Volume 10 — Ohio State Reports, New Series

<p>*In Chancery. Reserved in the district court of Clinton county.</p> <p>The case is stated in the opinion of the court.</p>

The original action was ‘brought by the defendants in error against the plaintiff in error upon a policy of insurance upon a stock of goods, insured for twenty-five hundred dollars, and destroyed by fire.

The original action was assumpsit, brought, in the court of com'mon pleas, by the plaintiff, Bain, for contribution from the defend••ant, Wilson, as co-surety upon a bill of exchange under seal, paid by plaintiff.

The original action was ejectment, brought to recover the possession of a lot of land in the city of Cincinnati. The plaintiff offered evidence showing title by a deed from Thomas H. Allen. This deed calls for a lot on the south side of Longworth street, its boundary beginning at a point thirty-eight feet and six inches east from Smith street.

Proceedings were instituted by the Steubenville and Indiana Railroad Company, in the probate court, to appropriate lands of Buckingham and others for the uses of said railroad. A jury was impaneled, witnesses were examined, the amount to be paid for the land was assessed, and the same was paid by the railroad company to the probate judge, and on the 5th of December, 1853, judgment was rendered in favor of the railroad company for the land sought to be appropriated.

<p>Error to the district court of Lake county.</p> <p>The case is stated in the opinion of the court.-</p>

On the 3d of April, 1852, the plaintiff brought suit before a justice of the peace of Cincinnati townshij), upon the record of a judgment rendered against the defendant on the 14th of January, 1845, by a justice of the peace in the State of Indiana. Judgment was rendered upon the record of the Indiana judgment and the case came up to the common pleas by appeal.

This is an action of ejectment commenced in April, 1849, in the Superior Court of Cincinnati, and certified from that court to the court of common pleas of Hamilton county, in which it was tried at its October term, 1852, and a verdict and judgment rendered therein in favor of the plaintiff. The cause was thereupon appealed by the defendant to the district court, where it was finally tried in May, 1856, and a verdict and judgment rendered in favor of the defendant.

Demurrer to petition. Reserved in the district court of Clinton county. An action was brought by the plaintiff against the defendant, to recover the amount due upon a contract for a subscription of stock, made by the latter with the Belpre and Cincinnati Railroad Company. That company was organized under an act passed on the 8th of March, 1845. Directors of the company were elected on the 17th of August, 1847.

Petition in error in the nature of a bill of review. Beserved in the county of Stark. The case is stated in the opinion of the court.

Reserved in the district court. On the 8th day of November, 1856, the present plaintiff, filed their petition in the court of common pleas of Crawford county, against the present defendant, stating in substance, that the defendant, on the 27th day of September, 1856, was, and before and up to that time»had been, a common carrier of goods and chattels and live stock, for hire, between the town of Bucyrus, in the county of Crawford, in the State of Ohio, and the city of…

This is a petition in error to revei'se the judgment of amercement rendered by the court of common pleas of Seneca county in favor of the administrator of Martin Summers against William S. Langdon, as sheriff of Defiance county. Reserved in the district court of Seneca county.

This petition in error was filed in the district court of Gallia county, to reverse a judgment rendered in the court of common pleas of said county, in favor of defendant in error. The cause-was reserved by said district court for decision at the district court of Scioto, and by the last-mentioned district court reserved for decision here.

Reserved in the district court of Darke county. The plaintiff, on the 28th February, 1855, filed his petition, in the court of common pleas of Darke county, to recover possession from the defendant of a tract of land described in the petition. The petition states the title of the plaintiff to be a-patent from the-United States, dated July 12,1845, the same being recorded in the-recorder’s office of the county on the 30th December, 1854.

Reserved in the district court of Knox county. The action below was for the recovery of real property. John Jeffers died seized of the premises in controversy', November 8,1836.

<p>*In chancery. Reserved in the district court of Guernsey county.</p>

This is a petition in error prosecuted to reverse a judgment of the court of common pleas of Morrow county, reversing a judgment rendered in favor of the plaintiff in error, and against the defendant in error, by Joseph Long, a justice of the peace of said Morrow county, at the instance and upon the petition of the now defendant in error.

The defendant in error brought an action against the railroad company for having, by its agents, carelessly run its steam-engine- and locomotive and cars against and over five of. his cattle, killing three and wounding two of them. The answer of the company denied the carelessness.

The plaintiff, in her petition filed in the court of common pleas-of Lucas county, states that she is the administratrix of Williaih Woodard, deceased, late of that county; that she was duly appointed by, gave bond to, and was legally qualified as such administratrix by and before the probate court in and for said county, on the 24th day of May, 1856; that the defendant is and was a railroad company having a line of road from Toledo to Chicago; that on the-21st day of…

On the 19th of April, 1855, the plaintiff in error, being the owner,, as tenant in common, of seven undivided ninth parts of a tract of land in Wayne county, filed his petition for partition.

M otion for leave to file an information in the nature of a quo warranto. The case is sufficiently stated in the opinion of the court.

Civil action. Reserved in the district court of Marion county. The plaintiff filed a petition on the 7th of June, 1854, in the-court of common pleas of Marion county, to recover the possession, of a tract of land, described in the petition, from the defendant, Miller. On the 3d of July, 1854, the plaintiff amended his petition, making Arthur Carmichael, Nancy Carmichael, John Wiley, and.' Mary Wiley, defendants.

The original action was brought, in the court of common pleas, by the plaintiff in error against the defendant in error, as the administrator of Tuenis A. Kagy, deceased, and one Aaron A. Kagy, as the surviving partner' of the deceased, to recover a balance claimed to be due to the plaintiff in error for feeding and fattening certain stock hogs of the late firm of A. A. & T. A. Kagy (the said decedent and the said survivor having constituted said firm), under a contract…

In the court below, the plaintiff in error was a co-defendant with the defendant in error. The original suit was brought by Gebhart, Brother & Co., *against the defendant, Huesman, and the plaintiff in error, Thomas, who filed an answer and cross-petition. The claim of G-ebhart, Brother & Co. is not before the court. The petition in error is filed by Thomas.

The city of Toledo was organized as a city of the second class, under the “ act to provide for the organization of cities and incorporated villages,” passed May 3, 1852.

<p>The circumstance that mortgages are successively made upon the same property, or that several mortgages are made at the same time, upon the same property, to different persons, by an insolvent debtor, to secure, severally, debts due to such persons, does not constitute any one or all of the mortgagees taking possession of the property, trustees under the act regulating assignments in trust to preferred creditors.</p> <p>Where facts arc proved to show that an assignment, though not in form, was, in intent and by agreement, a trust within the statute, the conduct of the party taking the title and possession subsequent to the time of the inception of the title and of the taking possession, while it may authorize an inference that the parties agreed that what was done should be done, does not, ordinarily, amount to more than evidence of an intent and agreement. And where, in such a case, the facts are found by the court, but there is no finding of an intent or agreement to constitute a trust, this court can not, from facts found as to the subsequent conduct of the parties, in the disposition of the property, supply such finding of intent or agreement.</p>

<p>Mutual promises to marry in the future, though made between parties competent to contract, and followed by cohabitation as husband and wife, is not, in itself, a valid marriage.</p> <p>Petition in error in the nature of a bill of review. Reserved in Cuyahoga county.</p> <p>The case is stated in the opinion of the court.</p>

<p>Where bank-bills are transferred and received as money, in payment of a debt, after the bank by which they were issued has stopped payment, though its failure is not yet known at the place of payment, nor by either of the parties, the loss in such case must, in the absence of any special agreement, be borne by the party paying the bills, provided the other party be guilty of no laches in retaining them for an unreasonable time.</p>

*Error to the district court of Ashland county. The original action was brought by the defendant in error, in the court of common pleas of Ashland county, to recover from Garret Dorland and John H. Dorland (the latter of whom was not served with process), on four several causes of action set forth in the petition.

The record discloses the following state of facts: On the 20th of May, 1842, Charles Sontag, of the city of Cincinnati, being the owner of certain property known as the “ Chemical Laboratory,” which was subject to two certain mortgages in favor of David Loring and the estate of John Young, deceased, under which mortgages said property was about to be sold at judicial sale, he (Sontag) transferred to said Loring sundry ehoses in action and assets, set out in the pleadings, “…

Reserved in tbe district court of Delaware county. The case presented by the record is as follows: John Kent made his will on the 16th day of June, a. d. 1846. He died on the 27th of October, 1853. His will was admitted to probate, in Delaware county, on the 29th of November, 1853. Henry Fox was appointed administrator, with the will annexed. The will disposes of the estate of the testator thus : 1.

The petition of the plaintiffs, filed in the Superior Court of Cin•cinnati, on the 24th of September, 1856, stated, that the plaintiffs, on the 16th of'September, 1856, were the owners of a certain stock of dry goods, clothing, and jewelry, of the value of nine thousand seven hundred and sixty-one dollars and thirty-five cents, contained in a certain frame house in the town of M ount Sterling, in the county ■of Brown, and State of Illinois ; that plaintiffs held the said…

<p>Error to the district court of Hamilton county.</p> <p>*The case is stated in the opinion of the court.</p>

The defendants in error filed their petition in the court of common pleas of Guernsey county against the plaintiff in error, in which they state “ that the plaintiff in error, on or about the 10th of July, 1852, at said county, subscribed to the capital stock of the Central Ohio Railroad Company, six shares of fifty dollars each share, and delivered the same t© said Central Ohio Railroad Company, which said subscription was made by signing his name to a paper in the words…

<p>Bill of review. Reserved in the county of Erie.</p> <p>The cause is stated in the opinion of the court.</p>

*At a special term of the district court, begun and held in and for Cuyahoga county, on the 11th day of March, 1858, before three of the judges of the court of common pleas, in the judicial district within which said county is situate, a cause, pending in the district court of said county on appeal, wherein Gibson North and others were plaintiffs, and Silas Merchant was defendant, came on for disposition; and said Merchant having failed to an awer or demur to the plaintiffs’…

At the August term, 1859, of said court, the plaintiff in error was-indicted for the crime of perjury.

Suit was commenced on the 11th day of November, 1854, under the code, in the court of common pleas of Lucas county, by Veronica Muhl’s administrator, against the defendant.

The defendant in error brought a civil action, in the *common pleas of Warren county, against the plaintiff in error, to recover damages for an assault and battery. The ease having been taken, by appeal, to the district court of that county, it was there tried to a jury, at the June term, 1857, and the plaintiff below had a verdict and judgment for $700; to reverse which this petition in error is prosecuted.

Civil action. Beserved in the district court of Bichland county. On the 5th day of December, 1857, the plaintiffs filed in the-court of common pleas of Bichland county their petition,-stating, in substance: That on the 7th day of October, 1854, the defendant, H. Leyman, made and delivered his promissory note, in writing, to Mitchell,.

*This is a writ of error to the c.ourt of common pleas of Butler county. At the June term, 1859, of said court, William C. Herron was indicted for arson in burning a warehouse, and Simeon Allen was indicted for procuring him to do so. The two were jointly indicted At the same term, the court, on motion of the prosecuting attorney, ordered the two to be tried separately, and continued the case as to Herron on his and the prosecuting attorney's motion.

Reserved in the district court of Ross county. Held: and to which I may have claim or title, at the time of my death, together with all the rest and residue of my bank and other stocks, that I may own at the time of my *death, shall be divided into three equal shares or parts, as hereinafter directed, and the stocks of each bank or kind into three equal parts, all the uses, rents,…

<p>Where a petition for divorce is dismissed on a final hearing in the common pleas, on the merits, the case is not appealable to the district court, under section 4 of the act of April 15, 1857 (54 Ohio L. 131), “ to amend the act concerning divorce and alimony.”</p>

On the 6th day of July,J855, Irad Kelly, the plaintiff in error, commenced a proceeding in forcible detainer, against Edward T. Nichols, one of the defendants in error, before a justice of the peace of Cleveland township, to obtain possession of certain premises in said township, theretofore leased by Kelly to Nichols; and on the 18th day of July a judgment of restitution was rendered therein in favor of Kelly against Nichols, together with the' costs of suit.

On the 16th day of May, 1855, Loomis, Campbell & Co. executed to E. Gilbert & Co. tbe promissory note of wbicb tbe following is a copy: “$1,150. Cincinnati, JMEa-y 16,1855. “ Six months after date, we promise pay to the order of E. Gilbert & Co., of Rochester, N. Y., eleven hundred and fifty dollars, value received, payable at the O. L. I. & Trust Co. Bank, New York.

Petition for a rehearing. Reserved in the district court of Hamilton county.

Petition in error in tbe nature of a bill of review, to reverse a decree of the district court of Erie county.

Reserved in the district court of Summit county. This action is brought upon a policy of insurance issued by the defendant on the 10th of January, 1850, insuring the plaintiff in the sum of five thousand dollars, against loss or damage by fire, on the fixed and movable machinery of the plaintiff, then situate in her woolen-mill, in the town of Mount Yernon, Knox county, Ohio, for the period of six years.

*At the March term, 1855, of the court of common pleas of Monroe county, Dougherty, one of the defendants in error, filed a submission bond and award, in his favor and against Joseph Williams and Robert Williams, for $546.69, and obtained judgment for that amount on the award.

The original action in the court below was brought by George S. Coe, trustee, against the Columbus, Pi qua and Indiana Eailroad Company, and others, praying for a judgment for the sale of the railroad and other property of said company conveyed to said Coe, in trust, to secure the payment of certain bonds and interest coupons of said company. The record of the proceedings in the court of common pleas was brought into this court by petition in error.

Reserved in the district court of Muskingum county. The petition in this case was filed to enjoin the sale of certain property of the Central Ohio Railroad Company, a defendant, 'levied on by the remaining-defendants, under judgments recovered •by them against the said railroad company.

Ralph Hueston, the defendant in error and plaintiff below, in the year 1852, commenced an action of assumpsit in the court of common pleas of Butler county, against Harrison C. Bird, as adminis ■ trator de bonis non of Matthew Hueston, deceased, to recover the price and value of work and labor alleged to have been performed by the defendant in error, for the intestate of the plaintiff in error.

Mandamus. Error to the district court of Hamilton county. On the 24th day of October, 1859, on the petition of Charles Harkness, Charles L. Gano, and Thomas L. King, executors of the last will and testament of Anthony Harkness, deceased, an alternative writ of mandamus was issued out of the district court of Hamilton county, directed to Howard Matthews, Esq., auditor of said .county, which reads as follows: *“ Whereas, it has been suggested to us that Thomas L. King,…

<p>Motion to dismiss appeal. Eeserved in the district court of Erie county.</p>

<p>.Error to the district court of Hocking county.</p>

Deserved in the district court. On the 29th of November, 1853, an order of attachment was issued out of the court of common pleas of Montgomery county, on the allowance of the court, in a civil action that day brought therein by J. Langdon & Bro. against Conklin & Martin, upon claims not -then due. On the next day the order of attachment was levied upon certain property found in the possession of the defendant, 'Conklin.

<p>Error to the district court of Fairfield county.</p>

On the 17th of November, 1856, a petition was filed in the court ■of common pleas of Trumbull county, on behalf *of the township of Hartford, plaintiff, against Edwin Bennett, defendant, in a •civil action brought into that court by appeal from the judgment *of a justice of the peace. The action was brought to recovir of the defendant the penalty imposed by statute for refusing to ■serve in the office of constable.

<p>Error to the common pleas of Clermont county.</p>

This is a motion for leave to file a petition in error to reverse the judgment of the district court of Butler county. The original action was brought by James Kyle, upon a promissory note of which the following is a copy: “$500.

<p>Error ío the Superior Court of Montgomery county.</p>

<p>Error to the district court of Morgan county.</p>

<p>Civil action. Motion to dismiss appeal. Reserved in the district court of Jefferson county.</p>

<p>Mandamus. Reserved in the district court of Hamilton county..</p>

<p>Error to the court of common pleas of Stark county.</p>

<p>Motion for leave to file petition in error to reverse the judgment -of the Superior Court of Montgomery county. T. F. Thresher, for the motion.</p>

Reserved in* the district court. The plaintiff in error, defendant below, filed an answer to the-petition of the plaintiff below, in these words : “ The said defendant denies all the material allegations of said’, plaintiff in his said petition.” To this the plaintiff below demurred, and assigned for cause that, the same did not state facts sufficient to constitute a defense to the ■ action.

<p>Error to the district court of Wood county.</p>

Error, to the court of common pleas of Defiance county! This is a petition in error filed to review and reverse a decision •of the court of common pleas of Defiance county, made in disposing of a motion for the distribution of the moneys arising from a judicial sale of lot number sixty, in the town of Defiance. .

<p>Error to the court of common pleas of Putnam county.</p>

Reserved in the district court of Hamilton county. This is an action of trover to recover the value of four hundred •and thirty-eight hogs, the property of the plaintiff, alleged to have ¡been wrongfully converted by the defendant in a. d. 1849.

<p>Error to the district court of Lucas county.</p> <p>On the 17th day of December, 1853, four actions were commenced ■against one Paul Edwards, in the court of common pleas of Lucas county; one in favar of J. L. Knapp & Sons; one in favor of Daniel Salmon and Dwight O. Salmon; one in favor of Josiah P. Wright, Stillman A. Clark, James Brackett, Horatio M. Averill, and James W. Averill; and the fourth in favor of Joseph and William Blakely. Attachments were issued in all these cases, to the sheriff of Lucas county, against the property of said Paul Edwards.</p> <p>On the 19th day of December, 1853, another suit was commenced against said Paul Edwards in favor of Daniel W. Corbin and an .attachment was issued on the same day as in the other cases.</p> <p>By virtue of these five attachments, the sheriff seized a ■*large amount of property, most of which James Rutledge, one of the plaintiffs in error, claimed to own. The remainder, being but a small part of the whole, was claimed by one William Gildea, who has since died.</p> <p>0'n the said 19th day of December, 1853, said Rutledge, Gildea, and the other parties plaintiff herein, executed, under section 199 •of the code, the undertaking upon which the action below was brought, and of which the following is a copy:</p> <p>“ J. L. Knapp & Sons, Plaintiffs,</p> <p> v. </p> <p>Paul Edwards, Defendant.</p> <p>Josiah P. Wright et al., Plaintiffs,</p> <p> v. </p> <p>Paul Edwards, Defendant.</p> <p>Joseph and William Blakely, Plaintiffs,</p> <p> v. </p> <p>Paul Edwards, Defendant.</p> <p>D. & D. 0. Salmon, Plaintiffs,</p> <p> v. </p> <p>Paul Edwards, Defendant.</p> <p>Daniel W. Corbin, Plaintiff,</p> <p> v. </p> <p>Paul Edwards, Defendant.</p> <p> In Lucas Common-Pleas. </p> <p>“The following property, described in the inventory and appraisement hereto attached, marked A, having been attached in said actions, in the hands of James Eutledge, on five several orders—four of the first above-named dated December 17, 1853, and the last named one, December 19, 1853—we bind ourselves to the plaintiffs, J. L. Knapp & Sons, Josiah P. Wright and others, Joseph and William Blakely, D. & D. Salmon, and Daniel W. Cor-bin, in the sum of eleven thousand seven hundred and ninety-six dollars and twenty-eight cents, that the property, or its appraised value in money, shall be ^forthcoming to answer the judgments of this court in said several actions.</p> <p>“James Eutledge,</p> <p>“ Isaac M. Eeed,</p> <p>“Barnard McMullen,.</p> <p>“William G-ildea,</p> <p>“Lewis Schindler,</p> <p>“ Maxim Eoter,</p> <p>“Timothy Mattimore,.</p> <p>“Patrick Carey.</p> <p>“ .Toledo, December 19, 1853.”</p> <p>Upon the execution of this undertaking on the same day, the-said property was delivered by the sheriff to said James Eutledge.</p> <p>On the 20th day of December, 1853, another action was commenced against said Paul Edwards, in favor of Samuel 0. Ives, and an order of attachment issued, on which the sheriff made return, i hat he had attached the same property subject to said above-named attachments.</p> <p>Afterward suits were commenced and attachments issued as follows :</p> <p>December 24,1853, in favor of James E. S. Fuller and Jerome Myers.</p> <p>January 17, 1854, in favor of John P. Kellogg, H. L. Kellogg, and John N. Squires.</p> <p>January 19, 1854, in favor of Patrick Tregent, Sen., and Patrick Tregent, Jun.</p> <p>On all these attachments the same, return was made as in the case of Ives, but under none of them did the sheriff take any jjossession of the property or any part of it, nor was any new undertaking given.</p> <p>At the March term, 1854, of Lucas common pleas, the attachments in all the cases commenced December 17, 1853, were discharged, leaving the case of Daniel W. Corbin, commenced on the 19th December, the only one of the cases in which said undertaking was given in which *the attachment had not boon discharged. In this case an order was entered at the same term that the sheriff repossess himself of the attached property. Under this order the ■sheriff again took into his possession all the property by him orig-, in ally attached, except, as appears by his return, goods valued'in the original appraisement at $1,537.46. This order was dated April 10, 1854.</p> <p>On the 6th of April, 1854, new attachments were issued in the cases of Josiah P. Wright et al., Joseph and William Blakely, and D. and D. 0. Salmon, three of the cases whore attachments had been discharged; and the sheriff returned that he had attached all the goods originally attached, except those which had not been delivered back to him under said order of April 10, 1854.</p> <p>On the 27th day of April, 1854, James Rutledge, claiming to be the owner of the goods which had been surrendered to the sheriff under said order, replevied the same from the sheriff. This action was tried at the December term, 1854, of Lucas common pleas, and judgment rendered in favor of Rutledge for a portion of the property, and in favor of the sheriff for the remainder, and damages were assessed in favor of the sheriff and against Rutledge, for the sum of $3,366-36., which judgment was afterward paid in full by Rutledge.</p> <p>After the commencement of this replevin suit, and the passing, of the property thereunder into the hands of James Rutledge, on the 23d of May, 1854, a suit was commenced against Edwards, and an attachment issued, in favor of Sperry & Hire; and on the 23d of June, 1854, J. L. Knapp & Sons, whose attachment of December 17,1853, had been discharged iu March, issued another attachment; and on both of these the sheriff returned that he had attached the same property originally attached, except that portion which had not been returned to the sheriff under said order of April 10, 1854. The sheriff did not take possession of any part of said property under either of these writs, but it remained in the undisturbed possession of Rutledge.</p> <p>*On the 5th day of October, 1854, the action on said undertaking of December 19, 1853, was brought in the common pleas-in the names, as joint plaintiffs, of all the above-named attaching creditors, against the plaintiffs in error, as makers of said undertaking.</p> <p>At the December term, 1854, a default was taken, which was-afterward set aside, and the defendant (plaintiffs in error) answered-</p> <p>At the December term, 1855, judgment was rendered in favor of the said defendants, from which the plaintiffs (defendants in error) appealed to the district court, where the case was tried at the April term, 1858, and judgment rendered in favor of the plaintiffs, and against the defendants, for $1,902.42. This judgment was for the appraised value of the goods not returned to the sheriff under the order of April 10, 1854 ($.1,537.40), and the interest thereon, being the same goods excepted, in the levies of April 6, May 23, and June 23, 1854.</p> <p>The bill of exceptions shows that on the trial to the court, the-defendants moved the court to dismiss the.case, for the reason that there was a misjoinder of parties plaintiff appealing on the face of the ¡^leadings. The court overruled the motion, and defendants excepted.</p> <p>The plaintiff's then proved the issuing and service of their several attachments, the recovery of judgments against Edwards in said-actions, and introduced in evidence the order of April 10,1854, and the return of the sheriff thereon, showing the non-delivery to him of the $1,537.46 in value, of the goods originally attached.</p> <p>Defendants then proved the replevy by Rutledge, the judgment in favor of the sheriff, and the payment of said judgment, and that the sheriff in said action recovered and collected an amount more than sufficient to pay the judgment in favor of said Corbin against Edwards.</p> <p>“ Thereupon the court held that an action was properly brought in the names of all the plaintiffs in the action, as having, by their attachments therein, an interest in the ^proceeds, and that the defendants were bound to said plaintiffs for the appraised value of all the property not delivered to the sheriff under said order, oi otherwise, in discharge of all the judgments in said actions, in the order in which the attachments were issued and served upon the property. To which ruling of the court the defendants excepted.”</p> <p>The court gave judgment; defendants moved for a new trial, which was overruled, and the defendants excepted, and now seek to reverse the judgment.</p> <p>The errors assigned are that the district court erred:</p> <p>1. In refusing to grant the motion of the defendants (plaintiffs in error) to dismiss said action, for the reason that there was a misjoinder of parties plaintiff appearing on the face of the pleadings,</p> <p>2. In proceeding to try said cause upon the pleadings as they stood, without amendment.</p> <p>3. In holding that said action was properly brought in the name of all the plaintiffs in said action.</p> <p>4. In holding that all the parties plaintiff in said action had, by their attachments, an interest in the proceeds of said property, and that the defendants were bound to all said plaintiffs for the appraised value of all the property not delivered to the sheriff, in discharge of the judgments in favor of all the plaintiffs.</p> <p>5. In holding that those parties who issued their attachments, after the giving the undertaking sued upon in said actions, and those whose attachments, although served before that time, were afterward discharged, had any right to sue the defendants upon said undertaking, or recover anything against them in said action.</p> <p>6. In not holding that the claim of said plaintiff, Corbin, had been fully paid and discharged.</p> <p>7. In giving judgment for plaintiffs.</p> <p>8. In not giving judgment for the defendants.</p> <p>9. In refusing to grant a new trial.</p>

<p>1. Where an action has been commenced to recover specific personal property and damages for the detention, and the property, after being taken-by the sheriff, is returned to the defendant under section 179 of the code, the action may proceed and the plaintiff may recover to the extent of bis-interest in the property, under section 186, without any amendment of the pleadings.</p> <p>2. Where a constable levies on property and leaves it in the possession of the-debtor, taking security for his own indemnity, under section 179 of the justices act, the possession of the debtor is to be regarded as the possession of the constable, and a sheriff afterward levying on the same property, the constable has, as against him, the right to the immediate possession, and may sustain an action, without a demand for the redelivery of the-property; and in such action, to make out a case, calling on the sheriff to establish a better right to the property, the constable is not bound to-produce in evidence the judgments upon which the executions levied were-founded.</p> <p>3. That a prior levy was excessive does not, in itself, render it invalid as against a subsequent levy upon the same property.</p> <p>4. The making an inventory, though often desirable, is not necessary to constitute a valid levy upon personal property.</p> <p>5. Where it may be inferred from the evidence, that an officer, in virtue of process in his possession, asserts a right in respect of goods within his power, a finding of the court below that there was a valid levy, will not be disturbed ; and more particularly when the debtor himself, by giving an undertaking for the delivery of the goods, admits a levy.</p>

Reserved in the district court: The defendant in error brought his action on the 30th of January, 1858, in the court of common pleas, against the plaintiffs in ■error, as makers of a promissory note of which the following is a copy: *“$500.

<p>Petition for dower. Reserved in the district court of Madison county.</p> <p>The case is stated in the opinion of the court.</p>

^Information in the nature of quo warranto. In this case an information in the nature of quo warranto has been exhibited against the defendant, Hueston Hopkins, on the relation of William Adams, requiring said Hopkins to show by what warrant he claims to hold and exercise the office of county treasurer of Warren county.

<p>Error to the Superior Court of Cincinnati.</p>

<p>Reserved in the district court of Wood county.</p>

<p>Error to the common pleas of Athens county. Reserved in the-district court.</p>

Reserved an the district court. On the 17th day of October, 1855, “the commissioners of Mercer •county, Ohio, plaintiffs,” brought an action upon the official bond cf William Hunter, as treasurer of *said county, and his sureties, stating in their petition, in substance, that said Hunter, having been elected treasurer of said county on the second Tnes■day of October, 1853, for the term of two years, from and after the ■first Monday of June, 1854, did, on the first day of…

Reserved in the district court of Hamilton county. This is an action on the case commenced prior to the code of •civil procedure, in the court of common pleas of Hamilton county, in which court the defendant obtained a verdict and judgment. The cause was appealed by the plaintiff to the district court.

James R. Paul sued Daniel A. Webster and Jasper M. Hubbard, as partners, under the firm-name of Webster & Hubbard, on an account connected with a transaction in hogs between the parties.

^Motion for judgment. Reserved in the district court of' Stark county.

<p>1. A mistake in the legal effect of a description in a deed, or in the use of technical language, may be relieved against. Where parties are shown, through-ignorance and mistake, to have conveyed an estate to M. S. and her heirs, when the intention was to make a provision for her children as well as herself, and to convey the land to M. S. for her life, remainder to her children-Held, that the mistake might be corrected.</p> <p>2. The evidence to correct a mistake should be clear and convincing, but where-a court of error, acting upon a bill of exceptions, reviews the finding of the court below upon the fact of mistake, a doubt as to the degree of clearness will not authorize a reversal.</p>

<p>Motion for leave to file petition in error.</p>

*Error to the Superior Court of Cincinnati. The original action was brought by Timberlake against the Gazette Company, for the publication, in their newspaper, of an alleged libel.

In April, 1855, Josiah Higdon filed, in the Superior Court of ■Cincinnati, his petition to enforce a lien for a paving tax, assessed by the city of Cincinnati, against certain real estate *owned ■by James and Samuel II. Goodin, hereinafter described. To that petition all persons having liens upon said real estate were made parties defendant, among whom were Thomas B. May-bee and the Ohio Bife Insurance and Trust Company.

*Error to the district court of Columbiana county. The original action was brought by the plaintiff, Stackhouse, to recover from the Cleveland and Pittsburg Eailroad Company for an alleged trespass. • The plaintiff stated in his petition that he was “the owner of a certain tract of land in said county, and that said company, well knowing the same, in locating, laying out, and constructing their railroad on and through the premises . . . without the plaintiff’s consent or…

Whit of error to the common pleas of Butler county. Beserved -in the district court. *At the February term, 1854, of the court of common jileas of Butler county, John Boose was indicted for robbery and burglary, in different counts of the same indictment. These crimes are charged to have been committed January 22, 1854, The indictment contains four counts ; the first and second for rob bery, and the third and fourth for burglary.

Petition in error to reverse the judgment of tlie district court of Lucas county. The original action was covenant, brought in the court of common pleas of Putnam county, December 2,1850, by Creighton and Oliver against Harden, for an alleged breach of covenants of general warranty in a deed of conveyance of lands alleged to have been made by the defendant to the plaintiffs.

Error, to the district court of Hamilton county. The original action was trespass on the case, brought in the Superior Court of Cincinnati, April 29,1851, by Alfred Stunt, against the steamboat Ohio, for an assault and battery committed April 27, 1851, by one Finn, one of. the engineers of the boat, upon the plaintiff, who was at the time a deck-passenger on board the boat. The boat and her engine, apparel, and furniture were seized under a warrant issued in the case.

*Error to the court of common pleas of Hamilton county. The plaintiff in error was indicted and convicted of petit lar•eeny at the March term, 1856, of the court of common pleas of Hamilton county, and sentenced to imprisonment in the jail of the ■ county, “ to be kept at hard labor for the term of three months,” and to make restitution to the owner, in twofold the value of the property stolen.

Reserved' in the district court. The original action was brought by Johnson & Kellogg, against the Cleveland and Toledo Railroad Company, before a justice of the-peace, and appealed to the court of common pleas of Lorain county, to recover damages for an injury to a case of goods, delivered to the-railroad company, at Cleveland, for transportation to Oberlin, and which ^happened under the circumstances set forth in the following agreed statement of facts : “ It is agreed…

This is a petition for. dower, reserved in the district court of Hamilton county for decision here.

This is a writ of error to the court of common pleas of Hamilton county. Held: then and there him, the said Nicholas Horton, in and upon the lower part of the right side of the abdomen, just above the left groin, then and there purposely, and of deliberate and premeditated malice, did strike, cut, and stab, thereby then and there, with the knife aforesaid, giving to him, the said Nicholas Horton, in and upon…

This is a petition in error to reverse a final order of the court of •common pleas of Lucas county, overruling a motion for the confirmation of a sheriff’s sale of real estate. At the March term, 1856, of the court of common pleas of Lucas-' county, and on the 10th day of March, in the case of Samuel W. Stimpson v. Milliard J. Daniels et al., judgment was rendered against the defendants, and an order for the sale of real estate allowed.

<p>Error to the district court of Clermont county.</p>

<p>Error to the district court of Butler county.</p>

<p>Bill of review to reverse a decree of the district court of Champaign county.</p>

Reserved in the district court of Montgomery county. This is an action of trespass on the case brought by Thomas Parrot against the Cincinnati, Hamilton and Dayton Railroad Company, in the court of common pleas of Montgomery county, in ■September, 1852, and appealed to the district court, to recover damages claimed to be sustained by the plaintiff because of the act of said railroad company in constructing its railroad on a street in the ■city of Dayton, and running its cars…