Volume 1 — Ohio Chancery Reports

Ejectment. The lessor of the plaintiff and the defendant, by written contract, dated the 16th February, 1829, agreed to exchange alot in Annapolis, possessed by Maynard, for land in Harrison county, possessed by Cable. Each was to take possession on the 1st of April then following, and each to make a deed to the other, in six months.

Indictment for the murder of James Turner, certified from the Court of Common Pleas. The indictment contained two counts. 1st. For murder. 2d. For manslaughter. In both counts, the death was charged to have been occasioned by a wound in the throat and neck, by a knife. When the prisoner was arraigned, the Court, at his instance, assigned G. Swan and T. Ewing, as counsel for him. Flournoy, who stated that he had been retained by the prisoner, relinquishing His engagement.

<p>Divorce — kink—wilful absence — confinement to one man.</p> <p>Where a wife who leaves her husband shortly after marriage,declaring she will not be confined to one man9 and continues absent for three years, it is cause for divorce.</p>

<p>Divorce. Wilful absence three years.</p>

<p>Divorce. Cause, adultery with John Oaks, William Delany, and others.</p>

Thomson declared in the Common Pleas, on a note payable to one Strand or bearer, for fifty dollars, in two years, with interest, assigned to him.

The plaintiff, as supervisor of roads, brought suit in the Common Pleas to recover a penalty, for obstructing the road; the court gave judgment against him, and for costs.

Error. Mason sued Crane in the Common Pleas in trespass, for taking and carrying away sixteen muskrat traps, &c. Crane pleaded the general issue, and gave notice under the statute, that one Chapman… Held: and to whom he paid rent before the act was committed, and that Crane was his servant, and acted under his command, &c. which being objected to, was ruled out by the court. It is claimed the court erred in ruling out the evidence, and for this error the writ is brought.

Error. Worden sued Smith for trespass, in. taking, &c. a horse. The plea was not guilty, with notice, that the horse belonged to one Beatty, and that two executions were issued in his (Smith’s) favor, against Beatty, on which he levied upon, and sold the horse. On trial, the plaintiff proved, that, in December, 1830, he purchased of one Magee, two horses, and delivered them to Beatty to use during the winter, and took from Beatty a yoke of oxen to use instead of the horses.

Error. Palmer sued Foote in the court below, in assumpsit for work, and money lent, &c. Pleas as to all but one dollar fifty cents, non assumpsit, and as to that, a tender before and tout temp pris. Replication that he did not tender.

Error. Bassett brought trover against Baker, for a pair of oxen. The only conversion laid in the declaration, was a general refusal to deliver, like a general refusal to pay in assumpsit. To the plea of not guilty, was annexed a notice, that the property in the oxen was in one Andrews, who had the possession, and the taking by the defendant was on an execution against Andrews.

In Chancery. The complainant’s intestate, in his life time, purchased a tract of land and paid for it, and afterwards took a conveyance to his wife. He then contracted debts, and died without sufficient assets to pay them. The other assets being exhausted, this bill is filed against the widow and heirs to sell the land conveyed to the wife, which is still held by her, to pay the debts of the intestate.

Error. The plaintiff sued Lockwood for a demand of his intestate. On trial, he was non suited, and a judgment was rendered against him for costs, to be levied, &c. The error' complained of, is the rendering judgment for costs.

Error. Preston brought debt in the court below on a note dated the 15th May, 1818, payable on demand, with interest, and for money had and received. Gordon pleaded nil debet, on which issue was joined. He also pleaded several special pleas, viz: 1. That the contract was made in New Hampshire, and accrued to the plaintiff in that state six years before the 29th June, 1825, and is barred by the act of that state of 15th January, 1791. 2.

<p>Witness — heir not for estate — trover—conversion—attorney.</p> <p>An heir entitled to a distributive share of the estate, is incompetent as a witness for the administrator, unless the estate is insolvent.</p> <p>Where property has been placed in the hands of the defendant, by those having the legal custody of it, trover cannot be maintained, without proof of actual conversion, or a demand and refusal.</p> <p>If evidence has been omitted by mistake, the Supreme Court, to avoid a new suit or new trial, will allow it to be introduced after the evidence is closed.</p> <p>An attorney, to whom a portion of the recovery is assigned, is an incompetent witness for the claim.</p>

Trespass and false imprisonment. Plea not guilty, with notice that the arrest and imprisonment was upon executions on two judgments against Pickard, one in favor of Bills and the other in favor of Knapp. It appeared in evidence that executions had been issued on the judgments upon which the body was arrested, committed, and then discharged by order of the plaintiffs in the execution.

<p>Religious test, or belief — witness—competency;</p> <p>Qitere — If one in Ohio who disbelieves in a deity, in a future state of rewards and punishments^ and in the moral government of the Supreme Being in this world, is a competent witness'? One believing in the existence of God, who sees him in all created nature, and who believes he is as much obliged to tell truth without oath as with, and in future rewards and punishments in this life, and that if he does wrong his conscience will condeiiin him, is competent.</p>

Error. Crane in his lifetime went security for Poorman in Pennsylvania of record. Poorman failed to pay the money and judgment was had against him in Pennsylvania. After this the courthouse and record of the judgment were burned up.

Error. The suit below was assumpsit for work, &c. Plea, non assumpsit. 2. That plaintiff, by his guardian, entered into an arbitration bond with the defendant of the same controversy, which was submitted and an award made for him.

Debt on a judgment rendered in New York, in January, 1820. Pleas. 1. That by the law of New York, in any action upon the penalty of a bond, where there is a condition annexed, the plaintiff may assign breaches and assess damages — that the bond on which the judgment was had, was conditioned to pay $1000, and no breaches were assigned nor damages assessed. 2.

Assumpsit for goods sold, &c. money paid, and had, and received. Plea, non assumpsit. The plaintiff read a receipt, signed by the defendant, for 254 kegs of tobacco, subject to the plaintiff's order — of which seven kegs were endorsed as returned; and he proved that in an attempt at a settlement, it was agreed that the tobacco was limited by the plaintiff- to ten or twelve and a half cents per lb.

' Assumpsit against a physician for not delivering the plaintiff’s wife of a child, according to his retainer to attend and deliver. Plea non assumpsit.

The plaintiff declared in case, that the general assembly of Ohio, by resolution, directed the defendants, as canal commissioners, to cause to be paid to the plaintiff $5000, the amount of an award in his favor, by Bates, engineer, for damages sustained by him on a contract touching section No. 1, on the Ohio canal — and averred that he had called on the defendants for the money and that they wrongfully refused to pay. Plea not guilty.

Error. There were several errors complained of, which were set forth in a bill of exceptions, returned with the record. One was, that the judgment was for a greater sum than was demanded in the writ and declaration. •

Replevin for a bay mare. Plea, property in the defendant, and issue. It appeared in evidence, that the mare in question had been placed in the hands of a stakeholder, with another horse, and a note for twenty dollars, as a bet upon a horse race, to be delivered to the winner, upon the decision of judges, chosen by the parties. The race was run, judges chosen, who adjudged the defendant to have Won, and the mare was delivered accordingly.

Bill in Chancery, to enforce a lien upon land sold for the payment of notes, which were transferred by the vender to the complainant, in payment of a debt. The notes were not negotiable.

Slander, on a charge of perjury. Plea not guilty, and notice of justification that the words are true. It appeared in evidence, that the plaintiff was a candidate for sheriff, and the defendant went round the county to prevent his election, and frequently accused him of perjury and swearing falsely. Much evidence was introduced, to prove that the plaintiff had sworn falsely, in a controversy between Seely, Morly, & Co. and the Geauga Iron Co. before a justice of the peace.

Error, to the Common Pleas. The plaintiff below brought trover for property he purchased of one Wheelock, and the defendants claimed under a subsequent sale by Wheelock, and a delivery. During the trial, it was offered to prove, that the plaintiffs, in their purchase, gave no credit on their books, which was objected to and overruled, because the books were not present.

Trover, for three thousand tons of iron ore. Plea not guilty. The plaintiff is a non resident holder of sundry tracts of land, on which is iron ore: the defendants have a furnace in operation, and bought large quantities of ore from various persons for several years and paid for it as delivered. They had knowledge that considerable quantity of the ore had been raised from the plaintiff’s land, but continued to purchase.

Palmer was indicted for an assault and battery upon Huntoon. On trial it appeared, that when the assault and battery was committed, Huntoon was a supervisor of highways, and was upon Palmer’s land cutting timber to repair a bridge, and the assault., &c. was to prevent him. Palmer offered a writ of injunction from chancery, enjoining Huntoon from entering on the land to cut timber.

Assumpsit. The 1st count on a note, dated 26th April, 1831, for $1647 30, in assorted castings and pig iron, on demand; 2d, on a receipt of the same date and tenor; 3d, on a special assumpsit; 4th, the common counts. Plea non assumpsit. On trial, the plaintiff offered a receipt, dated 26th April, 1831,for $1647 30, to be paid in iron, &c. as per contract with Root and Wheeler, of the 30th September, 1830, and the contract between Root and Wheeler.

Ejectment for fifty-one acres of land in tract 1, Madison. The plaintiff offered a deed from Caleb Strong for the land claimed, to then: ancestor, and proved his death and their heirship; and rested. moved for a non suit, because there was no evidence of a prior possession in Strong; no account of the prior title, or of Strong’s right to convey. thought it was not necessary to go back of the 'deed to show title, and the consent rule admitted the defendant’s possession.…

In Chancery. The complainant alleges that he is the owner, and is in possession of a lot of land, which the defendant claims to belong to another person, and has levied upon the property of another, and is about to sell as such, which will embarrass his title. - He prays an injunction. The defendant admits the levy and the complainant’s possession, hut claims that the conveyance to the complainant is fraudulent.

Chancery. Appealed from the Common Pleas. It appeared by the entries certified from the Common Pleas under the law, that while the cause was in that Court a demurrer had been put in by McCracken and overruled. Leave to answer was then applied for and granted, the answer put in and a decree rendered upon the hearing, but no special leave appeared to have been given to withdraw the demurrer.

<p>Insurance — other policies — notice—sixth clause of Ohio Insurance policy.</p> <p>Where there is a clause in the policy of insurance, that if other insurance is effected on the same risk, the insured would give notice to be endorsed on the policy, he must prove that he gave such notice of subsequent policies, or he cannot recover.</p> <p>The sixth clause in the policy of the Ohio Insurance Company construed.</p>

Rule to show cause why a mandamus should not issue compelling the trustees to distribute to the Universal Church, a proportion of the proceeds of the religious section 29, in township 6. Two of the trustees now appear and show cause. This was objected to, and leave asked to controvert the cause by counter affidavits. A motion was also made for a mandamus. cited 16 John. R. 63; 4 Burrow 2045; 5 T. R. 66; 5 Com.