Volume 14 — Ohio State Reports

This case comes before this court on a writ of error, to the-court of common pleas of Crawford county.

This is an information in the nature of a quo warranto, reserved, from the county of Champaign. *In the information filed in this ease, it is averred the defendant, being a corporation, has and still does misuse the liberties, privileges, and franchises conferred upon it by the act which gave it birth, in making loans of money at usurious rates of interest, to wit, at twelve per centum per annum; in the employment of its capital in the purchase of notes, bonds, and other…

This is an action of ejectment, from Brown county. On the trial, on the circuit, the plaintiff claimed title to41J acres of land, being entry No. 10,760, dated August 15, 1821, on part of a military warrant, No. 6,439, on the waters of the west fork of Eagle creek, beginning at two sugar trees on the west bank of said creek, upper corner on the creek to Philip Slaughter’s survey, No. 588 ; thence with Slaughter’s upper line south, 69 degrees west, to the line of Thomas Fox’s…

This case comes up on demurrer to a bill in chancery, from the county of Muskingum. *Tho facts relied upon for the relief sought in the bill are, in substance, as follows: William A. Adams sold two lots, in the town of Zanesville, to one Kinsley, who, in consideration of the purchase money, executed two promissory notes, dated July 31, 1840 — one for $2,000, payable one year after date, the other for $400, payable 18 months after date.

This is a bill in chancery, reserved in Muskingum county. The bill in this case is filed by the complainant against the defendant under the act of March 5, 1842, “ to regulate the mode of collecting debts against any turnpike companies, in which the state is a stockholder, and to authorize the companies to appropriate their portion of the tolls for the completion of the roads, and for other purposes,” and was filed June 25, 1842.

<p>This is a writ of error from Hamilton county.</p> <p>The facts of the case appear, in the opinion of the court.</p>

This is a bill in chancery, reserved in Hamilton county, and eomes before the court by appeal from the superior court of Cincinnati. The original bill was filed on February 17, 1841, in which the complainant states that in the year 1839, he purchased a certain lot in Cincinnati, under a decree of said superior court, upon a bill by him filed, to foreclose a mortgage on the same lot, executed by Peter Roll, one of the defendants, in 1835.

This is a motion for a now trial, in an action of replevin, reserved in the county of Cuyahoga.

This is a bill in chancery, reserved in Hamilton county. The facts in this case, as they are disclosed in the bill, answers and exhibits are as follows: In the year 1841, John G. Smith, Joseph Brennan, and William Porterfield built the steamboat “Walnut Hills,” and, being largely indebted to divers persons for materials and labor furnished in building said boat, and being unable to pay the same, on the 29th of October of that year, by agreement of all.the creditors, with the…

<p>This is an action of debt on recognizance, reserved in the county of Monroe.</p> <p>The facts in the case are these: The defendants appeared before a justice of the peace, in the county of Monroe, on. December 30, 184-1, as it is averred in the declaration; and, together with one Abel Dailey, not served with process, ^entered into recognizance in the penal sum of §1,000, conditioned for the appearance of the said Abel Dailey before the court of common pleas next thereafter to be holden in said Monroe county, etc., to answer to a charge of assaulting Catharine Stevens, of said county, with intent to commit a rape, etc., and to abide the judgment, etc.</p> <p>It is also averred that said recognizance was, by said justice, returned to the court of common pleas and recorded, as the statute requires, and defaulted for.tho non-appearance of the said Abel, in compliance with its condition.</p> <p>The defendants pleaded, firstly, nul tiel record, on which issue is joined ; secondly, that they never acknowledged themselves to owe the State of Ohio; thirdly, that the said recognizance was obtained by the said justice, by falsely and fraudulently taking, writing, and returning the same to the court of common pleas, etc., when the defendants, or either of them, then and there, never acknowledged to owe the. said State of Ohio in manner and form, etc.</p> <p>To the two last pleas, the plaintiff demurred specially, and, among others, set down as special cause of demurrer, that it was incompetent to the defendants to controvert the facts contained in the record by special plea; that the facts could only be denied by the general issue of nul tiel record, which put in issue the existence of the record itself.</p> <p>The questions arising on the demurrer were reserved for consideration in this court.</p>

<p>This is a bill in chancery, reserved from the county of Coshocton.</p> <p>The bill alleges that Benjamin Fulkinson, by his last will and testament, dated June 17, 1841, bequeathed to his daughter Margaret $50, and appointed the defendants, Thomas Fulkinson and William Sturman, his executors ; that *said executors had the will duly proved September 24, 1841, and reduced to possession the effects of the testator, which are more than sufficient to pay all debts and legacies; that the complainant intermarried with said Margaret prior to the death of the testator; that said legacy accrued to said Margaret during coverture, and that she died without said legacy having been reduced to possession or discharged by payment to the complainant, or to said Margaret; that said executors refuse to pay said legacy to the complainant, although often requested; and prays decree of payment of said legacy against said executors to the complainant.</p> <p>To this bill the defendants demur, and the questions raised upon this issue are reserved for decision in this court.</p>

This is a bill in chancery, reserved in the county of Portage. The bill states that on or about the year 1838, the Farmers’ Bank of Canton recovered against the complainants, in the Supreme Court of the county of Portage, a judgment for about *$>4,000; that the defendant, Harris, as attorney for the bank, ordered an execution, which was issued.

This is an action of ejectment, reserved in the county of Brown. The case was submitted to the court upon the following agreed statement of facts: The plaintiff deduces his titlo under a patent to himself, founded upon a decree of the circuit court of the United States, rendered on a bill filed by Moore’s Heirs v. Joseph Kerr, in 1812, and a supplemental bill filed by the same et al. v. Kerr’s Heirs, 1839.

<p>This is an action of covenant, reserved in the county of Licking.</p> <p>On April 30, 1834, the plaintiff was in possession of fifty-three acres of land, in right of his wife, by a former husband, one Richard Parr, a brother of the defendant. The defendant was the administrator on his brother’s estate; and, under an order of the eourt of common pleas, conveyed the land to one Emery, who conveyed it back to the defendant. On the same April 30, 1834, the defendant executed a conveyance of eighty acres of land, including this dower estate to the plaintiff, and this conveyance contains a covenant of warranty. The heirs oí Richard Parr afterward filed their hill in chancery against the administrator, Emery, the plaintiff and wife ; and such proceedings were had in the chancery suit, that the title of Samuel Parr, the defendant, was decreed fraudulent, and the plaintiff and wife, to release their title to the land conveyed, except the dower estate of the wife. The balance of *the lot, not included in the fifty-three acres, is wild land, and unproductive. This action is covenant on the warranty of title. A default was taken in the Supreme Court for Licking county, and the case reserved here, to determine the rule of damages.</p>

This is a bill of review, filed to reverse a decree of this court, rendered at December term, 1842, reserved from.the county of Licking.

This case comes into this court by a writ of error to the court of' common pleas of Stark county. The original case was an action of debt in favor of the defendants in error against the plaintiffs. *The declaration contains two counts.

This is a suit in chancery, reserved in the county of Butler, and comes before the court on demurrer to the bill.

This is a special action on the case, reserved in the county of Hamilton, on a motion for a new trial. *Tbe plaintiffs are the owners of a city lot on the north side of Lower Market street, between Sycamore and Broadway.

This is a scire facias to make the heirs of John Hawn, deceased, parties to a decree rendered against their ancestor.

This case was submitted to the court on an agreed statement of facts. The action is debt, upon the following note or simplo bill: “Smithfield, March 22,1838. Twelve months after date, for value received, we, or either of us, promise to pay Joseph Jordan, or order, the sum of $115.

This is a writ of error to the Supreme Court of Delaware county. The declaration contains two special counts on a bill of exchange, made by the plaintiffs in error to the defendants, bearing *date on October 25, 1836, drawn upon R. J. Wharton, of the city of New York, and payable to the order of J. Delafield, Jr., cashier of the Phoenix Bank, for $1,300, sixty days after the date thereof.

This is a writ of error directed to the court of common pleas of Miami county. *The record shows that the plaintiffs below declarod against the defendant for goods sold and delivered, etc. The defendant plead the general issue and statute of limitations — that the cause of action had not accrued within six years prior to tho commencement of tho suit.

This is a bill in chancery, reserved in the county of Fayette.

This case comes before the court on a motion in arrest of judgment, reserved in the county of Stark. The action is assumpsit, against the defendants. . This is an action of assumpsit against the defendants, as shareholders, stockholders, and partners, in a certain unauthorized and unincorporated banking institution, known by the name and style of the Orphans’ Institute Bank. The declaration contains several counts.

<p>This is a writ of error to the court of common pleas of Franklin county.</p> <p>The record shows that the plaintiff, in the court below, had been prosecuted in that court for a rape. The indictment contains two counts, one for commission of a rape, the other for an assault, with intent to eommit a rape. The cause was tried by a jury, and the plaintiff found guilty of an attempt to commit a rape, and not guilty as to the other count.</p> <p>The bill of exceptions, disclosing the errors complained of, is as follows:</p> <p>“ Be it remembered that, on the trial of this cause, the defendant produced evidence tending to show that he was under the age of fourteen years at the time of the commission of the offense charged, and the state adduced testimony tending to show that the defendant had arrived at puberty at the time of the commission of said offense; and thereupon the defendant, by his counsel, asked the court to instruct the jury :</p> <p>1. That if the jury found that tho defendant was under the age of fourteen at the timo of the commission of the offense charged, he could not be found guilty under the said second count of the indictment, though, in fact, he had arrived at physical puberty.</p> <p>2. That if, from lack of age, the defendant could not be found guilty of the crime of rape, as charged in the first count of the said indictment, he could not be found guilty of an attempt to commit a rape, as charged in the second count of the indictment.</p> <p>The court refused so to charge the jury, but charged that the fact of the defendant being under fourteen years of age was ^presumptive evidence that the defendant had not arrived at physical puberty, which presumption must be repelled by the state. And if the jury found that the defendant had, in fact, arrived at physical puberty, the circumstance of his being under fourteen years of age, would not, of itself, in law, authorize the jury to acquit the' defendant upon the second count; and thereupon the defendant excepted, on account of the court refusing to charge the jury as prayed, and on account of the charge in the premises, and which exceptions the court seal.</p> <p>On which the following errors were assigned:</p> <p>1. The court erred in refusing to instruct the jury as prayed, to wit, that if they found that tho defendant was under the age of fourteen years at the time of the commission of the offense charged, he could not be found guilty under the second count of the indictment, though in fact he had arrived at physical puberty.</p> <p>2. The court erred in refusing to instruct the jury as prayed, to wit, that if, from lack of age, the defendant could not be found guilty of the crime of rape, as charged in the first count of said indictment, he could not be found guilty of an attempt to commit a rape, as charged in the second count of the same indictment.</p> <p>3. The court erred in instructing the jury that the fact of the defendant being under the age of fourteen years, would not, of itself, in law, authorize the jury to acquit the defendant upon the second count of the said indictment.</p> <p>4. That said verdict was rendered against the defendant when, by the laws of the land, he ought to have been acquitted.</p>

This is a case in chancery, reserved in the county of Carroll. The bill states, in substance: That Peter Bohart died intestate, seized of the northwest .quarter of section 31, township 14, rang® 5, in Carroll county, except about thirty acres, on which the town of Centerville was located. That, in April, 1836, a petition for partition was filed in Columbiana common pleas; these complainants being then minors.

This case comes before the court on a writ of certiorari to the mayor of Cincinnati, for the purpose of reversing a judgment of said mayor, in an action of debt, rendered against said Dixon. The transcript, returned in obedience to the writ, contains a history of the proceedings of the city council of Cincinnati, ^relative to the opening of a street in said city, called 'Commerce street, commencing June 5, 1839, and ending July 13,1842, which is certified by the city clerk.

This is an application for a writ of mandamus to the town council of the town of Massillon, reserved in the county of Stark. » This writ, issued in this'case, is directed to Thomas Blackburn, mayor; Henry W. Smith, recorder; William Bowen, John E. McLane, David R. Atwater, Sylvanus Buckins, and *Levi Rawson, trustees of the corporation, and known as the town council of Massillon, and recites, “ 'That whereas it is represented to said coart by Charles (Jorgas, that at the…

This case comes into this court by writ of error to the court of common pleas of Clermont county. The original case was an action of debt, by Wilson against Bettle, upon a sealed bill, of which the following is a copy : “ I hereby promise to pay to Andrew D. Wilson, his executors and administrators, for value received, the sum of $350, for the use and support of my wife, Mary Bettle, and the same is to be paid to no other persons, and for no other use whatever.

These eases were reserved in the county of Union. The original bill is filed by the complainant, Wallace, with a view to quiet his title to certain lands in Union county. The complainant, in his bill, states that he is seized in fee simple of surveys No. 13,449, 13,440, and 13,526, in Union county,'containing 614 acres, giving the boundaries. That a patent issued to him for said land, from the President of the United States, on November 10, 1836.

This is a-writ of error to the common pleas of Hamilton county, made returnable to this court. The points in the case are stated in the opinion of the court.

This is a bill in chancery, reserved in the county of Summit. The bill charges that John Brown, one of the defendants, on July 11, 1836, applied to Frederick Brown, Joshua Stow, Henry Wetmore, Ogdon Wetmoro, William *Wetmore, and the complainant, Heman Oviatt, to become security for him to tho Western Reserve Bank, on a note for about $6,000; that they complied with his request, and became security accordingly, on a note bearing date that day.

' This is a writ of error to the court of common pleas of the county of Hamilton, returnable in bank. On inspecting the record, returned in obedience to the command of the writ, it appears the plaintiff was, at the July term, a. d. .1844, indicted in the court of common pleas of Hamilton county for grand larceny. The indictment contains three counts.

This is an. action of ejectment, reserved in the county of Allen. It was submitted to the court on the lust circuit in Allen county, and reserved for decision here, on an agreed statement of the facts. The premises in controversy are in-lot No. 9, in Wapakoneta, in the county of Allen. It is agreed that both parties claim title under the original proprietors of said town. These proprietors were Peter Aughinbaugh, Jonathan R. Wilds, Joseph Barnett, and James B. Gardner.

This is a bill in chancery, reserved in the county of Erie. The material facts in the case are stated in the opinion of the court.

This case comes before this court by writ of certiorari to the court of common pleas of Fairfield county. Its object is to reverse an order of that court, made by the distribution of certain moneys, made by sale on execution of certain lands, the property of Francis Cunningham; the parties *in interest being certain judgment creditors and mortgagees. The facts of the case are stated in the opinion of the court.

These are four cases of bills of review, reserved in Highland county. The leading facts and the principles involved in each being tho same, they are all embraced in one decision. The decrees sought to be reversed in these cases were pronounced at court in bank in 1842. The same material facts are common to all the cases, and all will be considered together.

This is an action of assumpsit, reserved in the county of Perry, upon the following agreed statement of facts: In this case, it is urged by counsel, that the premises described in the declaration, to wit, lot No. 24, in Thornville, Perry county, Ohio, were owned in fee by Peter Cool, and by him mortgaged to one Debolt, on January 3, 1840, to secure a note for upward of $400, due in February following, which mortgage was recorded in the same month of January.

This case comes before this court on motion for a new trial, reserved in Huron county.' The cause was tried at the August term of the Supreme Court, 1845, and a verdict found for the defendant, under the charge of court. The facts, and law of the case, were reserved for consideration at court in bank, upon a written agreement as to what papers and depositions should be in evidence.

This is an application for an injunction, filed in the Supreme Court of Clark county; and having been heard in that county, and again in Erie county, was reserved for decision in bank. The .bill sets forth that defendant is an incorporated company, with powef to construct and maintain a railway from Springfield, through Xenia, and by the valley of the Little *Miami river, to Cincinnati, referring to and reciting portions of the act of incorporation.

This is an action of assumpsit, reserved in the county of Clermont. The first and second counts in the declaration aver, in substance, a recovery, in the common pleas of Clermont county, of a judgment by Daniel Bushman against plaintiffs, as administrators, for $728, the issue of an execution thereon, and a return by the sheriff ,of no goods or chattels, lands or tenements, etc., and that there were no assets in the hands of plaintiffs at the time.

This is a bill in chancery to foreclose a mortgage, reserved in Cuyahoga county. The bill alleges that Folsom, on September 7, 1835, was seized in fee of tho lands in question.

This is a bill in chancery, and a cross-bill, reserved in the county of Huron. The facts of the case are as follows: On September 14, 1838, David M. Benedict, then, and until his death, a resident of Danbury, in the State of Connecticut, executed his last will, of that date.

This is a writ of error to the court' of common pleas of Columbiana county. The plaintiffs were indicted for selling, without license, one-half gill of whisky to Thomas Donaghy, contrary to the statute, etc. Plea, -not guilty. g At the August term, 1843, they were tried by a jury, found guilty, and sentenced to pay a fine of twenty dollars and the costs of prosecution.

This case was reserved for decision in this court in Huron county. It appears from the papers, files, etc., that at the May term of the Huron common pleas, a. d. 1839, the complainants in the suit obtained a decree for the foreclosure of a mortgage against Henry W. JenkiDS, in the sum of $10,636.35 debt, with costs.

<p>The tolls accruing to the state from subscription to the capital stock of turnpike companies, under the act of March 5, 1837, can not he subjected to the payment of the debts of the company.</p>

<p>A judicial sale of “a water-craft,” under the statute authorizing proceedings against the same by name, vests in the purchaser the title, divested of all liability to be again proceeded against under the statute, for a claim existing at the time of sale.</p> <p>The statute gives no lien. The lien is created by the seizure under the provisions of the statute; and, if successively seized on several claims, the claims are to be satisfied successively, according to priority of seizure. A private sale transfers to the purchaser the property in the same state in which it was held by the vendor, and subject to the same liabilities.</p>

This is a writ of error to the Supreme Court of Geauga county. *The error assigned is an error in fact. It appears from the record that, at the August term, 1843, of the Supreme Court in Geauga county, Gregory obtained a judgment, in an action of trespass de bonis, etc., against Blanchard, Coolidge, and others, for $2,475.

<p>This is a writ of error, directed to the Supreme Court of Adams-county.</p> <p>The record shows that on November 3, 1837, Patterson brought an action for a libel against Fisher in the court of common pleas of Adams county. The declaration contains two counts. In the-first count, it is averred that Fisher, on September 14, 1837, pub lished of and concerning Patterson, the following:</p> <p>“To John Patterson, Esq. — Sir: A year or two since, a handbill was printed and circulated in this county, signed ‘ One of the-People,’ stating- in substance that you, when a journeyman silversmith at Pittsburg, decamped suddenly from your employer, minus a large amount of plate, consisting of silver spoons and other articles manufactured of that metal, and that your employer advertised you as a runaway thief, offering a handsome ^reward for your apprehension. This charge has again been preferred .against you, in the Free Press, no longer ago than last month, in .a paper, too, published within a few rods of your own house. Now, the writer of these articles, signed ‘One of the People,’ is well known in this county to bo John Fisher, with whom some of ¡us have been acquainted for more than twenty years ; and, from •our knowledge of him, we must say, Whig as he is, we are loth to •question his veracity, and we know that he is made of stuff that will [bear] him out in whatever be may state. We have voted for you more than once, and will again, if you clear your character from these foul charges, or prosecute ‘ One of the People,’ alias John Fisher, for his attempt to lessen our Democratic leader in the estimation of his followers. Respectfully, Thomas Baird, Wm. P. Truitt, John Pool.”</p> <p>In the second count, it is averred that said Fisher, on October •6, 1837, published, among other things, of the plaintiff, the following :</p> <p>“ It is hard to believe a liar even if he tell the truth. I will state to you, fellow-citizens, what I had heard eight or ten years •since. A gentleman said to be from Pittsburg, stated, in the town ■of West Union, that, when Patterson first left that place, in his hurry to move westward, be forgot to leave sundry articles of •value belonging to a citizen of Pittsburg, and that citizen referred ■to, published the transaction in a paper in that city. I inquired •enough about the matter to satisfy myself, at the time — I became satisfied. I have not, from that day to this, spoke of John Patterson. Now I never call such an act stealing, yet I do n’t insist on my opinion being the correct one, for all such transactions are moonshine, compared with the violation of the constitution. In justice to J. Patterson, I understand the matter was afterward compromised. It may bo, for anything I know to the contrary, that it. was to make that compromise that Lackey & Buchanan indorsed for John Patterson for $500, in the Bank of West Union ; but of this I neither know nor care. I should as soon think of wreaking ^vengeance on a stuffed toad as J. Patterson. I believe there is not a worse citizen in Adams county than J. Patrterson. I am no friend to the devil, the father of lies, nor of any ■of his aids, when I know them. Respectfully, your fellow-citizen, .but humble servant to no one, John Fisher.” ■</p> <p>At the March term, 1844, of the Supreme Court in Adams county, the cause was tried by a jury, upon the plea of the general issue, and two special pleas of justification, who found the defendant below not guilty as to the first count, and guilty as to the second -count; and as to the issue joined under the second and third pleas, .they found the defendant below published the matter in said pleas mentioned of his own wrong, and assigned the plaintiff’s damages at 8750.</p> <p>During the trial, a bill of exceptions was taken, which is as follows :</p> <p>“ Be it remembered that, on trial of this cause in the Supreme Court, sitting in this county of Adams, at the March term thereof, A. D. 1844, after the plaintiff had closed his testimony, and among other things had given in evidence the whole of a publication, parts of which were mentioned and set forth in the second count of the declaration, the defendant offered to prove, in mitigation of damages, the truth of certain other portions of said publication, not declared upon, which proof was objected to by the plaintiff, and overruled by the court. The evidence on both sides being closed, the defendant moved the court to instruct the jury that they might take into consideration, in estimating the damages, that, in the publication charged as libelous in said second count of the declaration, the said plaintiff is charged with forgery, antedating a receipt, with intent to defraud Richard Collins and Samuel Brush out of a just claim; and that, having declared upon that portion of said publication, and the plaintiff not having attempted to clear himself of said charge, but had tacitly admitted its truth; which instruction to the jury, the court refused to give. And the jury, having returned into court their verdict in favor of the defendant, upon the first count and in favor of plaintiff, upon *all the issues made upon the second count of the declaration, thereupon the defendant moved the court to set aside the verdict, and grant him a new trial, for the reasons following : 1. The court erred in refusing “to say to the jury that they might take into consideration that, in the publication charged as libelous, in the second cognt, said plaintiff is charged with forgery by antedating a receipt, with intent to defraud Brush and Collins, and has not attempted to clear himself of said •charges, but tacitly admitted its truth.”</p> <p>2. The jury have manifestly erred in finding agaiast the truth of that portion of the defense which rested on the record, admitted in evidence.</p> <p>3. The jury find the defendant not guilty on the first count, and yet find untrue that portion of the defense which rested on said plaintiff’s having falsely accused said defendant of publishing the handbill in said first count mentioned.</p> <p>4. The damages assessed by the jury are excessive in amount.</p> <p>5. The court erred in not permitting the defendant to prove the plaintiff’s general reputation of swindling his deputies, when he was marshal of the district of Ohio, and of his having been indicted and convicted of such swindling.</p> <p>6. The court erred in refusing to permit defendant to prove the truth of certain portions of the publication in said second count mentioned, when the whole of said publication was in evidence, although portions, the truth of which said defendant offered to prove, were not declared upon; which motion was reserved for decision at Brown county, at March term of said court of Brown county, and which said motion for a new trial was overruled by the court; and, on the overruling of said motion for a now trial, the said defendant excepted, for the reasons aforesaid, and because the finding of the jury, upon the issue made by the defendant’s first special plea, is manifestly against evidence, the defendant having given no evidence of the record of the judgment and proceedings of the suit of Daniel P. Wilkins against said plaintiff, mentioned in *said second plea, and prayed that the bill of exceptions in that behalf might be allowed, which is accordingly done. Upon this bill of exceptions the following errors wore assigned:</p> <p>1. The court erred in refusing to permit and allow the said John Fisher, at the trial of sa.id cause, to prove, in mitigation of damages, the truth of the portions of the publication not declared upon in the second count of the declaration, parts of said publication being in said second count declared upon, and the whole thereof being given in evidence by the said plaintiff, to sustain said second count of his said declaration.</p> <p>2. The court erred in refusing to permit and allow the said defendant, John Fisher, on the trial aforesaid, to prove in mitigation of damages the said plaintiff’s (John Patterson’s) general reputation of having, when marshal of the district of Ohio, swindled his deputies, and also his general reputation of having been indicted and convicted of such swindling.</p> <p>3. The court erred in refusing the said defendant, John Fisher, on the trial aforesaid, permission to prove in mitigation of damages any facts tending to show that the plaintiff, John Patterson, was a dishonest man, and of disparaged fame, if said facts did not amount to a justification.</p> <p>'4. The court erred in refusing to instruct the jury that, in estimating the damages, they might take into consideration that, in the publication charged as libelous in the second count of the declaration, the said plaintiff, John Patterson, is charged with forgery, by antedating a receipt, with intent to cheat and defraud Richard Collins and Samuel Brush out of their just claim'; and that the said plaintiff, not having declared on that portion of said publication, and not having attempted to clear himself of said charge, has tacitly admitted its truth.</p> <p>5. The court erred in refusing to set aside the verdict and grant a new trial upon the said defendant’s motion, for the reasons stated by him, and which 'are fully stated in the foregoing record.</p> <p>*6. The court erred in refusing to grant a new trial, because the damages assessed by the jury were excessive.</p> <p>7. The court erred in refusing to grant a new trial, because of the inconsistency and contradiction of the verdict of the jury. The verdict is against the defendant, the plaintiff in error, of the publication of the libelous matter charged in the first count of the declaration, and finds all the issues on the second count of the declaration in favor of the said plaintiff, the defendant in error; one of which issues, to wit, the one made by the first special plea of the said defendant, the plaintiff in error, is and was that the plaintiff had falsely charged the defendants with having published the libelous words and matter charged in the said first count of said declaration.</p> <p>8. Because the verdict of the jury is and was manifestly wrong and improper, in finding against the truth of the defense that' rested on the record admitted in evidence.</p> <p>9. Because the court and jury erred in other matters and in other respects, in the proceedings aforesaid, as appears by the re* .«cord aforesaid.</p>

<p>This is a bill in chancery, reserved in the county of Clermont.</p> <p>This bill is filed by the complainant to foreclose a mortgage, and to procure the sale of mortgaged premises. Benjamin *Coombs is the mortgagor, Anna Parker a mortgagee, and Matthias Kagler a judment creditor. There arc other defendants,, but for present purposes, it is unnecessary to specify the relations in which they stand to the case.</p> <p>The facts, so far as respects the several mortgages and the judgment, are as follows : Anna Parker, on March 12,1.838, contracted to sell to Benjamin Coombs 101 acres of land, and which is the-only land about which there is any controversy, and gave to him a title bond. At the same time she took his note for the purchase money, signed by James Coombs as his security. On July 18, 1840, she conveyed the same land, by deed duly executed, and took back a mortgage, to secure the payment of $1,616, the balance due of the purchase money. This mortgage was recorded on November 11, 1840.</p> <p>On October 30, 1840, Benjamin Coombs executed to the com* plainants a mortgage of the same premises to secure the payment of $1,269, which mortgage was entered for record on the day of its date.</p> <p>This latter mortgage also covered fifty acres of land in addition to the 101 acres, which, in 1837, had been mortgaged by Coombs to one Sbadrack Lane, to secure the payment of $270, which mortgage, on May 17, 1841, was assigned by Lane to the complainant. As to this fifty acres, there is not, at present, any controversy. On July 30, 1840, the defendant, Matthias Kag'er, recovered a judgment, in the court of common pleas of Clermont county, against Benjamin Coombs, for 1506.25, and costs of suit.</p> <p>Anna Parker, in her answer to the bill, charges that the complainant, at the time he received his mortgage, had full notice of the existence of her mortgage, and that with a view to defraud her, he procured his to be first received; and she calls upon him, by interrogatories, to answer this charge.</p> <p>In answer, he denies notice peremptorily. Much evidence, however, is on file to prove notice, but the view of the case *taken by the court, renders it unnecessary to abstract this evidence.</p> <p>The defendant, Parker, further alleges, in her answer, that the consideration of the note secured by the complainant’s mortgage, is made up, in a great measure, of exorbitant interest, and such exorbitant interest compounded, from time to time; and she calls upon him by interrogatories to answer this allegation, and set forth the original consideration, which was the foundation of the note, and the manner in which it has been increased to its present amount.</p> <p>These interrogatories the complainant refuses to answer, for the reason, as he alleges, that he is informed by counsel that he is not bound to make answer. This answer is excepted to.</p>

<p>This is a bill in chancery, and comes before this court, by ap*peal from the court of common pleas of' Lucas county.</p> <p>The object of the bill is to collect a claim in favor of the complainant, as assignee of James H. Forsyth, against the defendant, *for the purchaso money of a tract of land sold by Forsythto the defendant, and to enforce the-vendor’s lien for said purchase money.</p> <p>The bill states that on July 5, 1836, James H. Forsyth, by verbal agreement, sold the defendant, for $2,844, one-half of a certain ninety acres of land ; that, in performance of that agreement on his part, he, on the same day, conveyed the same land to the defendant ; that no part of the purchase money has been paid, but the whole amount, with interest, is now due; that on October 24, 1840, Forsyth quitclaimed his interest in the land to complainant, and by same deed, assigned his claim against Horner for the purchase money due, and empowered the complainant to sue for, and recover the same ; that the claim for the purchaso money is an equitable lien on the land, and operates as a mortgage; prayer for an account and decree against Horner to pay the amount due, or in default, that his-right in the premises may be foreclosed, and .for general relief. The bill was filed April 1, 1843.</p> <p>This bill was answered on August 15, 1843. In his answer, the defendant admits the conveyance from Forsyth to defendant, and that the consideration mentioned in the deed, is $2,844, but expressly denies any agreement on his part, to pay that sum, or any other, for that conveyance ; and claims that Forsyth was, at the time of the conveyance, indebted to tho firm of E. Corning & Co., of which firm defendant was a partner in a large amount, and 'that Forsyth agreed to convey the land in controversy to defend.ant, to be by him held as security until the debt was paid ; that 'tbe-deed was afterward prepared and executed at the instance of 'Forsyth, and made absolute without any authority from defendant; that the amount of the consideration was stated in the deed without his knowledge or authority; denies any agreement to pay purchase unoney, and also that any money is now due from him on account of such -conveyance, and puts the complainant upon the proof of his title.</p> <p>^General replication was filed to this answer August 24, 1843, and testimony was subsequently taken.</p> <p>At the June term of the court of common pleas, 1844, the following order was made: “ In this cause defendant has leave to file amended and supplemental answer upon the payment of the costs, since filing the original answer.”</p> <p>The supplemental answer was filed August 23,1844, and sets up the statute of limitations of New York and Ohio, and the statute of frauds of the same states, and also alleges that, since tho filing of the original answer, defendant has discovered that, although the deed from Forsyth to him was dated July 5, 1836, it was not acknowledged until Januai’y, 1837, and was not delivered until some time thereafter. Tho defendant also claims, in this answer, that all the matters set forth in the bill are such as may be tried at law, and that a court of equity can grant no relief.</p> <p>At the second term of the court of common pleas, after thia answer was filed, a motion seems to have been made in that court that it should be stricken from the files, for reasons in said motion stated.</p> <p>What disposition was made of that motion does not appear, but the case seems to have been heard in that court upon the pleadings as before stated.</p>

<p>When a defendant neglects to prove his set-off in a court of law, he can not afterward, as a general rule, have the same set-off made in chancery; but if he has been induced to omit proof of the set-off by the improper conduct of. the plaintiff, by an agreement that his claim may be set-off after judgment, or by mistake as to such agreement, equity may relieve.</p> <p>It is incorrect practice to make a sheriff or other officer, who has an execution in his hands for collection, defendant in a bill to enjoin a judgment upon ■which the execution issued.</p>

<p>A memorandum of settlement among partners for the completion of a canal section, ascertaining the amount due to one partner at the date of such settlement, with a promise to pay the amount to him or order on final estimate of the section, is not a negotiable instrument.</p>

This is a writ of error to the court of common pleas of Portage county, made returnable in bank.

<p>Section 5 of the act for the protection of the Ohio canals, was intended to prevent persons from traveling on the "banks of the canal, without regard to its safety, except in the excepted cases, and in cases of urgent necessity.</p> <p>That, to prevent vexatious prosecutions, and to insure prompt action in cases requiring it, a discretion is vested in the officers having charge of the-canal, and exclusively authorized to institute the prosecution.</p> <p>In cases of error to the Supreme Court, no writ of error is required "by the-statute; if allowed in bank, the official signatures of the judges to the allocatur, or a copy of the journal entry; if by two judges in vacation, their official signatures to the allocatur, furnished to the clerk of the county, is the proper way of officially informing him of the allowance of the writ.</p>

This is a writ of error, directed to the court of common pleas of Montgomery county. The declaration contains four counts upon two bills of exchange. The plea was the general issue.

<p>This is a writ of error directed to the Supreme Court of Montgomery county.</p> <p>Brown and Fuller, in the court below, sued Treon upon two drafts of $500 each, drawn upon M. T. Miller, of Philadelphia, signed by Edward L. Jones, as cashier of an unauthorized ^banking association, called the Washington Bank, charging Treon as a stockholder in said bank.</p> <p>At the May term, 1844, of the Supreme Court in Montgomery county, the cause was submitted to the court, without the intervention of a jury, and judgment rendered for the plaintiffs for $1,227.80, together with the damages and costs of suit.</p> <p>During the trial, a bill of exceptions was taken, from which it appears that, to sustain their action, the plaintiffs offered in evidence the bills of exchange or drafts declared upon, and also the protests of the notary public who protested the same, and that the “ defendant objected to both said protests, as not showing sufficient demand and notice; but the same were received in evidence, and tho plaintiffs then closed.”</p> <p>It also appears, from said bill of exceptions, that the defendant offered Joseph Watson, one of the indorsers appearing upon said bills of exchange, to prove that the same were issued by an unauthorized banking association, and were therefore void; and also to prove the handwriting of the plaintiffs to various letters, accounts current, and papers, showing the connection of said plaintiffs with said illegal bank, for the purpose of showing said drafts illegal- in their inception, and prior to and at the time they were indorsed by said Watson, the witness, fraudulent and void, and not obligatory upon the defendant; that the testimony was objected to by the plaintiff, because of the incompotency of tho witness, and the testimony excluded by tho court.</p> <p>The defendant below, now plaintiff, assigns for error in these decisions of the court:</p> <p>1. That the court admitted the drafts and protests offered in evidence to go to tho jury as evidence, when the same ought to have been excluded.</p> <p>2. That the court overruled and excluded the testimony of tho witness, Joseph Watson, which would have proved that the plaintiffs were particeps criminis with the defendant, in dealing with and putting in circulation tho paper of an unauthorized ^banking institution, when the same was competent and pertinent, and should have been admitted.</p> <p>3. That the court overruled all the other testimony that was offered by the evidence of said witness, whereas the same was competent and pertinent, and should have been admitted.</p>

This is a motion for a new trial, reserved in Pickaway county. The action is assumpsit upon a promissory note signed by the ’ defendant, for the sum of $100, made payable to John T. Bichardson, or order, on or before the 1st day of March next after the date thereof, and bearing date September 27, 1837, and indorsed in blank, without recourse, by Bichardson, on May 11, 1838. The suit is in tho llame of Bodkins, as indorser, against Taylor, the maker of the note.

This is a motion for a new trial, reserved in the county of Miami. *Tho grounds urged for a new trial are, that the court erred in their charge to the jury, and that the verdict of tho jury was contrary to evidence. The action was brought upon a promissory note for $207, executed by one Daniel Ferran to the defendant, given September 1, 1837, and by him assigned to Kyle, with several other notes.

This is a motion for a new trial, reserved in Miami county. The case is the same as the preceding one, between the same parties, with only this difference, that the note on which the suit was instituted came to Green from one Hall, on the purchase of a tract of land, and Green had bound himself to make a deed to Hall on the payment of the note.

<p>This is a bill in chancery, reserved in the county of Miami.</p> <p>The bill states that, on June 18, 1838, Green gave to Hall a title bond for certain real estate, binding himself to convey the same to Hall on the payment of certain notes then indorsed by Hall to Green (among which was one fpr $325, signed by J. & R. Moore, dated April 30, 1838, and payable six month’s after dato, to Hall or order), by the makers thereof; or, on failure by the makers to pay tho same at maturity, or within a reasonable time thereafter, then on payment of the same by Hall; that all of said notes had been due upward of eighteen months; that Hall had never been notified of the non-payment of any of them; that whether all had been paid or not of his own knowledge he did not know ; but he had been informed that Green and one Kyle, to whom he had indorsed the note against the Moores, had given the Moores time upon it; that it was not paid, and that the makers were insolvent, and that Green refused to execute a deed, though demanded. The prayer of the bill is, that Green may be decreed to convey either to Hall or to said Dye, the other defendant, to whom. Hall has assigned said title bond.</p> <p>Green answers, admitting the agreement, the indorsement of the notes in pursuance of the agreement, and the terms of the agreement as stated in the bill, but denies that he ever extended the payment of the Moore note, or that Kyle had done so with his knowledge; admits that the note is not paid, and assigns that as the reason why he does not convey the land.</p> <p>*The proof shows that soon after Green procured said note, he indorsed it to Kyle, giving him discretionary power as to the manner of collecting it, and binding himself to pay it if tho makers did not; that Kyle, depending upon the promises of the Moores, neglected' to sue till they became insolvent, and that the note has never been paid.</p>

This is a certiorari to the court of common pleas of Columbiana county. The case made upon the record is this: The plaintiff filed his petition for partition in the court of common pleas, setting forth that he owned, in common with Kelley, Payne, and certain unknown owners, eight twenty-third parts of ten acre lots, 96, 97 and 98, and the west part of lot 99, and that his title was by deed from the surviving trustee of the Connecticut Land Company.

This is a writ of error to the court of common pleas of Cuyahoga county. The record shows that, at the May term, 1845, the plaintiff was indicted for an assault with intent to kill, tried, found guilty, and sentenced to three years’ imprisonment in the penitentiary.

This is a case in chancery, reserved in Ashtabula county, for the purpose of settling the priority of liens of certain judgment creditors and mortgagees.

This is a case in chancery, reserved in Muskingum county. On February 9,'1841, Margaret Miller filed her bill in chancery in the court of common pleas of Montgomery county, setting forth that John A. Miller, late of the county of Montgomery, died on or about May 12, 1820, leaving the complainant his widow; that John A. Miller, during coverture with complainant, was seized, as of an estate of inheritance, of certain real estate described in the’ petition, and that defendants,…

This is an action of ejectment reserved in the county of Fayette. The action is brought to recover a certain tract of land in Fayette county, known as survey No. 1,122 or 13,377, of 1,333J acres. The lessor of the plaintiff claims title under a purchase at a tax sale, in 1837.

This is a writ of error to the Supreme Court of Franklin county, returnable in bank. *The original case was in ejectment, and was tried at tho December term, 1844, of the Supreme Court in Franklin county, and a judgment rendered for the plaintiff. To reverse this judgment, this suit is brought.

This is an action of debt on a sheriff’s bond, reserved in Meigs county. No exceptions are taken to the pleadings, but tho court is to render judgment as it shall determine the law, upon tho following agreed statement of facts: *The agreement states all the facts specifically and at length. The main fact is simply this : Myers, as sheriff, issued upon some personal property to satisfy an execution in favor of Morgan.

<p>Benefits conferred may be set off against the value of property appropriated for public use.</p>

This case was submitted to the court in Licking county, and reserved for decision here. The declaration is upon a sealed bill, executed by defendants to Alfred Avery, for $300, payable, with interest, to the said Avery or bearer, on or before the 1st day of June next after the date thereof, and dated on April 6, 1842. The defendants pleaded the general issue, and a special plea in bar.

This case is reserved from Meigs county, on an agreed statement of facts. The action is debt upon a bond given by the defendant, Fuller, as principal, and the other defendants as his sureties, conditioned for the diligent and faithful discharge of his, the said Fuller’s, duties as marshal for the town of Pomeroy.

<p>Specific performance of contract for the sale of land will not be decreed, at the suit of the vendee, where he has been in default for twenty-one years or more, and no sufficient excuse for the delay.</p> <p>Tbe fact that the vendee died shortly after the default, and that the suit is prosecuted by an heir who was then an infant, will not vary the case.</p> <p>"Where partial payments have been made by the vendee, the money thus paid can not be recovered back, unless there has been some default on the part of the vendor.</p>

<p>Drunkenness of the accused, at the time of passing the alleged counterfeit hill, is a circumstance proper to he submitted to the consideration of the jury, and should have its just weight in determining whether-the accused knew the hill to he counterfeit.</p>

This is a bill of review, brought to review a case decided in bank at December term, 1841, which was a bill in chancery from Delaware county. The case is reported in 11 Ohio, 57, M. S. Wade v. M. D. Pettibone. The facts of the case are as follows: In 1835, the Miami Exporting Company having been for many years a suspended institution, and being about to recommence ^business, made certain disposition of their existing claims, for the benefit of their old stockholders.

This cause was submitted to the jury iu the Supreme Coui't for Erie county, on the circuit, and a verdict rendered for the plaintiff *for $1,503.50, subject to the opinion of the court on tho law of the case. The action was assumpsit. It appeared in evidence that on October 19,1836, the defendant received, as stock, about $380,000 in real estate. This real estate was in common with Isaac Mills and Zalmon Wildman. It would not sell to advantage until partition was made.

This is a writ of error to the court of common pleas of tho county of Summit. Tho facts, as they appear of record, are these: On June 16, A. d. 1843, one C. G-. Grillet filed his affidavit, that tho plaintiff in error, on the 10th day of the same *month, violated an ordinance passed by tho town council of Akron, by retailing and selling intoxicating liquors to one Sylvester Adams, within the corporate limits, and to be drank on the premises where sold.

This is a writ of error to the Supreme Court of Hamilton county. *The facts in the case appear in the following bill of exceptions: Be it remembered, that on the trial of this cause in the Supreme Court within and for the county of Hamilton and State of Ohio, at April term, a. d. 1845, thereof, the plaintiff in this cause produced a bill of exchange, accepted in the name and style of Gano, Thoms & Talbott, for the sum of $10,000, dated at St. Louis, on November, 1, 1837,…

<p>The case of Cincinnati v. Gwynne re-examined and affirmed.</p>

This is a case reserved from Licking county. The plaintiff, in her declaration, in this case, inter alia, avers that, on May 25, 1835, for the consideration, thereinafter mentioned, John W. Dixon demised, granted, and leased to the defendant, and one George Gray, etc., their executors, administrators, and assigns, a certain two-story brick house, and other appurtenances thereunto belonging, situate, etc., to have and to hold the said demised premises, with the appurtenances,…

This case is reserved in the county of Hamilton. The bill in this case was filed by the complainant, Stilley, in right of his wife. She was the widow of Richard Folger, who died on July 6, 1841, seized of certain lands described in the bill. Folger left a will, which is one of the exhibits in the case. The object of this suit by the complainants is the assignment of dower in the right of Mrs. Stilley in the decedent’s lands.