Volume 20 — Ohio State Reports

In Chancery. Motion to dissolve an injunction, reserved in Crawford county. In Chancery. Motion to dissolve an injunction, reserved in Wyandot county. The material facts in these two cases, the arguments of counsel, and the decision of the court, are all found in the foregoing volume, and are therefore not restated here.

At the July term, 1850, of the court of common pleas of Warren county, the plaintiff in error was indicted for the crime of bigamy. He was charged with having married one Elizabeth Emerick, *on March 9, 1848, and while she was still living, on March 15, 1850, with having again married one Amanda Eitz.

At the April term, a. d; 1848, of the court of common pleas of Lawrence county, an indictment was found against ^plaintiff in error, which charged “that Robert Hall, late of said county, on March 10, A. d. 1848, at the county aforesaid, did vend and sell certain spirituous liquors, to wit, one quart of whisky, to one Andrew J. Razor at the grocery store of said Robert Hall, then and there situate, within the distance of three miles of a foundry belonging to Peebles, Wood &…

At the May term, 1849, of said court, Bucklin, now plaintiff in error, was indicted for retailing spirituous liquors by less quantity than a quart without license ; and at the April term, 1850, he was tried and convicted on said indictment, and fined.

In that court Wilson was tried and convicted upon an indictment containing two sets of counts, upon two distinct statutory offenses, to wit: an “assault with intent to commit a murder,” under section 17 of the act for the punishment of crimes; and a “ shooting with intent to kill,” under section 24 of the same act.

<p>Error to the court of common pleas of Huron county.</p>

In Chancery. Original bill. In Chancery. Cross-bill. Eeserved in Hamilton county. Tbe material facts, tbe arguments of counsel, and the decisions of the court, are all found in the foregoing volume, and are therefore not restated here.

Be it remembered, that on the trial of the above cause, etc., there was no evidence that the said John Brasher, who was a day-watch, had a warrant to arrest the said Jesse Jones, and there was evidence tending to prove that said Brasher had, on the day previous to the alleged killing, arrested, without warrant, and discharged the said Jesse Jones, and, at the time of the killing, was attempting to arrest the said Jesse Jones without any warrant» but only upon the charge and…

At the October term, 1851, of said court, Hart, the plaintiff in error, defendant below, was indicted, tried, convicted, and sentenced to imprisonment in the penitentiary for forgery. The indictment contains three counts.

Reserved in Cuyahoga county. On November B, a. d., 1846, by warrant of that date, the defendant in error commenced an action of assumpsit against the plaintiffs in error, in the court of common pleas of Cuyahoga county. The declaration in the case contains two counts.

The original action was assumpsit, commencod by John McGuire against the defendant, before a justice of the peace, in Miami county, and appealed to the court of common pleas. During the progress of the case McGuire died, and his administrator was, in pursuance of the statute, made party plaintiff. The declaration contains the common counts in assumpsit, to which a plea of the general issue was filed.

*The proceeding, in that court, was an action on the case, brought by the defendants in error, Stewart and McKibben, against Levi Samms, to recover the value of a box of goods, delivered by them to him, to be carried in his wagon from Cincinnati to New Hope, in Brown county, which goods were stolen from the wagon on their way. The record presents a very meager statement of the evidence in the court below.

*Tho plaintiff in error brought suit in the commercial court of Cincinnati, upon two promissory notes given to him by the defendant, Bradley, and dated, “Detroit, November 8, 1847”—the first in the sum of $158.67, payable in three months, and the second for $159.12, at four months; and both made payable at the Commercial Bank in Cincinnati.

Reserved for decision in this court by. the Supreme Court in that county. The action was assumpsit, commenced originally before a justice of the peace, by whose judgment the plaintiff recovered six dollars damages, and costs of suit, on April 11, 1850. The defendant appealed to the court of common pleas, where the cause, after sundry continuances, was tried by a jury, at the September term, 1851. Under the charge of the court, the jury returned a verdict for defendant.

The original action was trespass before a justice of the peace, brought by Wicks as plaintiff (now defendant in error), against King, defendant below (now plaintiff in error). The cause was removed to the common pleas, and tried to a jury at May term, 1851, when the plaintiff below recovered judgment.

The plaintiffs in error, defendants below, were sued in the court of common pleas of that county as the sureties of James Findley and John Patterson, on an executor’s bond.

Reserved by the Supreme Court in that county for decision here.

Isaac Graham recovered judgment against Robert Harper, at the September term, 1844, of Butler common pleas, for $1,716.86, and plaintiff’s costs, $52.99; the defendant’s costs taxed at $19.91. Harper was then residing in Arkansas. Graham procured a certified transcript of the judgment, and forwarded it to Paschal *& Ogden, attorneys at law in Arkansas, for collection. Harper was notoriously insolvent.

*In the common pleas, Marlow, plaintiff below (now defendant in error), brought an action of trespass on the case, against Jamos H. and Jacob Ash, for malicious prosecution.

The original action in this case was commenced by the plaintiffs in error against the defendants, in assumpsit, in the court of common pleas of Huron county.

The action in the court of common pleas was commenced September 5, 1850, by Fogle against Hildebrand, in assumpsit, on the following contract: “ I, Jesse Hildebrand, do agree and bind myself to pay Robert H. Fogle $750 per annum, payable quarterly, in the months of May, August, November, and February.

The action was replevin, brought by Wilson, the plaintiff below, who is also plaintiff in error, against Leslie, to recover the possession of the following goods and chattels: One carriage with leather extension top, trimmed with red plush; one carriage with standing top; one dapple gray mare, called Sarah Thompson; one light gray mare, called Betsey Baker; two sorrel mares matched.” The bill of exceptions is as follows: “Upon the trial of this cause, in the court of common…

The action was assumpsit, brought by Dempsey & Co., to recover money paid by them to Hambleton, as treasurer of Lawrence county, upon a tax demanded by him, and denied by them to be legal. The money was paid over to the treasurer under protest.

On July 27, 1848, Horatio G. Philips, Daniel Beckel, Jonathan D. Philips, and Samuel D. Edgar, traders in company, using the name of Philips, Beckel & Co., commenced an action against the “Knox County Mutual Insurance Company,” and declared in assumpsit upon a policy of insurance, dated October 27, A. d. 1847. To this declaration the defendant filed a plea of non assumpsit.

The action in the court below was assumpsit, brought by Daniel T. Lawson, as administrator of William Black, deceased, and was commenced November 13,1846, to recover of McDonald one-third of the… Held: that a mortgagee of the interest of one who was an owner at the time of the insurance, and for whose benefit the policy was underwritten, had a right to the mortgagor’s portion of the insurance money to the extent of the debt secured by the mortgage.” II.

The original action was assumpsit, in the commercial court of Cincinnati. Beed and Brown, the plaintiffs below, declared specially, on a policy of insurance effected by the defendant below, the insurance company, on 750 barrels of whisky, to be shipped in a No. 1 flat-boat, from Lawrenceburg, Indiana, to New Orleans.

The original suits in these two cases were commenced on the same day, by James May, against the defendants in error, in the superior court of Cincinnati.

The action of the common pleas was ejectment, commenced *in April, 1847, against Davis and others, and was tried to a jury at the November term, 1849. The jury returned a special verdict, upon which the common pleas, “ being of opinion that the law arising upon the fact so found by the jury is with the defendants,” rendered judgment in favor of said defendants. This writ of error is prosecuted to reverse the judgment so rendered. The errors assigned are: 1.

The action in the common pleas was ejectment. Nahum Ward claimed title to the premises sought to bo recovered, under a deed dated December 10, 1835, made by the two surviving executors of Pascal N. Smith to said Nahum Ward. Ho proved on the trial in the court below that Pascal N. Smith died seized of the land in controversy, in the year 1804, having made a will which hears date March 20, 1801.

The original action in the common pleas of Stark county was ejectment. The declaration was filed March 26, 1849, with the sheriff’s return of service of that date. The facts are all stated in the opinion of the court, and in the dissenting opinion of Spalding, J.

In the common pleas, the Manhattan Bank sued Myers, and Stephens B. Comstock, in assumpsit, on a note executed by Myers' partner, in the name of the firm of Myers & Co., to Comstock, or order, December 31, 1837, payable at the Manhattan Bank, sixty days after date, for $1,000; which note was indorsed by Comstock, and at its date discounted by the bank. The defendants below pleaded three pleas : I. General issue. II. Specialplea.

In the common pleas the action was assumpsit, tried at the October term of the court, a. d. 1850, and verdict for plaintiff, (Webb), $253.43, damages, for which judgment was rendered. Exceptions were taken to the ruling of the court in refusing to set aside the verdict and grant a new trial; and the whole testimony is set out in the bill of exceptions.

Alexander Gard and Mary Ann Gard, his wife, late Mary Ann Robinson, prosecuted an action in the court of common *pleas for Montgomery county, against John C. Negley, and declared in assumpsit for money had and received. The defendant Negley having pleaded the general issue, the case was submitted to a jury, at the Januai’y term, 1851, of the court, and the jury returned a verdict for the plaintiff.

The action below was assumpsit brought by Fulton against the Mad River and Lake Erie Railroad Company, to recover the value of a traveling trunk and its contents. The declaration avers a contraction the part of the railroad company, as common carrier, to carry the wife of plaintiff below, and her traveling trunk and contents, from Tiffin to Springfield in the railroad cars of said company, and avers the loss of the trunk and contents by said company.

The breach assigned, in the declaration, is, that on October 24,1837, Sloane, as clerk aforesaid, issued letters of guardianship to Ralph Funk as guardian of Mary May, now wife of Carpenter, without first requiring of Funk a bond, as required by law and the order of court appointing him guardian, for the faithful discharge of his duties as such ; by virtue of which letters Funk took possession of the goods and lands of his ward, of the value of $2,000, converted the same to…

In the court below, Chrisman, as administrator of Moore, sued Turner, in 1847, in an action of debt, upon a single bill executed by Turner to Moore, dated March 10, 1834, payable one day after date. The declaration contains special counts on the note, charging the indebtedness to the intestate, and the common counts averring the indebtedness to the administrator.

<p>Error to the Supreme Court of Franklin county.</p> <p>The case is stated in the opinion of the court.</p>

*In the court below, the action was assumpsit. Eeynolds,. the plaintiff below (and plaintiff in error) declared in the common counts. The facts, so far as material, are stated in the opinion of the court. After verdict for defendants in the court below, a motion for new trial' was overruled.

*Error to the Supreme Court of Hamilton county. The original action wás assumpsit, commenced by Wiseman and Borchelt against Kugler, in the court of common pleas of Hamilton county. The declaration contained the common counts, for work and labor, goods sold, money paid, had and received, etc. To this declaration the then defendant, Kugler, pleaded the general issue, and gave notice of set-off.

*The action was indebitatus assumpsit, brought by Hunter Erwin & Co., against Peter Myers and Thomas W. Waterson, as partners in trade under the name of Myers & Waterson. The defendants in the court below pleaded, in abatement of the plaintiffs’ writ, that the several promises in the declaration mentioned, if any such were made, were made by them jointly with one Alexander P. Miller, under the name and style of Myers, Waterson & Co., and not by them alono.

*The original action in the common pleas was trespass, brought by the plaintiffs, Brown & Co., against Webb, who was sheriff of Stark county. In February, 1848, Alexander Gamier, of Canton, Stark county, purchased from sundry houses in New York and Philadelphia, goods to the value of about $10,000. He purchased from the plaintiffs, goods to the value of $3,258, the largest purchase made, and about $1,000 greater than the amount purchased of any other house.

The facts are stated in the opinion of the court. The plaintiff below owned what is designated, in the opinion of the court, as the “ one-acre tract,” along which the water-course flowed, and which was diverted by a race from the dam above the “ one-acre tract ” to the mill of defendant below.

Error, to the common pleas of Hamilton county. In the common pleas, Stevens sued the Little Miami Eailroad Company, in an action on the case, to recover damages for injury to his person, occasioned by a collision between two trains of railroad cars belonging to said company.

This is a bill in chancery reserved in Coshocton county. The complainant filed the bill to enjoin a judgment at law, and to procure an abatement in the price of a certain tract of land, purchased by the complainant of the defendant in 1844. The case is sufficiently stated by the judge delivering the opinion of the court.

This is a bill of review, reserved in the county of Clermont.

This is a bill in chancery reserved in Hamilton county. The bill in this case shows that Alexander Finley and his with, on February 1, a. d. 1850, mortgaged to Nathan L. Rice certain real estate in Cincinnati, which is particularly described, to' secure the payment of a certain promissory note of that date, for the sum of $575, made by the said Alexander Finley, and indorsed by Ann Ellen Finley, and payable four months afterdate to the said Nathan L. Rice or order.

This is a bill in chancery reserved in Muskingum county. The bill was filed upon leave granted by the court, (1) and alleges the death of Hazel Clary, the proof of a verbal will, the appointment of Henry Earns as his administrator, with the will annexed; that defendants Foster, Chapman, and Earns became his sureties in the administration bond; that large sums came into the hands of Henry Earns, as administrator of Ciar}* 1', which he failed properly to administer; that he…

This is a bill in chancery reserved from Muskingum county. The case stands upon bill and answer. The facts are undisputed.

This is a bill in chancery reserved in the county of Ross. The facts in the case, as the same are disclosed by the pleadings and evidence, are as follows: On December 3, 1831, Nathan Reeves, then a resident of Chillicothe, made his last will and testament, and died a few *days after its execution.

Bill in chancery, reserved in Highland county. The complainants are the heirs at law and legal representatives of Robert Glass, lato of Highland county, deceased. It is stated in the bill that said Robert Glass died in 1828, leaving personal property, and also seized of 220 acres of land in Highland county, which is particularly described in the bill, and which is the principal subject of controversy in this case.

This is a bill in chancery, reserved in the county of Hamilton.

This is a bill in chancery, reserved in Summit county. The principal facts in the case are stated in the opinion of the ¡court.

This is a bill in chancery, reserved in Butler county. The material facts are stated in the opinion of the court.

<p>Ho lien for the purchase money, upon a sale of real property, will attach, where the vendor takes from the vendee personal security for the payment of the consideration money.</p> <p>"Where an equitable interest in land was sold, and security taken for the purchase money, by which the vendor’s lien was extinguished, and the legal title to the property afterward came to the vendor by a deed of trust, he will not be permitted to hold on to the legal title until his own debt is paid, it not being provided for in the deed.</p> <p>The assignee of an equitable title, as a general rule, takes it subject to any claim that could be asserted against the assignor; but if the holder of the legal title has, by his conduct or representations, in any way misled the assignee, his rights may be lost or postponed.</p> <p>Specific interest in, or liens upon the property assigned, can only be set up against the assignee—not the general indebtedness of the assignor, although such indebtedness may have accrued from the purchase of the same property.</p>

This is a bill in chancery, filed by Gwynne, in June, 1845, in the court of common pleas of Madison county, and was subsequently removed, by appeal, to the Supremo Court. The material facts, and the manner in which the case now comes up for decision, are stated in the opinion of the court.

This is a bill in chancery, reserved in the county of Hamilton. The complainants in the original and amended bill are children and heirs at law of William Irwin, who died in July, 1824. *He left, besides them, two other children : Archibald, who was his partner in business under the name of William Irwin & Son, and Louisa, then the wife of Lewis Whiteman, but now deceased, leaving three children—Harriet, William, and Louisa. Harriet has married ffm.

This is a motion to dissolve an injunction reserved in the county of Crawford.