Volume 12 — Ohio State Reports

<p>A court of equity will not compel-the specific performance of a contract in favor of one who has not been diligent in performing his own part of the contract.</p> <p>After an appeal to the Supreme Court, and decree rendered therein, it is too-late to object, on bill of review, to the regularity of the appeal.</p>

This was a Writ of Error to the Supreme Court of Hamilton county. From the record, it appears that the action was assumpsit. The declaration contained three special counts on a guaranty of a note : one count for money lent and advanced; one for money had and received; and one count for goods sold and delivered. Plea, nonassumpsit.

This is an Information in the nature of a Quo Warranto, from Huron county.

This is an action of Debt, from the' county of Fairfield. The plaintiff counts orfa promissory note, bearing date the 21st day of October, 1807, executed in the county of Fairfield, and payable sixty days after date, to Samuel Kratzer, or his order, at the store of Benj. Ives Grillman, in Marietta, tor $2000, which note is indorsed by the payee, to the plaintiff. The declaration, also, contains the common counts in debt. To this declaration, the defendant plead.

This is a Writ of Error, to the Supreme Court of Belmont county. The action below was assumpsit- upon a warranty of a pair of French Buhr Millstones.

<p>Whenever it appears, in the progress of a trial, that the plaintiff is not entitled to maintain his action, the court may interpose, and direct a nonsuit, although the same objection appears on the face of the declaration, and might have been made upon demurrer.</p> <p>An action may be maintained before a justice of the peace, by scire facias, against a constable, for a false return upon mesne process.</p> <p>A justice of the peace has jurisdiction of such cases under the statute.</p>

<p>To constitute the crime of murder in the first degree, when the purpose to maliciously kill, with premeditation and deliberation is found, the length of time between the design so formed and its execution is immaterial.</p> <p>Where a person, indicted for murder, elects to be tried in the Supreme court, the original indictment must be sent up.</p> <p>But the clerk of the Common Pleas need not certify in the transcript that he has deposited the original in the office of the Supreme court; the fact may be shown aliunde. ,</p> <p>It is good cause of challenge to jurors, in a capital case, that they are not electors and householders; but it is no error that they are not described as such, in the record.</p>

<p>A writ of mandamas will lie against an officer vested with discretionary power who wholly refuses to perform his duty.</p> <p>It is, also, an appropriate remedy against an officer who refuses to perform a merely ministerial duty.</p> <p>But the writ will not be allowed against a County Auditor who refuses to audit an assistant appraiser’s account, that has not been finally acted upon by the County Commissioners.</p> <p>Tbe act allowing a per diem compensation to assessors, (Swan’sStat. 79, sec. II), gives a rule by which the account is to be made up, but does not fix its amount.</p>

This was a motion for a new trial from Morgan county. Suit was brought upon the official bond of Charles F. Alden, sheriff of Morgan county, to recover money collected by him on execution in favor of Nathaniel Haines. Process was served upon the securities alone, being returned, “ not found,” as to Alden.

This is a Bill in Chancery, to review a decree of the Supreme court, on the Circuit in Highland county.

<p>The freehold-of an husband in his wife’s lands may be sold on execution.</p>

This is an action of Troyer, reserved upon a special verdict, from the county of Ashtabula. The plaintiff declared, upon the usual count in trover, for bank bills and specie. The defendants plead the general issue, with notice that they would, prove, on the trial, that the money mentioned in *the plaintiff’s [82 declaration, was found, by the defendants, in the cabin of the schooner, known by the name of “ Gf.

<p>Where lands subject to a mortgage, are sold under a decree of foreclosure, the emblements of a lessee are protected, and do not pass to a purchaser under the decree.</p>

This is a Bill in Chancery from the county of Athens, The bill was filed on the third of May, 1842, setting forth— That the complainants are owners of lots in the town of Athens, and, as such, entitled to use and enjoy, for the purposes of pasture, firewood, etc., that portion of land, amounting to about two hundred acres, designated on the original plat of said town as “ commons.” That the law authorizing the town of Athens to be laid out required a portion of land to be…

This is a Writ of Error, from Lorain County. An action of replevin was brought by the Administrators of Nelson Phelps against Willis Ferrell. The defendant plead— First: Non detinet. Second : Property in himself. The parties went to trial, without any replication to the latter plea. The verdict and judgment were for the plaintiffs. This writ of error is now brought to reverse the judgment.

<p>Where an injunction restrains proceedings of a judgment creditor against certain specific property, claimed by a third person, without interfering with the remedy against other property, or the person of the debtor, who is not made party to the bill, the court will not, on dissolution of the injunction, and dismissal of the bill, decree against complainant the amount of the judgment and penalty.</p> <p>Where, from the papers and certificate of reservation, there appears to be no question remaining for decision, the case will be stricken from the docket, or remanded.</p>

This was an Action of Assumpsit, from the county of F airfield. The declaration contains the usual common counts. The defendants plead the general issue, and gave notice of set off. The cause was tried on these pleadings, in the court of Common Pleas, to a jury, at the February term of said court, 1842, and a verdict and judgment for the plaintiff for $2,900.

This is a Writ of Error to the Supreme Court of Hamilton county.

This is a Writ of Error to the court of Common Pleas of Champaign county. The action below was. assumpsit on a note of hand, dated the 34th of January, 3841, for $89, made by Baggs, payable to Loudenback, or order, one day after date.

This is an action of Covenant, from the county of Pickaway. The plaintiff declared — for that, whereas, heretofore, to wit: on the sixth day of October, 1836, at the county aforesaid, the said Ed-son B. Olds, as principal, and the said Thomas Huston, Joseph Olds, and Andrew Huston, as sureties for said Edson B. Olds, by their covenant in writing, sealed with their seals, etc., agreed and bound themselves that the said Edson B. Olds, within five years from the first day of…

This is a Bill in Chancery, from Ross county. At the November term, 1821, of Ross county Common Pleas, Samuel B. Harris recovered a judgment against John Carlisle for $1700. From this judgment Carlisle appealed to the Supreme Court, and Wm. H. Douglas went his security on the appeal bond. On the 14th of December, 1822, Harris, on this appeal, got judgment, in the Supreme Court, against Carlisle for $1584.92 damages, $110.94 penalty, and 25.73 costs — in all, $1721.69.

This is a Writ of Error to the Supreme Court of Guernsey county.

This is a Bill in Chancery, from Brown county, In 1817, the father of complainant and one Wiles contracted with Walter Baylor, to purchase 281 acres of land, then in the county of Adams. Baylor gave a title bond, obligating himself to convey by 'the first of May, 1818. A part of the purchase money was paid, and notes given for the residue.

This is an action of Ejectment from Lake county. The cause was submitted to a jury on the last circuit in the county 106] of Lake, and a verdict found for the plaintiff, subject *to the In the year 1828, John Maxsom died, seized in fee of the premises-in question, at Mentor, in the county of Geauga, now in tho county of Lake, in which place he had a legal settlement, and leaving Polly Maxsom, his widow, and the lessor of the plaintiff, his only heirs at law.

This was a Writ of Error, reserved to give a construction to the statutes, in ascertaining the amount in which a sheriff should be amerced for neglect or refusal “ to execute any writ of execution to him directed, and which hath come to his hands.” Swan’s Stat. 483, sec. 31.

This is a motion for a new trial in an action of Ejectment, from the county of Hamilton. The plaintiff counts on three demises, from the widow, the heirs, and the executors of John Boyd, and seeks to recover leasehold tenements in Cincinnati. In December, 1831, Joseph and Samuel Talbert leased to Boyd, the 213] premises, subject to a then subsisting lease of Price, *upon tbe annual rent of $500, payable quarterly, from tbe 22d of J anuary.

This is a writ of Error from Carroll county. Kelley instituted proceedings under the act for forcible entry and detainer, to obtain possession of premises sold, in Hunter’s name, for taxes. Upon the trial he recovered upon the strength of the auditor’s deed.

This is a writ of Error to the court of Common Pleas of Franklin county, to reverse a judgment in favor of the defendant, on a motion to amerce him. The facts set forth in the bill of exceptions are, substantially, as follows: On the 19th of January, 1841, Justin Morrison, Joel Buttles, and Demás Adams, gave their note to the Gallipolis Bank, for $4000, at four months, not negotiable.

This was an Action on the case, from Greene county, against the defendants, as school directors.

<p>This was an action on the case, against the defendant as a justice of the peace.</p> <p>The declaration has two counts.</p> <p>First: That on the 28th of February, 1842, Sharpless and Phinney recovered a judgment against one Morris Wilcox, for $31.24J, before the defendant, Taylor, as a justice of the peace ; that said Wilcox, at the time said judgment was rendered, and up to the 7th of March, 1842, had sufficient goods and chattels, liable to execution, to satisfy said judgment; that said Taylor, as such justice, neglected and refused to issue an execution on said judgment, until the 8th day of March, 1842, when he did issue execution, and the same being levied on all the property the judgment debtor then had, produced but $10.74; and, therefore, the justice is liable for the balance of the judgment.</p> <p>Second : The second count is like the first, except it has this averment : “ The plaintiffs, by their agent, to wit, on the 28th day of February, 1842, at the township of Sharon, aforesaid, did order and direct the said George Taylor, so being such justice, as aforesaid, to proceed and collect the debt due from the said Morris Wilcox to the said plaintiffs, and for which the said judgment was rendered, as speedily as the law would permit,”</p> <p>There is a demurrer to both counts.</p>

<p>"When the publication complained of is libelous in itself, an averment in the declaration of plaintiff’s official or professional character will not be ground of demurrer, although the libelous matter can not apply to that official or professional character. •</p> <p>All inferences are to be taken most strongly against the pleader, and where the libelous matter imputes a dishonest, corrupt, or criminal intent, a plea of justification must show not only that the facts charged are true, but also that they were accompanied with the intent imputed.</p>

This was an Action of Ejectment from Licking county, submitted to the court upon an agreed statement of facts. To support the plaintiff’s title, he offered in evidence— First: Proof that John Faulkner died seized of the tenements.

This was an Action of Debt from Licking county, and is reversed on the following case. “ The jury being sworn to try the issue in this ease, the plaintiff produced a single bill purporting to be executed by one Thomas L. Marshall, and Toliver Thrailkill, the defendant’s testator, which said single bill is in the words following, to wit: “ ‘ $153.75.

This was au Action of Assumpsit, from the county of Fairfield.

This is a Bill- in Chancery from Muskingum county, claiming a conveyance and partition of land to which the complainant makes title, upon the following facts : In 1831, Noah Zane made his will, which contains the following, among other provisions : After a bequest to his daughter, Elizabeth, another to his daughter, Cornelia, the téstator proceeds : “ To these daughters, I also give and devise all my real estate in the county of Muskingum, in the State of Ohio, to them and…

<p>An express written promise, to one partner, may be sued on by him alone. Where one who is a member of two firms makes a promissory note in the name of one firm, payable to a person who is a member of the other firm, the payee may sue and recover upon it at law.</p> <p>Th.e admissions of the common member of both firms can not be given in evidence to defeat a recovery on the instrument.</p> <p>An accountable receipt is equivalent, in legal effect, to a note, and its contents may be recovered under the general counts.</p> <p>Where time is not stated, as descriptive of the date of an instrument, its being made at a time different from that laid in the declaration, is not a fatal variance.</p>

<p>Where the assured has contracted to convey the assured premises at a future day, on payment of the purchase money, and, between the date of the contract and the day of payment, the premises are destroyed by fire, this is not such an alienation as would defeat the policy.</p> <p>That the plaintiffs had an insurable interest, and the legal title, and an equity equal to the purchase money, or the whole value of the premises; and, being in possession, they might recover upon the policy.</p>

This is a Bill in Chancery, to review a decree of the Supreme-Court of Hamilton county.

This is a Writ of Error to the Court of Common Pleas of Cuyahoga county. By its prosecution the plaintiff in error, who was also plaintiff in the court below, seeks to reverse a judgment rendered against him at the May Term of said court, 1843. The declaration contains the common counts in assumpsit, and, among them, a count for work and labor. The defendant plead the general issue, and gave notice of setoff. The case was submitted to the court.

<p>A guardian ad litem, and trustee for infant heirs, can not acquire their property for himself, pending a litigation in respect to it.</p> <p>A decree against minor defendants, rendered upon the answer of their guardian ad litem, may be impeached, and reversed for fraud.</p> <p>Where, by the saving clause of the statute of limitations, the right to review a decree in chancery is saved to one of the parties against whom it is rendered, it inures to the benefit of all.</p>

This is a Bill in Chancery, for specific performance, reserved from the county of Greene. The facts are these: — Charles Bradford owned land warrant No. 355] 4467, for 2666|- acres of Virginia Military Lands, which, *after his death, was located, entered, surveyed and patented in his name, •in three surveys, viz: Entry No. 2277, for 1000 acres, in G-reene county; Do. 2278, for 1200 do. do.

This is an action of Ejectment from Columbiana county, upon an agreed statement of facts. The material facts and points made are stated in the opinion of. the-court.

This is a Bill in Chancery, for the assignment of dower, in Hamilton county. The bill states, in substance, that complainant’s husband, Abijah Meddock, during the coverture of complainant, was seized in fee of a tract of land in Hamilton county ; that Abijah Meddock died in April, 1837 ; that complainant has never released her right of dower in the premises in question, and that no part thereof has ever been assigned to her as dower ; that defendant is in possession.

<p>A court of equity will not interfere to abate a private nuisance, unless the' person seeking its aid has established his rights at law.</p> <p>Equity will not interfere when the damages are of a trifling or merely nominal character ; and the fact that the damages given in a suit at law, are-too small to carry costs, is not sufficient ground for equitable interference.</p>

These cases were reserved in Fairfield county. The first is a Bill in Chancery, to compel the administrator of 391] Christian to convey certain bank stock. *Thc second is a Petition, by the administrator of O. King, to sell lands.

This was an application for a Writ of Error to the ruling of the Supreme Court in Clarke county. Suit was brought by Deshler against Timothy Lyon, Peter A. Springman, Cyrus Armstrong, and Absalom Mattox, as joint makers of a promissory note, payable to the plaintiff or his order, at the Clinton Bank of Columbus. Process issued against all, and was returned, not served, as to Lyon. Springman, Mattox, and Armstrong, appeared and plead the general issue, verified by affidavit.

<p>Where a cause is, by consent of parties, submitted for trial to the court, without the intervention of a jury, a bill of exceptions may be taken to the opinion of the court, upon the questions of law arising in the case.</p> <p>In such cases error will lie to the ruling of the court, upon questions of law, in the same manner as if the cause had been tried to the jury.</p>

This was an application for a Writ of Error to the Supreme Court of Franklin county. At the December Term, 1843, of the Supreme Court in Franklin county, ffm. Clark was put on trial by jury, before Judges Birchard and Reed, for the murder of Cyrus Sells. The proof established the fact of killing in the manner laid in the indictment, and the jury returned a verdict of “ guilty of murder in the first degree,” and sentence of death was pronounced upon him.

This case is a proceeding in the nature of a Bill in Chancery, and was before the court at the last term. It is reported in llih Ohio Reports, 501. At that term the following decree was entered ; This case came on to be heard upon the bill of the complainant, and. the exhibits thereof; the answer of the said defendant, the testimony of witnesses, the report of the master, and the exceptions thereto.

This is a Writ of Error to the court of Common Pleas of Hamilton county, and, on the last circuit, was reserved for decision in bank.

<p>An agreement between a bank and contractors on the public works, for the bank to make a loan to the state, to be applied to the public improvements on which they were engaged, and charge the contractors five per cent, commission, is an illegal shift and device by the bank to obtain more than six per cent, interest upon its loans.</p> <p>Such a contract would not be enforced in favor of the bank against the contractors.</p> <p>But the contractors will be regarded as in pari delicto, and having paid the commissions, the amount can not be recovered back.</p>