Volume 11 — Ohio State Reports, New Series

On the 18th day of February, 1858, Messer Barker, of Richland county, died intestate, leaving a widow, Lydia F. Barker, who had been his second wife. He left five children, Mary A. Conger, Laura P. Spencer, Anna M. Bancroft, Emily Jane Conger, and Eliza A. Barker, the issue of his first marriage. He left no issue of his second marriage.

Information in the nature of quo warranto. On the 16th day of March, 1860, Mr. Attorney General Wolcott, on the relation of John Drake, a citizen of Warren county, filed in the supreme court an information in the nature of quo warranto, in the name of the state of Ohio, giving the court to understand, and he informed “ that James M. Roosa,.

This was an action of assumpsit on a bill of exchange. Two of the defendants, Philo Chamberlin and Silas S. Stone,. severally pleaded the general issue. Needham M. Standart was discharged upon his plea of bankruptcy, and Samuel A. Wheeler died after the institution of the suit. The case was tried before a jury upon the pleas of Chamberlin and Stone,.. and a verdict rendered for the plaintiffs.

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

The plaintiffs in error, who were also plaintiffs below, by their petition in the original action allege, that about the 1st of September, 1853, the plaintiffs and defendants entered into an agreement by which the defendants, in consideration of the plaintiffs having agreed to pay a reasonable price therefor, undertook and agreed to manufacture and make for the plaintiffs, in a reasonable time, and out of good and suitable materials, three steam boilers (of certain…

This is a petition in error filed in the district court of Franklin county, to reverse a judgment of the court of common pleas, and reserved for decision in the supreme court.

Civil action. Reserved in tbe district court of Lucas county. This action is brought to recover damages for an alleged breach of the covenant of warranty in a deed from Stephen B. Comstock, in his lifetime, to the plaintiff, and is submitted upon an agreed statement of facts.

The plaintiff commenced an action against the defendants to subject to the payment of judgments against George A. Edwards, an interest in certain land described in the petition. The petition alleges that the judgments were recovered before a justice of the peace, and that transcripts of the same were filed in the office of the clerk of the court of common pleas and became a lien, on the 11th of February, 1857.

This is a petition in error filed and prosecuted here to reverse a judgment of the superior court of Cincinnati, in general term, affirming a judgment of that court at special term. The original action was brought by the defendants in error against the plaintiffs in error, on an instrument of which the following is a copy: “No. Cincinnati, Nov. 11,1854. Geo. Milne & Co.: Pay to John Kugler, on the 18th, or bearer, two hundred and twenty-one dollars and twenty-seven cents.

<p>Bv the original charter of the city of Toledo, it was bounded on the southeast by the center of the Maumee river, which is a navigable stream. Upon the petition of the corporation, pursuant to the provisions of the 14th section of the act to provide for the organization of cities and incorporated villages (Swan & Critchñeld’s Stat. 1497), the county commissioners of Lucas county ordered an extension of its limits so as to include an unincorporated village and other adjoining lands on the southeast side of the river : Held,</p> <p>1. That the territory so annexed was contiguous to the original city.</p> <p>2. That such annexation might be ordered without the consent and against the remonstrance of a majority of the persons residing on the annexed territory.</p> <p>3. Lands thus annexed are liable to local taxation on account of pre-existing city debts.</p> <p>4. The provisions of said section 14, are not in conflict with the constitution Powers v. Commissioners of Wood county, 8 Ohio St. Rep. 285, approved and followed.</p> <p>5. An order of annexation made by the county commissioners in the exercise of jurisdiction acquired pursuant to statute, though liable to be reviewed and set aside by the court of common pleas, is not void, and can not be collaterally impeached.</p> <p>6. An assessment of taxes made pursuant to an ordinance passed by a city council, is not rendered invalid by the omission of the presiding officer of the council to sign the ordinance.</p> <p>7. The repealing clause of the 1st section of the act of 1852, for the organization of cities and incorporated villages, did not abrogate the school systems then existing, nor repeal the special laws creating them in the several towns and cities of the State.</p>

<p>The rule of the common law, that things savoring of the realty are not the subjects of larceny, only applies to things issuing out of or growing upon the lands, and such as “ adhere ” to the freehold, but not to personal chattels which are constructively annexed thereto — ex gra : a leathern belt connecting certain wheels in a sawmill, and which may bo removed readily and without injury.</p>

<p>1. When a question is asked which is objected to, and the objection sustained, in taking an exception there should be a statement of what it is proposed to prove ; which must be something material, and the rejection of which as evidence would be prejudicial to the party excepting.</p> <p>2. Where a question is asked, an objection made and sustained, and an exeep-</p> <p>• tion taken, but it appears from the record that the evidence which the question was intended to elicit, was in fact received, so that no prejudice was done, the exception can not be sustained.</p> <p>3. A defendant who, by the nature of the issue, is entitled to give evidence of his character for peace and quietness, is not limited to proving what people may have said of him, as to his being or not being a quiet and peaceable man, but is entitled to inquire as to his character from those acquainted with him, and they are authorized to speak from his general peaceable and quiet conduct, and from not having known or heard anything to the contrary.</p> <p>4. Where the judge presiding at the trial of a prisoner for murder sends to the jury, on their request, in the absence of the prisoner, a copy of the statutes of the State, calling their attention to the three sections relating to homicide : Held, that it was an exercise of discretion on the part of the judge which did not prejudice the prisoner, and furnished no ground for the reversal of the judgment.</p>

<p>Where A. took a lease of real estate from C. for ninety-nine years, renewable forever, the only consideration for which was a fixed annual rent, and which contained a covenant for quiet enjoyment; and after C.’s death, his widow, by legal proceedings, obtained an assignment of dower in the rents, issues and profits of the premises ; in an action on the covenant by A. against tha administrators of C. — Held,</p> <p>1. That A. was entitled to recover his costs and reasonable fees of counsel is defending against the widow’s claim for dower.</p> <p>■2. That those holding the reversionary interest of C. in the premises, and his rights under the lease, having been made parties in the case, they were properly enjoined against collecting any more than two thirds of the rent due under the lease during the lifetime of the widow.</p> <p>3 That the assignment of dower in rents, issues and profits, was a constructive eviction r f the lessee to the extent of one third of the demised premises ; that for such eviction the measure of damages is the one third of the rent payable under the lease ; and that A. having never, since the commencement of proceedings for dower-by the widow, paid more than two thirds of such rent to those who succeeded to the rights of C., he was entitled to no further recovery</p>

<p>Error to the superior court of Cincinnati.</p> <p>This was an action brought under the code, by Hugh Gibson and wife, in the superior court of Cincinnati, to recover the possession of the undivided half of certain real estate in Cincinnati.</p> <p>The case was reserved, upon an agreed statement of facts, for the decision of that court in general term.</p> <p>The controversy arose, mainly, from a clause in the will of Samuel Stitt, which refers to the property in dispute, and reads thus:</p> <p>“ Sixthly. I do, also, hereby give and devise to the children of my sister, Nancy, for and during the term of their natural lives, share and share alike, all the residue and remainder of the lands and tenements whereof 1 may die seized or possessed, and not otherwise* hereinbefore given and devised, whether held in possession, remainder, reversion or in action, together with the rents, issues and profits thereof, and in case of the death of one or more of the said children, leaving issue of his, her, or their bodies, at the time this devise takes effect, it is my wish, and I do hereby order and direct, that such issue, for and during the term of their natural lives, shall take, under this my will, precisely in the same manner as the immediate ancestor or ancestors of such issue would have taken, had she or they been then in being; and at the decease of any of the said devisees, who shall have taken as aforesaid for the term of his, her, or their natural life, I give and devise the share so given and taken as aforesaid intended, to the issue of such devisee so dying, share and share alike, for their natural lives respectively; and again, at the death of the issue last aforesaid, or any of them, I further give and devise the respective share or estate of the said issue, or any of them so dying, to the issue of such issue, or any of them, share and share alike, for the term of their natural lives; and in this manner, down in entailment as far as may be allowed by the statute in such case made and provided.”</p> <p>From the agreed statement of facts it appears, that the testator, Samuel Stitt, died oh the 21st of August, 1847; and his will, dated February 26, 1844, was duly admitted to probate, in Hamilton county.' His sister, Nancy Wilson, had died before that time, leaving three children, who were in life at the death of the testator, to-wit, Nancy Wilson, Jane Mc-Neely, and William Wilson, who were his heirs at law. Nancy Wilson, the younger, died, March 13, 1849, unmarried, and leaving an illegitimate daughter (Mary Ann Gibson), in the thirty-second year of her age, her heir at law. William Wilson died in March, 1850, leaving a daughter (Mary Ann Wilson), about nine months old, who died in January, 1855, leaving neither father, mother, brother, sister, nor child; and hej next of kin were the descendants of Nancy Wilson, the elder.</p> <p>On this state of facts, Mary Ann Gibson claimed to recover the undivided one half of the premises, in part under the will of Samuel Stitt, and in part as one of the heirs at law of Mary Ann Wilson.</p> <p>A question also arose in the case, as to the effect of a former decree of the same court, rendered in a suit brought by the present plaintiffs against some of the present defendants, together with the administrator de bonis non, with the will annexed of said Samuel Stitt, which it was alleged involved the subject matter of the present suit, and in which the plaintiff’s petition was, upon hearing, dismissed.</p> <p>This decree of dismissal the defendants claimed to be a bar to the present action.</p> <p>The court below gave judgment in favor of the plaintiffs for two ninths of the premises in controversy, and the parties have, mutually, brought the case into this’ court by cross petitions in error.</p>

<p>¡Jj., as cashier of defendant, proposed, by letter, to sell plaintiffs a bill of exchange drawn by B. & Co. for $5,000, at the price of principal, interest, and current rate of exchange of the same. S. & Co., by letter, accepted the proposition, and forwarded the money in payment. L. received the money, and gave credit as expressed by letter to plaintiffs, inclosing a bill by F. A Co., strangers to plaintiffs (and indorsed without recourse by M., a stranger, and not indorsed by defendant), for $5,000, charging therefor the same price, informing them the B. A Co. bill was gone, and adding, “but this bill is perfectly safe.” To which the plaintiffs replied by letter — “ Tour favor with stated inclosure is received, and is very satisfactory.” S. & Co. were unable by use of due diligence to collect the bill.- Held)</p> <p>1. The cashier L. is to be regarded as the agent of the defendant, in the transaction.</p> <p>'2. The affirmation of the cashier, accompanying the bill sent to the plaintiffs, that the “bill is perfectly safe,” amounted to a warranty, or a representation in the nature of a guaranty, on the part of defendant, that the bill was collectible.</p>

<p>H., by bis will executed in 1809, devised certain real estate in Ohio to F., an unmarried daughter, for life, and the remainder at her death to her child or children then living, and the descendants of those who might be dead, equally to be divided per stirpes. F. subsequently married, had thirteen children born, but at her decease left only ten children then living, one having previously died without issue, and two leaving issue. Held, that the devise to the children.of pre-deceased children is not in conflict with the statute “to restrict the entailment of real estate,” passed February 17, 1811 ; and that the “ immediate descendants ” to which by said act all devises are restricted, includes all to whom, under the statute of descents, an estate would have descended immediately from the particular person whose descendants they by the will are required to be.</p>

<p>Mandamus.</p> <p>Tbe alternative writ of mandamus states that Daniel H Treadwell is the owner of four bonds, being precisely alike, and one' of which is as follows :</p> <p>“No. 55. United States of America, State of Ohio, Co. of Hancock. $1000. Dayton and Michigan Railroad Company. The county of Hancock acknowledges itself indebted to the Dayton and Michigan Railroad Company, or bearer, the sum of One Thousand Dollars, negotiable and payable at the office of the Ohio Life Insurance and Trust Company, in the city of New York, on the first day of January, A. D. 1864, upon the presentation and delivery of this certificate, bearing an interest of seven per cent, per annum, payable annually, on the first day of January, at the said office of the Ohio Life Insurance and Trust Company, in the city of New York, upon presentation and delivery of the proper coupon hereto attached, signed by the auditor of said county. This bond is issued in part payment of a subscription of one hundred thousand dollars, by the said county of Hancock, to the capital stock of the Dayton and Michigan Railroad Company, chartered March 5, 1851, and -an act to authorize the commissioners of Clark county to subscribe stock in railroad companies, passed March 8, 1850. Witness the seal of Hancock county, and the signature of the Board of Commissioners, and Auditor of said county. August 8, A. D. 1853. William W. Hughes, Thomas Kelley, Commissioners of Hancock county [seal], E. Barud, Auditor.”</p> <p>The first interest warrant attached to the bond, the others being similar, was as follows :</p> <p>“Interest Warrant, No. 4, for $70. On the 1st day of January, 1858, at the office of the Ohio Life Insurance and Trust Company, in the city of New York, the commissioners of Hancock county will pay the bearer seventy dollars, interest on their bond No. 55. E. Barud, Auditor.”</p> <p>The writ proceeds to state that the bonds were regular on the face thereof, and what they recite, and what interest warrants were attached thereto. A demand of the payment of some of these interest warrants is then stated, and a refusal to pay, and the amount due of unpaid installments of interest claimed, is three hundred and fifty dollars.</p> <p>It is further stated that Daniel II. Treadwell is the bona fide holder of said bonds and interest warrants for a full and valuable consideration paid, and that said installments of interest have not been paid because the board of commissioners and auditor of said county of Hancock have neglected and failed to provide the necessary funds by taxation.</p> <p>The parts of the laws which apply to the action of the commissioners in issuing the bonds, and to their effect, are printed in the margin of the bonds, and are set forth in connection with them as follows :</p> <p>“ An act to incorporate the Dayton and Michigan Railroad Company, passed March 5, 1851.</p> <p>“ Sec. 6. The county commissioners of any county through •or in which said road may be located, shall be, and they are hereby authorized to subscribe to the capital stock of said company any sum not exceeding one hundred thousand dollars. The corporate authorities of Dayton, Troy, Piqua, Sidney, Lima, Perrysburgh, Maumee City and Toledo, shall also be authorized to subscribe to said railroad company any sum not exceeding fifty thousand dollars. And the trustees of any township in any county through which said road may be located shall be authorized to subscribe to the capital stock of said railroad company any sum not exceeding ten thousand dollars; and in making such subscriptions, and in all matters •pertaining thereto, the commissioners of counties, corporate ■authorities of said cities and towns, and trustees of townships, shall have all the rights, privileges and powers, and be subject to the restrictions of an ‘ act to authorize the commissioners of Clark county to subscribe stock in railroad companies,’ passed March 8, 1854, so far as the same are applicable, and not inconsistent with this act. Provided, that the vote on the question of subscribing stock to said railroad company, in any county, city, town or township, as provided for in this act, shall be taken at the annual spring or fall election, by giving twenty days’ notice thereof in the manner provided for in the act above referred to, except as modified by this act; and provided, further, that a majority of all the 'voters voting at such election shall vote for subscription.”</p> <p>“An act to authorize the commissioners of Clark county to subscribe stock in railroad companies, passed March 8,. 1850.</p> <p>“ Sue. 2. The commissioners of said county, for the purpose of paying the stock subscribed under this act, are hereby authorized to borrow the necessary amount of money, for which they shall issue bonds or obligations of the county, in amounts not less than one hundred dollars, which bonds or obligations shall he made negotiable, bearing interest, payable-annually, at such place and at such rate, not exceeding seven per centum per annum, as may be agreed upon; and such bonds or obligations may he made redeemable at such time-as may be deemed expedient by said commissioners; or such bonds or obligations, or any part thereof, may be issued directly to said company in payment of said stock, as said commissioners and the officers of said company may agree ; and. all bonds and obligations issued and negotiated by said commissioners, trustees, or town council, and regular on the face thereof, shall, in the hands of said company, or of any bona fide holder thereof, be deemed and taken in all courts and elsewhere as conclusive evidence of the regularity of everything required by this act to be done, preliminary to the issuing and negotiation of such notes or obligations.”</p> <p>To the alternative writ of mandamus the commissioners of Hancock county filed an answer, which was divided into eight parts and numbered, as constituting distinct defenses, and to the 1st, 2nd, 3rd and 8th of which there was a demurrer.</p> <p>The 1st is a denial that the relator is the owner of the bonds or interest warrants. It is in this form : “ that they have no knowledge or information other than is afforded by said writ, that the said Daniel H. Treadwell is the holder of said supposed bonds, or of either of them, or any of the said supposed interest warrants (or coupons), or of either of them, in said writ mentioned; and can not, therefore, admit,, but on the contrary do deny that he is the holder of said supposed bonds, or of either of them, or of said supposed inter est warrants, or of either of them.”</p> <p>The part of the answer numbered 2, states that neither of the bonds or coupons was delivered to the Dayton and Michigan Railroad Company.</p> <p>The 3rd states that the Dayton and Michigan Railroad Company never has located its road through or in said county.</p> <p>The 8th states, “ that the road has never been made or located through or in the county; that before and at the date af the supposed bonds and coupons, it was permanently located and partly made so as not to touch the county, and has since been completed so as not to touch the same; that no subscription to the capital stock of the railroad company has ever been made by or on behalf of the county, or accepted by the company; that no certificate of stock therein has ever been issued to the county or its commissioners; that the county or commissioners have never held, or been entitled to, any stock therein, or been recognized by the company as so entitled; that the supposed bonds and coupons never have been, nor has any one of either of them been delivered to the company in payment of any stock subscription or otherwise; nor have they, or any one of either of them, ever been sold, pledged or hypothecated by the commissioners, or otherwise disposed of by them, for any consideration ; nor has any consideration been paid, given or promised to, or received by the county or board for the supposed bonds or either of them, or the supposed coupons or either of them.”</p> <p>The case was heard on the demurrer to the 1st, 2nd, 3rd and 8th parts of the answer.</p>

<p>In Chancery. Reserved in tbe district court of Clark county.</p> <p>The case is sufficiently stated in the opinion of the court.</p>

<p>A regular statutory certificate of the acknowledgment of a deed of conveyance, made by husband and wife, is, in the absence of fraud, conclusive evidence of the facts therein stated.</p> <p>The failure of the husband to disclose to his wife the character of a mortgage which she executed at his request, and in entire ignorance of its contents, the grantee not being present, and having no reason to suspect imposition, does not constitute such fraud as will enable her to contradict, by parol,, the cer tifieate of acknowledgment.</p> <p>Where a deed, regularly executed and acknowledged by husband and wife, is delivered by the husband, without the knowledge of the wife, and is accepted by the grantee, acting in good faith, and without notice of her dissent, she is bound by such delivery.</p>

<p>Error to the district court of Lorain county.</p> <p>An action was brought by Chauncey Loveland, in the court of common pleas of Lorain county, against Bird B. Chapman. It was stated in the petition that on or about the 27th of April, 1853, a pension was properly allowed by the pension department of the government of the United States, on the application of the personal representative of Esther Loveland, deceased, and that a pension certificate issued, by which said pension was made payable to Theodore Robertson, administrator and personal representative of said Esther, as expressed in said certificate, to be for the benefit of one Esther Graham and the plaintiff, as the supposed surviving children of said Esther Loveland, deceased; that the said allowance so made, and evidenced by the certificate, amounted to $2811. That on or about the 15th day of May, 1853, said Robertson, as such administrator, received said pension money, and thereby became the holder of the money as trustee for the surviving children of s-aid Esther Loveland, deceased ; and the plaintiff sa.ys that at the time of allowing the pension and issuing the certificate, said Esther Graham had in fact deceased, and the plaintiff was and is the only surviving child of the said Esther Loveland, deceased, and as such entitled to have of said Robertson said sum of $2811. That said administrator neglected to pay the money to the plaintiff, but, on the 15th of May, 1853, without his consent, paid of said money the sum of $2108.25 to said Bird B. Chapman, who received it with full knowledge of the rights of the plaintiff. That on the 7th day of August, 1854, the plaintiff demanded the money of defendant, who refused to pay over the same, or any part thereof. That said Robertson is irresponsible, and only gave bail as administrator in the sum of $1600, and that he has no adequate remedy against said administrator, and asks judgment against the defendant for said $2108.25, and interest from said 15th day of May, 1853.</p> <p>Chapman’s answer to the petition admits the allowance of the pension upon the application of Robertson as administrator, and that the pension certificate was issued payable to him as such administrator, and expressed to be for the benefit of Esther Graham and the plaintiff, as surviving children; that the money was in fact received by Theodore H. Robertson, and not by Theodore R. Robertson, as charged, and that Esther Graham was in fact deceased, and denies-receiving the money of Theodore H. Robertson, the administrator. But the defendant avers that he was employed by said administra tor, as an attorney and agent, under a special contract to furnish money for defraying all incidental expenses, arid to render all the necessary services in making the application and proof to obtain said pension; and that at the special in stance and request of said administrator, he, the defendant, entered into a contract with him, whereby the defendant un ■dertook to furnish all necessary money for expenses, and to render all necessary services for the agreed price and consideration of three fourths of such sum as should be finally ■obtained; and that in pursuance of the terms of said contract, he did, and performed all that was so thereby made incumbent upon him, and that by means of his said performance of said contract, said $2311.05, was obtained from the pension department ; and that in accordance with the terms of said contract, for his skill, service, and outlays in money, he became entitled to receive the sum of $2128.25, and of which he has received by way of John B. Robertson, the sum of $1405, and no more ; and avers that the sum was no more than the customary fees in such cases, and no more than a reasonable reward for his services, and outlay in money in said business under such circumstances ; and denies the receipt of any other money, or under any other circumstances ; and denies holding any money in trust for, or that he is indebted to the plaintiff.</p> <p>The case came on for hearing upon these statements and denials of the respective parties and was tried by a jury.</p> <p>The plaintiff and defendant, having each given evidence tending to prove the matters stated in the petition and answer; the defendant’s counsel requested the, court to charge the jury, that the receipt of the money as set forth in the answer, would entitle the defendant to the same, and that no right of action, in that case, would lie in favor of the plaintiff.</p> <p>The court refused to so charge the jury, but instructed them that if the administrator had received said money upon the certificate, he was not authorized to pay any part thereof to the defendant, either for incidental expenses, or services in obtaining the same, but that the full amount received from the pension department belonged, and should have been paid over to the plaintiff; and that he was entitled to recover from the defendant, whatever sum he had received from saia fund, although the same was paid to him under his said contract, so made with the administrator.</p> <p>To all which said defendant by his counsel excepted. And the jury having returned a verdict in favor of the plaintiff, for the sum of $1826.05, the court rendered a judgment in •favor of the plaintiff against the defendant, for the same, and for costs ; and the defendant excepted.</p> <p>To reverse this judgment of the court of common pleas, the defendant below filed a petition in error in the district court, assigning for error the refusal of the court to charge as requested, and the charge as given.</p> <p>The district court upon hearing, dismissed the petition in ■error, and affirmed the judgment of the court of common pleas.</p> <p>The plaintiff in error has filed his petition in this court, to .reverse that judgment of affirmance.</p>

<p>In Error. Reserved in the district court of Lucas county</p> <p>This is a petition in error, originally filed in the district court of Lucas county, to reverse a judgment or order of the court of common pleas of said county, made in favor of the defendant in error, and appropriating the lands of the plaintiffs in error, to the extension and construction of Ottawa street in the city of Toledo, in certain proceedings instituted in that court for that purpose by the defendant in error, under sections 26 and 27 of the “ act to provide for the organization of cities and incorporated villages.” Swan’s R. S. of 1854, 961-2.</p> <p>The defendant in error, on the 18th day of July 1854, caused a notice to be published in the Toledo Commercial and Weekly Republican, a newspaper in general circulation in said Lucas county, addressed to the unknown owners of the real estate they thus desired to appropriate, that on the 5th day of August 1854, an application would be made in writing, by the defendant in error, to the Honorable L. B. Otis, Judge of said Lucas common pleas, at his office in Fremont, San-dusky county, for the impanneling of a jury to inquire into and assess the amount of compensation to such owners for the real estate so to be appropriated. The notice contains a statement of the width of the proposed extension, and the termini of the same; but does not contain a copy of the application itself, and no such copy was’ ever published. The notice, as appears by the affidavit of the publisher, was continued in said newspaper for three weeks prior to said 5th day of August 1854.</p> <p>On the 5th day of August 1854, an application in writing, verified by the mayor of the city, was presented by the defendant in error, to Judge Otis at his said office, setting forth that the city of Toledo deemed it necessary to enter upon and take, for the purpose of extending and constructing Ottawa street in said city, certain land and real estate, which is described therein substantially as in said published notice, also stating it to be private property, and that the owners of the same, and of each lot and parcel thereof, are unknown to the petitioner, and praying for the impanneling of a jury at a time and place to be fixed by said judge, for inquiring into and assessing the compensation to be paid for said lands, etc. Whereupon an order was made by Judge Otis, reciting that it had been made to appear to him, that due notice of the time and place of making said application, had been published in all respects according to law, in the Toledo Commercial, etc.y and assigning the 11th day of September, 1854, for holding a special term of said court, to inquire into and assess the compensation to be paid, and ordered a jury for that purpose to be summoned pursuant to law. On said last named day such special’term was held, and a jury impanneled, which assessed the amount of compensation to be paid by the city to the proper owners at one dollar; whereupon the court, at said special term, ordered the city to pay said assessment to the clerk of said court within thirty days thereafter; and that upon such payment, the said city might take possession of the land mentioned and described in said application, and use and improve the same as an extension of said Ottawa street, and proceed with the improvements on the same.</p> <p>To reverse this order, this petition in error was prosecuted in the said district court, and the same was, by that court, reserved for decision here. Numerous errors are assigned, but only two of them are considered by the court, viz:</p> <p>That said proceedings are not in compliance with the statutes of Ohio. And,</p> <p>That, therefore, the court never had or acquired any jurisdiction to render said judgment.</p>

<p>Error to the court of common pleas of Lucas county, re served in the district' court.</p>

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

Reserved in the district court. On the 20th day of March, 1858, the Marietta and Cincinnati Railroad Company filed' in the office of the probate judge of Athens county the following statement: “ To the probate judge in and for the county of Athens, and State of Ohio: “ The Marietta and Cincinnati Railroad Company, a corporation created in said State, and authorized by law to construct a railroad from Cincinnati to a point, on the Ohio river near Marietta, represents that it…

<p>Reserved in the district court of Richland county.</p> <p>The case is sufficiently stated in the opinion of the court,</p>

Reserved in the district court of Knox county. On the 15th day of May, 1821, one Alexander McLaughlin was seized in fee simple of lots two, six and eight, in range fourteen, township six, Knox county, Ohio; and upon that day he executed to John Cornell & Son, of Philadelphia, his three promissory notes, each for $300, payable in six, nine and twelve months from the date thereof.

<p>1. The fact, that, in a proceeding in chancery under the 16th section of the act of March 14, 1831, “ directing the mode of proceeding in chancery,” (3 Chase 1697) the maker of a negotiable note has been decreed to pay the amount thereof into court to be applied toward the satisfaction of a judgment against a defendant in such proceeding who was the holder of such note at the time of the service of process upon such holder, does not constitute a defense to a subsequent action on the note by a bona fide holder thereof, and who received the same for value, and without actual notice of the pendency of the proceeding in chancery, after the service of process upon his endorser.</p> <p>2. The doctrine of lis pendens does not apply to negotiable paper before due.</p>

<p>Communications made by a client to his attorney, with a view to professional advice or assistance, are privileged ; and courts will not require' nor permit them to be divulged by the attorney, without the consent of his client, whose privilege it is.</p> <p>But if a party to a suit offers himself as a witness, and gives evidence, generally, in the case, he thereby loses this privilege, and, under the code of civil procedure (sec. 315), consents to the examination of his attorney touching such admissions as are pertinent to the issue.</p> <p>At whatever stage of the trial, a party thus offers himself as a witness, he may, on cross-examination, be interrogated as to such admissions or communications made to his counsel, and they may be proved by the attorney, either as evidence in chief, or for the purpose Of impeachment.</p>

On the 28d day of March, 1855, Joseph Seaburg filed his petition in a civil action, in the court of common pleas of Stark county, against Richard Elson, to recover damages to certain lands of said Seaburg, situate on either side of a certain stream of water called the Big Sandy.

Reserved in the district court of Clinton county. This is a petition in error filed in the district court of Clinton county, to reverse a judgment rendered in the court of common pleas of said county against the plaintiff in error for nominal damages and costs of suit, in an action prosecuted in that court by the defendant in error, to recover damages against the plaintiff in error, for obstructing a county road within said road district, by building a fence so as to inclose…

Peter Kuder, on the 5th day of May, 1829, made his last will and testatment, as follows : “ I, Peter Kuder, of the town of Logan, county of Hocking, and the State of Ohio, being of sound and disposing mind and memory, but being enfeebled by disease, and death rendered probable, do make and publish this my last will and testament, revoking and annulling every other. “ Item — I do devise and request that the expenses of my funeral, and all just debts and claims standing…

Reserved in the district court of Lorain county. On the 20th of July, 1857, the plaintiff filed his petition-in the court of common pleas of Lorain county, against John P. Mickles, Abijah I. Beach, and others, setting forth that at the May term, 1857, of said court, he recovered a judgment against said Nickles for $601.78, and costs of suit.

The plaintiffs in error, plaintiffs below, filed their petition in the probate court of said county, stating in substance : That on or about the 15th day of January, 1854, William Pence, of Hocking county, died intestate, leaving the plaintiffs, his brothers and sisters of the whole blood, and their representatives, his heirs at law, and a widow, Sarah, afterward intermarried with the defendant Leonard Weaver.

In Chancery. Reserved in the district court of Madison-county. The complainants filed their bill on the 24th of September, 1840. The bill states that on the 12th of April, 1837, Samuel H. Saunders made, in his own name, as assignee, an entry on military warrants; that a survey of said entry was afterward made, and on the 20th of November, 1838, a patent obtained from the United States, for 428-f acres of land in the Virginia Military Land District.

Error, to the district court of Ross county. This petition in error is to review the proceedings and judgment of the district court of Ross county, in an action of trespass on the case, at common law, for seizing and detaining a quantity of barrel and bulk pork, lard, etc. The plaintiffs, Gibson, Stockwell & Co., in order to prove their right of possession to the property, gave in evidence thirteen warehouse receipts, one of which was in this form: “ Received, Chillicothe,…

<p>Error to the probate court of Sandusky county.</p>

<p>Bank bills can not be regarded as money under the 18th section of the crimes act. A conviction of larceny and. sentence to imprisonment in the penitentiary for stealing a watch of the value of $25 and bank bills of the value of $30, can not be sustained.</p>

<p>Application for peremptory mandamus to compel a township clerk to draw an order upon the township treasurer for the amount certified by the local directors of a subdistrict to be due to a school teacher for his services.</p>

<p>Writ oe Error to the court of common pleas of Ashtabula county.</p>

<p>Writ oe Error to tbe court of common pleas of Franklin county.</p>

<p>Motion for leave to file a petition in error, to reverse the judgment of the district court of Butler county.</p>

<p>Writ of error to the court of common pleas of Ashtabula county.</p>

<p>Motion for leave to file a petition in error, to reverse the-judgment of the court of common pleas of Hamilton county.</p>

<p>Motion for leave to file a petition in error, to reverse the judgment of the district court of Yan Wert county.</p>

<p>Motion for leave to file a petition in error, to reverse the judgment of the district court of Williams county.</p>

<p>1. In an action to recover damages against a railroad company for the killing of plaintiff’s horses by means of the negligence of the servants of the company in the running and management of a locomotive and train, the engineer in charge of the locomotive at the time of such killing, who saw the horses when they came upon the track, who is shown to be acquainted with the business of running railroad locomotives and trains, and had been engaged in such business for five years, is competent to testify, as an expert, upon questions in respect to the mangement of locomotives and trains, and to give an opinion whether, in view of the distance between the engine and the horses when latter came upon the track, it was possible to avoid the injury complained of.</p> <p>2. On the trial of such action, where the issue is upon the negligence charged, it is errorforthe Court to refuse to charge the jury, that though the servants of the defendant may have been guilty of negligence, yet the plaintiff must still fail, if they believe, from the evidence, that due care, if it had been used, would not have prevented the injury.</p>

<p>Error to tbe district court of Harrison county.</p> <p>The defendant in error filed a petition in an action for the recovery of real estate in the court of common pleas of Harrison county, November 4, 1854.</p> <p>The plaintiff in error answered by a special denial, and, by a second and further answer, set up the statute of limita tions in bar of the claim for rents and profits.</p> <p>The case was tried to a jury at the March term, 1855, and-a verdict rendered for the defendant in error.</p> <p>A second trial was demanded, under the statute, and an amended answer filed by leave. This answer admits the legal-title of the defendant in error, but denies his right to the possession, as follows:</p> <p>“Joseph Harrison, the defendant, for answer to said petition, says, that he admits that the plaintiff has the legal title to the tract of land in said petition described, but denies that he is entitled to the possession thereof, and denies that he unlawfully keeps the plaintiff out of the possession thereof. In further answering, the defendant says, that in the spring of the year one thousand eight hundred and forty-three, one Michael Castner, who was then in life, was seized in fee simple of the said premises, and conveyed the same, by deed duly executed, acknowledged and delivered, to said Rassellas Castner, and that the legal title, so conveyed, is still vested in the said Rassellas Castner. The defendant says, that after the execution and delivery of the deed of conveyance aforesaid, and about the 24th day of May, 1843, it was agreed by and between, the said Michael Castner and the plaintiff, that in consideration that the said'Michael Castner would convey to the said Rassellas a certain other tract of land, situated in the county of Jefferson, and State of Ohio, it being the northwest quarter of section number one, in township number seven, and range number two, that the said Rassellas Castner would re-convey to the said Michael, the premises in the petition of the plaintiff described, and, that in pursuance of said agreement, the said Michael remained in possession of said last mentioned premises until the time of his death. And the defendant further says, that in further pursuance of the agreement aforesaid, the said Michael Castner, by deed dated on ■the 24th day of May, A. D. 1843, conveyed the said premises, so situated in Jefferson county, to the said Rassellas Castner, who took possession of the same, and has since sold them for his own benefit, and has parted with the title thereto. And the defendant says that at the time of delivery by the said Michael Castner to the said Rassellas of the said last mentioned deed, the said Rassellas surrendered and delivered to the said Michael Castner the deed, before that time executed and delivered to'him, for the lands described in the petition, but from that time forth until* the death of the said Michael Castner, the said Rassellas neglected and refused to execute a deed to the said Michael in pursuance of said agreement. And defendant further says, that afterward, and about the 3d day of August, 1843, the said Michael Castner departed this life, and by his last will and testament, afterward duly admitted to probate in the court of common pleas for the county of Jefferson, and State of Ohio, appointed Joseph -C. Spencer, David Moodey and Nathaniel Dike his executors, who entered upon the execution of said trust, and were duly qualified according to law. That by the same will and testament the said Michael Castner directed his executors to sell the premises in said petition described, and to distribute the proceeds thereof among certain legatees in said will named. That in- pursuance of said authority to said executors, by said will vested, they sold and conveyed the same premises to the defendant, by deed duly executed and delivered; and dated on the first day of November, A. D. 1845. That the defendant paid a full consideration therefor, and has remained in the possession thereof since the sale and conveyance aforesaid. Your defendant, therefore, in fact says, that he is invested with the whole equitable title in said premises of which the said Michael Castner died seized, and is entitled by reason of the premises to a conveyance of the legal title by the said Rassellas Castner.”</p> <p>To this answer the defendant in error demurred, which demurrer being overruled, he replied by specifically denying the new matter of the answer.</p> <p>The cause coming on to be heard before a jury, an issue was made up and submitted, as follows:</p> <p>“ Does the evidence show that there was an agreement made, as alleged in defendant’s answer, between Rassellas Castner, the plaintiff, and Michael Castner, in his lifetime, by which it was agreed in parol, that the title of the said Rassellas to the lands now occupied by the defendant Harrison, should be conveyed to the said Michael, in consideration that the said Michael Castner should convey to the said Rassellas, certain other lands described in the answer of the defendant? ”</p> <p>At this term the jury failed to agree, and the issue was again submitted to a jury, at the November term, 1855, and a second verdict rendered for Castner, the defendant in error.</p> <p>Whereupon the cause was appealed to the district court, the demurrer to the amended answer again overruled, and the issue submitted to a jury, which disagreed.</p> <p>At the October term, 1858, of the district court, the issues were again submitted to a jury, and a verdict rendered for the defendant in error. Bills of exceptions were allowed as follows:</p> <p>FIRST BILL OF EXCEPTIONS.</p> <p>“Be it remembered, that upon the rendition of the judgment in this case in favor of the plaintiff, the defendant having made his application to the court for the benefit of the occupying claimants’ law, and proof having been offered by defendant that he had occupied the premises in controversy, in quiet possession, and having shown a plain and connected title in law, derived from the records of the public offices where deeds in the county of Harrison are recorded, and the plaintiff having offered proof only, that prior to the purchase by the defendant of the premises in controversy, notice had been given him of the claim of the adverse title of the plaintiff, and that he purchased with that knowledge. The defendant then offered to show, by proot in open court, that at the time he had taken possession, and from thence until now, for thirteen years, remained in the quiet possession of thn same, and had during the whole of that time made his íd provements in actual good faith, and in the honest belief that he had the legal and equitable title to the same, and without' collusion with any one. Which testimony the court refused to hear, and being of the opinion that the notice of the title or claim of the successful claimant, before his purchase, was conclusive evidence of such legal fraud as to deprive him of the benefit of the act for the relief of occupying claimants, disallowed the application aforesaid. To which refusal to hear the testimony aforesaid, and to which disallowance of the application aforesaid, the defendant excepts, and prays that this his bill of exceptions be signed and sealed; which is done accordingly.”</p> <p>SECOND BILL OE EXCEPTIONS.</p> <p>“ Be it remembered, that this cause having been called for trial, the court directed a jury to be impanneled to inquire, and render a special verdict upon the fact, whether the parol contract for the exchange of land, described in the answer filed in this cause, was entered into by said Michael Castner and Rassellas Castner as by said answer alleged, and to try the issue joined in the pleadings for the recovery of rents and profits. And the defendant, to maintain the issue upon his part, having offered testimony tending to prove that a parol agreement had, on or about the 1st day of June, 1843, been entered into between the plaintiff and Michael Castner, that the said Rassellas would convey to the said Michael the lands in controversy, in consideration of a conveyance, made by the said Michael to the said Rassellas, of the lands described in the deed next mentioned, then offered in evidence the deed, marked D, hereto attached, and made part of this bill of exceptions, for evidence that the consideration upon which said deed was executed and delivered was a valuable consideration, upon which said deed was executed. The plaintiff, to maintain the issue upon his part, offered himself as a witness for the purpose of contradicting the consideration in the deed mentioned, and of proving that the consideration for the said conveyance of said land was natural love and affection only, and was asked what consideration he had given his father for the Jefferson county land, by said deed conveyed, which, question was objected to, and the witness testified to the jury that he had given his father no consideration whatever, but that the deed was a deed of gift; to which answer the defendant objected, and moved the court that said testimony should be excluded from the jury, which motion was overruled and said testimony permitted to go to the jury. To all of which rulings the defendant excepted. And the plaintiff further offered to prove that said Michael Castner was his father, and that the said Michael had conveyed to him the land in controversy, by deed, about the 10th of May, 1843, and that the said Michael had declared, when said deed was executed, that he gave said land to his son, the plaintiff, to enable him to pay his debts, which amounted to about the value of the land. And that the said Michael, at the same time, declared it was his intention to give more to his said son, and to make him equal with the other children. To all which declarations of Michael Castner, the defendant objects, which objections were overruled, and the testimony admitted, to which the defendant excepted. And the plaintiff having further offered to prove by said witness the extent of the property in lands of said Michael Castner at the time of the execution of said deed, and the number of children he had then living, the defendant objected to said testimony, and the witness testified th^t the said Michael was the owner of a home farm of 800 acres, and other real estate to the amount of 694 acres, and that he had four children living at the time of the agreement aforesaid; that he died on the 20th of April, 1844. To which testimony the defendant objected, and moved the court that the same should be excluded from the jury; which motion was overruled. To which overruling the defendant excepted. And the plaintiff further offered in evidence the will of Michael Castner, a copy of which, marked B, is herewith filed and made a part of this bill of exceptions, to which the defendant objected, and said objection was overruled, and said will was read to the jury, to which the defendant excepted. And the testimony on both sides having been closed, the defendant having opened the testimony without objection, and the plaintiff having offered to the jury, without ■objection, the proof tending to show the value of the annual rents and profits, the plaintiff, before the argument of the cause commenced, moved the court that the counsel of the plaintiff should open and clos’e the arguments to the jury; which motion the court allowed, and directed the arguments to proceed in that order. To which the defendant excepted, and prays that his bill of exceptions may be signed, sealed, .and ordered to be made part of the record in this cause; which is done accordingly.”</p> <p>The deed from Michael Castner to Rassellas, dated the 24th •of May, 1843, in consideration of two thousand dollars in hand paid, conveyed certain lands in the county of Jefferson. The will of Michael Castner made no specific mention of the land in controversy. It contained a statement that the testador had made large advances to his son Rassellas.</p>

<p>Error to the superior court of Cincinnati.</p> <p>On the 23d of August, 1856, Lowden, the plaintiff below, filed his petition in the superior court of Cincinnati, against ■Grasselli, the defendant below. This petition reads as follows:</p> <p>The plaintiff states that on the tenth day of July, A. D. 1851, ■the defendant and the plaintiff entered into a written contract, of which the following is a copy, to-wit:</p> <p>“ ‘ Whereas, a suit is now pending in the superior court of ■this city, wherein John Lowden is plaintiff, and Eugene Grasselli is defendant, in which the plaintiff alleges that a certain laboratory, and the business therein carried on by the said Grasselli, is a nuisance, but which the said Grasselli denies .and'controverts; and this agreement is not to be taken and held as an admission that said business is a nuisance, but the same is made by the way of buying his (said Grasselli’s) peace; and whereas, in consideration that the said Grasselli has agreed with the said John Lowden not to continue nor to suffer any other person or persons to carry on said laboratory, or continue the same on the premises, after the term of five years shall have elapsed, from the date hereof; and the said Grasselli agrees to pay the attorney’s fee. employed by the ■said Lowden, and all other costs that have accrued in the prosecution of the above suit, and the said John Lowden .agrees to discontinue the said suit, and not to commence another suit against the said Grasselli for the supposed offense of a nuisance growing out of said laboratory, for five years from the date hereof, unless there is default on the part of said Grasselli herein; and if a suit or suits shall be so commenced by said Lowden, or by any one at his instance or request, then this bond shall be void; and the said Grasselli hereby agrees that at the end of the aforesaid term of five years he will entirely discontinue the said laboratory business on the said premises, described in the declaration in the ¡above suit. The said laboratory is situated between East Eront and High streets, in the city of Cincinnati. And the said Grasselli agrees not to suffer any other person or persons-to carry on the said laboratory business upon the said premises after the expiration of the term of five years, as named above; and it is further agreed that if the said Grasselli shall not discontinue the said laboratory business after the term of five years from the date of this agreement, he agrees for himself and representatives to pay to the said John Lowden, or his representatives, the sum of three thousand dollars as liquidated damages. It is expressly understood in this agreement that the said Grasselli is not to increase said business, by putting up new leaden chambers for the manufacture of the sulphuric acid, and is not to rebuild the present leaden chambers, if they are worn out at the expiration of four years from the date of this paper.</p> <p>In testimony whereof the parties have set their hands and seals, the 10th day of July, 1851.</p> <p>‘W ’ Eugene Grasselli, [Seal]. John Lowden. [Seal].</p> <p>“ The plaintiff further says that he, the said plaintiff, has in all respects fulfilled and performed all things in said contract by him to be fulfilled and performed.</p> <p>“ The plaintiff further says that always since the tenth day of July, 1856, and at the present time, the defendant has continued, in violation of his said agreement, to conduct and carry on the business of the laboratory upon the premises described in said contract, and to manufacture sulphuric acid therein, by reason whereof the plaintiff is entitled to recover from the defendant the sum of three thousand dollars mentioned in said contract, for which he accordingly demands judgment.”</p> <p>On the 5th of January, 1857, the defendant below filed an answer to said petition, viz :</p> <p>“ The defendant answers the plaintiff’s petition as follows:</p> <p>“ He admits that he signed the alleged contract of the date of July 10, A. D. 1851, a copy of which is set out in the petition, and he makes the following defenses to the claim of the-plaintiff upon said alleged contract:</p> <p>“ 1. He says that at the time said contract was signed, he was, and had been for twelve years, carrying on business in a laboratory, situated as described in said contract.</p> <p>“ lie says that the business therein carried on by him was a lawful and useful business, and, in the necessary preparations of the same, he had expended a large sum of money, (fifty thousand dollars), in permanent improvements on said premises, which would have been, at the time said contract was made, and will always be, useless and of no value to him unless permitted to carry on said business ; they are peculiar in their formation, and can not be used for any other purpose, or in the prosecution of any other business.</p> <p>“ He further says, that having so expended large sums of money, and while he was, in a manner, harmless to the public- and to said plaintiff, prosecuting his business, the plaintiff untruly claimed that the defendant’s said business was a nuisance; and the defendant admits that to get rid of being harrassed by an unjust suit, and, to buy his peace he signed said contract. The defendant claims that the effect-of said contract, and its object, on the part ofvthe plaintiff, were to restrain said defendant in the prosecution of a lawful trade and-, business, which was not a nuisance, and was in no respect injurious to the plaintiff; and he therefore insists that said contract is illegal and void.</p> <p>“ 2. By way of further defense, the defendant says that in-pursuance of the spirit and true meaning of said contract, he well and truly paid attorney’s fees and costs of said suit named therein, and in every other respect, according to the true meaning and spirt of said contract, he has performed all it required him to perform. He says that since signing said contract, he bhanged said laboratory and his manner of doing business therein. He says that the plaintiff claimed that gases and other matter made in said laboratory were a nuisance, and injurious to him, and said contract was made to prevent their continuance after the 10th day of July, 1856; and from time to time, since said contract was made the defendant made great and important changes in said laboratory and his business therein, with a view to the execution of said contract, and, by the expenditure of a large sum of money — at least two thousand dollars — so altered and improved said premises, including the machinery, works and general arrangement and manner of carrying on business therein, as that each and everything of which the plaintiff complained, and on account of which he alleged the said laboratory and the business therein were a nuisance, and to prevent the continuance of which said contract was made, are so modified and changed as that they entirely ceased, long prior to July 10th, 1856, to be any just cause of complaint, and are not now, and have not been since said last mentioned day, in any manner a nuisance, or injurious to the plaintiff.</p> <p>“ Defendant admits that he is carrying on business in said laboratory, but says that by large expenditures, from time to time., since said contract, he has made such changes and improvements as that, according to the true meaning and intent of said contract, had prior to July 10, 1856, he has ceased to carry on the laboratory business sought to be restrained and forbidden by said contract.</p> <p>“ He further says that the business, as it has been carried on since July 10, 1856, is as harmless to the plaintiff and the public as if no business whatever were carried on and said premises were-entirely vacant and unimproved; and he says, he has performed all things that said contract required of him, and therefore asks for a judgment against the plaintiff.”</p> <p>To this answer the plaintiff below, on the 4th day of February 1857, filed a demurrer, upon the ground that the answer does not state facts sufficient to constitute a defense to the cause of action set forth in the petition.</p> <p>On the 9th day of June, 1857, the plaintiff below, filed an amended petition stating, in addition to the facts stated in his original petition, “that at the time of the execution of the agreement in said petition set out, and previously thereto, and ever since, the plaintiff was and is possessed of certain real estate, and resided thereon, in the immediate vicinity of the said laboratory of the defendant; and, while he was so possessed, had brought an action at law in the superior court of Cincinnati, against the defendant for the recovery of damages which the plaintiff alleged in that action he had sustained by reason of the said defendant carrying on the business of laboratory, which the plaintiff therein alleged, and, in good faith, claimed was a nuisance ; and that said action is the same referred to in the agreement as set out in said petition.”</p> <p>On the 24th of June, 1857, the defendant below refiled the foregoing answer to this amended petition, and to the answer the plaintiff below refiled his demurrer.</p> <p>On the 1st day of August, 1857, the defendant below filed an amended answer, stating, in addition to the facts set forth in his original answer, “ that said plaintiff was not, when his amended petition was filed herein, and is not now, the owner of the real estate described and set out in the pleadings in the old superior court of Cincinnati, for the recovery of damages referred to in his amended petition; and defendant avers that the plaintiff has no longer any such intefest in said real estate as entitles him further to prosecute this suit for damages which he pretends grow out of the continuance of the business prosecuted by defendant in his laboratory aforesaid; but that said property, so claimed by plaintiff, is owned by Nicholas Longworth, and that said plaintiff has no other real estate whatever, in or near said laboratory, nor has he any ownership in any real estate so situate.”</p> <p>The plaintiff below demurred to this amended answer, upon the ground that the facts therein set forth are not sufficient to constitute a defense.</p> <p>Upon hearing, the court below sustained the demurrers of the plaintiff to the answer and amended answer of the defendant, and rendered judgment in favor of the plaintiff for three thousand dollars damages as claimed, and costs.</p> <p>To reverse this judgment, the defendant below, plaintiff in error, filed a petition in error in this court.</p>

Reserved in the district court On the 13th day of October, 1855, Byrd, the plaintiff in error, filed his petition in the court of common pleas of Greene county, against Blessing and others, defendants in error, stating, in substance, the following facts: That on the 23d day of December, 1852, the defendants unlawfully cut down and dug away a certain earth embankment, or levee, constructed upon the lands of one Jacob Duck, along the Little Miami River, in Sugar Creek…

The action below was brought under the code, by the defendants in error, to recover the possession of certain real estate.

<p>Error to the court of common pleas of Cuyahoga county. Reserved in the district court.</p> <p>The case is sufficiently stated in the opinion of the court,</p>

This was an action brought under the watercraft law, by Seth Marshall, against the steamboat Ocean.

Reserved in the district court. It appears from the record that on June 2d, 1852, probate was made of the last will and testament of William Davis, deceased, before the probate judge of Muskingum county, and Mary Davis, the widow of said William, also appeared before the probate judge, and made her election to take under the will of her said deceased husband; whereupon the said probate judge made the following entry of her said election, upon the minutes of his said court,…

The original action was brought by Woodworth and Egleston against Bethel, before a justice of the peace, for the recovery of the sum of $16.62. The defendant demanded a jury, and by agreement of the parties three jurors were called and sworn as a jury to try the case.

On the 5th of December, 1851, John Dorcas and others filed a bill in chancery, in the court of common pleas of Rich-land county.

This is a writ of error to the court of common pleas of Montgomery county. The case is sufficiently stated in the opinion of the court-

Manville, the plaintiff, filed his petition in the court below,, stating as his cause of action against the defendant, the-Cleveland and Toledo Railroad Company, that on the 13th lay of January, 1853, he took passage in the passenger train if cars on the railroad of said company, from Toledo to Fremont; that he was thrown out of the baggage car near Eremont, and greatly injured; that the occurrence happened by reason of the defective condition of the road, and the careless…

Petition in equity to quiet title. Reserved in tbe district court of Harrison county.

Reserved in the district court of Erie county. The facts on which the action depends are as follows: 1.

Action for the recovery of real property. Reserved in the district court of Licking county. This is an action for the recovery of real property, brought under the Code of Civil Procedure; and which, having come into the district court of Licking county by appeal from the common pleas, was submitted to the court for trial upon an agreed statement of facts, and then reserved for decision in this court.

Reserved in the district court. On the 12th of May, 1856, suit was commenced by the plaintiff against E. C. Markham, in the court of common pleas of Cuyahoga county. Markham, the defendant, was a nonresident of the State, and, upon proper application, a writ of attachment issued at the commencement of the suit, and garnishee process was on the same day, May 12th, served on Hartness, Hill & Co. The suit of the plaintiff was prosecuted to final judgment against Markham.

The original action was brought by Bartram against the Cleveland, Columbus and Cincinnati Railroad Company, to recover damages for an alleged trespass committed upon him by a conductor of a train of cars of the company, by ejecting him from the train when upon the same as a passenger.

The original action was brought by the plaintiffs in error upon certain mortgages, executed by the defendants in error, to secure to the plaintiffs in error the payment of certain promissory notes made and delivered to them by Benjamin B. Barkalow and Amy Barkalow. The relief asked was judgment against the makers of the notes, for the amount due on them, and an order for the sale of the mortgaged premises to pay the same.

The action was on a policy of insurance, issued by the defendant to George Hezlep, to recover for a loss, by fire, of a store and warehouse. The policy was assigned to Hutchins. Held: and shortly thereafter duly recorded.” The case was submitted to the court upon an agreed statement of facts, which, so far as they bear upon the ground of defense above stated, are as follows : On the 15th of January, 1852, the policy was executed and delivered to George Hezlep.

■Error to the district court of Richland county. This action was originally brought in the court of common pleas of Richland county, by the plaintiffs, as owners in fee, to restrain, by injunction, the defendant, who occupied certain premises described in the petition, as a tenant of the plaintiffs, from removing a certain barn which was upon the premises.

Reserved in the District court of Miami county. ,The plaintiff brought suit in the court of common pleas' of Miami county, for the collection of a balance claimed to be due from the- estate of Nicholas Greenham deceased, upon a promissory note, secured by mortgage upon certain real estate.

Civil action. Reserved in the district court of Warren countv.

<p>Error. Reserved in the district court of Preble county.</p> <p>The Dayton and Western Railroad company was incorporated February 14th, 1846. In 1850 the company commenced the construction of its road through the lands of the defendant, by his permission, and under an agreement that the damages should be settled by arbitration. An arbitration was had, but failed, the arbitrators being unable to agree upon an award. Marshall afterward, on the 12th of November, 1852, filed a bill in the common pleas of Preble county, for the purpose of compelling the company to proceed under the statute to appropriate the right of way, for an injunction, and other relief. In this suit, in April, 1855, the following order was made by the court:</p> <p>“ This cause coming on to be heard upon the demurrer of the defendant to the complainant’s bill, and the court being advised, do overrule the demurrer, and thereupon, by consent of parties, the defendant files his answer and submits to the-following decretal order, to-wit: That the defendant shall, within sixty days from this date, by their proper ofiicer, to-wit, the president of the .company, make out a statement containing a specific description of each parcel' of the complainant’s property and rights specified in the bill, which they have taken and occupied in the construction and for the use of their said railroad, and within the time aforesaid, they file-the same with the probate judge of this county, preparatory to an assessment of the damages sustained by the complainant by reason of said appropriation and use of his property for the purpose aforesaid, and the compensation which he ought to receive therefor, and further equities be reserved until the next term of this court, to which time this cause is continued.”</p> <p>The company afterward refused to comply with this order, but after certain proceedings in mandamus and for contempt, did, on the 17th of January 1856, by its president, file with-the probate judge a statement, under the following protest:</p> <p>“The Dayton and Western Railroad' Company, by its attorneys, comes, and protesting against the decretal order of the court of Common pleas, by which it is compelled to file this statement, and saving to itself the right to except to this proceeding and all orders or judgments under the same, at such times and in such manner as may be allowed by law, but acting under said decretal order,” etc.</p> <p>The statement showed on its face that the company, in the year 1850, had entered on the lands, and with the consent of the defendant, Marshall, surveyed and established the line of . its road, under an agreement that it should progress with the construction and completion of its road, and that the compensation to be paid, if the parties could not agree, should be left to arbitration. That under this arrangement, the company did go on and complete its road, some time in the year 1852. That the arbitrators appointed failed to agree, and Marshall filed his bill in the court of common pleas against the company, “ under which, by virtue of a decretal order of said court of common pleas, the said company further states that there is required for the perpetual use of said company so much of the lands,” etc.</p> <p>The case was set for trial by the probate judge on the 22d of January, 1856, and on that day action of the court was had, as shown by the following bill of exceptions:</p> <p>“Be it remembered that on the 22d day of January, 1856, this cause being called in the probate court of Preble county, the said Dayton and Western Railroad Company, by its attorneys, claimed the benefit of its protest reserved in the statement filed in this cause, and asked the court aforesaid, to dismiss these proceedings upon the following grounds, to-wit:</p> <p>“ 1. That this court has no jurisdiction of the case.</p> <p>“ 2. That these proceedings, and the form of action here brought, are inapplicable to the case.</p> <p>“Which motion was and is predicated on an agreed statement of facts of the case, signed by counsel for the parties, and herewith filed marked ‘ B,’ and, together with the papers and proceedings in the court of common pleas therein referred to, is made a part of this bill of exceptions. The agreement ‘ B,’ is as follows: ‘ In the proceedings pending in the probate court of Preble county, relative to the assessment of damages, wherein Hugh Marshall and the D. & W. R. R. Co., are the parties, in which proceeding said Marshall is seeking to recover damages for the ground and materials taken, and injuries sustained by him, in consequence of said company having constructed their railroad through his premises in said county, it is agreed by said parties, for the purpose of the proceedings now pending in said probate court, that in November, 1852, said Marshall commenced suit for damages against said company, in the court of common pleas of said county of Preble, for the ground and material so taken by said company, and the injuries so sustained by him; that in said suit in said court of common pleas, an order and decree was made that said company file a statement or description of the grounds so taken, by thé said probate court preparatory to an assessment of such damages by said probate court; that said suit in said common pleas court was continued and is still pending, awaiting the fulfillment of such order in said probate court; and that said company located their railroad through the premises of said Marshall, took possession of that portion of his premises now occupied by their railroad, and began to construct the same in the year 1850, and completed the sanie about the month of-in the year 1852. Grilmore, Lowe & Booth, attorneys for company ; Hubbard & Eoos, and Holt, for plaintiff.’ Which motion to dismiss, the court, after argument of counsel, overruled, and decided that this court has jurisdiction of this cause. To which ruling and decision, the railroad company aforesaid by its counsel excepted.”</p> <p>Further proceedings were had, which resulted in a verdict assessing the damages of Marshall at $1800, to which, under the direction of the court, the jury added $540, interest from the time of the appropriation. On which, a judgment was entered in the probate court.</p> <p>The case was taken by a petition in error to the court of common pleas, where the judgment was affirmed. A petition in error was then filed in’ the district court, which was reserved for decision to this court.</p>

<p>Error to the district court of Cuyahoga county.</p> <p>On the 16th day of June, 1858, Soper filed in the court of common pleas of Cuyahoga county, his petition against the plaintiffs in error on a note and warrant of attorney, of which he averred himself to be the legal owner and holder, and of which the following is a copy</p> <p>“Cleveland, 0., April 1,1857.- One year after date we jointly and severally promise to pay J. M. Ohamplin, or order, three thousand dollars, with interest, ten per cent., in funds par in New York City, three hundred dollars as interest to be paid on the first day of July next, value received. And we and each of us do hereby authorize and fully empower any attorney of any court of record in the State of Ohio, or elsewhere, or any other person, to appear before any justice of the peace, or any court of record, in the State of Ohio or elsewhere, at any time or term after this obligation becomes due, waive the issuing and’service of process, receive a declaration and confess a judgment against us, or either of us, in favor of awg holder of this obligation, for the amount appearing du.e on this obligation at the time of the rendition of such judgment, and costs of suit, and to release all errors, and waive all right to the appraisement of real estate on any execution issued on any judgment that may be rendered on this obligation.”</p> <p>“Charles Marsden, [seal.]</p> <p>“Silas Merchant, [seal.]</p> <p>“Ahaz Merchant, [seal.]”</p> <p>This note and warrant of attorney was indorsed by the payee to the plaintiff below.</p> <p>Thereupon an attorney appeared and answered, and, by virtue of the above power of attorney, confessed judgment for the amount appearing to he due on the note, calculating interest at ten per cent., and counting “ funds par in New York City,” as money ; and releasing errors, and waiving appraisement in accordance with the provisions of the warrant of attorney ; and judgment was rendered for the amount confessed and for costs.</p> <p>Immediately after the judgment follow these journal entries :</p> <p>“ The defendants release all errors herein, and waive the right of appraisal of any real estate levied on by virtue of any execution on the judgment in this case. And onthe 28th day of June 1858, being a day in said 'May term, by consent of both parties, and with leave of the court, the motion filed herein on the 19th day of June instant, to vacate this judgment, by the defendants herein, is dismissed; and judgment is rendered against the defendants for the costs thereof. Both parties in open court declare their agreement that no record shall be made of this motion.”</p>

<p>Error to the district court of Erie county.</p> <p>■ The original action in the court below was brought by the defendant in error, upon two promissory notes made by the plaintiffs in error, Gaston and Atherton as principals, and Gordon as surety. They were each made payable to one John Ward, and by him assigned to the defendant in error. One of them was for $420.84, payable three months after date, and dated December 14, 1855; the other was for $125.80, payable one day after date, and dated March 25, 1856. The petition was filed and suit commenced May 7, 1857.</p> <p>The plaintiffs in error answered October 9,1857, setting up the fact that Gordon was surety for Gaston and Atherton on said notes; that said Atherton, on the 1st of October, 1856, transferred and delivered to the defendant in error, sundry promissory notes, to be collected by said defendant in error, under an agreement and understanding that the proceeds thereof, when collected, should be applied as credits upon the notes sued upon; that the defendant in error has since collected a large part of the notes so delivered to him, and they ask that the sums so collected, or thereafter to be collected, from the notes so transferred, may be applied as payments on the notes in the petition mentioned.</p> <p>They say that defendant in error, at the time said notes were assigned and delivered to him by Atherton, for the purpose aforesaid, gave to said Atherton a receipt for the same, a copy of which is annexed to the answer, and is in the following terms : “ Rec’d the following list of notes of G. R. Gaston & Co., for collection, and when collected, to apply on their notes, less all necessary expenses of collection ” (then follows a list and description of eighteen notes, made by sundry persons, for various sums, amounting in the aggregate to $562.88; and the receipt is dated) “ October 1st, 1856, Milan, Ohio,’ and signed Geo. Barney.”</p> <p>To this answer, Barney, the plaintiff below, replied, admitting that he received said claims for collection, as stated in said receipt, but averring that, at the time he received them, he held and owned two other notes, given him by said Gaston & Co., one for $619.38, due at date, and dated April 18,1856, and another for $106.56, due one day after date, and dated June 12, 1856. He denied that there was any agreement or understanding between the parties that the proceeds of the collaterals received for collection, should be applied on the notes described in his petition, and which were signed by Gordon as surety, or that any such direction was given him by the defendants. He avers that nothing was said at the time of receiving said collaterals in regard to the application of the collections to any particular .note or notes; he claims that the receipt refers especially to the notes signed by Gaston & Co. alone, and that, if it were intended to refer to all the four notes, he had the right to apply the collections upon either of them. He further says that, up to the 30th of September, 1857, he had collected, on said collaterals, the sum of $426.05, which he has applied and indorsed as a credit on the note for $619.38, against said Gaston & Co., and that there is nothing in his hands which should be applied on the notes in the petition mentioned.</p> <p>An amended and supplemental answer, and a reply thereto, were subsequently filed by the parties, which varied the aspect of the case no otherwise, than by increasing the amount admitted to have been collected on the claims specified in the receipt, to the sum of $473.75. The only issue between the parties, was in regard to the proper application of this admitted payment.</p> <p>The case having come into the district court by appeal, was, on the trial, submitted to the court, without the intervention of a jury. The court having heard the proofs in the case, found the facts to be as follows :</p> <p>“ Beside the notes sued upon in this case, the plaintiff, on the first day of October, 1856, was the owner of two notes against said Gaston and Atherton, partners, under the firm name of G. R. Gaston & Co., one for $106, dated June 12th 1856, payable one day after date; one for $619.38, dated April 12th, 1856, payable on demand, upon neither of which had any payments, at that time, been made. On the said first day of October, 1856, the said G. R. Gaston & Co. delivered to the plaintiff, the notes mentioned in the defendant’s original answer herein; and, at the same time, the plaintiff gave to the defendants a receipt for said notes, a copy of which is attached to said original answer. The plaintiff collected, upon the notes thus turned out to him, prior to the commencement of this suit, the sum of $265.65, all of which he had in his hands at the time this suit was commenced. On the 30th day of September, 1857, he received on said notes, the further sum of $20; on the 3d day of October, 1857, the further sum of $150.60; on the 26th day of October, 1857, he received the further sum of $47.70. At the time the above mentioned notes were turned out to said Barney, as aforesaid, the defendants did not direct how the money to be collected by the plaintiff upon said notes should be applied. And the plaintiff did not make, or attempt to make, any application of the. proceeds of the notes thus placed in his hands, until after the commencement of this suit, and after a controversy had arisen between the plaintiff and the defendants, as to how said proceeds should be applied. On the same day this suit was commenced, the plaintiff commenced suit against Gaston and Atherton, upon the two notes which he held against them, herein above mentioned, and claimed, in that suit, the whole amount for which said notes were given, with the interest thereon. On the day this suit was commenced, the plaintiff directed his attorney to apply what moneys had been collected on the notes aforesaid, on which Gordon was not surety, and agreed to send to his attorney a statement of the> amount he had received for that purpose; which statement was sent to said attorney, and, about the first of October, 1857, the amount was indorsed on said two notes against Gaston & Co., but after the suit was commenced, and before the indorsement, defendant, Atherton, requested that the moneys collected, and to be collected, should be applied upon the notes upon which this suit is brought. This, Barney refused to do, and said he should apply the same upon the notes upon which he did afterward indorse the same, as aforesaid. The court further found that the defendant, Gordon, is the surety of the defendants, Gaston and Atherton, upon the notes sued upon in this case.”</p> <p>Upon the above state of facts the defendants claimed that the moneys collected by said Barney upon the notes so turned out to him should be applied for the relief of the surety, Gordon, upon the notes upon which this suit was brought. But the court held and decided that all of said moneys should be applied upon the two notes hereinbefore mentioned against said Gaston and Atherton upon which the plaintiff had no security, and thereupon rendered judgment in favor of the plaintiff for the full amount of the notes sued upon in this case.'</p> <p>To this decision and judgment the defendants excepted, and for alleged error therein, they now seek to reverse said judgment.</p>

<p>. Error to the court of common pleas of Cuyahoga county. Reserved in the district court.</p> <p>The u»3e is sufficiently stated in the opinion of the court,</p>

<p>Error to the superior court of Cincinnati.</p> <p>Suit was brought by Harvey, at a special term of said superior court, against the plaintiffs in error, and Michael Straub, a constable, to recover of them the value of certain groceries, claimed to be the property of said Harvey, together with damages for the illegal caption and detention thereof, which had been seized in execution on a justice’s judgment, in favor of J. M. & A. E. Armstrong, by said constable, as the property of one Thomas R. Hayes, and sold at their instance to satisfy said execution. The cause was tried at said special term by a jury, who returned the following special verdict:</p> <p>“We, the jury, find that on the 28th day of March, 1857, the goods and chattels referred to in the petition and answer in this case, were part of a stock of groceries situated in Cincinnati, owned by Thomas R. Hayes; that on said day, said Hayes sold and delivered the same to the plaintiff, in consideration of the sum of five hundred dollars, paid and to be paid by said Harvey to said Hayes; that at the time of said sale, said Hayes was lawfully indebted, and, among others, to said defendants, Armstrong and Armstrong. That said defendants had obtained a judgment against said Hayes, before Peter Bell, a justice of the peace for Cincinnati township, in the sum of forty dollars and fifty cents. That on the 19th day of November 1857, an execution issued on said judgment, which was placed in the hands of said defendant, Michael Straub, a constable of said township, for collection, and by virtue of which, said Straub, on the 10th day of December 1857, levied upon the goods and chattels in the peti-. tion referred to, at the request of said Armstrong and Armstrong, as the property of said Hayes. That afterward, and before tbe day appointed for tbe sale of said property under-said writ, the plaintiff, claiming to be the owner of said property, made a complaint of said matters before H. N. Clark, a justice of the peace of said township, and thereupon gave-notice to said defendants, Armstrong and Armstrong, and Straub, that he was such owner, and claimed possession of said property, and would cause his right thereto to be tried: before said justice, according to law. And thereupon, afterward, and before the day appointed for said sale, all of said parties, plaintiff and defendant, appeared before said justice,, and a trial of the right of property in said goods and chattels, upon said claim of the plaintiff, was then and there had,, and testimony heard thereon, and upon said trial it was found- and adjudged by said justice of the peace, that said goods- and chattels were the property of, and belonged to, said Harvey. And said justice, upon said finding, did render a judgment against said Armstrong and Armstrong, for the costs-of said trial, and against said Straub for a restitution of said-property ; and, moreover, did give a written order to said. Straub, directing him to return said property to said Harvey.. We further find that said Straub, by the advice and solicitation of said Armstrong and Armstrong, disregarded said order, and, notwithstanding the same, did sell and dispose of said property upon said execution, and, from the proceeds of sale, fifty-three dollars and eighty-six cents were paid to said Armstrong and Armstrong, in satisfaction of their said judgment, and costs on said execution, and the residue remains still in the hands of said Straub. We further find that the value of the property thus taken and sold by said Straub, was, at the time of said sale, one hundred dollars. Should the court be of opinion that the said proceedings and judgment in said action, for the trial of the right to said property, do not preclude an inquiry into the plaintiff’s right in-said property prior to said proceedings and judgment, then-we further find that said sale by said Hayes to the plaintiff was made by said parties thereto, to hinder and delay the said-defendants in the collection of said judgment, and was fraudulent and void as against them, and that the plaintiff had no right or claim to said property at the time of said seizure and sale upon execution, and has, therefore, no cause of action against the defendants. But should the court be of opinion that said judgment and proceedings do preclude such inquiry as aforesaid, then we find the issue joined, for the plaintiff, and assess his damages at one hundred and three dollars and ten cents, and the costs.”</p> <p>Upon the rendition of this special verdict, the judge holding said special term being of the opinion that said finding and judgment of the justice upon the trial of the right of property,were conclusive as between the parties, and precluded all inquiry into the claimant’s right to said property prior to said proceedings before him, rendered a judgment in favor of said Harvey for the value of the property as found by said special verdict; which said judgment was subsequently affirmed at the general term of said court, on a petition in error.</p> <p>The present petition in error is prosecuted in this court to reverse said judgments at special and general terms, and the error assigned is, “ That the said court, at special term, erred in ruling that the trial of the right of property and judgment before said justice was final, and precluded an inquiry into the right of the said Harvey to said property prior to said proceedings and judgment before said justice.”</p>

<p>1. A payment may be, under circumstances, involuntary, and an action be brought to recover back the money, when the position or interests of the party are such as to require from another the performance of a duty enjoined by law, and be is illegally compelled to pay the money to induce such performance.</p> <p>2. The 96th section of the act of the General Assembly, for the organization of cities and incorporated villages, provides that a city council may license ex-cities and incorporated villages, provides that a city council may license exhibitions of shows and performances; and “ in granting such license, may exact and receive such 'sum or sums of money as the council shall think fit and expedient.” Under this provision, and an ordinance passed for the purpose, the city council of Cincinnati exacted from the plaintiff, as a charge for a license to give theatrical exhibitions for six months, $63.50, and also a fee of one dollar for the officer issuing the license. Held: — That the money was noi illegally exacted, and that the exaction was notin violation of any provision of the constitution of the State, restricting the power of taxation vested in the General Assembly.</p> <p>3. Mays v. Cincinnati, 1 Ohio St. Rep. 268, explained and Qualified.</p>

<p>Motion for a peremptory mandamus.</p> <p>On the motion of the above named relator, an alternative writ of mandamus was, on the 22d day of January 1861, allowed and issued by this court, and reads as follows :</p> <p>“ The State of Ohio, ss.</p> <p>“ To the city council of the city of Cincinnati.</p> <p>“ Whereas it has been represented to us, the judges of the supreme court of the state of Ohio, nowin session at the city of Columbus, Ohio, by information filed in our said court by William Bellows, that he has been lawfully appointed and made inspector and soalor of weights and measures, within and for the city of Cincinnati, county of Hamilton, and State of Ohio, in pursuance of an ordinance of the city council of said city of Cincinnati, passed October 24th, A. D. 1860.</p> <p>“And further, that in accordance with the ordinance aforesaid, the board of officers of the chamber of commerce of said city of Cincinnati, did, on the 15th day of November A. D. 1860, designate William Bellows, as a suitable person to discharge the duties pertaining to the office of inspector and sealer of weights and measures, and did recommend him to R. B. Hayes, city solicitor, for appointment to that office.</p> <p>“And it is further represented to us that the said R. B. Hayes, city solicitor, in compliance with said ordinance of the city council and said recommendation of the chamber of commerce, did, on the 21st day of November, A. D. 1860, appoint as inspector and sealer of weights and measures, within and for said city of Cincinnati, the said William Bellows, for the term of three years from and after the 21st day of November, A. D. 1860. That on the 6th day of December A. D. 1860, having been lawfully appointed inspector, as aforesaid, he took the oath of office, as prescribed in the 81st section of the charter of said city.</p> <p>“ And it is further represented to us that on the ninth and sixteenth days of January A. D. 1861, the said William Bellows presented to the said city council, his bond, with proper penalty and surety, for the faithful discharge of the duties of his office as such inspector and sealer, in conformity to an ordinance of said city council, passed December 12, A. D. 1860.</p> <p>“And it is further represented to us, that his said bond was a good and sufficient security to said city council, and to said city of Cincinnati, against any failure on his part to do his official duty, but the said city council, refused and still refuses to accept said bond, not by reason of the insufficiency of the bond, but for other and wholly unimportant reasons.</p> <p>“ Now, therefore, we being willing that justice may be done in the premises, do command you, the said city council of the city of Cincinnati, without delay, to accept the said bond of the said William Bellows, and to provide him with the proper and necessary standards of weights and measures for said city, or that you show cause why you fail to do so, before our said court, on or before the second day of March A. D. 1861, at the supreme court room, in the city of Columbus, in said State; and have you then and there this writ.”</p> <p>The alternative writ having been served and returned, the city council on the first day of March, 1861, filed the following answer:</p> <p>“ Now come the city council of the city of Cincinnati, by John F. Torrence, President of said city council, and for answer to the information filed against them by William Bellows, and to show cause why they have hitherto refused to accept the bond of said Bellows, mentioned in said information, state that it is not true that said Bellows, as alleged in said information, ‘ has been lawfully appointed and made inspector and sealer of weights and measures within and for the city of Cincinnati,’ because they sa,y that the said ordinance of the city council of said city of Cincinnati, passed October 24th, A. D. 1860, is null and void: That said ordinance contains the following proviso relating to all appointments made under and by virtue of said ordinance, viz: ‘Provided that such appointments be made from persons designated by the board of officers of the chamber of commerce.’ And respondent says that said board of officers of the chamber of commerce, are not officers of said city of Cincinnati, and said city council has no authority to vest in said board any official powers or duties. Wherefore respondent asks to be hence discharged without .costs.”</p> <p>Thereupon the relator moved the court for a peremptory writ, and both parties submitted the case upon the allegations of the alternative writ and answer.</p>

<p>Error to the superior court of Franklin county.</p> <p>The defendant in error brought suit, in the superior court of Eranklin county, to recover, of the plaintiff in error, damages for an alleged assault and battery, and false imprisonment of his person.</p> <p>The plaintiff in error answered, setting up, by way of justification, the following facts:</p> <p>That on August 17, 1857, the city council of the city of Columbus, passed an ordinance, whereby it was enacted, “ that no person shall sell, or offer or expose for sale, at public auction, or outcry, upon any of the streets, alleys, sidewalks, or public grounds of said city, any goods, wares, merchandise,” etc., under a penalty of from five to fifty dollars. That on February 6, 1858, Kent, the defendant in error, was offering for sale, at public auction, sundry goods and chattels, in and upon the public sidewalks of High street, one of the public streets and highways of said city of Columbus, contrary to the provisions of said ordinance. That the plaintiff in error, White, being then and there on duty, as a duly appointed and qualified police officer of said city, saw the defendant thus violating said ordinance, and as such police officer, known to be such by the defendant in error, requested him to desist from said selling at auction upon said sidewalk, which the defendant in error refused to do; and that there upon the plaintiff in error, as such police officer, and by virtue of the authoritv vested in him by law, and the provisions of an ordinance of said city, passed November 2, 1857, enacting that “ police officers may apprehend, without process, upon view, or complaint, all persons offending against the laws of the State, or the ordinances of the city, and bring them before the mayor for trial,” etc., did, then and there, gently lay his hand upon the defendant in error, for the cause aforesaid, take him into .custody, and conduct him before the mayor of said city, to be dealt with according to law, using no unnecessary force or violence, and detaining said defendant in error no longer time than was necessary to conduct him before said mayor, to-wit: about one hour, whereupon the defendant in error was discharged by the mayor, upon his own recognizance.</p> <p>To this answer the defendant in error demurred, as not stating facts sufficient to constitute a defense. .</p> <p>This demurrer was sustained by the court; to which the plaintiff in error excepted, and upon the trial of the case by a jury, á verdict was rendered for the defendant in error, upon which judgment was entered, and to which the plaintiff, in error excepted.</p> <p>He now asks a reversal of this judgment, on the ground that the court below erred in sustaining the demurrer to his answer.</p>

<p>Error to the court of common pleas of Monroe county. Reserved in the district court.</p> <p>On the 27th of February, 1857, the defendants in error, James Kent aiid William T. Kent, as administrators of William Kent, deceased, brought a suit before a justice of the peace, in Monroe county, against the plaintiffs in error, Reason Carpenter, Samuel Carpenter and Daniel Breeding, to recover the amount of a promissory note by them made to said administrators, for the sum of one hundred and one dollars.</p> <p>Upon the return day of the summons, the following entry appears in the justice’s transcript: “The parties appeared, and the defendants made a tender of a judgment of’fifty dollars, and the costs that have accrued up to this date, March 2, 1857, to the plaintiffs, which was not accepted, which is filed; and, by agreement of both parties, adjourned this case until the ninth day of this month, at one o’clock, P. M.; and, at the instance of defendants, issued subpoena,’’ etc.</p> <p>Upon the day fixed, the parties appeared, a jury was called, trial had, ánd the verdict and judgment rendered thereon were for th'e defendants.</p> <p>The plaintiffs appealed to the court of common pleas, and, on the trial in that court, the jury returned a verdict in favor of the plaintiffs for thirty-six dollars.</p> <p>The defendants thereupon moved the court to render a judgment in their favor for costs. And, in support of their motion, produced from the files in the case, a writing of the following tenor:</p> <p>“ James Kent and Wm. T. Kent, as administrators of the estate of Wm. Kent, deceased, v. Reason Carpenter, Samuel Carpenter and Daniel Breeding. Civil Action. The defendants hereby tender to the plaintiffs a judgment, in favor of said plaintiffs, against said defendants, of fifty dollars, with the costs that have accrued up to this date.</p> <p>“ March 2,1857. “ Reason Carpenter,</p> <p>“Samuel Carpenter,</p> <p>“Daniel Breeding,</p> <p>“ By Jas. M. Stout, their Agent.”</p> <p>And said Stout, being sworn, testified that he, at the request of the defendants, previous to the issuing of any subpoena, at the date of the writing, read the same, in the presence of the defendants, to the plaintiffs, and that he had read the same to William T. Kent on the day the service of the summons was made; that the plaintiffs absolutely refused, when so read to them before the justice, to accept the offer; that he then gave it to the justice, after so reading it in their presence; and that on the day of the trial, in the justice’s office, he again, in the presence of the defendants, read the paper to the plaintiffs, and they again refused to accept the offer; and that he thereupon returned the writing to the justice. It was also proved that the same paper had been sent by the justice with the transcript, and was therewith filed by the clerk of the common pleas among the papers, and had ever since remained on file in the case.</p> <p>The court thereupon overruled the motion, for the reason, as expressed, “ that it appears no notice in writing, or copy of such notice, was ever given, or offered to the plaintiffs, or either of them, or left with the justice to be delivered to either of them,” and entered judgment against the defendants for the sum of thirty-six dollars, so found by the jury in favor of the plaintiffs, and for all the costs of suit.</p> <p>The defendants excepted to the overruling of their motion, and to the judgment; and presented their bill of exceptions, showing the foregoing state of facts, which was allowed and signed by the court, and filed, and is part of the record in the case.</p> <p>The defendants thereupon filed their petition in error in the district court to reverse the judgment of the court of common pleas, for having so overruled said motion, and for having entered judgment against them for costs. And the case coming on for hearing in the district court, was reserved to this court for decision.</p>

<p>B. agreed to work for L., on his farm, “ for six months certain, at eleven dollars per month,” no time being specified in the agreement when payment was-to be made. B. left the service of L. at the expiration of the first month, without canse, and against the wish of L., and brought suit to recover of L, for the month’s service: Held, That the contract was entire, and that suit, could not, under the circumstances, be maintained by L. for such partial performance.</p>

<p>i. Where in a proceeding before a judge, under section 464 of the code, to examine a person alleged to have in his hands property belonging to the judgment debtor, an order is made, after the examination, discharging such person as having no property in his hands subject to the satisfaction of the judgment ; without some exception taken at the time, and some step to suspend the effect of the order, and on a petition in error to which the judgment debtor alone is a party, the action of the judge can not be reviewed.</p> <p>'2. Whether such a proceeding is not merely ex parle and preliminary, and not subject to review on error — quere?</p>

<p>The first clause of the second section of the act of March 22,1849, “to give additional security to land titles in.this State,” applies only to persons who have taken, as well as continued for seven years to hbld possession of lands or ■ tenements, under a judicial sale, or sale for taxes.</p>

<p>An action was brought by sureties to obtain indemnity ,from their principal before the maturity of the debt for which they were bound, and an attachment was allowed by the proper judge, on an affidavit stating the grounds therefof in the language of the statute. The attachment was subsequently discharged by the court of common pleas, on motion of the defendant, on the ground of insufficiency of the affidavit. Held — That such order of discharge was erroneous, and was, therefore, properly reversed by the district court.</p>

<p>Land script or certificates for money paid by S., were issued under the act of congress of May 23, 1828 (U. S. Stat. vol. 4, 286), to A., B. and C., minors, and in trust for the other heirs of S.; the certificates were not assignable on their face, and were payable in lands. The following note was appended to the certificates : “ The indorsement to be executed by ” (L.) “ guardian of said heirs.” The certificates indorsed by A., B., C. and 1., guardian of said heirs, were used by L. and his partners in the purchase of lands, and the title taken by H., one of the partners, for their common benefit, the partners agreeing, respectively, to pay L. their portions of the amount of the certificates in money. In a proceeding by the unnamed heirs of S. against H., and others in interest, charging said lands: Held :</p> <p>1 That L. had no authority, as guardian of A., B. and C., to dispose of, or transfer the interest of the other heirs in the certificates.</p> <p>2 That inasmuch as the act of congress required the certificates to ,be issued to the heirs of S., being issued to certain of the heirs for themselves and the other heiis, the heirs to whom so delivered held the certificates for the benefit of all the heirs, and had no right to appropriate or dispose of the interest of. the other heirs.</p> <p>3. The interest of the plaintiffs appearing upon the face of the certificates, 1. and his associates took the same with notice, and the title to the lands procured therewith became thereby chargeable with the trust.</p>

<p>A petition by the surety upon a judgment, for an injunction against its collection from him, alleged that, prior to its rendition, it was agreed between W. the creditor, and G., the principal, without the assent of the surety, that execution should be stayed for sixty days, but no entry thereof was made upon the-record ; and further, that G. should have the privilege, within that period, of collecting and delivering certain books to W., who was to receive the same in payment of said judgment; and it was also alleged that, by a subsequent agreement between W. and G., made without the assent of the surety, W. was to receive G.’s notes, with surety, at six and twelve months, in full satisfaction of said judgment, giving to G. an entire month within which to procure said notes. No books or notes were ever received under these agreements by "W. On demurrer to the petition — Held : That the agreement for stay of execution, not having been incorporated in the judgment nor entered upon the record, did not estop W. from issuing an execution upon the judgment at any time, nor authorize a court of equity to enjoin its collection from the surety ; and that neither of the other agreements set forth in the petition, giving time for collecting and delivering books, and for the procurement of notes with surety, was such as would, in law, discharge the surety in the judgment.</p>

Clement Brown brought an action against James W. Robison, Joseph Morgan, John S. Robison, and James Jones, upon a promissory note signed by them, a copy of which, with the indorsements thereon, as set out in the petition, is the following : $3,000.

Civil action. Reserved in the district court of Morrow •county. The case is sufficiently stated in the opinion of the court.

<p>In a suit by or against an administrator, it is not competent for him to prove-upon the trial what was testified to, by his intestate, on a former trial of the same action. As the code only permits the adverse party, in such a case, to testify to facts which transpired during the life of the intestate, when the deposition of the deceased party has been taken, the evidence of the intestate can only he received through the medium of a deposition.</p>

<p>A. and B. entered into a -written contract, that A. should subscribe and pay for ten shares of stock, and B. should pay him the par value thereof, with six per cent, interest on the money paid by B., in three years from the time of the first installment. A. subscribed and paid for the stock. B. received one dividend of eight per cent, interest, paid by the company on the first installment paid by A. Shortly before, and at the exniration of the three years, A. called on B. with his certificate of the stock, with a blank power of attorney thereto attached, for its transfer, but not signed, and offered to transfer it to B., and demanded payment. B. refused to accept and pay for the stock. In an action by A., stating in his petition said contract, his performance, and offers, and present readiness to transfer the stock, and asking judgment against B. for its par value and interest — Verdict and judgment for plaintiff — Held:</p> <p>1. That it was not necessary for the plaintiff to prove an actual transfer of the, stock, or an execution of the power of attorney; that an offer with the ability there and then to perform, was sufficient to entitle him to recover.</p> <p>2. That in such a case, time is not of the essence of the contract.</p> <p>3. That the facts of the ease being such as to have authorized a decree for specific performance, the defendant not asking an order, nor excepting for that cause, the omission to order a transfer of the stock to the defendant, on payment of the judgment for the price of the stock did not invalidate the judgment.</p>

<p>'The statutes, authorizing municipal corporations to assess the. cost of improv ing streets upon the lots and lands abutting thereon, in force in the year 18S3, do not contravene section 6 of article 13 of the constitution of 1851.</p>

<p>Error to the superior court of Cincinnati.</p> <p>The defendant in error, the plaintiff below, filed his petition in the superior court of Cincinnati, May 9, 1857. The allegations contained in it are substantially these :</p> <p>That on or about April 30, 1828, the defendants, Nicholas Goshorn, and Lorenia Goshorn, his wife, duly executed and delivered to Edward Fenwick their deed in writing, whereby, in consideration of $1,218.75, they intended and attempted to-convey to Fenwick, in fee simple, the real estate therein described. That said deed was properly acknowledged by the-defendants, and recorded. That, at that time, the defendants-were in possession of said real estate, which belonged to Lorenia Goshorn, in her own right, in fee simple, NicholasGoshorn’s interest therein being only that of tenant for life, as her husband. That said deed was made in pursuance of a-previous agreement between the defendants and Fenwick, whereby the defendants agreed, for a full consideration, to-sell and convey to Fenwick the entire estate and interest of both defendants to said real estate, being the fee simple-thereof. That, in pursuance thereof, Fenwick paid them the-above-mentioned sum, the full estimated value thereof; and that said deed was prepared for the purpose of completing and conveying the said title; and was signed, sealed, acknowledged and delivered, in the full belief and understanding, on-the part of said defendants and Fenwick, that the same fully and truly expressed the intention, and effectuated the agreement as above stated, by conveying to Fenwick the whole fee-simple interest of said defendants in said real estate; in full faith whereof Fenwick paid the consideration, accepted the ■deed, and entered into possession of the premises. That said ■deed, however, does not, in fact, have the legal effect intended ■and agreed by the parties thereto — instead of conveying to Fenwick the entire fee simple estate of the defendants, only conveying to him the said real estate during the natural life of Nicholas Goshorn. That this resulted, not from the intention of the parties, but contrary to their understanding and agreement, by the -mistake of the person who wrote the deed, which, although it recites that the said indenture is made between the said Nicholas Goshorn, and Lorenia, his wife, of the first part, and the said Edward Fenwick of the second part, and describes the conveyance to be of all the estate, right, title, interest, claim and demand of them, the said Nicholas Goshorn and Lorenia, his wife, of, in and to the said premises, and every part thereof, and conveys the same, to the said Edward Fenwick, his heirs and assigns forever; yet, by inadvertence, omission, and mistake of the scrivener employed to write the deed, it omits to join the name of Lorenia Goshorn with that of her husband in the granting clause thereof.</p> <p>That all the right and interest of Fenwick in the premises has been duly conveyed to the plaintiff, who is in possession -thereof; and that, after discovering the mistake which had occurred in drafting said deed, he has called upon the de fendants to correct the same, which they refused to do.</p> <p>And prays judgment for a correction of said deed, so as to ■convey the entire interest of the defendants in fee simple in said real estate, etc.</p> <p>To this petition, Nicholas Goshorn made default.</p> <p>Lorenia Goshorn defended separately, in her own right, filing an original and an amended answer, setting up the following defenses:</p> <p>1. That said deed can not be enlarged so as to work a conveyance of the fee simple, without a violation of the constitution of the United States.</p> <p>2. That said deed was, in all respects, in conformity with .the laws of the State of Ohio in force at the time of its exe«ution, and that the relief prayed for can not be granted without a violation of the constitution of this State.</p> <p>3. That, by the laws of this State, no estate in lands can be granted except by deed or note in writing, signed by the party so granting the same; and that she has never signed any deed or note in writing, whereby she has conveyed, or agreed to convey, the fee simple estate in said lands.</p> <p>4. That she never did agree with Fenwick, either orally or in writing, to convey the fee simple belonging to her in said lands. At the request of her husband, she executed the deed described in the petition, without having read the same or heard it read, and made no agreement or promise other than such as is contained in said deed, for the conveyance of any interest in said lands.</p> <p>5. That the plaintiff has no interest in the lands described in said petition.</p> <p>6. That her husband was induced to execute said deed, and to request and procure her execution thereof, by the false and fraudulent representations, that said real estate was wanted and purchased by said Fenwick, then Roman Catholic Bishop of Cincinnati, for the purpose of establishing thereon a college, the effect of which would have been to enhance the value of other property of this defendant in the immediate vicinity, etc., r?hen, in fact, said Fenwick desired and purchased it for use as a cemetery, for which it has, in fact, been appropriated, greatly to the injury of the other property of this defendant.</p> <p>7. That on 17th June, 1845, the plaintiff filed his bill in chancery against these defendants, in the [then] superior court of Cincinnati, by which the plaintiff set out the same ■deed referred to in the present petition, and alleged that it was the intention of these defendants to convey thereby a complete and perfect estate in fee simple to said Fenwick; but by reason of a clerical error or blunder in the scrivener who filled up the blanks in said deed, but not noticed by the parties, the name of the said Lorenia Goshorn is omitted in •the granting clause thereof, and that in the attesting clause, _she is only described as relinquishing her right of dower, whereas her intention was to convey her fee in the premises ;: and prayed that said defendants might be decreed to release, etc., and that plaintiff’s title might be quieted, and for general relief, founded on the same facts and allegations, and on. the same supposed equity as the present petition; to which-the present defendants made defense by answer and demurrer; and such proceedings were had therein, that a final decree was rendered by the supreme court in bank, finding that the law and equity of the case were with the defendants, and dismissing said bill without prejudice, at complainant’s costs,, which remains in full force, etc.; which decree, the present defendant avers, was founded on the very merits of the case,, and is a bar to any relief in this action.</p> <p>To the first, second, third, fourth and seventh defenses, the plaintiff demurred for insufficiency.</p> <p>To the sixth he replied, making a general denial of its-truth.</p> <p>The fifth defense, without further pleading, and the reply to the sixth defense, formed issues of fact, which, it appears from the record, were determined by the court to whom they were submitted, in favor of the plaintiff; and the facts found and the testimony offered, not being embodied in the record, áre not now open for review upon this petition in error.</p> <p>The issues of law raised by the demurrers to the other defenses, were also determined in favor of the plaintiff, and; judgment rendered accordingly; to reverse which, is the object of the present proceeding.</p>

<p>Error to the district court of Hamilton county.</p> <p>On the 30th day of January, 1854, the defendants in error, - Nicholas Longworth and Susan, his wife, filed their petition ■ ■in the court of common pleas of Hamilton county, against the plaintiffs in error, Oliver Ormsby, Jr., and others, heirs of ‘Oliver Ormsby, deceased, the object and prayer of which petition was to correct an alleged mistake in, and reform, a certain deed, made by the said Oliver Ormsby in his lifetime, to .Longworth and wife, which was intended to be a deed of conveyance of real estate; but which, by reason of a defect in the mode of its execution, amounted only to a contract to convey; and to compel a specific performance of the contract •so reformed.</p> <p>The case having been heard and determined in the court of common pleas, it was taken thence, by appeal, to the district court of Hamilton county; where, at the October term, 1858, that court, upon a special finding of facts, embodied in -.the record, gave judgment in favor of Longworth. and wife, plaintiffs below, as prayed for in their petition. And to reverse that judgment, this petition in error is filed and prose.cuted.</p> <p>The evidence in the case is not set out in the record; and the case, therefore, as presented here for decision, is found in the original petition, the answer, and the special findings of fact made by the district court.</p> <p>The petition below alleges, in substance, that, about the year 1805, Daniel Conner died seized of certain lands named, leaving Mrs. Longworth his widow, but no heirs, lineal or ■ collateral. By an act of the general assembly of the State of Ohio, passed February 18,1808 (1 Chase’s Stat. 571), regulating wills, etc., Mrs. Longworth became invested with all the estate, real and personal, of which her husband died possessed, subject to the rights of creditors. Mr. and Mrs. Long-worth were married about the first of January, 1808. Daniel Conner and Oliver Ormsby had been mercantile partners, at Cincinnati, under the firm name of Daniel Conner & Co.</p> <p>At April term, 1805, of Hamilton common pleas, Ormsby obtained letters of administration upon Conner’s estate, and, under such, acted.</p> <p>At the December term, 1809, of said court, he represented ,.the estate of Conner to be insolvent, and obtained from the ■clerk an order of sale, without an order of the court, so far as ■appears from the j ournal of the court’s acts, dated April 27,1810, for the sale of the lands named in the petition, except inlot No. 77, in Cincinnati; and, on 11th August, 1810, sold the same, at public auction, to himself, through the agency of George P. Torrence, to whom he made a deed, dated 2-lst September, 1810, and from whom he received a deed of the same date. These deeds were without consideration, and were intended simply to put the legal title into Ormsby.</p> <p>Prior to the sale, and after it, Ormsby claimed an equitable interest to an undivided half of said real estate, because Conner had used the partnership funds in its purchase, as he had .nothing when said partnership was formed. He also claimed said inlot No. .77, while Mrs. Longworth, as the widow of ■Conner, claimed an equal interest.</p> <p>The plaintiffs supposing the estate of Conner to be insolvent, and the sale of his real estate regular, opened a negotiation with Ormsby for a settlement, and, from examinations made, became satisfied said estate was not insolvent, and said sale was not regular, and no title had passed under it. The ■negotiations thus began, terminated in the settlement of January, 1819, whereby it was agreed that Ormsby should give ■up all claim of title under his deeds of 21st September, 1810, to and from Torrence, or as partner in said firm, or otherwise, and plaintiffs, in satisfaction of his claims against Conner’s estate, and for advances to Mrs. Longworth, should pay him $1,000 in one year, and release to him all their interest in inlot No. 77, and a tract of 227-J acres sold to Eithian & Mills; and the remainder of said real estate should be held by them as tenants in common, in fee, and they should execute, each to the other, releases in fee, for the undivided moieties thereof, and Ormsby should also release to plaintiffs a moiety of a strip of land on the Ohio river, purchased from Joel Williams.</p> <p>Under this settlement, instructions were given .to have the •deeds prepared. They were prepared, dated 27th January, •1819; and that by plaintiffs was in due form, and duly acknowledged and executed 3d February, 1819 ; but that by Ormsby was not in due form (the words of limitation, “ their heirs” or.“ their heirs and assigns” being omitted), though-signed and sealed by him, attested by two' witnesses, and its-execution proven by them 27th February, 1819. These deeds-were recorded 5th May, 1819. The said words of limitation were omitted by accident, or mistake, or through inadvertence, and it was unknown to the plaintiffs until after the death of Ormsby, who, as far as is known, was unaware of said omission. It was also unknown to them that said deed was-defective for want of a certificate of acknowledgment, as-required by the deed act of 1818, taking effect 1st May, 1818, and repealing the deed act of 1805, under which it had been executed: whereby said deed was but the written contract,, on the part of said Ormsby, for a deed.</p> <p>Under these deeds the parties took possession and control of said premises, according to their settlement and agreement, and from that time to the death of Ormsby, the parties so-held, and so acted, and so recognized the respective rights of each other.</p> <p>In pursuance of said settlement, Ormsby, on 17th February, 1820, filed in Hamilton common pleas, his account as-administrator, in which, under date of —- April, 1810, he charged himself with proceeds of said sale, as bought in on his account, and under date of — January, 1819, credits himself with said proceeds, except the 227J acre tract, and says-that said real estate “was sold, under an order of court, in April, 1810, and bought in for the use of Ormsby, now, upon-certain conditions, made again the joint property of the-concern.</p> <p>After the execution of said deeds, Ormsby, in conversations, by letter, by deeds, and by dealings with the plaintiffs and others, admitted their title to be in fee, and' they so considered it, and took possession and control as the owners in fee; which was known to Ormsby. They made deeds in fee, for portions sold during his life, and within his knowledge, without objection, or any assertion of title on his part. A»; early as 1st January, 1820, a lease was made to John Sherlock, for a part of said premises, for one hundred years,. reserving rent for the time to plaintiffs and Ormsby, with liberty to purchase at a fixed price, and, in case of purchase,, the parties were to convey in fe.e by deed of general warranty, but reserving a ferry right forever across the Ohio river, opposite said premises. On 14th February, 1820, by a paper writing, they divided the Green county land (part of said-lands), reciting that they owned it jointly. On 20th July, 1821, by deeds of that date, the parties conveyed to each-other, in severalty, certain portions of the joint lands. These conveyances are in fee. By deed of 6th April, 1827, Mr;. Ormsby conveyed to Mr. Longworth in fee, a portion of said premises, reciting that the other half of said premises was the property of Mr. Longworth and wife; and by another deed of same date, they divided in fee, inlot No. 424, in Cincinnati, and described it as held in common. On the 14th August, 1827, Ormsby conveyed to Lawler, Foote & Greene, his remaining interest in said land. On 24th June, 1828, the plaintiffs, and Lawler, Foote & Greene, made partition, and' in the deed recited that they held said premises as tenants in common, each seized of one undivided half part. By these- and various other acts, Mr. Ormsby, and those under him, recognized and admitted Mr. and Mrs. Longworth’s title in-fee, to said lands.</p> <p>About the year 1823, Mr. Longworth proposed to sell to-the Bank of the United States, this land, in payment of a-debt. The bank objected to the title, because Mrs. Ormsby’sdower had not been released. To obviate this, a deed with a release of her dower, was procured. The bank, for other reasons, declined to take the property. The deed was held of no value, and the plaintiffs, not being aware of the defects in the deed of 27th January, 1819, did not put it upon record, took no care of it, and it has since been lost or mislaid. The letter of 27th November, 1823, from Mr. Ormsby to Mr. Longworth, accompanied, and refers to this deed.</p> <p>Mr. Ormsby, though a .resident of Pittsburgh, was often at Cincinnati after the settlement of January, 1819, until a short time before his death, about the year 1832; was well advised of plaintiffs’ claim under the settlement, and never ■disputed it.</p> <p>The petition makes the heirs of Mr. Ormsby, defendants, jtnd prays relief as above stated.</p> <p>The answer of the defendants below, heirs of Ormsby, demies all the material allegations of the petition, not expressly admitted to be true. It alleges that the relations between their ancestor and Conner, were as follows:</p> <p>Their ancestor, prior to 1805, owned a mercantile establishment at Cincinnati, and took into it, as clerk, the said Conner. Finding him attentive and industrious, he took him into partnership under the name of Daniel Conner & Co. He advanced the capital, and Conner attended to the business. During the partnership, Conner purchased real estate for the partnership, paying for it with the partnership funds, but "taking the title in his own name to facilitate his making sales. Among others, he purchased that named in the petition. He died suddenly, without conveying to their ancestor the undivided half that justly belonged to him. Under the circumstances, their ancestor administered upon his estate, and proceeded to wind up the partnership. In doing so, he discovered that Conner, having had no capital, and having managed the partnership business injudiciously, died insolvent, and largely in arrears to the firm upon settlement of the partnership accounts, and left nothing to liquidate the same but the said real estate. As administrator, therefore, he represented the estate insolvent to Hamilton common pleas, at April term, 1810, and obtained an order for the appraisement and sale of said real estate. It was appraised by sworn appraisers, and that part involved in this suit was appraised at about $3,230. Upon the return of the appraisement, there was an order of court for the sale, whereupon the part above referred to was sold to George P. Torrence, as the highest bidder, for about $4,230. A deed was made to Torrence, who reconveyed to their ancestor in his own right. Whether, now, it can be inferred from the imperfect records of that date, that some of the formal steps in making said sale were omitted, and the administrator’s authority defective in some respects, they are unaware, but protest against such inference, and insist, in fact, that said administrator had authority to make the sale. Whether the sale to Torrence, and resale to their ancestor, amounted to a direct purchase by him, they ■are unaware; but they aver their ancestor acted honestly and in good faith,, with an anxious desire to promote the interests ■of Conner’s widow and legal representative, Mrs. Longworth, who, being left in straitened circumstances, was, in a great ■measure, supported by his generosity. They allege, on settlement of Conner’s estate, that he was still in arrear to his -surviving partner, or any trifling balance over was more than repaid by the advances made to his widow, as above stated.</p> <p>Such being the equities between their ancestor and Mrs. -Conner, the former being in possession of said real estate, and believing himself the legal and just owner, with a balance in his favor against the latter, one Nicholas Longworth, a practicing lawyer of Cincinnati, intermarried with Mrs. Conner ; and some time thereafter, when the value of said lands had vastly improved, owing to the rapid growth of the city, -they, thinking they had discovered a flaw in their ancestor’s title, laid claim to the whole of the property, alleging that their ancestor had bought it on his own account at the administrator’s sale, and that the law would not permit him to hold it against Mrs. Longworth, but without any pretense that their ancestor had acted in any other than good faith.</p> <p>Though believing his title just and legal,- and protesting against the oppressive and unconscionable attempt of Mr. and Mrs. Longworth, to defeat his title, obtained in good faith and for full value, by a mere technical objection, yet their ancestor being a resident of another State, unfamiliar with the laws of Ohio, and averse to a protracted litigation at a -distance, the expense of which, perhaps, he was unable to incur, and probably in the lapse of time having lost his testimony, agreed to a settlement, and thereon deeds were mutually executed between them on 29th January, 1819; one to their ancestor, releasing to him the fee simple in an undivided moiety of said property, and the other from him, releasing to Mr. and Mrs. Longworth a life estate in an undivided moiety of the same; and they deny that by accident, through-mistake and inadvertence on the part of the draftsman who. drew the last mentioned deed, the words “ and their heir» and assigns forever,” were omitted, contrary to the understanding and intention of their ancestor when he executed-said deed.</p> <p>They deny that their ancestor took possession under the deed of January, 1819, but insist that he was in possession-under his deed from Torrence. They deny that he executed-the deed referred to in the letter of 27th November, 1823. As to the other deeds executed after January, 1819, if executed, they deny that they were competent to prove that the words of inheritance were accidentally.omitted in the deed, from their ancestor, of January, 1819. And, finally, they deny that Mr. and Mrs. Longworth are entitled to any relief,, because, they say: 1. No such mistake or accidental omission was made in the deed sought to be reformed by said petitioner. 2. If there be such mistake or omission, yet Mr. and Mrs. Longworth extorted that deed from their ancestor-by such unfair and unconscionable conduct, and under such-oppressive circumstances, as not to be entitled to the aid of the court to rectify such mistake and reform such deed. 3. Admitting their ancestor’s deed amounts, in law, to a mere-contract to convey, yet it is not such a contract as the court should now insert therein, on parol proof, a new and important clause, and enforce the same against the defendants. It is contrary to the statute of frauds, and the policy of the-law, that Mr. and Mrs. Longworth should enlarge a life estate into an inheritance by parol proof; and, 4. Whatever rights they may once have had, are now lost by lapse of time.</p> <p>According to the provisions of the code at the time this answer was filed, the allegations of the answer were deemed, to be controverted without a reply.</p> <p>On hearing and consideration of the evidence, the district, court find the following to be the facts of the case:</p> <p>Mrst.. The plaintiffs and the ancestor of the defendants,, prior to 27th January, 1819, preferred mutual but adverse claims to the said real estate, of which Daniel Conner h-d died seized, possessed, or laid claim to. The title to said real estate, except said inlot No. 77, was derived as follows, to-wit: The said Ormsby and Conner were partners in trade ■at Cincinnati, the former residing in Pittsburgh, or its vicinity, ■and the latter in Cincinnati. The real estate was purchased by Conner, and the title taken in his name, though paid for with the partnership funds. Conner died in 1805, intestate, without heirs of his blood, and leaving Mrs. Longworth his widow, and indebted to the firm $421.22; and the firm was indebted to Ormsby in the sum of $5,820.66. Mr. Ormsby took out letters of administration on Conner’s estate, from Hamilton common pleas, in the year 1805, and treated said ■real estate in manner hereinafter stated, as the property of Conner. In the year 1810, he, as administrator, reported to said court that Conner’s estate was insolvent, and petitioned for the sale of the said real estate as the property of Conner, and under an order for that purpose, caused the same to be ■appraised as the property of Conner, and sold the same at -public auction; and at such sale had a portion thereof bid •off by George P. Torrence for himself, conveyed the same to said Torrence, and at the same time took back from Torrence a deed to himself, and assumed the payment of the money for which the land sold. Immediately after the sale, he took possession of said lands, and treated the proceeds of sale as partnership property, charging himself, in account with the firm, therewith; and afterward, in the same account, crediting himself with the amounts so assumed, and stating that said lands were bought in for himself, and then, upon certain conditions, made the joint property of the concern. At the April term, 1810, of Hamilton common pleas, to-wit, on 14th April, the following order was made upon the journals of said ■court:</p> <p>“ Proceedings on the estate of Daniel Conner, dedd. It being represented that the estate of Daniel Conner, dec’d, is .insolvent, mo. for the sale of the real estate of Daniel Conner,- dec’d, granted as the parties concerned agreed, and the .court appoint James Findlay, Jesse Hunt and Jolm James, appraisers — make return of their appraisement, and sale ordered, agreeable to law.”</p> <p>Afterward, on 27th April, 1810, the clerk issued an order to the said administrator, reciting therein that on his application, the above named appraisers had been appointed to view the estate of said Conner, and make return thereof; and that' they had, under oath, on 24th April, 1810, made said return,, as set forth in said order, and thereon ordered him to sell said lands agreeably to law, otherwise there was no order of appraisement, nor appraisement, nor order of sale, nor was said sale ever confirmed by said court. During the widowhood of Mrs. Conner, who married Mr. Longworth, as in their petition stated, Mr. Ormsby advanced to her, for her support,. $1,498.68. The court also finds that the assertion by the plaintiffs to an estate or interest in the lands, was not unconscionable, and was sufficient to become a proper subject of' compromise between the parties.</p> <p>Second. For the settlement of the said controversy, it was agreed by the parties as follows, to-wit: That Mr. Ormsby should give up all claim of title by virtue of his sale and purchase as aforesaid, or otherwise; and Mr. and Mrs. Long-worth, in full satisfaction of his claim upon Conner’s estate- and against them, should pay him $1,000, and release their interest in said inlot No. 77, and the tract of land sold toFithian & Mills, as in the petition stated, and the residue- of said lands Mr. and Mrs. Longworth should hold with Mr. Ormsby in fee as tenants in common; and in consideration of the premises, Mr. and Mrs. Longworth should release to Mr. Ormsby, his heirs and assigns forever, all their interest and claim to an undivided half of said lands; and that he, in consideration of the premises, should release and convey to them, their heirs and assigns forever, all his interest in and claim to the other undivided half part of said lands; and that he should also release and convey to them, their heirs and assigns forever, the undivided half of a strip of land bought of Joel Williams, on the river bank, as in petition stated.</p> <p>Third. In pursuance of said agreement, which was verbal, the parties proceeded immediately to execute the same; Mr. and Mrs. Longworth, by deed dated 27th January, 1819, duly executed and delivered (and of which exhibit No. 1 to their potion is a true copy), conveyed to Mr. Ormsby, his heirs and assigns forever, the undivided half of said lands; and Mr. Longworth also gave him his note for $1,000, and afterward paid the same.</p> <p>Fourth. Mr. Ormsby, intending to fulfill said agreement, executed and delivered to Mr. and Mrs. Longworth a paper writing of the same date (of which exhibit No. 2 to petition is a copy), both parties supposing and believing the same was a good and sufficient deed in fee simple, conveying to Mr. and Mrs Longworth, their heirs and assigns forever, the premises therein described, and thereby intended to be so conveyed.</p> <p>Fifth. That the draftsman of said paper writing last referred to, by an accidental mistake, omitted therefrom, in the granting clauses thereof, after the names of the grantees, the usual words of inheritance, viz : “ and their heirs and assigns forever.”</p> <p>Sixth. That said mistake was not discovered by, or known to, the said parties, or either of them, until after the death of Mr. Ormsby.</p> <p>Seventh. That in ignorance and mistake of the law then in force, the said Ormsby neglected to acknowledge the execution of said paper writing before a proper officer, but its execution was proven by the subscribing witnesses.</p> <p>FightJi. That Mr. and Mrs. Longworth have been in possession of said lands since 27th January, 1819, without interruption, by themselves or those claiming under them, claiming and asserting title to the said lands in fee simple under said paper writing, referred to as exhibit No. 2 to said petition; and their said claim of title was recognized and acquiesced in by Mr. Ormsby, in his lifetime, by the dealings of the parties, as stated in the petition.</p> <p>Ninth. That Mr. Ormsby died in the year 1838, intestate, leaving the defendants his heirs at law.</p> <p>To prove which facts in addition to the original deeds, of which exhibits No. 1 and No. 2 to the petition are copies, and the original account in the handwriting of Mr. Ormsby, of which exhibit No. 8 to the petition is a copy, the plaintiffs offered parol testimony, which was admitted by the court, but to the admission of which, as incompetent, the defendants objected.</p> <p>Upon these facts, as found, the court was of opinion that the paper writing of 27th January, 1819, executed by Mr. Ormsby to Mr. and Mrs. Longworth, and of which exhibit No. 2 to the petition is a copy, though insufficient at law to convey the legal title in fee simple, was valid and binding in equity as a contract to convey; that Mr. and Mrs. Longworth were entitled to have the mistake in the words thereof corrected, so as to conform to the intentions of the parties thereto, by the insertion, in the granting clause, after the names of the grantees, of the usual words of inheritance, to-wit: “ and their heirs and assigns forever,” so that the same shall describe an estate in fee simple, to have the said contract so reformed, specifically executed and enforced by the execution and delivery to Mr. and Mrs. Longworth, by the defendants, of good and sufficient deeds of conveyance, releasing to them in fee simple all the interest of said defendants in the said lands, and to have the title and possession of the said premises, as so declared, in them forever established and quieted against the defendants.</p> <p>And, therefore, it was ordered and adjudged by the court, that the defendants, in thirty days, execute and deliver to Mr. and Mrs. Longworth good and sufficient deeds, conveying and releasing to them, their heirs and assigns forever, all the said real estate, described in said paper writing, a copy of which is attached to said petition, marked exhibit No. 2; or, in default, that the said order stand and operate as such deeds would stand and operate at law, and that their title at law and possession to said real estate, be forever established and quieted against the defendants, and they be perpetually enjoined and forever barred from interfering with or disturbing the same, or setting up any claim thereto adverse to Mr. and Mrs. Longworth, their heirs and assigns.</p> <p>It is assigned for error—</p> <p>1. That the petition of the said Nicholas Longworth and '.Susan, his wife, in said action, does not contain facts sufficient to constitute a cause of action.</p> <p>2. The said district court erred in admitting parol testimony to show the alleged error in the deed sought to be reformed in said action.</p> <p>3. The said district court erred in not holding that the statute •of frauds was a bar to the relief sought by said action.</p> <p>4. That the judgment of the court was given, in said cause, •for the said Nicholas Longworth and Susan, his wife, when, according to the law of the land, it ought to have been given :for the plaintiffs in error.</p>

. The plaintiff in error was tried and convicted in the court of common pleas of Trumbull county, upon an indictment returned against him, charging that on the 11th day of November, 1858, at said Trumbull county, the said Louis Schleisinger, late of said county, did unlawfully and fasely pretend to John R. Woods and Alexander Pew, partners doing business, etc., “ that certain pens which he then and there had in sealed boxes, and parcels, were gutta percha pens with points of…

On the sixteenth day of February, 1861, the plaintiff in error, who was also plaintiff below, and the defendant in error, who was defendant below, came with their attorneys into the court of common pleas of Wood county, and submitted-to the court a case upon the following agreed statement of facts: “ It is agreed by the above parties that plaintiff is, and for over .five years last past has been, the owner, in fee simple,, of the south part south-east fraction of section No.…

Error, to the court of common pleas of Cuyahoga county. .Reserved in the district court. This is a petition in error to reverse a summary judgment rendered by the court of common pleas of Cuyahoga county, for an alleged contempt of court.

Error, to the district court of Clermont county. Reuben Sargent, on tbe 4th day of August, 1856, claimed, from Moses Gardner, constable, a mare and colt, which had been seized in execution by said constable, as the property of Israel Anderson, to satisfy a justice’s judgment in favor of plaintiff in error, and against said Anderson; which said property was advertised for sale by said constable, on August 12, 1856.

<p>A. and B., partners in trade, being unable to meet their liabilities, and to prevent their goods being seized in execution, sold and delivered them to C.,who, for that purpose, bought the same on credit. D., creditor of A &B... for such cause, sued out an attachment, and the said goods were seized and sold under said attachment, and those of other attaching creditors. E., another creditor, before the distribution of the money, commenced an action-against A. & B. and C., and the attaching creditors, stating the foregoing, facts in his petition, and claiming that C., by virtue of such assignment,... held such goods in trust for all the creditors of A. & B., and praying an injunction and receiver, and notice to be given to other creditors, and an exe- • cution of the trust. On demurrer of defendants; and judgment entered accordingly — Held:</p> <p>1st. That by force of section 17 of the act in relation to assignments, passed April 6, 1859, C. held said goods in trust for all the creditors, and that each creditor was entitled to a pro rata share of the proceeds.</p> <p>2. That said section 17 neither repealed nor qualified section 191 of the code, but operated merely upon the title of the property so conveyed to C., affixing -. to it the same character under such circumstances, as if transferred by written assignment expressing the trust.</p> <p>2. That no creditor having applied and procured the appointment of an assignee to execute the trust, it was competent for the court having jurisdiction -' of the fund and parties, to direct the execution of the trust, and order distri* bution in accord anee with the provisions of the statute.</p>

. The following are the first and fourth sections of an ordinance of the city council of Mount Vernon, passed March 23,. 1858: “ Sec. 1.

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

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

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