Volume 2 — Ohio State Reports, New Series

<p>The only cases in which a creditor is permitted to prosecute the bond of an executor or administrator, are prescribed in sections 182 and 184 of the law on that subject; section 183 furnishing the same remedy, on the same terms as those provided by section 182, to any legatee, widow, or other distributee.</p> <p>The absolute right, without leave of court, to take the remedy’given by sections. 182 and 183, is conferred by law, The recovery is had, and the execution issues for the sole benefit of the party entitled to use the sections last named.</p> <p>The party claiming such remedy, under sections 182 and 183, must allege and prove his right to a sum determinate and certain, liquidated by allowance, judgment, or award.</p> <p>If the estate be insolvent, before such suit on the bond, there must be an order of distribution, ascertaining the'exact sum to which the claimant is entitled, pro rata.</p> <p>*In any such case, in addition to proof of liquidation or ascertainment, it must be shown that there has been demand of payment, and this after the creditor “is entitled by law to the payment of his debt,” according to the order of payment prescribed in section 83.</p> <p>"Wherever, consistently with the allegations in a declaration, it appears that the executor may or may not have received assets, applicable to the payment of the particular debt demanded, the court, on the question of sufficiency in the declaration, will construe it most strongly against the pleader, and say the executor did not receive assets so applicable.</p> <p>It is not a fair construction of the law that the mere breach of the executor’s bond makes him and his sureties liable to its penalty for all the debts of the estate,'irrespective of how much they may exceed, the property in his hands. It is only where the executor has received assets applicable to a liquidated claim, which, on demand, he refuses to apply, .that a case can be made under section 182.</p> <p>Sureties are never to be visited with penalties, and their liability is never to be extended beyond the strict letter of the obligation into which they have entered.</p> <p>Sections 182, 183, and 184 provide a remedy for every breach; the two first named giving remedies without leave of the court, and for the sole benefit of the party resorting to them; while, on the other hand, section 184 provides a remedy, with leave of the court, and for the benefit of all interested in the estate, for any breach whatever other than those contemplated in sections 182 and 183.</p> <p>When it appears that such leave of the proper court has been granted, and any breach other than those contemplated in sections 182 and 183 is assigned, a case is made; and this court, under the presumptions allowed in favor of such action by a competent court, can not say that a suit based on such action is improper to be maintained.</p>

<p>This was a writ of error in the District Court of Wood county. The facts sufficiently appear in the opinion of the court.</p>

<p>The cause first named is a proceeding in chancery, reserved from the first district, Hamilton county.</p> <p>The facts of the case (and-so far as necessary to be stated of the cause heard with it) are as follows :</p> <p>On the 8th day of October, 1836, Joseph Bonsall, to secure his-note for §6,000 given to Sarah Borden, Mary Ann West, Clarissa Upjohn, Eliza Upjohn, Leonora Upjohn, and Charlotte Upjohn jointly, conveyed to them, by way of mortgage, a lot of land on Fourth street, in the city of Cincinnati.</p> <p>On the 24th day of July, 1838, Bonsall, to secure another note-for §3,750, given by him to the same persons jointly, executed a second mortgage, on the same property. Both mortgages wore made to the six ladies above named.</p> <p>On the 26th day of November, 1839, Bonsell sold and conveyed, in fee simple, to John Brewster, a lot 30 feet in *front, on Fourth street, by 100 feet in depth, parcel of the mortgaged premises above described.</p> <p>Brewster paid Bonsall a portion of the purchase money at the-time of his purchase, but afterward, he refused to pay the residue-unless Bonsall procured a release of his lot from the lien of the Upjohn mortgages ; whereupon Bonsall applied for a release, andón the 2d day of June, 1841, the Upjohn family agreed to release their mortgages, and on that day the whole of them, excej)t Charlotte, who was absent at the time, executed and delivered toBonsall, the instrument of which the following is a copy:</p>

<p>This was a writ of error to the district court of the county of Muskingum.</p> <p>The original cause was an action of replevin, commenced before a justice of the peace, and taken by appeal into the court of common pleas.</p> <p>In that court, the defendants, whose survivor is the plaintiff in error, filed a plea puis darrein continuance, in which it is alleged, *that after the continuance in the court of common pleas, at the September term, 1848, and before the day of the plea, “ by a certain agreement, then and there made by and between the plaintiff and defendants, the said plaintiff agreed to and with the defendants, that the matters and things in controversy in this case should abide the final decision and judgment of a certain other case in replevin for wheat, then and there pending in said court, between Michael D. Gittings, as plaintiff, and Jacob Baker, defendant, and that if said judgment finally should be in favor of said Baker, tha^ the judgment in this case should bo in his favor; and that if the judgment in said case of replevin for wheat should be in favor of said Michael D. Gittings, that then, and in that case, the judgment in this case should bo in favor of the defendants herein. And the defendants in fact say, that, at the June term, 1849, of the said court, held in and for said county, to wit, on the 2d day of July, 1849, at said county, by the consideration and judgment of the said court, the said Michael D. Gittings recovered a judgment in said replevin ease for wheat above mentioned against said Jacob Baker ; and that afterward, to wit, at the October term, 1849, of the Supremo Court of the State of Ohio, in and for said county, to wit, on the 24th day of October, 1849, at said county, the said last-mentioned cause in replevin for wheat, having been removed to said Supreme Court by writ of error sued out by said plaintiff, by the consideration and judgment of said Supreme Court, the said judgment of said court of common pleas was affirmed, with costs, and tho said cause finally decided and adjudged in favor of saidMichaelD. Gittings,andagainst said Jacob Baker; and said last-mentioned judgment is unreversod and in full force and effect. Whereby, and under and by virtue of said agreement and said judgment, the matters and things in controversy herein were determined in favor of said defendants, and against said plaintiff.” Following the usual offer to verify and prayer for judgment, in the recited part of the plea, is a prayer, “ that the proper inquiry be had into tho right' of property, and right of possession *of the said defendants to the said goods and chattels,” etc.</p> <p>To this plea, the plaintiff below (hero defendant) replied; and the cause being tried by a jury, it was found by the verdict, “ that the said plea puis darrein continuance of the said defendants is true;” and “that the right of property in and to tho said goods and chattels in the said declaration specified, was, at the commencement of this suit, in the said defendant,” with the usual assessment of damages. It appears, from the record, that the plaintiff excepted to the charge of the court of common pleas, and moved for a new trial; but his motion was in that court overruled, and judgment was entered on the verdict.</p> <p>A writ of error to reverse that judgment was sued out of the Supreme Court for the county of Muskingum; and there were various assignments of error—which, however, need not here bo noticed.</p> <p>The Supreme Court in Muskingum county reversed the judgment of the common pleas, holding the latter court to have erred, in giving judgment for the defendant, upon the issue joined upon the plea puis darrein continuance.</p> <p>This writ of error, directed to the district court of Muskingum county, as tho successor of the late Supreme Court, is to reverse the decision of the last-named tribunal. And it is assigned for error that said court erred in holding that the said plea, puis darrein continuance, was not sufficient in law to sustain the judgment thereon rendered by the court of common pleas.</p>

This was an action of assumpsit, reserved, by the district court of Lucas county, for decision by the Supreme Court. The facts and jileadings sufficiently appear in the opinion of the court.

<p>This cause came into this court on a writ of error to the .district court of Lorain county.</p> <p>The case tried in the court below, was an action of debt, brought by Henrietta township against Oxford township, to recover a sum of money alleged to have been expended by Henrietta township, in the maintenance of certain paupers, who, it is averred, had a legal settlement in Oxford. The jury returned a verdict for the defendant, on which judgment was entered. Exception was taken to the charge of the court, in which errors have boon assigned. The facts, as set forth in the bill of exceptions, are substantially as follows :</p> <p>It appeared in evidence, that David E. Brown, and his wife and four children, had gained a settlement in Oxford township, Erie county; that in the first week of July, 1848, tliey were living in a house claimed by Brown, and from which ♦lie was evicted; that, on the day after the eviction, Brown took a bod and shoemaker’s tools, leaving some of his beds and furniture with his wife, and went away. The trustees of Oxford township, finding the wife destitute, provided a place for her and two or three of the children, and furnished relief for almost three months; after which she lived at different places, part of the time in Oxford, part in Perkins township, having with her usually some of her children, until late in July or early in August, 1849, Brown brought her to Florence township. There was evidence, that July 19, 1848) Brown came into Florence, bringing his tools and a rolling machine, and went to work for Taft, a shoemaker. Ho worked for Taft till August 9,1848, boarding and lodging with Taft. Brown sent a box, labeled to his wife, containing, probably, small shoes— the box being left, as directed, at Milan, three or four miles from where his family wore then living. On August 10, 1848, Brown moved to Heald’s, at another place in Florence, whore he boarded with Heald, and slept in the shoemaker’s shop, where he carried on his business until the last of July or first of August, 1849) when he brought his wife, and the children that were with her, to Florence, as before stated. During the time Brown lived in Florence he had some one of his children with him. Before Brown had gained a residence in Oxford he had lived in Florence with his family, and it was known in Florence that Brown had a family in Oxford, living as before stated. After Brown took his family to Florence, in July or August, 1849, he lived there with them only six or seven days, and from thence removed with his family, to Henrietta township, where he lived till his death, on April 26, 1851. In 1850, and before Brown had been in Henrietta one year, he was warned out of the township by the following warning:</p> <p>“ The State of Ohio, Lorain County, ss.</p> <p>“ To any constable of Henrietta township, greeting :</p> <p>“ Whereas, information has been received by us, that certain poor persons have come into this township to reside, who are likely to become a township charge, to wit: Lydia Whelper, Daniel Sheffield, widow of Jedidiah ♦Holcomb, James Holcomb, David Brown, and Daniel Palmerton. You are hereby commanded forthwith to warn the above-named person's to depart the township forthwith, by reading this warrant in the presence of each person heroin named, or by leaving an attested copy thereof, at the last place of residence of the person so named; and of this warrant make legal service and duo return. Dated at Henrietta township, this 18th day of February, 1850.” Signed by the trustees. The constable returned as to Brown, “ served it (this writ) on David Brown, March 11, 1850.” _</p> <p>Testimony was given to show the amount of relief given, the return of the paupers to Oxford, (except Brown, who was dead,) presentment of the claim, and the refusal to pay it.</p> <p>The case being closed, the court charged the jury, that if Brown had lived in Florence one continuous year, and during that time he had no house or home in Oxford, and his wife and family were during that time living at several different places, that he, Brown, had gained a residence in Florence. The plaintiff then asked the court to charge the jury, that such residence of Brown in Florence during that year, must be open and notorious, and attended with such circumstances as to lead the authorities of the township, in the exercise of proper vigilance, to the conclusion, that there was an intention on the part of Brown, to gain a settlement in the township. The court charged, that it was sufficient if he openly and notoriously lived and worked there one continuous year, while he was without a house in Oxford, and his family living in different places during that time ; and the jury need not inquire as to the intention of Bi’own to make that his place of residence, as intention was not involved in the matter.</p>

<p>That judgment liens aro the creation of positive law, without which they can not exist, and that they can not survive the law which gives them being, are principles too well settled to be drawn in question.</p> <p>It is equally clear that they must be created by the government under whose authority the judgment is rendered.</p> <p>A state may determine the effect of its own judgments, but can not affect those rendered by the United States courts; and the same limitation applies to the legislation of the general government.</p> <p>In a system so complex as ours, with two governments extending over the same people, there may be conflicts of authority, which can only he avoided by confining each strictly to its own appropriate sphere of action, and by the ^exercise of that mutual forbearance which arises from regarding each as equally entitled to our affection, confidence, and respect.</p> <p>The statute of 1824, providing, “that no judgment heretofore rendered, or which hereafter may he rendered, on which execution shall not have been taken out and levied before the expiration of one year next after the rendition of such judgment, shall operate as a lien on the estate of any debtor, to the prejudice of any other bona fide judgment creditor,” did not affect levies theretofore made, and then in full force.</p> <p>Where a judgment in the state court, rendered before the passage of that act, had not been levied within the year, a levy made in 1823, under a judgment in the Circuit Court of the United States, took priority over the lien and subsequent levy in the state court.</p> <p>The party plaintiff to a judgment rendered in a United States court is a judgment creditor, within the meaning of the act of 1824.</p> <p>Whether the judgment of the federal court operated as a lien or not (see 5 Ohio, 398), it can not be doubted that that court had the power to issue the necessary process of execution to enforce satisfaction of its judgment.</p> <p>The rule of caveat emptor applies in all its rigor to purchasers at judicial sales. They take the property, subject to every lien, either by judgment or levy, that could be asserted against the creditor upon whose judgment the land is sold.</p>

<p>If a witness be called to impeach another witness, it is not error to ask, “Are you acquainted with A’s reputation for truth and veracity; if so, what is it?”</p> <p>By the word “ reputation,” so used, will be intended the general repute of the witness sought to be impeached.</p> <p>It is not true in law that a witness must be credited, unless directly impeached or contradicted by other witnesses; his manner, the improbability of his story, and his self-contradiction in the several parts of his narrative, may '"■justify the jury in wholly rejecting his testimony, though he be not attacked in his reputation, or contradicted by other witnesses.</p> <p>If the court, in charging the jury, give an instruction not required by any evidence, the judgment will not be reversed for that cause, unless it plainly appear that such unnecessary charge was calculated to mislead the jury in considering the facts of the case.</p> <p>If a charge be asked, which as an entirety is not sound in law, though it might be better to give so much of it as would be unobjectionable, the court is not bound to do so, but may simply refuse the instruction prayed.</p> <p>Where money is paid on a contract between A B and 0 D, that a clerkship shall be procured by the latter for the former, and the consideration of such payment wholly fails, it is competent for the party who paid the money either to sue on the breach of the contract, or to rescind the contract and recover back the money, in an action for money had and received.</p>

<p>The general rule, undoubtedly, is that affidavits of jurors are not admissible to impeach their verdict. But where, on a motion for a new trial, other testimony is given to the court feuding to show that the jurors, in their retirement, had in their possession a newspaper, or part of a newspaper, containing a part of the charge of the court, affidavits of jurors may be received, to show what the paper was, if their possession and use of it does not involve a charge of improper motives on the part of the jurors.</p> <p>The holding of conversations by the jury, while in their room, with persons on the street, in regard to any subject of their deliberations, before their verdict is rendered, is, in general, 'good cause for setting aside their verdict.</p> <p>When a jury, of their own motion, and by their own means, without the knowledge of the court, and without the presence, knowledge,'or consent of the prisoner, obtain a part of a newspaper, purporting to contain a part of the charge of the court in the case they are considering, and use said information to guide their deliberations, although the charge thus published may happen to be accurate, the verdict ought to be set aside.</p> <p>On an indictment charging the prisoner with poisoning A, in December, 1851, it is error to permit evidence in chief, to show that she poisoned B in the month.of August previous.</p>

This is a writ of error to the Lawrence common pleas, reserved by the district court for decision by this court. The original action was replevin, brought by the plaintiff in error, against the defendant in error, to recover the possession of a *yoke of oxen and an ox-yoke. To the declaration, which was in common form, the defendant pleaded: 1. Non detinet. 2. Property in himself.

<p>The rule of criminal pleading requiring an indictment for forgery to show on its face that the -forged instrument ,is literally set out, though one of considerable strictness, is not without reason and good sense for its justification. It relates entirely to the degree of certainty necessary in charging crime upon the accused. Whether, however, it be too strict ,or not, this court, powerless to make the law, and bound to administer it as they find it, can not disregard the decisions of courts establishing the rule, and coming down to the present day, without conflict, from an early period in the history of the law.</p> <p>The form of words is immaterial under the rule, so that they shall legally signify that an exact copy is contained in the indictment; but, where no excuse is averred (such as the loss or destruction of the writing, or its being in the defendant’s possession), the pleading must set forth the instrument by exact copy, and must aver that the copy is such.</p> <p>The words “ as follows,” “that is to say,” “in the words and figures following,” “of the tenor and effect following,” and the like, are sufficient; but no averment is good, which does not profess to describe the forged instrument with precision.</p> <p>An averment that the defendant “ did falsely utter, publish, and put off to G. J., with intent then and there to defraud the said G. J., a certain false and forged note as a true and genuine note of S. R., given for the payment of seven hundred and fifty dollars; which aforesaid forged note then and there was of the purport and effect following, to wit,” does not profess to give an exact copy of the instrument, as the rule requires.</p> <p>The legal import of such an averment is that the instrument is of the substance and effect following, not that what follows is a copy, in words and figures, of the forged writing. '</p> <p>The words “of the purport and effect,” in that averment, are a part of the de- . scription of the instrument, and can not be treated as surplusage.</p>

<p>When a case is reserved in a district court for decision by the Supreme Court, and the judgment of the latter requires no further proceedings to be had in the district court, the mandate ordered to be issued to the common pleas, to carry the judgment of the Supreme Court into execution, should be issued out of the Supreme, and not out of the district court.</p> <p>The order, in such a case, that a copy of the judgment be sent to the district court for entry, is made for mere convenience, in order that there may be a record of the judgment in the county. All the district court has to do under the order, is to cause the copy of the judgment to be entered in its journal.</p> <p>The statute authorizing the reservation of a cause by a district court, or the supreme judge sitting therein, for decision by the Supreme Court, is constitutional.</p>

<p>Section 56 of the "act directing the mode of proceeding in chancery” (Swan’s, Stat., old ed. Y14), has no application to this court, or its predecessor, the-court in bank, as was held in Carlisle v. McDonald, Y Ohio, 26Y, pt. 1.</p> <p>In the practice of courts of equity, in England and the United States, a distinction has obtained, as to the allowance of rehearing, between the courts of original jurisdiction and those exercising appellate jurisdiction only.</p> <p>In the former, rehearings have uniformly been allowed, and in the latter almost uniformly refused. .</p> <p>Such is the rule adopted by the Supreme Court of the United States. Brown v. Aspden, 14 How. 25.</p> <p>The organization of this court is such that no reason can be given for adopting the practice of the Supreme Court of the United States that does not equally apply here. Rehearings will not, therefore, be allowed in this court.</p>

<p>Although the manner of the dedication, and the principles and rules of property applicable to public highways and public squares or commons in cities “and villages, may rest upon the same ground, yet the use and purpose of each is different and clearly distinguished from the other.</p> <p>' The easement of a public highway comprehends the rights of all individuals in the community, whether upon foot, on horseback, or with any kind of vehicle, to pass and to repass, together with the right of the public to do all the acts necessary to improve it and keep it in repair. But the use or beneficial purpose of a public common or square, in a city or village where no special limitation or use is prescribed by the dedication, is such that it may be improved and ornamented for recreation and health, or for the public buildings, or as a place for the transaction of public business of the people of the city or village, or both for the purposes of pleasure and business, at the discretion of the municipal authorities.</p> <p>The dedication of “La Place,’’ in the village of Gallipolis, subject to the single restriction 'that it should not be obstructed, on the bank of the Ohio river, by any kind of public buildings, was for the usual and ordinary purposes of a public square, and, as such, subject to the control of the public authorities of the people of the village.</p> <p>The long-continued use of this ground as an uninclosed public common could lay no foundation for any presumption against the right of the village to improve the ground, and use it in any other manner deemed more advantageous and beneficial to the public, within the terms of the dedication.</p> <p>The provision in the act incorporating the town, which, among other things, confers the power “to regulate, improve, and keep open, unobstructed, and in repair, the landings, commons, streets, etc., within the corporation, has reference to the appropriate use and object to which each was dedicated, requiring each to remain open and unobstructed, so far as necessary to accomplish the appropriate object for which it was designed, and no further.</p>

<p>The word “owner," in section 1 of tbe act “to create a lien in favor of mechanics and others, in certain cases,” passed March 11, 1843, is not limited to an owner in fee, bnt includes also an owner of a leasehold estate. If the ownership is in fee, the lien is upon the fee; if it is of a less estate, the lien is upon such smaller estate.</p> <p>The words “lot of land upon which the same may stand,” in the same section, do not mean merely the ground covered by the building; nor do they confine the lien to the particular lot, as known on the town plat, on which the building stands. Where two adjacent town-lots are used, without any actual division between them, as one mill-lot, or the like, a part of the buildings and machinery being upon one, and a part upon the other, the lien extends to both lots, although the precise spot where the work was done may be within the limits of one of them. The same rule applies to two or more adjacent lots thrown, for any common purpose, into one, the ideal lines of division being disregarded.</p> <p>If work be done or materials furnished, without a contract that they shall be-put to the particular use of erecting, altering, or repairing a craft or building, no lien can be asserted upon the building or vessel in which they may be placed. The contract intended by the statute is one that has reference-to the purpose for which the work is done or the materials furnished.</p> <p>The lien dates from the commencement of the labor or of the furnishing the materials, and there is, in this respect, no distinction between laborers and material-men. Section 1 makes no such distinction, and none such was intended by section 1.</p> <p>Where materials are furnished from time to time, for a particular purpose, and the dates are so near each other as to constitute one running account, the "lien dates from the time when the first article was supplied, although, strictly speaking, the articles were not furnished under one entire contract.</p> <p>But where they are furnished for different purposes, or where there are intervals of time in the account, so long that it can not with propriety be called one account, there is not, in the absence of an entire contract, a lien for the-whole, from the date of the first article furnished. The items, in such case, will be regarded as forming one, two, or more distinct accounts.</p> <p>The lien given by the law in question does not override or interfere with prior bona fide liens. The builder or material-man can not have a lien upon the house, to the exclusion of a mortgagee or judgment creditor whose lion attached beforo the house was erected, altered, or repaired.</p> <p>As between the lienholders there is no priority. The idea upon which the law proceeds is that the building is the result of the labor and materials of various persons; the work of some of these'must precede that of others, but each contributes his proper share to the value of the structure; its value, when finished, is derived from these several contributions. The legislature intended the money, whether arising from the rents or the sale, to bo distributed pro rata.</p> <p>If A and B commence work or the furnishing of materials, and afterward the owner mortgage the premises to C, and after this D and E begin to work or-to furnish materials, here A and B have priority over C, and C has priority over D and E. In such case, A and B must receive what they would be entitled to if C’s mortgage had no existence; the residue must be applied next to the satisfaction of the mortgage; and whatever may remain after that must be distributed to D and E pro rata.</p> <p>Where a mortgage is given to secure a party who is bound to accept drafts, the lien of the mortgage attaches from the date of the negotiation or acceptance of the draft.</p> <p>Where such a mortgage is duly made and recorded, and subsequently an indorsement executed and acknowledged, with the formalities of a deed, is made on the mortgage, providing that the said mortgage, in all its provisions and terms, shall extend to the securing of a further sum, the indorsement may be recorded in another part of the record book than that containing the original mortgage, without recording the original again; and if the subsequent record intelligibly refer to the first record, the said indorsement will be a valid extension of the condition of the mortgage as first made and recorded.</p>

This was an action of assumpsit, reserved by the District Court ■of Muskingum county, on a motion for new trial. The opinion of the court shows the facts and pleadings.

<p>Error to the common pleas of Lucas county.</p> <p>The facts and pleadings sufficiently appear in the opinion of the •court.</p>

<p>This was an action of debt, reserved in Knox county.</p> <p>The action is brought upon the official bond of Merritt M. Beam and his sureties, executed in pursuance of the statute, for the faithful performance of his duties as auditor of Knox county. The suit is brought for the use of the commissioners of the county, they having sustained, as is alleged, losses to a large amount by reason of dereliction of duty on the part of said officer. The action is in debt, andthe declaration sets forth, in the usual form, the bond, with its conditions, and numerous breaches are assigned. The defendants plead, generally, non est factum,, and nil debet; to sundry breaches they plead the statute limiting actions against officers for malfeasance and nonfeasance in office to one year, and to other breaches they demur.</p> <p>To the above-mentioned plea of the statute of limitations, the plantifif demurs.</p>

This was a bjll of review, originally filed in the court of common pleas of Medina county. The defendants to the bill of review demurred to it, and the court of common pleas sustained the demurrer, and dismissed the bill. An appeal being taken to the district court, the cause was there reserved for decision in this court.

This was a writ of error .to the court of common pleas of Muskingum county, reserved in the district court for decision here. The original action was one of assumpsit, brought by the administrator of the estate of Charles C. Gilbert against the administrator of Thomas Little, deceased.

The plaintiff in error was indicted under section 29 of the crimes .act.

Beserved in the district court in Holmes county, on a motion, for a new trial. The case is fully stated in the opinion of the court.

*Error to the late Supreme Court in Hamilton county. On the 4th of August, 1848, the City Bank of New Orleans commenced an action against Charles Stetson, in the Commercial Court of Cincinnati.

This is a bill in chancery, filed in the court of common pleas of Clark county, April 18, 1849, in which court it was dismissed at the October term, 1850. The complainants appealed from that decree, and the cause coming into the district court in Clark county was reserved for decision in this court.

<p>This is a bill in chancery, reserved in the county of Union.</p> <p>The facts appear in the opinion of the court.</p>

Writ of error to the court of common pleas of Warren county, reserved for decision by the late Supreme Court in bank, in the late-Supreme Court of Warren county. The original proceeding was an action of ejectment, brought, in the common pleas, whore the cause went to a jury on the pleadings and the following agreed statement of facts, with the papers-made part of it. In this case it is agreed as follows : “1. That John Welton is the common source of title.

This is a writ of error to the common pleas of Trumbull county. The facts sufficiently appear in the opinion of the court, and no questions of pleading are made in the case.

This is a writ of certiorari to the court of common pleas of Fair-field county. *The proceedings in the court below were on a petition for partition. The facts, proceedings, and questions sufficiently appear in the opinion of the court.

*This was a proceeding in chancery,reserved in the county of Champaign. The bill was designed to compel a release and conveyance of certain lands by the defendants, who were in possession as heirs and devisees of John Evans, deceased.

<p>During a session of the late Supreme Court in Bank, and while there was vacation of the Supreme Court on the circuit in any particular county, a single judge might lawfully allow a writ of certiorari to be issued and returnable to the Supreme Court in that particular county. '</p> <p>While the court will take judicial notice of who were members of the Supreme Court at a given time, and of the time fixed by law for the commencement of its sessions, it can not take such notice of the duration of any particular session. This fact must appear by evidence.</p> <p>Certiorari is not a proper mode of reviewing a proceeding in chancery (Galloway v. Stophlet, 1 Ohio, 434, followed), nor, as decided in Barnard v. Engles, is such a proceeding subject to review, under our present practice, on a petition in error.</p> <p>Although a court may acquire jurisdiction of parties by their consent, yet a court of special and limited jurisdiction can not, as such court, acquire jurisdiction of a subjecPmatter not conferred by the law of its creation.</p> <p>The decree of a probate court in Ohio, involving the exercise of the general jurisdiction of a court of equity, must be considered as corarn non judiee and void.</p> <p>A decree by such court, on a petition addressed solely to its probate jurisdiction, for the cancellation of a creditor’s mortgage, was an attempt to exercise chancery jurisdiction, and utterly void.</p> <p>In so far, therefore, as the decree below went beyond the jurisdiction of a probate court, it is to be treated as void, and in so far as it is within its jurisdiction, it is exclusively so, under section 5, article 3, of the constitution of 1802, and not subject to revision here.</p>

<p>This was presented to the court as a writ of error to the court of common pleas of Champaign county, reserved for decision here by the district court of that county. The case is sufficiently stated in the opinion of the court.</p>

<p>.It is well settled that an action lies as well for damage to adjoining property, by stopping or impairing the travel on, to, or from a street or highway, as any other damage that can be done to property, although the property injured may not be touched by the obstruction.</p> <p>'When the charter of a railroad company merely fixes a few points through which the road is to pass from its commencement to its terminus, leaving the location of the road between the points specified to the discretion of the corporation, the railroad company having once located the road, their power to relocate, and for that purpose to appropriate the property of an individual, has ceased.</p> <p>‘The same principle applies, whether the case be that of an attempt to relocate on the property of an individual, or that of using a street or highway for the purpose.</p>

<p>Reserved in the district court of Washington county, on a motion for new trial.</p> <p>*The action is one of ejectment.</p> <p>On the trial, the plaintiff, as appears from the agreed statement, gave in evidence:</p> <p>1. That Paschal N. Smith died in the year 1805, seized of four shares of land in the Ohio Company’s purchase, and that the land1 described in the consent rule is part of one of those shares.</p> <p>2. A copy of Paschal N. Smith’s will, of which the part material to a right understanding of the decision is shown in the opinion, of the court.</p> <p>3. A deed from the surviving executors of Paschal N. Smith. The facts relating to this deed are also set forth in the opinion of the court.</p> <p>4. A copy of the will of Hester Smith, widow of P. N. Smith. The relationship of this will to the other facts, and the questions-which arise upon it, likewise fully appear in the opinion.</p> <p>5. A deed from the executors of Hester Smith to the lessor of the plaintiff, dated February 2, 1847.</p> <p>6. A deed from Benjamin Strong, John Aspinwall, Joseph Strong,, and George W. Strong, all of the city of'New York, being some of the heirs at law of Paschal N. Smith, deceased, to Nahum Ward, dated January 11, 1847.</p> <p>7. Certain depositions, making proof, the effect of which appears-in the opinion of the court.</p> <p>The defendant then offered in evidence:</p> <p>1. A deed from the auditor of Washington county, dated April 14, 1838, under a sale made for taxes. Under this deed, defendants claim title and took possession of the land.</p> <p>2. A certified copy of the return of the delinquent taxes for the-year 1826.</p> <p>• For the purposes of the motion, it was admitted that all the-other proceedings, prior to said tax sale, were regular.</p> <p>If, upon the above evidence, the court should be of opinion that the plaintiff is entitled to recover the whole of the premises, then judgment was, by the agreement of parties, to be entered upon the verdict. If the court should be of ^opinion that the-plaintiff is entitled to an undivided part of the premises, then judgment was to be entered for such undivided part. If the opinion should be that the plaintiff’s title is not sufficient to entitle him to a verdict, then a nonsuit was to be entered; if that the defendant’s tax-title is a good defense, then a new trial to be granted, and costs to abide the event of the suit.</p> <p>The case went to a jury in the district court; a verdict was rendered in favor of plaintiff, and a motion was made by defendants for a new trial.</p>

<p>Tt is by no means clear, that a notice by publication, in a chancery proceeding, to Sarah Bay, without further description or means of identity, can be held to be a notice to Sarah Boy, upon the doctrine of idem sonans. But where the party is described as a widow, as the sole daughter of W. T., deceased, a brother of T. T., and as a resident of the State of New Jersey—■ -all of which particulars were correctly descriptive of the plaintiff’s lessor ; when the names and residence of her near relatives, and their connection with her, are given in the record ; where the premises sought to be affected by the decree are described, and the object of the bill set forth, the error could mislead nobody, and Sarah Boy will be bound by the notice.</p> <p>When the court in the chancery proceeding found that notice had been given to the defendant by publication in due form of law, it must be presumed, in the absence of any proof to the contrary, that this notice stated the pendency, objects, and prayer of the bill, and described the persons named as defendants as they were described in the bill.</p> <p>'Want of jurisdiction of the cause, equally as much as want of jurisdiction of the person, may render a judgment or decree void.</p> <p>A statement in a bill, as a mere legal deduction by the pleader, that the defendants “ are not precluded at law from the possession ” of the premises in controversy, will not prejudice the bill as one quia timet, if it appear from its face, that the complainant had by the length of his possession acquired a valid title.</p> <p>The title to or boundaries of land may be drawn in controversy by a bill, though there may be some statement or omission in the bill that renders it obnoxious to a general demurrer. When the defect is not a mere want of equity, but is some fact that precludes the court from entering upon the inquiry whether there be an equity or not—in such a case the effect is fatal to the jurisdiction. But it does not follow in all cases, that there is no jurisdiction because the bill was liable to a general demurrer.</p>

<p>Error to tbe common pleas of Muskingum county.</p> <p>The facts and questions appear in the opinion of the court.</p>

<p>Error to the probate court of Hocking county.</p> <p>The plaintiff in error was, at the August term, 1853, charged, by information, with assault and battery. Several matters of exception arise on the overruling of a motion made by the defendant to strike the information from the files, and a like motion to .quash; but the only questions examined by this court relate to the trial of the cause below. The plaintiff in error, on the overruling of the said motions, filed a written demand for a trial by jury. A jury of six *men being called (the same that was regularly •summoned for the term), the then defendant, “being called upon to state whether he had any objection to said jury, made objection that the same is not a legal constitutional jury, because not a jury •of twelve men, and therefore objected to the array of said jury.” 'This objection was overruled, and exception taken. A verdict and judgment against the defendant being entered, this writ is sued •out to reverse the judgment.</p>

<p>The principal, if not the only, reason of the common-law rule requiring actual seizin of the wife, in order to entitle the husband to curtesy in her lands, was that stated in the words of Blaekstone, as follows: “Because in order to entitle himself to such an estate, he must have begotten issue that may be heir to his wife; but no one, by the standing rule of the law, can be heir to the ancestor, of any land whereof the ancestor was not actually seized.” 2 Black. Com. 128.</p> <p>That reason having no existence in Ohio, where seizin of the ancestor is not necessary to inheritance, the rule itself does not exist, 'according to the maxim, “ cessante ratione, cessat ipse le%."</p> <p>A husband may, therefore, have tenancy by the curtesy, though the wife be never seized in deed, either actually or constructively, of the lands, and though the same be adversely held during coverture by another' person.</p>

<p>Error, to the common pleas of Washington county. The case is stated in the opinion of the court.</p>

<p>*Error. to the district court in the county of Defiance.</p> <p>The facts and questions appear in the opinion of the court.</p>

Writ of error to the district court of Muskingum county. The judgment sought to be reversed was one of the district court, entered in September, 1852, reversing a judgment in the -court of common pleas. The defendant in error moved to quash the writ.

Bill in chancery, reserved from Hamilton county. The object of the bill was to rescind the following agreement, made January 30, 1845 : “ Timothy Kirby sells to William A. Harrison, of Virginia, a lot of land, north of Cincinnati, in Mill Creek township, Hamilton county, Ohio (now within the city), opposite the now brick Methodist Chapel, on the southeast corner of ^Locust or Piatt street and York street, fronting on the east side of Piatt street one hundred feet, being one…

<p>'-KBill of chancery, from Butler county.</p> <p>For the reason given in the opinion, no statement of facts is necessary.</p>

<p>If A, his wife not joining, execute a mortgage of lands to B, with power in tie mortgage to C to sell the property to pay the mortgage debt, if default he made, and A and wife afterward, and before the execution of such power, make a deed of such premises to D, with proper release of dower, the purchaser at a judicial sale of said premises, under proceedings subsequently instituted by parties holding under the original mortgage and the power therein contained, against A and D, takes all the title of A and D, and holds the property discharged of dower.</p> <p>The purchaser, under judicial proceedings, foreclosing a mortgage and selling the mortgaged premises, takes the complete title of both mortgagor and mortgagee.</p> <p>It is not, on the petition of A’s widow for dower, a valid objection to such proceedings, that the bill asserting the mortgage under which the property was sold, was filed during the life of D, who was made a party, and that upon his death, pending the suit, his heirs were not made parties, and the answer was filed by his administrator. Though it was error in the court to decree without making the heirs parties, yet jurisdiction having been once obtained by the service of process on D himself, the subsequent proceedings, although erroneous, were not void.</p> <p>Nor does the error of the court in ordering the surplus, after paying the mortgage to he taken by the administrator, when it should have gone to the heirs, invalidate the proceedings. Until reversed, the proceedings, though thus erroneous, can not be disregarded.</p>

<p>The dishonor of a bill of exchange drawn in this state, and made payable in another, may be proved by a notarial protest.</p> <p>Although, in a technical sense, the term protest means only the formal declaration drawn up and signed by the notary; yet, as used by commercial men, it includes all the steps necessary to charge an indorser.</p> <p>When the notice to an indorser is in writing, and undisputed, its sufficiency is a question of law, to be determined exclusively by the court.</p> <p>.It need not contain a statement that the indorser is looked to for payment ;■ but it must show upon its face, either expressly or by fair implication, that the note or bill has been duly presented to the maker or acceptor, and dishonored.</p> <p>•Such presentment and dishonor can not be inferred from a simple statement that the paper is unpaid; or from a notice showing it to have been protested before it was due.</p>

<p>In chancert,1 reserved in Enox county.</p> <p>The facts and questions appear in the opinion of the court.</p>

<p>That a man may authorize another to do for him whatever he may lawfully do himself, is only true, as a general proposition, when the agent may himself execute the power conferred.</p> <p>If the performance of the trust or execution of the power involves the employment of another agency not having the capacity for its execution, the power itself can not be effective.</p> <p>In any proper form, one may delegate to another complete authority to regulate, control, dispose of, receive, and receipt for his property, of whatever description ; *but he can not, by any form of commission, whatever the powers of the agent may be, confer upon a justice of the peace, or other court of limited jurisdiction, a power not given by the statute.</p> <p>When a general jurisdiction of the subject-matter exists, but the statute has prescribed the mode and particular limits in which it may be exercised, it must be confined to the limits thus prescribed, and can nothe exercised in any other manner or upon' any other terms.</p> <p>From the provisions of the statutes conferring jurisdiction on justices of the peace in civil cases, it is plain that a justice’s jurisdiction is strictly limited as to the amount of its judgments, whether rendered upon trial or confession, and limited also in its territorial extent.</p> <p>The justice can not maintain an action against a householder residing in another township, or render any judgment against a resident of his own township for a sum greater than one hundred dollars, except in cases whore the “debtor shall appear, without process, and confess that .he is indebted,” etc. The appearance of the agent or attorney, under warrant, is insufficient.</p> <p>The jurisdiction of a justice’s court will not be extended, by construction,, beyond the letter and probable policy of the statute creating it, especially in a class of cases where it is proverbial that its exercise is so frequently invoked for the more successful accomplishment of little schemes of extortion and oppression.</p>

<p>Section 514 of the code of civil procedure has no application to chancery proceedings.</p> <p>A petition in error is not the proper mode of reviewing a decree in chancery.</p>

<p>A person largely indebted can not give away Ms property without amply providing for the payment of his debts. The suspicion of a fraudulent intention in malting such gift may, in many such cases, be removed by proper-^evidence, but the question always remains whether the conveyance operated to the prejudice of creditors.</p> <p>Such a gift is never upheld unless property is retained, clearly and beyond' doubt, sufficient to pay all the donor’s debts.</p> <p>In the absence of any intentional fraud, however, such a conveyance, though void as to creditors who were such at the time of the gift, may be good as to subsequent creditors.</p> <p>There is no distinction between the exercise of the powers of a justice of the peace, relating to the acknowledgment of deeds without his county, but within the state, and the exercise of similar powers by a territorial judge-without his territory.</p> <p>Whatever doubts might have existed as to the correctness of the decisions supporting an acknowledgment taken by a territorial judge, beyond the territorial limits (see Moore v. Vance, 1 Ohio, 1, and Kinsman v. Loomis, 11 Ohio, 447), these decisions have stood as the law of the state for many years, and until the doctrine has become a rule of property which ought not to be disturbed.</p>

On the trial below, the plaintiff gave in evidence to the jury the last will and testament of Conrad Worman, deceased, etc.; also, evidence that the said Elizabeth, his widow, had elected to take under said will; that said will had been *duly admitted to probate; also, title in said Conrad Worman, at the time of his death, to the promises in the will described; also, that said defendant went into possession of that part of said promises which, by said will, he was to farm,…

Bill in chancery, reserved in Darke county. The object of the bill is to compel the specific performance of a .contract, which was made on Sunday, for the sale of certain lands described in the bill. The only question in the case under the .reservation, is whether such a contract can be enforced.

The object of the plaintiff in certiorari was to reverse an order of the court named,' confirming a sale of lands by the sheriff, under an execution issued upon a judgment at law in that court in favor of McBain and against Daniels. *The writ commanded the court of common pleas to certify to this court a full transcript of the record and proceedings between McBain and Daniels, in a certain action, wherein judgment was rendered at the April term, 1847, together with all…

<p>Although the policy of the law has always been to preserve with great care the ■ right of dower when it has once attached to the property of the husband, the right must always attach subject to all the equities that may exist against the title of the husband at the time it attaches.</p> <p>The rignc of dower arises upon the title of the husband alone, and can not be higher or more extensive than that title.</p> <p>If the legal title be in the husband, and the equitable title in another, at the time of the marriage, no right of dower attaches as against such equitable title.</p> <p>Where, before marriage with the claimant of dower, the husband, for considerations partly good and partly valuable, had agreed to convey certain lands to his son, who paid the valuable consideration and took possession, and after the marriage the conveyance was actually made, no right of dower attached as against the equity of the son.</p> <p>The conveyance, when made, related to the title as it- stood when the contract for the conveyance was made.</p> <p>The agreement of the son to release all claim that he would otherwise have upon his father’s estate after the father’s death, as a part consideration for the said conveyance, is at least, when executed by an abandonment on the part of the son of all claim on the estate, after the death of the father, a 1' valid consideration in part of such conveyance.</p>

Action of trespass—appealed to the district court of Cuyahoga ■county, and reserved for decision here, on motion for new trial.

At the March term, 1834, of the Geauga common pleas, the will ■of Benjamin E. Tracy (made August 28, 1833), was proven, and letters… Held: and so charged the jury, that the account rendered by Card was conclusive as to all things therein contained; but was not conclusive as to matters not therein contained. “As to the third instruction requested, the court held, and so charged the jury, that the notes given by Y. J. Card to the said B. F. Tracy, as the same fell due,…

<p>In an action upon a policy of insurance, evidence of a local custom amongst insurers, not communicated to the insured, or of such notoriety as to afford any presumption of knowledge on his part, is not admissible.</p> <p>The opinions of witnesses engaged in the business of insurance, as to the materiality of the fact, that the building insured had shortly before been on fire, and the effect it would have had upon the mind of a prudent underwriter, if communicated, are not admissible in evidence.</p> <p>Opinions are only admissible, where the nature of the inquiry involves a question of science or art, or of professional or mechanical skill, and then only from witnesses skilled in the particular business to which the question relates.</p> <p>The conditions of insurance, annexed to a policy, and made part of it, required applications for insurance to be in writing, and to specify divers particulars, all relating to a description of the premises, and the uses to which it was applied, and providing that a false description, by the assured, should avoid the policy; and that when the policy issued upon a survey and description, it should be deemed a part of the policy and warranty on the part of the insured: Held, that other facts stated in the application, not required to be stated by the conditions, or descriptive of the premises, were not made part of the contract, and wore to be treated as representations, and not warranties, although the survey was referred to, in the policy, in these words: “ For a more particular description of said premises, see survey No. Í4, furnished by the insured, which is hereby made a part of this policy.”</p> <p>If such representations are hot substantially and materially untrue, they will not avoid a policy.</p> <p>If a representation, as to incumbrances upon the property, is untrue, but not fraudulently made, and the agent of the underwriter knows the true state of facts, and writes the statement, as made from his own knowledge, and fails to state it truly, such misrepresentation will not avoid the policy, although the statement is adopted and signed by the agent of the insured.</p> <p>*The materiality of a fact concealed, is a question for the jury; and' where it consisted of a previous fire in the same building, it was not error-to instruct them that it was proper to consider the true cause of the fire, and not the suspicions or belief of the insured as to the cause.</p> <p>The doctrine of concealment, as understood in marine insurance, is not applicable, in its full extent, iofire policies ; in which the insured is notbound to communicate every fact material to the risk. All that is required of him, is, that he shall not misrepresent, or designedly conceal, any such facts, and that he answer, in good faith, all questions asked him by the insurer, unless-the fact not communicated is one of unusual peril to the property, and could not, with reasonable diligence, be discovered by the insurer, or anticipated as a foundation for specific inquiry. Per Ranney, J.</p> <p>It is, in general, sufficient, that the subject-matter of insurance and the nature of the risk are set forth in the policy, without any representation of the nature or extent of the interest of the insured; and in case of loss, he will be entitled to recover, upon proof of any insurable interest in the property covered by the policy.</p> <p>Objections to the preliminary proofs will be considered as waived, if, after they are rendered, no specific objections are pointed out, and the assured is informed that his claim will be considered on the merits, and the claim is re* jected finally, upon the ground that the company is not, in any event, liable to pay the loss.</p>

The action in the court below was one of assumpsit. On May 17, 1847, Alfred J. Purviance executed a note under' seal, payable to William Clark, for $214, due * April 1, 1848, in the name of Alfred J. Purviance & Co. This note was signed by Sutherland, as surety, After the death of Clark, his son and administrator brought suit and recovered judgment against Alfred J. Purviance.

<p>Admissions respecting a claim against an estate, made by the administrators, when not in the act of accepting or rejecting the claim, but when in conversation with others than the claimant, relating to the claim, are not admissible in evidence in a suit brought to trial after the persons making the admissions had ceased to be administrators; one having been divested of his official character before suit was brought, and the other after its commencement.</p> <p>The fact that one of the administrators was one of the heirs of the estate does not alter the character of the testimony so as to make it proper evidence.</p>

<p>Certiorari to the court of common pleas of Stark county.</p> <p>The case is stated in the opinion.of the court.</p>

<p>Application for an injunction upon the petition filed and pending in a court of common pleas.</p>

The plaintiff in error was charged in an indictment, of which the third count (being that bn which he was convicted) is as follows: *And the jurors aforesaid, inquiring as aforesaid, upon their oaths and affirmations aforesaid, in the name and by the authority of the State of Ohio, do further present and find, that William 0.

The original proceeding was a citation issued to the commissioners of Lucas county, by the court of common pleas, requiring the commissioners to show cause why they should not settle with the commissioners of Fulton county.

The plaintiff in error was indicted for assault with intent to-murder. The case is sufficiently stated in the opinion of the court.

The judgment sought to be reversed was one of the district court, affirming a judgment of the Superior Court of Cincinnati, in favor of Werk, the original plaintiff. The action, in which the judgment thus affirmed was rendered, was one of covenant, brought in the Superior Court, in March, 1844.

The judgment sought to be reversed was one in favor of Patrick McClosky, in an action of case brought against Louis Samyn, to-recover damages for an injury sustained by the plaintiff in falling-into a pit or vault, left insufficiently guarded in a sidewalk in the city of Cincinnati, in the promises of plaintiff, whereon he was-erecting a house.

*Error to the Superior Court of Cincinnati, reserved in the district court of Hamilton county. Tho case is stated in tho opinion of the court.

Bill in chancery, reserved in the district court in Eranklin county.

The cause being submitted to the district court, without jury, the plaintiff put in evidence a mortgage, duly executed to his lessors in fee, by Sennet Barney, of the west fraction of section 17, in township 11, range 12, in Morgan county, known as the “Island Bun Fraction,” and containing three hundred and forty-two .acres. The mortgage was dated the 25th day of May, 1830, and duly acknowledged.

The plaintiffs in error were convicted at the October term, 1853, on an indictment containing four counts, of which the first charges that the accused “ feloniously did not make, alter, forge, and counterfeit a certain bank note,” etc.; the second and third charge them with uttering “a certain false, forged, and counterfeited bank note,” etc.; and the fourth is for uttering “ a certain false, forged, and counterfeited bank note,” ete.

The judgment sought to be reversed was rendered in an action of ■debt, brought by the present plaintiff against the present defendant, on the bond of David Bryte, as sheriff of Eichland county, and Newman and others, as his sureties, to recover *money received and not paid over by Byrte, as sheriff, on a judgment in favor of Samuel J. Kennickle, assigned to Immel.

The judgment sought to be reversed was one of the district court affirming a judgment of the Hardin county common pleas, in favor of Wilcox, in an action of debt brought into the court last named by appeal from a justice of the peace.

Petition in error, to reverse a judgment in the district court of Knox county, in favor of the defendant in error, then plaintiff, •in an action of debt brought against the present plaintiffs, on an administration bond, executed October 25,1849, by three of the -then defendants, as the administrators of the estate of John Greer, deceased, and by the others as sureties.

The plaintiff in error was indicted for burglary. The second count of the indictment alleged the intent to be-to steal bank bills, without expressly alleging that they were of value. The principal matter of exception, was the admission of certain confessions of the plaintiff in error.

*The judgment sought to be reversed was rendered in an .action of assumpsit, brought by the plaintiff in error against the defendant in error, to recover the value of services rendered to the defendant’s intestate. The charge of the district court, delivered to the jury by Thurman, J., fully shows the nature of the controversy in that court; and since it is excepted to, it is here inserted entire: “ Gentlemen of the jury,—A few words are all that is necessary to say to you.

Tbe judgment sought to be reversed affirmed a judgment of the court of common pleas of Erie county, in an action of ejectment brought by the present defendant against the present plaintiff. There were three trials of the cause in the court of common pleas, two juries disagreeing.

Assumpsit; reserved in the county of Muskingum. The case is so fully stated in the dissenting opinion of Judge Ranney, that, the reporter takes leave to refer to that opinion for-the facts.

Petition in error, reserved in the county of Belmont. The judgment sought to be reversed was one of the court of common pleas of Belmont county ip an action of assumpsit ♦brought by the plaintiff in error to recover the amount of a tax collected by the defendant as treasurer of Belmont county, and assessed against the plaintiff under the subscription made by the commissioners of the county for stock in the Central Ohio Railroad Company.