Volume 2 — Ohio Public Domain Citations

<p>This case came before Judges Pease and Burnet, by writ of error, at the April Term, 1825, in Gallia county.</p> <p>The declaration was in these words, “Norman McCloud was summoned to answer unto James Mors, who sues, etc., of a plea of the case, for this, to wit: That the said Norman, on May 18, 1819, at Green township, in the county aforesaid, by his certain note of that date, duly executed, promised to pay the said J. Mors, or order, one hundred dollars, by the first day of October next succeeding said date, as by the said note to the court here shown appears. Yet the said Norman, although often requested, hath not paid the amount of said note, or any part thereof; but the same to pay he hath wholly refused, and still doth refuse, to the plaintiff’s damage of three hundred dollars. Therefore he sues,” etc.</p> <p>J'The defendant demurred generally. The court below sustained the demurrer, and gave judgment for the defendant.</p> <p>The error assigned is, that judgment was rendered for the said Norman, when it ought to have been rendered for the said James.</p>

This case came before Judges Pease and Burnet, at the May-Term, 1825, in Hamilton county. The bill states, that the complainant was fraudulently induced to sign a ponal bond, as security for one Daniel Lacy. That his signature was obtained while he was intoxicated, by the procurement of Garrard. That having signed the bond as principal, he could not show, at law, that it was intended to be as security.

<p> Chancery. </p> <p>Construction of entry.</p> <p>A survey did not so appropriate lands as to render a subsequent entry void, in cases that occurred before the passage of the act of Congress of 1807.</p> <p>Land can not be appropriated without an entry, and where survey and patent include lands which the entry does not include, such land is subject to' entry as vacant land, and the patentee, or those claiming under him, shall in equity be decreed to convey to .the subsequent location.</p> <p>Construction of entry.</p>

This ease came before Judges Pease and Burnet in Clermont county, at May Term, 1825. The facts are these : Weaver instituted a suit against Duckwall and wife, on a note purporting to have been executed by the wife when sole.

<p> Trespass on the Case. </p> <p>A person fined before one justice for profane swearing, and arrested and brought before another justice for the same offense, can only prove the former conviction by a transcript from the docket of the justice who assessed the fine.</p>

This case came from before Judges Pease and Burnet, at June Term, 1825, in Warren county.

<p> Chancery. </p> <p>Where a matter of fact, properly a subject of defense at law, is not litigated at law, equity does not relieve by an examination into that fact.</p>

<p>1. The claim of the complainants was a proper defense to the suit at law.</p>

This cause came before Judges Pease aud Burnet, at the April Term, 1825, in the county of Gallia. It appeared, from the record, that a certiorari had issued from the common pleas of Gallia to John Kerr, a justice of the peace, who returned the same with a transcript annexed, from which it appeared that a summons issued in the name of Jane Scott for the use of Workman, against Samuel Westlake, which was returned served.

<p>This cause came before Judges Burnet and Sherman, at the August Term, 1825, in the county of Wood.</p> <p>It was certified to this court from the court of common pleas on the ground that there was not a constitutional quorum of disinterested judges to try it. The certificate accompanying the record was in these words : “ Whereupon this cause being called 'by the honorable court in chancery, E. Lane, Esq., solicitor for the defendant, suggests that there is not a quorum of judges qualified to try this cause on account of interest, and this appearing, the clerk of our said court, according to the statute in such case made and provided, certifies the pleadings to the Supreme Court.”</p> <p>The court, having inspected the record, refused to take cognizance of the cause for want of jurisdiction, and ordered the transcript to be sent back to the common pleas of Wood county.</p>

This cause came before Judges Burnet and Sherman, at the August Term, 1825, in Sandusky county. The facts were these : Hartshorn having made affidavit of a debt due from Wilson, and that he absconded to the injury of his oreditors, sued out an attachment before a justice of the peace, by virtue of which the constable to whom it was directed attached a yoke of oxen.

<p>This case came before the court upon three separate motions, made in the Supreme Court for Tuscarawas county, and. adjourned for decision to this court.</p> <p>The case was this: Hammer brought an action for goods sold and delivered to John and Alexander McConnel, as partners in trade — process issued against both, but as to John McConnel, was returned not found. The declaration was filed under the statute suggesting the return of non est as to John — Alexander appeared and pleaded to the action separately, and in the court of common pleas a verdict passed in his favor. The plaintiff appealed to the Supreme Court, where a verdict was found for the plaintiff. The verdict was returned as against both John and Alexander, and a joint judgment was rendered against both. At a subsequent term, the plaintiff moved for leave to amend the judgment by striking out the name of John McConnel. The defendant moved to set aside the verdict and judgment, as irregular, and award a venire facias de novo — and also, in the event this motion should be overruled, he moved for a writ of error coram nobis.</p>

This was an action on trespass, with force and arms, for taking and converting goods. The defendant first pleaded the general issue of not guilty ; and, secondly, he pleaded that the plaintiff had prosecuted a separate action, for the same trespass, against one Asa K. Burroughs, in the Supreme Court of Portage county, and recovered against him a verdict and judgment for damages and costs. To this plea the plaintiff demurred, and the defendant joined in demurrer.

<p>Where the person taking acknowledgment of a deed gives himself no official character in his certificate or subscription, the acknowledgment is insufficient, and the record of the deed irregular. Copy of it duly certified can not be given in evidence.</p> <p>Proof to supply defective certificate of acknowledgment of a deed can only be given when original deed is produced.</p>

This action was brought by the plaintiff, as assignee of Philip Pierce, and was founded upon two promissory notes, one for thirty-eight dollars, the other for two hundred and eighty dollars, both given by the defendant to Philip Pierce. The defendant pleaded non est factum, without affidavit, and gave notice of payment.

<p>Evidence that a sale of goods to C. was made upon an understanding that W. was his partner, and upon the credit of W., is admissible against W., but not available without other proof of partnership.</p> <p>Where a partnership have assumed no name, one partner may bind the other by contracting in the name of himself and company.</p> <p>Proof of usage and custom of merchants may be admitted, but the opinions of -witnesses are not admissible.</p>

This cause was certified from the Supreme Court of Clark county. It was an action against the sheriff, and the question in controversy was who, of several parties, was entitled to a sum of money made upon execution. The facts of the case, as agreed between the parties, were as follows: Several judgments had, at different periods of time, been rendered against the same defendant.

<p>"Where a newspaper is printed in a county, it is sufficient for a sheriff to advertise sales upon execution in it. Advertisements need not he set up in other places.</p>

This was an action of replevin, adjourned from the Supreme Court of Huron county).upon a question whether the appeal was correctly taken. The suit was brought in the common pleas. The plaintiff replevied the property, and on the return of the writ filed his declaration. The defendant pleaded non cepit, with notice of special matter in bar.

This was an action of trespass, assault, and battery. The original writ was sued out against five defendants — Bitzer, Townsend, Whitacre, Williams and Adkins. As to Williams and Adkins it was returned non est. The declaration was filed against the other three making this suggestion. They appeared and pleaded not guilty.

This was an action of trespass, guare clausum fregit, adjourned from the Supreme Court of Columbiana county, upon a case agreed, embracing the following facts: Thompson, the defendant, mortgaged the premises in question to Robert Patterson and others. A scire facias was prosecuted upon the mortgage; the land taken in execution, sold by the sheriff, and purchased by the plaintiff.

<p>This was a writ of error to a judgment of the court of common pleas of Morgan county, adjourned from that county for decision here.</p> <p>The case was this: Byers was appointed collector of Morgan county for the year 1824. The other defendants executed with him the official bond required by law, upon which the original suit was brought. The cause was submitted upon an agreed state of facts, which it is not material to recapitulate, as the decision turned upon a single point.</p> <p>When Byers paid into the state treasury the land tax collected, he did not pay the proportion due to the county, and which, under the law, is transmitted by the auditor to the county treasurer; but he obtained a letter from the auditor of state to the county treasurer, authorizing him to receive the amount of Byers, and give a receipt for it. Byers produced this letter to the county treasurer, and at the same time tendered and offered to pay the amount due to the county, in orders issued by the county, and payable at the county treasury. These orders being depreciated, in consequence of the state of the county treasury, the treasurer refused to receive them, and brought suit on the collector’s bond. The court of common pleas gave judgment for the plaintiff for the amount, and Byers obtained a writ of error.</p>

This cause came before the Supreme Court of Warren county mpon the-return of the trustees of' township 4, in range 8, to a mandamus, nisi, awarded against them by the Supreme Court at their term in the year 1824, and was adjourned for decision to this court. The society of Shakers, denominated “ United Society of Union Village,” are inhabitants of township 4, in range 3, of Warren county. In this township section 29 is set apart for ministerial purposes.

<p>Tenant in common, or' coparcenary, can convey a part of his undivided estate.</p> <p>Deed by tenant in common, or coparcenary, purporting to convey in severalty, is a good conveyance for the grantor’s undivided part, within its boundaries.</p>

This cause was adjourned from the Supreme Court of Brown county. It was a bill in chancery to enforce the specific performanee of a contract, for the sale of a tract of land in Brown county. The following are the facts material to- a correct understanding of the point decided by the court: Josiah Parker, of Virginia, .owned the land in question, and he lived and died in Isle of Wight county, in Virginia, where his last will and testament was duly proved and recorded.

<p>This cause came before the court by adjournment from the Supreme Court of Hamilton county, upon a motion to set aside a nonsuit and grant a new trial.</p> <p>It was an action of general indebitatus assumpsit, in which the plaintiffs claimed as heirs of Christian Waldsmith, and charged the defendants as his administrators. In the declaration the plaintiffs described themselves as “ children of John Waldsmith, deceased, and heirs of Christian Waldsmith.” Besides the usual money counts, as for money received by the defendants after the death of an intestate, the declaration contained a count alleging a settlement by the administrators with the court of common pleas, and a balance being found in their hands due to the plaintiffs, “ in consideration whereof they assumed,” etc. The defendants pleaded the general issue, and upon the trial the testimony offered by the plaintiffs was objected to upon the ground that it went to prove a personal liability in the administrators only, upon which they could not be sued as administrators. The court rejected the testimony, and the plaintiffs having suffered a nonsuit, moved the court to set it aside upon the ground that the opinion rejecting it was incorrect.</p>

This cause came before the court upon a writ of error to the common pléas of Hamilton county, and was reserved for decision here by the Supreme Court of that county.

<p>Transcript from an appellate court is not proper evidence of proceedings- in the court below.</p>

This cause was reserved for decision here by the Supreme Court in Eoss county. It was a bill in equity, brought by the residuary legatees of Eobert Gregg, deceased, to set aside a conveyance made by the executor under the will, upon the ground of fraud and imposition. The bill charged that the executor of the will of E. Gregg had conveyed the land in question, one hundred acres, to the defendant, without consideration and without authority.

<p>Title defectively set out in a declaration, and the plea states the fact omitted, judgment after verdict ought not to be arrested.</p> <p>This case was adjourned from the Supreme Court of Hamilton county, upon a motion in arrest of judgment. The case was as follows:</p>

This case was commenced by attachment before a justice of the peace, for the sum of sixty-four dollars and ninety-ono cents. A garnishee was summoned, in whose hands eleven dollars and thirty-one and a half cents were secured. Afterward, an affidavit was made, and the justice issued an attachment against lands and tenements. The officer returned a levy upon lands, and the justice certified his proceedings, with the return of the officer, to the court of common pleas.

<p>This case was adjourned from the county of Portage, upon a motion made by the defendants in arrest of judgment.</p> <p>It was an action of assumpsit. The declaration contained two counts — the first was as follows:</p> <p>“For that whereas, the said Charles and Adamson heretofore, to wit, of August 21, 1818, at Nelson, in said county of Portage, made their certain memorandum in writing, commonly called a receipt, bearing date on the day and year aforesaid, their own proper hands and names being thereto subscribed, and then and there delivered said memorandum, or receipt, to the plaintiff, and thereby then and there acknowledged to have received on that day, of the said plaintiff, two hundred dollars. By means whereof the said Charles and Adamson then and there became liable to pay to said plaintiff the said sum of money, in said receipt specified, according to the tenor and effect thereof; and being so liable,” etc., charging the assumption and consideration in the usual form.</p> <p>Second count, for four hundred dollars, for work and labor; four hundred for wares and merchandise, money lent, received, and advanced in the common form.</p> <p>The jury found a general verdict for the plaintiff. The defendants moved in arrest of judgment, and assigned the following reasons:</p> <p>The verdict is general upon all the counts in the declaration, and the first count therein is insufficient in law to authorize the court to render judgment in this: that it is not alleged in said count that the said sum of money, therein mentioned, was had and received, or otherwise possessed by defendant, to the use or on account of the plaintiff, or other than for the defendant’s own use.</p>

This was a writ of error to a judgment of the court of common pleas of Pickaway county, reserved in the Supreme Court of that county for decision here. The original action was a special assumpsit, and the facts, upon which the opinion of the court was founded, were as follows: On April 21, 1818, Litler, the defendant, and one Heath made a note for twenty-two hundred dollars, negotiable at the office of the Bank of the United States at Chillicothe.

<p>At the trial of this cause, which was an ejectment, in the Supreme Court of Monroe county, the plaintiff offered in evidence a lease executed by William Kent and Robert Carpenter, trustees of the original surveyed township, No. 7, in range 7, Monroe county, for section sixteen, in said township, the premises in dispute to .his lessor. The execution of this lease was attested by three witnesses, one of whom was the township clerk. It was not acknowledged ^before any judge or justice, but was recorded. The defendant objected to the lease being given in evidence; the objection was sustained, and the plaintiff became nonsuit.</p> <p>A motion was made to set aside the nonsuit, and award a new trial, on the ground that the court mistook the law in rejecting the lease. The decision of this motion was adjourned to this court.</p>

This cause came before the court upon a writ of certiorari, from the Supreme Court of Champaign county, to the court of common pleas of the same county. The facts of the case were these: At the April term of the common pleas, 1822, the bank obtained a judgment against Vance for six hundred dollars, upon which an execution was issued and levied upon real estate.

<p>This was an action of covenant brought from Muskingum county. The declaration sets forth a lease for years, from the plaintiff to Jeremiah P. Munson, and alleges, that all the estate, right, title, and interest of the said Munson, the lessee, to the demised premises, except thirty feet square of vacant ground, by assignment came to the defendant, who had occupied the same, and assigns the non-payment of the rent reserved as a breach. The defendant demurred generally, and the decision was reversed.</p>

Tried before Judges Pease and Burnet, in Trumbull county, 1826. This was an action of ejectment. The plaintiff having offered in evidence, a deed conveying the premises in question, from Ad-gate to Yanderbarrack, with an indorsement thereon, subscribed by Yanderbarrack, by which he assigned all his right and title in the deed to Bentley, under whom the lessors of the plaintiff claimed as heirs at law, rested his cause.

<p>Tried before Judges Hitchcock and Burnet, in Clermont county, 1826.</p> <p>This was an ejectment, brought by a mortgagee against the mortgagor, after the whole of the mortgage money had become due and payable.</p> <p>The case was submitted without argument, on the single question, whether the mortgage deed be sufficient evidence of titlo to sustain the action.</p>

Tried before Judges Pease, Hitchcock, and Burnet, in Geauga county, 1826.

<p>This was a writ of error before Judges Pease and Burnet, at the August Term, 1826, in the county of Ashtabula.</p> <p>The case was this: Byington gave a note in April, 1822, for sixteen dollars, payable in cattle, to E. Knapp or bearer.</p> <p>Geddings brought an action in his own name,-in which he declared on the note, without showing how he became possessed of it, whether by assignment, delivery, or otherwise. The defendant demurred. The court sustained the declaration, and gave judgment for the plaintiff, to reverse which the writ of error was taken.</p>

This case came up on writ of error, before Judges Burnet and Sherman, at the July Term, 1826, in Union county. It was a writ of foreign attachment on which final judgment had been rendered in the court of common pleas. From the record it appeared that notice of the issuing of the writ had been published only six weeks, which was the principal error relied on. The cause was submitted without argument.

<p>This case came before Judges Pease and Burnet, on a writ of error, at the August Term, 1826, in the county of Ashtabula.</p> <p>It appeared from the record, that the plaintiff in the trial before the common pleas, called a witness, who testified to certain items in his account against the defendant. The defendant then offered to prove that the same witness, on a former occasion, when conversing on the same 'subject, not being under oath, had made different statements. The testimony offered, was objected to and overruled, and a bill of exceptions taken.</p> <p>The case was submitted without argument.</p>

This was an action of ejectment, tried before Judges Burnet and Sherman, at the July Term, 1826, in the county of Madison. As the case turned on the sufficiency of the defendant’s testimony, who claimed under a tax title, it is not necessary to state more of the case than will be sufficient to present the points on which it was decided. It appeared from the testimony, that the county line divided the land, part of it being in Madison and part in Pickaway.

<p> Bill for Divorce. </p> <p>Divorce not granted where the applicant is living in adultery.</p>

This cause was tried before Judges Hitchcock and Burnet, at the April Term, 1826, in the county of Pike. The plaintiff, having exhibited a patent to the ancestor of his «lessors, covering the land in controversy, and proved the possession of the defendant, rested his cause.

This case came before Judges Hitchcock and Burnet, at the May Term, 1826, in the county of Adams.

<p>This case was heard before Judges Hitchcock and Burnet, at the May Term, 1826, in the county of Brown.</p> <p>The following testimony was given; Ellis Palmer swore, that he was on Todd’s expedition in July, 1787.</p> <p>They crossed the Ohio at Limestone, fell onto Big Throe-mile creek, continued up it, crossing it frequently till they came to where Shepherd now lives, from thence they bore up, on the west side, to where the beginning of Minnis’ survey was made, at a walnut and two sugar trees, on the east side of the creek, and east side of the trace. Letters were made on the walnut, but does not recollect what they were; has seen the tree every year since, except in 1818 and 1819.</p> <p>Has always heard that called the beginning corner of Minnis’ survey. The corner trees stand near to where the trace crosses the creek the last time. He showed the corner to the county surveyor of Brown.</p> <p>There were about three hundred men on the expedition. The trace was plain but narrow. ' Kenton called it the old war road jrorn Limestone to old Ghillicothe. Three-mile creek empties about three miles below Limestone. It is the first creek *below Limestone, except Fishing-gut, so called, which is the first below Limestone, on the Ohio side. Has not heard it called a creek, or by any other name than Fishing-gut.</p> <p>Limestone and Kenton’s station were the nearest settlements to the survey. The trace was generally known by the name of Todd’s trace, and was plain enough to be followed.</p> <p>The mouth of Limestone creek was notorious in 1784, and has always been known by that name.</p> <p>Benjamin Beasley testified, that he settled in Manchester in 1790. Shortly after he heard of Todd’s trace running up Three-mile creek, and about the same time he heard of the tree spoken of by Palmer. He was acquainted with the beginning corner of T. Peyton’s entry, and showed it to the county surveyor of Brown.</p> <p>Manchester was settled in the year 1790, He became acquainted with the branch, on which T. Reese lives, in 1797; it was called Covert’s run.</p> <p>On the part of the defendants, it was testified by N. Beasley, that the first creek on the north side of the Ohio, below Limestone creek, is called Fishing-gut. It went by that name since 1791. According to his apprehension, Fishing-gut is of such size and description as to entitle it to the appellation of creek. It is such as surveyors have been in the habit of calling creeks.</p> <p>Fishing-gut empties into the Ohio better than two miles above Three-mile creek.</p> <p>In 1803 he became acquainted with the beginning corner of Minnis’ survey; has seen it several times, and has surveyed from it; he never saw any letters on it.</p> <p>The corner is about five mile from the nearest point on Fishing-gut creek. He does not know that he has heard the people call Fishing-gut a creek; he has generally heard it called Fishing-gut only.</p> <p>Three-mile creek was generally known by the name of Big Three-mile.</p> <p>James Pilson, being asked the name of the first creek below Limestone, answers Fishing-gut is the first that would be called a creek. It is not a large stream. Hoes not know its length ; there is a mill on it; always heard it called *Fishing-gut; believes he should call it a large branch; it empties about two miles above Big Three-mile.</p> <p>He has seen the walnut on Big Three-mile, claimed as the corner of Minnis’ entry, and has made a survey from it. He thinks he saw marks on the walnut, but can not tell what they were. Big Three-mile is the first creek on the north below Limestone, if Fishing-gut is not considered a creek.</p> <p>Peter Lee testified that he was with Col. Todd on his expedition in 1787. They crossed the river at Limestone, then a landing place of great notoriety; they crossed Three-mile creek several times. It was then, and has ever since been known by the name of Three-mile. After they crossed the creek the last time they fol. lowed a trace previously existing. The trace crossed the creek the last time near where two branches unite.</p> <p>At the time the expedition went out, there were several stations settled in Mason county, Kentucky, from which there were men on the expedition. After the expedition, the trace was called Todd’s trace, and could have been found and followed.</p> <p>Limestone, Todd’s trace, and Three-mile creek, in 1787, were places of great and general notoriety.</p> <p>The cause was argued by</p>

This case came up on a writ of error, at the May Term, 1826, in the county of Hamilton, before Judges Hitchcock, Burnet, and Sherman.

<p>Scire facias from the court of common pleas, to subject lands to sale on the judgment of a justice, can not be issued unless the. transcript from the justice shows that an execution was returned "no goods,” and a suggestion made that the defendant owned land.</p>

This case came before Judges Burnet and Sherman, at the July Term, 1826, in the county of Union. The cause had been brought up by appeal from the common pleas. It appeared from the record that a verdict had been rendered for the defendant, at the May term, 1821, and notice of appeal then entered.

<p>In forcible entry and detainer, bill of exceptions not good, tested by a bystander.</p> <p>The complaint', in forcible entry and detainer, must contain a specific description of the property.</p>

This action came before Judges Hitchcock and Burnet, at the April Term, 1826, in the county of Pike. The declaration set out sundry words spoken by the defendant, charging the plaintiff with the crime of perjury. The defendant justified, and the plaintiff filed a general demurrer to the plea.

<p>After appearance of defendant, and continuance of the cause, it is error to dismiss it because the writ was not indorsed by security for costs. In such case, a rule should be taken to enter security.</p>

<p>Under the act of 1810, bond for the conveyance of town lots, to which no value is affixed, can not be sued upon by assignee in his own name.</p>

This case came before Judges Burnet and Sherman, in the connty of Delaware, at the July Term, 1826. It was an action of' ejectment, and was submitted to the court on the following agreed case: “Jonathan Dayton, the ancestor of the lessors of the plaintiff, contracted bjr parol to sell the land in question to defendant.

<p>This cause was heard before Judges Pease and Burnet, in he county of Trumbull, at the August.Term, 1826.</p> <p>The governing facts in the ease were these: In January, 1821, Bentley and wife executed a mortgage of the premises in question to the complainant, for the ostensible purpose of securing debt. The reason given for executing the mortgage at that time was, that the United States were about to commence a suit for a large amount against a private banking company, of which Bentley was a member, and liable by the law of this state to the payment of the demand. He retained the mortgage deed in his possession till the summer of 1823, during which time he exercised acts of ownership, leased a part of the premises, for the term of twenty years, to H. Stephens, informing him at the time that he had executed a mortgage to Hood, but that he held it in his possession, and did not intend to record it, unless the United States should recover a judgment. At the same time he informed Stephens, that the defendant, Brown, had a suit pending against him; that it was necessary to hasten the arrangement, for if Brown should get a judgment it would bind the property. In the summer of 1823, Bentley sent the mortgage to Philadelphia, to be delivered to Hood, on condition that his creditors would give him a general release, which it appears was never executed; the mortgage, however, was delivered, and was recorded shortly after.</p> <p>*In July, 1821, Brown recovered a judgment against Bentley and Quimby for'two thousand three hundred and ninety-two dollars; in August he issued a ft. fa., which was returned, by his directions, without service, at which time there was personal property in Bentley’s possession, estimated by one witness at eight hundred dollars. This property was alleged to be embraced in a previous assignment for the benefit of creditors. An alias execution issued in October, 1823, which was levied on the mortgaged premises, by virtue of which they were sold, and purchased by the defendant, Brown, for five hundred and sixty-seven dollars. Brown denies notice, admits he heard rumors that Bentley had executed conveyances of his property, which were retained in his possession, to be delivered, or not, as circumstances might dictate.</p> <p>The object of the bill is, to avoid the sale and conveyance of the premises to Brown, and to obtain a sale for the benefit of the complainant.</p>

This was an action of assumpsit for money had and received, submitted to the court to decide upon the law and facts, and reserved for decision at Columbus, in Muskingum county. The facts in the case were as follows: The defendant, in 1820, was marshal of the Ohio district, and was charged by law with taking the census, then taken under a law of the United States. The plaintiff was appointed his assistant to take the census in the county of Fairfield.

<p>Bond given for prison limits void, unless defendant is actually in prison, and that fact recited in the bond.</p> <p>Joint bond for prison limits given in several separate suits, void.</p>

This was an action of ejectment, reserved for decision in Ross county. The title of the lessors of the plaintiff was founded on a patent issued to them since the death of their father, as heirs at law, to take as tenants in common and not as joint tenants. This patent was given in evidence, and the possession of the defendants was admitted. The defendants set up a title in themselves: First, under a sale upon execution; second, under a sale for taxes.

<p>An execution upon the judgment at law, and a return that sufficient property could not he taken to satisfy the debt, is not indispensable to authorize a proceeding in chancery, under section 59 of the chancery law.</p> <p>Sale of lots for taxes void, where taxed as “part of a lot,” “ one acre of a lot.” Description too vague and indefinite.</p> <p>Tenants in common may make a joint demise.</p> <p>Prochein amie can not make a demise to sustain an action of ejectment.</p>

This case was adjourned from the Supreme Court of Columbiana county. It was an action of debt upon a bond given under section 12 of the act of February 24, 1820, for the redelivery of property taken in execution, and not sold for one-half of .its appraised value.

<p>This cause was reserved in Butler county, it was an action of ejectment, in which the declaration contained a single demise. The lessors of the plaintiff were six in number. They deduced title under the will of John Wilkinson, their father, who devised his lands to his seven children, as joint devisees. One of the devisees had conveyed his share to a co-devisee, one of the lessors of the plaintiff.</p> <p>The plaintiff having exhibited his title, as above stated, the defendant’s counsel moved for a nonsuit, upon the ground that the title exhibited, showed that the lessors of the plaintiff were tenants in common, who could not make a joint demise. This motion was sustained by the court, and the plaintiff became nonsuit: The question, whether the nonsuit was correctly ordered, was, by agreement, reserved for decision at Columbus. If the decision was correct, judgment of nonsuit to be set aside, and a new trial awarded.</p>

This was an action upon a promissory note, and was adjourned from Franklin county. The declaration was upon a promissory note, executed by Eli Adams, J. B. Gardiner, and Joel Buttles; and it appeared on the face of the note that Adams and Gardiner were principals, and Buttles a security.

This was a writ of error, brought to reverse a decree in chancery, dismissing the complainants’ bill, and was adjourned for decision from Pike county. The, bill was filed to obtain partition of certain lands, one-fifth, of which the complainants claimed in right of Mrs. Sergeant as heir at law to her mother.

<p>This case came before the court upon a motion for a new trial, and was reserved by the Supreme Court of Jefferson county.</p> <p>Upon the trial, deeds were given in evidence from Emons the patentee to Smalley, from Smalley to Burson, and from Burson to McCullock. Each of these deeds contained the following description of the boundary which was in dispute, “ beginning at a white oak, on the southeast bank of Yellow creek, thence down said creek, with the several meanders thereof, two hundred and seven perches,to a post on the point, at the mouth of Hollow Bock, upper side.”</p> <p>The defendant gave in evidence a deed from Emons to Nesslv, for a part of the same section of land, of prior date to that of Smalley.</p> <p>This deed conveyed to Nessly, *land “to the north bank of Big Yellow creek, thence up said creek.” etc., contained a covenant to allow Nessly to raise a dam on said creek ten feet high, for waterworks, acknowledging satisfaction for all damages done to the residue of the section.</p> <p>Also, a deed from Emons to Aten subsequent to that of Smalley, under which the lessor of the plaintiff claimed, in .which the line in controversy was thus described: “to land, the property of Burson, thence up Yellow creek, the several courses and distances thereof, to a marked white oak, corner of said Burson’s land, thence across Yellow creek.” Excepting to Nessly the right to back water, etc.</p> <p>The white oak called for by both deeds was found on the ground about four rods from the channel of the creek, and about one rod from the top of the bank.</p> <p>There was a salt well on the beach, below the break of the bank, but not within the water channel, and this was the matter in dispute. The defendant Aten was in possession of the well.</p> <p>The defendant offered evidence to prove that at the time of the sale from Emons to Smalley, it was understood that the line was to run at the top of the bank, or along the beach and slope of the bank. But the court rejected tho evidence and instructed the jury that according to the calls of the deed, the plaintiff had a right to recover to low-water mark on the creek as a common boundary. Yerdict for the plaintiff and a motion for a new trial.</p>

This cause was adjourned from the Supreme Court of Ross county. It was a bill in chancery, praying that a new trial might be granted at law. The bill charged that the respondent brought an action of covenant against complainant, in the court of common pleas of Ross county. That after the service of the process, he was informed by the clerk of the court that no security for costs was given, and that there could be no trial upon that account.

<p>In an action on a sheriff’s bond, judgment must be for the debt, with leave to take execution for the damages. Judgment for damages only is erroneous.</p>

This was an action of debt', upon a bond executed by the defendant, as security for Stephen Loines, upon his application for the benefit of the act for the relief of insolvent debtors. The declaration set out the bond, the condition of which was, that the applicant, Stephen Loines, “ should faithfully assign all his property, for the benefit of his creditors, to such trustee as the court may appoint.

<p>Writ of error and supersedeas from the territorial general court to common pleas, staying proceedings when sheriff has vendi. in his hands, judgment affirmed. Procedendo from general court to sheriff, authorizing him to proceed to sell, is irregular, and sale under such procedendo is void.</p>

This case was adjourned from the Supreme Court of Guernsey county. The facts, material to understand the point decided by the court, were as follows: In May, 1809, Peter Sarohet, whose representatives are the principal defendants in this case, with John and Thomas Sarchet, the complainants, and Thomas Knowles, purchased of Chandler a lease upon the Muskingum salt works. Price, five thousand dollars.

<p>Defendant arrested upon execution fora fine, may surrender land in discharge of his body. ></p> <p>Land surrendered by defendant in discharge of his body, in execution for a fine, may be sold without valuation.</p> <p>Description in a deed, seventy acres in southwest corner, good, and includes the land in an equal square.</p>

This case was reserved from Muskingum county. It was a bill in chancery to compel contribution, upon the following state of facts: In the year 1811, the Bank of Muskingum was incorporated, the charter to continue from its passage until January 1, 1818. The company was duly organized under this charter, and D. J. Marple appointed cashier.

<p>Application in chancery for a new trial at law, refused, hy difference of opinion among the judges.</p>

This case was adjourned from Highland county. It was a motion by the defendants for a new trial where a verdict passed pro forma upon the following facts: The plaintiffs deduced title from a patent to Ann Byrd, administratrix of Otway Byrd, deceased, with the will annexed, in trust for the uses and purposes declared in the last will and testament of Otway Byrd, deceased. This patent.was dated January 31, 1803.

<p>In decreeing specific performance, equity can not apply the doctrine of abatement or compensation to the defendant, so as to compel him to accept a less or pay a greater price. Decree upon such principles is erroneous.</p>

This was a writ of error to the court of common pleas of Fair-field county, reserved for decision here by the Supreme Court sitting in that county. The principal and only material error assigned was that the judgment did not agree with the verdict. It was an action on the case, by a subsequent against his immediate previous indorser, on a negotiable promissory note.

This was an action of covenant, and was reserved for decision here in Clermont county. The declaration contained two counts: one on a covenant of seizin; the other on a covenant of warranty, but without any averment of eviction. The defendant craved oyer of the deed, and demurred generally; the plaintiff joined in demurrer.

This was a writ of error to the judgment of the court of common pleas of Brown county, in an action on the case, brought by the defendant in error, against the plaintiff in error, and was adjourned, by the Supreme Court of Brown county, for decision at Columbus.

<p>This was a motion for an order to the sheriff to make a deed for lands sold on a fi.fa. It was certified to the Supreme Court of Licking county, from the court of common pleas of that county? for the want of a constitutional quorum of disinterested judges to decide it, and was reserved for decision at Columbus. The facts were these:</p> <p>At the October term, 1820, of the common pleas, the plaintiffs recovered judgment against the defendants for $3,752.62. Upon this judgment a ft. fa. issued in April, 1821, and among other property was levied on south half quarter 3, township 4, range 13, and on another tract of twenty-two and a half acres, on which the Granville furnace was erected. These lands were mortgaged to the bank which was defendant, and the levy was made in conformity with the provisions of the act of February 2,1821, providing for the collection of debts due from banks and bankers. The amount of debt due upon the mortgages and the value of the property were found and appraised according to law, and the sheriff returned that the lands were not sold for want of buyers.</p> <p>At the September term, 1822, on the motion of the plaintiffs in execution, the levy and appraisements were set aside by the court. At the next succeeding term, May, 1823, the plaintiffs moved the court to rescind the order of the previous term, setting aside the levy and appraisement. This motion was continued for decision, and at the December term, 1823, an order was made rescinding the previous order, and restoring the parties to all the rights they had secured previous to the order of September term, 1822. At August term, 1824, the appraisement made upon the first ft. fa. was set aside, a new appraisement directed, and leave given to the plaintiffs to release so much of the levy as they might choose. A new appraisement was had, and the property bid off at two-thirds of that appraisement, upon which this application for the order directing a deed was made.</p>

This was a bill of review, adjourned for decision here, from the Supreme Court of Hamilton county. The case was this: Israel Ludlow died in Hamilton county in the year 1804, leaving four infant children, and a large real estate. Among this was the lot No. 401, in Cincinnati, the legal title to-which had been obtained by John Kidd and Joel Williams. To-obtain the conveyance for this lot, the infants prosecuted a bill, by their next friend, against Kidd and Williams.

<p>This cause was reserved for decision here by the Supreme Court -.sitting in Richland county. It was argued by</p> <p>The case is fully stated, and the arguments of counsel noticed in the opinion of the court by Judge Burnet. It is, therefore, deemed unnecessary to swell the report by inserting more than .that opinion.</p>

This was an amicable action, brought to decide the right of the plaintiff to certain moneys made upon execution. It came before the court, upon a case agreed, and was adjourned from the county of Pickaway. The plaintiff, Patton, obtained two judgments against Bentley— one in July, 1820, and one in April, 1821. Upon both these judgments executions were sued out, in June, 1821, and on the 28th of that month, levied, on the real estate of ^Bentley.

<p>This cause was adjourned from the Supreme Court of Hamilton county. It was a bill to carry into effect a decree pronounced in a case between E. Pearson, and S. R. Miller, guardian of the heirs of Elijah Strong, deceased. The interest in the decree had been transferred to the present complainants, in trust for certain purposes. The state of the case is as follows:</p> <p>Pearson prosecuted a suit in chancery against Miller, as guardian of the heirs of Strong, to obtain a decree for the specific performance of an agreement, made as guardian, charging the rents-of a house in Cincinnati, with a balance due Pearson, for erecting the house, upon a previous contract, as guardian, made by Miller, under an order of court to sell part of a lot to improve the residue.</p> <p>Miller alone was made defendant, and a decree was pronounced against him for the specific execution of the contract.</p> <p>Pending the original suit, the defendant, D. E. A. Strong, had attained his full age, and upon proceeding on a petition for partition had become the sole owner of the house and ground in dispute. And before this, Miller had made a lease, as guardian, for a term of years to the other defendants, upon which considerable rents had accrued and remain unpaid.</p> <p>This bill was filed against D. E. A. Strong, the legal owner, against the lessees, and the widow, to whom dower had been assigned, to obtain the benefit of the original decree, and was so framed as to have no reference to any matter behind that decree,</p>

This was a writ of error to the judgment of the court of common pleas of Ashtabula county. The plaintiff in error was defendant in the court of common pleas, and the case was this: Reed brought an action of false imprisonment against Barret and others. Barret justified that he was a constable, and acted .under process. • The other defendants justified under Barret.

<p>An invalid entry may obtain sufficient notoriety, and subsequently become a. good location call.</p> <p>Complainant having obtained a patent, as assignee, is not bound to prove hiapurchase from the assignor.</p> <p>Doctrine of notice has no application between claimants of conflicting titles</p> <p>The plea of innocent purchaser can not protect the purchaser of a title origi nally defective against a better adverse title.</p> <p>An entry can not be made valid by subsequent notoriety.</p> <p>Entry originally void because of the disproportion between its length and breadth, may be rendered valid by withdrawal of part, so as to give it the relative proportions.</p> <p>Matters not put in issue by the pleadings are not to be investigated. But. allegations on one side, not admitted or denied on the other, are considered in issue, and may be proven.</p> <p>Proof as to notoriety of entry.</p> <p>Entry defective for want of notoriety.</p>

This case was adjourned for decision here, by the Supreme Court of Washington county, and was heard and decided upon an agreed state of facts. Sidney Dodge was indebted to the plaintiff upon his own private account, for which he gave to the plaintiff a note, payable at a day future. Upon this note the defendants indorsed their names in blank.

<p>One of two partners, without the knowledge and consent of his copartner, substitutes the partnership for his individual indorsement on an accommodation note. Ho is individually accountable to the copartner for any eon- ■ sequent loss.</p> <p>.Recognition of, and voluntary payment of such indorsement to the creditor, does not change liability between the partners.</p> <p>An agreement to abandon claim against copartner, upon account of such indorsement, though made for some consideration, may, under circumstances of unfairness and advantage, be relieved against in equity.</p>

This cause was reserved for decision here, by the Supreme Court -of Hamilton county. It was a bill in chancery to enjoin the defendant from selling certain real estate, of which the complainants •were in possession, upon an execution at law. The facts of the case are as follows: On October 12,1820, 0. Schultz recovered a judgment against the Cincinnati Bank, for two thousand six hundred and ninety-eight dollars.

<p>"Where a person deeply in debt, to obtain a loan of money, agrees to purchase a tract of land, at more than double its value, in connection with-the loan, and gives a mortgage upon other property to secure the loan and part of the purchase money, the vendor being apprised of the purchaser’s necessities, equity will rescind the cqntract.</p>

This was a writ of error to the judgment of the court of common pleas of Hamilton county, on a motion to amerce the sheriff, in which judgment was given for the defendant. It was reserved in Hamilton county, and the case was as follows: The notice to amerce recited a judgment and execution, Ethan Stone, for the use, etc. v. Joel Williams. It recited a levy and a sale upon execution, returnable to April term, 1824, a sale made on February 23, 1824.

<p>This case was heard in Delaware county, before Judges Burnet and Sherman, in 1826.</p> <p>The bill stated that the complainants, as heirs at law of Israel Ludlow, were the proprietors of a tract of land situated in the-county of Delaware, on which the taxes had not been paid; that at a sale of land for taxes, three hundred and seventy acres of the land in question, worth three dollars per acre, had been sold by the collector, and purchased by the defendant for thirty-three dollars and seventy-three cents. The bill charges that a fraudulent combination had been formed by the defendant and sundry other persons, to purchase large tracts of land at the said sale for-the purposes of speculation ; that it had been agreed between the defendant and those who weie to participate in the profits of the speculation, that the defendant alone should bid; that the other partners in the contract should advance their portions of the purchase money, and receive their share of the profits; and that, in-pursuance of that fraudulent agreement, the defendant had purchased the land in question, and obtained for it a collector’s deed. The prayer of the bill was to set aside the deed and restore the* complainants, etc.</p> <p>The defendant demurred to the bill.</p>

This was a bill in chancery, prosecuted to recover the dower of .the complainant, Elizabeth, before Judges Pease and Sherman.