintiff offered the deposition of Joseph Ronck, which stated, in substance, that deponent had sold to defendants eight lots of ground, for which they owed him $1,200 ; that the defendants were to pay the money secured by a mortgage on the premises, previously given by deponent to John T. Barr, for about $800.

This was an action of debt brought upon a sealed bill, and the •case made by the pleadings and submitted for the decision of the court was as follows: The defendant, Harness, being indebted to the plaintiff a sum of money, the exact amount of which was not ascertained, made his seal and wrote his name in connection with it, upon a blank sheet of paper, and authorized the plaintiff to write over it a note for the sum found to be due, and the subscribing witness attested this…

<p>Final Decree — Notice.</p> <p>Sinai decree in equity is not notice to a subsequent purchaser.</p>

This case came before the court upon a writ of certiorari to bring up certain proceedings before the common pleas of Pickaway county. An action of debt was brought in the name of the commissioners against Botkin, Reliar, and McNeal, securities in a sheriff’s bond. At April term, 1820, judgment was rendered for the plaintiff. Instead of directing execution to issue for the sum due, the judgment was worded to be discharged by the payment of so much money.

This was a bill in chancery, in which the complainant charged that on the 20th June, 1820, he gave his note to the Bank of Cincinnati, payable in sixty days, upon which note a suit was brought by the bank, and a judgment recovered. That this judgment was afterward assigned to the Bank of the United States. That execution was sued out upon it and placed in the hands of SheriffRuffin to be executed.

<p>Seizin— Warranty.</p> <p>The act concerning actions for covenants real does not extend to a deed containing a covenant of seizin as well as of warranty.</p> <p>A declaration on covenant of warranty must aver eviction.</p>

This was an action of ejectment, tried in the supreme court of Hamilton county. The case was as follows: At June term of the supreme court in Hamilton county, in the year 1821, a judgment was recovered by the treasurer of state .against the president and directors of the Miami Exporting Company for $9,618.27.

This was an action of ejectment, and came before the court upon a motion for a new trial, made by the plaintiff, and reserved in the county of Ross. As the opinion and decision of the court is confined altogether to the title of the defendant, so much only of the statement of the case, and the argument of the counsel, as relate to that title, are presented. _ The suit was brought to recover a lot in the town of Chillicothe.

This was an action of assumpsit. The declaration was by the indorsee of a promissory note against his. immediate indorser; it contained also the common money counts. The cause was tried in the supreme court of Ross county, and a verdict given for the defendant. A motion was made for a new trial, and the decision of the motion referred to this court for decision.

<p>Condition— Covenant.</p> <p>A declaration in a covenant, founded on the condition of a bond containing: no express agreement, is bad.</p>

This case was reserved for decision here in the county of Knox. It is charged in the bill, that the complainant, Wilkins, being owner of a tract of land in the county of Knox, on the 11th of May, 1816, contracted to sell it to Thomas Cisna, since deceased.

This case came up from Greene county. The object of the bill was to obtain relief against a judgment at law on certain sealed notes made in 1816. The bill charged that on the 2d of May, 1816, J. Hunter agreed to purchase of Ekellis Willhite five lots in the town of Pittsburg, in the then territory of Indiana.

This was a scire facias, brought before the supreme court in Gallia county, at the May term, 1824, by appeal from the common pleas. The facts of the case were these: At the August term, 1813, Samuel Green Arnold, obtained judgment against Sylvester Fuller, for $468.95 damages, and cost of suit. On the 8th July, 1814, an execution issued to David Ridgeway, sheriff of Gallia, which was returned no goods.

<p>Statute of Frauds — Creditors—Feeds.</p> <p>A voluntary conveyance, made without consideration, and for the purpose of , defrauding creditors, is not void, except against creditors or subsequent purchasers.</p>

This action was founded upon two promissory notes, in which, the defendants’ testator promised at a day certain to pay a sum of money to the intestate of the plaintiffs.

<p>This was an action on the case, in which the jury found a verdict for the plaintiff, upon the first count in the declaration, and assessed his damages to $300. A motion was made to arrest the judgment, and its determination adjourned to this court, by the Supreme Court sitting in Hamilton county.</p> <p>The first count in the declaration states, in substance, that on the 5th May, 1818, one Nathaniel Pope was indebted to the plaintiff a pleasure carriage in part, and directed and authorized the plaintiff to sell the same to any person for a sum not less than $300, and to receive and apply the moneys to the plaintiff’s own use. That on the 1st May, 1822, J. W. Pope, the defendant, in consideration, that the plaintiff would deliver to him the carriage, promised to pay him $300, when thereto afterward requested; and avers a delivery confiding in this promise.</p>

This was a bill in chancery, prosecuted by the complainants to obtain a decree quieting their possession of section 35, township 4 east, 2d entire range in Symmes’ purchase, and to enjoin perpetually execution upon a judgment in ejectment, recovered against-them in the supreme court of Warren county, from which court the cause was adjourned for decision here.

<p>Voluntary Undertaking— Variance — Damages.</p> <p>A plaintiff can not support his action by proof contradicting the averments in his own declaration.</p> <p>The day may be made material by averments.</p> <p>Damages must be founded upon evidence.</p>

This was a writ of error to the common pleas of Brown county. The case was as follows: Baylor, the defendant in error, sold a tract of land to the plaintiff in error, and retained the title in his own hands, until the purchase money should be paid. The purchasers failing to pay, he prosecuted a suit in equity to have the land sold for the purchase money due. The court decreed a sale, and that Baylor, the vendor, should convey the legal title to the purchaser under such sale.

<p>This was a bill in chancery, prosecuted by the complainant against Armstrong and Grandin, survivors of John H. Piatt, deceased, his heirs and administrators, and the administrators of A. H. Ernst, deceased. While the suit was pending in the common pleas, the subject of it was adjusted between the parties; but they could not agree who should pay the costs. They thereupon entered into a written agreement, to submit the question of costs to be decided by the court of common pleas, as though no adjustment -had been made, and upon hearing, the court of common pleas decreed costs against the defendants. From this decree the defendants *appealed, but gave no bond, the administrators of Piatt and Ernst contending that they had a right to appeal, under the law, without giving security. A motion was made in the Supreme Court to quash the appeal, and the decision of this motion as well as on the final hearing of the case was adjourned to this court.</p>

In the year 1792, the State of Connecticut, then claiming certain lands situate within that tract of country in the now State of Ohio called the Connecticut Western Reserve, granted 500,000 acres, by particular description, to certain individuals to remunerate them for suffering during the revolutionary war. This tract of country received the name of the fire lands. At the time of this grant the Indian title was not extinguished.

<p>Performance of Contract — Rescission of Contract.</p> <p>A complainant in chancery asking to set up a contract different from the-written one, upon which judgment was had at law, must show an offer to perform the contract he claims to establish at the time it ought to have been performed, and also a readiness still to perform it.</p> <p>An obligation to pay in the notes of a specific bank, must be paid in the notes of that bank, or their numerical value in money. Their price in money can not be substituted.</p> <p>A contract is not rescinded upon stale objections to the vendor’s title, the vendee remaining in undisturbed possession.</p>

This was a bill in chancery, adjourned here from Pickaway county. The facts, material to be reported, were as follows: In the year 1816 the complainant and others indorsed a note for the defendant, W. Rogers, which was discounted by the Bank of Chillicothe. It was not paid, and separate suits were brought, and separate judgments rendered. Part of the amount was made upon-execution against W. Rogers, and part against the other indorsers.

<p>The question in this case arose upon a motion to quash an appeal from the court of common pleas of Perry county to the Supreme Court. It came up on a bill of exceptions, and was referred, for decision here.</p> <p>Before the meeting of the court of common pleas the plaintiff notified the defendant that he did not propose to try the cause, but meant to suffer a nonsuit and appeal. Accordingly, upon calling the cause in the common pleas, the -plaintiff was nonsuit. Afterward a suggestion being started whether an appeal would lie from a voluntary nonsuit, the plaintiff, during the same term, moved to set the nonsuit aside, which was done. He then proposed to submit the cause to the court, to which the defendant objected, but the court overruled his objection, and proceeded to hear the cause, the plaintiff offering no proof. Judgment was given for the defendant, from which the plaintiff appealed.</p>

. This was a bill in chancery brought by the complainant, the widow of William Greene, deceased, to recover dower in certain lots in the city of Cincinnati. The facts in the case were agreed by the parties to be as follows On the 25th of May, 1818, William Greene, deceased, the husband of the complainant, entered into partnership with the defendants to erect and carry on a brass and iron foundry in Cincinnati.