Volume 3 — Ohio Public Domain Citations

<p>Where the husband makes a devise to the widow, without stating that it is, or is not, in bar of dower, and the widow makes an agreement with the heir, reciting that it is in lieu of dower, and that she accepts certain things in satisfaction of the devise: Held, that she is barred of dower.</p>

This was sci.fa. upon a recognizance adjourned here by the Supreme Court of Cuyahoga county.

<p>This was a writ of error, to the city court of the city of Cincinnati, adjourned for decision here by the Supreme Court of Hamilton county. The case was this: The plaintiffs in error,, prosecuted a scire facias, upon a mortgage against the defendant, in the city court, to March term, 1822, and at the same term, a judgment was entered up against the defendant. At a subsequent term, upon the motion oí the defendant, the judgment entered against him was set aside, and the cause continued. In 1824, the case was put to a jury, and the plaintiffs’ evidence being overruled by the court, they suffered a nonsuit. This writ of error was brought to reverse the judgment, or order, setting aside the judgment originally given for the plaintiff.</p>

This case was adjourned from the county of Trumbull. It was a bill in chancery, to foreclose the equity of redemption in mortgaged premises, or to have a sale to raise mortgage money* The facts of the case were as follows: In the year 1801, the defendant was indebted to the complainants as security for some friends who had become bankrupt, and executed his individual notes for the amount, payable at short dates, and bearing interest at the rate of six per cent.

<p>This was a bill in chancery, adjourned here for decision by the Supreme Court of Montgomery county. The material facts of the cause were these: The defendant ha.d prosecuted a suit at law against the complainant, who was an executor. The suit was ■commenced within the time, when the statute provides, that, if a plaintiff sue an executor or administrator, he shall not recover costs. The case was canned by appeal to the Supreme Court, and there finally tried. The plaintiff in that case recovered, and in making up the record, a judgment was entered for damages and full costs against the defendant; the damages to be made of the goods of the testator, the costs of the proper goods of the defendant. This was certified to the court of common pleas, and execution issued for the amount. At the next term, the Supreme Court was applied to, to correct the judgment as to the costs, which was not done. A suit was then commenced on the appeal bond, by the original plaintiff at law, to subject the security to the payment of the costs in question. This bill was prosecuted to enjoin the recovery, and brought by appeal into the Supreme Court.</p>

This was a wrij; of error brought to reverse a judgment rendered by the conrt of common pleas of Hamilton county, in favor of the defendants, as assignees of Riddle. The defendants in error pleaded in bar to the writ of error certain proceedings in chancery, which they set out in their plea, and alleged that they operated as a release of errors, and to this plea the plaintiff in error demurred. The case was adjourned for decision here by the Supreme Court of Hamilton county.

<p>Parties receiving separate allotments in the same tract of'land are not tenants-in common, so as to claim partition of a surplus.</p>

This was a petition in chancery, for dower in a market-house in the city of Cincinnati, and was adjourned for decision here by the Supreme Court of Hamilton county. The facts were these: John H. Piatt in his lifetime, in conjunction with other owners of the property in the same square, agreed to open a way or street through the square, upon which a market-house was to be erected.

<p>Writ of error can be sustained in the name of tbe casual ejector.</p>

This was an action of assumpsit, for money paid, laid out, and -expended ; plea, non-assumpsit. It was adjourned from the county of Gallia, and the facts of the case were as follow: Bing, the defendant, had executed a bond with one Watkins, in fact, as security, but that did not appear upon the face of the bond. Suit was brought against Watkins and Bing, in Yirginia, .and Watkins only arrested, and, upon a return that Bing was not found, the suit abated as to him.

<p>Subscribing witness to written agreement can not be dispensed with and confessions of the party substituted.</p>

The heirs of Ludlow, having upon a bill of review obtained the reversal of a decree pronounced against them, in favor of Kidd, 2 Ohio, 372, proceeded against the other parties who had become interested. The Bank of the United States appeared, and presented a petition to remove the cause to the Circuit Court of the United States. The decision of the motion was adjourned here, by the Supreme Court sitting in Hamilton county.

This was a writ of error to a decree in chancery pronounced by the court of common pleas of Delaware county, on March 10,1818. The writ was issued February 17, 1826. The plaintiffs in error were the same persons against whom the decree was pronounced, as heirs at law of John Wilkins,, deceased, and were numerous.

<p>This was an action of assumpsit, upon a note of hand given by the defendant, to Hezekiah Rhodes or bearer, promising to pay fifty dollars, at a day subsequent, “in good merchantable whisky, at trade price. The declaration set forth, in terms, an assignment and delivery of the note to the plaintiff, and claimed to recover as bearer. The defendant demurred, and assigned as a cause of demurrer, that the note was not negotiable. The court of common pleas in Trumbull county, gave judgment for the plaintiff, and the defendant obtained this writ of error, which was adjourned here for final decision.</p>

This cause came before the court, upon a writ of error to the ■court of common pleas of Harrison county, and was adjourned for decision here, by the Supreme Court of that county. The original action was for a malicious prosecution, and the plaintiff in error was the plaintiff in the cause.

<p>Jurors separate after agreeing upon a verdict, without leave, not ground for new trial.</p>

This cause was reserved for decision here, in Tuscarawas county. Ifc was a motion on the part of the plaintiff for a new trial, upon the following case: At the trial the defendant offered, as a set-off, a writing in the following words: “I agree that Dr. Morris’ account against Samuel Miller, amounting to about twenty-six dollars, shall be offset, and applied on my claims against Dr. Morris now in suit, and that I will pay the same.

This was a case adjourned from Gallia county, upon a motion for a new trial, in an action of ejectment, where the jury found a verdict for the defendant.

This was an original bill filed in the Supreme Court of Hamilton county, and is between the same parties, and relates to the same transaction, and hadthesame object with that reported in 2 Ohio, 471. In October', 1820, the defendant, Schultz, obtained a judgment against the Bank of Cincinnati, which operated as a lien upon the real estate of the bank, from the 28th day of August of that year.

<p>This was a writ of sci.fa. to revive a judgment rendered in the Supreme Court of Fayette county, in favor of the plaintiff, against the defendant. The defendant pleaded in bar, that after the rendition of the judgment, he prosecuted a suit in chancery, in the common pleas of Fayette county, and obtained a final decree, enjoining all further proceedings upon the judgment, concluding with a profert of the record. The plaintiff replied that there was no such record, and upon this issue the cause was submitted, and adjourned here for decision.</p> <p>The transcript of the record, produced in support of the plea, set out a bill in chancery, prosecuted by John Gilmore against Thomas Ross, R. Curtain, and A. Dillon. It charged, that in August, 1799, the complainant executed to Dillon three notes for money, payable, one August 6, 1800; one August 6, 1801;. one August 6, 1802; that after these bonds became due, the defendant Curtain, and the defendant *Ross, had them in possession, and that suits were commenced upon them, and judgments recovered in Ross county, Ohio; that one of the notes had been paid, before the judgments were had, but that complainant could not prove the payment; that the complainant paid off said judgments, but that afterward, October 12, 1810, the defendant, Ross, took advantage of Complainant’s indigence, and induced him to give a due bill for seventy-one dollars and twenty cents, with his son as security, for an alleged balance due on the judgments in Ross county; that suit was brought upon this due bill, and judgment recovered in .Fayette county. The bill then alleged, that the judgment was obtained upon the due bill, because complainant could not prove that it was given for a balance due on -the judgments in Ross county ; made the usual suggestions, that relief could only be had in equity, prayed that each of the defendants might answer specially, to certain matters propounded, embracing the various allegations of the bill, as they related to each defendant. Relief was then prayed, in these terms :</p> <p>“Your orator prays your honors enjoin said proceedings at law, until your orator can be heard on the equity side of this court, and on a final hearing, to enjoin said proceedings perpetually, freo your orator irom the judgment now in favor of said Ross, grant to your orator the writs of subpena and injunction, for the purpose of obtaining the relief herein prayed for, and such further and complete relief, in the premises, as will meet your orator’s case, and the money paid said Ross, unless he show a right to it, order to be paid back to your orator, with,” etc.</p> <p>There was no appearance ever entered, or pleadings or answer put in. The decree was pro confesso, and in these words :</p> <p>“It is therefore ordered and adjudged by the court, that the plaintiff’s said bill be taken as confessed, and the prayer thereof decreed accordingly, and that said defendants be perpetually enjoined from further proceeding against said judgment at law.”</p>

This cause came before the court upon a motion made by purchasers under Baldwin, to set aside a levy upon real estate, conveyed by Baldwin to them, and levied on, as liable to the judgment of the plaintiff. It came up on an agreed case before the court of common pleas of Clark county, and was brought by appeal to the Supreme Court, and adjourned here for decision.

<p>This was a writ of error. The original action between the same parties was for a malicious prosecution. Tho declaration contained two counts. The one set forth' that the defendant had falsely and maliciously, without probable cause, made complaint against the plaintiff before a magistrate, and procured him to be arrested upon a charge of felony. The other set forth the same grievance, varied *so as to allege that the defendant made the complaint, and instituted the prosecution against the plaintiff and two others.</p> <p>At the trial the plaintiff offered in evidence a certified copy of the affidavit, made by the defendant at the commencement of the prosecution. In this affidavit it was stated that the alleged offense was committed “ on or about May 16, 1824.” The first count of the declaration stated the charge to have been, that the offense was committed “ on the-day of-in the year 1824.” The second count, that it was committed “on or about May 20, in the year 1824, last aforesaid.” The court rejected the evidence, and the plaintiff excepted.</p> <p>The plaintiff then examined one of the grand jurors, who found the bill of indictment; and after his examination in chief, the defendant offered to prove by him, on cross-examination, what facts were testified before the grand jury, as well by other witnesses as by the defendant, in relation to the facts charged, and also in relation to the character of one of the witnesses examined by the grand jury. To this evidence the plaintiff objected; but it was admitted by the court and an exception allowed. A verdict and judgment was given for the defendant, for the reversal of which this writ of error was brought and adjourned from the Supreme Court of Harrison county for decision at Columbus.</p>

This was an action of covenant, adjourned here for decision from the county of Columbiana. The question arose upon the construction of the covenant, and was presented by a general demurrer to the plaintiffs declaration.

This ease was adjourned for decision here by the Supreme Court sitting in Hamilton county. It was a bill in chancery for an injunction to enjoin the sale by the marshal of the city of certain real estate, owned and possessed by the complainant, for a city assessment of a tax to improve the streets.

This cause was adjourned here for decision, from the Supreme Court of the county of Franklin, on a motion for a new trial. In the month of April, 1808, Lucas Sullivant and wife conveyed in-lot No. 25, in the town of Franklinton, to the commissioners of the county, for the time being, by name, and to their successors in office.

This cause came up on a motion for a new trial, adjourned here from the county of Meigs. It was an action of trespass for taking and converting goods. The defendant pleaded that he was a constable, and that an execution was put into his hands to be levied, by .virtue of which he took the goods in question, as the property of the defendant, in execution, the now plaintiff. Upon this plea, issue was joined.

This was' an action of debt under the statute, in which a verdict was given for the plaintiffs, and a motion made fora new trial, on the following state of facts : In September, 1823, the parents of the pauper resided and had a legal residence in Lebanon township, in Meigs ^county.

<p>Insolvent’s bond valid, though, condition does not in terms follow the statute.</p> <p>Where commissioner of insolvents fails to advertise, and the party appears at a subsequent term, in good faith, and obtains a discharge, the condition of the bond is saved, though a specified term be named in it.</p> <p>It is the duty of commissioner of insolvents to cause the advertisement of notice of intention to apply for the benefit of the law to be published.</p>

This case was adjourned for decision here by the Supreme Court of' Franklin county. It was a motion for a new trial, made by the plaintiff, in an action of ejectment where a verdict had been taken without argument, for the purpose of considering and deciding various points of evidence arising in the cause.

<p>This cause came before the court by adjournment from Warren county, upon a certiorari to the court of common pleas, brought to reverse an order for appropriating money between the claims of different judgment creditors. It was argued by Corwin, for Earn-fit, and G-. J. Smith, for Winans. As the whole case is contained in the opinion of the court, the statement and arguments are omitted.</p>

This case was adjourned for decision herefrom Warren county. It came before the court upon a certiorari to reverse an order of the court of common pleas, distributing certain moneys, made upon execution against the defendants. Besides the plaintiff in the case, the Bank of Lebanon and Bank of the United States-were all interested. The common pleas made an order for paying the money to the Lebanon Bank. All the others sued out writs of certiorari. .

<p>This was a bill in chancery for the assignment of dower, against a person claiming under the alienee of the husband. The wife had joined in the deed of alienation, and the case turned upon the validity of the following acknowledgment:</p> <p>“ Before the undersigned, within and for the same county, personally appeared David Brown, and Catharine Brown, his wife, who being made acquainted with the contents, and being examined, separate and apart, the wife from the husband, acknowledge the above indenture to be their voluntary act and deed, for the uses and purposes therein mentioned.”</p> <p>The case was adjourned here for decision from Hamilton county.</p>

*This cause was adjourned here for decision from Pickaway county. It was a bill in chancery, and the object was to obtain the true construction of a will.

<p>This was an action of debt for moneys paid in support of a pauper, and was brought for the purpose of obtaining an adjudication, which of the townships were chargeable with the support of the pauper. It was an amicable suit and was prosecuted upon an agreed case, and adjourned for decision here, by the Supreme Court,, sitting in Harrison county.</p> <p>The material facts are as follows: Previous to the year 1821^ the pauper resided with her father in Wayne township, Jefferson county, and had obtained a legal residence there. In April, 1821, her father removed and settled in Stock township, Harrison county, and carried the pauper with him. On July 10, 1821, the overseers of the poor of Stock township warned the pauper to depart, which warning was repeated on June 8, 1822, and December 14, 1823, and again within one year from the last warning. On October 8, 1825, the overseers of the poor of Stock township transported the pauper to Wayne township, and left her there; when, by order of the trustees of Wayne township, she was sent back to Stock, and again, on the 31st of October, sent by the trustees of Stock to Wayne, where she had since been supported; and this action was instituted to recover the money expended in her support, and to decide upon which township she was chargeable.</p>

This was a bill in chancery by a junior patentee against one in possession, under an elder patent, to obtain title and possession of certain lands in Pickaway county. The case' involved many important questions connected with the construction of a series of entries. It was adjourned here for decision from the county of Pickaway, and very elaborately argued by Leonard, for the complainant, and Scott, Grimke, and Murphy, for the defendants.

This cause, came before the court upon a motion for a new trial, made by the plaintiff in an action of ejectment, and was adjourned from Eranklin county. The plaintiff claimed title as heir at law, under his father, G-. W. Allen, who deduced title from John Allen. The defendant, to protect his possession, gave in evidence a deed of mortgage from the executor of Gr.

This cause was adjourned from the Supreme Court of Greene county.

This cause was adjourned for decision here by the Supreme Court, sitting in Franklin-county, and came up for decision upon ■the cause of action set out in the declaration. It was an action of covenant, and the breach alleged in the declaration was that of the covenant of seizin, without alleging any eviction, or specifying any damage sustained by the intestate, in consequence of the alleged defect of title.

This was an action of debt upon a bond given to perfect an appeal from the court of common pleas to the Supreme Court. The declaration recited the condition of the bond, and set-out, that upon the appeal in the original case, judgment was rendered for the appellee for a specific sum, which remained unpaid.

This was an action of debt upon an administration bond. The plaintiffs set out in their declaration all the proper facts, showing the granting of letters of administration, and executing the bond, by the defendant’s testator, as security for the administration.

This cause came before the court upon a writ of error to the court of common pleas, and was argued by Orris Parish, for plaintiff in error. The case is fully stated in the opinion of the court, by Judge Burnet.

This cause was adjourned for decision here by the Supreme Court of Ross county. It was elaborately argued by Leonard, for the plaintiff, and Scott'and Sills, for the defendants. The case being fully stated, and the arguments of counsel and authorities cited noticed in the opinion of the court, it is conceived unnecessary to swell the report with anything more than that opinion.

This was an action of ejectment, to recover lot No. 110, in the town of Hamilton, Butler county.

<p>Tried before Judges Hitchcock and Burnet, in Montgomery county, 1827.</p> <p>This was an action of debt. The declaration contained a count on a recognizance of bail, and also a count on a bond. To the first count, there was no defense. As to the second count, the defendant relied on a proviso contained in the condition of the bond.</p> <p>The facts were these: One Crocket took a lease on part of the school section, and to secure the performance of his covenants, gave a bond, with the defendant, Miller, as his security. The condition of the bond contained a proviso, that if the lessee should complete the improvements required by the lease, within the period of four years, then, and in that case, the defendant, Miller, should be bound for the rent of the first year only. The suit on the bond was brought to recover the rent for the second, third, and fourth years. The recognizance was given for the rent of the first year. *The plaintiffs gave in evidence the recognizance of bail, to support their first count, and the bond to support the second. The defendant then proved that after the expiration of the lease, the rent not being paid, the trustees proceeded, according to the provisions of the statute, to dispossess the lessee, which was done before the expiration of the term of four years, allowed for the completion of the improvements. He then'called a number of witnesses, for the purpose of showing that the improvements were completed by Crocket before he was dispossessed; on which a question arose whether the evidence was not superfluous, on the ground that, as by the terms of the contract, the defendant was to be discharged from his liability, provided the improvements were made by the lessee within the term of four years, and as the plaintiffs had dispossessed him before the expiration of the time, they could not be allowed to exact from the defendant the penalty of a non-performance, admitting that the improvements had not been made.</p>

Before Judges Burnet and Sherman, in Butler county, 1827. This case was submitted, on a statement of facts, agreed to by the parties, from which it appears, that in 1817, the plaintiff recovered certain premises in an action of ejectment, against John N. Cumming, since deceased. In 1823, McBride administered on the estate of Cumming, and in 1824, the present action of assumpsit was brought against McBride, as administrator of Cumming, to recover the mesne profits.

Before Judges Burnet and Sherman, in Warren county, 1827. A motion was made in the court of common pleas to make a ¡submission a rule of court. The motion was overruled and judg.rnent entered against the applicant for cost. A bill of exceptions was taken to the opinion of the court, and a writ of error brought .to reverse the judgment. The errors assigned are : First. The court ought to have made the submission a rule. Second.

Heard before Judges Burnet and Sherman, in Brown county, 1827. The complainant charges in his bill, that in March, 1826, he gave his promissory note to his father, for one hundred dollars, payable in July, 1812, for the purchase money of fifteen acres of land. That in 1819, he purchased of his father a wagon, and gave his note for the further sum of seventy dollars.

<p>This cause came before Judges Burnet and Sherman, in Scioto county, 1827, on a certiorari to the common pleas.</p> <p>It appears from a bill of exceptions attached to the record that a motion had been made to set aside a levy made by a constable on a horse, saddle, and bridle, the property of Bliss, on the ground that he was a private in a company of cavalry, organized under the laws of the state, and that the articles levied on were, by law, exempt from execution.</p> <p>The court below refused the motion, and allowed a bill of exceptions.</p>

Tried before Judges Burnet and Sherman, in Clermont .county, 1827. This was an action of slander. The words laid in the declaration are: You are a thief; you have stolen geeso. The defendant pleaded the general issue, and at the trial offered to prove, in mitigation of damage, that the plaintiff had driven away from one Benjamin Wilson a flock of geese belonging to said Wilson. This evidence was objected to and overruled.

<p>Tried before Judges Hitohco.ok and Burnet, in Miami county, 1827.</p> <p>This case was brought up by writ of error. It appeared, from the record, that the plaintiff below commenced his action, as assignee of a promissory note, before a justice of the peace. The cause was appealed to the common pleas. The plaintiff declared in the commpn form, and the defendant pleaded the general issue, without notice.</p> <p>At the trial, the defend an ^attempted to prove a former recovery, and for that purpose, offered parol testimony to establish the following facts: that before the commencement of the present suit, an action had been brought .before a justice of the peace, and a judgment rendered an the same note, and that the docket of the magistrate containing the judgment had been lost or mislaid. The evidence was objected to, overruled, and a bill of exceptions taken.</p> <p>The error relied on, was the rejection of the evidence stated in the bill.</p>

<p>Points ruled as -to judgments, executions, and levy, in ejectment, for real estate sold by sheriff, and possession given to the purchaser.</p>

<p>Tried before Judges Burnet and Sherman, in Scioto county, 1827.</p> <p>This was an action of slander, in which the plaintiff obtained a verdict and judgment in the common pleas. The defendant gave notice of an appeal, and perfected the appeal bond within the time ■directed by the statute, and died before the return of the transcript to this court.</p>

Heard before Judges Hitchcock and Burnet, in Montgomery county, 1827. This bill was filed for the purpose of compelling payment of a balance claimed to be due on the partnership accounts between the late firms of Sutherland & Brown, and of McCullom, Butler, & Landon. The account of Sutherland & Brown, on the dissolution of their partnership, had been assigned to Brown.

Beeore Judges Burnet and Sherman, in Adams county, 1827. This was an appeal from a decision of the court of common pleas, on an application for the redemption of land sold for taxes. The appellee moved to dismiss the appeal for want of jurisdiction.

Heard before Judges Burnet and Sherman, in Brown county,. 1827. t-, The complainant states in his bill, that, in February, 1823, he-, made his note to the defendant, Hughes, for one hundred dollars,, payable in twelve months, either in legal claims on the said Hughes, or in produce; that before the note became due, he purchased a note, given by said Hughes to one Walker, for one hundred dollars, payable in August, 1823, *for the purpose of discharging his own note, and…

Heard before Judges Burnet and Sherman, in Brown county, 1827. The bill states that the complainants joined in a title bond to Ewing, as the securities of one Foot, for the conveyance of a tract of land. They had no interest in the transaction. Foot failed to convey the land. Ewing brought suit, and obtained a judgment for one hundred and ninety-two dollars and fifty cents. Execution was taken on the judgment, and levied on some personal property belonging to Foot.

Before Judges Burnet and Sherman, in Warren county, 1827, The parties agreed to dispense with a jury, and the cause was. submitted to the court on the testimony.

<p>Payment of a note can not be avoided in a suit at law by way of defense, upon the ground of fraud, unless the fraud goes to the whole consideration.</p>

Tried before Judges Hitchcock and Burnet, in Shelby county, 1827. This was an action of slander, brought to issue in the common pleas, and then submitted to arbitration. Bonds were executed in conformity with the statute, by which the submission was to be made a rule of the court of common pleas.

<p>Bill in chancery can not be sustained to subject moneys owned by one or two partners to pay partnership debt, until the partnership estate liable to execution is exhausted.</p>

Before Judges Burnet and Sherman, in Clermont county, 1827. This case was certified from the common pleas, on the ground that the associate judges wore citizens of Clermont county, and as such interested in the event o,f the suit.

<p>Case made in hill, and denied in answer by administrators of intestate, must be made out by proof.</p>

Heard before Judges Hitchcock, and Burnet, in Montgomery county, 1827. The bill charges, that Waggoner has received a judgment against Speck, in the common pleas of Montgomery county. That he holds another judgment against Speck by assignment. That no property can be found, on which the ^executions on those judgments can be levied.

<p>Before Judges Burnet and Sherman, in Brown county, 1827.</p> <p>This was a writ of error to reverse a judgment rendered in the common pleas. It appeared from the record, that the plaintiff below brought an action of assumpsit for uso and occupation. The defendant pleaded the general issue, with notice that he would offer evidence to prove that the premises for which the rent was claimed were not the property of the plaintiff. At the trial, the plaintiff proved that he leased the property to the defendant for one year, for twenty dollars ; that at the time of the agreement, there was a conversation on the subject of continuing the lease for a longer term; that the defendant took possession in 1820, under the above renting, and has continued to occupy the premises ever since; and that the plaintiff had been in the habit of leasing the same premises to different persons, for fifteen or twenty years.</p> <p>The defendant, under his plea and notice, offered in evidence a grant of the premises to C. Wallace, made in 1824, and a sale from Wallace to himself. This testimony was objected to, and overruled.</p> <p>The defendant then moved for a nonsuit, on the ground that the contract was void, under the statute against frauds and perjuries, which was overruled.</p> <p>He then moved the court to instruct the jury that the case was within that statute, which was also refused, and bills of exception were taken. A verdict and judgment were rendered for the plaintiff, and a writ of error taken to reverse it, on the matters stated in the bills.</p>

Before Judges Burnet and Sherman, in Brown county. This case was brought before the court at the last term, by appeal. The appeal was dismissed, on the ground that the statute, under which the order was made, did not authorize such a proceeding, and that the right of appeal given by the practice act, was confined to adversary proceedings, conducted according to the course of the common law, and did not extend to summary proceedings authorized by particular statutes.

<p>This was a scire facias, to revive and have execution of a judgment recovered by the plaintiff, against the defendant, in the court of common pleas of Belmont county, at December term, 1813. The scire facias recited, that at the December term, 1813, a judgment was recovered against Anthony Weyer, then sheriff of Belmont county, upon a motion to amerce, at the suit of Sterling Johnson, for not.collecting and paying the amount of an execution put into his hands, at the suit of Johnson v. Zane. The scire facias then proceeded to recite, that at the same term the said sheriff “ obtained a judgment against Samuel Zane and Elisha Woods, the substance of which judgment is as follows, to wit: Upon a forthcoming bond, for the delivery of property to satisfy an execution against Samuel Zane, in favor of Sterling Johnson, for the sum of two hundred and fifty-four dollars and seventy-nine cents, with interest from August 19, 1813. And on motion of the plaintiff by his attorney, and it appearing to the court, that the plaintiff had this day been amerced in consequence of the defendants failing to deliver the property they had bound themselves to do, to satisfy the execution aforesaid, whereupon it is ordered and ^adjudged by the court, that the plaintiff recover of the defendants the sum of five hundred and ten dollars, in damages, and his costs about his suit expended, which judgment is this day rendered for the plaintiff’s security, in consequence of being amerced, and is to be satisfied by the payment of the sum the plaintiff is amerced in.” The scire facias proceeded to suggest, that Woods was deceased, and that the amount of the judgment on amercement v. Weyer remained unpaid, and prayed that Zane might be summoned, to show cause why the judgment should not be revived and execution had against him.</p> <p>The defendant demurred generally to the scire facias, and pleaded other pleas. In the court of common pleas, judgment was given for the defendant. The plaintiff appealed to the Supreme Court, and the case was adjourned here upon the question on the demurrer alone.</p>

This cause was adjourued from the county of Knox, and came up for decision on a motion for a now trial, made on behalf of the defendant. It was an action upon the case against the defendant, as the indorser of a promissory note, made to Lybrand by Richard Ware, dated Philadelphia, August 4, 1818, payable twelve months after date, and indorsed by the defendant to the plaintiff before it became due.

This was an action of trespass for breaking and entering the plaintiff’s close, and was adjourned here for decision from the •county of Trumbull, upon a special case. The plaintiff was executrix of the last will of N. G-. Dabney, deceased, which had been duly proven and recorded, and the executrix had excepted the trust under it, and qualified.

<p>Person entering into land under color of title, paying taxes and making improvements, as owner, being ejected at law, can not sustain a bill in equity for compensation and reimbursement against the rightful owner.</p>

This cause was adjourned here for decision, from the Supreme Court, in the county of Cuyahoga. It was a bill in equity, praying the specific performance of a contract for the sale and conveyance of a lot of ground in the city of Cleveland.

<p>. A decree in chancery, for the conveyance of land, if a deed be not executed within the time limited, operates as a conveyance, subject, as between the parties, to a revesting of the title, by a reversal of that decree.</p> <p>.A party having title to land under a decree in chancery, conveys in good faith, before citation on error is served, a reversal of the decree does not divest the purchaser’s title.</p>

This cause was adjourned for decision here, from the county of Butler. It was*a bill, of review prosecuted to reverse a decree obtained against the complainants by the defendants in the court of common pleas of Butler county. The bill of review was filed in the common pleas, and certified to the Supreme Court for decision, in consequence of the incompetency of the court of common pleas to try it, two judges of that court being interested in the cause.

<p>This was originally an application to the court of common pleas of Montgomery county, to distribute moneys made upon execution by the sheriff among different claimants. It was brought before this court by certiorari, and adjourned here for decision from, the Supreme Court sitting in Montgomery county. The case was this:</p> <p>At February term, 1823, Andrew Staley obtained judgment against Daniel Yount for five hundred and five dollars and fifty-four cents, debt and costs. Fi. fa. issued March, 1823, and returned stayed, by plaintiff’s order, and was regularly issued to each succeeding term, and returned in the same manner, until March, 1825, when it was returned levied upon various chattels, and on a writ of vendi. ex. to June, 1825, one hundred and forty-nine dollars and sixty-two cents was returned made. A new writ of fi. fa. was issued to November, 1825, March and July, 1826, returned nothing found; and upon a writ issued November; 1826, a levy was made upon lands, out of which the money in the sheriff’s hands was made.</p> <p>David Halloway, at March term, 1824, recovered two thousand one hundred and forty-eight dollars and ninety cents, against the same debtor. A fi.fa. issued November, 1824, was levied upon real estate, which was valued, and the writ returned not sold for want of bidders. A vendi. issued to May term, 1825, was returned with the same indorsement. At the same term the valuations were set aside, and a new valuation ordered, which was had upon a vendi. issued to October term, 1825, and a return indorsed of one thou.sand six hundred and seventy-nine dollars and twenty cents, made by a sale of the property, which sale was confirmed by the court. New writs of fi. fa. were issued to May- and September terms, 1826, and returned nothing found. A writ, dated October, 1826, was levied on the property, which was sold for the money in the sheriff’s hands to be distributed.</p> <p>At November, 1824, James Mendenhall recovered a judgment against Yount for two hundred and twenty-four dollars and *fifty cents, debt and costs. In J une, 1825, fi.fa. issued, returned to November term, levied on a lot of land, and sold for twenty-three dollars, and nothing found to levy further. Similar and successive writs were issued to all the terms in 1826, and returned in the same manner. A fi. fa. issued October, 1826, was levied upon the same land with the other writs enumerated, and a part of the money was claimed to satisfy this judgment also.</p> <p>October term, 1826, Dodd and Parkinson recovered a judgment against the same debtor, for one hundred and thirty-eight dollars and twelve cents, debt and costs. A writ of fi.fa. was issued to the first term in 1826, and returned nothing found. Another writ of ft. fa. was issued in October, 1826, which was levied on the same property, and claimed also to be paid out of proceeds of the sale.</p> <p>At February term, 1826, the executors of Waymire obtained their judgment for one hundred and fifty-five dollars and thirty-two cents. Execution issued to May and September terms of the same year, and returned nothing found. Another ft. fa. issued in October, and was levied as the others, and the proceeds claimed as in the other cases. All these latter writs were dated on the same day, October 26, 18.26, but that in favor of Halloway, was first put into the hands of the sheriff.</p>

This cause came before the court upon a writ of error, and was adjourned here for decision from Jackson county. In the original suit, J. and A. Patterson declared upon a note in writing, in these words: “That the defendant on August 30, 1818, by his note in writing, of that date duly executed, promised in ninety days after date to pay to the plaintiffs fifty-three dollars, without defalcation,” as by said note to the court shown appears.

<p>Bill in chancery to obtain a perpetual injunction against collecting a tax assessed in the ordinary way, and unaccompanied by any circumstances of peculiar injury, can not be sustained, even if the law authorizing the tax is unconstitutional.</p>

This was an action of trespass, assault and battery, and false imprisonment. On the trial the jury found a verdict for the plaintiff, and assessed his damages to one dollar and seventeen and a half cents. The trial was had before the Supreme Court in Champaign county. Theplaintiff moved for judgment for costs, and the motion was adjourned to be decided by the court in special session.

<p>Writ of certiorari lies from the Supreme Court direct to inferior jurisdictions, hut will he sustained only in extraordinary oases.</p> <p>Order for opening a county road forty feet in width is erroneous, the law directing that it must he opened sixty feet.</p>

This was a writ of error adjourned here for decision from the county of Fairfield. The case was this: The defendant in error commenced a suit against the plantiff in error, before a justice of the peace. After the suit was commenced, the defendant in that suit tendered to the plaintiff one dollar and fifty cents, with the costs that had accrued.

<p>This cause was adjourned here from the county of Washington. £t was an action of debt, and the declaration contained three counts. One for money had and received of the plaintiff’s testator in his lifetime; one upon an account stated with the plaintiff’s testator in his lifetime; and one for money had and received for the use of the plaintiffs as executors. The two first counts alleged the money to have been due May 1,1813; the third laid it to have been due December 1, 1820. The writ is dated October 31, 1826. The defendants pleaded sevei'al pleas, and amongst them, the statute of limitations, to which the plaintiffs demurred. The demurrers were sustained in the court of common pleas, and the case taken to the Supreme Court by appeal.</p>

This cause came before the court upon a motion for a now*trial, made by the plaintiff, the decision of which motion was adjourned here from Hamilton county.

<p>This cause came before the court upon a writ of error, to the court of common pleas of Lawrence county, and was adjourned here for decision. It was an action for defamatory words, in which the defendant in error was plaintiff. The declaration commenced with the usual recitals, and proceeded to state the defamatory words as follow, alleging that the defendant “ spoke and published of and concerning the plaintiff, in substance, the following false, scandalous, and defamatoiy words: that is to say,” — setting out the words spoken — “ and the said Solomon of his .further malice did then and there, in presence of divers good people, falsely and maliciously speak, publish, and declare, of and concerning the plaintiff, in substance, that she was, etc.” — again setting out the-words used. In this manner five different sets of words were enumerated, as for one count. There was a second count, which was withdrawn, or a nolle prosequi entered upon it, before trial. There was then a third count, containing four different specifications of words, in different terms, but charged in the same manner as in the first count. Plea, “ not guilty.” General verdict for the plaintiff;* damages ^eleven hundred ninety-five dollars. Motion fora new trial overruled. Motion in arrest of judgment also overruled. Judgment for plaintiff, and writ of error.</p> <p>Two errors were assigned and relied on: 1. That it was not sufficient to set forth the substance of the words. 2. That each set of words constituted a separate count; and some of the sets, taken, separately, were not actionable.</p>

<p>Where process is issued against several defendants, and is served upon part only, and returned not served as to others, the attorney employed by those served with process enters an appearance for all, and judgment against all, without the knowledge of the defendants not served: Held, that in a bill for contribution by those served, the others are not concluded by the judgment.</p> <p>'The attorney in such case is a competent witness in a suit for contribution between the co-defendants.</p>

This cause came before the court by an appeal on behalf of the defendants, from a decree against them in the court of common pleas, and was adjourned here for decision from Jefferson county. It was a suit in chancery between the members of “ The Steuben-ville Manufacturing Company,” the object of which was to settle and adjust the rights and liabilities of the members, and close its concerns.

<p>On injunction to stay execution after levy on chattels, sheriff bound to restore chattels levied on to the owner.</p> <p>Where sheriff sells land on execution, and purchaser refuses to pay money, the sheriff is not bound to make himself liable, and sue purchaser.</p> <p>Before the law of 1824, assignment of a lease tested by one witness was good.</p> <p>Party putting a witness upon his voir dire as to interest, can not afterward except to him.</p> <p>Leases between individuals for ninety-nine years may be sold in execution as chattels.</p>

This cause was adjourned here for decision, from the Supreme Court of Hamilton county. It was an ejectment, and came before the court upon a case agreed. The lessor of the plaintiff claimed under the devisees of Luther Kitchel, deceased, who died in Hamilton county, in the year 1805, having made a last will and appointed W. Brown and P. Kitchel his executors. The will was duly proved and the executors qualified.

<p>This cause came before the court, by adjournment from Knox-county. It was an action of debt against Coleriek, who had been sheriff, and his securities. The declaration was on the obligatory part of the bond. Plea, conditions performed. Replication setting out a judgment against Coleriek, as sheriff, at the suit of the plaintiffs, for a false return on an execution sued out by them, upon a judgment in their favor, and put into his hands to be executed. To .this replication the defendants, demurred. Upon argument, the court overruled the demurrer, and neither party demanding a jury, proceeded to assess the damages, in doing which, no evidence was offered or given but the record of the judgment against the sheriff. The defendants moved for a new assessment of the damages, upon the ground that this evidence was not admissible. And this question was adjourned here for decision.</p>

This cause was adjourned hero for decision, from the county of Clermont. It was a bill in chancery, making the following ease: Allen, the defendant, became insolvent in the State of Pennsylvania, and, in taking the benefit of the insolvent law of that state, made an assignment to the complainants, as trustees, of all his property, both real and personal. Among the property surrendered, in his schedule, was a tract of land in Clermont county, Ohio.

This cause was adjourned here for decision from the county of Brown. It was a bill in chancery to obtain from the defendant-the legal title to a tract of land, upon the ground that the complainant owned the superior equity, although the defendant had obtained the eldest patent. The facts, as they were made out in evidence, were as follow: The complainant claims under an entry made in the name of Josiah Parker, on January 11, 1788.

This was a writ of error brought to reverse the judgment of the court of common pleas of Sandusky county, and adjouimed here for decision. The plaintiff in error was the plaintiff in the original suit, which was an action on the case for erecting a dam over the Sandusky river, and flowing back the water in the bed of the river upon the plaintiff. At the trial the plaintiff proved that he owned certain lands bounded by the river and situate on its western bank.

<p>This was a bill in chancery, brought to compel the assignment of thirty-five shares of stock in the Zanesville Canal and Manufacturing Company, which the complainants claim under the will' of John M’lntire, deceased. The bill states that M’lntire in his-will devised to the complainant Sarah one-half of the personal property of which he should die possessed, except his clock, and directed that the personal property should be valued by three men chosen for that purpose by his executors ; and that the will further directed that the said Sarah should make choice of the same if she thought proper, if not, that the whole should be sold and one-half the proceeds paid to her.</p> <p>The bill alleged the decease of M’lntire, the proof of the *will, and the qualification of the executors, and their taking upon them the execution of the will, and obtaining possession of' his entire estate. It claimed that the complainant, Sarah, was entitled to one-half of the seventy shares of stock owned by J. MTntire, in the stock of the Zanesville Canal and Manufacturing Company, and prayed a decree that the executors transfer it to-them, the said Sarah having since intermarried with the complainant David.</p> <p>The answer admitted the will, the devise, and that they took upon, themselves the executorship, and received a large amount of property, and submitted to the court, upon a case stated, whether the complainants were or were not entitled to a transfer of the stock.</p> <p>The facts of the case, as agreed by the parties, were as follows: MTntire owned a tract ofland which he agreed to sell to the company for stock. The stock agreed upon as the capital of the company was seventy thousand dollars, tobe divided into one hundred and forty shares, of five' hundred dollars each. Of these shares seventy were subscribed by MTntire, to be paid in the land. The other seventy were subscribed by others, to be paid in money. The agreement was that M’lntire’s shares should draw dividends only upon so much of each as should be actually paid in upon each of the other shares. That so soon as the other shareholders should pay in the one-half of their shares, and give security for the payment of the residue, MTntire should convey to the company the land sold, with the entire privileges of the water. Under this contract the company took possession of the ground, and commenced their works, in the lifetime of MTntire, but did not entitle themselves to a conveyance until long since his death. The conveyance has been made by the executors. The complainant, Sarah, who was the wife of MTntire, agreed to take under the will, and received one-half the personal estate, except this stock, agreeably to the directions of the will.</p> <p>The material provisions of- the will are these :</p> <p>“ In lieu of my wife’s full dower at law, I give, devise, and bequeath to her, absolutely, the one-half of all the personal property I may dispossessed of, except .my clock, which is not to be sold, but remain in my dwelling house so long as it shall go.” “ All my personal property is first to be valued by three men, chosen by my executors. Then my wife Sarah is to make her choice of the one-half, or should she not take the one-half, the residue is to be sold, and she is to get the money arising from the sale.”</p> <p>*The use of the mansion house is then given to his wife, and the executors are authorized to sell certain lands and pay his debts with the proceeds. Then the will proceeds:</p> <p>“ After which debts are paid, my executors are to pay to my wife, Sarah, annually during her life, the one-half of the rents, interests, and profits of all my estate, both real and personal.” “ The money arising from the sale of my real and personal estate, after the payment of my debts, as aforesaid, is to bo by my executors vested in stock in the Zanesville Canal and Manufacturing Company.” Some legacies excepted.</p> <p>Directions are then given for the sale of real estate, after the death of his wife, and investing the money in canal stock, “As my other money is ordered to be invested.” And the will proceeds:</p> <p>“I give and bequeath to my daughter, Amelia M’lntire, at the death of my wife, my mansion-house, with the premises before described, provided she leaves heirs of her body. Also, I give and bequeath to her and the heirs of her body, and their heirs forever, all the rents, issues, interest, and profits of all my Zanesville Canal and Manufacturing Company stock, which are to be paid to her annually, during her life, by the president and directors of said company, on her own personal application and no otherwise. She is not at liberty to sell, under the pain of forfeiture, any part of said stock, nor is the same ever to be liable for the payment of her debts which she may contract, or which her husband, should she marry, may contract. Should she leave an heir, or heirs of her body, then at her death the house aforesaid to be vested in them, in fee simple, and Aim the stock aforesaid, to do with as they may think proper.”</p>

This cause came before the court, by adjournment from the county of Hamilton. It was a bill in chancery, under section 59 of the law “directing the mode of proceeding in chancery.” The Miami Bank was the principal debtor, and the object of the bill was to subject certain debtors of the bank to the payment of the money due the complainants. Their whole claim, when the bill was filed, amounted to about thirteen thousand dollars.

This was an action of debt upon a bond-given by the defendant, Sherman, as commissioner of insolvents, and by the other defend* ants, as his sureties.

<p>Assumpsit can not be maintained on an award, made in pursuance of a submission by covenant under seal.</p>

This case was adjourned here for decision, from the Supreme Court in Hamilton county. Ic was a bill in equity, to which the defendants demurred generally. The material facts, alleged in the bill, were as follow : At December term, 1814, of the common pleas of Hamilton county, the Miami Bank obtained judgment against Hopkins and Halley for one thousand five hundred dollars.

<p>This cause was adjourned here for decision from Athens county. It was a bill in chancery, the-object of which was to obtain a new trial in a case where judgment had been rendered against the complainant here, who was defendant at law.</p> <p>The bill states that the defendant, John Porter, of Athens county, in April, 182-1, commenced an action of trover, before a justice of the peace in Athens county, against Amos Thompson, Joseph McMahon, and the complainant. No notice was given to the complainant, by summons or otherwise, of the-pendency of the suit. The case was afterward appealed, and at the trial term a judgment had against the complainant alone, for fifty-nine dollars damages, and forty-seven ^dollars and eighty-one cents, costs of suit. This was at the September term, 1824, of the common pleas for Athens county. Execution issued upon, this judgment against complainant to the sheriff of Licking county, Ohio; twenty-four dollars made, January, 1825, by sale of his personal property. That complainant was resident in Licking county during the pendency of suit, had no notice of it, and was never served with process. An attorney at law, who was employed by the other defendants, but not by complainant, filed a plea for complainant through mistake. That complainant has a meritorious defense to the action. Prayer for a return of the money made, perpetual injunction-of the judgment, and for general relief.</p> <p>To this bill there is a demurrer.</p>

<p>It is a general principle that courts of equity may supply defects in the execution of a power, where the original contract was fair, and the power fairly given.</p> <p>The purchaser under a judgment is entitled to stand in the place of the judgment creditor, and is invested with all Ms rights against the judgment debtor, and those claiming under him.</p> <p>Conveyance by a debtor of his whole estate, whilst a suit is pending against him, is not a fraud per se, but, so far as it is a badge of fraud, may be explained and justified by proof.</p> <p>The vendor retaining possession of real estate sold, and deed executed and recorded, upon a verbal understanding with the purchaser to pay rent, is not fraudulent per se against creditors.</p> <p>A stipulation that the vendor of lands will repurchase at the same price, within twelve months, at the option of the purchaser, is not evidence of a secret trust for the benefit of the vendor.</p> <p>Where a debtor before judgment makes a bona fide sale of lands, and executes a defective conveyance, the equity of the purchaser is superior to that of the judgment creditor, and a court of chancery will compel the judgment creditor, if he obtain the legal title under his judgment, to convey to the purchaser.</p>

*This cause was adjourned here for decision from Hamilton county. The case is sufficiently stated in the opinion of the court.. It was argued by Garrard, Hammond, and Storer, for the complainants, and by Fox, Caswell, and Starr, and N. Wright, for the-respondents. The court having embodied a brief notice of the arguments in the opinion, they are omitted.

<p>This cause was adjourned here for decision by the Supreme Court of Hamilton county. It was an action of ejectment, brought by the heirs of Israel Ludlow, deceased, to recover part of lot No. 103, in the city of Cincinnati. The plaintiffs claimed as heirs at law of Israel Ludlow, and upon the trial of the cause, they showed that he was seized of the premises in fee, by a deed dated August 21, 1795, from John C. Symmes, the patentee; that he died intestate January 21, 1804, leaving the plaintiffs his heirs at law ; that at the time of his death they were all minors, and remained under that disability until a few years since.</p> <p>The defendants, to support their possession, showed that on Fedruary 2, 1804, letters of administration were granted on the estate of Israel Ludlow to James Findlay, John Ludlow, Sineas Pearson, and Charlotte O. Ludlow. They then offered, in evidence, a deed from the administrators to Andrew Dunseth, under whom they claim title, and in connection with the deed, transcripts of the following order of the court of common pleas of Hamilton county and State of Ohio, made May term, 1804: “Administrators of Israel Ludlow, deceased, exhibit an account current of said estate. John Ludlow and James Findlay, two of the administrators sworn, and pray an order to sell the real estate to satisfy the debts, etc. Court grant the prayer of the administrators, excepting and reserving the farm and improved lands at Cincinnati, together with the houses and lots in Cincinnati.” And the following order, made at August term, 1805 : “ On the application of the administrators of Israel Ludlow, deceased, to extend the order of the sale of the real estate to discharge the debts of the deceased, the court authorize the administrators to sell the house and lots in Cincinnati, and any other property except the mansion house and farm in the country, so that the whole does not amount to more than ten thousand dollars. This order to he considered of May term.”</p> <p>*The counsel for the defendant also gave in evidence the testimony of two of the persons who were judges of the court of common pleas of Hamilton connty, in August, 1805, who testified that at May term, 1805, a parol application was made to extend the order for the salo of Ludlow’s real estate, and the court directed the order to be recorded, but it was entirely omitted, and for this reason the order was made nunc pro tune, at August term following.</p> <p>The counsel for the plaintiffs objected to the deed and orders going in evidence to the jury. The court sustained their objections and overruled the testimony; a verdict was returned for the plaintiffs, subject to the opinion of the court, upon a motion for a new trial.</p>