Volume 19 — Ohio State Reports, Second Series

This is a bill in chancery, reserved in Hamilton county. The complainant sets forth in his bill, that on or about the first day of July, A. D. 1886, he contracted to sell to his sons, John Hammell and William Hammell, a lot of land, with the improvements thereon, situated in Cincinnati, and being a part of lot number 230, described as follows, to-wit: Beginning at a point one hundred and thirty-five feet east of Race street, thence east on a line with Third street,…

This is a bill of review, reserved in Sandusky county, and was submitted without argument. The facts are stated in the opinion of the court.

<p>This is a writ of error to the Supreme Court for Wyandot county.</p> <p>The plaintiff in error recovered judgment against the defendants in error in the court of common pleas of Wyandot county, July 5th, 1849, for $940.18 damages, and $4.57 costa of suit.</p> <p>The defendants sued out a writ of error, which came on for hearing before the supreme court in the county, at the July term, 1850, when, there being no assignment of errors, the judgment of the common pleas was affirmed. But inasmuch as it was made to appear to the satisfaction of the court, that the plaintiff below had actually received part payment of his judgment-, to wit, the sum of three hundred and seventeen dollars, at the hands of the defendants, during the pendency of said writ of error, the court refused to enter judgment against the plaintiffs in error, for five per centum damages on any amount whatever. To correct the judgment of the supreme court in this respect, the present writ is prosecuted.</p>

This is a writ of error to the Court of Common Pleas of Gallia county. The plaintiffs brought an action of replevin in the court for a quantity of pine planks and shingles lying on the bank of the Ohio river, near Willey’s landing, in Clay -township, in said county. The defendants plead first, that they did not wrongfully detain the goods, and secondly, that the property in the goods was in themselves.

This is a writ of certiorari to the Court of Common Pleas of Richland county, brought to reverse an order of partition. The facts in the case will be found stated in the opinion of the court

<p>In a case in equity to enforce a vendor’s lien, where the premises after the purchase had been mortgaged by the vendee to a third person, and sold under a decree upon the mortgage to such third person, the vendee is incompetent on the ground of interest, to give testimony in behalf of the complainant.</p>

This is a writ of error to the Supreme Court for Hamilton county. The original action was assumpsit, brought by Armstrong against the Goodins, in the commercial court of Cincinnati, where it was tried before the court without the intervention of a jury. Judgment was rendered for the plaintiff. A motion for a new trial was made by the defendants, which was overruled by the court, and bill of exceptions sealed.

This is a bill in chancery for partition, reserved in Washington county. The bill states that George Howe died seized of certain lands therein described. He devised one-half of them to Mary Howe his widow, and directed the other half to be equally di vided amongst his children, but subject to a life estate of Rachel Howe, the testator’s mother. Rachel Howe died many years before the filing of the bill.

This is a bill in. chancery for partition, reserved in Fairfield county. The complainants demand partition of fifty-four acres of land, claiming to be the owners of two-thirds. The facts are as follows: Jacob Brobst died, seized of a quarter section of land, which he devised to his wife during her life, and after her death, to his three children, John, David, and Catharine. In 1888, the widow released to her children, before mentioned, her life estate in the tract of land.

This is a writ • of error to the Court of Common Pleas of Erie county. The action below was ejectment. The plaintiff proved a possessory title in David Hinman, the death of Hinman in 1820, the heirship of Mrs. Dubois, and her marriage with Dubois, and rested.

This case was reserved in Champaign county, and comes before the court on a motion to dismiss the appeal. -George Steinbarger’s administrator filed his petition in the court of common pleas of Champaign county, for the sale of land to pay debts. The petition iucluded land which it alleged had been fraudulently conveyed, making the vendee a party, praying a cancelment of the deed and the sale of the land. The common pleas ordered a sale of the premises.

This is an appeal ’ from the decision of the Auditor of State. , The facts in the- ease are substantially as follows: The Cincinnati College was incorporated by an act of the legislature, passed in January, 1819. The first section of the charter declares the object to be, the erection and main tenance of a college. Sec. 6th provides that the funds of the institution shall not be applied to any use or for any purpose, not therein expressed or intended.

<p>This is a mandamus, reserved in Hamilton county.</p> <p>The relator is the sheriff of Hamilton county. During the May term, 1850, of the supreme court in said county, said sheriff expended the sum of $174.47, in and about the boarding and care of two traverse juries, impanneled to try a person charged, in two indictments, with the crime of murder.</p> <p>This money was expended in obedience to a special order of the court, made necessary for the furtherance of the administration of justice in an important criminal proceeding in the county. The allowance and order of the court were duly presented to the defendant, who is the auditor of the county of Hamilton, with a request that he would issue an order on the treasury, which he refused to do.</p> <p>On these facts, a rule was granted by the court for an alternative mandamus to the defendant, in answer to which he states that he refused to issue the order on the treasurer be cause he had not been able to find any law of the state authorizing or requiring an auditor to issue the same upon the allowance of the court. A motion for a peremptory mandamus being made by complainant, the court reserved the motion for the advice of all the judges.</p>

This is a writ of error to the Court of Common Pleas of Brown county. The action below was assumpsit, brought by the present plaintiff, as surviving partner of the firm of Beesley and Ramsey. The declaration contained the common counts. ' The plea was the general issue, with notice of set off. The case was tried by the court without the intervention of a jury, and a judgment rendered in favor of the plaintiff, for three dollars and ninety cents.

This is a writ of error to the court of common pleas of Lorain county. The facts will be found stated in the opinion of the court.

This is a writ of error to the court of common pleas of Morgan county. The facts will be found sufficiently stated in the opinion of the court.

This is a writ of error to the Supreme Court for Hamilton. So much of the statement of the case as is necessary to understand the point decided, will be found in the opinion of the court.

<p>This is a motion to let to bail, reserved in Hamilton county.</p>

This is a writ of error to the Court of Common Pleas of Washington county. The action below was a case in which the defendant in error was plaintiff. , The declaration contained three counts.

This is a writ of error to the Court of Common Pleas of Stark county. Hurd brought an action of assumpsit in the court below, against the said company, on a policy of insurance. The policy, which had been assigned to the plaintiff below, was given to Frederick N. Hurd and Charles Lathrop, by the name of Lathrop & Hurd, who were thereby insured to the amount of $2,500, upon their stock of goods, contained in the store occupied by them in Akron.

This is a mandamus, reserved in Hamilton county. On the 16th of May, 1850, during the session of the supreme court in Hamilton county, an alternative mandamus was issued, at the instance of the board of directors of common schools, for the eastern and western districts of Cincinnati, against the city of Cincinnati, the. city council of Cincinnati, and William Disney, treasurer of said city, returnable on the 18th.

<p>This is a writ of error to the Court of Common Pleas of Putnam county.</p>

This is a bill in chancery, reserved in Hamilton county. The bill was filed in the commercial court of Cincinnati. By the statements of the bill, Pugh sold to' Brown three-twelfths of the Cincinnati Chronicle printing office, subscription list, and all things pertaining to the said concern, for the sum of fifteen hundred dollars.

This is a bill of review reserved in Brown county. The bill was filed to reverse a decree of the supreme court for Brown county, and comes before this court upon demurrer to the bill. There is no serious controversy so far as the facts of the case are concerned, and so far, as is necessary to an understanding of the points in the case, they are as follows: The property in dispute is a tract of 1417 acres of land in Brown county. This land, in 1831, was owned by Joseph Scott.

This is a bill in chancery, reserved in Shelby county. The case stands upon bill, amended bill and demurrer, and is sufficiently stated in the opinion of the court.

This is a writ of error to the Supreme Court for Lucas county. The original action, which was an action of ejectment, was commenced in the court of common pleas of' Lucas county, issue was joined, and for trial was submitted to the court upon an agreed statement of facts. Upon this agreed statement the court found the issue for the then plaintiff, now defendant in error.

This is a writ of error to the court of Common Pleas of Montgomery county. Erom the bill of exceptions the following facts appear: On the 6th of July, 1849, the parties entered into arbitration bonds, in the sum of fifty thousand dollars each, conditioned to abide by and perform the award of certain arbitrators therein named, or a majority of them.

This is a bill in chancery, reserved in Morgan county. The complainants are the children of James Nelson, de ceased, who have filed their bill, claiming certain' rights under the will of their father, of which they allege they have been deprived by the defendants, who are also children and devisees of James Nelson. The case involves a construction of his will. It provides as follows: “ First.

This is a writ of error to the court of Common Pleas of Clermont county. The record in the case shows that on the fourth of October, 1849, a summons was issued at the suit of the defendants in error, by the name of Latimore, Jenkins & Co., against Thos. W. Abernathy and Nehemiah Morse in an action of debt, and directed to the sheriff of Clermont for service and return.

<p>This is a writ of error to the Supreme Court for Greene county.</p> <p>The action below was assumpsit. The declaration contained four special counts upon a contract to teach a common school; and one common count for work and labor.</p> <p>Plea, non-assumpsit, with notice of a former recovery.</p> <p>At the March term of the court of common pleas, 1847, the cause was tried by a jury, and a verdict found for the plaintiff, in the following words: “ We, the jury, do say that the said defendants did assume and promise, in manner and form as the plaintiff has declared against them, and do assess the damages of said plaintiff at thirty-six dollars and eighty-three cents.”</p> <p>A motion in arrest of judgment, was made for the following reasons :</p> <p>1. The declaration contains no averment that the plaintiff had obtained a certificate of qualifications from the board of school examiners.</p> <p>2. The declaration is bad in substance.</p> <p>This motion was overruled by the court, and judgment rendered upon the verdict. To reverse this judgment, the directors prosecuted their writ of error.</p> <p>The errors assigned, were, first, that judgment should have been rendered for the defendant and not for the plaintiff. Second, that the court overruled the motion in arrest of judgment.</p> <p>The supreme court on the circuit at their June term, 1849, reversed the judgment on the ground that the declaration was bad, for the want of an averment that Chisom had obtained a certificate of qualifications as a school teacher.</p> <p>To reverse this last judgment, the present writ is prosecuted.</p>

<p>A discharge and certificate under the bankrupt law of 1841, will be a complete bar to a suit on a promissory note, given anterior to the proceeding in bankruptcy, but not included in the schedule of debts, unless willfully and fraudulently withheld from the list.</p>

<p>A judgment of the court of common pleas cannot be reversed because tha jury found the issue against the evidence, unless there was a motion for a now trial; and the same rule applies where the intervention of a jury is waived and the issue is submitted to the court.</p>

<p>Error cannot be assigned upon any ruling of tlie court in the progress of a trial, unless by the bill of exceptions it appears that an exception was taken to such ruling.</p>

<p>This is a writ of error to the Court of Common Pleas of Clark county.</p> <p>The defendant, David Stewart, was tried in the court of common pleas of Clark county, on an indictment for murder in the second degree, charging him with killing James R. Doty, and found him guilty.</p> <p>Numerous exceptions were taken, during the trial, to the rulings of the court, in the admission of evidence. The court reduced their charge to the jury to writing, on which errors have been assigned. A motion was also made for a new trial, and overruled by the court, which ruling of the court was excepted to, and the evidence in the case has been spread upon the record, and it is contended that it does not warrant the verdict.</p> <p>'The bill of exceptions is very voluminous, and the errors assigned are numerous. Only a part of them were considered by the court, and a full statement, as to them, will be found in the opinion of the court.</p>

This is a writ of error to the Court of Common Pleas of Hardin county. The defendant in error brought an action of ejectment in the court below, against the plaintiffs in error, claiming title to the lands in controversy under a patent from the United States, dated the 25th of January, 1823, granted to the heirs and legal representatives of Benjamin Forsythe, for 6061- acres of land situated in Hardin county.

This is a bill in chancery, reserved in Trumbull county. The documents and exhibits show the following state of facts: Plenry Wick, of Youngstown, Trumbull county, Ohio, died in November, 1845, leaving as his heirs at law, his sons, Caleb B. Wick, Lemuel Wick, Henry Wick, Hugh B. Wick, John D. Wick, and Paul Wick; and his grand children, Mary Wick, Eliza Wick, and Thomas L. Wick, minor children of his son Thomas L. Wick, deceased, and the complainants, minor children of his…

This is a writ of error to the Supreme Court for Jefferson county. The action in the common pleas was replevin, brought by the defendant in error, for ten barrels of flour, which bad been levied on by Inglebright, as constable of Wayne township, in Jefferson county, upon an execution against George and Thomas Webb. Judgment was rendered for the plaintiff below, which was affirmed by the supreme court, and- to reverse the judgment of the supreme court, this writ is prosecuted.

<p>This is a writ of error to the Court of Common Pleas of Muskingum county.</p> <p>The plaintiffs brought an action of covenant in the court below, on an article of agreement between the parties under seal. The article was dated March 2d, 1844, and was executed by said Gittings of the one part, and by said Campbell, William Ricketts, A. Baker, and one Simon Shurtliff, since deceased, of the other part. By this article, Gittings sold to Campbell, Ricketts, Baker, and Shurtliff, 1250 acres of land, particularly described therein, and situate in said Muskingum county.,</p> <p>The only parts of the article required for the purposes of this case, to be set out, are the following: “ And the said Gittings agrees to make and deliver a general warranty deed, m fee simple for said land, on or before the first day of September next to said Campbell, Shurtliff, Baker, and Ricketts, or to such other persons or trustees as they may designate, in trust for them or their associates, now and hereafter to be associated in a society called the Columbian Phalanx. And the said Campbell, Shurtliff, Baker, and Ricketts agree to pay for said land at the rate of sixteen dollars per acre, and that they, or the said trustees, when the said deed is tendered to them or either of them, will execute and deliver to said Gittings their joint and several bond for the full amount of said purchase money, payable in eight years after the first day of April next, with interest payable annually after said first day of April, and also make and deliver to said Gittings a mortgage on said lands to secure the payment of said bond, and the interest on the same.”</p> <p>The declaration, after setting out the various covenants in the article, and averring breaches, contains the following averment : that the plaintiffs “ offered to the defendant, to execute and deliver to him, said defendant, their joint and several bond,” setting forth the terms, etc., in the language of the covenant, “ and also to make and deliver to him, the said defendant, a mortgage on said land, to insure the payment of said bond ; and that they then and there requested the defendant to make and deliver a general warranty deed in fee simple for said land; that the defendant did not nor would make and deliver the deed, but neglected and refused so to do.”</p> <p>The defendant craves oyer of the article of agreement, which is set out, and demurs to the several breaches assigned, claiming judgment because of their insufficiency. The common pleas gave judgment for the defendants on the demurrer.</p>

This is a writ of certiorari to the Court of Common Pleas of Eranklin County, and comes before the court on a motion to-dismiss the writ.

<p>A declaration averring the existence of a bond, and making profert thereof, ia not sustained by proof of a lost bond.</p> <p>Where the bond is lost after the declaration is filed, the plaintiff must amend.</p>

This is a -writ of error to the Court of Common Pleas of Butler county. The transcript of proceedings, or copy of record from the ■court of common pleas, shows that a certiorari was issued from that court to John Morse, a justice of the peace, commanding him to certify into that court a copy of proceedings lately had before him, in a case in which Samuel Zigler was plaintiff, and William Bowrell was defendant.

<p>This is a writ of error to the Supreme Court for Summit county.</p> <p>The original action in the court of common pleas was for trespass to real estate. The defendants plead not guilty, and gave notice that one of the defendants, David Isabel, was supervisor of roads in the district where the lands were situated, and that the alleged trespasses were committed by-defendants under his direction, and whilst he was engaged in the performance of his official duty, and that no more in jury was done to the premises, than was necessarily attendant on removing obstructions put by the plaintiffs across a highway under his supervision. It appeared from the evidence in the ease, that the highway referred to ran’through the lands of plaintiffs, that it was laid out and opened as a county road in 1810, and was used as such until 1837, when plaintiffs obstructed it by building a fence across it, and that it had remained closed, until opened by the defendants, being a period of more than seven years. The plaintiffs on the trial in the court of common pleas, claimed that the road, having been closed for more than seven years, had thereby become vacated, under the provisions of the statute “ relating to state and county roads,” passed March 12th, 1845. The defendants asked the court to charge the jury that the statute above referred to, did not apply to a county road that had been opened and used as a public highway, but merely to a road that had been authorized, but never opened. The court of common pleas refused to give this charge, but did charge that the statute applied as well to a road that had been opened and used, as to one that had been merely ordered but never opened.</p> <p>• This charge was excepted to by the defendants, and a verdict having been returned for the plaintiffs, the defendants brought a writ of error to the supreme court on the circuit. The supreme court decided «that the charge of the common pleas as above set forth was erroneous, and on that account reversed the judgment. To reverse this judgment of the supreme court this writ of error is prosecuted.</p>

This is a writ of error to the Court of Common Pleas of Fairfield county. The original- action was upon a promissory note, of which Jesse B. Hart, Samuel Crim, William Hart, and Samuel M. Hart, were charged as being the joint makers. Samuel M. Hart was named as defendant, in the process, but the sheriff returned as to him not found. This was noted in the declara'tion, and the case proceeded, against the other three defendants.

<p>Iq an indictment for an assault with intent to murder, it is sufficient to describe the intent in these words: — “ With intent in and upon him, the said John F. Walton, then and there feloniously, willfully, and of his malice aforethought, to commit a murder.”</p> <p>Though in the indictment it be averred that the assault was committed with malice aforethought, yet the jury may convict, if the proof satisfy them the assault was committed with intent maliciously and • purposely to Mil, although they should find it was made without malice aforethought.</p> <p>If a father wantonly mate an assault upon a third person, and his son come 'into the affray, afterwards, to aid his father in the assault, on an indictment against the son for an assault with intent to murder, the jury cannot consider his relation to his father, nor the circumstances of peril in which his father was placed.</p>

This is a bill in chancery, reserved in Athens county. The bill charges that on the 9th day of April, A. D. 1842, the complainant recovered a judgment in the circuit court of Noble county, Indiana, against one John P. Hedges, in his capacity as administrator de bonis non of one Samuel Colvin, for the sum of four hundred and nineteen dollars and cost, which judgment is in full force and entirely unsatisfied.

<p>This is a bill in chancery reserved in Muskingum county.</p> <p>The facts material to the decision are as follows:</p> <p>On the 10th day of February, 1842, George Reeve and George B. Reeve, two of the defendants named in the bill, being indebted to the complainants’ testatrix (then in full life), in the sum of $22,040, to secure the payment thereof mortgaged to her, by deed duly executed and acknowledged by themselves and their respective wives, certain lots and parcels of land situate in the county of Muskingum. The mortgage was duly recorded in the recorder’s office of that county, on the 11th day of February, 1842.</p> <p>At the time of the execution and recording of this mortgage, there were two judgments operating as liens upon the premises embraced therein; one of them being a judgment recovered at the March term, 1840, of the common pleas of Muskingum, by the Franklin Bank of Cincinnati, against George Reeve and George B. Reeve and others, for $3,155 damages and $16.58 costs of suit, and the other a judgment recovered at the June term, 1841, of the same court, by the Bank of Zanesville, against George Reeve and George B. Reeve and others, for $3,575.09, and $19.17 costs of suit.</p> <p>Before and at the time of the recovery of these judgments, George Reeve was in the possession and occupancy of two certain other parcels of land, with a grist mill and other buildings thereon, and certain water power, privileges and easements annexed thereto, situate in Muskingum county, and known as the “ Reeve mill property,” and continued in such possession and occupancy thereof up to and at the time of the execution and recording of the mortgage above mentioned, and also after wards, until the filing of the bill in this cause.</p> <p>These two parcels of land and water power, constituting the “ mill property,” were not included in the mortgage to the complainants’ testatrix.</p> <p>George Reeve acquired title to this “ mill property ” by virtue of a lease thereof made to him by the State of Ohio, by deed of indenture dated the 20th day of December, 1838, duly executed and acknowledged by both parties in the precise form prescribed for a conveyance in law, by the “ act to provide for the proof, execution, acknowledgment and recording of deeds and other instruments of writing.” This deed was afterwards duly recorded in the recorder’s office of Muskingum county.</p> <p>By the provisions of this lease, the premises were demised to George Reeve, for “ the term of thirty years, from and after the first day of January, 1889,” at the yearly rent of $1,200, payable semi-annually, on the first day of May and November in each year, with the right of “ renewal ” in the lessees.</p> <p>The clause of renewal is as follows: “ And it is further understood and agreed that, at the expiration of this agreement, the party of the second part shall be entitled to a renewal of the lease, for a like term of years, for such annual rent as may be offered by the highest responsible bidder, who shall also agree to purchase of said party of the second part, all permanent and valuable buildings necessarily erected by said party for the convenient use of the water power hereby leased, at such price as such buildings shall be adjudged to be worth by three judicious, disinterested freeholders, to be chosen as hereinbefore specified ; provided, such buildings shall be erected on land belonging to the state, or land which can be purchased by said bidder at a reasonable price, to be determined by said appraisers. And if no such bid shall be made on the terms aforesaid, at a higher rent than is herein specified, such party shall be entitled to such renewal on the terms of this lease.”</p> <p>On the 16th day of February, 1848, the Franklin Bank of Cincinnati sued out execution on its judgment, and on the 23d day of February, 1843, the Bank of Zanesville also sued out execution on its judgment ; which two writs of execution, returnable to the February term, 1843, were, on the 24th day of February, 1843, delivered to the sheriff of Muskingum, who, on the 25th of the same month, levied the two writs, at the same time, upon all the several lots and parcels of land included in the mortgage to the complainants’ testatrix, and also levied the same upon one other parcel not included in said mortgage, upon which also the two judgments, from the time of the rendition thereof, were liens; being the parcel mentioned in the bill as conveyed in fee to George Reeve and George B. Reeve by Henry Nash and wife, and called the Nash property, being the same premises included in the mortgage secondly mentioned in the bill dated the 19th day of January, 1830, and duly recorded, and which was a lien thereon prior to the two judgments. No further proceedings were had under these writs for want of time.</p> <p>On the 7th day of March, 1845, writs of venditioni exponas were issued on the two judgments respectively, for the sale of the premises levied on as above mentioned, returnable to the May term, 1845, under which the premises were appraised and advertised for sale, but the sale thereof afterward potsponed.</p> <p>On the 15th day of May, 1845, the complainants, as subsequent incumbrancers by mortgage in the manner above mentioned, obtained from the Franklin Bank of ■ Cincinnati an assignment of its judgment, and on the first day of July, 1845, as such subsequent incumbrancers, also obtained from the Bank of Zanesville an assignment of its judgment, and the transfers of such judgments were duly made to them as such subsequent incumbrancers, they advancing and paying to the respective banks, for the same, the full amount of the respective damages and costs originally recovered, and also all the interest accrued thereon, with all the accruing costs, up to the respective times of such transfer.</p> <p>On the 24th of March, 1848, the complainants, as such assignees of the judgments, caused writs of venditioni exponas, with an ao etiam clause therein, directing a further levy to be issued thereon respectively, returnable to the April term, 1848, and such executions were on that day delivered to the sheriff of Muskingum, who on the same day, in virtue thereof, levied on the “ mill property,” now in controversy, as permanent leasehold estate.</p> <p>Neither George Reeve nor George B. Reeve had the legal title to any other real estate upon which the judgments above mentioned, or either of them, operated as a lien at the time of the execution and recording of the mortgage to the complainants’ testatrix.</p> <p>The bill was filed on the 26 th day of April, 1848.</p> <p>On the 21st day of October, 1842, more than eight months after the execution and recording of the mortgage to the complainants’ testatrix, and while the two judgments were resting as liens binding upon the lands and permanent leasehold estate of George Reeve and George B. Reeve, the Merchants and Mechanics’ Bank of Wheeling, and the Clinton Bank of Columbus, obtained from George Reeve and George B. Reeve a mortgage, executed and acknowledged by George and George B. Reeve and their respective wives, in part security for the payment to these two banks of the sum of $ 63,211, upon all the premises included in the prior mortgage made to the complainants’ testatrix; and at the same time, also in part security for the same indebtment, another mortgage, executed and acknowledged in like manner, upon the “ Nash property” and the “ mill property.”</p> <p>These two mortgages were recorded on the 24th day of October, 1842, in the recorder’s office of Muskingum county.</p> <p>At the September term, 1848, a decree was rendered in the common pleas, marshaling the liens and declaring the rights and equities of the parties as to all the matters involved in the case, (excepting only as to the lien of the complainants upon the “ mill property,”) and directing a sale of all the other premises described in the bill, reserving for the future consideration and determination of the court, all questions as to the lien or claims of the complainants upon the “ mill property.”</p> <p>Under this decree all the premises, (except the “ mill property,”) were sold. At the February term, 1849, the sales were confirmed, and at the same time a decree entered applying the proceeds of such sales according to the rights of the parties as declared by the decree of the former terms.</p> <p>The whole proceeds of sale thus appropriated fall short of the payment of the amount due 'to the complainants upon the mortgage of the testatrix, and upon the two assigned judgments by about the sum of $7,000.</p> <p>The complainants insist that, as against the Merchants and Manufacturers’ Bank of Wheeling and. the Clinton Bank of Columbus, they have the preferable lien upon the “ mill property and to determine this question the case was reserved for decision in bank.</p>

This is a writ of error to the Commercial Court of Cincinnati. A statement of the case, showing the points decided, will be found in the opinion of the court.

<p>This is a writ of certiorari to the Court of Common Pleas of Fairfield county.</p> <p>The writ is prosecuted to review and reverse an order of the court of common pleas of Fairfield county, for the distribution of monej/made by sale on execution among judgment creditors.</p> <p>The transcript of the record shows, that at the March term of the court of common pleas of Fairfield county, 1846, and on the 23d day of the same month of March, Samuel May recovered a judgment by confession, against Reed Armstrong, for six hundred six dollars damages, and costs of suit. Execution was issued upon the judgment on the 27th day of the same month, directed to the sheriff of Ross county, and levied the same day, on certain real estate in Kingston, in said county of Ross.</p> <p>During the same term of the court, and on the 28th day of March, another judgment by confession was recovered against the said Armstrong, in favor of Dixon Fullerton, for eight hundred seventy-one dollars twenty-two cents, and costs of suit. On the same day an execution was issued, upon this judgment, also directed to the sheriff of Ross county, and by him levied, on the day of its date, upon the same real estate.</p> <p>On the second day of April, and during the same term of the court, another judgment by confession was recovered at the suit of Wilcox and Reed, for fourteen hundred sixteen dol-. lars nine cents, and cost of suit. On the same day execution was issued upon this latter judgment, directed to the same sheriff, and by him levied on the same real estate. The land levied upon was sold by virtue of a vendí, on the 28th day of April, 1849, for $1,333.34, and the money brought into court.</p> <p>On motion, the court, ordered that the money should be first paid to the creditor making the first levy, and this order is claimed to be erroneous, and contrary to the statute.</p>

<p>Under the act of 1835, a rule for a mandamus will not be granted; an alternate mandamus first issues.</p> <p>A peremptory mandamus will not be awarded to compel the commissioners of a county to levy a tax for the satisfaction of a judgment, when there has been no unreasonable or vexatious delay.</p>

<p>It is no violation of the constitution for the general assembly to provide, in the charter of a town, that the town council may impose the duty of making side-walks upon the lot owners; and if any one neglect to perform the duty, the counsel may cause the work to be done for him, and assess the amount expended as tax upon the lot.</p>

<p>In a criminal proceeding, it is not necessary to insert the middle letter in a person’s name ; but if inserted, it must be proved as laid.</p> <p>On a plea of duteafois acquit, the true test to determine whether the accused has been put in jeopardy for the same offense, is whether the facts alleged in the .second indictment, if proven to be true, would have warranted a conviction on the first indictment.</p>

<p>Where exceptions are taken to any decision of the court, during the progress of a ease, the bill of exceptions must be signed, and sealed during the term in which the decision excepted to is made. If signed and sealed subsequent to the close of the term, it will not be considered, by the supreme court, as constituting any part of the record.</p> <p>Where a writ of error is prosecuted in the supreme court, to reverse a judgment of the court of common pleas, on the ground that the court erred in overruling a motion for a new trial, because the verdict was against evidence, all the evidence before the jury, on the trial of the cause, must be brought before the supreme court by bill of exceptions. It must be embodied in the bill of exceptions, or in some manner so made a part of it, that there can be no doubt that the supreme court has precisely the same evidence before it which was before the jury.</p> <p>Where signatures of a party are before the court, which are admitted to be genuine, experts may be called to give their opinion, upon comparing them with the signature in controversy, whether it is genuine.</p>

This is a bill in chancery reserved in Erie county, and the case is submitted upon bill and demurrer.

This is a bill in chancery reserved in Hamilton county. The case was brought before this court in 1848, upon bill and demurrer, and was elaborately argued, decided, and remanded to the county, with 'leave to answer. It is reported in 17 Ohio Rep. 192, and contains the arguments of counsel. It was re-argued at the present term, but as the facts in the case are no-t materially changed by the answer and testimony, the arguments are omitted.

This is a writ of error to the Supreme Court of Hamilton county. Several points were presented by the record and argued by counsel, but only one was considered by the court. .. That is sufficiently stated in the opinion of the court.

This is a bill of review reserved in Pickaway county. The original bill was filed by the receivers of the Bank of Circleville, against Peter Yoorhees and others, charging them as stockholders, and that they were' indebted upon stock subscriptions, and praying for a decree for the amount of their indebtedness, respectively.