Volume 1 — Wright's Ohio Reports

Assault and battery by the defendants jointly. Pleas — not guilty, and a justification in defence of the wife, and also in defence of their son.

The defendant in error declared in bis own name in the court below, on a penal bond, dated 10th Dec., 1819, given by Logue to one D. Smith, and passed by several assignments to the plaintiff. Oyer of the bond, and assignments were craved, and the assignments have been set out in the record, and are— 1.

<p>Money had and received — witness—evidence—abatement—religious seceders— church funds.</p> <p>The only interest which disqualifies a witness, is a direct one in the event of the suit. Members of a public corporation, which is a party to the suit, are competent witnesses.</p> <p>A bill of discovery with the responsive answer, are evidence for the defendant to the bill; but the answer to such bill, so far as it regards other than responsive matter, is not evidence for him.</p> <p>Assumpsit will lie by a corporation to recover money received by its treasurer, and he cannot object after he has gone out of office, under the general issue, that the body was not incorporated</p> <p>Where lands have been conveyed in trust for the use of churches, the act of 1825 vests it in such trustees as may be appointed by the church and their successors in office, in perpetual succession.</p> <p>Seceders from a religious society cannot retain its funds on the ground of their being members of the society when the funds accrued.</p>

Action on the case. The plaintiff’s declaration contained three counts; in the first he complained, “for that whereas the said plaintiff before and at the time of the committing of the grievances hereinafter mentioned, was of a good character for virtue and chastity, and was as such accepted and received, yet the said defendants well knowing the premises, for the purpose of injuring the plaintiff, and to cause it to be believed and suspected that said plaintiff was vicious…

Ejectment. The lessor of the plaintiff, and the defendant, by written contract, dated the 16th February, 1829, agreed to exchange a lot in Annapolis, possessed by Maynard, fot 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.

Covenant on an indenture of apprenticeship. Breach, the nonservice of the apprentice. Plea, that the plaintiff, the master, had not procured the indenture to be recorded within three months. To this plea there is a general demurrer and joinder.

Indictment for the murder of Samuel 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-. Sioctn and T. JEkoing, as counsel for him.

<p>Debt upon a bond given to appeal a judgment of tbe Court of Common Pleas, against Wood. The defendant pleaded several pleas ; the eighth of which was, that the defendant, in May, 1819, informed the sheriff (who had an execution against Wood on the original judgment) of property of Wood more than sufficient to satisfy the judgment. To this there Avas a general demurrer and joinder.</p>

W. Adams, plaintiff. An appeal was taken from the justice, on which a declaration was filed by Lancaster, for the use of Adams. Judgment was rendered for the plaintiff Lancaster. This is alleged to be erroneous.

Slander. The plaintiff counted, 1st. upon the words: “You stole cloth arid sold a waistcoat off it to Doctor Rathbone.” “You stole my cloth and took a waistcoat off it, and sold it to Doctor Rathbone.” 2d. For the following words, spoken of him as a tailor: “You have secreted customers’ cloth, and sold waistcoats made up out of it to Dr. Rathbone: You have taken a waistcoat off my cloth, and sold it to Dr. Rathbone.” Plea, not guilty, with a notice that the plaintiff did…

Slander. The declaration alleged, that a suit had been pending between Kincaid, the plaintiff, and Brown, the defendant, before a justice, which was submitted to the arbitrament of J. K. and J. E. That on the trial of said cause, before the arbitrators, the plaintiff was sworn and examined as a witness, as to his book account, of less than eighteen months’ standing, which he claimed to offset, and that the defendant, in speaking of the trial, the plaintiff, and his evidence,…

Case for malfeasance in office. The declaration alleged that the defendant was a justice of the peace, and maliciously-intending to vex the plaintiff, issued a scire facias against him, in the name of one J. P. without his knowledge, when he knew the said J. P. had no cause of action, for the sole purpose of oppression ; that he subsequently entered judgment, issued execution and sacrificed the plaintiff’s property. Plea — not guilty.

Slander. The plaintiff declared upon the following words, spoken by the defendant of the plaintiff: “He was at home one night when I was there. Wilson and wife were in bed together. Wilson kicked his wife out of bed, and said he cared nothing for her; and in his shirt tail, he went to bed with the other girl, Priscilla Ballard; that he was going to run away with the said Priscilla Ballard, and abandon his family.” To this declaration there was a general demurrer, and joinder.

Assumpsit. In this case, a jury was struck, under the statute, and sixteen persons were returned upon the panel. Twelve of these were called into the box.

Erroe, to the Common Pleas of Ross county, returnable to Scioto. The plaintiff in error was indicted for an assault and battery, with intent to ravish. On the trial the counsel for the defendant, on cross examination, asked the prosecuting witness, if she had ever told any one, that she would do, or intended to do, all she ■could to send the defendant to the penitentiary? To which she .answered, that she never had.

<p>^Evidence — condition of defeasance — settling the law — fraud—drunkenness—reservation of equity.</p> <p>If the evidence offered is applicable to any one count in the declaration, it is to he received, though inapplicable to the' others.</p> <p>The Court when applied to will settle the law of a case, before the argument proceeds to the jury.</p> <p>'It is competent to the defendant under non assumpsit, to prove that the plaintiff had originally no cause of action, none at the time the suit was brought, or has since been discharged, or that the contract was obtained by fraud, or of the obligor when drunk, by the procurement of the obligee.</p> <p>A condition of defeasance attached to, or separated from the obligation, will be regarded as if written out at length in it.</p> <p>■Courts of law will not enter on their record a reservation of equity, and if they did, the reservation would be of no avail to give a court of equity jurisdiction.</p>

The defendants in error pleaded in bar, that after judgment below, the defendant against whom judgment was taken proceeded in chancery, obtained a provisional injunction, which the Supreme Court upon final hearing dismissed, and according to the statute in such cases, decreed the complainant, who was the defendant at law, to pay the judgment, costs 47] and pen-*alty; which decree remained in full force.

Libel. The declaration contains two counts. The 1st. For publishing in the Ohio Sun a libel upon the plaintiff and his occupancy of the jail of the county, as follows: “But Mr. New*braugh became an applicant, and on being told that he was [48 in low circumstances, and, as I then thought, honest, I admitted him to occupy the jail.” 2d. For publishing in the same paper of the plaintiff, and of the renting of the jail by the defendant to the plaintiff: “He has put the seal of…

The defendants in error having entered into a contract to build a bridge over the east fork of the Little Miami at Batavia, and having, as they claimed, completed the contract, applied to the commissioners of the county 49] *to accept the bridge and grant orders for the contract price, upon the county treasury. The commissioners having examined the bridge, rejected it as not built according to the contract, and refused the orders.

Ejectment for a section of land. The plaintiff exhibited a deed from J. C. Symmes to the defendant, for sec. 1, township. 3, range 1, dated 1st February, 1795, and proved the defendant in possession for several years, and at the time of serving the declaration in *ejeetment.

Ejectment for thirty acres of land. The parties admitted that both claimed under D. Symmes. The plaintiff offered in evidence, an administrator’s deed, made in pursuance of an order of sale in the Court of Common Pleas, in 1821, conveying thirty acres in fractional sec. 12, of the 4th township, and 1st range, or a fractional sec. 7, of the 3d township, and 1st range, or a part in both, being an undivided thirty acres of a tract of seventy acres.

Ejectment to recover lot No. 209, in Cincinnati. The plaintiff gave in evidence the following title papers: 1. A deed.from ,1. C. Symmes to William Freeman, dated II June, 1798. 2. Deed, Freeman to Sam’l Williams, dated 12 June, 1798. 3. Deed from the heirs of S. Williams to the plaintiff, date, 27 October, 1830. He proved by parol the death of S. Williams, the heirship of the grantors of the plaintiff, and the possession of the defendant. This done, he rested his case.

Slandkr. The declaration sets forth as inducement to this action, that the plaintiff was a journeyman brewer in the employ of one Metcalf, and charged two sets of words : 1st. He has been guilty of adultery. 2d. He puts tobacco in the ale and porter manufactured by Metcalf. Plea, not guilty.

Ejectment for lots 1 and 2 in Cincinnati. The title papers exhibited for the plaintiff, were: A deed, P. Moore to Wm. McFarland, Jan. 18, 1804; McFarland to B. Mason, Aug. 7, 1809; Mason to L. Sayre, Nov. 8, 1811. Proof was made that Sayre was in possession 16 or 17 years ago, and died, leaving the lessors of the plaintiff his heirs; that McFarland was in possession in 1806, and that the defendant was in possession for the last five years.

Ejectment, to recover possession of the west half of lots 130 and 140 in Cincinnati. The plaintiff, on the 21st of April, 1814, by written lease conveyed the premises to the Cincinnati Lancaster Seminary, for ninety-nine years, renewable forever, upon a nominal rent.

Issue directed out of chancery, to try whether the plaintiff or the defendant have the right to a lot in the city of Cincinnati.

In Chancery. The bill set forth that the defendant, a short time-before, purchased of the complainants, in Philadelphia, a quantity of merchandise, and soon afterwards became insolvent. That he was,, at the time of purchasing the goods, in failing circumstances, which he concealed.

<p>This cause was certified from the Court of Common Pleas under our statute, because there was not a disinterested quorum of judges in that court. It ajipeared on the certificate, that the president judge had been formerly counsel in the cause, and that one of the associate judges was absent during the term at which it was certified up.</p>

<p>In Chancery. The cause is stated in the opinion of the Court.</p>

<p>Abatement — general rule for judgment in — exception—sci. fa. — amendment.</p> <p>It is a general rule that upon a plea in abatement of any matter of fact determined for the plaintiff, he is entitled to final judgment.</p> <p>But in case 1he issue so made up is one to be tried by the court, by inspection or otherwise, that is an exception from the rule, and the judgment will be only quod respondeas ulterius for failure of record.</p> <p>A writ of scire facias, when used merely as a writ, cannot be amended — when used as a declaration, it may be.</p> <p>Leave to amend must be asked for and obtained in the court where the case is in which the amendment is asked.</p>

<p>Substance — justice’s transcript — errors—appeal from a non suit.</p> <p>Where a justice upon an appeal certified his transcript as containing the substance of his proceedings, it is sufficient on a writ of error.</p> <p>An appeal lies from a judgment of non suit rendered by a justice.</p>

Covenant. The declaration is upon a bond of indemnity given to the plaintiff, to indemnify him against loss upon a bond given by him as the security of Cooke as a constable. The condition annexed to the bond is, that it shall become void if Cooke faithfully discharge the duties of his office, and faithfully pass over all moneys collected by him in virtue of his office.

Halford sued Crane in the court below for money had and received, paid, &e. Upon non assumpsit joined, Halford offered to prove the contents of a lost paper, purporting to be a receipt from one Green for $35.17, in full of an award in favor of Green v. Crane, of prior date to the receipt. To this it was objected, that the receipt was not competent without proof of Green’s authority from Crane, and that Green was not a competent witness to prove the payment.

<p>Having counterfeit notes — description—gist of the offence — stealing bank notes — discharge from the penitentiary.</p> <p>Where written instruments enter into the gist of the offence, as in forgery, sending threatening letters, the having blank counterfeit notes with intent to fill up and pass, &ot., they should be set out in the indictment.</p> <p>They need not be set out on a charge for stealing them.</p>

<p>Bill of exceptions — quorum of the court — judicial acts — attorney in fact.</p> <p>A bill of exceptions must be sealed b}' a majority of the court.</p> <p>Thesealing a bill of exceptions is a judicial act, and no judicial act can be performed by an agent or attorney in fact.</p>

The suit below was brought by a supervisor of highways against the plaintiff in error, claiming apenalty for obstructing a road. When the suit was brought, the 20th section of the road law, 22 O. L. 315, was in force. While the suit was pending, the general assembly re-enacted the substance of this section in a new law, and increased themaxiraum penalty from 10 to 20 dollars, 30 O. L. 18, without any express repealing clause.

• Murder. The prisoner was indicted for the murder of Adonijah Morris on the 10th of April, 1831, under the act of assembly, 22 O. L. 158. In selecting the jury, the defendant made sixteen peremptory challenges. The prosecuting attorney was allowed to inquire of a juror if he had scruples against punishing with death, for murder. The jury were then sworn.

Contempt. The defendant commanded a company of militia, had mustered them for exercise near the court house, while the court was sitting, and with martial music, in marching and exercising his men, so disturbed the business of the court, the trial of a case of murder, as to prevent its proceeding.

Assumpsit. The declaration contained three counts : — 1st. Upon a note for one hundred and twenty dollars, dated in December, 1826, payable by Clark to May, on interest from date, without any day of payment named. 2d. Upon a contract, that in consideration the plaintiff would receive the note in payment of a sum due from defendant, and in a reasonable time proceed to recover the same by suit at law, if it was not recovered he would pay the amount and interest, avers that he…

Chancery. The bill alleges that one B. Johnston, in 1828, contracted with Sickles and his wife for fourteen acres of ground, corner of lot sixty-seven, in Bedford, the property of the wife, to be paid in chopping six acres of her land, and that he, with the husband’s consent, gave his notes to her for the chopping, one payable in March, and the other in June, 1828, and when paid, they agreed to make him a quit claim deed. The wife alone signed the contract.

<p>Fraudulent conveyance — advancement—insolvency.</p> <p>A father may convey land to a child by way of advancement, but if he do so insolvent, or in debt contemplating insolvency, the advancement will be postponed to his creditors.</p> <p>A conveyance, with intent that the property should be held in trust for the party making it, is void as to creditors.</p> <p>It is a strong badge of fraud, that a son to whom property is conveyed, who pretends he has paid for it, in paying debts for his father, is not able to show when, and to whom he paid, and how much.</p>

Assumpsit for work and labor. Plea — the general issue, with notice of set-off, the statute of limitations, and of an agreement to clear, fence, &o., eight acres of ground, to be paid for when done, by a conveyance of fifty acres of land, which was for the same work declared for by the plaintiff, but was never done. After the evidence for the plaintiff was closed, the defendant offered evidence, under the notice of the statute of limitations.

A scire facias had been issued under the justice’s act of 1824, returnable forthwith, on which an ex parte judgment was taken, which was removed by certiorari to the Court of Common Pleas, and was there affirmed. To reverse that judgment, this writ is brought. The point raised for decision is, that no scire facias can be made returnable forthwith.

The plaintiffs declare against the defendant, a supervisor of highways, for that the plaintiffs having worked out a road tax, had demanded their certificate from the defendant for the county treasurer, according to law, but that the defendant maliciously refused to give them one. To this there was a general demurrer, which was sustained by the Court of Common Pleas. To reverse this, the present writ of error is prosecuted.

The plaintiff in error had entered into an arbitration bond, conditioned to abide the award of B. B. & *B, arbitrators, to be made a rule of court before I. Peat, a [87 justice of the peace. The arbitrators made an award, which was produced to Justice Peat, and he, without notice to the plaintiff in error, entered judgment upon it against him. This judgment was removed by certiorari to the Court of Common Pleas, and was affirmed by that court.

<p>Costs ordered to be paid by a party on obtaining leave to amend his pleadings, should not be afterwards taxed and included in the final judgment — if they have been, and paid, the court will order a retaxation, and they may be recovered back.</p> <p>Costs ordered to be paid in the progress of a cause, are to be collected by process of attachment, not by judgment and execution at the will of the clerk.</p>

<p>Sealed note — payment.</p> <p>Work done for the payee of a note by the payer, under an agreement to apply the proceeds to discharge the note, is a payment for so much, unless by some subsequent agreement it has been determined to apply them, otherwise.</p>

Assumpsit for work and labor, on a special contract to work a year for the defendant for 120 dollars. These were the common •counts for money had and received, &c. 1. Plea: non assumpsit, with notice of offset. 2. Non assumpsit within six years. Replication: that the defendant did assume within six years; on which issue is joined.

Libel. The libel declared upon is this: “Notice is given that a slanderous report has been put in circulation by Cynthia Loughead and Mahala Houser, to the injury of the character of Drusilla Bartholomew, concerning something that should have happened at the house of Esq. Porter, on the 6th of January, 182 7, which report has been made to appear to be false, and they being people of no property, it is thought unnecessary to commence suit against them. “Albert Bartholomew.”…

Assumpsit for money paid, &c. Plea — Non assumpsit. On trial it was proven that Forsyth and Dobbin, of Wheeling, sold goods to the defendants and charged them, but never delivered the goods ; afterwards the defendants procured F. & D. to charge them to the *plaintiff, upon which they sued the plaintiff in Wheeling, [93 Virginia, and recovered. To recover back the money so paid on said judgment, this suit is brought.

<p>Application for a writ of error by the plaintiffs. The record of the Common Pleas shows a declaration in covenant against the defendants, upon a contract entered into by them as co-partners; sealed with their seal, and signed by one of them in the partnership name of J. H. & Co. To this there was a general demurrer, on which the Court of Common Pleas rendered judgment for the defendants.</p>

Trespass, quare clausum fregit, assault, &c. Plea: 1. Not guilty. 2. That the act was done in defence of the possession of defendant’s house.

<p>In Chancery. The parties had submitted this cause to arbitrators, on whose award they were content a decree should be entered, except for some items of costs, which were reserved for the decision of the court.</p>

<p>Appeal bond — approbation of the clerk — filing.</p> <p>The security in an appeal bond is required to be approved by the clerk, but the bond need not be executed before him.</p> <p>If the clerk express his approbation of a security, and he execute an appeal bond, which is given to the clerk, within the thirty days, it perfects the appeal, though it was sealed up and so laid away.</p>

Quo warranto. The relation applies for a rule to show cause why a writ of quo warranto shall not issue against the defendant, to inquire by what authority he exercises the office of treasurer of the county of Coshocton

<p>Divorce — certainty in tlie cause — adultery.</p> <p>A petition for divorce must set forth the cause of complaint with convenient certainty, that the charge may be met and disproved.</p> <p>On a charge of adultery, the name of the person with whom committed should be inserted, if known.</p>

. Trespass on the case fOf a nüisancei On the trial before the jury, Thomas Butler was called as a witness by the defendant. He stated, that he held a mortgage on the land in dispute. It was then objected that he was interested and incompetent.

Slander. ' The declaration charged the speaking of these words, “ She had sexual intercourse with a married man, by means,” &c., and on no other account, one C. Dorian, who was about to marry her, has since declined, and neglected so to do; and plaintiff hath been deprived of the gains, profits and comforts, which would have arisen from her marriage with him. A witness was called, and asked to state slanderous words spoken by the defendant since the suit was brought.

Slander. The words charged were, “You are a thief, and have been guilty of stealing, and I can prove it;” Issue was taken upon not guilty. The plaintiff, who is a lawyer, had a Suit before á justice, with CoTdfay, and had got cast.

Trespass de bonis aspertatis. The defendants pleaded that Cor-dray recovered a judgment before Stouyh, a justice of the peace, for 20 dollars and costs, and Leonard, his lawyer, sued out an execution upon the judgment, and gave it to the constable to execute, who levied upon the goods of the plaintiff. To this there was a general demurrer and joinder.

<p>Case, by the plaintiff, for the seduction of his daughter. On the ■examination of the daughter as a witness, she was asked if the defendant prevailed over her by promise of marriage. This was objected to, but admitted by the court reserving the point. Another witness was called and asked by the plaintiff, as to the standing of the plaintiff’s family. This was objected to.</p>

<p>Divorce — alimony pendente lite.</p> <p>Alimony pendente lite will be allowed for the support of a wife and children upon affidavits showing the marriage, separation, &c.</p>

<p>Assumpsit to recover back money paid on a contract — evidence—competency..</p> <p>Upon the common counts to recover back money paid on a special contract, the contract is not evidence in the first instance; the circumstances ■which, make it evidence must be first proven.</p> <p>One who has covenanted to convey the land to the defendant, which he failed" to convey to the plaintiff, is a competent witness; if he have any interest, it is balanced between the parties.</p>

In Chancery. The bill seeks the specific performance of a contract for the exchange of a farm, for a house and two lots in Bethlehem. The answer admits the contract, but sets up the *de- [106 fendant’s intoxication by the procurement of the plaintiff, great disparity in value, and the inability of the complainant to convey, at the stipulated time, by reason of an outstanding mortgage.

The action below was slander. In the declaration the words are charged to have been spoken in Dutch,, and there is no averment that they were understood by the-hearers.

Assumpsit. The plaintiff counted on three notes, signed Edward Carroll, for Thomas Carroll, and for goods sold and delivered.

<p>Debt. When this cause was called on,</p>

Ejectment, to recover possession of 40 acres of land, part of section 16, granted for the use of schools. The lessor of the plaintiff had surrendered the original lease, and taken from the auditor a certificate of purchase, claimed to be in accordance with the 6th section of the act for the sale of section 16, passed in January, 1827; 25 O. h. 59. He was not the original lessee.

In Chancery. The complainant having purchased land of the United States, wanted to complete his payments for it, and not having sufficient money, applied to the defendant for a loan for that purpose.

The record shows that the plaintiff in error was indicted in the court below for a nuisance in erecting a dam across a certain stream in Salem township, in said county, called the middle fork of Beaver.

In Chancery. Bill for a specific performance of a contract. Plea — that at the execution of the contract the respondent was non compos.

Scire facias, on a judgment of restitution, in the reversal of a former judgment to recover back the money collected upon execution, on the judgment before its reversal. General demurrer to the sci. fa. which is joined.

This was a scire facias to obtain restitution of money collected upon a judgment, afterwards reversed. It was issued in Jefferson, directed to the sheriff of Tuscarawas county. The Court of Common Pleas quashed the writ, because it issued erroneously. From this order to quash, the appeal is taken.

In Chancery. One Holmes, in 1797, purchased lot No. 16, in Steubenville, of Wells, the proprietor of the town, and took a certificate of purchase. He afterwards sold his interest in the lot to Thomas Gray, put him into possession, and gave him an order on Wells for a deed, which he never presented. Thomas Gray sunk a well on the lot, and continued in possession till 1809. In 1805, he made a voluntary conveyance to his father, William Gray, then living in his family.

<p>Plea — non est factum, without affidavit.</p>

Upon the record, the following questions are submitted to the court, the determination ■of which will affirm or reverse the judgment of the court below. 1. Is the security upon an administrator’s bond, liable for money -coming into the administrator’s hands as the proceeds of a sale of land upon petition for partition, by the heirs of the intestate? 2.

The suit below wasassumpsit; Two points were raised in this case : . 1, Whether the filing a petition for divorce by an attorney, upon: the employment of the wife, is sufficient ground for an implied undertaking on the part of the husband, against whom it is filed, to-pay the fees ? 2: Whether the decision of the court dismissing the petition genei-ally, is conclusive that it was filed without necessary or probable cause?

Slander. The declaration charged the speaking of the following: words, of the plaintiff’s wife: “ She is a whore — she is a damned whore — Ida Iiandly has gone to Stevens’, and they keep a damned, whore house — Stevens’ wife and daughter keep a bawdy house, and 122] *Stevens’ wife is a whore — she is an infernal whore — she is-an hell-fired whore — she would come to my house and get into bed between me'and my wife — Stevens’ wife, and all the Delanys are-.damned whores — I…

Slander. This suit was brought in behalf of the daughter of the plaintiffs in the last suit, against the same defendant. The plaintiff counted upon the following words: “Stevens keeps a whore house, and Phebe is a whore — Ida has gone to Stevens’, and Stevens keeps a damned whore house; and Debby and Phebe were not able to stand the three tanyard blackguards; and Stevens’ wife, and all the Delanys are whores.” Plea, not guilty, and issue.

Slander. The declaration set forth a variety of words; the principal ones were, “Dinah Young is a whore — she has slunk a young one — she has had a young one — if my wife was ever in that way, she is.” Plea, not guilty, and issue. James Hibbs-testified that he was going to Young’s to buy a cow, and was talking with the defendant about it. He said Young had no cow; but had a heifer. Witness reckoned that was Dinah, for she was like for a calf.

Debt, on the judgment of a justice of the peace in Pennsylvania, Plea, nul tiel record, and issue. The plaintiff, in support of the issue, offered the transcript of a judgment before a justice of the peace in Pennsylvania, certified by him, and attested by the prothonotarv, and the certificate of the presiding judge of the Court of Common Pleas.

In Chancery. The complainant, with one Margaret Gutshall, entered at the land office a quarter section of land in her name, 128] *under an agreement that each should pay half and have half. A division was made between them, and the complainant occupied and improved, and continues to occupy her part. The land was all paid for, and a patent obtained in 182'i, to M. Gutshall.

Divorce. Causes — 1. Wilful absence. 2. Adultery with Catharine Rogers. The petitioner relied upon the charge of adultery, and to prove it, offered a record of the conviction of the defendant of having married one Catharine Rogers in Pennsylvania since his marriage with the petitioner, and proof of the identity of the person.

Debt upon a sealed contract, that in consideration of eighty-five dollars, to be paid by the plaintiff, the defendant undertook to convey to the plaintiff a certain piece of land, by such conveyance as the plaintiff would approve, before the 1st of May, 1828, and that the plaintiff should pay the eighty-five dollars, upon making the conveyance.

Assumpsit against the defendant as endorser of a promissory note of King and McLure, payable in six months from the 14th February, 1829. It is averred in the declaration, that on the 14th August, 1829, the plaintiff demanded payment of the drawers, and gave the defendant notice. Plea, the general issue. On the trial, the note was read in evidence, and proof made of a demand of the makers, five days after the note fell due.

Trespass, quare clausum fregit. Pleas — 1. Severally for each defendant, not guilty. 2. As to M’Williams, that he was a supervisor of roads, and, as such, did the act complained of as a trespass. On this issue was joined. As to Bethel, that he acted under the orders of the supervisor, according to law. Replication. That Bethel did not do the acts under the direction of the supervisor of the district where he resides. Issue was taken on that.

Assumpsit, for work, &c. Plea, non assumpsit. The case made in proof was of work done by the plaintiff, after he came of age, but before he was married, for bis father, in his lifetime, and also for other work done after he was married and had a separate family. The defendant called R. Willis, a son of the testator, and one of the legatees of the estate. It was objected to him, that he was interested and incompetent.

The suit below was upon a bond given by the plaintiff in error, under a proceeding for sureties of the peace. It was objected to in the court below, but admitted and a bill of exceptions sealed.

Trespass for tearing down a steam engine, &c. Plea, not guilty, with notice of property in the engine in the defendant. . The defendant, Dare, was a manufacturer of steam engines in Zanesville. One Harding, of Cambridge, had an engine, in Cambridge, out of repair, and applied to Dare at Zanesville, to put it in repair.

The record disclosed that a judgment of a justice of the peace had been brought up on a writ of certiorari, into the Court of Common Pleas, and reversed, without any notice to the defendant in certiorari, or appearance, or waiver. To reverse this judgment of the-Court of Common Pleas this writ of error is prosecuted.

Case to recover damages against the defendants for erecting a dam across the Muskingum river, compelling the plaintiffs to pass over the dam with a boat and cargo, which thereby received a direction against the pier of a bridge below, and was sunk.

<p>Partnership contract in equity ii not at law — convict of petit larceny — witness — competency—pardon—release.</p> <p>In a contract to construct two boilers and a cylinder for a steam engine, it may be proven that those terms, used as terms of art, or of the trade, mean an entire engine.</p> <p>Quero, if a convict of petit larceny is a competent witness without pardon?</p> <p>Where the contract is a partnership one, though being executed by the seal of one, he alone is liable at law; yet that it is a partnership contract in equity, where the other partners would be subjected, if necessary to make then-money. Such partner is incompetent as a witness for his co-partner, and a release from the partner does not restore his competency.</p>

Trespass. This suit was brought by the plaintiffs, who are the trustees of the Methodist Episcopal Society, to try the right of possession to a church, against the defendants, trustees of the reformed Methodist Society, who continue to preach and use the house. It was submitted to the court upon an agreed case.

In Chancery. Bill for injunction and relief. The ease made is this: The complainant, executor of one Johnston, being unable to settle his accounts within the allowed time by law, owing to difficulties in the estate, the defendant recovered a judgment against *him before a justice of the peace, which was removed to the [146 Court of Common Pleas, by writ of certiorari. To effect this removal, the complainant gave bond, with Parker as security.

<p>Chancery — sale of decedent’s real estate should be in a court of probate, un, less there is good cause for coming into chancery.</p> <p>Chancery will not hold jurisdiction of a bill by an executor to sell real estate, to pay the debts of the deceased, unless sufficient reason is disclosed why the application is not made to the probate court for leave to sell the land under the statute, which is a more summary and convenient proceeding.</p>

Divorce. Cause — adultery with Jane Oliver, Sally Bingham, Hope Kimberly, and others unknown. It appeared in evidence, that these parties were married in Massachusetts, in 1815. That he had been frequently at houses of ill' fame, and with women reputed common strumpets, and was sometimes on the bed with them.

Case, for interrupting private way. Plea, not guilty. By the agreed state of facts submitted by the parties, it appeared that the owner of a piece of ground in Zanesville platted it into building lots, in the form of the diagram annexed, with the intention to make it an addition to the town, and record it as such. In this plat he marked out an alley of ten feet, connecting the lot marked Bailey with 2d street.

<p>Ejectment. The defendant claimed under a tax title, and it was •agreed, that the plaintiff had aright to recover unless that title was made out. The tax title was derived under the act of the 30th January, 1822, 20 O. X. 27, which provided for giving notice of delinquent taxes, and taking a judgment in court for the tax. The following objections were made to the defendant’s title:</p> <p>1. That the notice of intention to apply for judgment does not ■expressly show that the lands were in Muskingum county.</p> <p>2. The notice of sale and judgment did not so describe it.</p> <p>3. The notice of judgment was for $56.13 and 9 mills; while the judgment and sale were for $52 and 1 mill.</p> <p>4. That in the advertisements the land is described in the number of the tract by figures, and the range, So., by letters, while in the ■deed this is written out in full.</p>

It appeared by the record that Oliphant had a note on Wilson payable in money. He sent it to one Nelson in a letter, to be collected, without giving any directions to receive anything in payment but money. In a suit on the-note the above facts were proven by Oliphant, and also that Wilson,, before the suit, had delivered corn to Nelson in discharge of the note, and that Nelson agreed to deliver it up. This was the whole-evidence.

Divorce. Cause, extreme cruelty. These parties lived together for several years after their marriage, and most of the time occupied separate beds. After some short time succeeding their taking separate beds, she sold her bed to obtain necessaries; then he sold his. The bedclothes were laid in separate heaps; he lay on one, and she the other. He proclaimed that when he wanted to have connection with her, she had to submit to it, or do worse.

<p>Divorce. The cause alleged is, that the defendant had a former . wife living. The complainant offered depositions taken in Maryland, without notice to the defendant, or his attorney; but he proved that the defendant liad gone to parts unknown.</p>

<p>Appeal by executors and administrators without bond — form of notice-of set-off — interest on verdicts and awards — costs against administrators.</p> <p>Executors and administrators who have given bonds in this state may appeal without giving an appeal bond.</p> <p>It is not essential in a notice of set-off, to conclude it with a claim of judgment for the balance found, and judgment will be rendered if that is omitted.</p> <p>158] '^Interest will be allowed on awards and verdicts after their date up to the time of judgment.</p> <p>Costs may be recovered against an executor sued after his time of settlement has expired, to be levied of the assets in his hands.</p>

Replevin. Plea, that the property replevied was held by the defendant on an execution in his hands as constable against one A. B. To this there was a general demurrer, and joinder.

Certiorari. By the return it appeared that by legislative act the town council of Marietta was empowered to divide their school section into small tracts, and give leases for ninety-nine years, renewable forever, reserving a rent of six per cent, per annum upon the appx-aised value, and subjecting the lots so leased to re-appraisement every ten years.

Pleas. The suit below was upon an accepted order for the delivery of salt, drawn and accepted in Virginia in 1818. The defendant pleaded non assumpsit, and the statute of limitations of Virginia; upon which issues were joined. During the trial, a witness under examination proved the value of salt in 1818, in Virginia, to be one dollar a bushel.

Action upon the case against a justice of the peace for malfeasance in office, for not recalling an execution, after an appeal taken and perfected. It appeared in evidence, that after execution had issued upon a judgment against the plaintiff, rendered by the defendant as a justice of the peace, the plaintiff entered bail for an appeal, and the justice asked him to carry a notice of the recall of the execution to the constable, which he refused.

In Chancery. Bill for dower, brought here by appeal from the Court of Common Pleas.

In Chancery. The bill presents this case: That Jacob Fridley having seduced the complainant, and begotten a child upon her;, settled with her for the damages, and gave his notes, with Lewis Fridley his security, for two hundred dollars, the amount agreed upon.

Debt upon a note. It was agreed that the note was given for ' the balance found upon a settlement, and it was ascertained shortly after the settlement, that, by mistake, the note was for $30 too much, which amount it was then agreed should be endorsed on the note; but the endorsement was neglected.

<p>Partition — no appeal in statute affords cumulative remedy — chancery has jurisdiction — address of the hill — appeal quashed.</p> <p>Appeal does not lie to the Supreme from proceedings in the Common Pleas under the partition act of 1831.</p> <p>That act is cumulative to the mode of proceeding in partition; it does not take away from chancery its jurisdiction in such case.</p> <p>Whether a case is in chancery or not, may he determined hy the address of the hill to the court.</p>

<p>Exceptions to master’s report — mode of computing interest — two receipts and' payments explained.</p> <p>The proper mode of computing interest is, where more is paid than the interest due, to compute the interest up to the time of payment, and apply the sum paid to pay the interest, and the balance to the principal — if less is paid than will pay the interest, the payment is applied pro tanto to the interest as far as it goes. Interest is not to be compounded if to be avoided.</p> <p>Where two receipts are given for the same sum, one only is to be credited.</p> <p>Where there are two judgments against the same debtor, and both are levied on the same property, and the sale and money returned by the sheriff on both, the returns may be explained — there is no semblance of justice in. claiming a double credit.</p> <p>An after judgment for one of the sums as a debt of record, it is conclusive in such case.</p>

Ejectment to settle a question of boundary. The second and third corners called for in the plaintiff’s deed was a p>ost. It was in proof that a survey was made of the ground before the deed was executed, and the corner posts fixed. The respective parties had possessed the ground, and improved on each side up to a line drawn from these corner posts.

<p>Slander — affidavit to account — perjury—no slander to charge one of an offence which could not be committed.</p> <p>It is competent in slander to inquire as to the pecuniary ability of the defendant.</p> <p>An affidavit made to an account to be filed before a justice, is not authorized by law, and no perjury can be committed by swearing falsely in it.</p> <p>It is not actionable to accuse one of perjury in reference to such oath, because perjury could not be committed by it.</p>

Assumpsit for money had and received. The defendant was a creditor of an intestate estate of which the plaintiff was administrator. The plaintiff, supposing the estate solvent, or nearly so, had made payment from time to time to the defendant; but upon final settlement with the court, found that he had paid him $100 more than his distributive share of the estate.

<p>Motion for a mandamus.</p>

<p>Appeal from the Court of Common Pleas.</p>

Soiee eacias, to make securities whose names are endorsed upon a writ liable for costs. A declaration upon a scire facias has been filed, and particularly states the plaintiff’s case, to which there are several pleas. 1. Nul tiel record in the Supreme Court, of the summons, judgment, and appeal. Replication : there is such record, on which issue is taken. 2.

Assumpsit, for money paid and for moneys had and received. Plea, non assumpsit. On the trial, Woods was called by the plaintiff as a witness.

Debt, on a special bail-bond, and a general demurrer to the •declaration. The case is fully stated in the opinion of the Court.

Assumpsit for advances to a steamboat. Plea, non assumpsit, with notice of set-off. The plaintiff purchased the steamboat Mexico, but found her subject to a lien for advances; and to release her, had to give his own note for $555.50, the amount of the advances, which he subsequently paid. He now claims to oblige the defendant with the sum so advanced, as one of the owners of the boat at the time the debt, which he was compelled to discharge, was contracted.

<p>Fraudulent assignment — preferred creditors — possession.</p> <p>A failing debtor may prefer one creditor to another, and pay him in goods or money, and may sometimes fairly mortgage personal property and retain the possession.</p> <p>An assignment by a failing debtor, of all his goods in Cincinnati and elsewhere, and that thereafter might he purchased, to indemnify against endorsements, to he delivered up in case of loss to pay such endorsed paper, and then certain preferred creditors, where the goods were in the possession of auctioneers, is fraudulent and void.</p>

In Chancery. The complainant in this bill alleges that one Aaron Goforth died seized of lot No. 161, in Cincinnati, leaving sundry brothers his heirs. That his administrators applied to the Court of Common Pleas, and obtained an order to sell said lot to pay debts, under which it was sold to the complainant, but no entry or record was made of said order of sale, it has been held invalid at law, and the defendant as heir-at-law has recovered an ejectment.

<p>Assumpsit upon a bill of lading against the owners of the steam boats Tecumseh and Amazon, for the loss of goods shipped by the plaintiffs. Plea, non assumpsit.</p> <p>The bill of lading was for merchandise shipped on the Amazon to-New Orleans. On the left margin of the bill was a memorandum in these words: “Shipped at Cincinnati on board steamer Tecumseh, to be re-shipped at Louisville per steamer Amazon.” It was 194] *admitted that the Tecumseh and Amazon were both owned by the defendants, and that in certain stages of the river, the Amazon, being the largest boat, was engaged in the lower trade below the falls of the Ohio, and that the Tecumseh was emjiloyed in the trade above the falls, and in taking freight to the Amazon below. When the goods in dispute were shipped, the Tecumseh was at Cincinnati, and the Amazon at Shippingport.</p> <p>A great many witnesses were examined before the jury. From the testimony it ajipeared that until about 1819, it was the general custom to transport merchandise at low water around the falls on drays.- That about that time sonv> carriers began to use flat boats to. transport over the falls, and from that time to this, the use of flats for that purpose bad been increasing, though both methods were still used. It was left uncertain which method now prevailed most. The transportation over the falls in flats was preferred by many, because it kept the goods cleaner, exposed them less to the sun, left them in a better state for the market in the lower country, and was less expensive. That mode of passing the falls was more hazardous than by drays, but was counterbalanced by the advantage arising from the convenience of the transportation and condition of the goods. The insurance officers charged one-eighth per cent, more premium for insurance if the goods were intended to pass the falls in flats; but it frequently happened that carriers obtained leave to take over the falls in flats, either verbally, or by memorandum on the bill of lading; though they frequently used flats without having such leave. It was more convenient to the carrier to pass in flats. The memorandum on the bill of lading to ship in other boats, or flats, it was customary to consider a part of the bill of lading.</p> <p>When the Tecumseh arrived at Louisville, the state of the river was such as to induce a doubt about taking her over the falls and back again, and the pilot declined taking her over, although some witnesses testified that then, and until the Thursday after, there was water enough on the falls for the boat to. pass. The cargo was transhipped into flats, but the wind blowing fresh, the pilot refused to take them over. They were then moored for the night, and properly guarded. Early the next morning, the Lady Franklin run foul of the flats and sunk them.</p> <p>The net loss of the plaintiff’s goods was $999. In the progress of the testimony, the plaintiffs called a witness to prove that it was the understanding between the parties, that the freight should be carried over the falls in the Tecumseh.</p>

In Chancery. The ease made is this: The complainant endorsed certain notes, given to him by Dodge, to Spencer, and Spencer endorsed them over to Carneal. Dodge, the maker, failed, and Carneal afterwards agreed with Spencer, for a certain sum, which was-paid him, to release him from responsibility, and look only to Perry. Subsequent to this, Carneal and Perry settled, and Perry paid him for the whole of the notes in property and contracts, some of which are now outstanding.

Assumpsit. The plaintiff declared as guardian for Catharine Ford, the intestate, for money disbursed for her when a minor. He averred that he had settled his guardian account with the Probate Court, and that a balance was found due him of $253.28 from his ward, the defendant’s intestate, v>hereby she became bound to pay, dbc. Plea, that the action did not accrue in six years, to which there was a general demurrer, and joinder.

<p>Replevin. The only question presented to the court was-whether it is competent in assessing damages for the detention of goods replevied, to include the expenses of prosecuting the suit for the recovery.</p>

Debt upon an appeal bond. Plea, that execution had been sued out on the judgment against the principal debtor, which was levied upon 200 cords of bark, of value more than sufficient to satisfy the judgment, and which remained on hand unsold. Replication, that all the property levied upon was sold, and was sufficient to satisfy the judgment. On this replication issue was joined.

Assumpsit upon a policy of insurance upon the steamboat Trenton, on time. Issue, non assumpsit. The boat, while within the ¡policy, was taking in freight at Page’s warehouse, above the mouth of Bear Grass creek, and near Louisville. After the freight was on board, they proceeded to drop the boat down to the landing at Louisville, with a tow-line and yawl, but without steam. The yawl was manned with four hands.

Ejectment for lot 35, in Cincinnati. The plaintiff made title under a decree of the Supreme Court in Hamilton county, divorcing Nancy Lefevre and her husband from bed, and board, and allowing her the use of the lot 35 for her alimony. The defendant offered to read in evidence a deed from, Nancy Lefevre, bearing date after her marriage and before her divorce from Lefevre.

<p>Chancery. The case is fully stated in the opinion.</p>

<p>Certiorari t.o justices — concurrent jurisdiction of Supreme Court.</p> <p>The Supreme Court has concurrent jurisdiction, with the courts of Common Pleas, to examine into the proceedings of justices of the peace, and other inferior tribunals, but the jurisdiction is more conveniently exercised by the Court of Common Pleas, and application should be made there for redress, unless special cause exist for coming into the Supreme Court.</p>

Assumpsit, for supplies furnished the steamboat Amazon. Plea, non assumpsit. It was agreed that the supplies were furnished the boat, while the defendant had possession of her as mortgagee.

Ejectment. The plaintiff traces his title to J. C. Symmes. One of the deeds offered was from Woodward and wife, of the interest 209] *of the wife. She has since died, leaving issue and her husband; there was no certificate of the separate examination of the wife, at the acknowledgment of the deed.

Divorce. The bill charged adultery with one MeGrew and others, as the ground of the application. It was proved that the defendant was intemperate. No evidence was offered of the adultery with MeGrew, but evidence was offered of adultery with other persons.

Divorce. The bill alleges a marriage, twenty-three years ago; that the defendant enlisted into the army as a soldier; that the petitioner has raised her family by her own industry without his aid; that he is intemperate, and has been absent for more than three years. 2111 *The answer denies that the defendant left, orhas separated from his wife willingly; but avers that he ever has wished, and still wishes to live with her.

Ejectment for lots 18, 19, 43 and 44 in Cincinnati, on which the Methodist chapel is erected. The plaintiffs claim as heirs of Samuel James, jr., and derived their title through James his father, and Gano and wife, hack to J. C. Symmes, the common proprietor. When the deed to young James was executed he was an infant only two or three years old, living with his father, who was then in embarrassed circumstances.

Assumpsit, upon a policy of insurance effected by the plaintiff as agent for the owners of the steamboat Trenton. Plea, non assumpsit. The policy offered in evidence had the corporate seal 215] *affixed to it, was objected to on the trial, and ruled out: and the plaintiff was non suited.

Ejectment for the south half of lot one hundred, in Cincinnati. The plaintiffs derived title from the heirs of Isaac Ludlow, and proved that the defendants entered into possession under the owner as his tenants, and then rested. The defendants offered evidence to show a sale by the administrators of Ludlow for the intestate’s debts, a deed by the administrators, and a sale by the purchaser to third persons.

<p>Replevin, for a quantity of merchandise received by defendant at New Orleans, to be delivered to the plaintiffs in Cincinnati, they paying freight. The goods were . forwarded in different parcels, though contained in one bill of lading. The jury, in a 217] special verdict, found *that the goods were received and transported by the defendant as common carriers, part of them delivered; and the delivery of the residue tendered upon condition the freight was paid; but payment being refused, the defendant detained the goods for the freight.</p>

Debt, for money paid, laid out and expended. Plea, nil debet. The plaintiff to support his action offered a Kentucky record in evidence, from which it appeared that A. brought a joint suit against four persons, including the defendant. The process was served on the other three, and judgment and execution was had against them.

Assumpsit for goods sold. It appeared in evidence that the defendant, after he received the goods, sold out his stock to a partnership, who agreed with him to pay the plaintiff’s demand. The defendant, before he sold the goods, had asked the plaintiffs if they were willing to take the new firm, and received for answer that they were. The sale was made, but the purchasers would not give their obligation for the debt.

Assumpsit upon a note for $298.81, at three months. Plea, non assumpsit. The note was read in evidence, on which there was a credit endorsed of $40. The defendant, J. Goodin, was called up with a bank cheelc-boolc, from which checks, when filled, were cut out, leaving a memorandum on the margin, opposite to which each was cut out, of the name to whom it was given, the amount, date, &c. To this he offered to be sworn, as to a book account.

Assumpsit, on two acceptances, for $?25.44, of J. Oliphant & Co. endorsed to the .plaintiff, by S. Alden, the payee, one dated the 24th February, and the other the 18th of March, 1829. Plea, non assumpsit. It was proven that prior to March, 1829, the plaintiff and defendant, with one Oliphant, were in copartnership in a shoe establishment in Philadelphia, under the firm of J. Wescott <& Go. and in a house in Cincinnati under the name of Wescott & Go.

Debt, upon an appeal bond, given to appeal a judgment against Harrison, from the Court of Common Pleas, to the Supreme Court. It is averred, that a recovery was had in the Supreme Court, for $323.34, at May term, and that an execution issued upon the judgment, which has been returned, nulla bona. *To this declaration the defendant demurs specially, and [222 assigns the following causes of demurrer, to wit: 1.

Ejectment. The plaintiffs claimed under a judgment of the general Court of the Territory northwest of the Ohio. He offered the minutes of the court, viz.: 11 J. JR. Millsv. J. C. Symmes, March term, 1800/ verdict $1,300; judgment upon the verdict; costs $44.46;” and proved that there was no other record. The plaintiff then offered an execution in evidence.

<p>Divorce — wilful absence' — leaving with intent to return.</p> <p>There must be full three years’ wilful absence to allow a divorce for that cause.</p> <p>Where the husband leaves his wife intending to return, but afterwards determines to continue away, he will be considered wilfully absent, from the time he resolved not to return.</p>

<p>Lands of deceased debtor — scire facias — judical sale — heirs—marshalled assets— priority of lien.</p> <p>The real estate of the ancestor will not be subjected to a judgment against the ancestor in his lifetime, if it has been sold by the administrator to pay debts.</p> <p>In such case, the administrator’s sale is a judicial one, and as completely divests the heir of title and the judgment of its lien, as if sold in execution upon the judgment.</p> <p>If a sale has been made by administrators, but no deed made, the court will not, on that account, award execution against the land.</p> <p>The proceeds of such sale are marshalled assets in the hands of the administrator, to be paid to the lien holders according to their priority of lien.</p> <p>If a sale is averred in a plea, the want of a deed should be averred in a replication; it cannot be noticed* on a demurrer.</p> <p>Courts of law, as well as chancery, have jurisdiction of such matters.</p>

<p>Suit upon a policy of insurance, dated the 5th of November, 1831, upon $600, of stock, household furniture and wearing apparel, in :a grocery and dwelling house, on the northwest corner of Walnut and Columbia streets, Cincinnati, against loss by fire, for twelve months.</p> <p>There are six special pleas and issues not material to set out. The main defence was directed to establish fraud on the part of the ■plaintiff, in the concealment of goods in the first instance; in causing ¡the fire, and that the fire resulted from gross negligence of the plaintiff; and that certain articles for which the plaintiff claimed payment were not within the policy.</p> <p>It appeared in evidence, that when the plaintiff applied to insure, the company sent their surveyor with the plaintiff to look at the property intended to he covered. He was taken through the shop and house. The stock was very small; there was but little furniture, and that was of a cheap kind; the wearing apparel of the family that was shown was of the poorest kind. The plaintiff applied to-insure for $1,200, but 'when told the articles were of trifling value, he said that he expected to increase the stock in a few days, and to-keep it up. A policy was effected for $600 only, and the plaintiff was informed that it would be increased when the stock would warrant it. No Irish linen, or sheets, or shirts, were shown to the surveyor, or spoken of. The store was a grocery, in which it is usual-to keep liquors, wooden ware, slops, and gross articles of most varieties. A fire suddenly broke out about three months after the policy, and everything was burnt up. Compensation was claimed foithe furniture, amounting to about one hundred dollars; for a watch;, for the stock in the shop; and also for three hundred and sixty yards-of Irish linen, nineteen pair fine linen sheets, thirty-eight fine linen, shirts, and a quantity of diaper, which had been smuggled into the-country from Ireland. These articles had never been used, though once washed because they were soiled in the passage. The linens, &c., were said to be stowed away in the garret; they were not used in the'house, nor kept in the store for sale.</p>

<p>Workmanlike — implied contract — chimney flues — masons’ rixles — rule of damages.</p> <p>Where a mechanic undertakes to build a chimney, the law implies that he employ in the work competent skill to effect the end, and that he proceed according to the usage of the trade.</p> <p>*Quere: if there be any rule among masons for constructing chimnies?</p> <p>If the woi-k done is useless for the purpose intended, the damages should make good the expense of rebuilding, the injury to the house, loss of x-ent, discomfort, and the expenses of obtaining legal redress.</p>

Ejectment for lot No. J, in. Cutter’s subdivision of Cincinnati. The plaintiff claimed title under Susan Cutter, one of the heirs of *Seth Cutter, deceased. A deed was produced executed and [232 acknowledged in Kentucky, the signature of the grantor proved. The plaintiff offered to read it to the jury.

Quo Warranto. Rule to show why a writ of quo warranto shall not issue against Buchanan to exhibit his warrant for exercising the office of director of the Commercial Bank of Cincinnati.

The case below was assumpsit on a bill of lading for goods injured in the possession of the carrier. The bill of exceptions showed that on trial of the issue of non assumpsit the plaintiff exhibited the bill of lading which contained the usual clause, shipped in good order and well conditioned, and proved that when the goods arrived they were injured. The defence set up was that the goods were injured before they were taken on board.

Assumpsit, for wages as steward of the steamboat Pioneer. The plaintiff proved the service and the common rate of wages. The defendant proved certain payments, and then called Austin as a witness, who admitted that he had been part owner of the Pioneer, but having failed he had assigned his interest to Perry, having now no interest except in the residuum, should there be any.

Divorce. Cause, wilful absence more than three years. The defendant in her answer denied that she left the complainant’s house, but alleged that she attended to her duties, until at his request she left him, in order that he might get a wife more suited to his character. As the cause was called on to hearing, leave was asked .and obtained by the defendant to withdraw her answer. Several witnesses were examined by the plaintiff.

<p>' Chancery. The case is fully stated in the opinion of the court-</p>

<p>Chancery subjecting effects in aid of execution at law — diligence—priority of distribution — practice.</p> <p>The creditor who first files his bill to set aside a fraudulent conveyance, and to subject the assigned effects to his judgment, being the most diligent creditor, secures to himself priority in distribution over other creditors.</p> <p>Where a plaintiff has acquired, by execution at law, a legal preference to the assistance of a Court of Chancery, that preference is always preserved, in the distribution in chancery.</p> <p>■^The course of practice in this state is, to secure to the most vigilant [247 creditor the advantage his diligence obtains.</p>

<p>Error to the Court of Common Pleas. The case below was a scire facias on a mortgage. The judgment rendered was a general one against the defendant in the first instance, not an order to sell the mortgaged premises. The process issioed against the husband and wife, but was not served, because they signed a paper, waving the service. The husband is since dead, and the widow brings this writ of error.</p>

<p>Title acquired after mortgage — redemption—scire facias on — judgment on, concludes after acquired rights.</p> <p>A purchaser of the mortgagor after the mortgage, cannot he let in to redeem the premises against a purchaser under a sale upon a scire facias on the mortgage, or against a judicial sale.</p> <p>Interests acquired from the mortgagor of the mortgagee on which the scire facias issued, and the sale was made, are concluded by the sale.</p>

<p>In Chancery. The bill in this case states that on the 3d of January, 1822, Joseph Ruffner mortgaged one hundred and sixty-three 250] *acres of land in Butler county, a house and lot, No. 22, on Main street, Cincinnati, and lots 1, 2, 3, 4, 5, 6, V, 8, 9, 10, 11, 12, 13, 14, 15, 16, IV, 18, 19, 20, 21, 25, and 26, in McFarland’s subdivision of that city, to the Baixk of the United States, to secure the payment of sundry notes given by him, and endorsed by Abraham Ruffner, his brother.</p> <p>That on the 5th of January, 1822, Joseph Ruffner mortgaged the same property, and also lots 360, 361,362, 385, 386, 38V, 388, and part of lot 8 in the Gutter tract, in and near Cincinnati, to Abraham Ruffner, in order to secure him for his endorsements. This mortgage was in the form of an absolute deed.</p> <p>That in June, 1823, the Miami Exporting Company recovered a judgment against Joseph Ruffner, for $9,202.78, besides costs. Execution was issued upon this judgment, and the lots 360, 361, 362, 365, 366, and 367, levied upon, and sold on the 11th of January, 1825, to the complainants.</p> <p>That in April, 1827, Joseph Ruffner settled with the Bank of the United States, and executed a release to it of all the property included in the mortgage to the bank, together with considerable other property. He also procured Abraham Ruffner, for the sole consideration of being discharged from his endorsement, to release to the bank his interest in so much of the property as was embraced in both mortgages, and to convey to the bank the remainder of the property included in the mortgage from Joseph Ruffner to him, embracing the six lots purchased by the complainants on their exe-r cution. The bank then knowing that Abraham Ruffner had no other interest in said lots, save that of a mortgagee, and that the residue of the property conveyed to it by the Ruffners was,more than sufficient to secnre the debts for which they were mortgaged to Abraham Ruffner.</p> <p>That Joseph Ruffner, ever since the execution of the mortgages has been, and still is, in possession of said property. The Bank of the United States refusing to release the said six lots, this bill is brought to compel them to release, and for.general relief.</p> <p>The answer of the Bank of the United States admits the conveyances, judgment, and sale, in the bill set forth; but denies knowing, when it took the conveyance from Abraham Ruffner, that the deed from Joseph to him was only a mortgage. It claims that Joseph Ruffner was at that time largely indebted to the bank, and that Abraham’s endorsements for him then amounted to $8,669.47; while Joseph’s other liabilities were, at that time, $15,958.34. It asserts that the property has been applied, first, to satisfy the_ debts for *which Abraham was security, and secondly, to the other debts. [251 That the property mortgaged was subject to earlier encumbrances, which it has been compelled to extinguish; that lot 22, on Market street, was sold for $1,976.62, upon a prior encumbrance, and has been so withdrawn from the mortgage. It claims also, that between 1825 and 1827, finding the titles to the six lots purchased at sheriff’s sale, by the complainants, to bo in one Betsey Drake, the bank, as assignees of the Ruffners, procured from her a deed.</p> <p>The answers of the Ruffners admit the general allegations of the bill, but set forth several encumbrances on the lots, which existed when they were mortgaged to the Bank of the United States.</p> <p>To these answers there is a general replication. The proof taken was read. The case appears in the opinion of the court.</p>

<p>Distribution of fees between old and new sheriff — settlement—opening up a settlement.</p> <p>The Court of Common Pleas has power, by law, to determine what portion of the outstanding fees or execution shall be paid to the outgoing sheriff, who assigns over the process.</p> <p>"When the court has fixed the rule, and the parties have acquiesced and settled, the incoming sheriff has no right to retain other fees due to his predecessor,,, and compel him to open up the settlement and refund. In such case, the court will hold the parties to abide their settlement.</p>

Trover. This case was submitted to the court upon the following agreed state of facts : That on the 23d November, 1832, one Jessup arrested II. Raguet, an insolvent debtor, who gave bonds for the prison limits, and was set at liberty. The 27th of the same month, Raguet, though still on the limits, confessed a judgment to*N. Dike, on which execution issued, which was levied upon certain household furniture in possession of Raguet, on the 3d of December,. 1832.

In Chancery. This case was submitted to the court in Hamilton county, and reserved for a decision here. It had been fully argued before the last Court in Bank, but sent back to Hamilton county to additional parties. The case is fully stated in the opinion of the court. The arguments are too voluminous to be inserted.

Ejectment. The plaintiff offered in evidence a mortgage deed to his lessors, dated the 12th of August, 1818, acknowledged before W. Corry, mayor of Cincinnati.

It appeared by the record that when the suit was pending before the Court of Common Pleas, it was referred to Chittenden, Douglas.and Wilson; that at the time fixed for the meeting of the arbitrators Wilson did not attend. The award, which was made by Chittenden, Douglas and one JRichardson, asserts on its facethat Richardson,'by consent, was substitued in Wilson’s stead, and was that Young should pay ten dollars, was returned to the Court of Common Pleas.

<p>Minor executing a mortgage and judgment against, — no relief in chancery — limitations — sleeping upon one’s rights.</p> <p>Where a minor has executed a motgage and judgment has gone against him upon sci. fa. and two nihils, his remedy is by writ of error, and if he has slept upon his legal rights until they are barred by the statute of limitations chancery will not afford him redress.</p>

Divorce. Cause, adultery with Ellen Wilcox and Jane Richardson. It appeared in evidence that these parties were married about eight years ago, and that about two years since the husband was seen in bed with Ellen Wilcox. He was aftewards seen in bed with Jane Richardson, and had lived with her as his wife for two .years. He had secreted and conveyed away his property. A witness was called to prove his general character for chastity.

Divorce. Cause, wilful absence and adultery with a certain woman. It appeared in evidence that these parties removed into Butler county in 1819, and there lived together until 1828. He left her eight or nine years since and went to Cincinnati, saying, he' could not live with that woman, and would not.

Chancery. The case made is that of several judgment creditors, who had levied executions upon separate pieces of real estate in the lifetime of the testator.

Divorce. Cause, wilful absence. This suit was conducted at the instance of a man by the name of Keeler, by Williams, for the petitioner. The evidence introduced proved the absence of the 287] ^defendant, and that for six or seven years last past, he lived at the Bayou Sarah, in the lower Mississippi, and had married there. It appeared in evidence also, that for six or seven years, the petitioner had been living with Keeler as his wife, and had children by him.

<p>Scire eacias to revive a judgment. Two writs have been issued and returned nihil. The plaintiff moved for judgment, or a short rule for plea.</p>

<p>Trespass q. c. f. — possession—miller taking part profits, possession in owner— right to sue.</p> <p>Possession of real estate is necessary to enable a person to sue in trespass quare clausum fregit.</p> <p>But if the owner of a mill place a person in it to tend mill and givebim-a portion of the tolls, that does not take the possession from the owner.</p> <p>The tender of the mill, or the person leasing it might as incident to the occupancy enter upon the land along the race, &c., to keep up the repairs, but the owner of such grounds would not thereby be so divested of possession, that he could not sue in trespass quare clausum fregit.</p>

Chancery. The bill states that the defendants gave their note to the complainant for $224, which it is alleged is lost, and the greater part of the amount due.

It appeared by the record that an action of trover was brought before a justice of the peace against J. & J. Hare — the writ was- returned, served by reading. The docket entries show that the parties appeared, and the defendant asked for and obtained a continuance. ' The defendant again appeared and judgment was rendered against him: The defendant then appealed to the Court of Common Pleas — and the recognizance-was for the a/ppellcmt.

A rule was granted at the last term of the court, that Green township, in Clinton county, show cause, &c., W’hy a mandamus should not issue to compel them to levy a tax to satisfy the judg- . ment in the above stated case. No case was stated above in the rule, and it was supposed the reference was to the title of the case In the margin, with the words “judgment for the pltf. in O. JP” annexed.

Assumpsit upon a promissory note for 6793, dated 2d November, 1821, payable in nine months. Issue was joined upon non assumpsit, with an affidavit. *The plaintiff read in evidence to the jury the depositions of [294 William and Aaron Hagerman, brothers of the defendant, and of Messrs. Bray, Lowe, Vetohe, Schench, Snyder and Dunham, taken in N. Jersey, and they examined before the jury Mr. Hardy, Col. Bigger, Judge Smith, and J. K. Wilds.

<p>Divoece. Causes alleged, “extreme cruelty, adultery with another woman, desertion, and confinement in the penitentiary of Pennsylvania for infracting criminal laws.”</p>

Assumpsit on a note dated the 7th January, 1829, to A. Beach or bearer, for two hundred dollars in one year. Issue, non assumpsit.

The judgment of a justice of- the peace had been brought into the Court of Common Pleas .upon certiorari, reversed, and a judgment given for costs on the writ of certiorari: that court retained the cause for further proceedings under the statute, and no final record of the case has been made. The writ of error was allowed on copies of the entries in the •Common Pleas, and the same are returned with the writ.

<p>Depositions taken within ten days oí the term, in a chancery case, cannot be-read at the hearing, unless taken by consent, or by order of court.</p>

Divorce, Cause, alleged extreme cruelty. The petitioner .filed her bill, and now offers affidavits of cause, moves for an allowance *for«erself and children pendente lite. Notice to the defendant [309 of the motion, and of taking the affidavits, was proven.

In Chancery. Col. Hardin had entered land upon a Yirginia warrant, on the Little Miami, and .afterwards, in satisfaction of the… Held: the land in dispute, last entered on Hardin’s warrant, obtained a patent for it, and brought ejectment, to turn Saum out of possession, who claimed under Hardin. The bill prays a perpetual injunction against the ejectment, and that Latham may be decreed to hold the land embraced in the patent to him, in trust for Saum, and to release.

<p>Chancery — fraud—waiver—ratification—short payment by mistake — performance.</p> <p>Where an agent, to divide a lot and ascertain the price of it. withhold the information, by agreement with a person desirous of purchasing at a low rate, until he apply for a purchase, such suppression is fraudulent.</p> <p>But if the vender of the lot afterwards, on being made acquainted with all the circumstances, ratify the contract, he has waived his right to object on account of the fraud.</p> <p>Although all the money has not been paid on a contract to convey land, if it appear the balance was withheld under a mistaken construction of the con- ■ tract, the court will decree the payment of the balance due, and a convey- , anee when it is paid.</p>

<p>Error to the Common Pleas. The original suit was before a justice. The defendant then gave bail to stay the execution of the judgment against him, and afterwards, before ten days had expired after the judgment, gave bail, for an appeal to the Common Pleas. That court quashed the appeal, because the appellant had forfeited his right to appeal, by entering bail for stay of execution, and ordered the appellant to pay two dollars costs. To reverse these orders, this writ of error is brought.</p>

In Chancery. The bill set forth a contract of marriage by the complainant, and the promise of the woman to convey to him one hundred acres of land, which she held; that he married before the deed was executed, and then the wife made a will, devising the lapd to the complainant, but being advised it was not valid for such purpose, she executed, without uniting with her husband, a conveyanee to a trustee, and died; the trustee conveyed to the complain-316] *ant; that the…

Assumpsit, Upon an agreed state of facts, it appeared that the defendant had received one hundred and seventy-five dollars for the plaintiff’s use, and had afterwards agreed that he would come to Washington and convey him land for it, which he has not done.

Slander. The first count of the declaration, charges the uttering of the plaintiff, the words, “ Sarah Sexton has gone to Kentucky to have a bastard child; Sarah is with child; Sarah Sexton had a bastard child.” The second count sets forth these words: “It is reported Sarah was like to have a little one when she went away, and had gone to Kentucky to have it. What has Sarah Sexton gone to Kentucky for?

<p>In Chancery. The parties had settled the matter in controversy, and submitted the question of costs to the court.</p>

In Chancery. Motion to dismiss the appeal, because the bond was not executed within thirty days after the rising of the Court of Common Pleas, at which the decree was rendered.

<p>Interrogatories in chancery — demurrer to idle — unskilful bill — court will suggest amendments.</p> <p>The interrogatories annexed to a bill in chancery must be in accordance with the allegations of the bill; all beyond are idle.</p> <p>If the bill is answered, a demurrer will not lie to the interrogatories annexed.</p> <p>Where the interrogatories are unwarranted, the defendant should answer to the pertinent ones, and omit to answer the others; the complainant can except to the answers, which will present the question of their pertinence to the decision of the court; if found proper, a further answer will be ordered.</p> <p>Interrogatories are not usual in our practice, and are in general unnecessary, except in cases of fraud.</p> <p>Where there is an unskilful bill and answer, leaving it doubtful if the proper relief can be decreed, the court will suggest an amendment to both parties, without costs.</p> <p>No man can be called in question under our constitution for his religious belief; but if it be necessary to inquire into the tenets of a body of worshippers to settle a controversy between them about property, that is constitutional.</p>

<p>In Chancery. A bill to set up a lien at law, lost by delay.</p>

<p>Mistake in a conveyance — new bargain — excess of quantity.</p> <p>No mistake in a conveyance can be reached and corrected in chancery, unless it be one in drawing the writings to carry out the actual contract: error in making the bargain, or a failure to realize as much as was anticipated, cannot be reached in chancery.</p> <p>Chancery will not put such a construction upon the words of a contract as to defeat its object; that would be making a new bargain, instead of correcting a mistake.</p> <p>■Where the land described in a deed for mill privileges is a narrow strip frequently overflowed along the creek bank of three or four acres, it does not claim much regard in a court of equity.</p>

<p>Bill in chancery to enforce an ante-nuptial agreement.</p>

The writ below was assumpsit itpon the special promise of the defendant, for the hire of a boy then living with the plaintiff,'.’under his control, though he was neither his parent nor guardian;1: The court below instructed the jury that the plaintiff was not entitled to recover, unless he could show a legal right to the services of the boy, and that the mere fact of his residing with him under his control, did not, with the contract of hire, constitute a right to recover.

Ejectment, to recover Cedar Point, near Sandusky Bay, in the' fire lands. The plaintiff, in making out his title, offered in evidence the list of the fire sufferers, in Swan’s Land Laws, 82, and the records of the Fire Land Company.

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.

<p>Error — pleading—surplusage—substantial finding.</p> <p>In a suit by an assignee of a note, the plea was attached under the attachment law, as the credit of the payee of the note, the obligor summoned in as garnishee, and the money collected of him by execution — replication, that the note was negotiated before the attachment, concluding with a verification, and to the country — rejoinder that the plaintiff received the note in fraud of the attaching creditor, concluding with a verification — no rebutter; on trial it was found that the defendant did assume, &c., and that the debt was not attached, on which judgment was given for the plaintiff — -held on error that, the replication denied the fact of the plea, and properly concluded to the country, the verification as well as the rejoinder are surplusage — held also that the finding was upon the substantial issue, was acquiesced in, and good after judgment.</p>

Error. Mason sued Crane in the Common Pleas in trespass for taking and carrying away sixteen muskrat traps, &c. Crane plead qd 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.

<p>Error. Worden sued Smith for trespass, in taking, &c., ahorse. The plea was not guilty, with notice that the horse belonged to one Beatty, and that two executions were issued m his (Smith’s) favor, against Beatty, on which he levied upon, and sold the horse,</p> <p>*On trial, the plaintiff proved that, m December, 1830, he [335 purchased of one Magee two horses, and delivered them to Beatty to rise during the winter, and took from Beatty a yoke of oxen to use instead of the horses. That Smith ordered out the executions against Beatty, and caused one of the horses to be levied on and sold. The constable did not remember, at the time of the levy, ■ whether heynti Ms hands on the horse, but he took hold of the halter, He left the horses with Beatty, and took a receipt for the delivery.</p> <p>The defendant (Smith) then moved the court for a non suit, and the court below overruled the plaintiff’s evidence, and ordered a non suit. The defendant refused to submit to a non suit; whereupon, the court instructed the jury to find for the defendant, which they did; on which there was judgment; to reverse which this writ is brought.</p>

<p>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. The cause was submitted to the court, upon an agreed case, as to the tender, as follows; The plaintiff, in January, 1832, brought suit for the same cause of action, the writ was served; afterwards, on the same day, the tender was made, without costs, and the plaintiff was non suited. The plaintiff then brought (this) the second suit, and on return of the writ, the defendant brought the one dollar fifty cents into court, and kept it good, until the cause was appealed to the Court of Common Pleas. He then brought it into that court, and there kept it good. No money was offered to the plaintiff after the first non suit, nor was any demand made. On this, the Court of Common Pleas found that the defendant did not assume, &c., except for one dollar fifty cents, and as to that, the defendant did not tender. The plaintiff had judgment with costs; to reverse which, this writ is brought.</p>

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 jwssession, 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.

<p>Statute of limitations — debt—pleading—certainty—demurrer—judgment.</p> <p>The act of limitations in Ohio of 1810, did not provide any bar for debt on simple contract except for rent.</p> <p>A plea of the statute of limitations of a foreign state, is bad, unless it describe its terms with such certainty, that the court may know the provisions relied upon.</p> <p>A demand to take a case out of the statute, made before the law passed, providing thatmode of taking a case out of the statute, is not good.</p> <p>Since 1830, contracts made in other states between their citizens, which are barred by their laws, are held barred in Ohio.</p> <p>A statute will not be construed to have a retroactive operation, if to be avoided. Where a note is payable on demand, it is not due until demanded.</p> <p>On demurrer, the court look to the first fault in pleading, and give judgment accordingly.</p>

Tkovjer for a wagon and horse, and sundry other property. It appeared in evidence, that the articles were delivered by the intestate to John Town, in part of a contract for land, and Morris left in possession of them. Before Morris’s death, it had been agreed to cancel the contract. At the death, Town held the property as Morris’s agent.

<p>Void and irregular process — trespass—case—motive—ca. sa.</p> <p>Irregular process is not void, and persons acting under such are protected; in trespass the motive is not in question.</p> <p>■ Were a ca. sa. has been issued, the defendant has been discharged, it is grouqd for satisfying the judgment, hut if no satisfaction is entered, and another ca. sa. issues and is levied, the defendant may obtain his discharge on motion to the proper court: but if he pay the debt, he cannot bring trespass for the second arrest.</p> <p>If such second writ were sued out maliciously the remedy is case, not trespass.</p>

This was an action of slander.' In the progress of the trial, the plaintiff called William Foreman as a witness. ■ The defendant objected to his being received as a witness, and offered “to prove that the witness disbelieves in deity — in a future state of rewards and punishments — and in the moral government of anSupreme Being in this world; and that he disbelieves in the obligation of an oath taken in a court of justice.”

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 Pennslyvania. After this the courthouse and record of the judgment were burned up.

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 $1,000, and no breaches were assigned nor damages assessed. 2.

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.

Assumpsit for goods sold; &c., money paid, and bad, and received. Plea, non assumpsit. The plaintiff read a receipt, signed by the defendant, for 25-J- 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.

<p>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.</p> <p>On trial the jilaintiff called <?. Tod, late president judge of the Common Pleas, to testify what a witness, now dead, had testified to on a former trial in this case.</p>

Ti-ie 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 §5,000, 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.

<p>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.</p>

<p>Replevin for a bay mare. Plea, property in tbe defendant, and issue.</p> <p>It appeared in evidence, that tbe 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 tbe defendant to have 357] *won, and the mare was delivered accordingly. The plaintiff’s horse bolted from the course, and he contended the race was not fairly won, and told the stakeholder not to deliver, or not to deliver till tbe judges decided. The transaction took place while the gaming act of 1824 was in force.</p>

<p>Bill in chancery, to enforce a lien upon land sold for the payment of notes, which were transferred by the vendor to the complainant, in payment of a debt. The notes were not negotiable.</p>

<p>Slander, on a charge of perjury. Plea, not guilty, and notice of justification that the words are true.</p> <p>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.</p>

The plaintiff belowbrought trover for property he purchased of one Wheeloek, and the defendants claimed under a subsequent sale by Wheeloek, 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.

<p>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 \ arious persons for several years, 361] *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. The plaintiff’s agent notified them that the ore was raised by trespassers, and that he should look to them for the price if they purchased; they continued to purchase. Some of the tracts from which the ore was raised, had been under contract of sale when part of the ore was raised and sold, but these contracts were rescinded, though the purchasers still continued to raise and sell ore. A great many witnesses were examined as to the quantity and price of ore, the places whence brought, and the knowledge of the defendants of the place where procured, and that it was without authority.</p> <p>In the progress of the examination, the plaintiff’s counsel asked of a witness, if the person who received the ore acted as clerk of the defendants at the furnace.</p>

<p>Injunction — evidence—record—repair of roads and bridges — trespasser ab initio.</p> <p>A writ of injunction may be given in evidence, without the record of the case; and for a supervisor of highways, though directed to him as an individual.</p> <p>The authority to enter adjoining land and cut timber to repair roads, covers the like entry to repair a bridge part of the road, and that authority is not limited to the period between the 1st of April and the 1st of October, but may be exercised whenever the road is out of repair.</p> <p>A supervisor entering to cut timber for repair of road may be held a trespasser ab initio.</p>

<p>Assumpsit. The 1st count on a note, dated 26th April, 1831, for $1,647.30, 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.</p> <p>On the trial, the plaintiff offered a receipt, dated 26th April, 1831, for $1,647.30, to be paid in iron, ose., as per contract with Root and Wheeler, of the 30th September, 1830, and the contract between Root and Wheeler. They then proved a demand of payment and a refusal, until Wheeler discharged a mortgage, which the defendant claimed was a lien on the purchase, but which Wheeler denied had existence.</p> <p>The defendant objected that the suit should have been brought pn the original contract, and not on the receipt, referring to it. A verdict was taken for the plaintiff for $1,857.69, subject to the opinion of the court on the objection raised.</p>

Ejectment for fifty-one acres of land in tract 1, Madison. The plaintiff offered a deed from Caleb Strong for the land claimed, to their ancestor, and proved his death and their heirship; and rested.

Debt on a penal bond, conditioned that Butler should make a •deed for certain land, within a stipulated time.

The case below was assumpsit on the common counts. Plea, non assumpsit, and notice of offset. It appeared by a bill of exceptions, that when the cause was called for trial, there were no pleadings on file, and the defendant’s witnesses 369] *being absent, he objected to going on without the pleading and issue, but agreed that a declaration had been filed iiz assumpsit, to which there had been put in the general issue, with notice of setoff.

This case was originally brought by Payne before a justice of the peace, for a fine of $10.25, assessed ^against the defendant as a militia officer. At the trial, the [370 plaintiff produced a certified list from the court of appeals, showing a fine annexed to Knight’s name of $10.25. The defendant then offered evidence to show that he was not liable to fine, which the justice refused, and gave judgment for the plaintiff.

<p>Pledge — interest of the pledge — statute of limitations as to parties.</p> <p>Where notes and other dioses in action have been given to a person to in-, demnify him for Raving gone security for the pledger, with an agreement they should be the property of the security if be was made liable, the security does not hold the notes absolutely, but as indemnity, and is liable to-account.</p> <p>The equity of the statute of limitations does not apply to trust property, between the cestui que trust and the trustes.</p>

<p>Resulting trust — voluntary conveyance — cloud upon title prevented as well as removed.</p> <p>Where one buys land for another and with his money, and the deed by mistake is made to the agent purchasing instead of his principal, the agent may afterwards convey to his principal without consideration, and though he be embarrassed at the time, the conveyance is good.</p> <p>A levy upon a man’s real estate as the property of another, and the proceeding to sell at the sheriff’s sale, is calculated to embarrass and throw a cloud over the title, and will be enjoined in chancery.</p>

Assumpsit on a note by Phillips to Beach or bearer, payable the 7th April, 1831, with the common counts. Pleas: 1. Non assumpsit, with notice of setoff. 2. Accord and satisfaction by a horse, delivered to Geo. Emory, agent. The plaintiff read the note endorsed to the plaintiff, and proved that he received it in 1830, in payment of land, and rested. The defendant offered to prove an arrangement, made with John Emory, about horses, &c.

The record shows that the proceedings were brought into the Court of Common Pleas on a certiorari to a justice of the peace, and the cause being docketed under the statute, the plaintiff declared in assumpsit. On the- trial, the court admitted as witnesses for the defendant two of the trustees of the township, who were objected to by the plaintiff.

<p>Error to the Common Pleas. Beckwith, for the use of Meacham, sued Dodge, and Dodge got judgment for the costs. He sued out a fi. fa. which was returned non est, and then sued out a scire facias against Meacham, to show cause why judgment should not be had against him. Meacham demurred to the sci. fa., and Dodge had judgment. To reverse which, this suit is brought.</p>

<p>^Rescission of a conti'act — settlement takes away the right of action on it — court may comment on facts, not find them for a jury.</p> <p>On a contract for articles to be delivered in futui-e, and when part only are delivered a settlement takes place, that rescinds the contract as to future delivery, and destroys the right to recover for any violation of the original agí eement.</p> <p>A court may comment on facts to a jury, and assist them in searching for the truth, but it has no authority to instruct the jui-y what facts are proven by oral testimony.</p>

Blanchard was convicted of stealing bank notes, and sentenced tobe imprisoned and to pay the costs. He received a general pardon from the governor. After this execution was issued for costs. Blanchard paid the money; but while it remained in the hands of the sheriff, moved the court to vacate the judgment and execution, and to have the money restored. The facts were admitted. The court being of opinion that the pardon 378] *did not embrace the costs, overruled the motion.

Cuyler declared below in assumpsit, in four counts — the three first, special, on a note drawn by one Sheldon, payable to Crandall or bearer, and endorsed by Crandall to the plaintiff; and the fourth the common money counts. Plea, non assumpsit.

<p>Nuisance, for injury to a mill and dam possessed by the plaintiff, in damming uj> water. Plea, not guilty.</p> <p>After the evidence was closed for the plaintiff,</p>

Palmer sued Harper in assumpsit upon a note, payable in cattle. A trial was had on the plea of non assumpsit, and notice that by a subsequent agreement, the time for the delivery of the cattle was extended, and a tender -and refusal within the extended time. The clerk of the Court of Common Pleas certifies to this court, 1.

In Chancery. The hill makes the following case : That Martin, in 1821, by parol contract with one Thompson, sold him a lot m TJnionville, for fifty dollars, to be paid in two years, and put him in possession under the contract; that he built on the lot, and made improvements to the value of eight hundred dollars. *In 1826, Thompson sold to Palmer, by consent of Martin, and [385 Martin accepted Palmer for the purchase money, instead of Thomp-son.

Bill of review. Marvin was in partnership with one Adams, and while in partnership, purchased a tract of land with partnership funds, and took the title to himself. The partnership was after-wards dissolved, complainant being then in possession of the land. Adams still holding the legal title, mortgaged the land to the defendant, Joseph Trumbull, in trust, for the defendant, H. C. Trumbull, to secure an individual debt of Joseph, due to H. C. Trumbull.

<p>Error to the Common Pleas. The plaintiff counted below in assumpsit upon a special contract of the defendant to pay forty-five dollars, on or before the 30th of March, 1826, in work on a frame barn, for the rent of a piece of land, which he had enjoyed. The breach alleges a readiness to receive the work on a frame barn, but that the defendant had not done it. Pleas : 1. Non assumpsit. 2. That the defendant "was ready to do the work, but the plaintiff had no frame barn on which to do it, but neglected to provide one, with a traverse of the plaintiff’s readiness to accept and the defendant’s refusal to do, &c. The plaintiff demurred to the second plea *for duplicity, which the court overruled, and gave judgment [389 for the defendant. In this it is alleged the court erred.</p>

In Chancery. Leavitt gave a contract for land to one Baker, who assigned it to J. and S. Cary, and the purchase money was nearly paid up. J. Cary then sold J. and S. Cary’s interest to Taft 390] *for two hundred and seventy dollars, payable in three instalments.

The case below was assumpsit. On the trial, the following facts appeared. Moreton representing himself of ability to pay, induced one Crandall to sell him a piece of woodland, upon his contract to keep down the taxes, and to pay a stipulated sum at a future day. Crandall went into possession of the land, sold the timber upon it to Reese, and took his note, which was the foundation of the suit.

In Chancery. The bill claims that Seely, as guardian of Melinda Miller, recovered a judgment against him for two hundred and eight *dollars and ninety-seven cents. Melinda died in 1830, and ad-[391 ministration on her estate was granted to Hubbard and another, who directed the complainant notto pay to Seely. In 1832, the complainant paid the administrators, and took their receipt. The prayer of the bill is for a perpetual injunction against tbe judgment.

Indictment for tbe murder of Maria Gardiner, alias Maria Buel. Plea, not guilty. It appeared in evidence that Maria Frances Buel, commonly called Maria Buel or Maria Gardiner, was the daughter of the prisoner’s wife before her marriage with him. At the time of her death, she was an interesting young woman of about sixteen years old. She had lived with her mother and the prisoner.

Chancery. Bill by the administrators and a part of the heirs of Williams, against the other heirs, alleging that Williams, on his deathbed, in presence of two witnesses and his children, determined how much of his estate was due to each child, and entered on his book, in the form of an account. To the wife of Pope, one of the defendants, he allowed less than to the other children, as she had been raised by another person, and contributed little to make the estate.

Moore brought trespass against Wheeler for entering his field and cutting and conveying away his grain. On trial, upon not guilty, it was proven that Wheeler was owner of the fee of the land, and in possession. Both him and Moore claimed a right in the growing crop of wheat.

Chancery. In May, 1808, R. Goudy deeded sixty-nine acres of land to his son Joseph, in consideration of certain covenants by the son, to provide for the wants of his father and mother for a stipulated time. These covenants’were complied with until 1816, when Joseph died, leaving the complainant his widow, and an infant son his only child.

<p>Money paid to a justice, stolen. — bailee without reward — liability—gross neglect — privity.</p> <p>Where money has been paid to a justice of the peace on a judgment on his docket, and he place it for safekeeping in the same place with his own money, and it is stolen without his default, he is not liable unless guilty of gross neglect.</p> <p>If received by the justice while an execution is out upon the judgment in the hands of the officer, the justice receives as the bailee of the debtor, without privity between the justice and the plaintiff, and he cannot recover of the justice.</p> <p>But in either aspect of such a case the justice would only be liable for gross neglect.</p> <p>A bailee without reward is only liable for gross neglect.</p>

Chancery. The complainant alleges that in February, 1828, he recovered a judgment against Freer, who is insolvent, and that the 413] ^judgment yet remains unpaid.

The suit in the court below was brought against an administrator, on the 15th March, 1828. The plaintiff recovered judgment, and the question was whether he could recover costs. It appeared that in June, 1824, the will of Love was proven, and Geddes qualified as executor under it. In April, 1826, the court gave the executor time to settle the estate, until November, 1826.

Assumpsit. On trial, it appeared in evidence, that the parties had purchased a drove of horses together, and started with them to an 415] *eastern market. Before they reached Pittsburgh, on the 19th of May, Kline sold his interest in the drove to Prindle, and took his due bill for four hundred and fifty dollars, which is the foundation of this suit.

Divorce. Cause, wilful absence. It appeared in proof, that in 1827, the complainant, then about-years old, was married to the defendant, then about fourteen years old. She was unwilling to marry Mm, and said she could never love him; but by his procurement, she was coerced into the marriage. They lived together a few months, when she left him, went to her friends in Massachusetts* and refuses to live with him longer.

Paine sued the commissioners by their individual names, before a justice, in debt. The justice gave a judgment of non suit, and for costs for the defendants, for which the plaintiff apjrealed to the Common Pleas. The defendants moved the court to quash the appeal, for the following reasons: 1. That as the commissioners represent the sovereignty of the county, and the jurisdiction of a justice is limited to the township, he has no jurisdiction against the commissioners. 2.

The papers in this cause show, that in March, 1832, a certiorari was ordered by the Court of Common Pleas to issue to Justice Root, to certify a transcript of the judgment and proceedings before him, in a plea of trespass on real estate, between the parties. This writ never issued; but a transcript of the justice’s docket, in a suit between the parties, was filed by the party complaining, with the clerk of the Court of Common Pleas.

Wilcox and Gamble declared against Singletary in the Common Pleas, in assumpsit, upon a parol award to pay on request. Upon trial on non assumpsit, the plaintiffs proved the submission by Wilcox, for himself and Gamble, and the award; but gave no evidence of a request or demand of Singletary to comply with the award.

Soon after tbe court opened and engaged in business in the morning, several-companies of militia were paraded with, martial music near the windows, and made so much noise and disturbance, as wholly to interrupt the business of the court. An officer was sent several times to advise those in command that the court could not proceed, and to request them to desist, or remove. This produced no effect.

Debt upon a judgment of a justice of the peace. The declaration contains two counts; first, on a judgment for $198.40, and forty-seven and a half cents costs; the second, on a like judgment, saying nothing about costs. Pleas, nil debet, and nul tiel record. Issue was taken on the nul tiel record, and a general demurrer filed to the nil dehet, which was joined.

Debt upon the judgment of a justice in Pennsylvania. The , declaration upon a judgment for $86.38, and three dollars eighteen cents costs, rendered the 23d of October, 1819. Plea, nul tiel record,, and issue.

Beebe declared in the. ■Common Pleas, that on the 9th of September, 1820, Miller and his wife executed to him a mortgage (which had been lost), by which» they conveyed to him a tract of land upon condition, to be void if Miller paid, on or before the 1st of April, 1822, to Rowland Craig, $192.07, to Thomas Bingham $138.04, and to J. G. Gross $198.26,, in which he covenanted with Beebe to pay said sums. It was assigned for breach the non payment of either of said sums.

The suit below was assumpsit by McCullum. He declared — 1st. Upon an agreement to find materials, and put a dwelling house under roof, in three weeks. Breach, the not finishing it for six weeks, by which the house was exposed and injured, and work inartificially done. Whereby, Pool became liable to McCullum for a large sum, over fifty dollars, in consideration whereof he promised, &c. 2d. In the common counts for money, goods sold, and work and labor.

Assumpsit. 1. Count on a note for Si00, given by Rehman to Thos. Ford, payable in thirteen months, from the 2d of April, 1827, endorsed to the plaintiff before due. Notice to the defendant, and-a promise by him to pay in a reasonable time, in consideration of the note, endorsement, and its remaining unpaid. 2. Same, with a promise to pay generally, without any time. 3. The same to the endorsement to the plaintiff.

Covenant on a lease, dated the 1st of January, 1815, executed by the trustees of Green township and the defendant, for school section sixteen, township twenty-one, and range seventeen, for fifteen years, on account of improvements.

Nye declared below npon a contract between him and Watt, that if Nye would complete the erection of a bridge he was then building, Watt would furnish the plank. The plaintiff assigns for breach, that he performed the work and Watt did not furnish the plank. Plea, non assumpsit.

<p>Fraud — want of consideration — mistake—evidence—court and jury.</p> <p>If a note was obtained by fraud, or given for a consideration, which lias failed, or by mistake, the defence may be made in a suit between the parties.</p> <p>Evidence tending to prove any aspect of the issue, should be admitted to the jury.</p> <p>A court should not substitute its own judgment for that of a jury, on facts.</p>

Chancery. The complainant sets forth in the bill, that he is proprietor of two judgments, against Jo. Williams and others, which remain unsatisfied, notwithstanding executions have been issued. Held: although occupied by the father, which state of things so clouds the title, that a sale cannot be made at law. Amos died in 1828, leaving a widow and two children (defendants) his heirs, and prays a sale of the land to satisfy the judgments.

The suit below was trover for a horse. Ritchy, the plaintiff, claimed the horse as a gift from Post, his father in-law. Martin, the defendant, claimed under a purchase from the administrators of Post.

- Miss Cromer sued Her in the court below for slander, in charging her with having had carnal connection with a dog. On trial upon not guilty, the witness called to prove the words was asked on cross examination by Iler, if the words used were not hypothetical, if any one had connection with her it was the big dog.

The case below was a scire facias against Heath, to show cause why execution should not issue against his lands upon a justice’s judgment. The writ was issued in Rich-land county, directed to the sheriff of Franklin, and was by him served and returned. No cause being shown, an order of execution was made on the default, and judgment rendered for costs. Heath now claims to reverse the judgment and order, because the proceeding was unauthorized.

<p>Fraud — trust—refusal to execute contract — rescinding contract — surrender— seeking and doing equity.</p> <p>Cook bolding land upon a contract of purchase, sold to Carter on time, and. put him in possession: Carter refused to pay up his contract, or pay off the original purchase, and the vendor threatened suit; McGiffin, at the instance of Cook, stepped in and agreed to advance the money, and take the title to himself, to secure it for Cook; Carter became his tenant, refused to execute with him the contract, hut afterwards surrendered it to Cook at a stipulated price, for which he got judgment against Cook, who is insolvent. This contract is not fraudulent on the part of McGiffin, and Carter has no equity to be charged with his debt on the land; all the lien he had he surrendered to Cook.</p> <p>Although, in such case, a trust may have been created in McGiffin to the extent of Carter’s right, he discharged the trust by refusing to perform the contract in the first instance, and in the second by the surrender to Cook.</p> <p>There is no fraud in such case, by holding out Cook as the owner, to induce a credit to him affecting McGiffin’s right.</p> <p>A party that seeks equity must do equity.</p>

Error. Kerr recovered a judgment before a justice of the peace, and Hall became bail for stay of execution. After the time for the stay had expired, an execution issued, but before the money was ■^‘collected, the defendant died and the execution was returned [447 unsatisfied.

The ¡flain448] * tiffs in error recovered a judgment against Tallmadgo and Beers, in October, 1831, levied an execution the same month upon the east part of one hundred acres of land, which was appraised and sold to one Warden. Walpole had a decree against the same persons for costs in the Court of Common Pleas in May, 1831, which was appealed to the-Supreme Court, and the same decree rendered there, in October, 1831.

<p>Proof of contents of a lost note — evidence under non est factum without affidavit.</p> <p>Before proof is admissible of the contents of a note, the foundation of the suit, the party must satisfy the court the note is lost.</p> <p>On non est factum without affidavit, the defendant is not permitted to contest the due execution of the note — the plea without affidavit gives the plaintiff no notice to. meet such proof.</p> <p>But in such case leave will be given to annex an affidavit, on paying costs and proceeding with the trial.</p> <p>An heir of the plaintiff’s intestate, who has conveyed his interest in the estate unconditionally for the purpose of becoming a witness is competent, as the motive affects only his credit.</p>

<p>Bail for stay of execution is not liable to suit until execution has issued against the judgment debtor.</p>

Case for maliciously charging plaintiff on oath with having stolen a trace chain, and procuring him to be taken on a warrant for larceny, and to be detained a long time before a justice, before and *after examination, to enter into recognizance to appear at [451 the Court of Common Pleas, to answer the charge.

Assumpsit for goods sold. Plea, non assumpsit. On trial, the plaintiff exhibited a book which he proved to be the testator’s book of accounts, and offered to read therefrom an account against the defendant.

<p>Bill of exchange — order by client for money collected — notice.</p> <p>An order by the client upon his attorney to pay money out of any collected by him, is not a bill of exchange.</p> <p>The party receiving money in advance upon such an order, is liable for the advance, if he have no notice of the refusal to pay by the attorney.</p>

Divorce. Cause alleged, wilful absence more than three years, and adultery with Susanna Lines. A witness testified to the marriage of the parties, their living together, and having children. He frequently left his family poorly provided for, but would return occasionally and live with them. It had been so for six or seven years.

DBBT'for money had and received. Plea, nil debet. It appeared in evidence, that an unincorporated banking company was in operation in 1817, and ceased to do business in 1818; that the defendant, Duffield, was president of it, and Baird the cashier, and both acted as partners. The plaintiff then produced a bundle, containing in all about $2,500, of the hills of that bank, of various denominations, and proved the handwriting of the president and cashier.

Divorce, cause, wilful absence. It appeared in evidence that these parties were married in 1829. In May, 1830, the petitioner took a job on the canal, at a distance from his home, and went to perform the work, leaving his wife behind in a cabin, with a scanty supply of provision. Soon after he left, she took her little furniture and went to her mother’s, where she staid a short time, and then went to her brother’s, where she still resides.

The plaintiff declares in assumpsit for one-seventh of the residue of the testator’s estate, and avers a settlement of the estate with *the Probate Court, and a balance in the hands of the exe- [458 cutor. Plea, non assumpsit, and notice of setoff.

Ejectment. The defendant claims title under a sheriff’s deed and sale upon execution. The deed is regular, and it is admitted that the whole proceedings are regular except that of the appraisement by the sheriff. If this does not invest the defendant with a legal title, it is agreed the plaintiff shall have judgment.

Debt. The obligation exhibited was a note for money with a scrawl in the place of a seal affixed, but no mention was made of a seal in the note. The question is whether the note can be recovered upon as a sealed note.

In Chancery. The complainant alleges that he contracted with the defendant for her dower right in a quarter section of land, gave-his notes for the purchase-money, and took from her a deed of conveyance, for all her right of dower, to him and his heirs-: That at the same time he contracted with her two minor children for the fee, one of whom has since attained to majority and refuses to comply -with the contract: That he was induced to buy the dower under the assurance she…

<p>Debt, for money had and received. Plea, nil debet.</p> <p>The plaintiff offered in evidence an article of agreement between-, the parties for the sale of land.</p>

Debt, on a recognizance against the defendants as security, under the bastardy act. It appeared, that the court ordered the accused to pay a sum certain periodically for the support of the child, to pay the costs, give security for the performance, under which this recognizance was taken; that execution had issued against him for the costs, and they had been collected; that he had paid for the maintenance in full of the order, except ten dollars, when the child died.

<p>Trespass. The first count in the declaration is for a common assault and battery; the second, for false imprisonment. Plea, that a constable had an execution issued by a justice of the peace against the plaintiff, on a judgment in favor of one Spicer, commanding him to make $3.50 debt, and forty-five cents costs, of the plaintiff’s goods; and in default, to take the body; on which, in default of goods, the plaintiff was arrested; but, refusing to go quietly along, it became necessary to command assistance, whereupon the constable summoned the defendant as an assistant, and he obeyed, which is the trespass complained of.</p> <p>To this plea there is a general demurrer and joinder.</p>

<p>Case against the defendant as surgeon and physician. The declaration contained three counts: 1. On the defendant’s undertaking 467] ^skilfully to set Mrs. Gallaher’s leg, which had been broken; breach, that he so unskilfully set the leg, that it is of no use. 2. On his pi-omise to attend Mrs. Gallaher, and skilfully set and cure the broken leg; breach, that the work was done so carelessly, that the leg is ruined. 8. On a contract to attend, take care of, and cure the leg, in a skilful manner; breach, that he so carelessly performed that the leg is useless. Plea, not guilty.</p> <p>Evidence was introduced to prove that the defendant was a surgeon; that he was called by Gallaher to his wife in the usual way, and attended and reduced the limb, but in the cure the ankle joint became anchylose, and the foot turned in, so that in walking, the weight of the body fell on the outer side of the foot, near the root of the little toe. Much evidence was also given of the kind of treatment bestowed upon the limb, some condemning and some approving, when the plaintiff rested.</p>

<p>Divorce — adultery—reputation—separation—wilful absence.</p> <p>A man will not be supposed to have committed adultery, while wife and child are on the same bed with him.</p> <p>The wife’s general reputation for being lewd will not strengthen the supposition, nor be sufficient evidence of adultery, because she had a child while living separate from her husband, if so near that he might be supposed to have access to her.</p> <p>Wilful absence will not he presumed against circumstances tending to show the separation by the procurement of the party alleging it.</p>

<p>Assumpsit, for the balance claimed upon a contract to do the mason work of a mill. Plea, non assumpsit, and notice of setoff for money had and received. &c,</p> <p>Tiie contract was in writing, to do the work at a stipulated price per perch. The work was done and the mill occupied. It was admitted that the number of perches in the mill, at the stipulated price, amounted to $1,502.22, on which there had been $1,286.96 paid, leaving a balance at that price of $215.26. The defence was that the work was badly done — that the sum paid was more than the work was worth, and the defendant claimed to recover back the sum overpaid.</p> <p>A witness for the defendant was asked how the work compared with other work generally ?</p>

Barrett agreed with one Wheeler to bet a note he Held on a third person, against a clock, up>on a horse race. The note endorsed, and the clock, were delivered to Neill, as a stakeholder, to deliver to the winner. Barrett and Wheeler afterwards agreed not to run, and to withdraw the bet. The defendant, without authority, had cashed the note, and on being notified of the abandonment of the bet, refused to deliver the note or the cash, and the plaintiff brought suit.

Covenant. The plaintiff covenanted to build a tunnel and lock, at a stipulated price, to be fully paid at the completion of the work, but provided that advances should be made to him from time to time as the work progressed, upon the estimates of the engineer.

Divorce. Cause, extreme cruelty and wilful absence. These parties were married in Muskingum in 1829. She had a child before •she was married, but afterwards her character was good. He be•came intemperate, and neglected to provide food or clothing; was frequently absent. . He abused her person by blows, and she struck back, after which they became reconciled, and lived together, and again quarrelled.

<p>In Chancery. The complainant, a lawyer, had placed in his-hands by Hall, a note (not negotiable) endorsed to him by Leech, the payee. He brought suit in the name of "Leech, for the use of Mall, and has recovered judgment and received $171. Before the judgment, Leech gave notice that the note was his, and not to pay to Hall. Both threaten suit. The complainant offers to pay the-money into court, and prays that the defendants may interplead and settle their rights.</p>

Case for refusing to permit the plaintiff to transfer stock of the-intestate in the bank. The cause was submitted to the court upon an agreed state of facts which are sufficiently noticed in the decision.

Assumpsit upon a note signed F. B. O. Kensell & Co. Plea, nonassumpsit, without affidavit. The plaintiff offered to read the note in evidence.

<p>Pleading — inducement—innuendo—jurisdiction where the court is a party.</p> <p>Where the right of action depends upon extrinsic matter, the declaration discloses no title to recover unless such matter he introduced by way of inducement; the allusion to it by way of innuendo is not sufficient.</p> <p>Quere, if the Court of Common Pleas can hold jurisdiction of a case in which they are parties?</p>

<p>Certainty in indictment — defacing or altering ear marks.</p> <p>An indictment must describe the offence with such certainty as to apprise the defendant what he is to answer, that he may shape his defence and plead the judgment in bar.</p> <p>An indictment for defacing an ear mark does not attain to such certainty which does not set out the mark alleged to be altered or defaced, or describe the alteration or how defaced.</p>

Chancery. Appealed from the Common Pleas. It appeared by xhe 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.

Assumpsit. The declaration contains two counts; the 1st, avers that the plaintiffs had a judgment against Poor, rendered in the name of the defendant, for their use, on which the defendant was attorney of record, and as attorney of record without the knowledge or direction of the plaintiffs, received of Poor, horses to the amount of said judgment, to his, Douglas’s, own use, and satisfied and discharged the judgment, by means whereof the defendant became liable, &o.,…

The record shows that the plaintiff originally brought suit before a justice of the peace, which was brought by appeal into the Common Picas. The plaintiff declared in assumpsit on the common money counts. Issue was taken upon non assumpsit, and also upon non assumpsit infra sex annos.

Divorce and alimony — cause, extreme cruelty by beating, &c. The petitioner is about fifty years old, decrepid and feeble — the-defendant sixty. They were married in 1823, and soon after it became notorious that they quarrelled. In 1S29 or 1830, several witnesses saw him standing over her in th'e door of his own house in a. violent passion — she was crying, her hair down, and clothes disordered. He threatened the witnesses, to keep them away, as they thought.

In Chancery. The bill alleges that the defendant, Nicholas, is the complainant’s husband, and having treated.her with extreme ■cruelty, and left her without the means of support, fraudulently confederated with his son, the other defendant, to depnive her of all means of support, and, without any consideration transferred to him §1,600 in securities, and about §1,200 worth of real estate, all the property the said Nicholas had: That she has filed her petition under the law…

Assumpsit for money had and received, to recover back money received by the defendant, as auditor of the county, for his fees and compensation, for the years 1826, 1, 8, and 9; which it was claimed was more than was allowed in the fee bill for the services of that officer.

<p>Appeal — notice of the act"of party — nunc pro tunc.order, cannot be made except the fact transpired' — not to correct errors of the party — an unauthorized act cannot be made good by alter order of court.</p> <p>Where a party desires to appeal from the Court of Common Pleas to the Supreme Court, he must enter notice on the records of the court during the term of the judgment, and if he omit the entry, and merely declare in court his intention to appeal, that will not authorize the court, at a subsequent term, to order an entry nunc pro tunc.</p> <p>The giving notice of appeal is the act of the party intending to appeal, and if he rely upon the clerk to do it, the clerk, as to that act, is his servant, and he must see that he performs his undertaking.</p> <p>*The law allowing appeals must lie followed; it is matter of strict law, [496 not resting in the discretion of the court, and if the law is not followed, the appeal is not perfected; the court cannot change the law to cover the party’s neglect.</p> <p>The proper office of a nune pro tune order is to preserve the evidence of some act done, when the clerk has neglected to make the entry; the court has no power to order a fact to be entered as of another time, which did not then transpire.</p> <p>After the cause is appealed, the court appealed from has no jurisdiction, and can make no order touching it.</p> <p>A court cannot make an act legal by after entry, which was not so when done, nor in its discretion allow an appeal in any other way than as the law prescribes.</p>

<p>In Chancery. The bill claims the foreclosure and sale of twenty-five acres of land held by mortgage, and for the conveyance and sale of twenty-five and a half acres of land, of which Johnson held only the title bond of Glaze; both tracts were mortgaged to secure the payment to the complainants of certain notes.</p> <p>Johnson has not answered. Glaze answers, and disclaims all knowledge of, or interest in the twenty-five acres; but as to the twenty-five and a half acres, asserts a lien on it for a debt due him by Johnson, for which he pledged the land with him after the date of the mortgage. He admitted that at the time of the pledge of the bond with him, he knew of the mortgage.</p>

<p>Aeter the plaintiff had proceeded some way with his testimony, he informed the court that owing to the absence of a witness who had been summoned, and for whom he had since issued an attachment, he must submit to a non suit: whereupon the jury were discharged, and a non suit ordered.</p>

Ebbor to the Court of Common Pleas. The plaintiff declared below in trespass. There was a general demurrer to the declaration. On hearing, the court sustained the demurrer and gave a peremptory judgment for the defendant, refusing leave to amend. It is assigned for error that the court erred in both particulars.

<p>Contempt — witness making efforts to get to court not in contempt — process in, not to redress the injury to the party, but to punish.</p> <p>Where a witness intends to obey the process, and has made efforts to attend, he will not be fined if he does not arrive until half an hour after the time specified in the subpoena.</p> <p>Process of contempt is to punish the disobedient witness, not redress the party subpoenaing him; for his injury he has his action.</p>

<p>Practice — receipt against a judgment — satisfaction—assessment—after notice assignee protected — precipe authority for clerk.</p> <p>Where a justice of the peace against whom there is judgment issues process on a judgment on his docket against the party recovering of him in favor of a stranger, with intent to use the process to obtain a receipt for so much o.f the judgment against him, he is not entitled to favor — if he have right, it is matter of strict law.</p> <p>If, under such circumstances the defendant get a receipt in full for the judgment, and have notice of an assignment of part of the judgment, another execution will issue for the amount assigned.</p> <p>No form of notice in case of assigned judgments is requisite; that which puts a party on his guard, and enables him to protect himself, is sufficient.</p> <p>The receipt upon a judgment does not, per se, satisfy the judgment, nor is the clerk authorized to judge of receipts and satisfy the judgments — that power is confided to the courts.</p> <p>The precipe justifies the clerk for issuing an execution, and if improperly issued, the courts may stay, until motion to enter satisfaction, or to quash.</p> <p>The proper course, in case of a receipt, is to apply to the court to order satisfaction — without satisfaction entered, the judgment is in apparent force, and execution may issue.</p>

^Replevin for a sorrel horse. Plea, non detinet, with notice [504 that the property in the horse is in the plaintiff. Fifty witnesses were examined by the parties' — thirty-seven of these for the plaintiff, expressing the opinion that the horse in dispute was'the property of the plaintiff — thirteen of them for the defendant, expressing the opinion the horse was that of the defendant.

Trespass, q. c. f. for breaking the house of the plaintiff, and car-vying away goods, &c. The defendants pleaded severally 'not guilty. Wilson and Wisby gave notice of justification as deputy sheriffs, in entering to serve a writ of replevin, Wisby v. one Corben. Rallston also justified as constable, in entering to serve a writ of attachment against Corben, as an absconding debtor.

Ejectment fora piece of land. The plaintiff proved the possession of one Masterton, before that of the defendant, and a deed of conveyance from him to the lessor of the plaintiff, and then called Masterton to prove to the court the destruction of a title bond given by him to Pindall, which was assigned to the plaintiff's lessor •and under which he gave the deed to Woods.

In Chancery. The complainant charges that her late husband' died in Kentucky, in 1825, intestate, leaving eleven children, then-all minors but the defendants.

Libel for publishing of the plaintiff in the Ohio Sun, “he has put the seal of reprobation on his own character for truth and veracity, and also I have been told he is not to be believed when under oath.” Plea, not guilty. The plaintiff having produced the paper containing the libel, and proved the publication of the piece, containing among other things, the matter declared upon, offered to read the paper.

<p>Perpetuating evidence — desposition for recorded in sixty days — notice —certificate where no one interested is known — papers referred to — agent— evidence</p> <p>Depositions taken under the act of Feb., 1824, to perpetuate the testimony of witnesses concerning lands, may be read if recorded on the sixtieth day after taken, that being within sixty days.</p> <p>Notice of such depositions is required to be given by the judges, to persons interested, if known and in the county, andi if they certify that they know of no person interested in the county, they may be read. Notice is not required where they are unknown or reside out of the county.</p> <p>Where papers are referred to in such depositions, but are not recorded, that part of the deposition only which refers to such papers, will be rejected, and the papers themselves may be offered, as if never referred to in the depositions</p> <p>An agent is a witness of his transactions as agent from necessity, being liable to either party, according to the circumstances.</p>

Divorce. Charge, adultery with one Sims on several days and nights. It appeared in evidence, that these parties having been married, and living together in harmony until a few months back, having four children, the youngest an infant. Ashorttime since, the husband left his wife on their little farm, where she still resides, but he has since sold the farm and most of the personal property.

In Chancery. The hill was filed in 1830, and one of the complainants died previous to the last term of this court, when an order was made that the bill stand revived, and the representatives *were then made parties by the court. This proceeding was [519 now objected to.

<p>In Chancery. This case is stated in the opinion of the court.</p>

Ctsrtiorari. Ely h’acl judgment at law against McGuire on a mortgage, upon which execution was levied on the mortgaged premises, and they were sold by the plaintiff to Hawkins. Hawkins having dealings with Ely, who owed him money, exchanged receipts with him, giving him a receipt for the amount of his purchase, on account, and taking one from Ely for the same amount as so much money in full of the purchase, which he gave to the sheriff.

<p>In Chancery. Bill for the sale of mortgaged premises, to make the mortgage money, and a foreclosure. The mortgagor, a junior mortgagee and judgment creditors of the mortgagor, are made defendants. The cause came on to hearing in the Common Pleas upon the answer of the mortgagor. As to the other defendants, ■the hill was taken as confessed. The court ascertained the amount ■due the complainant on the mortgage, and decreed the payment of the money, that a master sell the premises, and for the coming in *of the report, the cause was continued. From this decree [523 the defendants appealed to this court.</p>

Debt on a bond, conditioned to pay £82 15s. 6d. for Moore, on the death of Jennet Schockly. Pleas, 1. non est factum; 2. payment; 3. statute of limitations. Replication, that plaintiff lived in Pennsylvania. Issue was taken *on the two first pleas, but as to the replication, an agreement [525 of counsel was filed to consider the issue as made up.

In Chancery. The master to whom this cause was referred at the last term {ante 261) having filed his report, amongst other things allowing claims against the estate'of St. Clair, amounting in all to §36,000 :

Haines and Fox produced a bill of review of the former decretal order in the case of Piatt v. St. Clair’s heirs (ante 201), in behalf of S. 6r. Brown, the administrator, against his co-defendants in the original suit, and Piatt, the complainant in that suit, and praying that the decree may be reversed, 1. For errors in law appearing on the face of the decree. 2. For new matter discovered since the rendition of the decree.

Assumpsit on a note executed by the defendants jointly, for the sum of five hundred dollars, payable in thirty days, with a stipulation to pay fifteen dollars in advance for every thirty days the payment should be continued beyond that time.

Covenant upon a policy of insurance on a lot of coffee from New Orleans to Cincinnati, in a steamboat. Several issues were joined, and much evidence given. It was proven that the boat in ascending the Mississippi near island No. 124, left the main channel of the river, and attempted to shorten the distance, by'running through a chute or cutoff, where boats run at high water.

Assumpsit on a policy of insurance, dated the 11th March, 1830, for §6,000 on the steamboat Neptune for eight months to Williams, for whom it might concern. The policy contained a stipulation that no further assurance should be made on the boat, &c. Plea, nonassumpsit.

<p>Covenant ou a policy oí insurance on dry goods against fire for five months from August, 1829.</p> <p>Plea, that the plaintiff effected another insurance on the same interest, and gave no notice to the defendants.</p> <p>The sixth clause of the policy is, “That persons insuring property at this office must give notice of any other insurance made on their behalf on the same, and cause such other insurance to be endorsed on the policy: in which case each office shall be liable to the payment of a rateable proportion of any loss or damage which may be sustained. And unless such notice is given, the insured will not be entitled to recover in case of loss.”</p> <p>In the progress of the case, a deposition of one of the plaintiffs {they having assigned all their interest to trustees for the benefit of their creditors) was offered in evidence.</p>

Error. Bates declared in the Common Pleas against Wood, upon a special contract, dated 21st May, 1831, by which Wood agreed to sell him five shares of stock in the Commercial Bank of Cincinnati, at $55 a share, to be paid for when transferred, and to call at his coffee house the next day, and transfer the stock according to the rules of the Bank. He averred his readiness to receive the stock and pay for it, but Wood did not come and transfer.

The suit below was assumpsit for the labor of the wife while sole, and while she was between eighteen and twenty-one years old: on trial it appeared in evidence that the labor was performed, and that plaintiff’s wife had been hound by an indenture to the defendant, which expired in December, 1831.

Covenant on a policy of insurance, dated 20th October, 1829, on $2,000 of merchandise of the fourth class of hazards, against fire for five months. Pleas. 1. Non est factum. 2. The fire was occasioned by plaintiff’s negligence. 3. The goods were not consumed by fire. 4. That plaintiff did not furnish proof of loss sixty days before the suit, or at any time before. 5.

Robinson brought trover for a hog,, and proved on the trial the hog to be his, and that the defendant-set on his dog and killed him. The defendant proved that some time before the hog was killed,, the plaintiff had made a bill of sale of sundry property, including the hog, to one Schofield to secure him a debt of $40, and left the stock near where he stood; after which the hog run at large, and Schofield exercised no acts of ownership, over him.

Debt, upon a receipt for wool, dated Litchfield, Ct., the 30th June, 1821, to be paid in six months at the Phoenix Branch Bank, signed C. C. Wolcott, agent. Plea, nil debet. The plaintiff offered to read the receipt in evidence without proving its execution.

Assumpsit on a written agreement between the parties, for the-defendants to take all the salt the plaintiff manufactured between the 2d of June, 1831, and the 1st of January, 1832, to be delivered at the landing in Cincinnati from time to time as the navigation of the Muskingum and Ohio should permit, and to pay forty-five cents-a bushel.

Bill in chancery, to compel the specific performance of a contract between one Warrington and the defendant, for the sale and conveyance of an acre of ground, one-half of the purchase of which was paid in hand, and for which a deed was to be made when the balance was paid. Warrington went into possession, erected a house, &o., and assigned to the complainant, who has offered the balance due and demanded a deed, tvhich was refused.

Mr. Echert testified that a year or two ago Mrs. B. was talking of moving away, when Beatty came up to her and knocked her down.

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 5. 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.

In Chancery. Exceptions to the report of the master made under the decretal order of the court: see 6 O. 118. 1. Because the master charged interest from the time the money came to the hands of the guardian, without allowing him time to invest it. 2. Because the master stated an interest account of the receipts and disbursements, instead of making rests.

<p>Divorce — requisites of petition — extreme cruelty.</p> <p>The petition for divorce for extreme cruelty, should specify some acts of cruelty, that the defendant may know what he is to meet.</p> <p>Extreme cruelty is personal violence.</p>

<p>Summons — service—place of abode — double assignment of error.</p> <p>Summons cannot be served by leaving a copy at the store of the defendant; by law a copy may be left at his usual place of abode. If such has been the service, and there is no appearance to cure it, a judgment by default is erroneous.</p> <p>Error in fact and error in law cannot be assigned together.</p> <p>Courts of error only look to the record for errors in law.</p>

The notice and citation was served on the prosecuting attorney for Hamilton county, who declines 565] *to appear for the state in this case.

<p>Error to the Common Pleas. Wood made oath before a justice that Humphrey was justly indebted to him an amount under $100, and that he was not a resident of the county. On this, a writ ;of attachment issued, which was returned, attached four cords of wood. Wood declared for work and labor. Another Mr. Wood then filed his claim before the justice “ in due form of law ” for more than $100. 'The justice made out a transcript from the docket, certifying these facts, which was filed in the Common Pleas as an appeal. Notice Was given by publication in the Gazette. After the third default, •the court assessed the plaintiff’s damages at $5.75, and gave him judgment for that sum with costs. The other Mr. Wood declared, on a special contract, by which he sold one hundred and sixty acres, of land in Athens county to Humphrey, to be paid for in wood in Cincinnati. As to this'claim, succeeding the third default, is the-following entry: “Whereupon it is, upon inquiry by the court, considered, that the plaintiff recover $575 damages and $13.12 costs.”' 567] *To reverse these judgments, Humphrey has procured a-writ of error, given bond to, and served citation on, both of the-Woods, who appear. The record returned, is an entire one, presenting the case as above.</p>

<p>Error to the Common Pleas. Orange recovered a judgment before a justice in trover against Price on the 16th November, 1831. Price gave notice of an appeal, and entered bail on the '20th. The next term of the Court of Common Pleas commenced <the 21st of February, 1832, and continued till the 1st of April. On the 24th of March, the appellant presented to the court a transcript of the justice’s judgment, with an affidavit of the justice,, that during the two first weeks of the termhis office was “inundated, submersed, and full of water to the depth of seven or eight feet, which prevented his doing business therein,” also his own affidavit, that the action is unjust, and that he has got a good defence to it; that for several days before and after the beginning of the term, the justice’s office was under water, so that he could not occupy it, and that the appellant did not know where to find him. Fi'om the mid-569] *dle until about the last of February, 1832, the whole bottom part of the city was under water, a brewery of the applicant much exposed, and he was compelled, day and night, for more than two weeks, commencing a week before the beginning of the court, to-use great exertions to preserve it. It could not be safely left before the second week of the court, or he would have filed the transcript at the beginning of the term. On these affidavits, the appellant moved the court to docket the appeal, which was refused, and-the parties then agreed to stay proceedings until the decision of this court could be had</p> <p>To reverse the order refusing the entry of the appeal, Price brings-this writ.</p>

Assumpsit for so negligently constructing the chimneys of a house, that they were useless. Pleas: 1. Non assumpsit, with notice, that before suit the defendant offered to repair without charge. 2. Setoff for woi-k and labor. It was agreed at the bar, that the house was built by the defendant at the usual rate, and that all the work but the chimney flues was well done.

The record shows that 575] *a judgment was recovered on a scire facias upon a mortgage, against White in favor of Hutchinson, upon which a levari facias issued, and the mortgaged land was sold to the Bank of the United States for $8,903.02. The sale was examined in the court, and a deed ordered without objection. The bank now brings this certiorari to set aside the sale and order of confirmation. The execution, appraisement, &c., are sent up with the other proceedings.

<p>Error to the Common Pleas. Owens sued Smitheron in debt, the writ was served, but no appearance was entered. Owens declared in assumpsit, and took a final judgment for damages in default of a plea.</p>

Ejectment. The matter in contest was a small gore of land, part of lot sixteen, an addition to the city laid off by E. Stone, east of Deer creek. ■ Stone was admitted to be the common source of title. He deeded lot sixteen, in 1806. It was afterwards conveyed to Baum, who took possession in 1808, and has since been held by him and Ms heirs.

Sloat declared in assumpsit for work, &c.; and on a special contract for the sale of twenty cords of wood *at $5 per cord.

<p>White persons — color—blood—common schools — irregular proceedings.</p> <p>Persons having more than one-half white blood are entitled to the privilege of whites.</p> <p>The children of a white mother and a father three-fourths white, are white, and entitled to participate in the school fund.</p> <p>It is shabby to exact from such a tax to support schools and exclude their children from the schools.</p> <p>The term white children in the law describes blood not complexion, which would be an unsafe guide.</p> <p>579] *Wbere thesuit is against school district 6 — the declaration against district 5 — the judgment in favor of district 5, and a writ of error against district 6, the proceedings are so irregular that the plaintiff could not have judgment, and therefore the judgment is affirmed against him.</p>

Covenant, on a contract by which Fisher agreed to deliver Hounsford on the 17th January, 1832, four stallions, Sir Alfred, Robin Redbreast, Friendly Tiger, and Black Fox, for which Hounsford agreed to make Fisher a deed for the exclusive right to make and vend the revolving worker, in certain counties, and the parties bound themselves in a penalty of $700 to perform the contract.

<p>Covenant on a contract to pay $5,000 “in payments as follows, viz.: $1,000 in ten days from date, and the balance of $4,000, in four annual payments, with interest from this date.” There is a ■default.</p>

<p>Negligence — sinking boat — excuse.</p> <p>Where the defendants’ boat was negligently run upon a boat of the plaintiffs” which she sunk, it is no excuse that the plaintiffs’ boat might have been more safely moored in some other place,</p> <p>The imprudence of the plaintiff, in placing his property in an exposed place, - affords no authority to the defendant to destroy the property so exposed.</p>

The plaintiff declares upon a special bail bond for 350-, :(“ thereby meaning $350”), &c. Defendant craves oyer of the bond, &o., which being set out •shows that the defendant “ appeared before D. Gano, in open court, being clerk of the Court of Common Pleas, and acknowledged to •owe unto Wade H. Spencer, the sum of three hundred and fifty , to be levied, &c. It. Buchanan, with a release of errors.” He then demurred generally, which is joined.

Debt, for money had and received, for land sold, on a note for $400, payable in sixty days, &e., and on a note for $360, payable tp the heirs of John John for William John. Plea, nil debet, with notice of setoff. *Evidence was offered to show that the defendant pur- [585 chased laud of the plaintiff, gave several notes for the purchase and took a deed; also, that the defendant said he had bought land and paid $150 in advance.

The plaintiff lieretofore brought assault and battery against the defendants, which was tried upon not guilty, and two special pleas; verdict, “guilty, as - in the declaration is alleged,” and judgment. The defendant removed the record by writ of error into this court, where the proceedings in the cause after verdict were reversed, because the finding of the jury as entered did not respond to all the issues.

Freeman agreed in writing to paint in oil, on canvass, good and true likenesses of Galbraith and his wife, for sixty dollars, to be paid when the work was done. Freeman sued Galbraith for his pay before a justice of the peace. He obtained a judgment and the defendant gave bail for an appeal to the Common Pleas. Galbraith then brought suit on the contract before a justice and obtained judgment. Freeman appealed the case to the Common Pleas.

<p>Assumpsit for money had and received. The general issue joined. It appeared in evidence that sundry promissory notes were placed in the hands of the intestate to receive the amount and pay it out to others, and that after his death the administrators had collected the money, and paid it out accordingly.</p>

<p>Debt, on a note dated in November-, 1815. Plea, nil debet, with notice of setoff. After plaintiff had rested—</p>

<p>Wife’s declaration — assent—res gesta — evidence.</p> <p>Where a wife is employed as the agent of her husband, her declarations in executing the agency, are a part of the res gesta and evidence.</p> <p>But where the wife keeps the keys of the coffers, and gives or refuses her husband money on his request, as she thinks prudent, that does not constitute a general agency in money matters.</p> <p>The declarations of a wife in a'matter where she does not act as agent for her husband, are inadmissible evidence, unless made in his presence.</p>

Covenant on a contract to deliver a patent for the exclusive right to make and vend buckets, &c., in certain counties. The declaration avers the offer to deliver the patent, and a refusal, and assigns for the breach the non-payment of the money. The defence was, the plaintiff did not deliver or offer a transfer of the patent according, to the contract.

Assumpsit for money had and received. Issue on non assumpsit. Three hundred dollars was given to the defendant in Mays-ville, Kentucky, to bring to the plaintiff in Cincinnati, as a friendly act without reward; although he gave a receipt for the money. The defence is, that the money was stolen from the defendant while on the steamboat during the trip down. The receipt was read.

<p>Ejectment to settle the boundary between sections nineteen and twenty.</p>

Bill ok Revivor. The interest of Mary Chambers was prosecuted in the original bill by herself and husband. The husband died pending the suit, and it was further prosecuted by her alone. She then, as alleged in the bill, conveyed the estate in controversy to Burrows, one of the present complainants. After which she made her will, devising all her real estate to Brooks, the other complainant, and died, the original suit still pending.

Scire facias on a recognizance of- special bail. The writ states the recovery of judgment, and avers that execution thereof remains to be made.

<p>Unconstitutional act — case—trespass by corporation agents — damages.</p> <p>Where a legislative act is unconstitutional and void, or a corporation acting under its supposed authority, has caused an illegal act to be done, the corporation is liable in case for the injury to real or personal property, and its agents are liable as trespassers — the remedy is at law, not in chancery, except to enjoin their further proceedings — equity will not take jurisdiction of a question of damages merely against persons because they act without authority.</p>

In chancery. The bill seeks to sell in satisfaction of a judgment at law against Ennis, lot No. 126, in Cincinnati, which has been levied upon, but will not be sold, because the title is in Sandige, though he holds it in trust for Ennis, who is insolvent. Ennis, in his answer, admits the judgment, levy, and his insolvency.

The plaintiff, under legal process against De Witt, an absconding debtor, attached a quantity of merchandise in the hands of the defendant, and having recovered judgment against DeWitt, has now brought a scire facias against the defendant as garnishee. The defendant pleads that De Witt, before the attachment, assigned all his property, including the goods attached, to him, for the benefit of De Witt’s creditors.

<p>Forgery — answer in chancery — delivering up anote — fraud—endorsements.</p> <p>Where the complainant has not called on the defendant for an answer, if he volunteer one, the facts set up in it are the same as other independent facts, the answer has no efficacy without proof, because the complainant has not made the defendant his witness.</p> <p>Where the bill charges the defendant with forgery, it would be bad if it called on the defendant to criminate himself on oath.</p> <p>Where a note on a third person has been fraudulently obtained possession of, the endorsement forged, and the person claiming under the forged endorsement has left it in the hands of attorneys to collect, chancery will order the note delivered up in court, and the promissor to pay it to the complainant.</p>

<p>Bill in chancery for partition of a tract of three hundred and sixty acres of land. The complainant claims an undivided third part. A decretal order was heretofore made to set off the complainant’s part according to the statute. The report of partition is now made, which is excepted to.</p>

<p>Duncan McArthur filed an affidavit, in which he describes himself agent for the administrator with the will annexed, of Talliaferro, who is deceased, alleging that a bond dated the 8th of May, 1797, was given by Porter to Talliaferro, in the penal sum of £560, conditioned for the payment of £280, Kentucky currency, clear of interest, on or before the 25th of December, 1800, being the last of four bonds for a tract of fourteen hundred acres of land, as security for the payment of which the land was held. That Talliaferro, in October, 1802, recovered a judgment in debt on said bond in the General Court, on which the following executions and returns were had. The affidavit then recites at length,</p> <p>1. The record of a judgment recovered by Talliaferro against Porter, in October, 1802, by nil dicit for--- debt,-damages 611] *and costs, in the General Court of the Northwestern Territory, on a bond dated the 8th of May, 1797, for £560, and exhibits a record of a like recovery on a bond dated in 1799.</p> <p>2. That afi. fa. et lev. fa. issued on said judgment at the term of its rendition to the sheriff of Ross, returnable to the next term of the court in Hamilton, in March, 1803, which was returned to the ■clerk of the Supreme Court of the State of Ohio, in Ross county, endorsed nulla bona, and levied on four hundred and fifty-two acres of land, condemned for sale by a jury according to law, but unsold for want of bidders.</p> <p>3. A venditioni exponas was issued on thé 15th of November, 1803, by the clerk of the Supreme Court of Ross county, on which the sheriff returned that on the •l'Zth of December, 1803, he sold the land levied toD. McArthur for $1,521, and had the money in ■court. The amount of money was more than sufficient to satisfy the judgment.</p> <p>4. That Porter died before the execution was issued and administration granted.</p> <p>5. That after McArthur’s purchase he obtained a deed from the sheriff and entered into possession of the land, but the heir of Porter brought ejectment in the Circuit Court of the United States, and recovered the land, that court adjudging the levy, sale, and deed to McArthur void.</p> <p>6. That the heir of Porter conveyed the land to W. S. Murphy, and has since died.</p> <p>1. That the administrator of Porter died without having paid Talliaferro, and without assets.</p> <p>8. That the record of the judgment in the General Court remains among the records of that court in Hamilton county, never having ■been certified to Ross, where the record ought to be.</p> <p>9. That the affiant is advised by counsel, that the judgment, by reason of said proceedings, is still in force and effect in law, in nowise satisfied or paid, and that execution thereof belongs to the administrator of Talliaferro, who died a citizen of Kentucky, where administration was granted, he never having been a citizen of ■Ohio.</p> <p>Murphy was served with a copy of the affidavit, and notified that this court would be moved, to order the record to be certified and removed to Ross county, and to give the administrator of Talliaferro leave to issue a scire facias against the terre tenants of Porter,1 to vacate the satisfaction, revive the judgment, and grant execution against the lands.</p>

Munger having sued Wright before a justice of the peace for a militia fine, appealed to the Com*mon Pleas from the justice’s judgment against him. He [615 declared in the Common Pleas upon a sentence of a court of inquiry for “ a penalty, forfeiture, ox fine of $1.75,” which was afterwards “by the court of appeals adjudged to be confirmed,” and made proferí of the records of the courts of inquiry and of appeals. Issue was joined on nil debet.

<p>Warren canal — injunction—motion to dissolve — change of case after bill filed.</p> <p>When the answer to a bill of injunction is filed, a motiou will be heard to dissolve .the injunction, and it will be dissolved, if the foundation on which it was allowed be denied, or has been since removed by the agreement of the parties, although litigation has risen under the agreement which is pending.</p>

<p>Indictment for the murder of Charles R. Green, by a blow upon the head with a club.</p>

In chancery. The bill alleges that Titus Ives borrowed of the complainant $300. He afterwards purchased five town lots and nine acres of ground, for which he paid $400 down, including the $300 borrowed, gave his notes for $200, and took the covenant of the vendor to make him a deed on the 1st of May, 1830. Two hundred dollars of the borrowed money still remaining due to the complainant.

Divorce. CauSe, confinement in the penitentiary for horse-stealing. The facts were proven. In the record of conviction, the defendant was named Nathan; in this proceeding he is named Nathaniel.

<p>In chancery. Bill for the specific performance of a contract.</p>

The case was assumpsit on a note for one hundred and fifty dollars due the 19th of September, 1831. The judgment was by nil dicet that the defendant, Collins, “did make the note, and assess his damages to $400, to be released on the payment of twenty-six dollars and costs.” The defendant in error, who was plaintiff below, now tenders a remittitur of all the judgment but the twenty-six dollars and costs.

<p>Appeal quashed — bond—executor.</p> <p>An executor or administrator who has given bond in this state for the performance of his duties, may appeal from the Common Pleas to the Supreme Court without appeal bond.</p>

Bill-for alimony, alleging for cause the defendant’s taking the complainant to Vermont under pretence of visiting her friends, and leaving her there wholly unprovided for; that she returned to his house, but he has ever since refused her permission to take charge cf the house, and confines her and the child to an upper room, without intercourse with him or the family.

Ejectment. The plaintiff claimed under a patent for section 20, t. 2, r. 13, dated January, 1813. The defendant claims under a patent for section 26, in the same township. It appeared in evidence that there were two marked lines several rods apart between these ■sections, one called the west and the other the east line.

Case. The declaration contains two counts: 1st. For persuading and enticing away the plaintiff’s wife, and inducing her to keep away. 2d. For harboring his wife from the 1st of October, 1829, to June, 1832, knowing her to have left his bed and board against his will. Plea, not guilty, and issue. Depositions were returned certified by Jas. W. Thompson, the notice was to take them before Jas. Thompson.

<p>Divorce. Cause, wilful absence, neglect of duty, adultery with married and unmarried men, and having a bastard.</p> <p>It appeared in evidence that the parties were married in March, 1824, and lived together three years. About six months after the marriage, she had a child which lived a few hours, which the husband kept secret, and continued to live with her. They disagreed, and after three years separated by consent, divided their little effects, and have since lived separately. Her character since they separated has not been good — his is good.</p>

<p>Divorce — wilful absence — diplomacy—interference of friends.</p> <p>When both parties appear in fault, and the case is doubtful on the evidence,, the case may be continued.</p> <p>If the husband having left his wife two months and return and make efforts, to live with her, which have failed from any cause, he cannot be regarded as wilfully absent from her.</p> <p>If the case appear to the court arranged or brought forward so as not to disclose the true state of facts, it will dismiss or continue.</p> <p>If the wife is prevented from uniting with her husband by the coercion of her parents, the court, on proper application, will restrain them from interfering, and take measures to bring the husband and wife together.</p>

<p>Settlement — distribution—fraud—advantage by trustees.</p> <p>A settlement made among heirs of their claim on their ancestor’s estate, under circumstances of unfairness, raising strong presumption of fraud, will not be regarded as conclusive, but be carefully scrutinized.</p> <p>Where one of several heirs acting for himself and co-heirs, makes an agreement by which he secures to himself an advantage in the distribution of the es- . táte, he will not be permitted to avail himself of the advantage.</p> <p>In the distribution of a decedent’s estate among heirs, equality is equity.</p> <p>Where the probate court has made an order of distribution of the estate, and several years after an order in the form of a writ is issued to the administrator to pay in a different way, on the application of a lawyer of one of them whose share is increased by the new order, that is a circumstance of fraud.</p>

• Divorce. The bill alleges extreme cruelty as the cause of divorce. At last term the parties being in court, leave was given to amend the bill, which was done, and adultery with D. Felix and L. Whitmore at divers times alleged. A witness was called to prove what a witness on a former trial testified who is since dead.

<p>Bilí, in chancery for a specific performance of a contract.</p>

Thornton replevied from Sprague a horse and bridle. Sprague pleaded 1. non eepit; 2. property in him and one J. W. Wing. Replication, property in the plaintiff.

<p>Lease — defective good after enjoyment or as a contract — private and public ways.</p> <p>A writing without seal, though invalid as^ a lease if nothing has been done, may be held good as between the parties, if the lessee has entered and enjoved, or as a mere contract.</p> <p>A mere lease confers no right of private way, because it describes the land as lying near where the road runs.</p> <p>A county road is a public not a private way; no private ways are laid out by public officers except township roads.</p> <p>Where a road has been laid out from point to point and opened and used for a long time upon ground different from that on which the line of the road was'actually run, the travelled road is the public highway.</p> <p>A way may be established by prescription in Ohio.</p>

Mathis, the tenant of McCord, brought quare clausum fregit on the rented land, and treading down grass by McCord’s cattle. Plea, not guilty, with a notice of accord, and satisfaction. On trial, the plaintiff offered evidence and claimed to have proven that McCord agreed to keep the fences in repair— that it was the common custom of landlords to keep up the fences; that McCord’s cattle voluntarily entered through and over the fence into the field.

<p>Trespass, quare clausum fregit. Plea, not guilty. Both parties claim title from Willets, one of several heirs.</p> <p>The plain tiff called a witness to prove a declaration of one of the co-heirs of Willets.</p>

<p>Error to the Common Pleas. McCoy brought assumpsit against Thompson before a justice of the peace. A hill of particulars was furnished by the plaintiff a.t the trial before the justice, and the defendant recovered a judgment. The plaintiff appealed to the Common Pleas, and a trial was had on non assumpsit. During the trial, the plaintiff offered evidence of items not included in the hill of particulars, which the defendant objected to, and the court ruled out the evidence, because the bill of particulars gave no notice of such claim. Judgment went for the defendant, and the plaintiff now seeks to reverse the judgment, because the court erred in ruling out the evidence.</p>

In chancery. The bill sets forth that Amos Walters, a son and heir of William Walters, purchased of Hind one hundred acres of land to be run off on the north side of Taylor’s survey, in such a way as to include William Walters’s improvements: that Amos went into possession under the contract, made improvements on the land, and assigned it to the complainants, who are now in possession.

The plaintiff, describing herself as a school-mistress, and employed as such, declared against the defendant for saying of her, “she is. *nasty, dirty, lying slut — Samuel Harper said he knew her [652 as well as he did his own wife — she rode through Sewall’s dark woods with Elijah Harper, and no decent girl would do so, and Polly Huston would 'swear Jane told her she had slept withElijah Harper.” Plea, not guilty.

The treasurer of Champaign for the use of McDonald, administrator de bonis non of Pearce, sued Luce and Kenton, on a bond executed by them as security for Fithian, administrator of Pearce. The declaration, after describing the bond, avers that Fithian, the administrator, removed to Illinois — having commenced a settlement with the probate court here,, and died before it was completed.

Chancbry. Bill to enjoin execution on a recovery in ejectment, and to compel a release of the land. The case is stated by the court in its opinion.

Covenant against a guardian on an indenture of apprenticeship-for his ward; breach, that the apprentice left the plaintiff’s service before his time was out. The case stands on a default for an inquiry of damages. The covenant read to the jury, was in the usual form, to give-six months’ schooling, clothes, &c. In this, the defendant covenanted for the performance of the boy.

<p>Evidence — hill of exceptions — state of case — polling jury.</p> <p>Where the ruling out testimony is assigned for error, so much of the evidence must be disclosed in the bill of exceptions, as will present the true state of the case, and the right to introduce the evidence.</p> <p>The declarations of third persons and of the party offering them, are inadmissible as evidence in the place of facts.</p> <p>Proof of the settlement of other dealings than those in controversy, is inadmissible as independent evidence.</p> <p>A jury in a civil case will not be polled, as a matter of right, though the court will permit them to be polled, if the verdict be delivered under circumstances of suspicion.</p>

Assumpsit for repairing the schooner Independence. The plaintiff was admitted with his books, and proved his account for repairing the schooner, on which there appeared a balance of $382 due. Witness proved that the Independence was placed in the dock and repaired.

Assumpsit. The declaration contains three counts. 1. On a promise to the state — 2. setting out a subscription paper to pay the canal fund commissioners (see 5 O. 56), and raises a liability to the state — 3. on a promise to the canal fund commissioners, and which they were authorized to take, on condition the Ohio canal should be located to Cleveland, and avers its location. Plea, non assumpsit and issue.

Trespass and assault and battery, and injury to personal property. Plea, not guilty — son assault — and entry by tbe landlord to remove goods from his house, etc. 673] *The plaintiff offered a deposition, tbe notice for which: was served at 8 A. M., to take it at 8 P, M. on the same day. This, was objected to.

The case below was a pro«eeding m partition. The report of partition was objected to as unequal, and many affidavits, expressing different opinions of the value were presented to the court; who, on consideration of the whole, confirmed the report. It is assigned for error, that the evi•denoe proved the division unequal, and that the report should have •been set aside.

Assumpsit on a bill of lading to carry books from New York to-Cleveland. Breach, damage to the books in their transit.

<p>Error — bill of particulars — copies—evidence.</p> <p>A bill of particulars should contain a brief statement of the charges relied upon: it need not give a copy of the evidence to be offered to prove it.</p>

<p>Debt on two notes for $500 each, dated in 1816. Plea, nil debet, with notice of setoff. The two notes were read in evidence, and the plaintiff rested.</p> <p>The defendant offered in evidence a receipt of the plaintiff for $320, dated December, 1815.</p>

<p>Appeal from the Common Pleas by the plaintiff.</p>

Payne declared in debt against Gage in the Common Pleas for a fine assessed against him for unmilitary conduct as a captain in the militia, by a general court martial convened by the brigadier commanding. Plea, nil debet.

Card, for the plaintiff, moved to substitute the administrator de bonis non instead of the executor defendant: he showed that since the last term the defendant has been removed from being executor for malconduct, and an administrator de bonis appointed in his stead, who has qualified. He cited 29 O. L. 235.

Libel. Plea, not guilty, with notice of justification. The plaintiffs called R. Hitchcock, esq., who testified that he drew a notice for the plaintiff and served on the defendant to produce at the trial the original manuscript of the libel declared upon, and that, though not the plaintiff’s attorney of record, he was employed by him for that purpose.

Skinner complained before two justices under the forcible d etainer law, and obtained a venire, returnable *the 14th of Sept. 1833. The parties appeared at the time, [683 and Brownell obtained a continuance of the cause till the 4th of October on account of the absence of a witness. At which time the parties and jurors appeared, and Brownell obtained a further continuance till the 26th of October.

Slander. Words (in substance), “Seely has been guilty of forgery, he has added the words with use to a note: I can prove it, and am 684] *bold to say so.

Case for fraudulently representing a tract of land to contain iron •ore sufficient to prosecute certain iron works for a certain number ■of years, and thereby inducing a purchase of the works and land. Plea, not guilty.

Assumpsit to recover the amount of certain Geauga Bank notes-which had been destroyed by fire. Plea, non assumpsit. It appeared in evidence, that in June, 1832, the plaintiff had a bundle of Geauga notes, which from the labels, &c., were judged to-amount to about $400.

Assumpsit on a note. Plea, non assumpsit, without affidavit, and notice of offset of a note given by the plaintiff to the defendant. The plaintiff read in evidence, under the statute without proof of its execution, the note declared on, dated in 1825, payable on, demand, with interest from date, and rested.

<p>Bastardy act — order of commitment in court — poor debtor’s oath and discharge —record—admission—pleading.</p> <p>The legislature had a constitutional right to subject persons committed under the bastardy act, within the provisions of the insolvent laws, and have done so in the act of 1830.</p> <p>Where the court, in session, order a commitment, the minute is the authority of the officer, and no writ or copy of the order is necessary for him.</p> <p>Parties agreeing a fact at the trial, cannot object that the admitted fact is not proven by record.</p> <p>There is no law requiring the administration of the oath to apoor debtor and his discharge from prison, because the means of support are not left, to be recorded.</p> <p>But if there was such a law, and the debtor was duly sworn and discharged, the omission by the justice and sheriff to make the record would not deprive the debtor of his discharge.</p> <p>The rule in pleading requires the pleader to disclose such a state of fact as constitutes a legal right or defence.</p> <p>Leave will be given to amend after the opinion of the court is intimated.</p>

<p>Naper recovered judgment in the Court of Common Pleas, in a •case appealed from a justice. Bowers was bail on the appeal. The judgment debtor died after the judgment, and Bowers took out administration on his estate; and as such, brought a writ-of error upon the judgment against his intestate, and that judgment was reversed by the Supreme Court.</p> <p>The clerk of this court, and the sheriff, claiming that their costs ^'remain unpaid, now move the court for a rule upon [693 Bowers, to show cause why he should not be ordered to pay the costs.</p>

<p>Record of deeds — recorder’s certificate — record made out of the state.</p> <p>it is competent to call a witness acquainted with the land described in the deed, to locate it on the ground, without producing the deeds of the persons on whom the land is bounded.</p> <p>Where a recorder of deeds for his own convenience and that of the landholders, has taken his record book out of the state, and recorded in it a number of deeds, and then returned it to his office, the record is good.</p> <p>A recorder’s certificate under the act of June, 1801, is conclusive evidence of the existence of the record, and cannot be contradicted, though only prima facie evidence of the existence of the deed.</p>

Assumpsit on a building contract. Plea, non assumpsit. The plaintiff called a witness who testified, that he heard the defendant declare he had let a part of the job to another. The defendant’s counsel, on cross examination, asked the witness to state if, in fact, the job was ever let by the defendant.

<p>Appeal by administration — bond on appeal — appeal quashed.</p> <p>An executor or administrator who has given bond in this state, may appeal from one court to another without giving an appeal bond.</p> <p>Those who have not given bond for the discharge of their duties, must give an appeal bond like other persons.</p> <p>An appeal entered by a foreign administrator who has given no security without appeal bond, will be quashed.</p>

<p>Chancery — trustee—taking the fee against an equity — fraudulent assignment —specific performance — -bringing money into court.</p> <p>A purchaser of real estate under contract of sale, takes the fee subject to the equity of the person holding the contract.</p> <p>Such holder may refuse a conveyance to the person holding the contract if his debtor, until he pay the purchase and his debt.</p> <p>An assignment by an insolvent debtor of all his effects in trust in part for himself, is void as against creditors.</p> <p>A vendor claiming a specific performance, should bring the money due into court.</p> <p>An assignee of the general effects of an insolvent claiming against a creditor, must account for his trust fund, and disclose his own claim fairly.</p>

<p>Fraudulent assignment— insolvent — priority of diligent creditors — confiscation of debts — parties—complainant to account.</p> <p>An assignment by an insolvent debtor of all his effects to trustees, to pay in classes such creditors as should execute to him a release of all demands is void as to creditors.</p> <p>The trustees are only liable for such of the trust effects, as were in their hands at the service of the subpoena.</p> <p>If the assigned effects were land the declaring the assignment void would leave the land subject to the lien of the judgments according to their priority of date.</p> <p>In cases where the judgment creditor proceeds in equity to have execution of equitable effects the most diligent creditor secures a priority in distribution, as the reward of his diligence.</p> <p>701] *The effects will be charged with the debts in the order in which th4 creditors apply, deducting the costs fairly incurred.</p> <p>Where the bill seeks to confiscate debts due to the judgment debtor, the debt, or should be made party that his rights may be secured.</p> <p>Aud debts assigned by the insolvent cannot be confiscated to the complainant on setting aside the assignment, unless the debtors are made parties.</p> <p>If the complainants have security for their debt, they will be required to account for the security before they appropriate equitable effects.</p>

Assumpsit for work and labor and for services rendered the defendant as deputy auditor. Plea, non assumpsit. The plaintiff after examining a witness as to what his services were worth, and the usual wages paid for similar services, asked him how much the defendant received for his compensation as. auditor.

<p>Title bond — trustee—account—equity.</p> <p>Where a title bond for land is transferred as indemnity for liabilities incurred on his account, the holder must account and show himself damnified to the extent of his demand on the property.</p> <p>Persons taking the fee of land with knowledge of an outstanding equity, hold as trustees of the equity.</p>

Ereor to the Common Pleas. Leavitt brought assumpsit in the court below upon a written lease without seal. Issue was taken on non assumpsit, with a notice of setoff. On trial, the plaintiff read the lease in evidence, which was for a piece of ground estimated to contain ten acres at $50, and proved that the defendant entered into the premises and enjoyed them. The defendant then offered to prove that the quantity of land in the tract was less than ten acres.

Error. The county brought assumpsit against Harper in the Common Pleas for money had and received. A declaration was filed the first vacation after the writ. No rule for plea was entered, but at the third term the defendant was called and defaulted, and it being shown and proven that the plaintiffs have sustained damages in the premises in the sum of $120, &c., therefore, there was judgment for that sum and costs.

Gould brought trespass de bonis, &c., against Harmon and Watrous, &c. They plead severally, 1. *Not guilty. 2. That Harmon recovered judgment before [710 a justice of the peace against Gould, and sued out an execution, which was delivered to the constable, who levied upon the goods* and by the command of the constable, the defendants, Harmon and Watrous, as his servants in the execution of the writ, took and removed the goods.

<p>Ejectment. The case was submitted on an agreed state of fact. which sufficiently appears in the opinion of the court.</p>

<p>Partition by parol — acquiescence—releases decreed.</p> <p>Where tenants in common make parol partition of land, fence and possess accordingly for nine years, -without objection, one party improving, it is too late to object mere inequality in the partition, and releases will be decreed.</p> <p>Where a defendant in chancery sets forth new matter in his answer, he must prove it to make it available to him.</p>

Olin brought assumpsit for money had and received against Chapman, and issue was taken upon non assumpsit. On trial the plaintiff proved that the defendant as constable had sold an estray horse, taken up by the plaintiff under the law, and that after the sale he admitted that he had four dollars, belonging to the plaintiff, for his expenses in advertising, &c., and rested his case. The defendant then proved the plaintiff had used the horse while in his custody.

The plaintiffs declared upon a judgment before a justice of the peace for debt, two hundred dollars, and ninety cents costs, and made profert of the transcript. Plea, nul tiel record. The only evidence offered was a transcript from the justice as follows; “Deming & Co. v. C. & S. Austin — June 23, 1818 — personally appeared C. Austin, jr., and S. Austin, and jointly and sev*erally acknowledged themselves indebted to Messrs.

Divorce. Cause, wilful absence more than three years. It appeared in evidence that the parties were married in 1821, in Portage county, and lived together about seven years, harmoniously, during which time she had three children. She became dissatisfied at having children so fast with their poor means of supporting them, and determined to leave him.

Bushnell, sheriff, had an execution (a fi. fa.) against Eaton from the Common Pleas. During the life of the execution, the defendant paid to the plaintiff the amount of his judgment, and paid the-costs, including poundage, upon the money paid over to the plaintiff to the sheriff, and the execution was satisfied.

Assumpsit upon the following note: “Warren, 21st of November, 18.32. For value received I promise to pay to D. L. Morly, or his order, the sum of two hundred dollars and interest, in thirty days from date.

<p>Insolvent bond — pleading—condition—averment—the declaration of use by an insolvent commissioner — trustee—distribution—sealing and delivery of a bond.</p> <p>The party making title to sue under general laws, need not set them out; the court will apply their provisions to the proper state of facts without their recitation.</p> <p>If tbe declaration set out the condition of the bond, in which it is recited that the party was arrested and became obligated to apply for a discharge under the insolvent law, and avers the non-application as a breach, that sufficiently shows the party applied for relief before the bond was taken.</p> <p>If the party performed the condition of the bond he should plead it; it is sufficient for the plaintiff to state in general terms the condition.</p> <p>The insolvent law authorizes suit on the bond of the insolvent to be brought by the commissioner of insolvents, for the use of the creditor's, and directs him to distribute among them pro rata the amount so collected; this does not require him to express the use in the proceedings; and if he does express the use for only one creditor, non coustat there are any others.</p> <p>The insolvent commissioner acts as trustee for the creditors, and what he recovers swells the insolvent fund for distribution, and that is a question with which the security has nothing to do.</p> <p>A party relying upon new matter, must himself bring it forward affirmatively in pleading, a demurrer will not introduce it on the record.</p> <p>An insolvent commissioner may be restrained from an improper distribution, and called to account, but not by the security of the insolvent in a suit against him on his bond.</p> <p>It is the sealing and delivery of a bond that determines its validity, not the signing.</p>

Simonds sued out a writ of attachment against one J. S., an absconding debtor, in January, 1832. The 1st of February, 1832, Sheldon was summoned in as garnishee,, who answered, denying his indebtedness. Final judgment was had on the attachment against J. S. the 23d June, 1832 — after which proceedings were had to subject Sheldon, notwithstanding his denial of indebtedness.

Buchanan sued Anderson for a malicious prosecution, and upon not guilty, recovered a judgment 726] *for $300.

Chancery: (see 6 O. 45.) The master reported several calculaiations under the order of reference. 1. Of the money loaned at the rate of six per cent, per annum, compounding every ninety days, and making abalance due of $31.01. 2. According to the agreement in March, 1830, for ten per cent, every ninety days — -since October, 1827 — balance due, ....... 219.66 3.

<p>Scire eacias to make the administrator party to a judgment recovered by his intestate in his lifetime. Pleas, 1. Nul tiel record: 2. Notice that the defendant in the life time of Copeland obtained a decree in chancery, enjoining him from collecting more than $450 of said judgment, and that since said injunction the defendant had paid the $450 in full.</p>

<p>Chancery. Motion by the defendant to quash this appeal as improperly entered.</p>

Chancery. Bill to charge a debt upon the proceeds of lands mortgaged, and for the distribution of the decedent’s effects. The bill was demurred to and answered.

The case below was a scire facias by Breatheven, as treasurer, against Stevens, which recited that Breatheven as treasurer had commenced suit against John and William Stevens on a bond given for John, condition that he would discharge the duties of a justice of the peace; that the process was served only on John alone; the breach assigned in the condition. •of the bond was the receipt of fifty dollars as a justice, which he refused to pay over to the party entitled; John was…

Debt on a penal bond, dated in 1816, conditioned for the payment of $1,290.75, by the fourteenth of September, 1819. Plea,, non est factum, with notice of payment, and also that the plaintiff' had received one Hackney as paymaster, and discharged the-defendant. The bond was read to the jury, and the plaintiff rested. The defendant’s counsel read the notice, and offered in evidence-two receipts.

Writ ok Error. Bond and Leonard showed to the court, that Kerr was an insolvent debtor, and had assigned all his effects, &o., to Patterson, the commissioner of insolvents, ‘ and produced an order of Kerr, and one from the commissioner of insolvents, to dismiss this writ, and thereupon asked leave to have it struck from the docket.

Trover for a crop of corn. A judgment was recovered against the administrators of one Davidson, several years after bis death. In 1830, a fi. fa. was taken out and levied on Davidson’s interest in a crop of corn in the ground, which was sold to the plaintiff. The defendant was in possession of the ground as a cropper, and was to deliver the landlord twelve bushels of corn to the acre in the field for rent. When the levy was made the tenant stated the terms of his contract.

<p>Township roads — common law — judicial discretion — supervision—writ of ' error.</p> <p>Where the law empowers the Common Pleas to make an order in the case, which they may deem just and reasonable, the order so made cannot, in the nature of things, he examined in another court. Such is the case as to-township roads.</p> <p>Wherever the supervisory power of a superior has been exercised in a case in an inferior court, it should not he again exercised in another.</p>

Debt upon an appeal bond. The declaration describes the bond and condition, and avers the judgment against the appellant, and execution returned no goods, and alleges the non-payment of the-money. The defendant pleaded ten pleas, and among others the following: 1. Non est factum. 2.

<p>Assignment of part of a contract — -substitution—excuse from tender.</p> <p>Where one has an obligation for land and transfers a portion of it to a third person, whom the obligor recognizes and promises to convey to, the assignee may sue for the breach of the promise, treating the original contract with his assignor as inducement to the promise to him.</p> <p>If one bound to pay refuse to do so, that excuses a demand and tender of performance by the person entitled to receive.</p>

Error. A. B. was a pasturer for hire, and pastured cattle for Betts and Mouser at the same time. Betts took away his cattle 745] *first, and Mouser alleging that he also drove away three of his cattle, brought trover against him for them before a justice of the peace, in the name of A. B. On trial, Betts obtained a judgment for costs. Mouser then brought another action of trover in his own name, against Betts. Upon the trial of the issue of not guilty,.

Irvin excepted to depositions filed in this cause, T. B’ecause it does not appear the witness- was swcrn- to testify the truth, the whole truth, &c., under the statute: 2. Because it is not shown that the deposition was reduced to writing by the witness, the justice, or by any disinterested person, in the witness’s presence.

<p>Slander. Words, you are a thief. Plea, not guilty, and the statute of limitations.</p>

Depositions were taken in Madison county in 1832, before a justice. His certificate did not show that the witness was sworn to tell the truth, the whole truth, &c. About a year afterwards, the justice made a new certificate, of the witness being duly sworn, Olds excepted to the depositions.

<p>Error to the Court of Common Pleas. Vincent is a justice of the peace. Knight had a judgment on his docket, upon which the• defendant gave bail for stay of execution. After the stay had expired, the plaintiff neglected to demand execution, the justice did-not issue, and the defendant became insolvent. Knight then sued Vincent for neglect of duty in not issuing execution, and Vincent had judgment. The two following points are now made for theaffirmance of the court, in order to reverse the judgment of the-Common Pleas:</p> <p>1. Is a justice required to issue execution after the stay has expired, without an order of the plaintiff or his agents ?</p> <p>2. Is an averment in the declaration that an execution was requested of the justice by the plaintiff or his agent, on or about th&. 1st of October in his township, sufficient ?</p>

<p>Town plats — acknowledgment of — dedication—fee in public ground — streets' of a town — supervisors.</p> <p>A town plat recorded, though not acknowledged, is good as a plat, and is evidence of a dedication of the streets and other public grounds to the public..</p> <p>But tire plat must be acknowledged and recorded, in order to pass the fee of such ground to the county, for the use intended.</p> <p>The streets and alleys of a town, are public highways.</p> <p>.It is the duty of a supervisor to remove obstructions in the highways, and if sued for it, he may show his character and the existence of the street in mitigation of damages.</p>

<p>Chancery. The bill prays execution of two judgments against Hal'lenback, execution having been taken out and returned nulla bona. It claims that Hallenback purchased two lots of ground, paid for them, and took the deed to his children,-one aged fourteen, and the other ten years. The answer of Hallenback .admits t-h-e judgment, execution, purchase of the lots, .and payment and deed, but he alleges that his boys earned the money and he invested it for them, and that he has other property in Licking-county.</p> <p>The proof is, that the father purchased, and paid for the lots, built a bouse upon them, took the deed to the boys, and has ever since exercised acts of ownership over them, and said be purchased for himself. The boys worked with their father on the canal, under bis direction, and were supported by him.</p>

Chancery. The complainant subscribed one hundred dollars to the canal fund in 1828. In 1829 the legislature appropriated the subscription to the treasurer of Pickaway county, to erect a free bridge across the Scioto river. The county commissioners neglected to collect the subscriptions and build the bridge. In 1831, the legislature appropriated the subscription for a bridge and road, to be collected and expended under the direction of the town council of Circleville.

Chancery. The case was formerly before the court on a demurrer to the bill: (see ante 167, where the case is stated.) The defendant having now filed his answer, denying all fraud, admitting the giving the note, and that all of it remains unpaid but eighteen dollars, and alleging that he was young and inexperienced, and the complainant a widow several years his senior: that he was passing the house in the road, when she called him in, shut the door, and then threw herself on…

Ejectment. The plaintiff -deduced bis -title under a patent to Bogert’s heirs — a decree of the Court of Common Pleas for a portion of the land to Mackay, and a deed from Mackay to the lessor of the plaintiff. It was proven that the defendants were in possession of the land covered by the deed except eleven poles on the south side, and that their deed covers the land they have in possession.

Assumpsit, for the money, goods sold, and use and occupation. Plea, non assumpsit, with notice of the statute of limitations, and a setoff. It was proven that the intestate sold a horse belonging to his son, the plaintiff, and was to pay $65 for him, and that the intestate lived in a house of the son for a time till the rent would amount to say $30. Depositions were offered as to certain items in a bill exhibited to the witness.

The declaration in the court below was in the common counts in assumpsit, united in one count.

<p>Motion, for non suit — refusal of,, no error — slight evidence — evidence.</p> <p>Motion for nonsuit is addressed'to the discretion- of the court, and should not prevail if there be any evidence tending to prove the issue.- if refused, even improperly, no writ of error lies, the party goes to t'he jury,</p> <p>If the plaintifE’s-claim-be for work done,- if there is no proof, the work was done, but only of a promise to pay if done, the court should instruct the jury for the defendant, and’ if they refuse, it is error.</p>

Chancbrv. The bill alleges the loss of $200 in gambling with the defendant. That he brought a suit at law, but finds it difficult, if not impossible to make proof, without a discovery from the defendant, and calls upon him to answer on oath how much money 760] *he won from him. Dailey, in his answer, admits the playing, but declares it out of his power to tell how much he lost ox-won, or which way the balance of the amount is.

Libel. Charge, that he was a mere pretende!-, Hartfoi-d convention federalist, demagogue, traitor. He welcomed the British during the last war into Oastine and condemned the war as unjust. -He was the tool of the notorious scoundrel Samuel Upton, and in close connection with him, as cashier of the Bank of Castine, when they swindled the people out of their money. Plea, not guilty, with notice that the whole matter of the libel was true.

Gardiner was sued on a note, payable to Wright, or order, endorsed to M’Dowell in his lifetime. The original writ was to answer in a plea of assumpsit, without stating any damages. The endorsement on the writ described the note declared on. The defendant appeared at the return of the writ, and was discharged on common bail, but no technical appear■anee was entered.

<p>Contempt — witness absent by leave — discharge—order for costs.</p> <p>Where a party permits his witness to leave the court, he cannot attach him for-contempt; and if he sue out a writ he will be ordered to pay the costs.</p>

Assumpsit, common counts — plea, non assumpsit, witb notice of' setoff. The witness was sworn to bis book account, and then called Bryan, a witness, who testified that the defendants were partners, and he understood from being in and out of the office the plaintiff was ■also one of the firm.

Ejectment. The plaintiff read a patent, dated 15th February, 1832, for a section of land to P. Cazoue, one of the refugees named in the act of Congress of February, 1801 (Swan’s Land Laws, 69; 3 L. ü. S. 420.) The possession of the defendant was admitted. The defence called Irvin, one of the lessors of the plaintiff. He declined taking the oath because a party in interest, and claimed that he could not be compelled to give evidence against himself.