Volume 1 — Ohio State Reports, New Series

This is a bill of review, filed by William P. Creed and others, praying for the reversal of a decree of the Supreme Court of Fair-field county, made in the year 1846, against them, in favor of the Lancaster Bank.

<p>Error to the Court of Common Pleas of Boss county.</p> <p>The plaintiff in error was indicted in the Common Pleas for selling spirituous liquor on the 2d day of May, 1851, by less quantity than one quart, under-the provisions of the act of the General Assembly entitled “ an act to restrain the sale of spirituous liquors,” passed March 12th, 1851, 49 Ohio Laws, 87; Curwen’s Bev. Stat., chap. 1073—which by its terms did not take effect until the 1st day of May of the same year.</p> <p>To this indictment, the plaintiff in error put in a special plea, setting forth, that before the enactment of the said law, he had obtained from the Court of Common Pleas of the county, under the authority of the act granting licenses and regulating taverns, passed June 1st, 1831, a license authorizing him to keep a tavern, at his house in Ohillicothe, with the ^privilege of retailing spirituous liquors for one year from the 13th day of October, 1850 ; that the license had been issued, and that he had paid therefor fifteen dollars into the county treasury; that the sale of liquor alleged in the indictment was made by him at his tavern while said license was in full force, and claiming that he was exempt from the provisions of the act of 1851 until the expiration of his license.</p> <p>To this plea the state demurred. The court below sustained the demurrer, and thereupon, in the language of the record, “ the defendant not asking leave to plead de novo, but abiding by his said plea,” the court gave judgment and assessed a fine, together with the costs of prosecution, upon the plaintiff in error. And it is to reverse this judgment that this writ is prosecuted.</p>

<p>Where an act of a party is admissible in evidence, his declarations, at the time, explanatory of that act, are also admissible, as a part of the res gestas.</p> <p>Where A’s promise to marry B. is shown, evidence that B. had received A’s attentions for four years, and prepared for marriage by procuring bedding, etc., and of B’s statements to her sister, at the time, explanatory of such acts of preparation, is competent to show her acceptance of such promise.</p> <p>Declarations of the party, made after suit brought, or after a rupture between the parties, would be clearly inadmissible, but it will not be presumed that the court below admitted such declarations, unless it appear from the bill of exceptions.</p>

<p>The right to determine when a court-house, jail, and public offices shall be erected by a county, is vested in. its commissioners. They must provide a court-room, jail, and offices; hut they need not be buildings erected expressly for the purpose.</p> <p>The act of January 28, 1851, does not limit the discretion of the commissioners of Hamilton county in these particulars.</p> <p>Hor are they deprived of their discretion by the contract made by and between them and the Messrs. Cook for the building of a particular court-house and jail.</p> <p>A lawful discretion vested in an individual, officer, or corporation, can not be destroyed or limited by the writ of mandamus.</p> <p>It is equally well settled that, before the writ will be issued to either, a plain dereliction of duty must be established.</p>

Tins was an action of debt, tried in the Supreme Court, on the circuit, in the county of Wayne, at the September term, 1850, when a verdict was rendered for the plaintiff, and was reserved to the court in bank on a motion made by the defendants for a new trial. The facts in the case sufficiently appear in the opinion of the court.

<p>:I;This is a bill in chancery reserved in Lucas county by the late Supreme Court for decision in bank.</p>

<p>Mere difference of opinion as to the weight of evidence given in the court below will not justify the reversal of a decree upon a bill of review.</p> <p>The acts and contracts of persons of weak understanding, and who are thereby liable to imposition, will be held void in courts of equity, if the nature of the act or contract justify the conclusion either that the party, through undue influence, has not exercised a deliberate judgment, or has been imposed upon, circumvented, or overcome by cunning or artifice. Where there is imbecility, or weakness of mind, arising from old age, sickness, intemperance, or other cause, and inadequacy of consideration; or where there is weakness of mind, and circumstances of undue influence and advantage ; in either case, a contract may be set aside in equity. Buckley v. Gilmore, 12 Ohio, 75, approved.</p>

<p>The act of January 17, 1846, the “more effectually to prevent gambling,” does not repeal, altar or modify the act of March 12,1831, “ for the prevention of gaming,” but comes in aid of the latter to suppress gambling houses, and to punish severely the keeper of any gaming device or establishment.</p> <p>The voluntary permission of a single act of gaming in a house or place not kept “to be used or occupied for gambling,” does not come within the act of January 17, 1846, hut is provided for by the 9th section of the act of March 12, 1831.</p> <p>An indictment under said section of said last named act, is defective, unless it set forth the names of the person or persons permitted by the accused to play, or an averment that their names are unknown.</p> <p>Although, on an indictment containing several counts, some of which are defective, and one of which is good, a general verdict of guilty will he held to apply to the good count, and support the indictment, yet such general verdict will not authorize separate penalties upon separate counts.</p>

This is a writ of error to the Common Pleas of Clark county, reserved by the late Supreme Court for decision in bank. At October term, 1850, of the Common Pleas, the plaintiff in error was indicted for the murder of James E. Dotey. The indictment charged murder in the second degree. At a special term held in November following, he was tried, found guilty as charged, and sentenced. The sentence was reversed by the court in bank at its December term, 1850 (19 Ohio, 302).

<p>It is the right and duty of the judicial tribunals to determine whether a legislative act drawn in question in a suit pending before them is opposed to the constitution of the United States, or of this state, and if so found, to treat it as a nullity.</p> <p>In such case the presumption is always in favor of the validity of the law; and it is only when manifest assumption of authority and a clear incompatibility between the constitution and the law appear, that the judicial power will refuse to execute it.</p> <p>The general assembly, like the other departments of government, exersises. only delegated authority; and any act passed by it not falling fairly within the scope of “legislative authority,” is as clearly void as though expressly prohibited.</p> <p>The power of the general assembly to pass laws can not be delegated by them to any other body, or to the people.</p> <p>The act of March 1, 1851, to authorize the commissioners of said county to subscribe to the capital stock of the relator, does not delegate legislative power or contravene the constitution of 1802, in providing that the subscription shall not be made until the assent of a majority of the electors of the county (except two townships) is first obtained at an election held for that purpose.</p> <p>It was competent for the legislature under that constitution to construct works of internal improvement on behalf of the state, or to aid in their construction by subscribing to the capital stock of corporations created for that purpose, and to levy taxes to raise the means; and by an exercise of the same power to authorize a county to subscribe to a work of that character running through or into such county, and to levy a tax to pay the subscription.</p> <p>Such a tax, when thus authorized, is not beyond the legitimate scope of local municipal taxation ; nor is it opposed to art. 8, sec. i, of the constitution, declaring that “private property ought and shall ever be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner.”</p> <p>*The taxing power for such purposes, under that instrument, was an undeniable legislative function, to be exercised at the discretion of the general assembly, and subject to no limitation but that against poll taxes; and while this court is unanimous in the opinion that such laws involve a gross abuse of that power, it possesses no authority to control that discretion, or to correct such abuses by the exercise of a veto power on such legislation.</p> <p>A majority of the electors of Clinton county having decided in favor of the subscription, and the same having actually been made before the adoption of the present constitution ; and the commissioners having elected, in pursuance of said act, to deliver the bonds of the county to the company in payment of the subscription, and having become bound to do so, and afterward refusing upon demand to deliver them, and showing no cause for such refusal, except that the act aforesaid was of doubtful constitutionality; a writ of mandamus is the proper remedy to enforce the delivery.</p> <p>This writ lies in all cases where the relator has a clear legal right to the per-</p> <p>formance of some official or corporate act by a public officer or corporation, and no other adequate, specific remedy.</p>

This case is essentially similar to that of The Cincinnati, Wilmington and Zanesville Eailroad Co. v. The Comm’rs of Clinton Co., and both causes were argued ^together. The only point made in the defense was that the law authorizing the subscription conflicted with the constitution of 1802. If there was no such conflict, the respondents were content that a peremptory mandamus should be awarded.

• Bill of review reserved in Licking county. The controversy arises between the parties as to the title to one hundred and sixty-nine acres of land in the county of Licking. *Thislandwas purchased from the United States in 1816. The price was §839, of which §209 were paid in cash; the residue, in accordance with the law then in force, was to be paid in installments. A certificate of the entry and payment of the first installment was obtained by the person making the entry.

This is a bill of review, reserved in the district court in Athens county, for decision in the supreme court. The bill seeks the reversal of a decree rendered by the late supreme court in bank, at the December term, 1847, «dismissing the original bill of the complainant, reported in 16 Ohio, 59.

<p>Under the act of March 16, 1838, Swan’s Statutes, 268, a mortgage lien is perfected by delivering the mortgage for record to the recorder of the proper county^</p> <p>Such lien is not defeated, as to a subsequent incumbrancer with notice in fact, by a mistake of the recorder in making the record.</p>

<p>This is a writ of certiorari to tbe common pleas of Trumbull. reserved in tbe district court in that county.</p> <p>The action below was ejectment. The facts appear by bills of exception taken during the progress of the cause.</p> <p>In 1814 the lands of William Chapman, deceased, were divided on a proceeding for partition in the common pleas of Trumbull, and twenty acres, the tract described in the demise, were aparted in severalty to his daughter Mary, then intermarried with Elijah Spelman. Shortly after this partition Mary Spelman died, leaving issue of the marriage and her husband surviving her.</p> <p>In June, 1823, Elijah Spelman, seized as tenant by the curtesy, conveyed the tract above mentioned to David Chapman, the brother of his deceased wife, by a quitclaim deed.</p> <p>On the 29th of April, 1824, David Chapman conveyed the land to Erastus Chapman, the now defendant, by deed with covenants of general warranty. The first of these deeds, after the description of the land by the abuttals, contains this clause : “ being the same piece of land which was ^distributed from the estate [120 of William Chapman, sen., late of Yernon, deceased, to Mary Spelman.”</p> <p>There was no evidence that either of the Chapmans had notice that Spelman only had a life estate, and David Chapman testified that when he received his deed from Spelman, and when he conveyed to defendant, he supposed that the'estate was a fee simple:</p> <p>Elijah Spelman died in 1846, and the plaintiff’s lessor, as grantee of the heirs of Mary Spelman, brought his ejectment against Erastus Chapman. After verdict against him, the defendant claimed the benefit of the act for the relief of occupying claimants, which was allowed by the court, and a bill of exceptions taken by the plaintiff.</p> <p>After the return of the assessments by the jury of valuable and lasting improvements, the plaintiff’s lessor applied to the court to set aside the assessment and order a new valuation. This was refused by the court, and a bill of exceptions setting out the testimony given in support of this application was taken.</p> <p>The jury having returned the sum of 8120, in favor of the defendant, being the excess of the valuable and lasting improvements over the annual profits and damages from waste, the court rendered judgment in favor of defendant and against the plaintiff’s lessor for that sum, and also for the costs of the proceeding under the occupying claimant law.</p> <p>It is now assigned for error:</p> <p>First. That the court erred in deciding that the defendant was entitled to relief under the law for the relief of occupying claimants.</p> <p>Second. In refusing to set aside the assessment of the jury under the occupying claimant law.</p> <p>Third. In rendering judgment against the plaintiff’s lessor, and ordering execution for the amount reported by the jury.</p> <p>Leiby v. Wolff, 10 Ohio, 183; Reeder v. Barr, 4 Id. 458; Scott v. Douglass, 7 Id. 362 ; Scroggs v. Taylor, 1 A. R. Marsh. 247; Harlem v. Bell, 4 Bibb, 106; Clay v. ^Miller, 4 Id. 461; 4 Id. 206 ; 1 A. R. Marsh. 445; 1 J. J. Marsh. 404; 2 Litt. 208; 5 Id. 82 ; 4 Mon. 59; 7 Id. 537.</p> <p>Glick v. Gregg, 19 Ohio, 57; 2 Id. 235; 1 Id. 156; 11 Id. 36.</p>

<p>This is a bill in chancery reserved in Cuyahoga.</p> <p>The complainant was the owner of real estate situate on Superior street, in the city of Cleveland, which was charged with a special tax assessed under an ordinance for the improvement of said street. The bill prayed an injunction against the collection of the tax, which was allowed by the superior court of Cleveland. The facts necessary to an understanding of the points decided appear in the opinion of the court.</p> <p>Ohio ex. rel- Ives v. Choate, 11 Ohio, 511; Thatcher v. Powell, 6 Wheat. 119 ; Sharp v. Spear, 4 Hill, 76; Id. 92; 1 Mass. 86 ; 2 Mass. 489 ; 3 Pick. 447; 4 Mass. 493 ; 17 Ohio, 340 ; Jonas v. Cincinnati, 18 Ohio, 323 ; Reed v. City of Toledo, Id. 166; Collins v. Hatch, Id. 523; 13 Mass. 274; 5 Mass. 547; 16 Mass. 144; The People v. Mayor of Brooklyn, 6 Barb. 209; Sutton’s Heirs v. City of Louisville, 5 Dana, 28; Jacob v. City of Louisville, 9 Dana, 114; City of Lexington v. McQuillan’s Heirs, 9 Dana, 513.</p> <p>State v. Constable, 7 Ohio, 245; State v. Ailing, 12 Ohio, 16; State ex rel. etc. v. Jacobs, 17 Ohio, 143; Cincinnati v. Gwynne, 10 Ohio, 192 ; Culbertson v. Cincinnati, 16 Ohio, 574; Bonsall v. Lebanon, 19 Ohio, 518.</p> <p>Dartmouth College v. Woodward, 4 Wheat. 578; 2 Kent’s Com. 274; Trustees etc. v. Hills, 6 Cow. 23; All Saints ^Church v. Lovett, 1 Hall 191; Charitable Association v. Baldwin, 1 Met. 359; Green v. Cady, 9 Wend. 444; Williams v. School District, etc. 21 Pick. 75; and People, etc. v. Mayor of Brooklyn, 4 Comst. 420.</p>

<p>This is a writ of error to the common pleas, reserved in Licking county, by the late supreme court for decision in bank.</p> <p>The action in the court of common pleas was debt under the provisions of the fourth section of the “ act for the prevention of gaming” (Swan’s Stat. 427). The declaration alleges that one William Veach, and the defendant, made a bet on the result of the presidential election of 1848, which was won by defendant, and the money, five hundred dollars, paid over to him, and that said William Veach had failed to bring *suit to recover it back within six months, the time limited by the statute.</p> <p>To this declaration there was a general demurrer, which was sustained by the common pleas, and judgment rendered for defendant.</p>

<p>Where a deed of conveyance for several tracts of land was delivered by grantor to grantee or his agent, who acknowledged the receipt of the same, but in so doing added a condition that the deed should be received in satisfaction of a bond of the grantor and others, held by the grantee, in case the grantor’s title to the premises mentioned in the deed should be found on an examination of the records to be good, and the grantee, after retaining the deed for some months, and ascertaining that the title was defective as to part of the lands described in the deed, handed the doed back to the ^grantor or his co-obligor in the bond, the title to that part of the iands of which the grantor was seized, passed to the grantee, and was not reconveyed by the mere return of the deed.</p> <p>Where the court of common pleas erred in ruling as to a material fact in the defense, and the bill of exceptions does not profess to show all the evidence, so as to enable this court to ascertain that the defendants were not prejudiced by sucli erroneous ruling, a judgment against the defendants will be reversed.</p>

<p>The act of February 20, 1851, to create the Bollersville and Portage Free Turnpike Eoad, authorized, but did not require the levy of the tax therein specified by the commissioners of Sandusky county.</p> <p>Where authority is conferred upon a public officer, to be exercised at his discretion, and where no act has been done by him under such authority, and no private rights have intervened, the courts can not compel him, by mandamus, to exercise such discretionary power.</p>

<p>The provisions in the charter of the “ Lake and Trumbull Plank Boad Company.” passed February 14, 1849, by which the trustees of certain townships are respectively authorized to subscribe to the capital stock of said company if a majority of the qualified electors of the townships, respectively, assent thereto, is not in contravention of the constitution of 1802.</p> <p>A county treasurer who seizes property to pay a tax assessed without any color of law for its assessment, or under an unconstitutional law (which is the same as no law) is liable in trespass.</p> <p>But where a valid law provides for the tax, and the illegality of the particular assessment is owing to some error or omission of those charged with the execution of the law prior to the treasurer being- call upon to act (that is, prior to the delivery of the duplicate to him), and the duplicate is regular on its face and duly certified, ho is not liable for collecting the tax. In such a case the duplicate affords as ample protection to the treasurer as does an execution regular on its face to a sheriff.</p> <p>The remedy of the tax-payer is against the person or persons who illegally assess the tax or cause it to be done.</p> <p>The cases of “ The Cincinnati, Wilmington and Zanesville Bailroad Company v. The Commissioners of Clinton County,” (ante, p. 77,) and “The Steuben, ville and Indiana Bailroad Company v. The Trustees of North Township, Harrison County,” (ante, p. 105,) approved and affirmed.</p>

<p>A residuary clause in a will in these words: “ The remainder of my estate I do hereby give and devise to the poor and needy, fatherless, etc., of two townships named, “to such poor as are not able to support themselves, to be divided as my executors may deem proper without any partiality,” is valid and effectual for the purposes therein expressed.</p> <p>The courts of chancery in this state, upon general principles independently of the statute of charitable uses, 43 Elizabeth, have jurisdiction to enforce such trusts.</p> <p>iSThe spirit and policy of the act for the relief of the poor, Swan’s Stat. 637, section 13, would also confer such jurisdiction and sustain the bequest.</p> <p>TSi o trust will fail for the want of a trustee. A court of chancery will supply the defect.</p>

<p>A court of chancery -will not decree a specific performance of an agreement to arbitrate, nor will it require arbitrators to make an award.</p> <p>Parties, by agreement, can not change the mode of proceeding in the trial of a cause in court; but each party has a right to demand that the cause shall be tried in the ordinary way, although he may previously have entered into an agreement that certain questions arising in the controversy should be submitted to arbitration.</p> <p>Where a question of damages arises it is not error in the court, by the consent of both parties, to permit the amount to be fixed by arbitrators, and to decree the amount thus found.</p> <p>*T.he propriety of permitting a complainant to dismiss his bill without prejudice rests in the sound discretion of the court, which discretion is to be exercised with reference to the rights of both parties, as well defendant as complainant.</p>

<p>The law making it is the duty of the court of common pleas, at the-time of the rendition of the judgment or decree in certain cases, to ascertain and fix the penalty of the appeal bond to he given in the event of an appeal, requires this act to be performed by that court without the motion of either party in the cause.</p> <p>The omission of the court of common pleas to do this act will not deprive a party of his appeal when he has, by giving notice and executing an appeal bond, done all upon his own part which the law requires to entitle him to the appeal.</p> <p>In case of this omission by the common pleas, the appellant should give his bond with security to the approval of the clerk of the court or one of the judges thereof. And if the appeal bond should be found insufficient or defective, the district court can order another bond to be given.</p> <p>A motion to dismiss an appeal will be in time if made during the term at which the appeal is entered and before judgment.</p> <p>*Where the parties have waived the intervention of a jury, and submitted the trial of a civil cause upon its merits to the judges of the district court, the facts should be found by the court or ascertained by an agreed statement between the parties before the case can be regularly reserved for decision by this court on the legal questions arising upon the merits.</p>

This is a writ of error to the common pleas of Guernsey county.

<p>A writ of error in a criminal case requires an allowance, and the better opinion seems to he that the jurisdiction is dependent upon its being allowed; and that, therefore, the allowance can not he waived.</p> <p>But if it could he waived, it is not waived where the record shows no express waiver, and no plea or joinder is filed hy the state.</p> <p>In such a case the court of errors should quash the writ; and if, instead of so doing, it affirm the judgment of the inferior court, the judgment of affirmance will be reversed because the writ was not allowed. The parties will then stand as if no writ had ever issued.</p> <p>It is irregular to return the original flies in a criminal case instead of a transcript with a writ of error. The statute authorizing the original papers to be sent up relates to civil causes only.</p> <p>Whether a writ of error in a civil cause issues as of course. Query.</p>

This is a writ of error to the common pleas of Franklin county,' reserved in the district court in that county. The action in the court below was debt upon an injunction bond. The plaintiffs show by their declaration that on the 12th November, 1842, the plaintiffs intestate recovered a judgment in the supreme court of Fairfield county, against one James Hampson for the sum of $2,346.06 and costs.

<p>Where the claim of a complainant in a chancery proceeding against several defendants is separate and distinct, so that the case can he tried as to one or more of the defendants without interfering with the rights or liabilities of the other defendants, it is competent for a court of chancery to pass on the case and render a separate decree as to such defendants, and such decree may be appealed from, although the rest of the case may be undisposed of in the court below.</p> <p>*'-An appeal of one branch of a case will not bring into the appellate court parties whose cause has not been adjudicated in the court below, although such parties would be necessary in the appellate court to enable it to render a decree.</p> <p>Where the court of common pleas proceeds to render a decree as to one of several defendants, whose interests are inseparably connected, leaving the case as to such other defendants undisposed of, such decree is, so far as the right of appeal is concerned, a nullity, and can be set aside by the court rendering the decree, at a subsequent term, for irregularity.</p>

The original action was assumpsit, for recovery against Lawson. & Covode, as endorsers of a bill of exchange, which is as follows: Wellsville, April 25, 1848. $4,000.00. Ninety days after date, pay to the order of Lawson & Covode, four thousand dollars, value received, and place the same to the account of Tours, etc., W. E. JORDAN. To J. Jordap. & Son, Pittsburgh, “ Pay to Farmers’ Bank of Salem, LAWSON & COVODE.” Accepted by J. Jordan & Son.

<p>The heir is a competent witness for the administrator under the act to improve the law of evidence in a suit brought by the latter to recover a debt due the estate.</p>

<p>An action of assumpsit for use and occupation, or on the money counts, can not he maintained where possession is held adversely under claim of title, and where no contract, express or implied, is shown.</p> <p>The ordinance of the city of Cincinnati of May 5, 1827, regulating wharfage, made no provision for wharfage from ferry boats.</p> <p>The defendant, having been for a long time in the adverse possession of a ferry landing in said city, and receiving rents therefor, is not liable to the city for such receipts until the right of the city to such landing is established by a proper proceeding for that purpose.</p>

*This is a writ of error to the supreme court in Greene •county, allowed by the late supreme court in bank. The case is fully stated in the opinion of the court.

This is a bill in chancery reserved in the county of Medina. The complainants filed their bill in the common pleas of Medina This judgment was recovered, October term, 1849, upon a record •of a judgment in favor of complainants and against defendants in the Eichland county common pleas, at March term, 1837, which had become dormant. The judgment in Eichland county was entered upon a warrant of attorney without notice to the defendants.

This is a bill in chancery reserved in the district court in Belmont county. Mitchell v. Gazzam, 12 Ohio, 315 ; 1 Id. 231; Brown et al. v. Webb, 20 Ohio, 400. Dunn v. Barry, 8 Ohio, 390; 11 Id. 394. The case fully appears in the opinion of the court.

The original action was assumpsit, in which the plaintiff, Wash-burn, sought to recover the value of a quantity of wheat, which had been delivered by him to the defendants, Chase & Co., as ware-housemen, engaged in the produce business at the village of Milan, in said county.

This is a writ of error to the supreme court in Trumbull county, allowed by the late supreme court in bank. *The original action in the common pleas was assumpsit, brought by Yarrington against Palmer on the following note: “ Norwich, April 1, 1845. “ On demand, for value received, we, the subscribers, jointly and severally promise to pay Joseph A. Yarrington fifteen hundred dollors, with interest. John Abell.

This is a writ of error to the court of common pleas of Montgomery county, and reserved by the district court in that county for decision in this court. 4 Ohio, 419; 7 Ohio, pt. 1, 77; 14 Ohio, 56; 16 Ohio, 56; Holman v. Johnson, Cooper, 343; Lowry v. Bordiew, Bough 468; Morck v. Abel, 3 Bos. & P. 35 ; Russell v. BeG-rand, 15 Mass. 39; Hunt v. Knickerbocker, 5 Johns. 327; Wheeler v. Russell, 17 Mass. 281; 4 G-reenl. 415; 7 Conn. 399 ; 1 Fairfield, 71; and Willis v. Clark, 20…

*Error to the superior court of Cincinnati, reserved m Hamilton county. The case appears in the opinion of the court. The license is a tax. State v. Eoberts, 11 Gill, and Johns. 506 ; 5 Cow. 462; 2 Story’s Com. 419 ; the payment was not voluntary, and may be recovered back, Cartwright v. Eowley, 2Esp. 723: 4 Term, 485: 1 Wend. 355: 9 Johns. 569 ; 17 Mass. 461.

<p>A testator can not, by any words of exclusion used in bis will, disinherit one of his lawful heirs, in respect to property not disposed of by his will.</p> <p>Such words can not be used to control the course of descent, so as to carry the-property to his other heirs.</p> <p>They can not be used to raise an estate by implication in favof of his other heirs; there being no attempt in the will to dispose of the property or to- ' create any interest therein.</p> <p>Note.—On the second Monday of February, 1853, Judge Oaldwell’s term as Chief Justice having expired, Judge Bartley succeeded him.</p>

<p>In the argument of a cause before the court or jury, counsel has a right, byway of argument or illustration, either to read from a book a pertinent quotation or extract from a work on science or art, or other publication, adopting it and making it a part of his own address to the jury; but not using, it as evidence in the case.</p> <p>A judgment will not be reversed on error, for the action of the court below, in, regard to a matter resting within its discretion.</p> <p>Where a party to an action is called upon and introduced as a witness on the trial, by the adverse party, under the act of March, 1850, to improve the law of evidence, the objection to his competency is waived, and he becomes competent as a witness on the trial for all purposes.</p> <p>When a witness is produced and examined by a party in an action, even though he be interested to testify against the party calling him, the other party is not limited in his cross-examination to the subject-matter of the examination in chief, but may cross-examine him as to all matters pertinent to the issue on the trial; limited, however, by the rule, that a party can not, before the time of opening his own case, introduce his distinct grounds of defense or avoidance, hy the cross-examination of his adversary’s witnesses-</p> <p>K'VYhen the cross-examination is extended to topics disconnected with the particular facts disclosed in the direct examination, leading questions to the-witness may be proper or improper, according to circumstances, and the-control of this must rest within the discretion of the court.</p>

<p>A creditor can not, at his option, transfer the settlement of the estate of his deceased debtor from the probate court to a court in chancery.</p> <p>The representatives of an estate may be so situated with reference to interests sought to be converted into assets, that a creditor may invoke the aid of a court of equity to control such interests, and place them into the hands of such representatives to be administered; but equity will go no further, and leave the settlement of the estate to the probate court.</p> <p>Where the dower interest of a widow, in property sought to be converted into assets, is manifest, it will be protected, although she may not have filed an answer.</p> <p>Upon the decease of a debtor, his estate, real and personal, by law, stands for the payment of his general creditors alike, and one creditor can not, by superior diligence, acquire a superior right to such estate.</p>

<p>By the provisions of the “ act to incorporate the State Bank of Ohio and other banking companies " (43 Ohio L. 24), a bank holds a lien on the shares-of its stockholder for the amount of his indebtedness to it, which can not be defeated by a transfer made without the consent of a majority of the directors, nor will such consent authorize a transfer if the debt is overdue and unpaid.</p> <p>Although an assignment on the books of the bank may be necessary to pass a legal title to stock, yet an equitable title may be otherwise conveyed; and the bank is bound to respect such equity from the time it receives notice-of it. Hence, debts contracted by the assignor to the bank, after the receipt of such notice, are not, as against the assignee, liens upon the stock.</p> <p>Notice of such assignment to the cashier is notice to the bank.</p> <p>Where a person holds a full and perfect equitable title to stock, of which the bank has notice, he is also entitled in equity to the dividends thereafter accruing upon it.-</p> <p>It is a violation of said act for one of the independent banks chartered by it to make loans to a director before the adoption by the stockholders of by-laws to regulate the liabilities of directors; and such violation may be a cause-of forfeiture of the charter, and will render each director who knowingly participates in or assents to the same, individually liable for all damages which the company, its shareholders, or any other persons, body politic ox corporate, shall have sustained in consequence of such violation. But the court are not prepared to say that no debt is created by such a loan.</p> <p>But even if such, debt is void, yet if it be paid, a creditor at large of the payer can not reach the money or property with which it is paid; such creditor having no lien upon, or specific interest in such money or property at the time of payment.</p>

<p>The principal in a note, sued jointly with bis sureties, who suffers a default, and against whom a separate judgment is entered, is a competent witness for such sureties, upon the issue joined between them and the plaintiff.</p> <p>A note or other obligation taken by a bank limited by its charter to six per centum interest on its loans, is void if more is reserved or taken, not only upon general principles, for the want of corporate power to enter into such contract, but by the express provisions of the 61st section of the act to incorporate the State Bank.</p> <p>The 9th section of the act of February 24,1848 (46 Ohio L. 91), suspended the-right to make such defense, but allowed an action against the bank to recover the money for the use of schools. The repeal of this law in 1850 restored the right to defend.</p> <p>The law of 1848 only-operated upon the remedy, still leaving the contract void and expressly forfeited; and consequently its subsequent repeal, and the-revival of the right to defend did not in any manner affect or impair any provision of a valid contract.</p>

<p>"Where the legislature has erected a new county out of territory formerly belonging to other counties, and, to compensate such counties for the loss of territory occasioned by the erection of the new county, has added territory to them from adjoining counties, it is competent for the legislature to provide that the county receiving the accession of territory shall pay an equitable proportion of the indebtedness of the county from which such territory has been taken; and the provision of the statute creating the county of Auglaize, which requires Allen county to pay a portion of the debts of Putnam county, is valid.</p> <p>Mandamus will not lie to compel the auditor of a county to draw an order on the treasurer of the county where the auditor has not the right to fix the amount to be drawn for, unless such amount has been ascertained and liquidated.</p> <p>'Where the auditor has not the power to fix the sum for which the county is to be chargeable, he can not, by any admission, in a proceeding by mandamus, bind the county, in reference to the amount of liability.</p>

<p>'The right of contribution among sureties is founded, not in the contract of suretyship, but is the result of a general equity which equalizes burdens and benefits; and the common law which has adopted and given effect t® this equitable principle, by an action upon an implied assumpsit, only allows the action where there is a just and equitable ground for contribution.</p> <p>"Where a surety has voluntarily paid money on a void note or obligation, he can not maintain an action against his co-surety for contribution.</p>

<p>The act of April 30, 1852, makes applicable to the courts under the present constitution the remedies provided by the act of March 21, 1845, “ to regulate the practice of the judicial courts.”</p> <p>The issuing of a writ of error, under the sixth section of the act of March 12, 1845, is not inconsistent with the legislation under the present constitution, and may he done as of course.</p>

<p>Shares in railroad companies are personal property, whether the companies are, or are not, subject to the provisions of the “act regulating railroad companies,” passed February 11, 1848.</p>

<p>A declaration filed under the act of 1816, to prohibit the issuing and circulating of unauthorized bank paper, Swan’s Stat. 136, is sufficient, if it contains the requisites prescribed in the 13th section of that act.</p> <p>The original stockholders in a literary corporation acting within the scope of the granted powers, are not to be made liable for the acts of those who go. beyond them ; but the act of incorporation can furnish no protection from private responsibility, to those who embark in, or assent to, such unauthorized acts.</p> <p>It is sufficient in such declaration to aver that the defendant was a stockholder at the dates of the notes, or subsequently, without showing him such at the commencement of the suits.</p> <p>The decisions of the highest judicial tribunal in the state, in questions affecting rights of property which becomes valuable and changes hands upon the faith of such decisions, will not be disturbed without the most urgent necessity, to prevent injustice or vindicate obvious principles of law.</p> <p>Johnson v. Bentley, 16 Ohio, 97. Commented upon and affirmed.</p>

<p>In a chancery proceeding, where it appears affirmatively that minor defendants have not been served with process, a decree purporting to determine the rights of such minors is void.</p> <p>The appointment of a guardian ad litem for minor defendants, who have not been served with process, does not effect an appearance for them, nor give' the court jurisdiction over them; but that the appointment of a guardian ad litem is for the purpose of defense, after appearance has been effected by service of process on the infants.</p> <p>A proceeding to foreclose a mortgage on real estate, although in the nature of a proceeding in rem, is still an adversary proceeding, in which the right of the mortgagor is necessarily to be passed on, and he is entitled to his day in court.; and before the court can act, it is necessary that it should acquire-jurisdiction over the person of the defendant, as in any other adversary proceeding, jurisdiction over both the person and the thing are absolute requisites to the validity of its action.</p>

<p>A paid money into the treasury of a California mining company, to entitle B to membership therein, upon agreement that A “ should have a full half share of all that B is entitled to by being a member of said company.”</p> <p>A may recover only the one-half of the net proceeds of the share assigned to B, upon the dissolution of said company.</p> <p>B is entitled to a deduction therefrom of a reasonable amount to cover expenses of bis return from California.</p> <p>Under the constitution of the company, the same might be dissolved at any time, by vote of two-thirds of its members.</p> <p>‘'The acquisitions of B, whilst in California, subsequently to the dissolution of the company, were his individual property, and A had no interest therein.</p>

<p>A judgment of a court of competent jurisdiction, rendered by consent of parties, will not bo reversed on ei'ror.</p> <p>Where no assignment of errors is filed, the judgment may be affirmed for that reason.</p> <p>A plaintiff will not be permitted to allege errors, viva voce, at the hearing, which he has not assigned.</p> <p>Papers not set out in, or attached to, the bill of exceptions, or, in some way so connected therewith as to make them a part thereof, can not be taken as parts of the bill.</p> <p>An erroneous admission of testimony, on a trial by jury, is of no moment, if the jury be afterward, by consent of the parties, discharged without rendering a verdict.</p> <p>The affidavit of a party to a suit may be received to prove the loss of a writing, in order to let in secondary evidence of its contents.</p> <p>The fact of loss is to be established to the satisfaction of the court, not conclusively, for that is not required, but reasonably. To do this may, in some cases, where there is more than one party on the side offering the testimony, require the affidavits of all of them. In other cases, an affidavit of one of them may be sufficient. 3STo general rule can be laid down upon the subject. The ruling must depend upon the circumstances of each case.</p>

<p>To authorize the district court to reserve a cause, and send it to the supreme court for decision, on account of the character of the questions which arise in the case, the questions should be such as require the decision of the-court of dernier resort, and not such as are well settled and of familiar application.</p>

Chancery. Reserved in the district court of Hardin county. The facts sufficiently appear in the opinion of the court. P. B. Wilcox, for defendants: *1 Cranch. 24; 4 Bibb. 249, 385; 6 Pet. 261 ; 3 Marsh. 208 ; 5 Cranch. 223 ; 7 J. J. Marsh. 529; 4 Id. 610; 7 Wheat. 212 ; 7 Ohio, pt. 1, 73,173 ; 12 Id. 354 ; 13 Id. 368 ; 12 Pet. 264; 4 Id. 345 ; 7 How. 262; 2 Bibb. 597.

Writ of error to the district court in Huron county. The original action was debt instituted in the court of common pleas of said county, on the 7th day of March, 1851, on a recognizance in the sum of five hundred dollars, entered into before the common pleas at the September term, 1850, by Edwin Harvey, Thomas Harvey, and Stephen Crippen, conditioned for the appearance of Edwin Harvey to answer to an indictment at the next term of the court.

Assumpsit, reserved in the district court of Fairfield county. The declaration is upon the common counts. The defendants-plead that, at the time of the issuing of the writ, the plaintiff was-under coverture of Jacob Benadum, her husband, who was still living, etc. The plaintiff replies that, at the time of the marriage, the plaintiff was seized, as of'an estate for life, of a certain eighty acres of' land therein described.

<p>To make a paper a part of a bill of exceptions it must be incorporated in it, or attached to it, or filed -with it, and so described as to leave no doubt of its identity. When not so made a part of the bill the defect is not cured by a journal entry directing it to be taken as a part thereof.</p> <p>A bill of exceptions must be signed and sealed at the term at which the exception is taken, and it can not be amended after that term. A nuna pro tuna order made at’a subsequent term to the effect that a paper not identified by the bill shall be considered as a part of it is a nullity.</p> <p>The Bank of Norwalk was restricted by its charter to six per centum per annum, in advance upon its loans; any contract upon which it knowingly took interest at a greater rate was void; it had no right to take interest *under the name of attorney’s fees for collection, and a mistake of' law upon its part would not exempt it from the consequences of taking illegal interest.</p> <p>But an error in calculation, an accidental omission of a credit, or a transfer by mistake of an item from one account to another, will not make a security usurious and void, there being no intent to exact or take unlawful interest.</p> <p>A contract untainted with usury when made, will not become void by a subsequent rece;pt of usurious interest upon it.</p> <p>A judgment upon an usurious contract can not be collaterally impeached, and. when made the consideration for another contract, such consideration is not void. So long as the judgment stands it estops the parties to deny the legality of the consideration.</p> <p>"When a debtor voluntarily pays the collection fees of the creditor's attorney, and no part of them is retained by the creditor, but they all go to the attorney, and the transaction is not a shift to obtain usurious interest, a note subsequently given by a surety of the debtor for a balance of the debt remaining due, is not void for usury.</p> <p>If a debtor make an assignment to pay debts, some of which are usurious, no-beneficiary of the trust who comes in under it, can object to the payment of such usurious debts.</p>

<p>Upon the trial of an indictment for robbery, under the 15th section of the crimes act, by putting in fear the prosecuting witness, it is not necessary to show that the property taken was actually severed from his person. It is enough if the property was in his presence and under his immediate control, and he laboring under such fear, the property was taken by the accused with intent to steal or rob.</p> <p>The terms “personal property,” used in the act, are sufficiently comprehensive to include bank notes and other choses in action.</p> <p>Where the indictment avers an actual stealing of bank notes, the intent to steal named in the statute, is necessarily included as well as the knowledge that they were such.</p> <p>In such case, if the indictment contains a particular description of the bank notes taken, but erroneously averring them to be “ money, good and chattels,” these words may be rejected as surplusage, and the count will be good.</p>

The plaintiff in error was indicted at the October term, 1852, for stabbing Thomas Carothers.

Morgan, auditor of state, to require the payment to relator, of the balance of his salary as reporter for the late supreme court in bank for one year.

<p>The appellate jurisdiction of this court extends only to the judgments and decrees of courts created and organized in pursuance of the provisions of the constitution.</p> <p>The appeal from the decision of the auditor of state, provided for in the 74th; section of the act of April 13; 1852, “ for the assessment and taxation of all property in this state,” etc., is in conflict with the provisions of the constitution, from which the jurisdiction of the court is derived, and can not,, therefore, he had.</p>

This is a writ of certiorari to the district court of Crawford, county; the object of which is to reverse an order overruling exceptions of the plaintiffs in certiorari, defendants below, to a deposition taken in behalf of defendant in certiorari, complainant below, in a chancery cause then and yet pending in that court.

Information in the nature of. quo warranto. The relator, Ezra E. Evans, probate judge of Morgan county, having filed his affi-davit and moved the court for leave, at tbe January term, the attorney general filed the following information : *“In the supreme court of the state of Ohio, January term, in the year one thousand eight hundred and fifty-three. “ George E. Pugh, attorney general of the state, comes here into the court, in the city of Columbus, this seventeenth day of…

A case between the same parties and upon the same award is ¿reported, 19 Ohio, 245. The case is stated in the opinion of the ■ court. Jurisdiction. Swan’s Stat. 69, sec. 10; Eussell on Arbitration, 627• When exceptions are filed in time, the court will, on good cause •shown, permit an additional exception to be filed. 1 Pet. Dig. 265; Wash. C. C. 319. Misbehavior of Arbitrators. Plews v. Middletown, 6 Ohio, 845; Littleton v. Newton, 9 Dowl. ■437; 2.

Bill of review brought to reverse a decree in the late supreme court of Hardin county. The facts appear in the opinion of the court. cited Peter v. Beverly, 10 Peters, 532; Jowes v. Shawhan, 4 Watts & S. 463. cited Aldrich v. Cooper, 8 Yes. 381; 1 Story Eq. 499.

This is '& suit in chancery reserved in Hamilton county. The complainants, by their bill, filed October 2, 1848, set forth that Matthias Denman was one of the associates of John Cleves ■Symmes in the purchase from the government of the lands known as “ Symmes’ Purchase;” that it was agreed, among the associates, that “ each was to be at liberty to select for his own use a certain portion of the lands purchased, on payment at the rate and terms contracted for;” *that Denman,…

Reserved by the late supreme court on the circuit in the county of Jefferson, at the October term, a. d. 1851.

This is a bill of review reserved in the district court in Hamilton-county. The case sufficiently appears in the opinion of the court. Alonzo W. Anderson is a proper party with Josiah R. Sturges, and is saved by his disability. Kennedy’s Heirs v. Duncan, Hardin, 365; Mathew’s Heirs v. Mathews, 12 Ohio, 351; Mease v. Keefe, 10 Ohio, 362; Story’s Eq. PI. sec. 409; Montgomery v. Brown, 2 Gilman, 581; 3 Dana, 32; Id. 300.

<p>A tax, regularly assessed under the act of March 21, 1851, to tax banks and bank and other stocks the same as other property, is not remitted by the repealing clause of the act of 13th April, 1852, for the assessment and taxation of all property in this state, and for levying taxes thereon according to its true value in money.</p> <p>The remedy, by bill in chancery, provided by the first named act, for the collection of taxes assessed against the Ohio Life Insurance and Trust Company, and re-enacted in the last, may be resorted to for the collection of taxes assessed in 1851, and remaining unpaid after the passage of the act of 1852.</p> <p>The 60th section of the act of February 24, 1845, to incorporate the State Bank of Ohio and other banking companies, contains no pledge on the part of the state not to alter or change the mode or amount of taxation therein specified; but the taxing power of the general assembly over the property of companies formed under that act remains the same as over the property of individuals.</p> <p>But, if it had contained such pledge, involving a surrender of the right of taxa^tion, it would be inoperative for want of constitutional power in the general assembly to make it.</p> <p>This right, vital to the existence of every government, and one of the most important incidents of sovereignty, has only been delegated to the general assembly ¿o be used for the purpose of accomplishing the lawful objects with which it is charged.</p> <p>It can only be exercised to raise money for these purposes; and any attempt to use it otherwise, or to control or abridge the right itself, is beyond the delegation, and an unauthorized assumption of power.</p> <p>*No 'control over its exercise has been conferred upon the federal government by article 1, section 10, of the constitution of the United States, prohibiting the states from passing laws impairing the obligation of contracts, or by any other clause of that instrument.</p> <p>In any view, therefore, which can be taken, the act of 1851 is a constitutional and valid law.</p>

<p>A court of chancery will not interfere to prevent a mere trespass.</p> <p>Where adequate compensation can be had in an action at law, there is np ground to justify the interposition of a court of equity.</p> <p>Where the injury threatened would be irreparable, or where, from some pecuniary circumstances connected with the parties or the transaction, complete redress can not be had at law, a court of chancery is warranted in assuming jurisdiction.</p> <p>Chancery will interfere to prevent the invasion of a statutory or corporate right of franchise, conferred upon an individual or corporation, against a party attempting to usurp the right, or exercise the franchise so specially conferred.</p> <p>But not to prevent a trespass against the property of the individual or corporation which may bo compensated in damages, and which does not involve an attempt to exercise the right of franchise against the exclusive grant of the statute or charter.</p> <p>A distraint by a treasurer against the money and property of an incorporated bank, for taxes assessed against it under the act of March 21,1851, can not be enjoined in chancery.</p> <p>If the act be unconstitutional, the treasurer is a trespasser, and is liable in damages, to be ascertained in a court of law; and there is no principle upon which the interposition of an injunction, in such a case, could be maintained.</p> <p>An ordinary charter is not a contract, within the meaning of the prohibition of the section of the 1st article of the constitution of the United States.</p> <p>The power of taxation is a part of the legislative sovereignty of the state, and is not the subject of contract, or barter, or sale by the legislature; and if the legislature were to atte.mpt to make such contract, it would be a fraud upon the government, and of necessity void.</p>

<p>"Where a statutory remedy for a right created by that statute is repealed, but. the repealing statute provides^ a substantially similar remedy, the right may be prosecuted under the repealing statute.</p> <p>An appeal may be taken from the common pleas to the district court under the “Act to regulate appeals to the district court,” from any final judgment or decree rendered in a civil cause, in which the court of common pleas had original jurisdiction, whether the action is given by statute or existed at. common law.</p> <p>-A tax regularly assessed, under the act of March 21, 1851, “to tax-banks- and bank and other stocks the same as other property,” is riot remitted by the repealing clause of the act of April 13, 1852.</p> <p>The legislature will not be considered as having undertaken to surrender the taxing power of the state in the absence of express words to that effect.</p> <p>The act of March 21, 1851, impairs no right of any banking company or ganized under the act of February 24,1845, and is a valid and constitution ai law.</p> <p>Obiter.—That every organization clothed with authority to make currency is a. public institution, performing a public function, exercising public power, and always subject to public control.</p>

<p>The franchise of a private corporation is a trust of civil authority, which, under our system of government, must remain at all times subservient to the public welfare, the chief end and object of the delegation of all civil power by the people, and is, therefore, not the legitimate subject-matter of contract or sale.</p> <p>The charter of a private corporation is in form, and in its inherent terms and nature a law, and does not possess the essential elements of a contract, to wit; two competent contracting parties, a proper subject-matter, a legal consideration, and a mutuality of obligation; and, therefore, does not come within the purview and true intent of the clause of the Constitution of the United States which prohibits a state from passing any law impairing the obligation of a contract.</p> <p>The doctrine that the charter of a private corporation is in and of itself a contract between the state and the corporation or corporators, which has taken its origin from, and is founded upon the decision of the supreme-court of the United States, in the case of Dartmouth College «.“Woodward, 4 “Wheaton, does not appear, in the report of that case, to have had the sanction of a majority of the court; Chief Justice Marshall, who delivered the opinion of the court, placing the decision upon the ground, not that the charter granted by the Crown of England (which, by its own inherent terms, was undeniably subject to legislative control) was in and of itself a contract, but that “the circumstances of the case" disclosed the existence of a contract for the creation of a trust, and the investment of private property, -consisting of money and lands, for the purposes of education under the authority of the charter, the terms and obligations of which contract were interfered with and impaired by the state law, which was declared unconstitutional.</p> <p>The legislative power includes as well the power to amend and repeal existing laws, as the power to enact laws. And the legislature is incompetent to make any contract or arrangement whereby the legislative power can be, to any extent, surrendered or abridged.</p> <p>The act entitled “ An act to incorporate the State Bank of Ohio and other banking companies,” passed February 24, 1845, is a public and general law of the state, and not a contract, either in form or substance; and the essential elements of a contract are not to found either in the law, taken entire, or any special provision of it, within the operation of the prohibitory clause , of the constitution of the United States.</p> <p>While the government is bound in good faith to protect and keep inviolate the contracts made, and rights of private property vested under the authority and regulations of the charters of private corporations, in common with all other private property, as one of the sacred and primary objects of all'civil government; yet such contracts are made, and property vested subject to the implied condition, that the legislative power of the state remains undiminished in any manner, and always subject to be exercised whenever the paramount object of its creation, the public welfare, shall require it.</p> <p>The property of every person, however absolute the tenure by which it is held, must be liable to bear an equal and just proportion of the public burdens, by way of taxation, in return for the protection and advantages afforded by the government, and that proportion of taxation must be determined by the legislative power, which extends to all persons and property within the state.</p> <p>The taxing power, which constitutes a branch of the legislative power, and which is of vital importance, and essential to the existence of government, can not be surrendered or abandoned, either in whole or in part, by the legislature, to promote private and individual interests, so as to limit the power and control of future legislation over it; but like the right of eminent domain, and the right of control over existing laws by amendment and repeal, both of which are also vital and essential prerogatives of the legislative power, must continue in unabridged subserviency to the public safety and welfare, the original and paramount purpose of the delegation of all civil power by the people.</p> <p>The case of the State of Ohio v. The Commercial Bank of Cincinnati, 7 Ohio, 225, overruled.</p>