Volume 13 — Ohio State Reports

This is a motion for a now trial, from the county of Cuyahoga. The action was assumpsit against the defendant, as acceptor of two bills of exchange drawn by James S. Clark, payable at New York, one for $2,700, and the other for $3,000, and accepted by the defendant. *Tbo declaration was upon special counts, and the common money counts. Plea, non assumpsit, and motion of set-off. The bills offered in evidence were as follows: Cincinnati, January 10, 1837.

On the 4th of October, 1858, Lucius A. Bowers filed his petition in the superior court of Franklin county, against Ira A. Preston, Margaret Preston, his wife, and Aaron D. Griffin, charging them with… Held: and the testimony was admitted, and the defendants excepted.

Quo WAERANTO. The relation shows that the Seneca county, bank, an independent banking company, organized under the act of February 24,1845, having committed an act of insolvency by refusing to make specie payments, the defendant was, on the 20th day of July, 1858, duly appointed receiver thereof, by the auditor, treasurer and secretary ol state, pursuant to the •provisions of the 41st section of said act; that he gave bond to the satisfaction of said officers of state, took…

This is a writ of error to the Supreme Court of the county of Greene. The original action was trespass, brought in the common pleas and taken, by appeal, into the Supreme Court. Inskip, the plaintiff below, declared against MbClintock, for breaking and entering his close, and quarrying, carrying away, and converting to his own use large quantities of stone of great value.

The defendant in error, John C. Rogers, an infant, by Robert R. Rogers, his next friend, on the 19th day of March, 1859, filed his petition against the plaintiffs in error, in the court of common pleas of Warren county, for the recovery of possession of certain lands, particularly described, situate in said county.

This is a writ of error to the Supreme Court of Morgan county The error complained of is the affirmance, by the Supreme Court, of a judgment in the common pleas. The action was originally commenced by Willis against Brown, • for the collection of a sum of money due on a promissory note.

This is an action of replevin from the county of Licking. The cause was tried on the circuit; verdict for defendant; and a motion for new trial having been made by tho plaintiff, the following statement is agreed by counsel: “A jury being impaneled and sworn to try the issue joined in this case, the plaintiffs gave in evidenco to tho jury a deed of assignment executed by Neilson and Wilson to them of all their property and effects, including the property which was tho…

<p>A suit can not be maintained against a decedent’s estate, within eighteen months after letters issued, unless such claim was first presented to the executor or administrator for settlement, with a request that he should.indorse his allowance thereon.</p> <p>Executors and administrators arc entitled to a reasonable time for the examination of an account against the estate, before indorsing its allowance or rejection.</p>

This action was originally brought by Lane, in 1852, in the court of common pleas of Butler county, and thence appealed to the district… Held: that “ where there has been a continued user of a highway, though its width has been encroached upon by the adjacent owner for eighteen years, the right is not lost.” The adjacent owner, it will be remembered, had not been in possession of the disputed portion of the highway for twenty one years ; and the intention of the public to…

This is a writ of error to the Supreme Court for the county of Monroe. The record shows the original action was instituted and tried in the common pleas of Monroe county, and appealed to the Supreme Court.

This was a suit upon a policy of insurance, reserved from the Supreme Court of Franklin county, for decision in bank, upon the following agreed statement of facts: “ That on November 11, a. d. 1839, the defendants, in due form, executed the policy of insurance to the plaintiff, which is made part of the agreed case, and marked A. That on November 9,1839, the plaintiff put on board the schooner ‘Buffalo,’ Rosetty, master, 5,254 and 13-GO bushels of wheat, as per bill of…

On the 22d of November, 1858, Andrew Burns filed his-petition, in the court of common pleas of Wood county, against John H. Reid and Norman Burns, stating that , the plaintiff and said Norman had entered into a contract, of which the following is a copy: “ This agreement, made and entered into this 26th day of December, A. D. 1857, by and between Andrew Burns and Norman Burns of Perrysburg, witnesseth, that the said Norman Burns, for a valuable consideration received of the…

The original action was brought by Lawrence against the railroad company to recover damages for an injury to cattle by a locomotive, the cattle being on the railroad track, and having been some killed and others injured, as was alleged, by the negligence of those having charge of a passenger train of the railroad company. The answer denied that there was any negligence.

This is a bill in chancery from Muskingum county. The state of the case is this : George Jackson contracted, under band and seal, to convey to his son, William L. Jackson, and his wife, Harriet Jackson, their heirs and assigns, certain land, described in the bill. He also devised to his said son ono-eighth part of all his estate. The father died in 1831.

The defendants in error, Owen O’Neil and Bridget, his wife, filed a petition in the court of common pleas of Summit county, stating that, in 1850, they purchased of Samuel W. Bartges, the plaintiff in error, the N. W. qr. of sec. 21, tp. 45, range 5, in Henry county, Illinois, containing one hundred and sixty acres 'of land; and that they agreed to pay and did pay him $1300 therefor, by the deduction of that sum from the purchase price of certain lands sold to him, Bartges,…

<p>The purchaser at a tax sale acquires no better title than, was held by the former owner at the time of sale.</p> <p>The plaintiff claimed under a patent, dated November 20, 1838, the defendant set up a deed under a tax sale, dated July 29,. 1831; held, no defense at law against the legal title of the patentee.</p> <p>But the purchaser is, under the occupying claimant law, entitled to his claim for improvements and taxes paid by him.</p>

Appeal. Reserved in the district court of Erie county. The case is stated in the opinion of the court. The facts do not show that a valid levy of execution was' made, and continued as against this plaintiff, a Iona fide mortgagee; and the burden of sustaining the levy is upon the defendant. Green v. Burlce, 23 Wend. 491; Dresser v. Ainsworth, 9 Barb. S. 0. Rep. 620; Ray v. Harcourt, 19 Wend. 495; Van Wych v. Pine, 2 Hill, 666; Price v. Shipps, 16 Barb. S. 0.

This is a motion for a new trial from the county of Trumbull. The state of the case, and the points made, appear in the opinion of the court.

This case comes to the court upon demurrer to the petition. The allegations of the petition are as follows: That certain (named) persons associated themselves together on the 25th of March, 1854, to form an incorporated company for the purpose of constructing the Dayton, Watervleit Yalley and Xenia Turnpike Road; that to induce them to perfect such organization and to obtain the construction of the road, and to procure to himself the stock, dividends, profits, etc., to acci…

<p>This is a motion for a new trial, from Stark county.</p> <p>The action was assumpsit, on a note discounted by the plaintiffs) for $2,793.10, made by one Alanson Pcnfiold, payable at *the Commercial Bank of Lake Erie, to the order of defendant, and by him indorsed to the plaintiffs. Plea, non assumpsit.</p> <p>On the trial of this cause to the jury upon the circuit, the facts proved and admitted were as follows:</p> <p>“The note in the plaintiff’s declaration mentioned, fell due at the Commercial Bank of Lake Erie, on August 19, 1836; some time previous to which it was offered for discount, and was discounted by the plaintiff at the request of the defendant, and for his benefit; and the defendant then indorsed said note to the plaintiff, and received the proceeds thereof. That when said note fell due, it was duly protested for non-payment, of which the defendant had due notice. That suit was commenced on said note against Alanson Pcnfiold, the maker thereof, at the next term of the court of common pleas of Cuyahoga county, after the same fell due; and that such proceedings were had in said suit until final judgment, in the Supremo Court of said Cuyahoga county, held August 12, 1837; and that such proceedings were had on said judgment after its rendition, as are stated in the transcript of the docket entries hereto annexed, and certified by A. Clark, clerk of said court of common pleas.</p> <p>This transcript shows a judgment at the August term, 1837, of the Supreme Court of Cuyahoga county, in favor of the plaintiff, against Penfield, for $3,124.04, and costs and proceeds.</p> <p>“ Mandate to common pleas, and execution ordered, October term, 1837; fi. fa. issued November 23, 1837, to sheriff, and returned March 18, 1838, by order of plaintiff’s attorney, indorsed, ‘Received on this execution, $1,043.16. Deposit fees, $20.40. S. S. Handerson, Sheriff.’ ”</p> <p>“ The defendant in the above case produced the plaintiff’s attorney’s receipts; one for $200, and the other for $100, to apply on said judgment; one dated May 1, and the other August 16, 1838. ’ A. Clark, Pep. Glerk.”</p> <p>“ The defendant produced a receipt, dated November 22, 1838, for $100.</p> <p>“ The defendant produced a receipt, dated February 2, 1839, for $100.</p> <p>*“ The defendant produced a receipt, dated January 31, 1839, for $100.</p> <p>“ The defendant produced a receipt, dated October 11, 1838, for $300/</p> <p>“ Al. fi. fa. issued September 1, 1838, and returned by order of plaintiff’s attorney; S. S. Handerson, sheriff; foes, 40 cents. Plu. fi. fa., June 10, 1839, and returned made, $3. No goods. Not levied on goods for want of time; foes, 66 cents. M. Miller, deputy sheriff. Second plu. fi. fa., September 17, 1839, returned, levied on lot No. 1, St. Clair street, appraised at $3,100, not sold; foes, $6.65. M. Miller, deputj^ sheriff. Ven. ex., January 20, 1840, and returned sold to Commercial Bank of Lake Erie, for $2,067; fees, $4.15. M. Miller, deputy sheriff. May term, 1840, sale approved and deed ordered. Third plu. fi. fa-., January 11, 1842. Costs, on motion, for deed, 66 cents.</p> <p>“It was further proved that, in March, 1838, a letter was received from said Penfield, by John Harris, president of said Bank of Canton, and its attorney in said suit against Penfield, requesting that the execution, which had then been issued against him, might be stayed over the then next term of said court of common pleas, which was held Ajrril 17, 1838, on condition that he, Pen-field, would pay $1,000, to the credit of said Bank of Canton, in said Commercial Bank of Lake Erie, to be applied on said judgment. That said Harris exhibited said letter to the directors of said Bank of Canton, and was directed by them to accept said proposition. That said Harris accordingly wrote to said Penfield, stating that, on his paying $1,000, as proposed, and showing that loiter to the sheriff, he, the sheriff, would stay the execution as requested; and that the said $1,000 was paid, and said execution •was returned in manner stated in said transcript, March 18, 1838, and that this arrangement was made without the knowledge of the defendant. Also, that the sum of $40 was paid by said Pen-field to said bank, May 1, 1838, in addition to the several sums of $100, $100, $100, and $300, stated as paid in said transcript.</p> <p>*“ It was further proved that, at the time of the return of execution, in March, 1838, said Penfiold had sufficient real estate, subject to levy, to satisfy said judgment; that said judgment was a lien on said land, prior to all other liens thereon, and so continued until some time in July, 1839, when said Commercial Bank obtained a judgment against Penfield, in said court of common pleas, which judgment was decided to have a prior lion on said land, in the case of the Farmers’ Bank of Canton v. Commercial Bank of Lake Erie, 10 Ohio, 71.</p> <p>“It was further proved that the defendant was a stockholder of said Bank of Canton at the time of the discount of said note, and has continued a stockholder over since, and that he became a director thereof in January, 1839, and continued to be a director until the same was placed in the hands'of receivers, March 12, 1842; and that, in November, 1838, ho, the defendant, was informed by the said John Harris that the judgment against Penfiold was considered perfectly secure; and said Harris stated, on his examination, that ho might, and probably did, so inform the defendant at other times; and that the defendant has, since the discount of said note, been a resident of the town of Canton, where said bank is located, and is a brother-in-law of said John Harris, president and attorney thereof, as aforesaid. And, further, that the indulgence from time to time granted to said Penfiold, in manner aforesaid, was intended to facilitate the collection of said judgment against Penfield, the payment of which, it was supposed, would be suspended by a levy on real estate, which, during the years 1838 and 1839, could seldom bo sold on execution in Cuyahoga county, where the lands of Penfield were situated; and that such indulgence was considered, by the said attorney of the bank and its officers, to be judicious and proper, and that they acted in the premises in good faith. It was also proved that said Penfield, after a judgment obtained by said Commercial Bank, in July, 1839, became-totally insolvent, and has so continued over since, and that said judgment against him, in favor of said Bank if Canton, is uncollected and worthless.</p> <p>*“And upon the facts aforesaid, the court charged the jury [88 that, by law, the defendant was discharged from liability as indorser of said note, by the acts, neglect, and laches of the plaintiff) in respect to the collection of said judgment against said Penfield, and that the plaintiff was not entitled to rocovor; whereupon the jury found a verdict for the defendant.</p> <p>“And now the plaintiff, insisting that, in charging the jury as aforesaid, the court mistook the law, pray the court to set aside said verdict, and grant the plaintiff a new trial in this cause.”</p>

On the 26th of December, 1857, Jacob Parker made his last will and testament, which reads as follows: “ I, Jacob Parker, of Mansfield, Ohio, being of sound mind and memory, and being desirous of disposing of my earthly property, do hereby make, ordain, publish and declare solemnly the following to be my last will and testament: “Item 1.

This is a writ of error to the court of common pleas of Lucas county. An action of assumpsit was brought by the trustees of Springfield township against Demott, for the amount ^expended for the support of his wife.

This is a bill in chancery, from Highland county. The bill sets forth that, for the sum of forty dollars, and a note of sixty dollars, complainants executed to respondent a note for $125, payable in 341 days, with a power of attorney to confess judgment thereon.

Reserved in the district court. In April, 1858, Stevens & Chappel were merchants at Marlboro’, Stark county, Ohio, and were largely indebted for goods. On or about the 9th day of April, 1858, they professed to sell all their stock of goods and other property to John W. Hatcher.

<p>A married woman can only be divested, during coverture, of her interest in ber husband's estate, in the manner pointed out by the statute.</p> <p>"Where the statute in force, when a deed was executed by a married woman, required that the contents of the deed should be made known to her, she is not barred of dower unless it appear, from the magistrate’s certificate, that such requisition was complied with.</p> <p>The curative acts, to render valid such imperfect acknowledgments, are themselves void, and the doctrine of Good v. Zercher, 12 Ohio, 365, is affirmed.</p> <p>The defect can not be cured, so as to bar dower, by showing dehors the deod that the woman did know its contents at the time of its execution, and intended to pass her dower.</p>

This is a motion for a new trial, in an action of debt, reserved from Washington county. On the circuit a verdict was taken for the plaintiff, subject to the opinion of the court on this motion. Tho action was brought to recover of the defendant, as a stockholder of the company, a “ subsequent installment ” of ton per cent, upon his stock, and also the penalty thereon under section 6 of the act to provide for the regulation of turnpike companies. Swan’s Stat. 974.

<p>Suit was brought by the Medina County Mutual Fire Insurance Company tc recover the amount of a certain assessment made upon the premium notes of the plaintiffs in error. A former suit, between the same parties, to recover for other assessments made upon the same notes, had been compromised by the payment of those assessments, the cancellation of the policies of plaintiffs in error, and the surrender of their premium notes, Toy the order of the company’s board of directors.</p> <p>By the terms of the charter of the’company, each member was entitled to have his premium notes surrendered to him at the expiration of his term of insurance, upon payment of his share of losses and expenses to that time; or upon alienation of the property insured, surrender of his policy, and like payment of his share of losses and expenses; or upon payment of the whole of his premium notes and surrender of his policy.</p> <p>The charter directed that the board of directors should “ superintend the concerns of said company, and have the management of the funds and property thereof, and all matters and things thereto relating.”</p> <p>Held, that the directors of the company had power to compromise the formei suit, by canceling the policies and surrendering the premium notes, and that the terms of settlement in that case were such as to constitute a defense against assessments subsequently made upon the same notes on account of losses sustained prior to the settlement.</p>

<p>This is a bill in chancery, from Greene county.</p> <p>The case is stated in the opinion of the court.</p>

<p>Error to the superior court of Montgomery county.</p> <p>The case is sufficiently stated in the opinion of the court.</p>

The record shows that Dodge brought a suit against Burt, on a note, for $118. The action was assumpsit. The defendant plead the general issue, and gave notice of set-off. At the trial term of the court of common pleas, on his motion, Burt was ordered to deposit with the clerk, for Dodge, $85.48, which he admitted to be duo, and which he then paid to the clerk. Verdict and judgment were for Dodge, in tho common pleas, and an appeal taken.

<p>Where suit is brought in the common pleas, on a claim within the jurisdiction of a justice of the peace, if the defendant appeals to the Supreme Court, and the plaintiff recovers more than in the court below, he is entitled to judgment for full costs in both courts.</p>

This is a writ of error to the Supreme Court of Medina county. The action below was debt upon an injunction bond. The following facts appear from the record: At the'June term, 1835, of the common pleas, Hillyer, Bostwick, and Bush recovered judgment for $2,556.26 and costs, against Alfred Griswold and Alexander Griswold.

<p>W. assigned in writing to 0. & M. a judgment against H. containing this condi tion, “if the said C. «fe M. shall fail in collecting said judgment, after prosecuting said Hall (who now resides in Iowa) to insolvency, then I agree to be respon sible for, and hereby guarantee, the sum of four hundred dollars of said judg* ment to them, and no more.” C. & M. brought a suit on the judgment in the . name of W. for their use, in the district court of Des Moines county, in Iowa, against H., who set up the defense of payment. Ho notice of this suit and defense was given to W. The judgment of the district court was in favor of the defendant, H. In an action brought by the assignee of 0. & M. against W. Held:</p> <p>1. That the record of the proceedings in Iowa was competent evidence to show that the effort to prosecute H. failed.</p> <p>2. That it did not conclude W. on the question in issue, whether the judgment assigned was a valid and subsisting judgment, and that H. could have been prosecuted to insolvency, had proper diligence been used.</p>

Appeal. — Reserved in the district court of Tuscarawas county.

In chancery, from Highland county. This is a bill brought for tho foreclosure and sale of mortgaged tenements, against Roberts, the mortgagor, and Jennings, another mortgagee, claiming a preferable lien. *The pleadings and proof show that Roborts, on April 17, 1841, mortgaged the premises to Jennings, whose mortgage was not recorded until July 13, 1842.

This is an action on the case from Miami county. The plaintiff counted “ that heretofore, to wit, on November 2, a. d. 1835, at the county of Miami aforesaid, one Ishmael Waller-ton, being indebted to one Ziba Wallerton, in the sum of $500, executed and delivered to the said Ziba Wallerton a mortgage deed of the following described lot or parcel of land, to wit,” etc.; “which mortgage deed was duly executed and conditioned to be void on the payment of the said sum of $500,…

The original action'was brought by John Mikesell, in December, 1857, as supervisor of road district No. 8, in the township of Champion, m Trumbull county, against Joseph Grove, to recover damages from him for wrongfully and willfully filling up “the ditch at the side of the road-bed running north and south through said district No. 8,” and placing a dam in the ditch, and thereby causing the water to overflow the road, and to render it soft and impassable.

This is an action of assumpsit, from Trumbull county. The plaintiff declares in the first count, upon a promise by defendant’s testator to indemnify the plaintiff against a certain indorsement made at the testator’s instance and request, and for his .accommodation. The second and third counts are upon the testator’s indorsement of a promissory note. *The common money counts are added.

<p>1. Where objection was made to an item of credit in an account rendered by one party to another, and notice of the objection was given at the time of its rendition, or soon after, and the balance shown by the account so rendered was carried forward into subsequent aceounts rendered, which were received and filed without objection, but without waiving or withdrawing the objection to the disputed item of credit; and the party rendering the accounts, afterward settled and paid the balance exhibited against him by his accounts so rendered, and obtained a receipt therefor, under an agreement that the said disputed item should remain open, and not bo considered as acquiesced in by the other party. Held: That, as to the disputed item of credit, the accounts sc rendered are not to be regarded as accounts stated.</p> <p>2. A judgment will not be revorsed on account of the admission of improper ov« idence, unless the evidence so admitted is set out or its character is shown to be such as would tend to the prejudice of the party asking the reversal.</p> <p>5, Where, in a petition framed under the 122d section of the code, a certain sum is stated to be due 11 on the account for goods sold and delivered by the plaintiff to the defendant, a copy of which is hereto attached,” and the account contains items which are not for goods sold and delivered, but which are all proper subjects of account, and the defendant answers to the merits, without objection to the petition, it is not error to admit evidence on the trial in support of the items which are not for goods sold and delivered.</p>

This was an action of debt from Cuyahoga county. The plaintiff counted, “for that whereas heretofore, to wit, -on July 30, A. d. 1842, at Cleveland, in said county, .the said defendant had been arrested and brought before one Isaac F. Benedict, then and there being one of the justices of the peace of the township of Cleveland, in said county, duly charged on the oath of one Peter P. Perry with having committed an assault and battery on the person of the said Peter P. Perry,…

Reserved in the district court. This was an action brought in the common pleas of HockIng county, against the defendant, late sheriff of .that county, for an escape. ' , To show that he was not liable for the escape, the defendant offered the following defense : “ For a further answer to' the said petition of the said Mary Ann Kepler, plaintiff, the said Henry Barker, defendant, saith, that for several years past, and during all the time from the arrest of the said Amos…

This is an action of debt from Geauga county. There are three counts in the declaration. The first is upon a judgment; the second is upon a sealed note, executed by ihe defendant to Samuel Carey, on September 19, 1817, for the sum of $630, with interest, to be paid in four payments, as follows: $166 on May 1, 1818; $100 on May 1, 1819.; $89 on May 1, 1820; $275 on May 1, 1821.

ERROR, to the court of common pleas of Franklin county. Reserved in the district court. The original action was brought in the court of common pleas by Gill against Miner, as sheriff, for an escape.

<p>A creditor pursuing equitable assets of his debtor, obtains preference, except in cases under the statuto relating to assignment.</p>

<p>A person indicted for having in his possession a counterfeit bank note, for the purpose of selling, bartering, or disposing of the same, can not be convicted, by proof, of having in possession such note, with intent to pass the same to an innocentporson as true and genuine.</p> <p>Sections 22, 29, and 32 of tho act for the punishment of crime respecting counterfeit bank notes, are different and distinct offenses, and proof of tlio one will not support an indictment for either of the others.</p> <p>Vanvalkenburg v. The State, reported in 11 Ohio, 404, is’affirmed.</p>

This is a writ of error to the court of common pleas of Jefferson county. The action below was assumpsit. The declaration contained two counts. In the first count, the plaintiffs in error were declared against as indorsers of a promissory note for $3,000, made by one Daniel Swearingen, payable at the Bank of Pittsburg, in Pittsburg bank paper, or eastern funds. The second count was in the common form for money lent.

Eeror to the district court of Lucas county. The material facts in this case are as follows : On the 15th of December, 1858, Simeon Fitch and Esther M. Fitch, his wife, executed to Valentine H. Ketcham a mortgage upon certain lands of the wife in the city of Toledo, to secure the payment of their joint note in three years from date, for the sum of six thousand dollars, with interest at the rate of ten per cent, per annum, payable annually.

This is a writ of error to the court of common pleas of Lake county. Tho judgment sought to be reversed was in an action of debt, founded on the certified transcript of a judgment by a justice of the peace, in the State of Michigan.

' The defendants in error, plaintiffs below, in February, 1860, filed a petition, in their- firm name, in the court of common pleas of Wood county, against the plaintiffs in error, defendants below, Collister Haskins, Jesse L. Roller, and Whitcomb Haskins, setting forth that, at the previous October term of said court, the defendants in error, being a firm doing business under the name of Alcott & Horton, (but without averring that said firm was formed for or doing business…

Ebrob, to tbe court of common pleas of Fairfield county. Reserved in the district court. January 20,1859, Richards sued Carper before a justice of the peace for $185, for services.

This is a bill in chancery from Logan county, the object of which is to establish priorities of lien, and have distribution of the proceeds of a master’s sale of mortgaged premises. From the papers in the case, these facts appear: James M. Workman, prior to the year 1838, owned in fee .simple the northwest quarter of section 35, township 3, range 14, subject to a mortgage of §400, made to the Ohio Life Insurance and Trust Company.

Lybrand, the defendant in error, brought suit, in the court of common pleas of Delaware county, in July, 1859, against J. B. Stoutenburg as the maker, and J. C. Evans as the in-dorser, of a promissory note, for one hundred and’ twenty-five dollars, dated April 22, 1857, and payable, with interest from date, to Jane Stoutenburg, or order, on or before the 22d day of April, 1859.

This is a motion to set aside a nonsuit, from the county of Franklin. The action was assumpsit.

The original action was brought by Iliff against the raiL road company in the court of common pleas of Perry county. The petition contains two counts.

In chancery from Hamilton county. Bill and cross-bill reserved to determine a question of appropriation of moneys made by a sale of mortgaged premises. The case is stated in the opinion of the court.

• This is a bill of interpleader from Muskingum county, filed by the commissioner of insolvents, against Malinda *Cooksey, a creditor of Morgan, an insolvent debtor, and James, his assignee in bankruptcy. The facts stated in the bill, are these: On March 15,1842, Morgan applied for the benefit of the insolvent act, and made an assignment of his effects to the commissioner.

<p>Where a plaintiff appellant does not recover more in the Supreme Court than he did in the common pleas, judgment must go against him for costs.</p>

<p>Application for a writ of error in term time must he made in court, and its allowance entered upon the minutes.</p>

This is a writ of error to the court of common pleas of Harri-son county.

This was an action brought by Pressler, in the court of common pleas of Hamilton county, against the steamboat Messenger, to recover for an assault and battery, committed by the mate of the boat upon him.

This is an'action of ejectment from Cuyahoga county. The facts of the case are as follows : Ezekiel Folsom, of Ohio City, executed to the lessor of the plaintiff, a certain mortgage deed of the promises in controversy, on February 21, 1835.

.The defendant in error filed bis petition, in said superior court, against tbe plaintiffs in error and one William M. Seely, setting forth the rendition of a decree in tbe Montgomery common pleas, in 1849, against said Seely, and in favor of said Clyne, for $1191.05 and costs of suit, and a revival of that decree, in 1856, in the name of said administrator; that Seely bas no property subject to levy, but that, during tbe pendency of said first suit, be was tbe owner of lot…

This is a writ of error to the court of common pleas of Hamilton county. The point on which the case was decided will appear in tho opinion of the court.

This is an action of debt, reserved from Hamilton county for decision in bank.

<p>Where a party presented his hill of exceptions for allowance, and also filed a motion for a new trial in the case during the trial term, and suffered his application and motion to he continued to the next term of court without objection, he thereby lost the benefit of his application for the allowance.</p>

<p>A bill in chancery was filed by H., charging that he was the equitable owner of certain premises, to which I. had been permitted to acquire the legal title, utíder an agreement between the parties that I. should hold the legal title - merely as a security for the repayment of moneys advanced by I. for the use-of H.</p> <p>The case remained pending for several years, when a final decree was rendered’ for complainant, finding the facts to be as charged by the bill, and ascertaining the amount of the debt due from H. to I., including interest thereon till the time of decree, and ordering a conveyance of the legal title to H. upon the payment of the sum so found due.</p> <p>Afterward, H. commenced an action against the administrator of the estate of I. (who was then dead), by petition under the code, stating the foregoing facts, and alleging that during the pendency of the suit in chancery, H. had entered, under his legal title, upon the premises; had used and occupied the' same till the date of said decree; had cut down and appropriated timber therefrom, and permitted waste upon the premises; and seeking to recovor for such' rents and profitB, etc., accruing during the pendency of the proceedings in chancery.</p> <p>/Upon demurrer to this petition, as not stating facts sufficient to constitute a cause of action : Held, that these causes of action were the proper and necessary subjects of adjudication in the chancery suit, and should have been brought to the notice of the court, in that case, by supplemental bill, or otherwise. That this will be presumed to have been done, or that the plaintiff waived his right to do so, and that the petition, therefore, shows these causes of action to be res adjudicator,</p>

<p>Civil Action. Reserved in the district court of Fair-field county.</p> <p>On the 11th October, 1844, Jacob Huber made his will, in which he bequeathed to his son, Martin Huber, an equal share of his estate. The testator, Jacob, survived his son Martin, who died May 26, 1846, and on April 16, 1847, made.this codicil to his will: •</p> <p>“ My son Martin, having departed this life since I made my said will, leaving a widow and children, I do declare, will and direct that the said children of Martin shall succeed ta the distributive share which would otherwise have accrued to said Martin, in case he had survived me. Provided, however, that the interest of one third part of said share shall be paid annually to the widow of said Martin, during her natural life, the principal of said one third part to be distributed to the children, or their heirs, of said Martin, after the death of his said widow. And to the end, that the interest may be raised on said one third, for said widow, and the principal be secured, I do direct that my executors, when the money shall come into their hands, shall loan the same upon bond and mortgage on real estate, and the interest to be paid annually. The money which is to accrue to said children of Martin,, shall be paid to them as they become of age; and, until that time, shall be loaned on bond and mortgage as aforesaid, except such part as may be necessary for their support.”</p> <p>The children of Martin Huber, mentioned in this codicil, were David and Levi, then living; and their mother, the widow of said Martin, is the present plaintiff, Sarah Taylor, since intermarried with her co-plaintiff, Levi Taylor.</p> <p>The testator, Jacob Huber, died in April, 1849. His will, with the codicil thereto, was admitted to probate, and letters testamentary were granted to the executors, the present defendants, in May, 1849</p> <p>After the death of the testator, David and Levi, the children of Martin Huber, both died intestate, minors, free of debt, unmarried, and without children, leaving no brothers or sisters of the whole or half blood. David died first.</p> <p>The plaintiffs, Sarah Taylor and Levi Taylor, her present husband, filed their petition against the executors of said testator, in the court of common pleas of Fairfield county, stating the foregoing facts; whereby they claim that the said Sarah, the mother of the deceased children of Martin Huber, as their heir at law, became entitled to succeed to their property and estate, and to demand and receive from said execu tors, by virtue of said codicil to the will of said Jacob Huber, the principal of the one third of the distributive share directed in said codicil to be distributed “ to the children, or their heirs, of said Martin, after the death of his said widow, ” the said Sarah,being one third of $3624.80, or $1208.27, the .executors having paid to1 her the other two thirds.</p> <p>The petition further states, that the executors have invested said'Sum of $1208.27, or put the same at interest, for a long period of years; and the plaintiffs demand judgment against the executors for said sum, with interest from the date of the last payment of interest; but if the executors are not bound personally to pay said sum, that then they be decreed to assign to said Sarah all notes, bonds, mortgages, etc., they may hold for the payment of said sum, to her sole and separate use, etc.</p> <p>The petition further states, that on January 19, 1860, James A. Bope was appointed administrator of the estate of said children, David and Levi, and claims as such an interest in said $1208.27, adverse to the plaintiffs. He is made a defendant, and with a prayer that he be required to answer, and be restrained from collecting or interfering with said sum.</p> <p>As a second cause of action, the petition alleges the nonpayment of interest on the $1208.27 for several years, of which an account is prayed, and judgment for the amount.</p> <p>To so much of the petition as seeks a recovery of the-principal of the one third of the legacy given by the codicil ito the children of- Martin Huber, deceased, the executors of tbe will demur, on tbe ground that tbe facts stated do not ■constitute a cause of action.</p> <p>To tbe second cause of action, said executors answer, admitting a balance of $46.35, on interest, on said $1208.27, due April 4, 1859, and offer to pay the plaintiffs that sum.</p> <p>Bope, as tbe administrator of Martin Huber’s deceased Children, answers, claiming title and right to the fund, and prays judgment for tbe same against his co-defendants, the executors of Jacob Huber, or for tbe securities evidencing it-s investment.</p> <p>The executors demur to Bope’s answer, on tbe ground that it shows no cause of action against them.</p> <p>Tbe cause was taken to the district court by appeal, by tbe executors, from a judgment against them in tbe common pleas.</p> <p>The district court reserved tbe case to this court- for decision.</p>

<p>1. Under the act of 12th April, 1858 (55 Ohio L. 128), a partnership, engaged in the business of banking, was liable as such to the tax imposed by that act.</p> <p>2. If the assessor failed to call for the statement of the average value of notes and bills discounted, etc., required by that act, the county auditor was au-, thorized to take the steps requisite to obtain the statement and assess the tax.</p>

This was a writ of error, brought by Seymour Gr. Ronick, to reverse a judgment against him in favor of the Bank of West Union. The suit below was pending on January 1,1843, at the time the charter of the bank expired, but was continued and prosecuted to final judgment under section 3 of the act of March 10, 1843, 41 Ohio L. 52, which is as follows: . “ Sec. 3.

<p>ERROR to the district court of Portage county.</p> <p>The case is stated in the opinion of the court.</p>

This is a bill in chancery from Champaign county, for an account, and to settle up the affairs of a stage company. The state of facts and points, so far as they are at present ■ascertained and determined, are stated in the opinion of the •court.

Civil action. Reserved in- tbe district court of Eayette .county. This is a proceeding by attaching creditors of ope Martin L. Carr, a defendant, to subject his alleged interest in eighty-six acres of land in Eayette county to the satisfaction of their judgments. The facts are, in substance, as follows: In January, 1844, one George Washington being the owner of the land wished to sell it.

This case was reserved from Logan county to determine questions arising upon an assessment for improvements under the occupying claimant law. The facts were agreed as follows: It is agreed that the defendant purchased the lands recovered in the action of ejectment from Samuel Newell, as agent of Bur-net and Spencer, in March, 1820, and paid $217, took a title bond and wont into possession, and has occupied it ever since.

MaNDAmus to compel township trustees to levy a tax to pay interest on township bonds. The Springfield and Mansfield Railroad Company was incorporated by the act of March 21, 1850 (48 O. L. 294). Held: and twenty months before the bonds in question were issued.

This was an application to the Supreme Court of Guernsey-county, for a writ of error. The case is reported from the judge’s minutes.

This is an action on the case reserved from Trumbull county. ■ Tho declaration has three counts. To the first tho defendant demurs; and to the second and third counts, pleads non assumpsit.

The plaintiff in error, at the October term, 1861, of the court of common pleas of Trumbull county, was indicted for the perpetration of a rape upon one Sarah Helme, and at the same.term was tried and convicted for the crime, and sentenced to the penitentiary for a term of years.

This is a writ of certiorari to the superior court of Cincinnati. *The record presents the following state of facts: Matthias Roosa, at the October term, 1842, of the superior court of Cincinnati, recovered a judgment against Telomachus B. Coffin, on which, before the end of that term, execution was issued and levied on the land of the defendant, held by lease, for the term of ninety-nine years, renewable forever. Henry Rockey, also, and C. G-.

In May, 1857, Hughes contracted with the local school directors of subdistrict No. 3, in Madison township, Guernsey county, to build a school house by the first of. the next November, for $400, if built on the old ground, or for $385, if the site should be changed to level ground. The board of education of the township, by resolution, directed the local directors to proceed to select a site and erect a school house, according to the contract.

of Franklin county. The petition of Hibbs, the plaintiff in the action, in the court of common pleas of Franklin county, stated, that some time in the month of November, 1851, the defendant, Kelsey, then having in his possession a certain draft for $900, drawn by A. J. Smith, and dated at Newark, Ohio, November 8, 1851, upon Delano, Dunlevy & Co., of New York, and payable to the order of A. M. Hale, on 6 — 9 January, next after the date of said draft, called upon the…

Reserved in the district court. The original proceeding was instituted by the plaintiffs in error against the defendants in error, in tho court of common pleas of Monroe county, to set asido tho will of William Thompson, on the ground that when he made it he was not of sound mind, and so not capable of making a will. The will contains separate and distinct devises and bequests.

H. L. Hurlbut agreed with John H. Foster to loan him $500 for at least ten days, on a note for that sum and interest at the rate of ten per cent., the note to be payable on ten days’ notice, and to be signed by Foster as principal, and the defendant, Brown, as surety. Foster and. Hurlbut resided in Norwalk. Brown resided in Ridgefield.

This was a motion for a new trial, from Belmont county. It is an action on the case for slander, tried to a jury on the last circuit of the Supreme Court, in the county of Belmont. A verdict was rendered for the plaintiff, for $850 damages, and reserved here for decision, on a motion, filed by the defendant, Pitman, for a new trial. The reasons alleged for the motion are: 1. That the damages are excessive. 2.

This is a bill in chancery, from Franklin county. The bill, amendment, and supplemental bill present this'ease: One William Price lived in Richmond, Virginia, and died there in 1808.

Tbe action in tbe common pleas was brought Frebruary 18, 1854, by Prentice and Maddocks against tbe Cleveland and Toledo Railroad Company, for tbe recovery of a piece of land one hundred feet in width across lot 15, in river tract 87, in Lucas county. Prior to October 25, 1852, one Robert Piatt owned tbe whole of said lot 15, and on that day conveyed the same to Prentice and Maddocks.

Ereor to the district court of Pickaway county. In August, 1855, Elijah P. Taylor filed a petition in the court of common pleas of Pickaway county, against Joseph Bonner, H. B. Richey, and the plaintiffs in error, setting forth that said Bonner, on November 4, 1889, was appointed guardian of said plaintiff, then only five years old, executed .a guardian’s bond, in due form, with H. B. Richey and the ancestor of plaintiffs in error as bis sureties, and thereupon assumed the…

The following transcript was filed in the court of common pleas : “ At a meeting of the commissioners in and for the county of Geauga, held at the court house in Chardon, on the 6th day of December, 1858, being the first Monday of said month, the following .appropriation was made, December 9, 1858: To A. H. Thrasher and R. P. Ranney, for their professionál services as attorneys, and expenses and liabilities (physician’s bills included), alleged to have been made or incurred…

<p>Error to the court of common pleas of Darke county. Reserved in the district court.</p> <p>The original action was brought January 27, 1857, by the present plaintiff in error, against the defendant in error before a justice of the peace of Darke county, and thence appealed to the common pleas, where the case was disposed of on demurrer to petition.</p> <p>Tbe petition filed in the common pleas February 11,1858, .reads as follows :</p> <p>“ This cause comes here by appeal;, and the plaintiff says that, on or about the-day of --, A. D. 1849, it became chartered by the legislature of the State of Ohio, by the name aforesaid; that afterward, having received subscriptions of stock to the amount of $10,000, as required by charter, it became organized on the third day of January, 1852; by the election of directors and other officers, and proceeded to thcconstruction of the road from Palestine, Darke county, Ohio, toward New Westville, in Preble county, Ohio; that the said plaintiff continued to progress with the work until the month of June, 1854, by which time it had expended all the money collected from stockholders, and had also incurred a large bona fide indebtedness, which was, at that time, actually expended and invested in the construction of said road, and the same was incomplete between said town of Palestine and New Paris; that the board of directors, being unable to progress without means, and being anxious to complete the road between the two points last mentioned, determined to avail the company of the provisions of the act of May 3, 1862, authorizing turnpike and plank-road companies to issue the bonds of such companies to the amount, including such indebtedness, of one half of the capital stock actually paid in, and expended in the construction of said road, said bonds to be issued under certain Restrictions contained in, or prescribed by, said act.</p> <p>“Plaintiff further says, that the said board of directors, afterward, on the 25th day of June, 1854, at a meeting of the board, made an exhibit and statement, showing that the amount of stock subscribed and paid in, and expended in the construction of said road, including the bona fide indebtedness of the company incurred in constructing said road, amounted to about $13,899.52; that, upon such showing being made, the said board of directors, on the same 26th day of June, 1854, by resolution passed at said meeting, determined to issue the bonds of the company to the amount of $6000, in bonds not less than $100 each, to be paid in twenty four months from date, with ten per cent, interest; which bonds were issued accordingly, and sold to diverse persons, and the proceeds applied to the discharge of said bona fide in-debtness of the company, and the completion of the road between Palestine and New Paris, aforesaid, and by means oi which, the said road was completed between the said points, gates for the collection of toll established, but, after expending the amount so received for bonds, and the additional amounts received for the stock subscribed, it still left the company indebted to a considerable amount.</p> <p>u Plaintiff further says, that after said bonds had become due, the said company was unable to meet and pay the same, and at a meeting of the board of directors of said company, held on the 26th day of August, 1856, it was resolved that, the stockholders of said company be notified to convene at Braf-fetsville, Darke county, Ohio, on the line of said road, on the 4th day of October, 1856, for the purpose of having submitted to them a detailed statement showing the assets and indebtedness of the said company, and determining upon a basis for assessing shareholders, to meet the indebtedness of the company, and fixing the time or times and mode for the payment of the amounts assessed against each individual or corpora* tion, as required by the act of April 8, 1856. That, in pursuance of the said resolution, more than thirty days’ previous notice was given by publication of the time and place of such meeting in the Greenville Journal, Darke County Democrat, Eaton Democrat and the Eaton Register, being all the newspapers published in Darke and Preble counties, in which the road is located. That in pursuance of such notice, there was a meeting of the stockholders held at the time and place above stated, at which meeting there was exhibited to said stockholders a detailed statement, showing the assets and stock of the company to be $13,086.40, and the indebtedness (including interest) of the company to be $12,975.56. That upon such statement being read, exhibited to the stockholders there assembled, on motion, the following resolution was adopted unanimously by the stockholders :</p> <p>“ Resolved, That the stockholders of the Palestine, Braf- • fetsville, New Paris and New Westville Turnpike Road Company, do hereby establish, as a basis for assessing the stockholders to meet the indebtedness of the said company, and fix the times following for the payment of the amount assessed against each individual stockholder, as follows : that is to say, twenty per cent, on the capital stock by us owned' at the time such indebtedness was created, to be paid to the treasurer of said company on or before the first day of December, 1856; and the like sum of twenty per 'cent, every sixty days thereafter, until the sum collected shall be equal to the capital stock by us owned as aforesaid, if so much be necessary for the payment of swell indebtedness, provided the amount assessed against us respectively, is not to exceed the amount of the capital stock so owned by us as aforesaid; and that thirty days’ notice of the time of payment be given in the same manner as was required by law for the collection of the original capital stock subscribed to said company.”</p> <p>“ That in pursuance of said resolution, notice was published for more than thirty days previous to the first day of December, 1856, in the Eaton Register, and Darke County Democrat, notifying and requesting the stockholders to pay such assessments, in conformity with the above resolution, which assessments, the plaintiff says’it had the right to make and collect under the1 said charter, and laws of the state.</p> <p>“ The plaintiff further says, that the said William Wooden, was one of the original stockholders in said road, and a member at the time of the organization thereof; that at the time the said indebtedness of the company was created, the said Wooden was the owner of twelve shares of the capital stock of said company, amounting in the aggregate to $300. That after the time for the payment of the first assessment of twenty per cent, had elapsed, to-wit: December the 1st, the plaintiff, by its agent, demanded -payment of the said sum of twenty per cent., being in the aggregate $60, of and from the said Wooden, which the said Wooden refused to pay.</p> <p>“ Wherefore a right of action accrued in favor of the plaintiff and against the defendant, for the said sum of $60,' with interest from December 1,1856,” for which judgment is asked.</p> <p>The defendant demurred to this petition, on the alleged grounds:</p> <p>1st. That it appears from the petition that the plaintiff has no legal capacity to sue in this action.</p> <p>2d. That it appears from the said petition, that the bondholders to whom the bonds referred to in the petition were sold, should be made parties plaintiff in this action.</p> <p>3d. That the petition does not state facts sufficient to constitute a cause of action.</p> <p>This demurrer was sustained by the common pleas, at its July term, 1858, and judgment entered against the plaintiff, for costs. The plaintiff excepted, and to reverse this judgment of the common plea^ filed a petition in error in the district court of Darke county, insisting that the common pleas erred in sustaining the demurrer and rendering judgment against the plaintiff.</p> <p>At its May term, 1859, the district court reserved the cause to this court for decision.</p> <p>The petition certainly might have been made more specific, and it might not have stood against a motion to make it so. But we claim it shows a substantial right of action, and that the demurrer should have been overruled. In the absence of any certain information, we suppose the validity of this legislation, as against the defendant, is intended to be denied; and that this is the only question in the case.</p> <p>With a view to previous decisions of this court, it need not be denied, that this corporation could have been organized after the adoption of the present constitution, without subjecting the shareholders to private liability. The act of 1852, when adopted by the corporation, and acted upon, operated an amendment of its original charter, and extended its powers. Where an amendment of this character is proffered to an existing coporation, it is settled that tbe shareholders are'bound by an acceptance, or any conduct amounting to an acceptance, on the part of the directors. Ang. & Ames on Corp., sec. 84; 'Lin. Ken. Bank v. Richardson, 1 Greenl. Rep. 70. And this, upon the principle that the directors are constituted the lawful and competent agents of the stock holders for this purpose. And when an amendment is thus accepted, it must be taken as it is offered, and without condition. There can be no partial acceptance. Ang. & Ames on Corp., sec. 85. Green v. Seymour, 8 Sand. Ch. 285; Rex y. Cambridge, 3 Buss. 1656.</p> <p>It is true, it is not expressly averred in the petition, that the defendant assented to the amendment and to the issue of the bonds, under it; but he is presumed to have done so, and no such averment was necessary. In Martin v. Pensacola, etc., R. R., 8 Florida Rep. 370, after a very thorough examination of the whole subject, it was expressly held that “to constitute this a good defense, the defendant must show affirmatively that he dissented from such an alteration in a reasonable time, before any debts had been contracted, or rights had accrued to third parties, under such alteration; and it is not incumbent upon the corporation to show his assent in order to be able to maintain his action.”</p> <p>The whole subject is also very ably examined in the case of Zábrishie v. C. C. C. R. R. Co.; 23 How. U. S. R. 381. In that case, the corporation had exercised powers in the guaranty of bonds which required the express previous consent of the stockholders; and yet, without such consent, the bonds were sustained, and the court expressly held that “ a corporation can not, by their representations or silence, involve others in onerous engagements, and then defeat the calculations and claims their own conduct has superinduced.” The whole body of the stockholders, under the provisions of the act of 1856, were called upon to act in fixing the basis of the assessment, and the averment is that they did act. If the stockholders did act, the defendent as one of them acted, and in the absence of any showing tó the contrary, he is presumed to have done so. It may not be” doubtful that the defendant, by acting promptly, might have enjoined the corporation from exercising these powers; but our point is, that he could not lie by and interpose no obstacle to the circulation and sale of these bonds, and then repudiate the liability which the law had imposed upon him.</p> <p>1. The petition fails to show that the charter, under which the company organized and exercised its franchise, and under which the defendant subscribed his stock, provided for any individual liability of the stockholders, or that the legislature reserved any right subsequently to alter or amend the same.</p> <p>2. The act of May 3, 1852, “ defining the powers of plank and turnpike road companies,” being passed subsequent to the granting of the charter and organizing of the company, and of the subscription of the defendant, of his stock, can not have the effect of making the stockholders subject to its provisions, unless the same was duly accepted by them as an amendment to the charter, or, at least, unless it be shown that the stockholder or stockholders sought to be held, affirmatively assented to the issue of the bonds provided for by said act.</p> <p>3. The petition shows that the stockholders have been assessed to pay the general total indebtedness of the company, existing on October 4, 1856; amounting to $12,975.56, which amount largely exceeds the amount that was then due upon the class of bonds issued by the company on the 26th June, 1854, for the payment of which the 2d section of the act of 1852, declares the stockholders individually liable, whereupon the assessment is excessive, illegal and void.</p> <p>4. The act of April 8, 1856, does not attempt to create or extend the individual liability of the stockholders in turnpike and plankroad companies, and hence does not aid the company, or assist it in assessing the stockholders for an amount “ beyond the sum fixed by the charter of the companynor does it attempt to extend the liability supposed to have vested under the act of 1852.</p> <p>5. The said act of 1856 has no reference to companies-issuing bonds under the act of 1852, and hence no authority exists for the assessing the stockholders in this company, at all.</p> <p>6. The bondholders are the only parties who can resort to the personal estate of the stockholders for the payment of the bonds issued under the act of 1852; and they can not do so, until after exhausting the corporate assets and franchises subject to execution.</p> <p>7. The bonds issued under the act of 1852, are void, because they were not limited to the proper object and amount* and they were made to bear a greater rate of interest than was provided by law, for turnpike and plankroad companies.</p> <p>8. The act of 1852, if construed to authorize the directors, without an acceptance of the act by the stockholders, or their assent, to the issue of the bonds authorized by said act, and thereby bind them individually for their payment, is unconstitutional and void.</p>

This is a writ of error, to the common pleas of Scioto county, made returnable to the Supreme Court in bank. The plaintiff in error was indicted, tried, and convicted, at the October term of said court of common pleas, 1844, fir burglary, and sentenced to imprisonment in the penitentiary. The indictment contains two counts. On the second, however, the plaintiff was acquitted ; and the first, therefore, is only called in question.

Reserved in the district court. The original action was brought by Beebe against Soheidt and others, before a justice of the peace, and was in the na ture of an action of trespass. Upon appeal to the court of common pleas, the plaintiff filed a petition charging the defendants with unlawfully trespassing upon his land.

In chancery from Licking county. The original bill was filed October 4, 1838, by the widow and heirs at law of Leonard Kelley, to redeem a mortgage giveij ^by him to William Stanbery, for 250 acres of land ; also, to obtain title to the land, and compensation for rents and profits, ■of which they have been wrongfully deprived.

<p>1. A mortgage of real estate is regarded, in equity, as a mere security for the performance of its condition of defeasance, and where that condition is tho payment of a debt, the security is regarded as an incident of the debt, which, by the legal transfer of the debt, passes with it to the assignee.’</p> <p>2. So, if several promissory notes are jointly secured by mortgage, the assignee of one of the notes so secured, becomes equitably entitled lo a pro rata participation in the benefit of the security, unless the agreement of the parties to the assignment be otherwise.</p> <p>3. But, where ¿he mortgagee, retaining the legal interest in the mortgage, subsequently enters satisfaction a.:d a discharge upon the record of tho mortgage, such discharge operates to cancel the record of the mortgage, as against subsequent purchasers and mortgagees in good faith, and without notice $ and as against‘them, the assignee of tho note can not assert his equitably Hen. 1</p>

Reserved in tlie district court of Ross county. Parker J. Gardner died without issue on the 1st of July, 1851, leaving his last will and testament, in which, after providing for the payment of certain legacies therein named, the testator, by the 5th item, provides as follows: “ I give, devise and bequeath to my beloved wife, Elizabeth Gardner, for and in lieu of her dower right in and to my estate, all the residue of my personal property, money, rights and credits, goods and…

This is an action of debt, on an appeal bond, from the county of Huron. It was agreed that if, on the facts in the case, the court should be of opinion that the plaintiff is entitled to recover, judgment should be entered for him ; but if not so entitled, judgment of non-suit to bo entered. *The state of the case will be found in the opinion of the court.

This is a bill and cross-bill in chancery, from Erie county.

<p>Bill oí Review. Reserved in the district court of Hamilton county.</p> <p>This bill of review was filed June 29, 1847, in the court of common pleas of Hamilton county, by certain heirs and descendants of heirs of Timothy Trimble, deceased, against Nicholas Longworth, the heirs of James King and of Nathaniel P. Hill, who were also heirs of Timothy Trimble, deceased, and the surviving husbands of Elizabeth Hunter and Sarah Comfort, also heirs of said Timothy Trimble. The bill seeks to review and reverse a decree against the heirs of said Timothy Trimble, rendered in said court of common pleas, in February, 1836, upon bill filed by Long-worth, June 30, 1835, charging, in substance, that Thomas McNeal, Nathaniel P. Hill and James King, by Ralph Phillips, their attorney, on or about 7th January, 1813, by deed of that date, intended to convey to him in fee section 15, in township 3, and 2d fractional range, in the Miami purchase of 640 acres, except the forfeit of one sixth part, agreeable to the terms of settlement, as appears from the deed recorded in book K, page 453, of Hamilton county records, under a power of attorney, dated 16th September, 1812, and recorded in book F, No. 3, page 108, of said records, for full value paid by him, and that immediately thereafter he took possession, and had since, by himself and those under him, held the peaceable occupancy thereof, and never heard the title questioned until then recently, nor was he aware of any defects. That said property had been conveyed by Silas Condict, jr., to said McNeal and Timothy Trimble, by deed of 8th May, 1806, recorded in book R, No. 2, page 245, of said records, and they went into possession and held until the death of said Trimble, in 1810, who died seized of the undivided half thereof, leaving his brothers and sisters, John Trimble, Alexander Trimble, Jane King, Elizabeth Hunter, Sarah Comfort, Isabella Hill, and Sarah Rog (Roy), sole heir of William Trimble, deceased, his heirs at law; and that they had, by power of attorney, empowered the said Nathaniel P. Hill and James King, who administered upon the estate of the said Timothy Trimble, to sell said premises; and that,, in pursuance of this power, they had authorized Ralph Phillips to sell the same, but by mistake they omitted to make the power of attorney to Phillips in the names of the said heirs of Timothy Trimble, deceased; and that through them the said heirs had long since received the purchase money so paid for said property. But that, notwithstanding said sale, the payment of said purchase money, its reception by said heirs, the deed and possession under it for more than twenty years, yet owing to said Hill and King as attorneys in fact for said heirs, by mistake in the power of attorney to said Phillips, not executing the same in the names of the said heirs, and owing to some technicality of which he was not advised, the said heirs, who are made defendants to said bill,, and who were nonresidents of the State of Ohio, were not precluded at law from the possession and enjoyment of the-undivided half of said premises, which w’as contrary to equity;, wherefore he prayed that the defendants might be compelled to answer under oath, and his title quieted, and for general relief.</p> <p>On 80th June, 1835, subpena issued to the sheriff of said county, returnable on 5th October next ensuing, and was returned “ not found.”</p> <p>On 2d July, 1835, it was shown that the defendants were nonresidents of the State of Ohio, and the court ordered notice of the pendency, objects and prayer of said bill to be given to them by publication weekly, for six successive weeks, in some newspaper published and of general circulation in said county, and a copy of the paper containing the notice to be directed to the place of residence of the defendants, if known.</p> <p>On 7th October, 1835, pi;oof of publication was made, by producing in court a copy of the published notice, and filing therewith the affidavit of S. S. L’Hommedieu, one of the proprietors of the Cincinnati Gazette, a newspaper printed in Hamilton county, and in general circulation therein, that the notice had been published six consecutive weeks in said newspaper, next preceding the 14th day of August, 1835.</p> <p>With said notice and the proof of its publication, tbe affidavit of A. N. Riddle was filed, and which reads as follows:</p> <p>“ State of Ohio, HamiltoN Co.üNty, ss.</p> <p>“Adam N. Riddle, being duly .sworn, deposeth and saith that the Cincinnati Gazette, the same paper in which the above notice was inserted, was by said deponent transmitted by mail to Nathaniel P. Hill and others, defendants in said case, to Montgomery, Orange county, New York, on the 11th July, A. D. 1835; further, deponent saith not.</p> <p>“ Sworn to and subscribed before me, this 7th day of October, 1835. “ JOHN BüRGOYNE, A. J.</p> <p>On 7th October, 1835, is the following entry on the journal: “ Due proof of the publication of the pendency of this cause being now filed, thereupon rule for answer in sixty days, and cause continued.”</p> <p>On 10th February, 1836, decree nisi was filed, and bill taken as confessed, under the rules of court.</p> <p>On 24th February, 1836, the decree was entered upon the journal of the court. It finds the cause was heard “upon the bill, exhibits and testimony;” and “the court find that all the defendants are nonresidents of the State of Ohio; that notice has been given them, by publication in due form of law, prior to the October term of this court, 1835, and all the said defendants having failed to answer, or in any way respond to the bill according to law and the rules of this •court, it is ordered that the bill be taken as confessed.” “And the court, having examined the proof in the cause, are satisfied, from the evidence, that the complainant has the •right in equity to the land in question, and that he ought to >be quieted in the title thereto.” . It was ordered, adjudged and decreed that the defendants, naming them, within ten ■days from the day of entering said decree, execute, acknowledge and deliver to Mr. Longworth and his heirs, in fee •simple, a deed of quit-claim of all their right, title and interest as heirs at law of the said Timothy Trimble to said land, describing it. It finds said land belonged to Timothy Trimble, who died without issue, leaving the defendants his heirs at law, and that they had sold the same to the complainant, received the purchase money, and put him in possession; and thereupon the court further decreed a perpetual injunction against said defendants, with costs, etc.</p> <p>The said bill of review avers that Nathaniel H. Fowler and Isabella Hill were minors on February 24, 1836 (not true as to Nathaniel H. Fowler, who appears to have been born in 1813), when decree was entered, but does not say they so continued until within five years before said bill of review was filed on 29th June, 1847. It claims that the proceedings and decree should be set aside, because:</p> <p>1. It decreed the land to Longworth without pay.</p> <p>2. The bill shows no case for relief in equity.</p> <p>3. There was no mistake, as alleged in said bill.</p> <p>4. The decree gave to Longworth a title he never purchased.</p> <p>5. No such purchase was made under said power of attorney to said Hill and King.</p> <p>6. The charge in the bill that the purchase money was paid, is not sustained.</p> <p>7. It was taken as confessed, when defendants were ignorant of it.</p> <p>8. The order as to notice was not complied with. It was not sent to defendants, nor did it state the prayer of the bill correctly.</p> <p>9.Isabella Hill and Nathaniel Fowler, were minors.</p> <p>10. Mrs. Hunter and Mrs. Comfort were married.</p> <p>11. The decree was surreptitiously taken without being set down for hearing, under rule 59.</p> <p>12. The deed and power of attorney not made exhibits to bill.</p> <p>13. The decree was entered without proof.</p> <p>14. No proof or exhibits shown to the court.</p> <p>On 10th August, 1847, the answer of Mr. Longworth was filed. It'denies the fraud charged, sets up the original decree, denies the errors charged, and insists on the lapse of time, etc.</p> <p>On October 29, 1847, replication was filed.</p> <p>The testimony establishes the heirship of the complainants in review, and that they never received the paper containing the printed notice mentioned in the affidavit of Eiddle ; and that they did not, until long after the original decree, and shortly before they filed their bill of review, know that they had any property in Ohio; and that Isabella Young, one of the- complainants in review, died January 4, 1848, leaving John S. Young, Elizabeth Young, Adeline E. Young, Isabella B. Young, Mary Young, Jane 0. Young, Sarah E. Young and Andrew Young, her heirs at law.</p>

Appeal. Reserved in the district court of Adams county. This was a petition for partition of certain land. The petitioners, among others, were heirs at law of Andrew Boyd, deceased, to whose heirs a patent issued for the land.

These are writs of error to the court of common pleas of the •county of Hamilton.

In CHANCERY. — Reserved in the district court of Franklin county.

<p>ERROR to the district of Lorain county.</p> <p>In December, 1859, Alpheus D. Smith filed a complaint, before a justice of the peace in Lorain county, against John J. Whitbeck and Horatio N. Whitbeck, for the unlawful and forcible entry and detention of a tavern stand, at Grafton station, in that county.</p> <p>Summons was served on John J. Whitbeck, but was returned “ not found ” as to Horatio N. Whitbeck.</p> <p>January 24,1860, the cause was tried before the justice, to a jury; and the plaintiff, Smith, to maintain the issue on his part, offered in evidence a lease between himself and Horatio N. Whitbeck, made April 15,1859. The material parts of the lease read as follows :</p> <p>‘‘ The said Horatio N. Whitbeck, in consideration of the stipulations and agreements hereinafter mentioned, does agree and does hereby let and rent to the said A. D. Smith, for the term of three years from this date, the tavern stand commonly known as the National Hotel, at Grafton station, Lorain county, Ohio, lately occupied by John J. Whitbeck, together with all the household furniture, etc., * * * * together with the barns and outbuildings, and all the appurtenances of the said tavern stand.</p> <p>“ The said Horatio N. Whitbeck hereby agrees to make all needful and necessary repairs upon the house, etc.; put the house in good repair and condition; and all the wells and cisterns, and every part of the premises to be in good repair. These repairs to be done in one month from the date hereof. Also, to inclose, by suitable fence, a portion of the land now lying at commons between the house and railroad.</p> <p>“ And the said A. D. Smith, in consideration of the strict performance of the conditions foregoing, does hereby agree to pay the said II. N. Whitbeck the yearly rent of four hundred dollars, to be paid quarterly, in advance, subject, however, to this condition : Should the said Whitbeck sell the said premises before the expiration of this lease, the said Smith agrees to give up possession of the said premises at the end of any one of the three years, upon receiving from the said Whitbeck three months’ previous notice, in writing, of such sale.</p> <p>“ The said Smith further agrees to keep the said house in a proper manner, and to take proper care of the premises and appurtenances; and, at the expiration of this lease, surrender up to the said Whitbeck or assigns peaceable possession of the said premises, in as good condition as they shall be put in by said Whitbeck, the ordinary wear and decay and casualties excepted, etc.</p> <p>“ The said Smith is not to underlet or rent the premises to any other person, without first obtaining the written consent of the said H. N. Whitbeck to such underletting.</p> <p>“ And it is hereby further understood and agreed between the parties, that if, after the performance of the stipulations and agreements of the said Whitbeck, the said Smith shall fail to pay the rent as the same becomes due, the lease shall thereby be closed and terminated; and the said Whitbeck shall have full power and authority to re-enter and take possession of the premises.”</p> <p>The plaintiff, Smith, offered evidence, to show, also, that he took possession of the premises, under the lease, on the day of its date, and continued in possession until the 30th November, 1859, when he was turned out of the premises by the defendants and one McConnell, a constable; and that ever since that time the defendant, John J. Whitbeck, who claimed to act as agent for Horatio N.. Whitbeck,- had been in possession of the premises. Both the plaintiff and said John J. claiming under Horatio N. Whitbeck.</p> <p>The plaintiff’s evidence tended to show, also, that John J. Whitbeck was the agent of Horatio N. Whitbeck, in respect to the premises, and neither of them, nor any person for them, had made any repairs upon the premises while the plaintiff occupied them, nor after the execution of the lease, and that the premises were out of repair when the lease was executed, and from that time until the plaintiff was ejected; and that the fence mentioned in the lease had not been built until after the plaintiff was ejected; and that the lease had never been canceled or put an end to by the parties.</p> <p>The defendant, John J. Whitbeck, offered evidence, tending to show that there was a waiver by the plaintiff of the making of the repairs specified in the lease, which waiver was not for any definite length of time. The evidence also tended to show that the defendant, Horatio N. Whitbeck refused to be bound by the waiver, or to continue it after the 1st of August, 1859.</p> <p>The evidence respecting the waiver was to this effect: that the consideration for the waiver by the plaintiff of the making of the repairs, was that, when he took possession of the premises, on April 15, 1859, the defendant loaned the plaintiff some money, and took his note therefor, and that the use of the money was to go against the repairs, by agreement of the parties, until the plaintiff repaid the money; that, about the 1st of August, the defendant said to the plaintiff that he would not let the matter remain that way any longer, but wished the money wherewith to make the repairs. The plaintiff made no reply to this, but neglected to pay the money until after October 15, 1859. After that date, the defendant sold the note, which was then overdue.</p> <p>There was also evidence, tending to show that the defendant bad demanded of the plaintiff the rent due July 15, 1859, about one o’clock p. m. of that day. Rut there was no proof of any demand at any other time upon that day. Nor was-there any evidence that the defendant had ever notified the-plaintiff that the lease should be held forfeited for nonpayment of rent.</p> <p>As to the rent due October 15, 1859, the evidence tended to show that it was demanded, on that day, in the afternoon, about four o’clock, upon the premises, and that the plaintiff refused to pay it. But there was no evidence offered to' show that the defendant had ever notified the plaintiff that the lease should be held as forfeited for nonpayment of rent.</p> <p>Thereupon the plaintiff requested the justice of the peace-to instruct the jury:</p> <p>“ 1st. That to enforce a forfeiture for nonpayment of rent, it is necessary for the lessor to demand the precise sum due on the lease immediately before sundown on the day it is due; and that a demand two or three hours before sundown, or after sundown would not be sufficient.</p> <p>“ 2d. That before the lessor could enforce a forfeiture of the lease in this case for nonpayment of rent, he must show that he has literally complied with the terms of the contract himself, and bring himself within the strict letter of the lease.</p> <p>“ 8d. That a demand made on the 15th day of July, 1859, at one o’clock, p. M., of the rent due that day, would not be such a compliance with the law, and demand, as the law requires; that such time would not be ‘ a convenient time before sunset.’</p> <p>“ 4th. That proof of a demand of rent in the afternoon, merely, would be insufficient to authorize or constitute a forfeiture.</p> <p>“ 5th. That, to constitute a sufficient demand, in such cases, the demand must be made just before sunset, late in the afternoon.</p> <p>“ 6th. That, to constitute a forfeiture for nonpayment of rent, the precise sum due must be demanded before sunset, late in the afternoon, upon the premises; and if not paid, the lessor, or his agent, must declare the lease forfeited for nonpayment of rent.</p> <p>“ 7th. That such an agreement of extension must be upon some good consideration; and that if the jury find that the only consideration was the extension of a note which was drawing interest, and was not intended to cut off the interest upon the note, that such a consideration would not be a good consideration.</p> <p>“8th. If the jury find, from the evidence, that there was an agreement to extend the time of the performance of the stipulations and agreements to be performed by the lessor, or any part thereof, such an agreement would not of itself dispense with the performance of such stipulations and agreements, at some time, by the lessor, before he could for-forfeit the lease, or put an end to the lease for nonpayment' of rent.”</p> <p>The plaintiff requested the justice to give each and all of the foregoing propositions to the jury as the law. The justice refused so to do.</p> <p>As to the second proposition, the justice gave it in charge-to the jury, a.s requested, “ with the qualification, that if it appeared in evidence that there was a waiver or extension of time as to making the repairs named in the lease, on the part of the plaintiff, by a new parol contract between the parties* to the lease, upon a legal consideration, or upon a contract which has been so far executed or acted upon by the parties-to the lease, as that it can not be abandoned without operating as a fraud upon one of the parties, it would be a compliance with the lease so far as the waiver or new contract extended. And if such waiver or new contract extended to the time of forfeiture, the lessor might forfeit the lease for nonpayment of rent, notwithstanding he had not made the repairs at the time of the attempted forfeiture.”</p> <p>And, as to the eighth proposition, the justice charged as requested, except the words, “before he could forfeit the lease-, or put an end to the lease for nonpayment of rent ”— which words the justice refused to charge.</p> <p>As to the duties of the lessor in forfeiting a lease for nonpayment of rent, the justice instructed the jury as follows: “ It is a settled rule of the common law, that when a right of re-entry is claimed on the ground of nonpayment of rent, there must be proof of a demand of the precise sum due, at a convenient time before sunset, on the day when the rent is due, upon the land, in the most notorious place on it, even though there be no person on the land to pay.”</p> <p>The plaintiff requested the justice'to explain to the jury what was a convenient time, within the meaning of the law; which the justice refused to do; but instructed the jury, “ that it was a fact for the jury to determine what was or what was not a -convenient time for making such demand under the circumstances of each particular case. If the jury shall find that the demand for rent in October was made by the lessor in person, at a notorious place upon the premises, convenient to an entrance to the house upon the premises, at a proper time in the day, and the defendant making no objection as to place, such demand would be good : and it is not necessary to make such demand at the front door of the dwelling-house.”</p> <p>To the refusal to charge as requested, and to the charge as given, the plaintiff excepted.</p> <p>The jury found for the defendant, and judgment was entered accordingly.</p> <p>To reverse this judgment, the plaintiff filed a petition in error in the court of common pleas of Lorain county, and assigned for error the refusal of the- justice to charge as requested, and the charge as given to the jury.</p> <p>The common pleas affirmed the judgment of the justice of the peace. And this judgment of affirmance was itself affirmed by the district court, on proceedings in error therein to the common pleas.</p> <p>To reverse the judgment of the district court, the plaintiff filed his petition in error in this court.</p>

Harlan sued Job before a justice of the peace to recover $800 damages for chasing, injuring, wounding and killing Harlan’s sheep, by a vicious dog, owned and harbored by Job. Job moved the justice for a nonsuit for want of jurisdiction. This motion was overruled, and on May 29, 1855, Harlan obtained judgment for $76.57 and costs.

<p>Instructions given by the presiding judge, intended as the act of the court, and simultaneous with the annunciation of an adjournment, are the act of the court.</p> <p>A court may, in the exercise of a sound discretion, in a criminal case, direct the jury to seal up their verdict, and separate, and bring it in, in open court, should they agree when the court is not in session.</p>

This was an application for the allowance of a writ of error,, to the Supreme Court of Logan county.

<p>A., a private banker, assigned the note of B., payable to himself, to C., before due, and for a valuable consideration; but with notice that B. then held an assignment of a deposit account by D., for cash deposited by 3). with A., which assignment had not been shown to nor accepted by A. C. sued B. upon said note in an action of debt before the code.</p> <p>Held, That the deposit account so assigned to B., could not be set off in said action on the note, and a fortiori that such setoff could not be enforced, if the assignment was of only a part of the deposit account of D. with A.; also that a sotoff of part only of an entire demand could not be allowed, if the suit had been prosecuted for the benefit of A.</p>

<p>1. In executed contracts of sale of personal property, tlie rule of the common law is, caveat emptor, and there is no implied warranty as to the quality of the article sold. But fraud in the vendor constitutes an exception to the rule.</p> <p>2. Where the evidence tended to show, that a cow had been sold and purchased for a breedor, and to improve the plaintiff’s herd of cattle, that there was a latent defect, which would greatly impair, if not destroy her capacity to breed; that this was known to the vendors, and unknown to the vendees, and was not disclosed at the time of sale, and a charge was asked that if these facts were found by the jury, then, and in that case, the defendants would be guilty of practicing a fraud. Held, that the charge was properly refused, as asking from the court a conclusion of fact and not matter of law.</p> <p>3. The court in response to the charge so asked, said to the jury, that the rule of caveat emptor, applied to the case, and then in general remarks referred to the distinction between moral and legal fraud, and the necessity that the fraud should be active, — held, that under the circumstances of the case, the charge was calculated to mislead the jury.</p>

<p>On an appeal from the confirmation of a master’s report, if parties file pleadings anew, and take testimony on the merits, the whole case will be considered as open.</p> <p>Jf a purchaser, under a void attachment, obtain, through a decree in chancery, a release from the holders of the legal title, such release will not prevent them from afterward acquiring the' equitable title, and maintaining, against the attaching creditor, a bill for reconveyance.</p>

The case, appearing from the record, is this: ^McCaffrey brought an action of trespass against Simpson and the other plaintiffs in error, before a justice of tho peace, “for illegally entering and searching plaintiff’s house, tearing up porch, ransacking house, and breaking open desk, without legal authority.” The case was tried to a jury upon the plea of not guilty.

<p>A. beoame surety for B. & C., partners in trade, upon their note, payable to D., for $2000, upon B. conveying to A. moneyed oontraots, and lands in other counties, as collateral security, to protect Mm against said liability. H. shortly after bought out C/s interest in the partnership, and agreed to assume .and pay the debt to D. and all other partnership debts. B. became insolvent, suffered judgment to be obtained by D., and execution thereon to be levied on the lands of C. A petition was filed by E., a judgment creditor of B., against B., A. and C., to subject said securities held by A. to the payment of his judgment, C/s lands being afterward sold, and D/s judgment paid from the proceeds, C. also claimed said securities in respect to said debt, so by him paid for B. to D. Held:</p> <p>1. That C. having so, by agreement with B., become merely his surety, upon the debt to D., although sustaining to A. the position of principal, or prior indorser, was, as to said securities held by A., to be regarded his co-surety.</p> <p>2. That C., having so paid D/s judgment, as surety of B., and thereby relieved A. from further liability, became entitled, as such co-surety of A., to said securities, or to a sufficient part thereof to indemnify him for such payment; and that C/s equity in regard to the securities was superior to that of E.</p>

This was an action on the case, reserved from Hamilton county.

<p>1. The petition in an action against an executor upon a bond, given by him as* residuary legatee, for the payment of all the debts and legacies of the testator,, under the 4th section of the act to provide for the settlement of estates of deceased persons, passed March 23, 1840, need not show a presentment of the claim to the executor for allowance or rejection, or other matter to allow the bringing of the action, specified in the 98th section of the same act.</p> <p>2. In such an action, the claim not having been previously established in an action against the executor in his representative capacity, the exception in section 113 of the code to the admissibility of a party as a witness applies, and the plaintiff is not a competent witness to testify as to transactions between him and the testator.</p>

<p>1. The provisions of the act entitled “an act supplementary to the several acts relating to the recording of deeds, mortgages/1' etc., passed March 25, 1851, requiring mortgages to be recorded in the set of record books denominated “record of mortgages,” is merely directory to the recorder.</p> <p>2. A mortgage deed, duly executed and delivered to the recorder for record, since the passage of said act, and by him recorded in a record book denominated the “record of deeds” and' indexed in both the volume index and in the general index, with the letters “ mtg” annexed, and returned to the mortgagee, is operative as a mortgage against a subsequent purchaser for value without actual knowledge of sq,id mortgage.</p>

<p>This is a bill in chancery, reserved from Knox county.</p> <p>The bill asks relief on the following case :</p> <p>Smith and .Houston were in possession of 1,800 acres of land, claiming as of fee. In 1817, Houston made his deed to Smith, by which, after reciting their ownership in common of the land (which he enumerates by lots), of which one-third belonged to Smith and two-thirds to himself, which they had agreed to divide, he, therefore, “ in consideration of the above-mentioned agreement, and for the sum of one dollar *fco him in hand paid, hath bargained, sold, remised, released, and quitclaimed to Smith, his heirs,” etc., certain of the lots of land, “to have and to hold to him, and his heirs and assigns, forever.” Smith, at the same time, made to Houston a corresponding deed.</p> <p>.Both Smith and Houston have sold their respective parts of this land to purchasers, in separate lots, who hold possession, and have made improvements.</p> <p>Lawrence has lately established his right to 15-32 of the whole tract, by reason of a defect of part of Houston’s title. Lawrence’s Lessee v. McArter, 10 Ohio, 37.</p> <p>This bill is brought by the several purchasers of the lots once owned by Smith, against Lawrence, and the purchasers from Houston, and all other parties in interest, asking partition and general relief. They specially pray:</p> <p>3. A decree declaring that Smith’s interest in the tract may attach to the lots which they hold from him.</p> <p>2. To apart the land which Lawrence recovered from Houston, ón the share which was assigned to Houston, in the division with Smith.</p> <p>3. Or, if the court should hold that the interest recovered by Lawrence covers a part of each lot; that the several contracts of purchase, heretofore made by the plaintiffs with Smith, may bo so reformed that they may, collectively, hold Smith’s interest at large in the whole tract.</p> <p>To this bill all the claimants under Houston demur. Lawrence and Sayer answer, denying notice. Smith, who is made a defendant, answers in favor of complainants.</p> <p>Delano and H. B. Curtis, in support of the demurrer, cited 2 Bl. 324; Alnatt on Partition, 124; 2 Hill. Abr. 311; Ib. 365; 2 Thos. Coke, 446; Lindsey v. Coate, 1 Ohio, 243; 2 Bl. Com. 324; White v. Sayer, 2 Ohio, 113; Treon’s Lessee v. Emerick, 6 Ohio, 391; Dennison v. Foster, 9 Ib. 124; 1 Story’s Eq. 75; Ib. 178.</p>

<p>RESERVED in the district court of Ottawa county.</p> <p>The case is sufficiently stated in the opinion of the court.</p>

This was a writ of error to the common pleas, reserved from the county ot Medina. This record has once been before this court, and the facts are fully set forth in the report of the case of Smith v. Barber et al., 7 Ohio, 118, pt. 2. It was there holden not to be an error in law to set out to a petitioner in partition his whole interest in one of two tracts, of which partition is sought, unless it appear from the record that the tracts are owned by different co-tenants.

This is a bill in chancery, reserved from Montgomery county. The facts in the case sufficiently appear from the statement in -the opinion of the court.

<p>• Error to the district court of Vinton county.</p> <p>In September, 1857, the plaintiff, Eee, filed his petition against the Big Sand Iron Company, a corporation, in the court of common pleas of Vinton county.</p> <p>Summons was duly issued, and return of service made as follows: “Received this writ September 17, 1856; served the same by leaving a certified copy of this writ with the clerk of the Big Sand Iron Company at their office. Wm. Gold, sheriff of Vinton county, by H. Reynolds, deputy sheriff of Vinton county.”</p> <p>At the October term, 1857, the common pleas rendered judgment by default against the defendant. The defendant appeared, however, and gavé notice of appeal, which was' entered upon the record.</p> <p>On the 17th day of June, 1859, the defendant filed a petition in error against the plaintiff in the district court, to reverse the judgment of the common pleas; and at the September term, 1859, of the district court, the judgment was reversed.</p> <p>To reverse this latter judgment the plaintiff has filed his petition in error in this court.</p>

<p>Demurrer to petition. Reserved in the district court of Summit county.</p> <p>The plaintiff, Miller, filed his petition in the court of common pleas of Summit county, May 25, 1857, against the defendant, Luara J. Hine, stating in substance :</p> <p>That, on or about July 1, 1848, he purchased of her and her then husband, certain described real estate in that county, and paid them for the same, at the time, two hundred dollars m money, and conveyed to them, in fee simple, sixty acres of land in Indiana.</p> <p>That at the time the plaintiff purchased the property of the defendant and her husband, the title to the same was in her, in her own right, but that the husband also participated with the defendant, his then wife, in the sale, and that she received the money.</p> <p>That on the day he purchased the property of the defendant and her husband, to-wit, July 1,1848, a deed for the same was made by the defendant, Laura J. Hine, to the plaintiff, but that, by mistake, the magistrate who prepared the deed, and before whom it was acknowledged, omitted to join the defendant’s husband with her in the deed, and that the same was executed by her alone; but that both wife and husband supposed, at the time, that they were giving to the plaintiff a good and sufficient deed, vesting in him the title to the property, but that, by the mistake mentioned, the deed is defective.</p> <p>That at the time of the execution of the deed, the defendant and her husband put the plaintiff in possession of the property described in the deed, and that he has occupied and controlled the same from that date up to about May 1,1857, when the defendant took possession of the property.</p> <p>That the plaintiff caused the deed to be duly recorded July 20, 1848, and that, since he purchased, he has made valuable and lasting improvements on the property, and has expended thereon about two hundred dollars.</p> <p>That since the execution of said deed the defendant and her husband have been divorced, and that she is now a femme sole.</p> <p>That she now seeks to take advantage of the defective execution of the deed, and, for that purpose, has commenced an action in said court, to recover possession of the premises, and that the action is now pending, and that the defendant is irresponsible.</p> <p>The petition contains a prayer that the defendant be, until final hearing, enjoined from the further prosecution of her said action, and from selling, or in any way conveying, to any other person, or incumbering her pretended interest or claim in the property, or interfering with the possession of the same, and that, on final hearing, the injunction be made perpetual, and the defendant be ordered by the court to correct the deed, or make to the plaintiff a new one, vesting in him a perfect title to the property, and, in default thereof, that the order of the court be declared to have that effect, etc.</p> <p>The probate judge allowed a temporary injunction, as prayed for.</p> <p>The defendant demurred to the petition, on the ground that it does not state facts sufficient to constitute a cause of action.</p> <p>The case having been appealed to the district court, the questions raised by the demurrer to the petition were therein reserved to this court for decision.</p>

<p>Motion to dismiss petition in error for want of proper parties</p> <p>The record shows that an action was brought, in the court of common pleas of Fairfield county, against David Harris, William L. Jeffries and Solomon Smetters, as makers, and Andrew J. Dildine, as indorser, of a promissory note. Smet-ters alone made defense; and there was a demurrer to his answer, which was sustained, and thereupon a judgment was rendered against all the parties.</p> <p>Smetters filed a petition in error, in the district court, to reverse this judgment; to which petition Harris, Jeffries and Dildine were not made parties, nor was any reason or excuse shown for not making them parties. Eor this omission, a motion to dismiss the petition in error was made, in this court, after the case, on error, was reserved in the district to this court.</p>

<p>Error to the district court of Muskingum county.</p> <p>The plaintiff in error was indicted for an assault with intent to kill, and for an assault with intent to wound. On the trial, he was found not guilty of the former, and as to the latter charge, “not guilty of shooting with intent to wound, in manner and form as he stands charged in and by the said second count of said indictment; but «that, under said secon'd count of the said indictment, he, the said defendant, is guilty of an assault only.”</p> <p>The second count of the indictment, for shooting with intent to wound, is in these words :</p> <p>“The said John E. White, on the 13th day of January, in>. the year 1859, at the county of Muskingum aforesaid, with force and arms, in and upon one Lewis C. Lovell, then and there being, unlawfully did make an assault, and with a certain pistol, then and there loaded with gunpowder and leaden balls, which said pistol so had as aforesaid, the said John E. White, in his right hand then and there had and held, at and toward him, the said Lewis C. Lovell, then and there unlawfully, feloniously and maliciously did shoot with intent thereby then and there, him, the said Lewis C. Lovell, feloniously, unlawfully and maliciously to wound, contrary to the form of the statute,” etc.</p> <p>The indictment was not indorsed by the prosecutor for costs.</p> <p>The sentence of the court was, “that he, the said defendant, for such his offense, pay a fine of fifty dollars, and that he also pay the costs of this prosecution,'taxed at $619.10.”</p>

<p>Motion for new trial. Reserved in the district court of Licking county.</p>

<p>ERROR to the district court of Brown county. Action for specific performance of contract for sale of real estate.</p>

<p>Appeal. Reserved in the district court of Defiance county.</p> <p>At the September term, 1855, of the district court of Defiance county, an appeal, which had been taken to that court from the court of common pleas, was dismissed for want of jurisdiction. Subsequent proceedings, in the same case, were had in the common pleas, and from an order made in that court, in October, 1857, another appeal was taken. On the 21st July, 1859, a bill of review was filed in the district court, for the purpose of reversing the order of dismissal, made at the September term, 1855: the party defendant to this bill appeared and consented to an order of reversal, which was entered, and the case, as it stood on the original appeal, was reinstated on the docket, and continued for further hearing on the amended pleadings.</p>

<p>Motion to dismiss appeal. Reserved in the district court of Eranklin county.</p> <p>A petition was filed in the court of common pleas of Erank-lin county to contest the validity of the will of Robert Armstrong. Answers were filed and an issue made. At the March term, 1856, the issue was submitted to the court, there was a finding for the will, a judgment on the finding, and an appeal to the district court. At the January term, 1857, of the district court, the following entry was made: “ By consent of parties to this suit it is ordered that this case be, and the same is hereby, remanded to the court of common pleas of this county for trial and further proceedings, and from the final judgment of which court no appeal shall be taken by either party.” Proceedings were afterward had in the ease in the court of common pleas, and at the Eebruary term, 1859, the issue was submitted to a jury, there was a verdict sustaining the validity of the will and a judgment on the verdict. Notice of appeal was entered, and the court fixed the penalty of the appeal bond, and the bond was given. In the district court a motion was made to dismiss the appeal, which was reserved for decision in this court.</p>

<p>A., owning a tract of wild land in a remoto part of the state, by letter requested B., living near the land, to sell the same for him, at a price named in the letter. B., in accordance with the request, shortly after the death of A., but without notice of the event to either party, sold the land to C. at the price named, part paid in hand and the balance to be paid on receipt of a deed from A., and gave 0. possession of the land. C. afterward paid the balance of the purchase money to the guardian of the heirs of A., on demand thereof. C. continued in possession and made permanent improvements upon the land. Afterward the heirs of A. brought an action to recover the land, and 0. thereupon commenced this suit against said heirs to enjoin their proceeding in such action. Held :</p> <p>1. Where a case has been submitted upon an agreed statement of facts, reduced to writing and signed by the counsel of the respective parties, such statement can not be withdrawn or the agreement retracted by either party, except by leave of court on cause shown.</p> <p>2. That the death of the principal is a revocation of an existing agency by operation of law.</p> <p>3. That a bona fide transaction by an agent, not necessarily to he done m the name of the principal, as a deed, etc., hut a matter in pais merely, done after the death of the principal, but in ignorance of the event, and within the scope of the agency, is, nevertheless, valid and binding on the representatives of the principal.</p>

<p>MotioN to dismiss appeal. Reserved in tbe (district court of Ross county.</p>