Volume 17 — Ohio State Reports

This is a Writ op Error to the Court of Common Pleas of Portage County. The facts in the original case are as follows: Eben Henry, on the 27th day of June, 1847, commenced an action of assumpsit in the Court of Common Pleas of Portage county, against Robert Hill, and on the 19th day of July following filed his declaration. The declaration contains a special count upon a promissory note, bearing date the 22d day of January, 1830, payable on demand, and the common counts.

This is a Writ op Error directed to the Court of Common Pleas of Fairfield County. The declaration in the original action is in Case.

<p>This is a Bill op Review reserved in the County of Morgan.</p> <p>The statement of the caáe appears in the opinion of the court.</p>

This is an Alternative Mandamus, from the County of Summit. The Mandamus was issued on the 17th of March, 1845, commanding the defendant to pay to the relator the sum of twelve dollars, for services as teacher of a Union School District, composed of parts of the Townships of Tallmadge and Stow, in Summit county, and Franklin and Brimfield, in Portage county, or to appear before the Court at the next Term thereof and show cause to the contrary.

This a Writ of Error directed to the Court of Common Pleas,of Trumbull County. The original action was commenced by the plaintiff in error, against the defendants, before a Justice of the Peace, and appealed from the decision of the Justice, to the Court of Common Pleas of Trumbull county.

This is a Wb.it of Eebob to the Supreme Court of Hamilton County. The original action was commenced in the Court of Common Pleas, by Cooley, in'his lifetime, against Fagin. The declaration is in assumpsit, and contains the common counts. To this declaration, a plea of the general issue was interposed by the defendant below.

This is a Writ of Error directed to the Court of Common Pleas of Muskingum County. The original action was Covenant.

This is a Writ ok Error to the Court of Common Pleas of Perry County. The original action was trover, brought by Eversole against Plank, to recover one third part of certain goods, wares and merchandize which the plaintiff possessed and owned in the capacity of partner of John R. Irick & James Stewart.

This is a Writ or Error, directed to the Court of Coni' mon Pleas of Sandusky County.. The original action was covenant. The declaration was demurred to and the demurrer sustained by the Court, and judgment entered in favor of the defendants.

This is a Writ of Error, directed to the Court of Common Pleas of Sandusky County. The judgment which is sought to be reversed, was rendered by the Court of Common Pleas in an action of covenant, instituted by the defendant in error, in favor of the plaintiff in error.

This is a Writ of Error to the Court of Common Pleas of Belmont County. Held: that in order to charge the indorser, a demand should be made of the maker at Apalachicola in Florida, and the indorser was discharged. The Court says, (page 153,) “ the indorser voluntarily consents to take such an order, and why should he not perform the condition on which the ultimate liability of the indorser depends ?

<p>A bond in these words, “Know all men by these presents, that we A B and G D, are held and firmly bound unto E, in the penal sum of $3000, for the true and faithful payment of which we do hereby bind ourselves, our heirs, executors and administrators, firmly and severally by these presents,” &c., is a joint and several bond.</p> <p>To a breach in a declaration upon the bond of a town Marshal, that, having in his hands for collection the duplicate of taxes for said town, he did collect $2000 thereon in receipts of indebtedness of said town, and receipt therefor as money, and that he afterwards sold and converted the same to his own use, contrary to his duty, &c a plea averring that before the Marshal collected any money on the duplicate, the plaintiff, without the knowledge of the defendants, authorized the Marshal to receive the certificates in the breach mentioned, is bad — not answering the material allegation in the breach.</p>

This is a Writ or Error, directed to the Court of Common Pleas of Columbiana County. / The original action was Trespass quare clausum fregit, ,'and the record shows these facts: The Commissioners of Columbiana county, established a road from the landing place at Wellsville, in that county, commencing at low water mark on the Ohio river, to intersect the State road to Cleveland, whose termini were within the same township, and within the town of Wellsville.

<p>County Commissioners have power to establish county roads whose termini are wholly within the limits of an incorporated town or city.</p> <p>Road viewers appointed by the Court of Common Pleas, may adjourn from time to •time, so that they are prepared to report at the return day 5 and though they may at one time have resolved to report against the road, it is not errorfor them afterwards to change their determination, and report in favor of the road.</p> <p>In the matter of an appeal from the decision of the County Commissioners, it is error in the Court of Common Pleas to render judgment for costs.</p>

This is a Bill in Chancery reserved in Hamilton County. Held: “ The deed, after describing the husband and wife as parties of the first part, stated that he, by and with the volununtary consent of his wife, for and in consideration of the sum of, &c., to him in hand paid, granted and conveyed the premises to V.j his heirs, &c., and also all the estate of them, the said husband and wife, in…

This is a Writ or Error, directed to the Court of Common Pleas of Lucas County. The original action was commenced before a Justice of the Peace, to recover for work and labor done upon the schooner Aurora Borealis, at Oswego,' in the State of New York, and judgment rendered for the defendant. The case was appealed to the Court of Common Pleas, tried by the Court without the intervention of a jury, and judgment rendered for the plaintiff below.

This is a Writ or Error directed to the Court of Common Pleas of Lucas County. The original action was founded upon the followingguaranty: “ $ 175. For value received I promise to pay to John Forman & A. G. Evans, or order, one hundred and seventy-five dollars with interest from date, to be paid as follows, to wit: one third in one year, one third in two years, and the remaining third in three years. Witness my hand and seal this 28th day of January, A.D. 1836.

. These are Informations in the nature of Quo Warranto, reserved in the County of Allen. The two cases are substantially alike. Held: is incident to the right to create them. The defendant, then, by operation of law, was legislated out of his office ; has been subjected to a disability which deprives him of all right to discharge his official duties; in short, his official existence was terminated by statute.

This is an Information in the nature of a Quo Warranto from Allen County. Held: That a copyhold may be granted by the Lord of the Manor, and by the Steward, if he be the Steward. 2. That the appointment of the Steward by the , Auditor and Surveyor is not good. 3.

This is a Writ or Error directed to the Court of Common Pleas of Erie county. The action below was replevin, prosecuted by the defendants in error for an undivided half of the schooner Platina. The defendant below was sheriff of Erie county and had levied upon the schooner as the property of Ebenezer Warner, by virtue of an execution against him. The jury found a verdict for the defendant, and judgment was rendered upon the verdict.

<p>This is a Writ or Error, directed to the Court of Common Pleas of Scioto County.</p> <p>The facts are stated in the opinion of the Court.</p>

This is a Writ op Error to the Court of Common Pleas of Hamilton County. The action below was debt upon an Administrator’s bond. The facts disclosed by the record are these. Letters of admintistration were granted in April, 1841, to A. R. Chase, upon the estate of John Woodward, a mulatto'.

<p>A Bill of Review may be filed within five years from the day on which the decree sought to be reversed; was rendered3 the time tobe counted from the day of the rendition of the decree; and not from the first day of the Term.</p>

This js a Writ of Error, directed to the Supreme Court of Hamilton County. The original action was brought to recover the possession of Lot number 155, in the city of Cincinnati. The lessors of the plaintiff, claimed title as the heirs of John Kidd.

This was an Alternative Mandamus, brought to the Court in Bank, from the County of Wood; The relation shows that the relator holds three several orders on the Treasurer of Wood county, bearing date.December 14th, 1847, February 12th, 1848, and March 22d, 1848, amounting in all to $479 62 — said orders having been given him by the Commissioners of the Toledo and Woodville Free Turnpike Company, for work and labor performed by him in the construction of a road for said company…

This, is a Bill in Chancery reserved in Huron County. There is also a case reserved- in the county of Erie between the same parties, except that some other Stockholders are made defendants, and involving the same principles as the case reserved in Huron county. The two are reported together.

This is a Bill in Chancery, reserved in Hamilton County. The Bill in this cause, which was filed on the first day of February, 1847, in the Superior Court of Cincinnati, alleges, that, on the 25th day of July, 1846, the defendants issued to the complainant a policy of insurance, called an “ open policy,” which caused the complainant to be insured in such sums, and on property from such places, and on board of such vessels as should be mutually agreed upon between the…

This is a Writ of Error directed to the Court of Common Pleas of Jefferson County, and made returnable in Bank. At the May Term of that Court, for the year 1848, an indictment was prefered against the plaintiff in error, containing three counts : the first, charging him with stabbing with intent to kill, the second with stabbing with intent to maim, and the third with stabbing with intent to wound.

This is a Writ or Error, directed to the Court of Common Pleas of Fayette County, in which Court there was a verdict and judgment for the Defendant. On the trial of the case, two bills of exceptions were taken, the first to the charge of the Court, and the second to the refusal of the Court to grant a new trial.

This is a Writ op Error, directed to the Court of Common Pleas of Miami County. The judgment sought to be reversed, was rendered in that Court upon an action of debt, prosecuted by the defendant in error against the plaintiff in error, upon an appeal bond. The bond was signed by Mayo, and Charles T. Bossen. Process was issued against the two, but was returned not found as to Bossen.

This is a Writ of Error, directed to the Court of Common Pleas of Mahoning County. The action below was Ejectment. The plaintiff counted upon two demises; one from the executors and trustees of Henry Wick, deceased, and the other from six of the sons of the deceased, three of whom are the afor'esaid executors.

This is a Writ of Certiorari, directed to the Court of Common Pleas of Washington County. The writ is prosecuted to reverse an order of the Court of Common Pleas of Washington county, made at the September Term of said Court, 1847, and which order is as follows: “ On motion of John Fulcher he is appointed administrator on the estate of James Frazer, late of Warren township, now in penitentiary of this State, under a sentence for life.

This is a Bill of Review, reserved in the County of Clermont. From the Bill of Review the following facts appear: On the 21st of May, 1839, Abel Towner and wife executed a mortgage upon certain real estate in Clermont county, to Thomas B. C. Collard, to secure a debt of $1,100. In 1840, January the 14th, Collard made his will, appointing Towner his Executor.

This is a Writ op Error, directed to the Court of Common Pleas of Lawrence County. Held: in the State where such township shall be situated.” The letters, circulars, &c. referred to in the agreed statement are as follows: (No. 1.) CIRCULAR. Treasury Department, General Land Office, May 24dh, 1826.

This is a Bill in Chancery reserved in Clermont County. The Bill alleges that Benjamin Coombs purchased a tract of land of Anna Parker on credit, arid received a title bond conditioned for a conveyance when Coombs should pay the purchase money. That to secure the purchase money, Coombs executed certain promissory notes in which complainant joined as security, and on which she has commenced suit.

This is a Bill in Chancery, reserved in Hamilton County. Held: or by the charter of incorporation; a particular doctrine is to be preached in the place, and the latter is to be devoted to such particular doctrine and service.

This is a Writ or Error to the Court of Common Pleas of Summit County. The action below was debt, brought against the defendants as sureties on an official bond. The principal obligor is dead, and the defendants are sued as survivors as well as sureties. During the progress of the cause, in the Court below, the declaration was several times amended. As last amended, it contains five special and the general counts, and is the only one now brought to the notice of the Court.

This is a Bill in Chancery, reserved in Trumbull County. The bill states the recovery of a judgment by the complainants in the Common Pleas of said county, against Oliver Humphrey, the issuing of an execution and return thereon that no goods were found, and that the execution remains unsatisfied.

This is a Bill in Chancery, reserved in Hamilton County. Held: who, upon oath, returned an estimate of the complainants’ damages at $6,500. That the said Company have designated the line of their road, which will divide the complaintants’ premises in the centre thereof.

<p>The co-signers of anote, joint and several in its terms, which fell due in 1807, and on which suit was severally instituted in 1814 against another co-obligor, and judgment recovered, and afterwards suffered to lie dormant sixteen years, and then revived, and finally paid thirty-eight years after it became payable, cannot be compelled to contribute.</p>

<p>Where land is conveyed by an absolute deed, and the vendee at the same time delivers to the vendor a contract by which he agrees to re-convey the premises by a specified time, upon tho rc-payment of the purchase money with interest, the circumstances furnish presumptive evidence that the deed, although absolute upon its face, was intended as a mortgage, and it will be so held in equity.</p>

This is a Bill in Chancery, reserved in Cuyahoga County. The material facts of this case, so far as it is necessary to state them, for the understanding of the points decided, are as follows: In July, 1845, the schooner Maryland was attached at Cleveland, under the law authorizing proceedings against steamboats and other water craft by name, at the suit of sundry creditors; and at the February Term of the Court of Common Pleas of Cuyahoga county, 1846, judgments were'…

<p>A defendant who, after he has been made a party to a suit by personal service of process, takes the benefit of the bankrupt act during the pendency of the suit, no notice of the fact appearing in the subsequent proceedings, cannot assign the bankruptcy as error in a decree finally rendered against him in the case.</p> <p>In a creditor’s bill, where the Court does not settle the rights as between the judgment debtor and his debtor, it is error to direct payment of any surplus remaining after the satisfaction of the judgment, to be made to the judgment debtor.</p>

This is a Writ of Error to the Court of Common Pleas of Columbiana County. The Plaintiff in Error was prosecuted for Perjury. The record, including the bill of exceptions, discloses the following case: The indictment consists of three counts, the principal difference in which is, that the substance of the bill and answer are set out more fully in the first than in the other counts, and that the second count alleges that the bill prayed for an answer under oath.

<p>A mortgage with a clause to Becure future advances, will be postponed to a second mortgage, placed upon record prior to the making of the future advances, to the extent of such advances.</p>

This is a Bill in Chancery, reserved in Erie County, The bill is brought to enforce the specific performance ’of a contract, by compelling the defendant to accept a conveyance of real estate..

This, is a Writ op Error to the Court of Common Pleas of Fayette County. The original action was Case. In the declaration Southard avers that he was resident, &c., of school district No. one, in the township of Paint, in which a common school was taught, that he had sons and daughters of the proper age which he was desirous to have taught at said school.

This is a Writ of Error to the Court of Common Pleas of Trumbull County. The action below was Assumpsit. It was brought to recover an assessment upon the deposite note of the defendant, a member of said Company, executed by him to the Company upon the issuing of a policy to him by the Company — the assessment being needed to pay a loss sustained by fire. The defendant demurred to the plaintiffs declaration. The demurrer was sustained, and judgment rendered for the defendant:.

This is a Writ or Error to the Superior Court of Hamil-T0N County. The original action in this case was instituted by the lessors of the plaintiff, against the defendant, for the recovery of certain premises in the city of Cincinnati. The declaration was filed on the 14th May, 1845, and is in usual form.

This is a Writ of Error, directed to the Court of Common Pleas of Summit County. The judgment rendered in the Common Pleas was upon confession, by warrant of attorney. The declaration filed, was in debt, upon a bond of $21,000, dated April 20th, 1841, executed by the Company to said Crittenden, and payable in thirty days from date.

This is a Writ of Error to the Court of Common Pleas of Harrison County. The original action was Assumpsit. The declaration contained only the common counts. Verdict and judgment were given for the plaintiffs below. Pending the trial two bills of exceptions were taken as follows : 1.

• This is a Writ of Error directed to the Court of Common Pleas of Athens County. The action below was Assumpsit. The declaration contained only the common counts. The plea was the general issue, with notice of set off. The plaintiff below having given evidence in support of his claim, the defendant proved that she had been lawfully married to one Ralph Bingham, who was still alive.

This is a Writ or Error to the Court of Common Pleas of Hamilton County. The record shows the following facts : On the 4th of February, 1837, Edward, Inskip made a lease of certain premises to Chapman, for ‘ten years from the 7th April, 1837, át a yearly rent of four hundred 'dollars, payable in quarterly instalments. By the lease, Chapman covenanted that he would “ well and truly pay the rent aforesaid,” at the several periods mentioned.

This is a Writ of Error to the Court of Common Pleas of Delaware County. The original action was in Trespass for assault and battery. The pleas were: 1. The general issue. 2.

This is a Writ or Error to the Court of Common Pleas of Cuyahoga County. The action below was Assumpsit, brought by the defendant in error against the Schooner Argyle.

This is an action of Assumpsit reserved in Hamilton County. The declaration counts upon the following note • New Orleans, July 10th, 1839. $750. Sixty days after date we promise to pay Wigginton & Botts, or order, seven hundred and fifty dollars, for value received. Piatt & Athearn, John B. Craet, By his Attorney in fact, P. A. Athearn. James Blackman, Daniel Gano, Thomas H. Allen, By their Attorney in fact, James Blackman. The note is indorsed by Wigginton & Botts in blank.

This is a Writ or Error to the Court of Common Pleas of Columbiana County. The original action was Case, for Libel. A verdict and judgment were rendered in the Common Pleas for Russell, to reverse which this suit is brought. The declaration contains three counts.

This is a Bill in Chancery reserved in Hamilton County. The original bill in the case was filed August 16, 1842, in the Superior Court of Cincinnati, against James M. Stoughton, a child then about nine years of age.

This is a Writ or Error to the Court of Common Pleas of Ashtabula County. The original action was Case, for nuisance in diverting- water from the mill of the defendant in error. The plea was not guilty. The jury returned a verdict for the plaintiff, upon which judgment was rendered, to reverse which this writ was brought.

This is a Writ or Error directed to the Superior Court of Hamilton County. The original action was Debt, and the declaration contained only the common count for,.use and occupation. The pleas were: 1. General issue. 2. Nil habuit in tenemmtis. 3. Eviction by title paramount, in one George W. Garret-son. 4.

This is a Writ or Error to the Supreme Court of Seneca County. The original action was Assumpsit, commenced in the Court of Common Pleas, by the defendant in error, upon two notes executed by the plaintiffs in error, one for $255 23, the other for $260 53.

This is a Bill in Chancery reserved in Fairfield County. The bill avers that Boos being seized of Lot No. 2, in Lancaster, conveyed it to Ewing & Martin, April 27, 1844, for $1,200, to be paid $600 in hand and $600 in six years, with the interest annually; that the first payment was made, and the second remains still unpaid, with the interest.

This is a Bill in Chancery, reserved in Muskingum County. The Bill sets forth that on the 18th of June, 1838, the defendant, Samuel Glass, borrowed of the Fund Commissioners of Muskingum county, two hundred dollars, and on the same day, together with his wife, executed a mortgage deed conveying the premises in the deed and bill described, to the complainants, to secure the payment of said débt. The prayer of the bill is that the mortgaged premises may be sold, &c. .

This is a Writ of Error to the Supreme Court of Scioto County. The defendant in error brought suit upon an appeal bond, signed by Watson, Tiernan & Blake. The plaintiffs in error filed a plea of non esl factum, to the truth of which Tiernan made affidavit, and also a plea of nil debit. The cause was tried by a jury, pending which, a bill of exceptions was taken, and a verdict rendered finding the issue in favor of the defendants below.

This is a Writ or Error to the Court of Common Pleas of Franklin county. The original action was Debt. The declaration states that Timothy G. Bates, now deceased, by a joint resolution of the General Assembly, passed March 16, 1839, was appointed a member of the Board of Public Works of Ohio, for the term of four years from April 1, 1839, and on said 1st April, appointed by said Board an Acting Commissioner thereof.

This is a Writ of Error to the Court of Common Pleas of Muskingun County. The original action was Assumpsit, brought to recover the proceeds of a bill of exchange. It was submitted to the Court of Common Pleas, on an agreed statement of facts; and judgment was rendered for defendant, to reverse which this writ is brought. The error assigned is, that the judgment was given below for the defendant.

This is a Bill in Chancery reserved in Cuyahoga County. The case made in these pleadings is in substance as follows: The bill avers that on the 5th of May, 1838, Hutchinson, Bingham & Co., mortgaged to the Bank of Cleveland certain property in tho City of Cleveland, known as the “ Stone Mill ” property, to secure $19,500 00 secured by sundry notes.

<p>In an action of slander, the plaintiff may give evidence of the speaking of other words to prove the malicious intent of the defendant.</p> <p>If a witness is offered to give evidence that is admissible for one purpose, but is rejected because offered by the counsel for a different purpose, he ought not by the mistake or misapprehension of the counsel, to be rejected, when again offered on the correct ground.</p>

This is a Writ or Error to the Court of Common Pleas of Knox County. The facts are these: At the November Term of the Court of Common Pleas of Knox county, 1848, the plaintiff in error was indicted for a rape, charged to have been committed upon one Sarah M. Coal. 'After the indictment was returned, the plaintiff in error was arraigned, and to the indictment plead not guilty. The cause was submitted to a jury who returned a verdict of guilty.

This is a Writ or Error to the Supreme Court of Knox County. The case comes before the Court upon Writ of Error to the Supreme Court of Knox county. The original action was commenced before a Justice of the Peace, by the plaintiffs in error, against the defendant, on the 28th January, 1843. From the decision of the Justice an appeal was taken to the Court of Common Pleas. In the Court of Common Pleas the plaintiffs filed a declaration containing four counts.

<p>When the title to a part of the premises sold and conveyed fails, the vendee may recover back a proportionate share of the purchase money paid.</p> <p>Jf his deed be lost he may maintain a bill in Chancery for the recovery of the money.</p>

<p>Where interest greater than at the rate of six per cent, has been voluntarily paid, the same cannot be recovered back, or set off against the principal debt.</p>

<p>A Court cannot take notice of a misnomer upon a demurrer, but only when the fact is properly put in issue, and proved or admitted.</p>