Volume 10 — Ohio State Reports

This is an action of ejectment on an agreed state of facts, from the county of Cuyahoga. The plaintiff claims as one of the heirs at law of Daniel Miles. The defendants set up title in themselves under the will of Daniel Miles. In 1825, the testator devised his estate, real and personal, to 2] three of his friends, and to the survivors or survivor, as *joint tenants, and not as tenants in common, in trust, and for the following uses: I. To pay debts. II.

This is an action of assumpsit from the county of Hamilton. It is a suit by the holder against an indorser of a promissory note, and is submitted to the court, both as to matters of law and of fact.' The declaration contains a special count, and the several counts for money paid, money lent, money had and. received, etc. The first count in the declaration being defective, the plaintiff offered in evidence, under the common counts, a joint and several promissory note, bearing…

This is an action of ejectment, on an agreed case, from the county of Ross. The declaration is upon a joint demise from the heirs of Porgus Moore. 12] *On the trial, the legal title was shown to be in the lessors of the plaintiff. The defendants then proved an adverse possession in themselves of more than twenty-one years. The plaintiff then showed that.Mrs. Fleming, one of his lessors, had been a feme covert ever since the adverse possession commenced.

This is a bill of review from the county of Hamilton. The original case was decided in this court, in 1833 (6 Ohio, 76), when the right of the plaintiff was established, and the case remanded to the Supreme Court of Hamilton county, for the assignment of dower. The decree finally made gave her: I. The sum of $433.81, being the annual value of the estate, since filing her petition. II. The sum of $110 per annum out of the annual rents, issues, and profits. III. Costs.

This is a bill in chancery, from the county of Washington. The complainant states, in her bill of complaint, that she was married to one Samuel Seaman, who was seized, during her coverture, of one hundred acres of land, in the county of Washington, conveyed to him on March 24, 1794, in fee, and that, in 1815, her said husband died. She further states, that the respondent, Willson, is in possession of said land, claiming to hold an estate of inheritance therein.

This is an application for dower, from the county of Hamilton. The case made by the bill, answers, exhibits, and testimony is this: In the year 1816, the complainant intermarried with one John Mansfield, at Campbell county, Kentucky, with whom she resided some short period, when a separation took -place, and since 1818 she has lived separate from her husband, in Butler county, in the State of Ohio.

This is an action of replevin, from the county of Hamilton. The declaration charges the defendant with detaining the plaintiff’s hogs. The defendant justifies under an ordinance of the city council of Cincinnati.

This is a motion to set aside a verdict, taken for the defendant, in an action of ejectment, in the county of Knox. William Barton, Sen., was once the owner of the land. He died, and his will was proved, in 1802. By it, he devised the land, “to my four sons, Gilbert, William, Joseph, and Georgei or the survivors of them, and their heirs and assigns, to be equally divided among them, when the youngest attains the age of twenty-one years.

This is an action of ejectment from the county of Clinton. The premises in controversy are the southwest quarter of survey No. 1,939, in the Virginia, military district, northwest of the Ohio river, with the surplusage attached thereto, as designated on the surveyor’s plat. A patent issued to Richard Throckmorton, on March 24, 1800, and a deed was duly executed by him to *Trimble, the other [43 lessor of the plaintiff, on April 5, 1838, for the same land.

This is a certiorari to the court of common pleas of the county of Jefferson. The record shows that, at the August term of the court of common pleas of Jefferson county, 1839, Thomas Drakeley recovered a judgment against William Tullough and Alexander Armstrong, for the sum of §981.11 damage, and §6.91 costs of suit.

This is an action of debt from the county of Guernsey. The suit is brought against Hamilton Robb and his sureties, upon a bond for the performance of his duties as treasurer of the county. The declaration contains two counts, in each of which the bond with the condition is set out.

<p>This is a bill in chancery from the county of Hamilton.</p> <p>Findlay, Davis, and Wheeler were securities for the Cincinnati Manufacturing Company, in a note to tho Bank of the'United 60] States, on which a judgment was rendered, in *the Circuit Court of the United States for the District of Ohio, in September, 1822, for the sum of $11,407. On this judgment execution was issued and levied on Findlay’s es.tate.</p> <p>To secure them against this responsibility, the Cincinnati Manufacturing Company, in October, 1820, gave a judgment to Findlay, Davis, and Wheeler, for the sum of $11,407.</p> <p>At the same term, a judgment was entered against the manufacturing company, in favor of the Miami Exporting Company, for $17,000.</p> <p>Át the next term, December, 1820, Lytle and Avery recovered a judgment against them for $49,645.</p> <p>Executions to collect these judgments were levied on the lands of the company.</p> <p>In November, 1823, Findlay, Davis, and Wheeler caused the lands of the company to be sold on their execution. The sale was confirmed, and a deed ordered, but not made.</p> <p>In 1826, the Bank of the United States acquired the rights of Lytle and Avery.</p> <p>On March 30, 1829, the parties were negotiating an arrangement, and a contract was drafted, purporting to be between the Bank of the United States on the one part, and Findlay, Davis, and Wheeler of the other, by which Findlay, Davis, and Wheeler transferred to the bank the judgment, with all its incidents, which they held against the manufacturing company, which assignment was accepted under the following conditions : that the bank was at liberty to use all efforts to show the lien of the judgment to be posterior to that imposed by the judgment of Lytle and Avery, but that if the lien of the Findlay, Davis, and Wheeler judgment was finally maintained, the assignment was accepted *as a satisfaction for the judgment held by the bank against Findlay, Davis, and Wheeler. This contract was signed by Davis and Wheeler, but not signed by Findlay. On the same day, Davis and Wheeler conveyed to the bank, by deed, the lands they had acquired by the judgment. On the same day, too, Davis made with the bank an arrangement, conditioned to be void, unless *Findlay acceded [61 to the contract just specified within one month. In the next July> the bank dispensed with that condition, and accepted from Davis an execution of his private arrangement, without exacting the assent of Findlay.</p> <p>At the August term, 1829, an order of court was made, purporting to be by the consent of parties, that the valuations and sales, made under the Findlay, Davis, and Wheeler judgment, the Lytle and Avery judgment, and a prior judgment of one Henry Hafer, should be set aside, and a new sale had, in divided parcels.</p> <p>This order was made upon an agreement of counsel, that the new sale should convey a valid title ; and that all questions concerning priorities of lien should be made in the appropriation of the money. These questions were finally settled in this court, in 4 Ohio, 457, and 5 Ohio, 333. By these adjudications the money was applied .upon the Lytle and Avery judgment, the court holding that under tho order of August term, 1829, the lien of Findlay, Davis, and Wheeler was postponed, because their judgment had become dormant.</p> <p>This bill was filed in 1838, praying the court to order the bank to credit its judgment against Findlay, Davis, and Wheeler with the amount of the judgment against the Cincinnati Manufacturing Company, assigned to the bank under the contract of March, 1829.</p> <p>The main point in the case was the question of fact, whether or not the Bank of the United States were equitable owners of the Findlay, Davis, and Wheeler judgment, and assented for them to the order of August term, 1829. This question was fully argued by N. Wright and Y. Worthington, for the plaintiffs, and by C. Fox and S. P. Chase, for the defendants.</p>

This is a bill in chancery from the county of Belmont. The object of the suit is to compel the respondents, as the executors of John Winter, to account for and pay to the complainants a certain legacy, to which they, in right of the wife, claim to be entitled nnder the will.

<p>This is an action of ejectment from the county of Ross.</p> <p>The premises in dispute are in-lot No. 213, in Cbillicothe, and the facts of the case are substantially these: In 1797, Massie conveyed the lot in dispute to Craig, it being covered by an entry and survey only; Craig conveyed to Niblack in 1805; Niblack to McMahan in 1806. The aforesaid deeds all contained covenants of warranty. After the sale to McMahan in 1806, the lot was sold, on an execution issued on a judgment against him, to John Hull, McMahan, at the date of the levy, being in possession. Hull afterward, in 1806, conveyed the lot to Crane, and then follow several intermediate conveyances to the lessors of the plaintiff.</p> <p>70] *Massie died in 1811, and in 1814, a patent for the lot issued to his heirs.</p> <p>In 1818, McMahan and wife conveyed to Collett and Evans, who filed their bill in chancery against the heirs of Massie in the court of common pleas of Ross county, and obtained a decree for the legal title in said lot, at the November term, 1819, and on the 6th day of December following, conveyed the same to the defendant, Williams.</p>

This is a certiorari to the court of common pleas of the county of Cuyahoga.

This is a writ of error to the common pleas of the county of Richland. 76] ^Charles E. Patterson and Jacob Thuma owed Jacob Kegg a note for $100. Patterson made a payment of $33.25; and *in the presence, with, the concurrence, and by the direction [77 of Kcgg, Patterson made this indorsement on the note: 78] *“ Received, May 4, 1839, on the within note, $33.25” — ■ without any signature.

This is a bill in chancery from the county of Hamilton. Jacob Wolf held a lease, from the commissioners of Hamilton county, duly executed, but never recorded. While in possession under the lease, he made a mortgage to George Leiby, which the plaintiffs, his executors, now seek to enforce. The mortgage was duly recorded. Wolf, while in possession, sold his estate in the land to Marcus Smith, who had actual notice of the mortgage.

This is a bill ir chancery from the county of Hamilton. It is stated in the complainant’s bill, that in April, 1816, one Maxwell Hargraves, then in full life, and Ann, his wife, who still survives, were the owners, for the life of said Ann, of a certain lot of ground in the city of Cincinnati, on the corner of Fourth and Main streets, sixty-six feet on Main, and one hundred feet on Fourth.

This is an action of assumpsit, upon an agreed state of facts, from the county of Franklin. Held: as trustee for said bank, stock upon which a dividend of $1,374.75 was declared, as part of said sum of $3,517.42.

<p>Under the plea of nul tiel record in an action of debt on a judgment from a sister state against two defendants, both of whom appear by the record to have been served with process, evidence is not admissible to show that one of the defendants was not in fact served.</p> <p>Whether such evidence be admissible under a different state of pleading, qucere.</p>

This is a creditor’s bill, from th.e county of Hamilton. *In 1831, Frances Carr, administratrix of Henry Hafer, [105 brought a suit, for the use of the complainant, against the bank.

<p>This is an action for an assault and battery from the county of Tuscarawas.</p> <p>It was submitted to a jury at the September term of the Supreme Court, 1837; a verdict was given for the plaintiff for $27, subject to the opinion of the court on the law of the case, arising on an agreed statement of facts.</p> <p>: By the agreed case, it appears, inter alia, that the plaintiff on April 24, 1825, attempted to pass the Dover bridge without paying toll, the same being demanded. As the gate of the bridge was opened for others, the plaintiff passed through without permission, and immediately after passing through the gate was seized by the defendants,'who attempted to detain him until ho paid the usual toll demanded of foot-passengers, and a struggle ensued, in which the clothes of the plaintiff were torn and injured.</p> <p>It is further agreed that on April 24, 1835, the new bridge, which is calculated and framed for two tracks, had but one track finished, and that there was, at that time but one board with the rates of toll thereon, put up at or upon the said bridge, and that was put up at the western end, at which end the plaintiff entered and passed through the gate, as before stated.</p> <p>It is agreed, that if, on this statement of facts, the defendants had a right to demand toll of the plaintiff for passing said bridge, on the 24th of April aforesaid, and on his refusal to pay, to stop him, and prevent him by force from passing, that judgment is to be entered for the defendants;, otherwise, for the plaintiff.</p>

This is an action of assumpsit from the county of Boss. The caso- was submitted to the court upon evidence and ed Agreed state of facts.

<p>These are cross suits between the same parties from the county of Muskingum.</p> <p>In-June, 1837, Thomas Mitchell, father of James Mitchell, settled his estate among his children and widow.</p> <p>He devised his lands to four of his sons, charged with certain legacies to his daughters, and his remaining son, and made certain provisions for the maintenance of his widow. He made William Dunlap, the defendant in the original bill, together with James Wilson and J. Gilbert, his executors.</p> <p>On July 29, 1837, he made a codicil altering, in some respects, the arrangement of his will, and he “leaves the sole use and management of his farm, etc., to my executors and -widow, leaving it to their option to sell said farm or not, if not tended to, by my sons, as it ought to be.”</p> <p>After the decease of Thomas Mitchell, the executors proved the will. In the execution -of their trust, it being necessary to sell lands to pay debts, it was doubted by them if the will conferred upon them the power of sale. Upon the advice of professional counsel, an agreement was entered into, in writing, between the widow, the executors, and eight of the nine children (the ninth taking no interest in the land under the will), by which the executors were authorized to sell the land, to pay the widow 118] $500, in lieu of her dower *and distributive share, out of the first avails, and divide the remainder among the children. , On the day of sale, Dunlap offered a larger sum than was offered by any other individual, and the other acting executor, under the advice and assent of the widow and of most of the children, consented that he should become the purchaser at its full value of $2,100, of which $500 were to be paid to the widow, and the residue in three annual payments. Before the purchase was completed and securities given, the acting executor was about to rescind the sale, fearing that the persons interested might become dissatisfied because one of the executors was the purchaser. Upon which the widow, three of the sons, and two of the daughters, with their husbands, made another writing, in which they refer to the authority to sell, and the sale, and the terms of credit, and certify they were and remain perfectly satisfied with it. Upon the execution of this writing, Gilbert consented to admit the sale, and Dunlap paid the $500, and is willing to comply with the remaining conditions, and has taken possession of the land.</p> <p>The original bill is brought to set aside this sale; the cross bill is to affirm the sale, and acquire a valid title under it.</p>

This is a writ of error to the court of common pleas of the county of Fairfield. The original suit was an action of assumpsit, brought by the defendant in error, who wasplaintiff in the court below, to recover for services rendered as a physician, at the special instance and request of the defendant below.

This is a bill in chancery from the county of Hamilton. It is a suit for dower, and the material facts are these: On May 25, 1807, Andrew Bart, then the husband of the complainant, Sarah Hughes, was owner in fee simple of lot No. 125, in Cincinnati, and on that day, by deed duly executed by him and his said wife, conveyed the same to David E. Wade. By said deed Sarah . Hughes, the present complainant, released her right of dower in the premises.

<p>Where the rights of two coparceners to a part of an estate are barred ,by an adverse possession and the same part in a partition of the whole estate is alloted to another coparcener, who is within the saying clause of the act of limitations, the latter can hold only his original share in the part so alloted to him.</p> <p>The right to sue for real estate saved by the provisos in the act of limitations is personal, and is no protection to others.</p>

This is an information in the nature of a,-quo warranto from the county of Portage.

This is an action of ejectment from the county of Licking. On the trial of the case, there was no controversy but that the plaintiff must recover unless divested of title by a sale for taxes, the defendants claiming title under such sale. It was proved that notice was given by advertisement that the sale would take place on June 1, 1824.

This is a bill in chancery from the county of Union. The bill is filed by a purchaser to obtain an injunction against a judgment which his vendor has recovered against him for part of the purchase money, on the ground that the vendor can not make a good title.

This is an action of assumpsit from the county of Hamilton. It is averred in the declaration that the defendants were stage proprietors, and the plaintiff took a seat in their coach to be conveyed, with his baggage, safely and securely, from Dayton, in the county of Montgomery, to Springfield, in the county of Clark, for, and in consideration of a certain reasonable reward by the plaintiff then and there paid to the defendants.

This is a bill in chancery, from the county of Payette. - On October 15, 1797, Theodoric Bland entered 1,333J acres of land, on part of a military warrant, No. 209. No. of entry, 1,122. This entry was surveyed by John O’Bannan, deputy surveyor, on October 20, 1797, and is situated in the county of Fayette.

This is a writ of error to the common pleas of the county of Cuyahoga. *The suit in the court below was an action on the case, for [160 cutting ditches and water-courses in such’ a manner as to cause the water to overflow and wash away the plaintiff’s land. At the trial, the court charged the jury : That the plaintiff could not sustain his action, unless he showed them, either that the city acted illegally, or if within the scope of authority, that they acted maliciously.

This is an action of ejectment from the county of Fayette. A verdict was taken for the defendant, and the plaintiff moves for a new trial. The plaintiff’s lessor claimed title to the premises, under a conveyance from Adam Funk, and the defendants, as the heirs at law of Adam Stewart. The facts are these: Adam Funk, being insolvent, executed a deed to his son, Absalom, admitted by both grantor and grantee to defraud the creditors of the grantor.

This is an action of ejectment from the county of Brown. On the trial the plaintiff gave in evidence to the jury a 164] ^patent for certain real estate, which is claimed to be, in part, the land in controversy, dated in 1804, and purported to convey land surveyed for John Bartlet. The defendant claimed title under a patent bearing date at a subsequent period, and which was issued on the survey of Thomas Perkins.

<p>The limitation in the estray act, which restrains the operation of town ordinances to animals owned by the citizens of the town, applies to town charters granted after the passage of the estray act.</p> <p>Two statutes in pari materia shall stand together, and both have effect if possible, for the law does not favor repeals by implication.</p>

<p>Land scrip issued to the heir under the act of Congress of 1828 is liable, in equity, to the debts of the ancestor.</p>

This is an action of assumpsit from the'comity of Franklin. The suit was brought upon a bill of exchange by the holder 181] *against an indorser. The bill was made in New York, and all the original parties to it are, and were at the-time, citizens and residents of that state. The bill was indorsed before maturity by the defendant in the State of Ohio, and both the parties to the record are, and were at the time of indorsement, citizens of this state.

<p>The record of a deed, purporting to be acknowledged before an officer not known to our laws, is not admissible in evidence, unless his authority bo shown.</p>

This is a certiorari to the court of common pleas of the county county of Hamilton. It brings into this court a record of certain proceedings before the mayor of the city of Cincinnati, to enforce the collection of a special tax, assessed upon a lot of ground lying on Tine street, owned by the defendant Gwynne, for the purpose of improving said street.

This is a motion to quash an appeal from the county of Sandusky. At the February term of the common pleas, 1840, the plaintiff recovered a judgment against the defendant, and the presiding judge marked on his docket, “ notice of appeal by def’t.” This notice was not carried into the journals of the court, but the defendant, within the thirty days after the term, filed his bond for an appeal.

This is a motion to dismiss an appeal from the county of Lorain. This suit was brought to the November terip. of the common pleas, 1838, and was continued, by regular entries, until April term, 1840. At the April term, 1840, the transcript shows that a jury was called, impaneled, and sworn, and “upon their oaths do say - there the entry stops; no verdict, no judgment, or continuance.

This is a bill in chancery from the county of Coshocton. The bill sets forth, that the complainant, being the owner of certain lands in Coshocton county, consisting of two tracts, one called the Huffman tract, of 728 acres ; the other the Sukely tract, of 3,273 acres, for which he hold Sukely’s agreement, and owed him toward the land about $3,000, by a trust deed, on October 25, 1833, conveyed the Huffman tract to William A. Adams, to secure $5,300 due to Benjamin Blandy;…

This is an action of debt for rent from the county of Monroe. The declaration contains two counts.

This is a bill in chancery from the county of Cuyahoga. It is a suit for a specific execution of a contract for lands.

This is a writ of error to the court of common pleas of the county of Adams. *The plaintiff íd error was convicted of perjury, at the [221 March term of the court of common pleas, 1840, and sentenced to imprisonment, at hard labor, in the penitentiary. He now prosecutes his writ of error, to reverse the judgment.

This is an action of assumpsit from the county of Hamilton. The suit is brought on a policy of insurance upon the steamboat Swan.

<p>A fraudulent grantee, who had conveyed or restored the property at the tima of the bill filed, is not liable, as a trustee, to creditors.</p>

This is a writ of error to the court of common pleas of the county of Brown. The plaintiffs in error were indicted, tried, and convicted for a riot, in the court of common pleas of Brown county, at the term of September, a. d. 1839. *On impaneling the jury, it appears, from the inspection [233 of the second hill of exceptions, taken during the trial, that a question arose as to the right of peremptory challenge to the juroi’S, on the part of the state.

This is a bill in chancery from the county of Athens. The bill was filed by the complainants, to enjoin the defendants from the collection of a state tax, levied upon certain lands owned by them in the county of Athens, as tenants in fee simple. To the bill there is an answer; and upon bill and answer the case is submitted to the court.

This is a bill in chancery from the county of Fairfield. Dr. James Wilson devised his real estate to his children, Maria and James, and died. Maria afterward married George F. Bull.

This is a certiorari to the common pleas of the county of Hamilton. By the charter of Cincinnati, the city council are invested with power, among other things, “to erect, establish, and regulate the markets and market places of said city for the sale of provisions, vegetables, and other articles necessary for the sustenance, comfort, and convenience of the inhabitants.” 32 Ohio L. 248.

This is a writ of error to the court of common pleas of the county of Holmes. The original suit was an action of assumpsit, brought in the court of common pleas of Holmes county, in which the plaintiffs in error were defendants, and the defendants in error were plaintiffs.

This is a bill in chancery from the county of Trumbull. The case made in the bill is this : At the September term of the Supreme Court, in the county of Trumbull, 1831, the defendant, Clarissa Hungerford, then Clarissa Blakesley, on her application, was, by a decree of said court, divorced from her husband, Amos Blakesley, and it was further ordered and adjudged by the court, that .the said Amos should yearly, and every year, pay to the clerk of said court, during the joint…

This is a motion for a new trial in an action of ejectment from the county of Harrison. Both parties derive title from their father, John Ross, deceased. The plaintiff claims as heir at law. The defendant sets up a deed, executed by his father to himself and his brother James Ross. The execution of this deed is admitted, but its delivery is denied. To prove the delivery, the defendant offered the declaration of his father, made after the execution of the deed.

<p>This is an action of ejectment on an agreed state of facts, from the county of Clermont.</p> <p>A patent was issued in the name of James Mabin, after his death, in 1800.</p> <p>Andrew Mabin was the brother and heir at law of James.</p> <p>In 1830, a decree in chancery was obtained, by the plaintiffs in this suit, against the unknown heirs of Andrew Mabin. Tho record of this decree shows, that an affidavit was filed, by the plaintiffs, during the progress of the suit, that the heirs of Andrew Mabin were unknown.</p> <p>The defendants trace their title to a patent, issued in 1833, on an entry made after the decree in chancery.</p>

This is an action of ejectment from the county'of Cuyahoga. A verdict was taken for the defendant, and the plaintiff moved for a new trial.

<p>This is an action of assumpsit from the county of Portage.</p> <p>It is submitted to the court upon an agreed state of facts.</p> <p>On October 19, 1837, complaint was made before Jeremiah Moulten, a justice of the peace of Brimfield township, by the overseers of the poor of that township, stating that one Eachel Coozard was insane. A warrant was issued, said Eachel brought before the justices, and a jury was impaneled according to law, who found the said Eachel to be insane and incapable of taking care of herself, but that she was not dangerous, and ought not to be confined. The justice issued an order to the overseers of the poor of said township, directing them to provide for said Eachel, etc.</p> <p>Said overseers of the poor, at the expense of said township, provided for her until February 17, 1838, when a guardian was appointed by the court of common pleas. The expense of the inquest was $12.10, and the cost of maintenance, $66.63. Said Eachel had no property. Demand of payment of the above two sums have been made of the commissioners, and refused on the ground that the said Eachel was, during the time aforesaid, a township charge, and the county not legally liable for her support and maintenance. To recover these two sums this suit is prosecuted.</p>

This is a bill in chancery from the county of Licking. It is stated, in the bill of complaint, that, in 1830, the canal commissioners constructed a feeder to the main canal, to be used for the purpose of taking water out of the north fork of the Licking river. The feeder was so constructed, as to be capable of drawing out of said north fork, at the point of intersection, more water than was required for canal navigation.

<p>A decree of dismissal of a bill of foreclosure is no harto a suit on the note.</p> <p>Matters of defense, arising after plea filed, can only be taken advantage of by plea puis darrein continuance.</p>

This is a bill in chancery from the county of Hamilton. On January 3', 1827, Thomas Kitchen made his will, devising the property in controversy to his wife, for life, remainder in fee to his daughter Mary. Mary married Joseph S. Williams, and in April, 1835, after the death of the testator, and before the termination of the life estate, Williams and his wife joined in a conveyance of their estate to the complainant.

<p>Demises, except by persons holding a present interest, will be stricken out o'n. motion.</p> <p>Where land can be identified by the description it will pass by the deed, although some of the terms are false.</p> <p>A deed, convoying 960 acres in Athens county,” with no other description, will not pass land lying in another county.</p>

This is an action of covenant on an agreed state of facts, from the county of Hamilton. Jacob Burnet and William Corry, on September 19, 1825, sold and conveyed to John P. Foote, a lot in Cincinnati, on the east side of Vine street, for $1,020, the consideration paid. This deed eontainod the covenants of seizin, warranty against incumbrances, etc. John P. Foote sold the same lot of ground to Samuel E. Foote, 318] the plaintiff, and gave him possession in 1826.

<p>A witness is not bound to answer any question that will directly or indirectly criminate himself.</p> <p>Although in such case the witness is his own judge, yet he is liable to an action by the party, if his refusal to testify be willful and his excuse false.</p>

<p>Neither the Supreme Court nor the court of common pleas has any power to issue a certiorari in criminal cases.</p>

<p>After the right to real estate has been satisfactorily established at law, equity-will quiet the title against any further disturbance. It is not material what number of trials have been had, whether two or more, so that the right be satisfactorily established.</p> <p>In government surveys, a corner made by the surveyor arbitrarily or by mis. take can not control the field notes as returned to the proper office.</p>

<p>This is a bill in chancery, from the county of Stark.</p>

<p>This is a writ of error to the court of common pleas of the county of Gallia.</p> <p>The plaintiff in error was indicted at the April term of the court 355] of common pleas, 1841, and tried, convicted, and sentenced *to imprisonment in the penitentiary, at the July term thereafter, for tbe crime of forgery. This conviction be seeks to reverse by tbe prosecution of this writ of error.</p>

This is an action of debt, from the county of Cuyahoga. The declaration avers, “ that the defendants and one Charles L. Ogden, whom the sheriff has returned not served, on December 27, 1837, at Cleveland, in said county, made their certain writing obligatory, the said Ogden as principal, and the said Elisha T. and William as sureties, signed with their hands and sealed with their seals, etc,, whereby the said Ogden and the said defendants acknowledged themselves to be bound…

<p>The judges of the Supreme Court in their private capacity have no power to direct proceedings in the nature of a quo warranto.</p>

This is a bill in chancery from the county of Hamilton. It is brought by Eleanor Meese, one of the heirs of Thomas Dugan (together with her husband), to contest the validity of his will.

This is a writ of error to the court of common pleas of the county of Crawford. The original action was assumpsit, brought by the trustees of Whetstone township, against Howard, the plaintiff in error, for meat, drink, lodging, and other necessaries furnished by the township to and for the use of Joanna Howard, his wife. The declaration contains the appropriate common counts.

<p>This is a bill in chancery from the county of Fairfield.</p> <p>It is a suit against the administrators of John Huber, to compel the payment of two sums of money, which it is alleged accrued to her during the marriage, and out of the dower estate of her former husband, John Graham.</p> <p>The bill avers that the said John Graham made several entries of land, upon which partial payments were made; that the lands thus entered became forfeited to the government in consequence of non-payment. That afterward, in the year 1830, her two daughters, in pursuance of the laws of Congress with regard to forfeited payments, procured the money therefor, amounting to $300, and that they divided the same equally between themselves and the complainant, paying the complainant $100 as her equitable ^proportion. That her then husband, the said John [872 Huber, never claimed the same, but always spoke of and treated it as the separate property of the complainant. That some time alter the receipt of the money, the said John Huber being desirous to make use of the money, requested her to let him have the same, which she did, and that he then gave to her the following note:</p> <p>“Due Elizabeth Huber on demand $100, for value received, as witness my hand, this 12th day of September, 1831.</p> <p>“ $100. John Huber, Jr.”</p> <p>The answers of the administrators deny the equity of the bill, and the case is heard upon the bill, answers, and evidence.</p> <p>The claim to another sum of money mentioned in the bill was abandoned for want of proof.</p>

This is an action of debt from the county of Hamilton. The action was commenced in the court of common pleas of Hamilton county, for money expended in the support of a pauper, and removed into this court by appeal. On trial, a verdict was returned in favor of the plaintiffs, subject to the. opinion of the court on the following state of facts : David Coogals was originally settled in the township of Miami.

This is a motion from the county of Muskingum. It was reserved on the last circuit, upon an agreed statement of facts, signed by counsel, from which it appears, that in 1837, James Taylor, one of the defendants, borrowed from the fund commissioners of Muskingum county $25,000 of the surplus revenue of the United States, deposited with the State of Ohio, for the payment of which he executed his bond to the State of Ohio, in the form required by law, but containing no…

This is a bill in chancery from the superior court of the city of Cincinnati. It sets forth, that in April, 1836, Miller conveyed to the plaintiff a lot in Cincinnati, by deed, containing the following covenants : 1. That he was the lawful owner. 2. That he had good right to sell. 3. The common warranty.

<p>This is a writ of error to the court of common pleas of the county of Hamilton.</p> <p>In the original case, Samuel B. Finley commenced an action by warrant against the steamboat Monarch, in pursuance of the act of February 26, 1840, “providing for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against them by name.” In virtue *of the war- [385 rant the sheriff seized upon the boat, but left her in the possession of the owners, taking bond according to the statute, that she should be forthcoming to answer the judgment. Upon the return of the warrant a declaration in assumpsit was filed against the boat by name, to which declaration a plea of the general issue was filed.</p> <p>This issue was submitted to the court, who, upon hearing, rendered a judgment against the steamboat.</p> <p>The defendant then tendered a bill of exceptions, which was allowed by the court and made part of the record.</p> <p>In the bill of exceptions, it is stated that the plaintiff, in order to sustain his action, proved by the clerk of said boat the account annexed to the bill of exceptions, and that all the items of the account were for debts contracted for and on account of said steamboat Monarch, by the master thereof, and there rested his ease.</p> <p>Whereupon the-counsel for the defendant claimed judgment because all the items of said account are dated prior to the day when the act above referred to took effect. And it was proved for the defendant that L. & A., of New Orleans, became joint owners with others, of said boat on May 22, 1839, and sole owners on the 9th day of September of the same year; and thereupon it was claimed, that if judgment should be entered for the plaintiff, it should be only for so much of said account as accrued subsequent to the 22d day of May, or the 9th day of September aforesaid. But the court ordered judgment to be entered for the entire balance of said ■ account, with interest.</p> <p>The first item of the account annexed to and made part of the bill of exceptions, is charged on July 24, 1839, and purports to be for balance of account rendered, and amounts to $1,254.35. The-last item is charged on April 25, 1840. The whole amount of the account is $2,120.80, of which $697.40 accrued subsequently to February 26, 1840. The account is credited with $1,213, leaving a balance of $907.80, and the amount of judgment rendered $932.66.</p> <p>*The writ of error is prosecuted in the name of the steam- [386-boat, and the errors assigned are:</p> <p>1. That the declaration and matters therein contained, are insufficient in law to maintain the action.</p> <p>2. That judgment is entered for too large an amount.</p> <p>3. That judgment should have been entered for defendant, and not for plaintiff.</p>

This is an action of debt from the county of Portage. The suit is brought on a writing obligatory, executed by the defendants, Burnett, Pendleton, Tyler, and Hopkins, on June 6, 1839, to the plaintiff, to secure to the two first-named defendants the privileges of the prison limits of the jail of Portage county. The defendants have plead : 1. Ml débet, on which an issue is made up to the country; 2.

<p>Where, under the charter of a turnpike company, damages are assessed for injuries done to the land over which the road passes, the owner of the land can not afterward sue one employed to make the road, for cutting the timber, within the lines of the road, into cord-wood and selling it.</p>

This is a writ of error to the court of common pleas of the county of Hancock. The single error relied upon grows out of a bill of exceptions taken during the trial. The plaintiff below offered to prove by his own path the service of notice to take depositions, and his testimony was received.

<p>This is a bill in chancery from the county of Sandusky.</p> <p>It is brought by the complainant to compel the respondent to specifically execute a contract averred to have been made 400] ^between the parties, for the sale and purchase of a certain tract of land, situated in the county of Sandusky. The bill sots out the consideration and terms of purchase, but they need not be noticed,-as the case turns entirely upon the fact whether, if any contract be proved, it is not within section 5 of the statute for the prevention of frauds and perjuries, which enacts, “That no action shall be brought whereby to charge any person upon any contract or sale of lands and tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.” Such memorandum is averred by the complainant, in his original and amended bills, to have been put down by the respondent in his memorandum-book at the time the contract was made.</p> <p>In his answer, the respondent denies that any binding or obligatory agreement was ever entered into by him. He admits a negotiation with the complainant, and that he made a memorandum of it at the time, which was shown to the complainant, but denies that it was ever signed, or that he ever intended to execute a contract until the first payment was made, agreeably with the understanding existing between him and the complainant.</p>

<p>Where real estate is subject to two liens, the elder a judgment and the younger a mortgage, if the judgment lies dormant five years its priority is lost and the mortgage takes the estate. *</p> <p>One in possession of land has such an interest as may he sold on execution.</p>

<p>This is a writ of error from the county of Preble.</p> <p>The original action is assumpsit, and the declaration contains a count upon a promissory note, and the common counts for work and labor, goods sold, money had and received, money lent, etc.</p> <p>To this declaration the defendant pleaded the general issue and three special pleas in bar. Upon the first plea the plaintiff joined issue, and demurred specially to the three special'pleas. On hearing, the court of common pleas overruled this demurrer, and the plaintiff got leave to reply, which was done, *and the [406 several issues joined submitted to-a jury. After the plaintiff had closed his evidence, the court, on motion of the defendant, ordered a judgment of nonsuit to be entered, which was done accordingly.</p> <p>A bill of exceptions was then tendered and allowed by the court, which sets forth, that on the trial of the ease, the plaintiff gave in evidence a writing, of which the following is a copy: ■</p> <p>“On or before January 1, 1839, for value received, we, or either of ns, promise to pay Thomas S. Mitchell $300, it being the purchase money of a large brown jack, which we have this day pur. chased of said Mitchell, who warrants said jack to be a sure foal-getter for jennies as jacks in general; now if said jack should not fill said warranty, we are to have the liberty of making a set-off against this note. This note is to bear interest from date until paid, at the rate of six per cent, per annum, June 27, 1837;” signed by all the defendants: and then rested his case. Whereupon the defendants, by their counsel, moved the court to nonsuit the plaintiff, on the ground that said instrument of writing did hot support the issue joined between the parties. This motion was sustained by the court, and judgment rendered as before stated.</p> <p>To reverse this judgment of nonsuit, this writ of error is prosecuted, and the errors assigned are, that the court of common pleas erred in overruling the demurrer, and in directing a judgment of nonsuit.</p>

<p>If a tenant agrees expressly, whether under seal or not, to pay rent, and makes no reservation on account of unavoidable accidents, he is bound to pay the rent for the whole term, notwithstanding the premises in the meantime are destroyed by fire.</p>

<p>A mortgage defectively executed may he enforced in equity.</p> <p>Such mortgage has a priority of lien over a later judgment.</p>

This is an action of assumpsit from the county of Delaware. The case was submitted to a jury, on the last circuit, in the county of Delaware; but, by consent of counsel, a juror was withdrawn, the facts agreed, and the case submitted to the court to determine the questions of law. The declaration is founded on two promissory notes.

This is an action of ejectment from the county of Ashtabula.

This is an action of covenant from the county of Hamilton. In March, 3816, the dofendant by deed conveyed forty feet from the south side of lot No. 98, in Cincinnati, to Samuel W. Davies, •with a covenant of general warranty. Davies conveyed the premises to Arthur St. Clair. At his death they were assigned to his widow for her dower, and she has been evicted by a paramount title.

This is an action of debt from the county of Perry. It is brought on a county treasurer’s bond bearing date December 12, 1833.

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

This is an action of assumpsit from the county of Cuyahoga. The suit is brought on the note of the defendant payable to R. H. Backus. Tho plaintiff avers he is the surviving partner of the late firm of R. H. Backus, composed of the plaintiff, as a dormant, and of Backus, as the ostensible partner. The declaration also sets out the promise as made to the firm, under the name of R. H. Backus. The general issue is pleaded, with a notice of set-off.

<p>This is a bill in chancery from the county of Ashtabula.</p>

This is a bill in chancery, from the county of Richland. It is brought for the purpose of obtaining a new trial at law.., The bill, after setting forth the substance of the controversy between the parties, the submission of the cause by their counsel to the jury, the charge of the court, the withdrawal of the jury under the charge of a constable, and the rendition of the verdict, avers that the said verdict was unjust, contrary to law and the evidence, and that it was…

This is an action of ejectment from the county of Montgomery.

<p>Where a patent issues “ to A. B., assignee of O. D., who was executor of' John Hockaday, deceased,” a purchaser under the patentee must look at his peril to see whether John Hockaday’s executor had,the requisite power to assign the warrant.</p> <p>An owner of land, tracing his title to a patent, is affected hy notice of the facts contained in the recitals of the patent.</p>

This is an action of assumpsit from the county of Gallia. The declaration contains three counts, all for money had and received. The first charges the money to have been received in the lifetime of the intestate and avers the promise to have been made to him. The second charges the money to have been received in the lifetime of the intestate and avers the promise to have been made to the plaintiff as administrator.

This is a certiorari to the court of common pleas of the county of Ross. The record shows that on June 26, 1841, the plaintiffs in error recovered a judgment against the defendants, in the court of common pleas for Ross county, for 11,736.77, besides costs of suit. On the 14th day of July of the same year, a writ of ft. fa. was issued and put into the hands of the sheriff, and which writ was returned at the November term of said court of common pleas, 1841.

This is an action of assumpsit from the county of Portage. The declaration contains two special counts. In the first, it is averred that one C. D. Farrar, on November 26, 1836,. being desirous of purchasing a general assortment of goods in the city of Pittsburg, for a retail country store, on a credit, and being unknown to the business men of said city, applied to the defendants, Messrs.

<p>On a bill drawn March 20th, due at four months, a demand and notice on the 22d is not good.</p> <p>Mo protest of the dishonor of a bill, drawn by a citizen of one state on a citizen of another, is necessary, except to recover statute damages.</p> <p>Time, in eases of demand and notice, is reckoned, it seems, by calendar months-</p>

This is a petition for dower from the county of Knox. George Resley died intestate, in Washington county and State of Maryland, in the year 1809, leaving the said Mary Larrowe, his widow, who resided till the year.1835, out of the State of Ohio. At the time of his death, George Resley was seized of the premises in the petition mentioned, and now owned and occupied by William Beam, as well as other real estate, in the county of Knox.

This is an action of ejectment from the county of Pickaway. The defendants are the owners of two surveys, 534 and 1286, on the west side of Darby creek. The plaintiff owns survey No. 1678, on the east side of the creek.

<p>An indictment for stealing bank bills is not sustained by proof that the prisoner stole the orders of the Ohio Railroad Company.</p>

This is an action of ejectment from the county of Hocking. It is submitted to the court on this agreed case : “It is agreed by the parties that the land in controversy Was patented by the’ United States to Rufus Putnam and others on May 10, 1792; that said patentees, on May 12, 1792, by deed duly executed, conveyed the same land to Manassah Cutler; that said Cutler, on July 2, 1792, by like deed conveyed the same laijd to Elisha Whitney ; that said Whitney having duly…

This is a bill in chancery, from the county of Clermont. The complainants are the heirs at law of Thomas Ridley. By virtue of a military warrant granted by the State of Yirginia to Tliomas Ridley, an entry was made of 166§ acres of land, situate between the Little Miami and Scioto rivers, in the county of Clermont, which is in these words: “No. 3,406. Tbos.

This is an action of assumpsit from the county of Eoss. The declaration contains a single count for money had and received, to which the defendant pleaded the general issue. The issue thus joined was submitted to the court on the following agreed statement of facts: 527] *“ On April 19, 1841, the Bank of Chillicotlie ceased, and refused to redeem the notes issued and put in circulation by said bank, with good and lawful money of the United States.

<p>A hank incurs no forfeiture by mere suspension, where a penalty for suspension of twelve per cent, damages is given to the holder of its notes, both by its charter and the general law.</p> <p>The right to issue post notes is secured to the Commercial Bank of Cincinnati by its charter.</p> <p>Contracting by a bank to take a higher rate of interest than six per cent. •where illegal, works no forfeiture of its charter.</p> <p>Expansions and contractions of circulation, and disproportionate loans to officers, work no forfeiture.</p> <p>The suspension of specie payment by a bank may be carried so far as to afford evidence of entire misuser of powers and extinguish its chartered privileges.</p> <p>There was no law in force in 1840 which forbid the Eranklin Bank of Cincinnati from issuing notes of the denomination of one, two, and three dollars, or of orders on the Branch Bank of Terre Haute, designed to circulate as money.</p>

This was an action of assumpsit, tried on the circuit in 1841, in the Supreme Court of the county of Fairfield.