15 Ohio St.

Volume 15 — Ohio State Reports

79 opinions

15 Ohio St. 9Barker v. Cory (1846)
The act of March 12th, 1845, entitled "An act to regulate the Judicial Courts, and the practice thereof,” does not require a Bond to be filed previous to the issuing of a Writ of Error j such Bond need only be filed when designed to operate as a supersedeas. If goods or chattels are delivered to a bailee for hire, and he convert them to his own use, assumpsit will lie to recover their value. The act of March 4th, 1815, respecting appeals from a Justice of the Peace, does not apply to cases appealed before the passage of the act.
15 Ohio St. 13Lessee of Waldron v. Woodcock (1846)
This was an action of Ejectment, ‘reserved in Delaware County. The question was a controversy about a boundary. Both plaintiff and defendant were bounded by a certain section line, and the recovery of the plaintiff depended upon fixing it in a certain place. The title-deeds of the plaintiff bounded him on the south by the section.line; and the defendant, in like manner, was bounded on the north by the same line.
15 Ohio St. 15State ex rel. Commissioners of Hamilton Co. v. Piatt (1846)
This is an action of Debt, and comes before the Court, by appeal, from the Court of Common Pleas of Hamilton County, and reserved for decision here. . . The action is brought upon a bond executed by the defendant, Piatt, as principal, and the other defendants as sureties, conditioned, according to the statute, for the faithful performance, by Piatt, of his duties, as Clerk of the Court of Common Pleas of Hamilton county. The declaration contains three counjts. The first sets forth the bond and condition, “ that if the said Piatt should truly and ‘ faithfully pay over all money that might be by him received in s his official capacity,” &c., said bond to be void, &c.; avers the appointment of Piatt, delivery of bond, and deposit with county treasurer; that he entered upon his duties as clerk, and so continued in office, as clerk, until February, 1844. That sum $^66 26 was received by Piatt in his official capaas clerk, the same being fines, fees and easts, in suits heard and determined in the Court of Common Pleas of Hamilton county; specifying each case by its name or title, and enumerating the amount received in each; averring that all such fines, &c., were collected and received by said Piatt, as aforesaid, upon certain indictments pending in said Court against such defendants, and that the same were payable, and ought to have been paid, into the county treasury of Hamilton county. The breach assigned, is neglect and refusal of Piatt to pay such moneys into the county treasury. The second count is similar to the first, except that the sum received by Piatt is stated in gross, without specifying the individual cases in which the fines, fees and costs accrued. The third count alledges an accounting, by Piatt, in a certain suit or complaint of the State of Ohio against him, of moneys received by him, in his officiál capacity as clerk, in which suit or complaint he stated the amount, so received for fines, fees and costs, to be $966 26 ; with an averment that such sum is composed of fines, &c., received by said Piatt, as clerk, in various criminal prosecutions, before' that time prosecuted in said Court, and that they should have been paid into the county treasury. Breach, non-payment, as in first count. To this declaration the defendants demur specially, and for causes of demurrer, assign — First: That the declaration does not show that the County Commissioners have been so injured, as to invest,them with the right to sue for and demand the sum of money claimed therein. Second: It is not averred in the declaration that the indictments, wherein those fines, fees and costs arose, were determined in favor of the State of Ohio, and were of right thereafter the property of the county of Hamilton, and that the said commissioners had a right to sue therefor. Third: It is no where averred in the declaration, for what grade of offences those fines were assessed and collected. Fourth: It is not averred that said defendant, Piatt, was a qualified officer, under the constitution and the law, and that the supposed sum of money, claimed by the plaintiffs, after such qualification, and came into his hands, as the Clerk of said Court, de jure. Fifth: It cannot be gathered from said declaration that the “certain indictments,” therein spoken of, ever matured into judgments, or assumed any other judicial form, by which said fines, &c., could have been collected by an officer, in his capacity as such. First: The first point we shall examine, is, as to the power of the County Commissioners to prosecute this suit. The suit, though brought in the name of the State, is for the use of the County Commissioners. They, then, must have an absolute right at law to call the principal to account, for a breach of some one or more of the conditions of the bond. And this right must appear affirmatively upon the face of the déclaration. The declaration in this case shows no such right; nor do the various statutes, conferring upon the commissioners their various powers and defining their duties, give to them any such right. See Swan’s Stat. 205, sec. 7; Ibid. 206, secs. 9,TO, 12; 964, sec. 7; 968, sec. 31; 826, sec. 31; 389, sec. 2; and, also, 1019, 740-41, 638, 567. A county is a quasi corporation; the powers given to its commissioners are specific, and they can • exercise no powers not expressly granted, or necessarily incident to those granted. Gallia County v. Holcomb, 7 Ohio Rep. 232, part I. The money sought to be recovered in this case, is required, by the 59th section of the law relating to fees, &c., (Swan’s Stat. 407,) to be paid to the county treasurer, and therefore suit should be brought by him. Treasurer of Perry County v. Moeller and Hood, 11 Ohio Rep. 429. Second: ' We claim also that the clerk has, by law, no power to compel the payment of fines, costs, &c.; that he is not the proper person to receive them, when collected; and, if paid to him by the parties, or by the sheriff, he does not receive them in his official capacity, and his sureties are not liable.— They only undertake to be responsible for such acts of the clerk as are comprehended by the law as a part of his duties. Lewis v. Johnson, Walker’s Rep. 206; 3 Leigh’s Rep. 703; 13 Mass. Rep. 260; Swan’s Stat. 407; Local Laws of 1843, 152-3. Third: The declaration is defective, because it does not disclose the character or class of offences upon which the indictments spoken of were founded. All the fines, &c., collected by indictment do not belong to the county, but some go to the State, some to the township, &c.- The commissioners have no right to sue, except for funds belonging to the county. 13 Serg. and Rawle 238. And the cause of complaint should be set out so fully, as to show that the cestui que use has the right to sue, and that the defendant may be well and distinctly apprised of what he is called on to answer. 6 Ohio Rop. 151. Fourth: The sureties in this bond are not bound by any admissions made by the principal, 'nor are they liable upon an account stated by him. 4 Randolph’s Rep. 317. And the action being joint, there must be a joint recovery. 4 Bibb, 596. To determine the first question, as to the right of the County Commissioners to bring this suit, let us ascertain what their duties are, as prescribed by the statute:— Swan’s Stat. 205, sec. 7, constitutes them a body corporate and politic, with power to sue and be sued. As will be seen by subsequent authorities, this is a general power; and the subsequent specification of certain cases in which they shall sue, are not words of limitation, but particularize certain cases, in which, without such provision, it might be doubtful whether they had authority to sue without such power being specifically • - Slven- Ibid. 206, requires the commissioners, annually, to count the* funds in the treasury, and settle with the county auditor and treasurer. This provision makes them the guardians of the county treasury; and also makes it then duty to supervise the accounts of the servants who have the immediate control of the county funds. Ibid. sec. 10, specifies different causes for which the commissioners can expend the funds of the county. If they are at all times called upon to draw money out of the treasury, and expend it, should they not have the power of securing that for the county which, by law, belongs to it ? Ibid. sec. 11, authorizes them to permit the county auditor to draw upon the treasury for certain repairs, not exceeding fifty dollars. For drawing out of the treasury of all sums to a larger amount, it appears that the direct interposition of the commissioners are required, except in such cases where the sum is fixed by law. Ibid. sec. 12, gives the commissioners power to release fines, debts, or amercements due the county, in certain cases. Here is the direct power given to them over the various causes of action set forth in the declaration. The very reading of this section contemplates the power of the commissioners to sue for these fines; and does it not revert, as a necessary incident of power, that, -where they can dispose of, they must necessarily have the power to collect ? This power is somewhat modified by an amending act. Swan, 1019. Ibid. 740, gives them power to contract for building necessary public buildings for the use of the county. Ibid. 741, to provide the means for the payment of claims against the county in consequence of these erections, and to expend any money in the treasury, belonging to the county, for that purpose.— Ibid. 742, to levy a tax to discharge the above demands. Ibid. 206, to make contracts, &c., for repairing of the county, roads, &c. Ibid. 964, sec. 7, provides that the books and accounts of the county treasury, and all money remaining in the treasury, shall, at all times, remain open to the inspection of the county commissioners. Is it possible that the law gives- the commissioners such manifold powers to examine and ascertain when the interests of the county are affected, and still no power to sue when an injury takes place; that it gives them power to discover when the county funds have been misapplied, but no power to prevent it ? The county treasurer shall annually make a settlement with the commissioners, when they are authorized to make certain allowances to him. Ibid. 968, sec. 31. When the commissioners think the bond of the treasurer not sufficiently large to cover the amount of funds in the treasury, they are authorized to require of him an additional bond. Ibid. 970. Various other statutes authorize them to make appropriations from the county treasury, in different ways, and to different officers; showing that all matters pertaining to the general interests of the county, and not given in charge specifically to other officers, are placed under the control of the commissioners. Among .these statutes are the following: Swan, 836, sec. 31; Ibid. 389, sec. 1; Ibid. 638; Ibid. 641, 813, 815, 816, 913, 840, 640, 161, 611, 570, 573. Now, let us inquire what powers are vested in the commissioners, according to the decisions of our courts:— In Commissioners of Brown County v. Butts, 2 Ohio Rep. 449, it is decided, in general terms, that the commissioners are the representatives of the county; and whenever a cause of action exists against the county, they are the persons, by virtue of their office, who must be sued. It is only through them that the business of the county can be transacted, and the county acts through them. In Commissioners of Trumbull County v. Hutchens, 11 Ohio Rep. 371, it was held, that the commissioners were liable for the price of a press for the county seal, furnished by the clerk, without first consulting the representatives of the county. In no case, does the law make it the duty of the commissioners to furnish a press; but the Court held that, inasmuch as it was made their duty to furnish a court room and “ stationery,” a press was a necessary incident, and therefore necessarily inclucluded in their incidental duties. In the various citations which we have given, it is made the duty of the commissioners to count the county funds, and see that they are safely kept. Is it not a necessary incident to this duty, that they should see that no person retains what, by krvy, is made payable into the county treasury ? This is a strong case, to show that the implied powers we claim for the commissioners, must exist in them. In Reynolds v. Commissioners of Stark County, 5 Ohio Rep. 205, it is decided, that the commissioners have power to sell the real estate belonging to the county, vested in them for the use of the county. This power is no where given in express terms to the commissioners, and is .implied. Would it be a further stretch of their implied powers to say they shall take care of the county funds ? If this action cannot be maintained, then the practice in this State has been illegal; for we find numerous cases where the commissioners have brought and sustained similar suits, without their right being questioned. Commissioners of Clermont County v. Lytle, 3 Ohio Rep. 289, was an action for a money demand against Lytle. The suit was maintained in the name of the commissioners without objection. Commissioners of Scioto County v. Gherkell, Wright’s Reports, 494, was an action for alledged illegal fees taken by the defendant, late an auditor of Scioto county. Although the commissioners were nonsuited, no objection was made to their right to maintain the suit. Smith’s Adm’r v. Commissioners of Licking County, 2 Ohio Rep. 312, was an action against the administrators of a surety on an official bond, given by a sheriff of Licking county. It was maintained in the name of the commissioners without objection. The sheriff’s bond, like the clerk’s, is given to the State. Swan’s Stat. 856. Ohio, for use of Commissioners of Guernsey Co., v. Find-lay, 10 Ohio Rep. 51, was an action on the official bond of the county treasurer, for a delinquency in not accounting for the funds received into the county treasury. The bond of the treasurer is similar to that of the clerk. Swan’s Stat. 963. No objection was made as to the form of the action; and, from the defence made in that case, it is thought this point would have been made, if the eminent counsel in that case had thought it could have been taken with any chance of success. But, it is contended that the interest of - the county does not sufficiently appear in the declaration. The allegation is, that these “ fines, fees and costs, are payable into the county treasury.” This allegation, we submit, is sufficient. Besides, the interest of the county can be shown in the progress of the suit. The case of The State, for the use of the Executors of Spencer, v. Coffee, 6 Ohio Rep. 151, is in point. It was an action on a sheriff’s bond; and the same objection was then made that is now. The Court say, the act under which this suit is brought, (Swan’s Stat. 161,) “ does not prescribe any ‘ method of setting forth-the nature of the interest of the person '£ so suing, (for his own use,) except in the progress of the £ cause.” The declaration was sustained. The same rule is considered, in Numlin v. Westlake, 2 Ohio Rep., and sustained.
15 Ohio St. 26Lessee of Overmyer v. Williams (1846)
This is a Writ of Error to the Court of Common Pleas of Sandusky County. . Held: as to the capacity of the corpora^on f° the land, this “ mousing ” plaintiff will be disapas well as the (honest ?) grantor, who sells it a second time, after receiving full payment; for the law does not enable a vender to a corporation to resume his estate, and thus take from the company the ability to pay its debts, and from the…
15 Ohio St. 33Arndt v. Arndt (1846)
This Action is in Debt, reserved in the County of Fairfield. ■ The action is founded on a judgment of the Court of Common Pleas for Adams county, in the Commonwealth of Pennsylvania. The record of this judgment shows the service was made by the levy of an attachment on the interest of the defendant in a certain tract'of land in said Adams county. To' the declaration in this suit, on this record from Pennsylvania,. the.defendant has plead specially in bar of the action, he was never served with process; that he did not appear in the suit, neither by himself or his attorney, and that he was never within the jurisdiction of the State of Pennsylvania. The plaintiff has replied to this plea, that the defendant was brought before the Court by an attachment served on his land in Pennsylvania; and to this replication the defendant has filed a general demurrer, The only question is as to the effect in the State of Pennsylvania of a judgment rendered in that State in a suit commenced by foreign attachment. The record of which proferí is made in the declaration, shows service of the writ by an attachment of all the interest of the defendant in a certain tract of land on the 3d day of October, 1836 ;• and that judgment was rendered on motion, April 25, 1837, for real debt, $432.60, and interest from 15th September, 1836. After the manner of Pennsylvania records, which ordinarily, I believe, only shows the beginning and conclusion of things, it does not appear whether the defendant appeared, or whether judgment was rendered by default. We assume that it was by default, that being the most probable. It being a personal action for the recovery of a debt, and not a proceeding in rem, and the Court having competent jurisdiction, we claim that the effect of the judgment is general, and.concludes the party so that he cannot controvert it or aver against it, unless by statute of Pennsylvania the effect of the judgment shall be limited. The form of the process by which the .subject matter is brought before the Court, or the manner in which it is to be served, whether by seizure of property, or personally, we think can make no difference, provided it be such as, according to the law of the State, is prescribed to give jurisdiction to the Court to pronounce upon the evidence as to the amount of plaintiff’s derna’nd. Every State or sovereignty has the right and power to prescribe in what manner causes shall be brought before its judicial tribunals to be adjudged. Under the Constitution and laws of the United States, and the judicial determinations, especially of the Supreme Court of the United States, the effect of a judgment in every other State is made the same as in the State in which it is rendered. So far as the present case is concerned, this question, we understand, is conceded. The State of Pennsylvania has provided that suits may be brought by foreign attachment, to be served by the seizure of property; and their statute expressly provides that judgment may be rendered therein, not merely to subject the property seized to a sale, but generally. The effect of such judgment is not declared by statute; nor is the effect of a judgment, where personal service of process is had, so declared. The effect is therefore a legal consequence as much in the one case as the'other. An abridgment of the laws of Pennsylvania on the subject of foreign attachment, will be found in Purden’s Digest, 5th edition, page 436, &c. By the 1st section, it is in substance provided: “ That it ‘ shall be lawful for the plaintiff, at the third term after execu- ‘ tion of the writ, if he shall have filed his. declaration, to take ‘judgment for default of appearance, unless the attachment ‘ before that time be dissolved.” Section 2d provides “that after judgment, as aforesaid, the ‘ plaintiff may have a writ of scire facias against the garnishee.” Section 9th provides “ that after judgment, and before exe- ‘ cution executed, the plaintiff shall give security that if the ‘ defendant will, within a year and a day, disprove, or avoid the ‘ debt recovered, or discharge the same with costs, the plaintiff ‘ shall restore the goods or effects, or value thereof, attached,” &c. Section 12th provides “that the defendant may appear and ‘ ma'te defence before judgment, and if judgment be rendered c for the plaintiff, it shall' have the same force and effect as if ■c commenced by summons. These are all the provisions appearing to relate to the question under consideration with which we have met. The record shows a scire facias and judgment therein, August 28, 1837, against the garnishee. The record also shows that a fieri' facias issued against the garnishee, and that the lands attached were condemned November 24, 1837. According to section 9, above cited, the condemnation under the execution could not take place without bond being given by the plaintiff. It must therefore be presumed, in favor of the proceeding, that bond was given. If given, the defendant, according to the further provisions of the same section, had a ye-¡r and a day, which would expire on the 26th November, 1838, to disprove or avoid the debt. If not disproved or avoided within that time, the fair construction is, we think, that the judgment, as. well as the right of the plaintiff .to. retain the proceeds of the property, becomes absolute. If it were disproved or avoided, the fact, if relied upon by the defendant, should be pleaded. The provisions of the 12th section arc quite distinct in declaring the effect of the judgment when the defendant appears, provided the effect, of a judgment in a case commenced by summons be known. But we submit that it does not follow that the judgment by default is destitute of effect, because the Legislature has seen proper, to declare the effect where there is an appearance. We think the effect of the judgment, whore the defendant appears,would have been the'same if .its effect had not been declared, that it is declared to be, by the provision referred to. And by the same proeess of reasoning, the effect of the judgment by default flows as a necessary consequence from the judgment, without its being declared. It is a general judgment, ascertaining the amount of the debt by a court of competent jurisdiction, in a cause duly'brought before it, according to the laws of the'Slate, for adjudication. ' . • This case is supposed to depend on the force and effect of this judgment in Pennsylvania. If it is simply a proceeding in rem, no one pretends it has any validity here — but if the judgment operates beyond the property attached, so as to establish a debt in personam, it is elaiméd on the other side it must have a like effect here. ■' It is understood that this Court recognize such a distinction, and incline to give extra territorial effect to judgments in foreign attachment, wholly éxparte,' if the courts of the State, where they are rendered, give effect to them beyond the property, attached. In this particular our Court is directly at variance with all the most enlightened State courts. There is a surprising uniformity of decision, to the effect that a judgment wholly ex parte, without service upon, or appearance by the defendant, is totally void out of the State in which it is rendered as against persons not citizens of that State. Bissell v. Briggs, 9 Mass. Rep. 462; Thurber v. Blackburn, 1 N. H. Rep. 242; Whittier v. Wendell, 7 N. Ii. Rep. 257 ; Rangely v. Webster, 11 N. H. Rep. 299; Hull v. Williams, 6 Pickering, 232; Starbuck v. Murray, 5 Wend. 148'; Roberts v. Caldwell, 5-Dana Rep. 512; Holt v. Alloway, 2 Blackford Rep. 108. The whole difficulty upon this question arose out of the loose language of Judge Story, in Mills v. Duryee — ' construing faith and credit, as meaning force and effect. All judgments are in that case declared to have the same force in a sister State which they have in the State where the judgment was first rendered. But the absurdity and gross injustice of giving conclusive effect to an ex parte judgment, soon became apparent, and it was found necessary to qualify that decision. It was supposed the case of Bennett v. Morley, 10 Ohio ' Rep. 100, had" fixed the rule in Ohio, in conformity with the current of decisions in the other States. The Court in that case, after noticing the cases of Hall v. Williams, and Star-buck v. Murray, say : “ These decisions necessarily followed ‘ after the qualification which had been given to the case of ‘ Mills v. Duryee, by the very court in which it was heard. ‘ They seemed to be indispensable in order to give import and ‘ meaning to the distinction between those proceedings where (the party has had a day in court, and those where he had ‘ not.” It is now understood, that our Court does not adhere to what was said in that case, but proceeds upon the distinction already stated. The consequence necessarily is, that our citizens are at the mercy of the wildest legislation of any State in the Union. If Texas enacts a law that a judgment in her courts, without process or pleadings or any service on the defendant, shall be conclusive there, it is to be taken as conclusive in Ohio simply because it must have the same force and effect in Ohio that it has in Texas. Any one of our citizens, who has never been within a thousand miles of Texas, may be made a beggar by that doctrine. Fortunately for the defendant in this case, the distinction saves him. This judgment in foreign attachment, as the defendant never appeared to make a defence in the case, is strictly a proceeding in rem, and has no force or effect beyond the property attached, even in Pennsylvania. See the Statute of Pennsylvania as to Foreign Attachment, in Purden’s Digest, 5th edition, p. 436, &c. It is strangely contended by the counsel for the plaintiff, against the clear language of this statute, that it is a judgment in personam, and has force and effect, as such, beyond the property attached. There is not a syllable in the whole law which can be tortured into that construction. Without going over the different sections, it is sufficient to refer to the 12th, which provides “ that the defendant may appear and make de- £ fence before judgment, and if judgment be rendered for the ‘ plaintiff, it shall have the same force and effect as if com£menced by summons.” Now it happens in the case at bar, that the defendant did not appear and make defence, so that instead of becoming a proceeding in personam, it ended, as it began, in rem. I have looked very carefully into the Pennsylvania Reports, but can find nothing to countenance the idea that the judgment in attachment, where the defendant does not appear, is any thing but a proceeding in rem. In MeClenachan v. McCarty, 1 Dali. 403, counsel, speaking of this proceeding, say: “ In this action the plaintiff acquires ‘ no general lien by his judgment as in other actions, but can £ only issue execution against the property attached.” Shvppen, President, says, in the same case, that their attachment act of 1705 is modeled after the attachment upon the custom of London ; that it is strictly an ex parte proceeding until the defendant appears. In Flannagan v. Wetherill, 5 Wharton, 286, the Court say: “ Such judgment in foreign attachment, it is true, is not con- £ elusive to every purpose, but as to the property attached and £ ultimately made liable, it is conclusive as a proceeding in rem.” In Hawley v. Lumberman’s Bank, 10 Watts, 232, it is said: ££ The nature of an attachment, as used in this State, seems to £ be a process not directly issued against the defendant himself £ or property in his possession, but to seize and secure property ‘ of defendant in the hands of some other person.” It would seem, from the Statute of Pennsylvania, and from what is said in the foregoing cases, that the foreign attachment in that State, where the defendant does not appear, has no effect, even there, beyond the property attached. In Felton v. Plainer, 13 Ohio Rep. 218, this Court treated a judgment in attachment, rendered in Michigan, as of no validity in Ohio, there being no service on the defendant. In the same case, the Court reaffirm the doctrine, that if such a judgment had a" further effect in personam in Michigan, it would have equal effect in Ohio. Although this case does -not require thé defendant'to combat that doctrine, I trust the'Court will-, not; consider. :a few' observaupon it as out of place. ■ ■■ I have not -found an -authority- in -any other; State -that will support it. . Every where,- even among.thte strongest advocates for the full faith and credit clause of the constitution', it is admitted, that the court rendering the judgment must h'avte jurisdiction before any effect can be given to such judgment in a new jurisdiction or in another State. ‘ Surely no one has gone further than Mr. Justice Story in giving force to foreign judgments, and yet in Picquet y. Swan, 5. M.asori, 42,'he uses this language,: “ I have already intimated .‘ that no sovereignty can extend its process beyond its territorial ‘limits, to subject either,persons or property to its judicial de- ‘ cisions. Every, exertion of authority beyond this limit is a- ‘ nullity,'án.d incapable of binding-.,persons-.or property in any ‘ other tribunals. Jf a State were to'pass'an act declaring that ■‘ upon personal, notice of a -suit brought against a foreigner, resi- ‘ dent jn .a foreign- country, proceedings might’ be had against ‘.hipi, .and-.,a judgment obtained in invitu-m, for áught I know, ‘ the local tribunals might give a binding efficacy' to -such judg- ‘ inents; but elsewhere, they would be utterly void, as an usurpation of general sovereignty over independent nations and ‘ their subjects.” Again he says: '■ “ Where a party is within a territory, .lie.- may justly be subjected-to its process and bound ■ personally by the judgment ‘ pronounced, on such' process, against him.- Where he is not ‘ within such territory,, and is not personally subject to- its laws, ‘.if, .on account of .his supposed .or actual property being within ‘ the territory, process by the local -laws hiay, by attachment, ‘go to compel--his appearance, and for-'his default to appear, judgment may be pronounced'against him, such a judgment ‘ must, upon general principles, -be deemed only to bind him to ‘the extent of such-.property, and cannot have.-tile effect of a ‘.conclusive judgment in personam, for the: plain reason that, ‘ except so. far .as the property: is."concerned, it ■ is a judgment- £ coram non judice. If the party chooses to appear and take £ upon himself the defence of the suit, that might vary the case, ‘ for he may submit to the local jurisdiction and waive his £ sonal immunity.” The learned judge, among other authorities for this doctrine, refers particularly to the case of Bissell v. Briggs, 9 Mass. Rep. 462, which was upon a judgment of a sister State, and held a nullity in Massachusetts for want of personal service. I must further refer this Court to Judge Cowen’s note, (4 Phil. Ev. 907,) in which all the authorities are collected, and the doctrine is summed up in these words: ££ A person, however, though a citizen of another State or ‘ country, when he comes within the territory of a particular £ sovereignty, contracts a sort of temporary allegiance to it, and { may justly be .subjected to its process Snd bound personally' £ by the judgment of its courts. And whether jurisdiction be ‘founded upon the person being. within its territory, or the £property being there, the judgment will be deemed valid so £ far as that jurisdiction could legitimately extend, but no. further. £ Thus, a very common course in many of the United States £ and in many other countries, is to proceéd against non-residents £ by an arrest or attachment of their property within' the terri- £ tory. Judgment obtained on process of this kind, will gen- £ erally bind the property so arrested or attached. But such £ judgment will not be regarded by neighboring States, or other £ nations, as evidence of indebtedness or as operative in any £ measure in personam, and for this obvious reason, viz: that, £ except so far as the property attached is concerned, there is ‘ and can be no jurisdiction — no power of adjudication.” Now, in the case at bar, an attempt is made to give effect to this Pennsylvania judgment in personam, in Ohio. It is admitted in the pleadings, that no service was made on the .defendant; that he did not appear in person or by attorney, and that, in fact, he never was within the territorial limits of Pennsylvania. The courts of that State never had jurisdiction of his person, and under such circumstances, they render a judgment against him and give it effect there as a judgment in personam, yet, in the language of Judge Story, elsewhere it would he utterly void.
15 Ohio St. 44Bliss v. Hosmer (1846)
This is a Writ of Error to the Supremo Court of Morgan County. Held: that compensation must be actu- ‘ ally assessed, and paid over to the owner, before a public c work can progress, whether he desires it or not. The Constic tulion must receive a construction that will leave it possessed ‘ of practical utility. The public interest is to- be promoted, ‘ while private rights are secured.
15 Ohio St. 58Bissell v. Couchaine (1846)
■ This suit is brought before the Court by a Writ of Error to the Court of. Common Ple.as of Lucas County. ■ The’ declaration, sets forthjin substance, that,, on' the 16th day of June, 184Í, the defendant in. error- delivered to the plaintiff in error the: sum of $418 in trust, to be by the pláintiff in error applied in payment and discharge of a certáin promissorynoté foxy $-100, and interest, made by, the'defendant 'in error with Bisselí and Gardner, on the 12th day of June, 1838, and payable to Chandler Knapp, on the first day of December then next;. that- the plaintiff in error promised' to execute the trust,- but had wholly failed so to dp, and thé note remained unpaid and outstanding against the defendant in error. Then-follow the ;cpmmon money counts. Two pleas were .pleaded'by the plaintiff in error; 1. Non-assumpsit; .2. A special plea in bar, of discharge in bankruptcy and Certificate thereof, granted December 5 th; .1842, on,a petition filed-July'. 18th, 1842, &c. The defendant in error replied,'that the debt -and -' cause- of action, arose,, and was contracted; in a fiduciary capacity, and that the plaintiff in error had applied.said money to his own use, and not .in the payment or discharge of the note. -. The plaintiff rejpined,' and put in. issue the facts averred’ in the .replication'.' ■ ’ • On these issues, the causé was submitted to the Court without the intervention of a'jury, and judgment given for,the defendant in error; and to the finding of the Court the plaintiff in,error excepted. . .. It appears from the record, that, on the trial, the defendant in error, to maintain the issue on his part, gave in evidence the rióte described, arid that the plaintiff in error was one of the firm of Bissell and Gardner,* -who signed the note as sureties for the defendant in error, the other'maker thereof; and that to indemnify Bissell and Gardner, as such sureties, on the 20th day of June, 1839, the defendant in error, as principal, with one' Peter Navarre as his surety, executed and delivered to said Bissell and Gardner their promissory note, for the sum of one hundred and three dollars and fifty cents, payable on demand. The defendant in error also proved, that he paid $100- qn the last' mentioned note to said Bissell and Gardner, with the understanding, that they were to apply it on the note to Knapp; The small balance due on the note, to indemnify Bissell and Gardner, was, afterwards; paid to Gardner, after the dissolution of the firm, but was receipted for by him in the name of the partnership. It was likewise proved, that Bissell and Gardner to have paid the $ 100 so received to Iinapp, on tiro note first mentioned, but the firm soon after becoming embarrassed, failed, and said note remained unpaid. The payment to Bissell and Gardner was proved to have been made before the discharge of Bissell, the plaintiff in error, in bankruptcy, and the counsel for him therefore submitted a motion for a non-suit. This motion was resisted by the counsel for the defendant in error, on the ground that the debt, for which the action was brought, was contracted in a fiduciary capacity. The Court of Common Pleas so held — overruled the motion, and gave judgment for the defendant in error. Is the finding of the Court, as to the issue on the plea of discharge in bankruptcy, (which finding appears only in the bill of exceptions,) sustained by the evidence ? Did Bissell become indebted in a fiduciary capacity? We maintain that he did not. The evidence shows, that the $100 was paid to Bissell and Gardner in part payment of the note given to them by Couchaine and Navarre. This $100 is all that oven constructively came to the hands of Bissell; the balance having been paid to Gardner, after the firm of Bissell and Gardner was dissolved. It does not appear that Bissell and Gardner were to pay over the money within a specified time, or that they were to pay over the identical money received from Couchaine on his note; but they were to “ apply that amount ” on the note which they had signed as his sureties. The $100, undoubtedly, wont into the cash drawer of Bissell and Gardner — was mixed up and used with their own funds; and, before the balance was paid by Couchaine, the firm of Bissell and Gardner had become embarrassed, and failed, “ having no means or effects with which to take up said first mentioned note.” Whatever remained, then, of the estate of said firm, acquired in whole or in part by means of this $ 100, passed to, and vested in the assignee in bankruptcy, by operation of law. U. S. Bankrupt Law, sec. 3, passed Aug. 19th, 1841. Such would be the case with money in the hands of a bankrupt executor or administrator, if it could not be “ specifically ‘ distinguished and ascertained to belong to a testator-or intestate, and not to the bankrupt.” 3 Burr, 1369; Owen on Bankruptcy, 125, 126. A ud where a bankrupt, who is factor for another, has sold the property of his principal, and received the price, before any notice to the vendee not to pay him, the principal has no other remedy but to prove for the amount upon the estate, unless the price remain in the hands of the factor, specifically distinguishable from the factor’s own property. Owen .on Bankruptcy, 126. It was for the defendant in error to show that this money, or some part of it, did remain in the hands of the plaintiff in error, ' specifically distinguishable from the plaintiff’s own property, and, not having shown it, the certificate and discharge in bankruptcy should have been held a bar. The principle which we are contending for, is again declared in Waller v. Edwards, 6 Little’s (Ky.) Reports, 384; where it is held, that a certificate and discharge in bankruptcy is no bar to the recovery of specific property held by the bankrupt as executor,. Aliter, as to a recovery by distributees of money received by him in his fiduciary capacity, and for which he was liable before bankruptcy. But we suppose it will be contended on the other side, that Bissell had assumed a trust in favor of the owner of the first mentioned note; and although the trust was purely voluntary, and without any consideration, yet, as the beneficiary is not shown to have become a party to it, it was revocable, and being revoked, an implied trust results in favor of the party who originally created it, and that the nonpayment of the money establishes the fact of indebtedness in a fiduciary capacity. Before this position can' be made available to the defendant jn error some proof would seem to be required that the trust . ■ . ■ ' was revoked before suit was brought;-but there is no proof-whatever oh that subject.- .- 'Again, — the construction of that clause in the bankrupt law, winch is involved in this suit, has, been authofitively settled by the Supreme-Court of the United States,-in the case of Chapman v. Forsyth et al., 3 Howard’s Rep.- 202, showing that the indebtedness'proven in this casé, is not a fiduciary debt within the meaning of the act. : 'We extract so much of the opinion of the.Coürt as bears directly on the'point under consideration: ■ “.The second .point is, whether a factor, who retains the c money of his principal, is a fiduciary debtor within the mean- ‘ ing'of the act? . “If the act embraced such a-debt, it will be difficult to limit ‘ its application.- -.It must include all debts arising from agen- ‘ cies; and, indeed, all cases where the' law implies- an obliga- , ‘ tion from the trust' reposed in the’debtor. -Such, a construc- £ tion would have left but few debts on which the, law could. £ operate. In almost-dll' the commercial transactions of’th'e £ country, confidence is reposed in the punctuality and integrity £ -of the debtor, and a violation of these is, in á commercial ‘ sense; a!disregard of á trust. But this is not the relation ‘ spoken of in-the-first section, pf the act-. . “ The cases enumerated — ‘-the defalcation of a public offi‘•cer,’ -f executor,’. ‘ administrator,i ‘ guardian,’ of ‘ trustee’— are ‘ not cases of implied, but.special trusts;, and the ‘other'fidu- ■ ‘ -ciai;y capacity,’ mentioned, must mean the same class of trusts. ‘ Thé act. speaks of technical trusts. ■ A factor is not, therefore, ‘ within the act.. . • -. 1 “This view is strengthened, and indeed made conclusive,' ‘ by thé provisions of the fourth section, which declares that no ■ ‘..‘merchant,' banker, factor, broker, undér-writer,-:ór marine- ‘ insurer,’ shall be entitled' ,to.a discharge ‘ who- has ;not kept - ‘ proper books of accounts.’ In answer to the second question, ‘ then, we say, - that a factor, who- owes his principal money,'. ■£ received on the sale of his goods; is not a fiduciary debtof £ within the meaning- of the act.” . - y', Upon the strength of these authorities, we feel warranted in spying, that. the case at bar does not'.present, a fiduciary debt .within the meaning -of the' act of Congress, as found by the. Commpn Pleas, and that its judgment' ought to be reversed. ■
15 Ohio St. 65Darling v. Peck (1846)
This is a Writ 01? Error to the Court of Common Pleas of Wood County.
15 Ohio St. 72Davis v. State (1846)
This is a Writ of Error to the' Court of Common Pleas of Logan County; and the record presents the following state of facts: William Davis and Martha Davis were convicted of arson, at the August term, 1846, of the Court of Common Pleas in Logan county, and sentenced to the penitentiary for the term of ten years. The bill of exceptions and affidavits, in substance, disclose the following facts: That, after the jury was sworn, and some testimony submitted, the Court adjourned for dinner, and permitted the jury to disperse until the coming in of the Court in the afternoon, first having cautioned the jurors to have no conversation with others, or among themselves, respecting the cause under consideration; that, at night, a constable in attendance upon the Court,.was requested by the Court to take the jury to a tavern, and remain with them until the next morning; that said constable was not sworn to hold no conversation himself with the said jury, or not to permit others to converse with them ; that, after the cause was submitted to the jury, they retired to their room, under the charge of the sheriff; that, during a portion of the time they were in charge of said constable, the constable stood in the hall, in view of the jury-room; that no person had any conversation with said jury during their deliberation; that the said sheriff and constable were not specially sworn as to their duties respecting the jury. That, during the progress of the trial, evidence was submitted, that William and Martha Davis resided in Miami county; that said Martha kept house, but no proof whether it was as a married or single woman; that they acted as man and wife, so far as sleeping together was proof of the fact, at different times; that the sheriff treated them as man and wife, and lodged them in the same cell, with but one bed; that she on one occasion called him ‘ my dear ’— also that, at Sidney, they stopped at a tavern, and acted towards each other as strangers — paid their bills separately, and lodged in separate apartments, and left for different points of destination; that, after the verdict of guilty, said Martha made her affidavit, stating that she was, in truth, the wife of said William, and that, having been treated as the wife of said William by the officers, she supposed that fact was conceded, and did not prepare to prove that she was such, and was taken by surprise; and that she could prové such fact, if allowed to do so, on new trial being granted. Upon this state of facts, a motion was made for a new trial, in substance, upon the following grounds : That the jury had been permitted by the Court to disperse, without the consent of prisoner or counsel, during the progress of the trial; that the officer, who took charge of the jury over night, was not sworn not to converse with them, and not to permit others to converse with them; that, when the cause was finally submitted to the jury, they did not retire under the charge of an officer specially sworn to take charge of the jury; that the said Martha was the wife of said William, and should not, therefore, have been convicted; that she was taken by surprise by the conduct of the officers, and was therefore not prepared at the trial to prove her marriage — all of which was overruled by the Court, and a new trial refused. To this decision of the Court a bill of exceptions was taken, and the following errors assigned:— First: That, after the jury were sworn and the trial commenced, the jury should not have been permitted to disperse and separate during the adjournment of the Court, but should have been placed in the custody of a sworn officer. Second: That, after the evidence and argument was closed, the jury were not placed in the charge of a sworn officer. Third: That the offence was joint, and the said Martha could not be legally convicted of committing the offence jointly with her husband. Fourth: That there was no evidence to rebut the presumption, that the said Martha had committed the offence by the command and under the influence of her husband. First: ’ It is claimed that the Court erred in not making some order in relation to the manner in which the jury should be kept, and in suffering them to disperse at the adjournment of the Court, during the progress of the trial. It is admitted, that it is competent for the Court to make . any order they may deem necessary, to prevent the jury from being tampered with during the progress of the trial, aiid before they retire to consider of their verdict. But it is their duty to exercise the discretion conferred upon them; and if they fail to do it, and turn the jury loose, to exercise their own discretion as to the manner in which they shall conduct themselves, it is error, and the judgment should be reversed. This position is believed to be abundantly sustained by the following authorities: 1 Chitty’s Crim. Law, top paging, 513, margin, 629; The King v. Wm. Stone, 6 Term Rep. 531; The People v. Meany, 4 Johns. Rep. 295; 3 Black. 375, note 37; 2 Barn. & Aid. 462; 4 Black. 360, note 21; McKinney v. The State of Illinois, Law Journal, vol. 3, No. 11, 502; Buller’s Nisi Prius, 308; 4 State Trials, 222; 4 Hawkins’ P. C. 233, chap. 36, sec. 15 ; 2 Caines’ Cases, 305; Foster, 16 and 23; Co. Littleton, 221. “ It is a general rule, that there can be no separation of the £ jury, in a criminal trial, after the evidence has been entered £ upon, and before a verdict is given.” Roscoe’s Crim. Ev. 227 Second: The Court erred in sending out the jury to consider of their verdict, without placing them under the care of a sworn officer. The matter is not mended by the fact, that the sheriff conducted the jury to their room, and then left them in charge of one constable, who in turn handed them over to another, but neither of whom was sworn. It is no part of the official duty of the sheriff, or a constable, to take charge of juries while they are considering their verdict. They derive their power from the Court, and act in obedience to its orders. The custody and care of juries belongs to the Court; they may exercise their discretion as to the manner in which they shall be kept. This is a judicial act, and the Court cannot delegate the power of exercising this discretion to a ministerial officer, and thereby escape the responsibility that properly belongs to them. And the Court have no power, in the exercise of this discretion, to place the jury in charge of any body but a sworn officer. “ If they (the jury) cannot agree in a short time by consult- £ ing in their box, they retire to a convenient place provided for £ them, and the bailiff is sworn to keep them, as follows: You £ shall swear that you will keep this jury, without'meat, drink, £ fire or candle; you shall suffer none to speak to them, nor £ shall you speak to them yourself, but only to ask them if they £'are agreed, so help you God.” 1 Chitty’s Crim. Law, 516, margin, 632. In modern times, this oath has been so far altered as to allow the jury necessaries and refreshments ; yet no authority can be found for dispensing with it altogether. ■“ According to the cases of Van Doren v. Walker, 2 Caines’ £ Rep. 273, and Fink v. Hall, 5 Johns. Rep. 437; in that it £ does not appear, by the return, that a constable was sworn to £ attend the jury.” Beekman v. Wright, 11 Johns. Rep. 441. This was a civil case, on certiorari, to a Justice’s Court, to re verse a judgment for twenty-five dollars. “ It was the duty of the Court to have sent a sworn officer £ with the jury; and if this duty was neglected, and the fact £ should appear from a bill of exceptions, the judgment would ‘ be reversed.” McKinney v. The State of Illinois, cited above. The fact does appear from the bill of exceptions in this case. “The officer, oh receiving charge of them, (the jury,) is £ sworn to conduct them to their room, and not suffer them to £ separate, or to eat or drink, water only excepted, or to speak ‘ to them unless it be to ask them if they are agreed, or by £ order of the Court.” Engles v. The State of Ohio, 13. Ohio Rep. 492. “ Although, in modern times, the ancient strictness has £ yielded to a more enlightened reason, yet no rule tending c to insure the impartial administration of justice, and the purity £ of jurors, has, in the slightest degree, been abandoned or imc paired.” Sargeant v. The State of Ohio, 11 Ohio Rep. 414. The Legislature have recognized the necessity for swearing the officer who has charge of a jury, by providing for the payment of the clerk’s fees for administering the oath. Swan’s Stat. 395. The law presumes that, in the absence of such an oath, the jury will be tampered with; and it is for that reason, that the oath is required. Can this presumption be rebutted by proof? ■ We hold that it cannot. But if it can, are ex parte affidavits to be taken as conclusive ? We may deny the facts stated in the affidavits, and ask that the witnesses may be sworn “ to tell the whole truth.” We demand an opportunity to cross-examine them; we offer evidence to contradict them; we demand compulsory process to compel the attendance of .witnesses. It is a mockery of justice to permit a fact of this magnitude to be established by the ex parte testimony of such witnesses as the party may select. It is submitted with confidence, that, to dispense with this oath, would “tend” to defeat “the impartial administration of 5 r justice,” and endanger “ the purity of jurors-.” It has long been settled, that the testimony of a juror is inadmissible to prove misconduct in the jury. This effectually closes the door against the only practicable means that can ever be resorted to, to prove that'a verdict has been, in fact, procured through improper influences. If the door shall now be opened on the other- side, for the admission of improper influences, the purity of jurors, and the impartial administration of justice, cannot be presumed. Third: Martha Davis ought not to have been convicted, because the offence was committed by her jointly with her husband. The record and bill of exceptions show, that they are known by the same name, addressed each other as husband and wife — were treated as husband and wife by the landlord in Port Jefferson — by the officer who arrested them — by the tavern-keeper, where they stayed the night after they were arrested, and by the sheriff and jailor, from the time of their arrest till their trial; that there was no testimony tending to rebut this proof. “ Where, on the trial of a man and woman, it appeared by c the evidence that they addressed each other as husband and ‘ wife, and passed as such, and were so spoken of by the wit-c nesses for the prosecution, it was held sufficient.” Roscoe’s Crim. Evidence, 879. “ The law seems to protect the wife in all felonies, committed £ by her in company with her husband, except murder and ‘ manslaughter.” Hale’s P. C., chap. 47. “ If a woman commit theft, burglary or other civil offence, '£ against the laws of society, by the coercion of her husband, or £ even in his company, which the law construes a coercion, she £ is not guilty of any crime, being considered as acting by cortic pulsion, and not of her own will.” 4 Blackstone’s Com. 28. “ As the charge against the husband and wife was joint, and £ it has not been left to the jury to say whether she received the £ goods in the absence of her husband, the conviction of the c wife cannot be supported, though she had been' more active £ than her husband.” The King v, Archer, 2 English Crown 146. “The Court said the indictment could not be supported £ against Susannah Trimmer, as she was charged with having e committed the offence jointly with her husband. Whereupon £ the Solicitor General (Davis) entered a nolle prosequi.”.— Commonwealth v. Trimmer, 1 Mass. Rep. 476. . , ■ “ The general doctrine is, that a feme covert incurs no legal £ guilt by the commission of civil offences, by the coercion of ‘ her husband, or even in his presence.” Commonwealth v. Neal, 10 Mass. Rep. 152. “ And if a wife act in company with her husband, in the ‘ commission of a felony other than treason or homicide, it is £ conclusively presumed that she acted under his coercion, and £ consequently without any guilty intent.” Greenleaf’s Evidence, sec. 28, page 35. It is deemed unnecessary to multiply authorities; and it is claimed that the judgment must be reversed, and that Martha Davis must be discharged from custody. Only three of the causes assigned for error are relied upon by the plaintiffs in error: First: That the jury were allowed to separate during the progress of the trial. It seems to me this is not an open question since the case of Sargeant v. The State, 11 Ohio Rep. 472. The Court held in that case, that “ in both civil and criminal cases the Court may, £ in their discretion, during the progress of a trial, permit the £ jury to disperse for the purpose of obtaining food and rest: £ but in no case can the jury, after they have retired to consider £ of their verdict, be permitted to separate and disperse until £ they have agreed.” Second: That the Court erred in suffering the jury to retire to consider of their verdict, without placipg them under the care of a sworn officer. There is no pretence of any misconduct on the part of the jury — of any separation, or of any access to them from without. On the contrary, it appears by affidavits made .part of the transcript, that they were kept in their room up to the time of their agreement, and were then immediately conducted into Court and delivered their verdict. As to the objection that no special oath was administered to the sheriff in relation to the custody of this jury, I am not aware of any practice of swearing a sheriff in such cases. In some circuits it is usual to administer such an oath to the constable in attendance upon the court. This oath is in the old form of the English practice. We have no statutory provision which requires it. At the best it is but a mere form, as is said by this Court in The State v. Engles, 13 Ohio Rep. 492. Third: The remaining assignment of error, is, that the Court erred in passing a judgment of conviction against the said Martha Davis, who was proven to be in company with her husband at the time of the commission of the offence. The only answer that need be given to this assignment, is, that it assumes a fact not warranted by the transcript. There is no proof that Martha Davis was the wife of William Davis. The testimony relied upon by the counsel for plaintiffs in error to establish the marriage,, is thus summed up-by him: “ In the £ first place they have the same name —address eacli other as £ husband and wife,” (videlicet, she once called him £ my ‘ dear,’) — ■“ were treated as husband and wife by the landlord in £ Port Jefferson, by the officer who, arrested them, and the £ tavernkeeper where they staid the night after the arrest, and £ by the sheriff from the time of their commitment until their £ trial.” But if such testimony even tended to establish the fact of marriage, the supposed wife had all the benefit of it. No part of it was excluded by the Court. It seems it did not satisfy the jury. • First: It is not error for the jury to disperse by permission of the Court during' the progress of trial when the Court adjourns. Sargean} v. The State-, 11 Ohio Rep. 472 ; The State v. Engles, 13 Ohio Rep. 492; Sutliffet.al.Y-. Gilbert, 8 Ohio Rep. 405, and.3 Ohio Rep. 53; People v. Douglass, 4- Cowen, 26; Clark y-. Coe, I Pá. R.ep. 278;. Crane v.. Sayer, 1.Hal-stead, 110 ; BurriU- v. Phillips,;! .Gall. Q. C. Rep.- 360 ; Sliép-, herd y'. Bayler, 2 Southard, 827 yT.Coweffs Rep. 232,238 in npte'; ex parte Hill, - 3 Cow-e.n; 355; -Winslow, v.-Draper,' 8 Pick. 170'; The King.v. Wolf et al., 1 Chit. Rep. 401,;-Daña v. Tricker, 4 Johns. Rep. 487 ; Harrison v;- -Rowan, 4 . Wash. C. C. Repi 32; 1 Chit. Cr. Law, 629; 2-B. &'A. 462; 1 Chit. Rep. 401; S. C. -Smith- v. Thompson, 1 Cówen, .221'; Douglass v.'.-Tousey,. 2-Wend. 352. • :The refusal to grant, a new trial is' in-theydiscretion-Pf the iCquit below, but- is not examinable on.er-rofV; 2- Peter’s .Dig.'. 549, ..citing U.. States v.Gillies, -Pét. C. C't Rep: ■ 15:9; The' case: of McKinney., v. ■ Illinois, Law J'pur. yo1.-3,No.'11, wq,s decided tinder a statute of Illinois,- . . . , ■ -■' ■ -■ V . - -.'■•Second: \ The judgment will not be-reversed because the ;Rpn'stabIes- 'were --hop specially.-.sworn.. The-'authorities cited show, that, without proof'of-misconduct on'the part of the jury, their yer'dict-will'.,not- be set--aside;/even -wheré they disperse after;haying retired 'to-, consider of- their verdict, (as is said in á case referred, tó; above,) '— even- “ in a- .capital case, contrary to the directions of 'the .Court.” If such separation of the jury will not, per se, set-aside their verdict; the fact that a constable had charge of the.'.jury-without being specially sworn, will not avoid a'verdict without' proof' of misconduct; No statute requires them to. be sworn;. such is not the practice in Qhio; but. our. law (Swan’s-Stat; 39)' recognizes them as officers of court. Besides, the record shows that the jury were “ in the custody of the sheriff,” .and-'hp is the executive officer, of -the court, and. as such, properly had charge of the jury. It is well settled that all presumptions of improper conduct on the p;.rt of the jury, may be rebutted, and it is done in this case by the affidavits made part of the record. Third: This Court will not review the discretion exercised by the Common Pleas in refusing a new trial, so as to permit Martha Davis -to make more full proof of her marriage. New trials rest in the sound discretion of the Court below, and its exercise in that Court will not be reviewed: U. States v. Gillies, Pet. C. C. Rep. 159. Nor can this Court infer that there was no evidence rebutting the legal presumption that Martha Davis committed the crime under the coercion of her husband. It will be presumed that the Court and jury had that evidence, and did their duty; 3 W. Law. Jour. No. 11, 491. The whole evidence is not set out in the bill of exceptions. If Martha Davis proved her marriage, the jury found' that the presumption of coercion was rebutted. If she did not prove it, and if it does not so appear here, there is nothing on which this Court can act to grant a new trial. If that defence was not made, it is now too late to make it. Any other rule would encourage a defendant to hold in reserve a part of his defence, and would lead to endless new trials.
15 Ohio St. 84Lessee of Fosdick v. Risk (1846)
This is an action of" Ejectment, reserved in the County of Hamilton. , ' The case was sübmittedto a jury, at the last term of-the, Supreme Court.in Hamilton 'county. Upon the trial, it was proved that,, in 1820, the defendant, ’Risk, sold apd conveyed the land'in controversy to one Huddart,. and" took back .a'mortgage from Huddart, to .secure a note of $1300, the purchase money unpaid; ■ The attestation of the déedj from- Risk to the defendant, was in these words;' “ Sealed and -.delivered in presence of” the two witnesses. At May term of the Court-of Common' Pleas, 1822, of Hamilton county, Risk recovered a judgment on this note, for $1356.76 damages, and $11.95' costs; Execution -was issued upon said judgment,, .and.-first levied upon the crops growing upon the.land; and after said crops wére sold; the execution' was levied upon the land, which subsequently sold at sheriff’s sale to Fosdick; the lessor of the plaintiff, for-$867. This sale was confirmed'by the'Court; and a deed executed and delivered by the sheriff to Fosdick. After the sale of the growing crops, Iiuddart abandoned the land, and Risk, the mortgagee, took possession, and was in at the time the land was sold to Fosdick. Risk was indebted to Richard Fosdick, the father of Samuel, lessor'of plaintiff, and there was evidence tending to show that, by or under an agreement between Risk and Richard Fosdick, the land was struck off and conveyed to the lessor of the plaintiff, who paid no part of the purchase money except the costs, and was to hold the legal title in trust, to secure the debt due to his father. The debt due to the father was not proven to have been paid. — ■ There was further testimony in the case, which it is unnecessary to recapitulate. The Court, by consent of parties, instructed the jury to return a verdict for the defendant, which was done accordingly, subject to the opinion of the Court upon the law arising on the facts before stated. If the Court should be of opinion that the law was with the plaintiff, then the verdict to be set aside and a new trial ordered, otherwise judgment to be entered on the verdict. First, I propose to consider Mr. Fosdick’s right of recovery, upon the basis, that the sale to him was bona fide, and unassailable in any respect. It will be perceived he holds title under a judicial sale upon the mortgage note, and the defendant essays to protect his possession under the mortgage. Had the sale produced a sum equal to the judgment debt and costs, it would have extinguished the mortgage debt; and when that was extinguished, the mortgage, as its auxiliary or attendant, would have fallen with it; 10 Ohio Rep. 436; 11 Ohio Rep. 341. A mortgage lives and dies with the debt it secures. Satisfaction of the debt destroys it. But, inasmuch as the sale produced only about, two-thirds of the mortgage debt, then the question arises, does it extinguish the mortgage entirely, or only pro tanto ? In New York, the sale of the mortgage premises under a judgment upon the accompanying note, if it produce a sum to the mortgage debt, or if it do not produce that sum, does not extinguish the mortgage in toto, nor pro tanto, because nothing is sold but the'equity of redemption. If the mortgagee pursue the mortgagor’s other property, after a partial satisfaction from the sale of the equity of redemption, he will be compelled to assign the mortgage to the mortgagor, to enable him to recoup from the purchaser of the equity of redemption; 2 Johns. Chan. Hep. 125, 503; 10 Johns. Rep. 492, or *481. This is upon the ground, the mortgage interest is not sold, but the residuum only. In Maryland, the debtor’s interest in premises mortgaged by him may be sold on execution; 9 Cranch’s Rep. 456; 3 Har. &, McHen. Rep. 535. So in Massachusetts, except at the instance of the mortgagee, who is precluded by statute, as it would cut off the three years’ redemption allowed after foreclosure; 1 Pick. B-ep. 354, 389; 4 Pick. Rep. 131. So in Connecticut, the equity of redemption may be taken in execution, but nothing but the equity of redemption; 1 Swift’s Dig. 155; 2 Conn. R,ep. 244 ; 3 Conn. Rep. 211; 5 Conn. Rep. 592. And so also in Kentucky, the equity of redemption can be sold on execution, at the instance of a general creditor, but not by the mortgagee, under a judgment, on the mortgage note. 7 Dana’s Rep. 64, 220; 4 B. Mon. Rep. 145. In these States, it will be perceived; nothing but,the equity of redemption, or the estate in the mortgagor, subject to the mortgage, is taken in execution; and nothing but that interest is sold. Hence the mortgage is left as a security untouched, as to any portion of' the debt not made certainly, and probably to the whole extent, so far as subrogatory rights aré concerned. So far as the debt is extinguished by the sale, it is very clear the mortgagee himself has no claim upon the mortgage premises, under or by virtue of the mortgage. And it would seem to follow, if nothing be sold but the equity of redemption, the purchaser would take subject to the mortgage, and the mortgagor would be entitled to subrogation and a transfer of the mortgage, because another interest in the mortgage premises has been sold, and subjected to the payment of the debt other than the mortgage interest, which still remains. But should the mortgagee assign the mortgage debt to the purchaser of the equity of redemption, it operates as an extinguisher, and he cannot pursue the mortgage ; 2 Johns. Chan. Rep. 125. Yet it does not follow the mortgagor has no' remedy for his lost estate, if the debt were paid from the sale of the equity of redemption, in whole or in part. Such, unquestionably, may be conceded to be the result from pursuing the note, and not the mortgage, and in subjecting, not the mortgage property, but the special interest of the mortgagor therein, under or beneath the mortgage. But would that be the case in Ohio now, or was it when this land was sold ? Our laws then did, and now do require the lands, and not the equity of redemption or estate of the judgment debtor, to be taken in execution, appraised and sold, for not less than two-thirds of the appraised value. The thing is appraised; the thing is sold — not the interest of the judgment debtor; 8 Ohio Rep. 24; 11 Ohio Rep. 342. It is true, the sale when carried into grant, gives nothing but the title of the debtor. It passes the lands under his legal title, whatever it may be. It is not the mere equity of redemption that is sold as a limited estate in the lands, but the land itself. The purchaser takes, under his deed, the entire land, and not the mere equity of redemption therein. All the interest of the judgment debtor in the land passes to him; and if the entire mortgage debt be extinguished by that operation, the purchaser takes the land, discharged of the mortgage, inasmuch as the sale is of the land, and not of the residuum. There is an important distinction in the Ohio system from all others, and it must necessarily require a rule of property to correspond with the change, and be commensurate with the new state of case it presents. We sell, in Ohio, the land — the thing itself • and if the sale extinguish the mortgage debt, the purchaser takes the title, discharged of the mortgage. The mortgagee cannot set it up, because he has no debt to sustain it. The mortgagor cannot, because his entire title has passed to the purchaser. If, in the present case, the mortgage debt had been paid by the proceeds of the sale, the purchaser would have taken the title; in fact, he would have taken the land, discharged of the mortgage, not only as to the mortgagee, but also as to the mortgagor. And, if such would have been the case in that event, it would seem to follow as a necessary consequence at least, where the mortgage property should be sold under the judgment upon the accompanying note, the mortgage should be extinguished to the extent of the sale, or pro tanto. So far as the judgment debtor was concerned, the land was gone from him. So far as the judgment creditor was concerned, the liens he had upon the land under the note and judgment, were gone from him. The purchaser is subrogated to his position for his protection against puisne rights, even those of the creditor himself ; 3 Ohio Rep. 529. He holds, it is true, as purchaser, but it is with the benefit of the judgment lien. He takes the interest of the debtor in the land at the time the judgment lien attached, and is invested with the rights of the creditor at that time; 3 Ohio Rep. 530. To that extent, and "or there purposes, the purchaser takes title against both; 2 Ohio Rep. 224; 10 Ohio Rep. 436. The judgment, by law, binds the land so soon as it begins to operate; and when the land passes into grant under the judgment, for some purposes the title is thrown back to the time of the judgment, and for others to the time of sale. The note is credited with the proceeds of the sale, and to that extent, certainly, the mortgagee is precluded. So that, whatever may be the result as to the residue of the debt under the mortgage, to the extent of the credit under the judgment and sale at law, the mortgage is discharged. We now come to consider whether the sale of the mortgage premises, under the proceeding upon the accompanying note, did not in fact extinguish the mortgage, even though the entire debt was not thereby satisfied and discharged. When these proceedings were had, the mortgagee had four distinct' remedies — three concurrent and one alternative, but all subordinate to, and available -only for the collection of his debt. He had an action upon his note, an action of ejectment, the scire facias remedy, and a bill of foreclosure. The first two, with the last, might be .used concurrently and at the same time, or the third pursued alone; 1 Ohio Rep. 158. The scire facias and bill' could not be used at the same time, because they both operated' to ctit off the equity of redemption, and were in effect one and the same: The one, summary and direct, but confined in its action'; the other, more expansive, and of greater remedial power, but equally as certain in its ultimate aim. The action of ejectment operated upon the possession, rents and profits,' but left the right of redemption and title at large. The action upon the note'operated upon other property, as well as that incumbered with the mortgage. If, under the proceedings upon the note, it was discharged or satisfied, the mortgage expired and ceased to operate. If the mortgage property be pursued, the mortgagee thus makes his election to subject it that way to the satisfaction of his debt, and, upon all just principles, should be estopped from asserting a claim against this his election. It virtually annihilates the relation of mortgagor and mortgagee,by tearing away, from both, the subject matter upon which the relation subsisted. 9 Conn. Rep. 152. It will be recollected that the mortgagee, in pursuing the mortgage premises under his action upon , the note, does not merely subject the equity of redemption of the mortgagor to the satisfaction of his debt, but the lands and entire right of the mortgagor therein. The land is taken in execution, appraised, advertised, sold and conveyed, at his instance and by his Order. It was the very thing upon which his mortgage had been fastened, and that he has taken, sold and- conveyed, and not the interest of the judgment debtor subject-to the mortgage. This, then, (to reverse the language of the Court in 10 Johns. Rep. 493, or *482,) is a case in which the creditor’s pursuit of his remedy on the mortgage, would work an injury to the purchasers under the previous execution. It is not a case in which the creditor would lose his security,, inasmuch as, under the sale upon his execution on the note, he' sells the very interest he would have sold under the mortgage, either by scire facias or by bill, so far' as the judgment debtor or mortgagor may be concerned. If he be permitted to assert his mortgage, he defeats the sale made under his directions. Far otherwise would be the rule, had he sold the residuum remaining in the mortgagor after the execution of the mortgage. In that event the mortgage interest would have been untouched, except the debt would have been diminished pro tanto, and, against the purchaser, the mortgagor would have had a subrogatory right. To this the mortgagee should not be permitted to except, inasmuch as he had selected his remedy, and accomplished by it the very result he would have accomplished, had he operated directly upon his mortgage. Upon the scire facias remedy, the Court thus reasoned,-in 1 Ohio Rep. 158, and I am unable, if applicable, to see how its force can be broken. If the judgment creditor’s rights cannot be disturbed' by the voluntary act of the judgment debtor, can they be disturbed by his voluntary act in surrendering the mortgage land to the mortgagee, after judgment against him and covenant broken? We say not; because he has no power over the subject matter, so far as the rights of the judgment creditor are concerned; nor has the mortgagee, except by foreclosure in chancery. If he take possession by ejectment, it is not absolute, but qualified; it is to apply the profits to extinguish the debt. Severally nor jointly can they, without the aid of the Courts, defeat the judgment creditor’s lien and right to pursue the judgment debtor’s property, held by legal title at the time the judgment lien begins. When the property is pursued and sold on execution, the purchaser holds the title against the judgment debtor from the day of sale; and it is subject to execution and levy as his, after the day of sale, if carried into grant; 10 Ohio Rep. 235; 14 Ohio Rep. 294. He holds as the judgment debtor held, at the time the judgment lien attached, or with the benefit of that lien, so as to cut off or supersede all intermediate rights acquired before the sale, and after the lien began. “The pur- £ chaser at sheriff’s sale acquires all the right, tifie and interest £ in the land, which the debtor had*at the commencement of * the judgment lien; is vested with the rights of the creditor, ‘ entitled to the same relief, and can protect his title against the £ frauds of the judgment debtor in .the same manner, and to the £ same extent that the judgment creditor might have done, had £ he purchased;” 3 Ohio Rep. 530; 5 Ohio Rep. 55; 9 Ohio Rep. 185 ; 10 Ohio Rep. 404; 11 Ohio Rep. 243. The purchaser’s title relates back to the commencement of the judgment lien, so as to defeat and cut down all rights acquired from or against the judgment debtor after the judgment lien attached. He does not get a mere lien, but title at law, so as to overreach alienations by the judgment debtor. If the mortgagee desire to overcome this right of the purchaser, he must do it through the agency of a Court of Chancery, and not by private tampering with the mortgagor. His rights are not impaired by the judgment lien; but the mortgagor’s control over the mortgage estate is limited and restrained by it. So long as no intermediate rights intervened, the law permits him to do as he pleases with his own; but, so soon as such rights spring up, to the extent of those rights his power over his lands is struck down, and passes to another. But let us view this subject in another aspect. We have already seen, that lands held by legal title, coupled with an interest, are subject to judgment liens, levies and sales. The legal title to mortgage lands, while in the possession of the mortgagor, is in him, and the lands are bound by judgments against him. When the possession has been shifted to the mortgagee before foreclosure, the legal title still exists, and remains in the mortgagor, or passes to the mortgagee, and is bound by judgments against the one or the other. The mortgage is the mere security for the debt, and only a chattel interest; and, until foreclosure by a decree, the mortgagor continues to be the real owner. The mprtgagee has but a qualified possession and interest. He holds, thé better to secure his debt. The mortgagor has something more than a mere chattel. He has a descendible, devisible and alienable estate. Except as against the mortgagee, certainly, while in possession and before foreclosure, he is regarded as the real owner and a freeholder, with the-civil'and political rights belonging to that character. No advantage can be taken of the breach of the condition; and he is not barred, independent of a foreclosure, except where the lapse of time, in analogy to the statute of limitations, works an actual transfer of the title. The' mortgagee may use his mortgage and remedies to enforce payment, but nothing else'. Even after forfeiture and possession taken by the mortgagee, the mortgagor is viewed as the sole owner, and can compel the mortgagee, as his agent, (not trustee,) to account for rents and profits, and relinquish his lien when the end is accomplished. In a word, the-mortgagor is viewed as the sole owner of the mortgage land, as well alter forfeiture as before he executed the mortgage. And the mortgagee has rather a power, than an interest or an estate, which he can use only to collect his debt, oí enforce the duty the mortgage was intended to secure. 13 Conn. Rep. 572. There is still anothér view to be taken of this case. The defendant caused the premises in question to be levied upon and sold a.s the property of Huddart. Having done so, and having applied the proceeds to his own use, he is now estopped to deny Huddart had title in the lands sold. In 2 Ohio Rep. 510, the Court held it to be an established principle, that if a person, having a right to an estate, permit or encourage a purchaser to buy of another, the purchaser shall hold it against him. Under this rule the defendant would be concluded. The sale was made at his instance and under his order. The purchaser took the title at his request, to hold for such uses as he then directed, or he took the title at his request, and paid his' money. By no rule of common honesty could he be permitted to thus act, or to draw from a purchaser the fair price of the land sold at 'his instance, and' then take the property from him by the assertion of a paramount title or mortgage. Could he, upon tire judgment on his note, have sold but the residuum, subject to his mortgage, then he would not hare subjected the same, but a different interest, and it would not be .unjust for him to proceed. But when he sells the very thing mortgaged under the judgment upon the note, precisely as he would under a proceeding on the mortgage, it is not too much to sáy, he has made his election; he has extinguished his mortgage, and cannot again set it up. The case in 9 Cowen’s Rep. 274, bears upon that now under consideration. There the officer was shown property by A, as belonging to B. It was levied upon, and sold as B’s. A afterwards sold it as his, but was held in an action against him to be estopped by his act in showing the property as B’s. So, also, does the case in 2 B. Mon. Rep. 256. The Court say: ££ The principle on which the plaintiff’s right of recovery ‘ depends, is this, that the possession of the execution debtor is 1 sufficient evidence of such title in him as authorized the sheriff £ to levy upon and sell the land; and that, although when c possession is the only fact relied on by the purchaser as evi1 dence of such a title in the debtor as was subject to levy and £ sale, the latter may show that he had not such title, but a £ mere equity, he will be deprived of the benefit of this fact, 1 and estopped to deny the title of the purchaser, if it be shown £ that the levy and sale were made with his assent, and espe- £ cially if made under the supposition (as would be presuméd ‘ in the absence of proof) that ho had the legal title.” And the Court further say, if the defendant assent to the sale, or if he direct the sheriff to levy upon the land and sell it, or, being present at the sale, did not unequivocally dissent, or disclose the nature of his title, he is to be regarded as having assentéd to the sale, and as being estopped from denying the title of the ■ purchaser holding the sheriff’s deed. If you place a plaintiff in execution in the like category, common honesty and good faith require that he also should be estopped. So in the ease, in 2 J. J. Marsh. Rep. 33, where a mortgagee stood by and heard the title of the mortgagor to the premises sold, represented by the sheriff as valid when offered for sale on execution, and permits a bidder to purchase, concealing his mortgage — and especially if he be plaintiff in the execution — he is guilty of fraud, and the purchaser will be relieved. So, also, when property is sold by the interference or express order of the plaintiff, on execution, to satisfy his debt, he is responsible to the bona fide purchaser, if it shall turn out the property belonged to another. So, in 2 A. K. Marsh. Rep. 356,. it is held that a party, who> consents to the revival of a judgment in the name of another as executor, is estopped to deny that he was executor. So, where one admits title to be in another, he cannot assert title against his admission, (12 Wend. Rep. 57,) unless he acted under a mistake, (7 Wend. Rep. 401; 2 John. Cases, 353,) and corrects it before his admission has been acted upon. So, if a man take a lease of his own land, he is estopped from setting up his original title; 12 John. Rep. 357; 1 Hild. Dig. 142, §28; 5 Pick. Rep. 127; 2 Dana Rep. 443; 4 Mon. Rep. 400. The rule is the same when he directs the lease to be made to another; 12 John. Rep. 357. So, when one receipts to an an officer for goods, as the property of the defendant in execution, he cannot claim them as his own ; 3 Hill Rep. 215; 9 Cowen Rep. 274; 4 Metcf. Rep. 381. So, if a plaintiff cause an officer to neglect his duty, he shall not complain. 1 Hill Rep. 275. So, when a party confesses a judgment, he is estopped to gainsay it; 9 Paige Rep. 137 ; 10 Ohio Rep. 162. So a deed, fraudulent as to creditors, binds parties and privies; 10 Ohio Rep; 167 ; 7 Ohio Rep. pt. 2, 71. So, when a plaintiff' causes an equity of redemption to be levied upon, and buys, he cannot deny the mortgage; 3 Dana Rep. 349. So, one assigning dower in his own lands, is estopped to say they are not subject to dower; 23 Pick. Rep. 88. The whole of this matter resolves itself into this: if one be silent, where he should speak, afterwards the law will compel Mm to remain silent if he would speak. 3 Hill Rep. 389; 5 Dana Rep. 55. If one will cause his own lands to be taken in execution and sold, and title confirmed to the purchaser, and receives the purchase money, he cannot claim title against the purchaser. He is estopped by his own acts. If he sell and convey lands, he will not be permitted to assert title against his deed; 16 John. Rep. 110, 201. Nor will he be permitted to say the lands were not his ; 1 John. Cases, 90. So, when the maker of a note admits it to be good, or is standing by, and permits it to be sold without objection, he is estopped; 19 Wend. Rep. 557; 21 Wend. Rep. 94, 172. So, where one, entitled to the services of another, without objection permits a third person to obtain the same, he is concluded, and cannot assert his right; 6 Wend. Rep. 426. So, where an attorney appears in a 'cause, he cannot deny his authority; 8 Cowen Rep. 253. So a purchaser’s title cannot be disturbed by one who encouraged him to make the purchase. 14 John. Rep. 446. In the view of the principle involved in all these cases, which is identical — that is, if one by his instrumentality occasions another to pursue a line of conduct that he otherwise might not have' pursued, he shall not afterwards be permitted to change his original position, so as to affect the rights of the party thus operated upon — it seems to me the law will not. permit a plaintiff in execution to claim land which he has caused to be sold as the lands of the defendant. Risk caused these lands to be taken in execution and sold. If he then claimed title, he should have prohibited the one, and stopped the other. But, having permitted the land to be taken in execution, appraised and sold, and then the sale to be confirmed in Court, every consideration requires he should not be permitted to defeat a title that has thus passed to the purchaser at his instance, and from which he has reaped the fruits of his execution. ' The facts natural to the decision, are as follows : Plaintiff put in a deed from Thomas Risk, the defendant, to George'Huddart, dated 18th March, 1820, conveying the land in question. (The attestation to this deed is, “ sealed and delivered in the presence of” two witnesses.) Also, a transcript of the record of a judgment rendered in the Court of Common Pleas of Hamilton county, on 15th May, 1822, in favor of said Thomas- Risk against said George Huddart, for the sum of $1,356.76, and $11.95 costs. Also, that on the 19th June, 1822, execution was issued, and that on the 24th of the same month a levy was made on the growing crops of the said George Huddart, then on the land in question, and that on 6th July, 1822, the sheriff sold the same for $ 14.50, then indorsed nulla bona on the writ, and on the 2d August, 1822, levied on the land in question. That, on the 10th September following, the sheriff sold the same to said Samuel Fosdick (lessor of the plaintiff,) for $867; which sale was by the Court at the September term of the same year confirmed, and a deed was ordered. Plaintiff also produced a deed purporting to be made by Richard Ayres, sheriff of Hamilton county, in pursuance of said order, to Samuel Fosdick, dated October 20th, 1822, and recorded 15th March, 1826. The defendant then proved a mortgage made of said premises by said George Huddart to defendant, dated 18th March, 1820, recorded 12th September, 1821, to secure the payment of $1,300, to be paid in one year as the balance of the purchase money due on Huddart’s purchase from defendant. The defendant also proved by his sons, that after the levy had been made on Huddart’s personal property, and before the levy was made on the land, to wit, some time in the month of July, 1822, said George Huddart agreed to give up the land in question to the defendant for the mortgage debt. Huddart accordingly relinquished possession, and the defendant entered immediately — was in possession when the levy was made, and has remained in possession ever'since. Plaintiff also proved, that Thomas Risk told Samuel Hartley,1 in 1822, that he had bailed a man who got goods at Mr. Fosdick’s store, and had mortgaged the place to pay him. The defendant called Hugh Moore, who proved that shortly after the death of Richard Fosdick he went with defendant to the plaintiff. He . said that he was glad to see defendant ; that he wanted to have it understood how he held the land; that he, Fosdick, had mortgaged it, but that the mortgages were then off or paid;, that there had been a mortgage in 1816 to Richard Fosdick to secure a debt of seven or eight . hundred dollars, and he, Samuel, now held the title to secure the' debt. This witness’ testimony also shows, that Samuel Fosdick paid nothing on the sheriff’s sale. There was evidence tending, to show, .that the purchase at the sheriff’s sale was made for the benefit of the defendant, who would not purchase the property in his own name, because he owed several small debts, (since paid off.) The jury rendered a verdict for the defendant, under the direction of the Court. , Huddart was not in possession of the mortgaged land when the levy was made. A mortgaged estate is not liable to execution upon a judgment against the mortgagor when the mortgagee is in possession. Plaintiff’s counsel contend that the mortgagor is the legal owner, although the mortgagee is in possession. We admit that to be so; the mortgagee holds only a pledge at law, as well as in equity, and he holds no more when he is in possession. But the general rule is, that, although the pledgor is the real owner, subject to the debt, the property pledged cannot be taken in execution under a judgment and execution against the pledgor. Story on Bailments, s. 353. — “ Goods pawned are not liable ‘ to be taken in execution in an action against the paionor; ‘ at least, not unless the bailment is terminated by payment of ‘ the debt, or by some other extinguishment of the pawnee’s ‘ title.” Upon á common law exécution,' the sheriff can only levy upon such property as the debtor may possess, or have a right to possess, and the possession of which can be transferred by the sheriff to a.purchaser. For this reason, property pledged cannot be levied upon, although it may be in the hands of the debtor, for he holds only at the mere will of the pledgee, who has the right to the possession. It is true, that this rule has been relaxed so as to allow a levy upon mortgaged lands, when in the possession of the mortgagor. The plaintiff, in the present case, asks for a further relaxation of the rule, so that a levy may be allowed when the land is not in the possession of the debtor, but is held by the morgagee. According to Seymour v. King, 11 Ohio Rep. 342, no fair sale can be made upon an execution at common law, upon lands mortgaged, wherefore, it is right to abandon a levy on such lands. The Court say: “ A Court of Equity is the only proper tribunal to adjust the interests of all parties.” We submit, that the rule forbidding a levy upon property pledged ought not to be further relaxed. We do not say that the mortgagor has only an equitable interest; we hold that he has, like the pledgor of .chattels, a legal right, and is, both at law and in equity, the real owner. At common law, the pledgee may sell the pledge, when there has been a default in the pledgor. “ Such a right does not divest the general property of the pawnor.” Story on Bailments, sec. 308 ; and see sec. 307.. A pledgee of chattels may file a bill in chancery against the pawnor, for a foreclosure and sale, (Story on Bailments, sec. 310,) not because the pawnee has no legal right, but because it is equitable and just that he should be prevented from exercising his legal right to redeem, after unreasonable delay. A bill to foreclose a mortgage, or pledge, does not assume that the defendant has only an equitable right. The Court act upon the legal right to redeem, and compel its exercise- within a reasonable time. All rights which are not the subject of a common law execution, may be reached in chancery; hence, the rights of a pledgor of lands or goods may be there subjected to the payment of such pledgor’s debts. When the pledgee is in possession, a common law execution cannot reach the property. The deed from Risk to Iiuddart did not pass the title.* We will assume in the first place, for the sake of argument, that the attestation to a deed need not, under the statutes of this State, show that the deed was signed, &c., but that the attesting witnesses may be called to prove the fact. It surely will not be contended that the signature to a deed for the conveyance of land proves itself, unless. the deed be ancient and the possession has been consistent with it. If the signature does not prove itself, the next question is, whether it is proved by an attestation, thus: “ sealed and delivered.” We concede, that if the attesting witnesses put their names without specifying the acts done in their presence, it may be assumed that they have adopted the testimonium clause, “In witness whereof, the said (grantor) hath hereunto set his hand and seal the day and year first above written.” The words, “ in the presence of A. B. and C. D.” would be an adoption of this clause, and so would the mere subscription of the names of the witnesses. Not so, however, an attestation specifying what was done, and omitting an essential particular. In the present case, the handwriting of the attesting witnesses was proved, but they do not say that the deed was signed. Unless, therefore, the signature proves itself, the due execution of this deed has not been established. The defendant is a mortgagee in possession. The judgment against Huddart did not prevent him from relinquishing the possession. A mortgagor, or pledgor, is entitled to the possession of the property pledged. That being so, if he can obtain the possession peaceably, without judicial proceedings, he has a perfect right so to do. This right is recognised by the statute relating to executors and administrators; Swan’s Stat. 350, sec. 67. “ If the mortga- ‘ gee, or assignee, shall not have obtained possession of the c mortgaged premises in his lifetime, his executor or adminis- ‘ trator may take possession thereof, by open and peaceable entry, ‘ or joy action in like manner as the deceased might have done c if living.” The mortgagee may give notice to tenants in possession of the mortgaged premises to pay the rents to him. A judgment obtained against the mortgagor after the execution of the mortgage, will not deprive the mortgagee of his right thus to obtain the possession. The mortgagee has the rights at law and in equity to the possession by title paramount to the lien of the judgment, and having that right, the mortgagor ought to relinquish the possession when it is demanded — he ought hot to resist the. just claim of the mortgagee and compel him to resort to courts of justice to obtain his rights. The judgment lien cannot, in any manner, prejudicially affect the undoubted right of the mortgagee to thé possession of the property pledged. A mortgagor is properly called a tenant at will to the mortgagee, because the latter has the'immediate right to the possession, but when he obtains it he may be called tenant at will to the mortgagor, as the possession may be terminated in an instant by payment of the debt. As to the effect of a levy upon and sale of mortgaged lands upon an ordinary judgment against the mortgagor. A sale of the mortgaged land upon execution against the mortgagor, cannot affect the mortgagee’s title as pledgee — the purchaser takes subject to the pledge. A mortgagee having a note for the debt as well as the pledge, may proceed upon the note like any other creditor of the mortgagor. He may obtain a judgment upon the note and cause the same levy and sale to be made as any other creditor. The amount made, if sufficient to pay the debt, will destroy the pledge — if not sufficient, will reduce the lien pro tanto only. The only effect of the proceedings, is to pass the right and title of the defendant in the action. “ The mortgage remains an incumbrance on the lands, and may be asserted against the purchaser.” Seymour v. King, 11 Ohio Rep. 342. “ The interests of mortgagees are not affectqd.” Per Cur. Canton Bank v. Commercial Bank, 1,0 Ohio Rep. 73. The judgment does not supersede the mortgage. The mortgagee may take.a higher security for the mortgage debt, as a recognizance for a simple contract, and this will not discharge the lien of the mortgage. Davis v. Maynard, 9 Mass. R,ep. 247. . ■ A- judgment may destroy lower remedies, but it cannot de-' prive a man of an interest in lands. Even if a mortgagee, after obtaining judgment for his mortgage debt, proceeds to commitment of the mortgagor in that suit, he may still'have a remedy upon the mortgage. Davis v. Battine, 2 Russ.,& M. 76; and see Cary v. Prentiss ', 7 Mass. Rep. 63. Jackson ex dem. Ireland v. Hull, 3 0 Johns. Rep. 481. .“A ‘ creditor who takes a mortgage to secure a debt, by bond or £ otherwise, has three remedies, either of which he is at liberty £ to pursue, and all of which he may pursue, until his debt £ is satisfied; he may bring an action of debt upon the bond, £ or-he may put himself in possession of the rents and profits £ of the land mortgaged by means of an ejectment, or he may £ foreclose the equity of redemption and sell the land to satisfy ‘ the debt. ££ If a creditor, having obtained judgment on his bond, issue 1 an execution by which the moi'tgaged premises are taken in 1 execution, and sold to a person who has notice of the mort- £ gage, and of its being unpaid, it will be deemed a sale merely ‘ of the equity of redemption or. interest of the mortgagor, ‘ so that the mortgagee may bring an action of ejectment against ■ ‘ the purchaser to recover the possession. “ And the mortgage interest is no further touched by the x sale, than that the purchase money of the equity of redempc tion may go to diminish the amount of the debt.” The sheriff’s deed, in the present case, if it passed any thing, (which we deny,) was a conveyance of the land, subject to the mortgage debt. That debt was only partly satisfied with the purchase money, the mortgage debt being $1,360, the purchase money $867. The mortgagee being in possession, with a part of the debt unpaid, he cannot be ejected. 15 Wend. 248. • It is argued by plaintiff’s counsel, that the sheriff sold and conveyed the titles of both plaintiff and defendant under the authority of the writ authorizing him to sell the estate of the latter. And yet it is conceded, that upon a levy and sale under a judgment obtained by an ordinary creditor, the purchaser gets nothing but the title of the debtor. And that is so, although the land is valued without regard to the mortgage.— See Seymour v. King, 11 Ohio Rep. 342. No reason is given for the suggestion that the mortgagee has not the same rights as any other creditor when he, the mortgagee, obtains judgment on a note for the mortgage money. On this judgment, the plaintiff has a right to pursue ail the debtor’s property as if he, the plaintiff, held no pledge or security for his claim. We see no reason for the opinion of plaintiff’s counsel, that “ there is an important distinction in the Ohio; system from all others.” In other States, as well as in this, there are appraisement laws, and the rule also prevails, that the mortgagor is the real owner subject to the debt. In those States, as well as in this, the purchaser on execution against the mortgagor takes subject to the mortgage. That is conceded to be so when an ordinary creditor obtains a judgment, levy and sale of the mortgaged property, and we cannot perceive the slightest distinction between such ordinary creditor and a mortgagee suing on a promissory note. ' None has- been pointed out by plaintiff’s counsel. If we examine the sheriff’s authority, we shall find that it was not possible for him, in this case, to convey any thing more than the debtor’s interest in the land; and that was subject to the mortgage debt. The mandate of the writ of execution was confined to the debtor’s interest. The writ commanded the sheriff to make the debt of the goods of Huddart; and if they were insufficient, that “ he should cause the same ‘ to be made of the lands and tenements of the said George ‘ Huddart.” The sheriff could not convey the right and title of the plaintiff in the action as a pledgee, or lien-holder, under the mortgage. Upon an ordinary judgment and execution, the sheriff cannot sell the land discharged from the mortgage debt; he can only put the purchaser in the place of the mortgagor. It is a proceeding altogether dissimilar from a sale upon a scire facias on a mortgage, or upon a decree in a foreclosure suit, and yet plaintiff’s counsel ask the Court to confound it with those proceedings. If the purchase money be sufficient to satisfy the debt, the mortgage title may be extinguished, but not otherwise. ■ Nothing more passed in the present case than would have passed if any other creditor of Huddart had obtained judgment, levied and sold. Whether the parties supposed that the sheriff could convey the land so as to make a complete title, free from incumbrance, is immaterial. As to the alledged estoppel. It has been argued by defendant’s counsel, that where a mortgagee obtains a common judgment, and levies upon the mortgaged lands, and causes the Same to be sold to a bona fide purchaser, such mortgagee cannot be permitted to assert that there was, in fact, no estate or interest capable of being levied upon and sold at common law. There are two answers to this argument — First: Even if there would be such an estoppel in favor of a bona fide purchaser, believing and acting upon a representation of the mortgagee, that the mortgagor was actually in possession when the levy and sale were made, there- is no such estoppel -in the present case, because no bona fide purchaser has been deceived by any representation. . . . There is no ground for saying that plaintiff was deceived in any way by a misrepresentation of a matter of fact not within his own knowledge. • To create an estoppel, there must be ££ an admission intended ‘ to influence the conduct of the man with whom the party is ‘ dealing, and actually leading him into a line of conduct which £ must be prejudicial to his interest, unless the party- estopped £ be cut off from the power of' retraction. This I understand £ to be the very definition of an estoppel in pais.” . Per Cowen, J. in Dazell v. Odell, 8 Ilill, 219. Jackson v. Waldron, 13 Wend. 178, shows the principle of ah estoppel-. It is -to prevent circuity of action — ££ a party as- £ sorting a fact, and thereby inducing another to contract with £ him, cannot, by a denial of that fact, compel the other party £ to seek redress against his bad faith, by suit.” The evidence in the present case shows that there was no false and fraudulent representation made by Risk to Fosdick, whereby the latter .was deceived and defrauded. There-is, therefore, no estoppel. Second: Risk did not represent that Huddart was in possession. Fie may have supposed that,- that fact made .no difference. But that supposition cannot affect the case. The facts were well known to all the parties: An admission by the party of what the law is; has no effect, and is never noticed ; 2' Phil. Ev. Cowen’s notes, 211; folk’s Lessee v. Robinson, 1 Tenn. Rep. 463. So of the legal effect of his contract; Boston Hat Manufactory y. Messenger, 2 Pick. 223. So where a man voluntarily, and without consideration, agreed in writing to convey land to another, and often admitted that the land belonged to the other, held for nothing, for the right depended on a question of law; Leforce v. Robinson, Litt. sel. cas. 22-3. An estate cannot be defeated, re-leased nor extinguished by a mistake of opinion, or confession of law, or expressions of intentions not to prosecute the right; Craig v. Baker, Hard. Rep. 281, 283, 284, 289. Admissions under a misapprehension of legal right, are unimportant.— Moore v. Hitchcock, 4 Wend. Rep. 292, 298, 299 ; And see Williams v, Champion, 6 Ohio Rep. 169; Bigelow v. Barr, 4 Ohio Rep. 358; Murray v. Palmer, 2 Sch. & Lef. 474; 1 Phil. Ev. 377; Owen v. Bartholomew, 9 Pick. 250. Upon the execution of defective deeds, the grantor may suppose they are sufficient to pass the title, but that supposition is of no consequence. A conveyance of land not executed and acknowledged, as required by law, will not pass the legal title, although the grantor afterwards expressly declares that the conveyance shall have that effect. The supposition of the parties in the present case, that the sheriff could levy upon mortgaged lands not in the possession of the mortgagor, and that he could thereupon sell and convey the estate of the plaintiff as well as that of the defendant, would not (if such supposition existed,) make the least difference. We submit, that the defendant is entitled .to judgment on the verdict in his favor.
15 Ohio St. 108Miller v. Wilson (1846)
This . is a suit in Chancery, reserved in the County of Frankrin. The bill and amended bill in this case, are filed by Thomas Miller and others, creditors of John Wilson, deceased, against the widow, heir and personal representatives of said Wilson.
15 Ohio St. 118Swetland v. Creigh (1846)
V ' This suit is by, a Writ of Error to the Court of- Coifimon Pleas' of Kúox-County, and reserved for decision in this Court. ' • The plaintiffs 'in-error were the. makers of a certain written .instrument, the, foundation of the original action, which is in the words and -figures following:. ' ' . . “ Spart’a, Sept. 1st, 1841. ■ - “We promise to pay L. H. Newcomb, or order, two hundred dollars in current Ohio bank notes,■ two years after'date, for value received.- “A. W..
15 Ohio St. 123Taft v. Wildman (1846)
This case is brought here by a Writ of Error to the Supreme Court for the County of Trumbull. From the record it appears that the defendant in error, Wildman, brought an action of assumpsit against Taft, the plaintiff in error, and declared for land sold , and conveyed. The declaration contains one common and two special counts, and to which the plaintiff in error plead the general issue of non-assumpsit.
15 Ohio St. 130Haines v. Tharp (1846)
This is an Action or Assumpsit reserved in Brown County. The facts in the case are stated in the opinion of the Court.
15 Ohio St. 134Lessee of Hannel v. Smith (1846)
This case comes before the Court by Writ op Error to the Supreme Court of Hamilton County. The original action is ejectment.
15 Ohio St. 152Shroll v. Klinker (1846)
This is a Bill in Chancery, from Craweord County, submitted upon bill, answer, replication and testimony.
15 Ohio St. 156Cresinger v. Lessee of Welch (1846)
This case comes before the court by writ of error to the court of common pleas of Columbiana county. The original action was ejectment for the north half of section 33, in township 17, range 5, in Columbiana county. On trial of the case to a jury, a verdict was returned in favor of the plaintiff, now defendant in error, and a judgment entered accordingly.
15 Ohio St. 196Potter v. Burton (1846)
This case comes into this Court by a Writ op Error to the Court of Common Pleas of the County of Erie. The action below was a case for diverting the water from a certain stream, called Cold creek, by the defendant, to the damage of the plaintiff in error, as averred in the declaration. The defendant plead not guilty.
15 Ohio St. 200Frost v. Lowry (1846)
This cause comes into this Court by a Writ or Error to the Supreme Court of Lucas County, made returnable in Bank. ■ i The original suit was replevin, commenced in the Court of Common Pleas by the… Held: that the plaintiff could recover without making the offer of restoration. The decision was right, but placed by the learned Judge upon the wrong ground.
15 Ohio St. 217Reed v. State (1846)
This is a Writ op Error to the Court of Common Pleas of Lucas county, made returnable before the Supreme Court for the county of Wood, and reserved for decision in full Bank.
15 Ohio St. 225City of Cincinnati v. Rice (1846)
This case comes before this Court by Writ of Error to the Court of Common Pleas of Hamilton County. Held: that the Legislature of New York, having fixed a fine of one dollar for servile labor on Sunday, the corporation of the city of New York might increase it to five dollars; and this is said to be a case in point. Not so. The increase was within .the policy of the. law; and we are not advised that any rights were impaired.
15 Ohio St. 242Thayer v. King (1846)
This is an action of Assumpsit, reserved in the County of Miama, upon an agreed statement of facts, as follows The plaintiffs declared… Held: that “ the holder of a bill of exchange cannot, by the £ custom of merchants, insist upon payment by the acceptor, ‘ without producing and offering to deliver up the bill;” and therefore it was held, “ that the indorsee of the bill having lost £ it, -could not, in an action at law, recover .the amount from the ‘ acceptor, although…
15 Ohio St. 248Wilson v. Chalfant (1846)
This suit comes into this Court by a Writ of Error to the Court of Common Pleas of Perry County. The original action was trespass, brought into the Common Pleas by an appeal from a justice of the peace.
15 Ohio St. 253Kramer v. Trustees of the Farmers' & Mechanics' Bank (1846)
This is a Bill of Review, appealed from the Court of Common Pleas of Jefferson County, to the Supreme Court, and reserved fordecision here.- ■ ' The decree, sought to be reviewed, was rendered in the Court of Common Pleas; at the August term, 1843, and the error complained of is supposed to be apparent upon the face of the decree. The statement of the case is embraced in the opinion of the Court.
15 Ohio St. 264Crawford v. Swearingen (1846)
Tuts is a Writ of Error to the Supreme Court of Jeffer* son County. Held: in Cuyler v. Cuyler, 2 Johns. Rep. 186, that such release does not discharge the liability arising upon the subsequent payment of the money upon a preexisting note.
15 Ohio St. 283Leggett v. State (1846)
This is a Writ or Error to the Court of Common Pleas of Tuscarawas County. \ The defendant below was indicted, and, at the October term of said Court, 1S46, tried and convicted of stealing a certain flea-bitten grey mare, the property of one Henry W. Smith, and sentenced to imprisonment in the Penitentiary for the term of three years. The plaintiff in error now seeks, by this- writ, to reverse the said judgment and proceedings.
15 Ohio St. 285Lessee of Wilkins' Heirs v. Huse (1846)
Under the Occupying Claimant law, if the occupying claimant elect to convey the . land and receive its value, as assessed by the Jury, it is necessary that he tender a »deed with covenant of warranty 3 but* it is not necessary that the deed should be made by himself, provided it convey the title.. In such case, she occupying claimant is not entitled to interest upon the valuation, until his election is made.
15 Ohio St. 288Walke v. Bank of Circleville (1846)
This is a Writ of Error, directed to the Court of Common Pleas, of Pickaway County. The original action was Assumpsit. Held: that although a deputy sheriff could make a deed in the name of his principal, yet a deed executed by a deputy, in his own name as deputy, and not in the name of his principal, was void, and on the general ground that, where delegated authority is exercised, it must be exercised in the name of the principal.
15 Ohio St. 300Cisna's Administrator v. Beach (1846)
This is a Writ of Error coram nobis, reserved in the County of Monroe. The defendant in error was plaintiff in the original suit, and the error assigned is, that prior to the day of the rendition of the judgment now sought to be reversed, he' had departed this life. Issue to the country was joined upon this assigment. — ■ The intervention of the jury was waived, and the facts and the law were submitted to the Court. 'At the trial, objection to certain depositions was made.
15 Ohio St. 301Hutchinson's v. Hutchinson (1846)
These two cases come into this Court by appeal from the Court of Common Pleas of Hamilton County. They are brought by the surviving executor of Jonathan Hutchinson, deceased, against the heirs- at law of Isaiah Hutchinson, deceased, and Jacob Swallow, the tenant in possession of land descended from said Isaiah to his said heirs, and by them conveyed to said Swallow. The first is a suit commenced by scire facias, which was issued on the 31st of May, 1838.
15 Ohio St. 313Stevens v. Hey (1846)
This is a Bill or Review, reserved in the County of Hamilton. ; The complainant seeks, by his bill, to reverse a decree of the Supreme Court of Hamilton County, rendered at the April term, 1840. The bill was filed January 14, 1841, the former decree having been first complied with. The grounds upon which the reversal of the former decree are asked, are two: First, error in the former decree; second, newly discovered evidence.
15 Ohio St. 319Malone v. Stewart (1846)
This is á Writ of Error, directed to the Court of Common Pleas of Jefferson County. The action below was Case for slander. The words charged in the declaration were, that Olive Stewart, the wife of said James Stewart-, had said of the plaintiff below-that she was a hermaphrodite. To the declaration the defendants interposed a general demurrer, and the Court of Common Pleas sustained the demurrer, and gave judgment for the defendants.
15 Ohio St. 322Receivers of the Bank of Circleville v. Renick (1846)
This is a case in Chancery, reserved in the County of Pickaway.
15 Ohio St. 338Spicer ex rel. Nash v. Giselman (1846)
This is a Writ or Error directed to the Court of Common Pleas of Stark County. The original action was in assumpsit. The declaration contained three counts.
15 Ohio St. 345Morningstar v. Selby (1846)
This is a case in Chancery,- reserved in the County of Warren. Held: “ If a will be wholly or partially canceled or destroyed by the ‘ testator, while of unsound mind, probate will be granted of it, ‘ as it existed in its integral state, that being ascertained.” So, in Kentucky; Happry’s will, 4 Bibb, 553: “ Probate ‘ may be granted of a copy of a will when the original cannot ( be produced.” So, in…
15 Ohio St. 367Gwynne v. Niswanger (1846)
This Case comes into the Supreme Court, by appeal, and was reserved in the County of Madison. It is a suit in Chancery, depending upon bill and demurrer. The case was presented to the Court of Common Pleas of Madison connty, at the September term, 1845. That Court overruled the demurrer, and entered a decree for the complainant. From this decree the defendant appealed to this Court.
15 Ohio St. 372Hyatt v. Robinson (1846)
Thi§ case comes before this Court by appeal from-the'Court-of- Commou' Pleas of Muskíngum County. . ’. Held: that the surety could not, under such circumstances, avail himself of the duress of his principal in discharge of the bond, was, that it imported a consideration, and he was estopped from averring a want of consideration. But, in Ohio, this reason no longer exists, and the defence may, therefore, well be made.
15 Ohio St. 401McConnell v. Scott (1846)
This is a Case in Chancery, reserved in the County of Morgan. The bill is filed by the complainant, as a surety of the principal debtor, against him and others, in whose hands the principal debtor has credits.
15 Ohio St. 404Laughery v. Laughery (1846)
This is a Case in Chancery, appealed into the Supreme Court from the Court of Common Pleas, reserved in the County of Seneca. The original bill was filed on the 13th January, 1845, in the Court of Common Pleas of Seneca county, by the complainant, Hannah Laughery, against the defendants, praying to be divorced from the defendant, Charles Laughery, her husband, and, also, for alimony.
15 Ohio St. 408Lessee of Barton v. Heirs of Morris (1846)
This is an Action of Ejectment, reserved in the County of Clermont. Held: “ that before ‘ the rights of the wife to lands áre affected, the second section ‘ requires an acknowledgment that she vpluntarily sealed and' ‘ delivered’! the deed., .As .this is not done, her title did not pass... .She had'but a naked legal title’, unaccompanied with the right of possession.
15 Ohio St. 432Arbuckle's Executors v. Tracy's Administrators (1846)
If notes be delivered to an executor to indemnify the estate against a liability where the testator was a surety, such notes and the money collected on them are not the property of the estate, and the estate is not liable for the misconduct of such executor, in respect to such notes and money. Under such circumstances, the executor is a trustee for the person delivering the notes, and he alone is responsible for a faithful application of the money collected.
15 Ohio St. 435Lessee of Paine v. Mooreland (1846)
A person executing a defective deed for the conveyance of land, which deed has not been recorded, has an interest in the land capable of being attached. If attached and sold as the property of the vendor, a purchaser, without notice of the equity, lakes a good title as an innocent purchaser without notice. The Court acquires jurisdiction in attachment, by the issuing of process, predicated upon the requisite affidavit, and the attaching of the property 3 and if, after thus obtaining jurisdiction, the Court proceed to render judgment, without the publication of notice, such judgment is not void, and cannot be impeached collaterally, but must be reversed upon writ of error.
15 Ohio St. 447Lessee of Boswell v. Sharp & Leppelman (1846)
This is a Writ or Error to the Court of Common Pleas of '' Sandusky County. . ■ The original action was ejectment, to recover a tract of land on which a portion of the town' of Lower Sandusky is. situated..
15 Ohio St. 467Freeby v. Tupper (1846)
This is a Bill in Chancery to foreclose a-.- mortgage, reserved in Summit County. ■ • . - '. The.-defendants have severally answered.
15 Ohio St. 471Sigler v. Shehy (1846)
' ■ • This is a Writ or Error, to the Súbeme Court for the-.'. County of Trumbull,• made returnable, in Bank,;'1 1 .
15 Ohio St. 474McCombs v. Town Council (1846)
■ This is a Writ of Error to the Supreme Court'of Summit County, returnable in Bank, brought to reverse a judgment - of that Court, affirming the judgment of the Court of Common' Pleas. The original action was iñ' casé against the Town Council ■ of Akron for cutting down a street, whereby the' house and iot of the plaintiff suffered an injury.
15 Ohio St. 475McCombs v. Town Council of Akron (1846)
. This is a writ of error to the Supreme Court of Summit county, returnable in bank, brought to reverse a judgment of that court, affirming the judgment of' the court of common pleas.
15 Ohio St. 483Harrington v. Heath (1846)
This is a Writ ok Error to the Court of Common Pleas of Lake County. The original action was in case, brought by the defendant in error against the plaintiff in error, for erecting a dam across a certain water course,' and causing it to flow back upon the land of the defendant in error. The action was commenced before a Justice of the Peace, and the plaintiff below had judgment for three dollars damages, and $10.59 costs.
15 Ohio St. 488Caldwell v. Dunshee (1846)
This is a Writ of Error to the Court of Common Pleas of Richland County. The action below was in case, for nuisance, brought by the plaintiff below, to recover damages of the defendant for flowing water upon his land, by the erection of a dam. The plaintiff recovered a verdict for $52, for which the Court gave judgment, and far the plaintiff’s costs. The error assigned is, that the Court rendered judgment for costs.
15 Ohio St. 489Ellis v. Bervellier (1846)
This is a Writ or Error directed to the Court of Common Pleas of Hamilton County. Held: a party is not incompetent on the ground of his liability as a warrantor, if he would be liable to others, to the same extent, notwithstanding the result of the suit. In 5 Pick.
15 Ohio St. 500Edwards v. Owen (1846)
. This is a Writ of Error to the Court, of Common Pleas' of Montgomery County. The original action was .case. ' The declaration averred,- in substance, that Owen held a note against Edwards for $278,' .due November 5, 1841.
15 Ohio St. 507State ex rel. Rosett & Bicking v. Boring (1846)
This is an Action of Debt reserved in the County of Inciting. The action is brought against a sheriff and the sureties upon his official bond. The plea of ñon est factum has been filed, and, by the sureties, an affidavit of the truth of the plea is appended.
15 Ohio St. 517Benjamin v. Le Baron's Administrator (1846)
This is a Writ or Error directed to the Court of Common Pleas of Belmont County. The original action was trover, in which the now defendant obtained a vérdíct and had judgment for $13,379. The.facts of the case, as gathered from the bill of exceptions, are, in substance, these: . On the 7th of September, 1837, Le Baron was possessed of a large real and personal estate, and, also, a contract with one Zane to build a bridge over the Ohio river at Wheeling.
15 Ohio St. 529Bierce v. Pierce (1846)
This is a Bill in Chancery from the County of Delaware. Held: that this was not such defect of title as excused defendant for not performing his part of the contract, and that on the ground that as he ought to have reconveyed, and so long a time had elapsed without claim, the presumption wás that he had done so.
15 Ohio St. 551Lyon v. McCadden (1846)
This is a Writ or. Error to the Supreme Court; of Muskingum County, riiade returnable here. • '. ■ .The original action was assumpsit, for work and labor, &c. The declaration . contained only the common counts, to which wás/intérppsed .the plea of the'general 'issue, with notice ofsetoff.:' A’t the . October ‘ térm of the Supreme.
15 Ohio St. 556Humiston v. Anderson's Administrators (1846)
This is a Writ of Error directed to the Supreme Court for the County of Trumbull. The facts of the case are contained in a very voluminous record, but may be stated in few words, thus: On the 17th June, 1844, the plaintiff and defendants entered an amicable action before a justice of the peace in the township of Bazetta.
15 Ohio St. 559King v. Beck (1846)
-These cases were reserved- in .Fairfield 'County. They are bills of review, filed to review decrees rendered at the December term, 1843, of the Court in'.Bank,-in tw.o. cas.es, to wit: William and Fiord King-v.'Beck,. Adm’r.of ■Christian King,' and Beck, Adm’r of Christian King, v;- William and Flora King. .The first-was a bill in cháncéiy,' to compel the administrator to-convey certain bank-stock, 'standing .in their names.
15 Ohio St. 559Bartholomew v. Bentley (1846)
This case was reserved in Wayne county, and comes before the court upon a demurrer to the declaration.
15 Ohio St. 566Chapin v. Allison (1846)
This is a special action of Trespass on the ca.se, reserved in Holmes County.
15 Ohio St. 568Minns v. Morse (1846)
This is a Bill in Chancery, reserved in Cuyahoga County. The bill sets forth that, on the first of January, 1836, James S. Clark and John W. Willey, then the owners of lot No. 99, in Cleveland, contracted to sell the same to one C. Hunt, who took possession, made valuable improvements thereon, and occupied till January 1, 1839, when the contract was assigned to Charles N. Willey, in trust for Clark & Willey; that, on the 21st March, 1839, C. & W. conveyed the legal title to…
15 Ohio St. 572Williamson's Administrator v. Administrator of Rees (1846)
This is a Bill in Chancery, reserved in the County of Fairfield.
15 Ohio St. 579Powell v. State (1846)
This is a Writ of Error to the Court of Common Pleas of Hamilton County. The action below was debt upon a recognizance, conditioned that one John K. Trombo should appear and answer to an indictment pending against him in that Court for passing counterfeit money. The penalty in the recognizance was $1000, and it was alledged in the declaration that it was taken before Robert Moore, one of the Associate Judges of that Court. The defendant below interposed four pleas.
15 Ohio St. 585Canal Boat Etna v. Treat (1846)
This is a Writ of Error, directed tq the Supreme Court for the County of Summit, returnable in Bank. . The original action was assumpsit, under the act authorizing proceedings against water craft, by name. The declaration contains the common counts, to which the defendant plead the general issue.
15 Ohio St. 593State v. Guilford (1846)
This is a Bill in Chancery, from Hamilton County. The bill is filed against Guilford, George Torrence, and William Greene, who, with one Jacob Williams, now deceased, were trustees of the “ Hughes’ fund,” so called, being a fund appropriated for educational purposes, by the donor, in Cincinnati, a portion of which has been lost through the defalcation of Williams, the trustee having possession of the fund.
15 Ohio St. 595State v. Clark (1846)
This is a Writ of Error to the Court of Common Pleas of Summit County. The original action was debt, upon a criminal recognizance. The facts were as follows : At the May term, 1843, of the Court of Common Pleas of Summit county, Don It. Clark was convicted of grand larceny. and sentenced to the Penitentiary for the term of three years. Application was made for the allowance of a writ of error, under the act allowing writs of error in criminal cases.
15 Ohio St. 600Christmas v. Spink (1846)
This is a Bill in Chancery, reserved in the County of Wayne. The bill is filed by the legatees of John Christmas, deceased, against his administrator, and against the heirs and executors of William Christmas and others, and was submitted to the Court upon bill, answers, exhibits and testimony.
15 Ohio St. 606Bayless v. Trustees of the Belmont Bank (1846)
This is a Writ of Error directed to the Court of Common Pleas of Belmont County. Held: in effect, good by the statute, •and, if not, it was Valid «by the common-law.. 'A bond given by a cotmty treasurer, not conditioned as required‘by law, in part, was'held a good statutory bond as far as it went, and .if not good by the statute 'it was by the common law.. 10 Ohio Rep. 51. , \ , But, independent of other matters, it is…
15 Ohio St. 623Gillett v. Webster (1846)
This is a Bill in Chancery, reserved in the County of Ash tabula. The facts of the case will be found stated in the opinion of the Court. No arguments were furnished to the Reporter.
15 Ohio St. 625City of Cincinnati v. Bryson (1846)
This is a Writ or Error to the Court of Common Pleas of Hamilton County. The writ is prosecuted to procure the reversal of the judgment of the Court of Common Pleas, reversing the judgment of the Mayor of Cincinnati, rendered by that officer in a complaint pending before him, prosecuted by the city against the defendant, for a violation of the city ordinance.
15 Ohio St. 652Jackson v. State (1846)
This case was reserved in the county of Fbanklin. It comes before the Court on appeal from the Auditor of State, under the 65th section of the act of March 2, 1846, entitled “ An act for taxing all property in this State according to its true value.” 44 Ohio Laws, 85.
15 Ohio St. 655Davies v. Lowrey (1846)
This is a Bill in Chancery, reserved in the County of Montgomery. The bill is filed for the purpose of charging the defendants ■as trustees of certain lands, and compelling them to account for the profits growing out of an investment in lands, under the following circumstances: Mary B., wife of Samuel H. Davies, Harriet S., wife of Lewis Henman, and Anne, wife of John Howard, were, in 1831, minors, and Fielding Lowrey, their father, was appointed their guardian.
15 Ohio St. 659Bartholomew v. Bentley (1846)
This case was reserved in Wayne County, and comes before the Court upon a Demurrer to the Declaration. The action is in case, and the declaration contains two counts.
15 Ohio St. 671Rands v. Kendall (1846)
This is a Petition for Dower, reserved in the County of Hamilton. The complainant, Rachel Rands, claims dower in certain real estate of the defendant, part of lot number forty-nine, in the city of Cincinnati, as the widow of Adbeel Coleman, deceased, who died November 16th, 1824, and to whom she Was married on the 18th of March, 1821.
15 Ohio St. 689Robb v. Lessee of Irwin (1846)
This case is brought before this Court by Writ ok Error to the Court of Common Pleas of Hamilton county. The action was an action of ejectment, for certain premises described in the declaration. Robb, the tenant in possession, appeared in Court, entered into the common consent rule, and filed the plea of not-guilty.
15 Ohio St. 715Lewis v. Lewis's Administratrix (1846)
A plaintiff in certiorari} brought to reverse proceedings in the Court of Common fleas, in which lands have been sold on the application of an administrator for the payment of debts, may discontinue the certiorari, although he has previously conveyed his interest in the premises to a third person. Dnder the act of 1824, defining the duties of executors and-administrators, where the minor defendants were made parties, and had guardians ad litem appointed, who answered, an order for the sale of land will be sustained,’ though such minors were not served with process.
15 Ohio St. 717Barnum v. State (1846)
This is a Writ or Error directed to the Court of Common Pleas of Lake County, and made returnable in Bank. The statement of the case is embraced in the opinion of the Court.
15 Ohio St. 723State ex rel. Kemper v. Beecher (1846)
This is an information in the nature of a Quo Warranto, reserved in Hamilton County. The case comes before the Court upon demurrer to the answer, and the information and answer show the following facts: On the 11th of February, 1829, the Legislature of Ohio chartered an institution by the name of the Lane Seminary. Its object, as expressed in the act of incorporation, was the establishment of a Theological Institution, to educate pious young men for the Gospel Ministry.
15 Ohio St. 726Allison v. McCune (1846)
This is a Special, Action on the Case, reserved in Washington County. The action was originally brought in the Court of Common Pleas of Washington county, and came into the Supreme Court by an appeal.
15 Ohio St. 735Doe ex dem. Heighway v. Pendleton (1846)
This is an Action op Ejectment, reserved from the County of Hamilton, on a motion for a new trial. Held: (8 Ohio Rep. 45,)' that the citation.of either party Was a.compliance with-the law. • 6. ■, Jurisdiction.over the Person^When.'presumedj-i — ’T.he service of process-on -the.'owner of'the; land cannot be presumed, when she is not named as a defendant inithe proceedings ; but the'writ being produced,-i$ found .'to hkve been…