Volume 3 — Ohio State Reports, New Series

Bill in chancery. Reserved in the comity of Franklin. The bill was in substance as follows: That the Exchange Bank -of Columbus was duly organized as a banking corporation, in the ■year 1845, under the provision of the act passed February 24,1845, ■entitled “ an act to incorporate the State Bank of Ohio, and other Ibanking companies,” and became a branch of the State Bank, located at Columbus, and has ever since kept up its organization, and tcomplied with all the…

67] *This is a petition, in error, filed in the ¡Supreme Court, by leave of one of the judges thereof. The transcript attached, on which the errors are assigned, is of the record of a judgment rendered by the court of common pleas for Hamilton county, in favor of the defendants, upon an agreed case, submitted by the parties to that court for determination and judgment, in pursuance to section 495 of the code of civil procedure.

Petition for dower. Reserved for decision here by the district court of Hamilton county. The petitioner asks for the assignment of dower in lot number eight in Carter, Goodin & Gwynne’s subdivision in the city of Cincinnati. It appears that Ephraim Carter intermarried with complainant in 1808, and died in 1848.

*Writ of error. Reserved in the district court of Lorain [81 county. The plaintiffs, Hugh Slater and Tersah Ann, his wife, instituted an action of trespass for mesne profits, against the defendant, in the court of common pleas of Lorain county, and declared in the right of the wife to the rents, issues, and profits of certain lands, in said county, while she, said Tersah, was a feme sole.

Writ of error to the court of common pleas of Montgomery county. The facts of this ease will appear in the opinion of the court.

Writ of error to the court of common pleas of Summit county. The facts and questions in the case appear in the opinion of the court.

<p>The act of February 26, 1840, “providing for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name,” is a constitutional and valid'enactment.</p> <p>When the remedy is pursued against the craft by name, the proceeding is in rent, and no other notice need be given than that arising from its seizure. The cases to which the'act extends are not of exclusive admiralty and maritime cognizance, but those over which the courts of admiralty and common-law courts of the state have concurrent jurisdiction.</p> <p>In such cases, the court first acquiring jurisdiction, by a seizure of the thing in controversy, withdraws it from the jurisdiction of the other; and it can not be taken from the custody of the law by process issuing from any other court.</p> <p>Process issued upon proceedings instituted in admiralty for the recovery of seamen’s wages, is no exception to this rule — ’especially when the court having the vessel in custody is competent to recognize and enforce his paramount lien.</p> <p>The sheriff or other officer having the vessel in custody, under the state law, is under no obligation, and has no right, to surrender it to the marshal upon such process; and, if he does so, is liable to the creditor in the state court.</p>

Bill of review, reserved in Summit county. The object of the bill is to reverse a decree of the court of common pleas for Portage county, to which the case had been certified from Trumbull county. The original bill was filed by Ruell Miller, Levi Sutliff, and Calvin G-. Sutliff, against Garry Lewis, Daniel Gilbert, and others.

The action below was ejectment. The plaintiff in that action bav155] ing made a prima facie ease, the defendant offered *in evidence a deed from Eachel Moore, one of the lessors of the plaintiff, dated June 9, 1852.

<p>A bona ¿fide holder of negotiable paper, received by indorsement or other proper mode of transfer, before due, for a valuable consideration, is protected against the defense which the maker might have against the original payee; yet, in this case, as in every other, it is the duty of every person to use ordinary care and prudence in his transactions to prevent their operating to the prejudice of others.</p> <p>Whatever may be the rule, where no fraud is shown to have been perpetrated on the maker by the original holder, in transferring the note, in a case which shows that the transfer, on the part of the first holder, was a positive fraud, it lies on the party claiming under such transaction to show that he acted honestly, without knowledge of the fraud.</p>

<p>Whatever may formerly and elsewhere have been the the necessity for resistance to an officer, in certain cases, there is, at this day, and in this country, no want of the peaceful protection of property against a seizure, made in good faith by one clothed with public power, and subject to public responsibility. Nor is there any'want of quiet, safe, and sure means to recover it when so taken.</p> <p>Whenever the question of property is so far doubtful, that the creditor and officer may be supposed to act, and-do in truth act, without wantonness, carelessness, or oppression, but in good faith, and on reasonable grounds for believing the property to be that of the debtor, the owner has no right to resist the execution or attachment by a breach of the peace.</p> <p>The conversion, by a justice of the peace, of the first execution on a judgment before him, into an alias writ, by altering its date is irregular, but can not destroy the protection due to the constable to -whom it is delivered. The writ is not void.</p> <p>Whether an indictment for resisting an officer, must not set forth in words or substance, the process on which the officer acted, describe the manner of executing the writ, and of the resistance, and aver the knowledge of the defendant that the officer was such — qucere.</p>

<p>1. That there is no law in Ohio prohibiting the owners of domestic animals, consisting of cattle, horses, hogs, etc., from suffering them to run at large upon the range of uninclosed lands, except when unruly and dangerous; and that the rule of the common law of England, requiring the owners of such animals to keep them on his own land, or within inclosures, has never been in force in Ohio, being inapplicable to the circumstances, condition, and usages of the.people, and also inconsistent with the legislation of the state.</p> <p>2. The owner of such animals, in allowing them to be at large on the range of uninclosed lands, is not chargeable with an unlawful act, or an omission of ordinary care in keeping his stock, doing nothing more than that which has been customary, and, by common consent, done by the people generally, since the first settlement of the state, subject to the qualification, however, that animals which are unruly or dangerous are required to be restrained.</p> <p>S', There is no law in this state requiring any person to fence or inclose his own lands; yet the person who leaves his grounds uninclosed, takes the risk of occasional intrusions thereon, by the animals of others running at large. And the owner of such animals, in allowing them to be at large, takes the risk of their loss, or of injury to them, by unavoidable accident, from any danger into which they may happen to wander.</p> <p>4. The right of a railroad company to the free, exclusive, and unmolested use of its railroad track is nothing more than the right of every land proprietor in the actual'use and occupancy of his lands, and does not exempt the company from the duty enjoined by law upon every person, so to use his own property as not to do any unnecessary injury to another.</p> <p>5. There is no law in Ohio requiring railroad companies to fence their roads, but when they leave their roads open and uninelosed by sufficient fences and cattle-guards, they take the risk of intrusions upon their roads by animals running at large, as do other proprietors who leave their land uninclosed; so that the owner of domestic animals, in allowing them to be at large, takes the risk of their loss, or of injuiy to them by unavoidable accident; and the company, in leaving its road unprotected by an inclosure, runs the risk: of animals at large getting upon the road, without any remedy against the owner of the animals.</p> <p>6. The liability to make reparation for an injury by negligence is founded upon an original moral duty enjoined upon every person so to conduct himself, or exercise his own rights, as not to injure another.</p> <p>7. The mere fact that one person is in the wrong does not necessarily discharge another from the due observance of proper care toward him, or the duty of so exercising his own rights as not to do him any unnecessary injury.</p> <p>8. The doctrine that, in case of an injury by negligence, where the parties are mutually in fault, the injured party is not entitled to redress, is subject to Í73] '"'the following material qualifications, as appears from a review of the decisions, both in England and in this country, on this subject, to wit:</p> <p>First. The injured party, although in the fault to some extent, at the time, may,_ notwithstanding this, be entitled to reparation in damages for an injury which he has used ordinary care to avoid.</p> <p>Second. When the negligence of the defendant, in a suit upon such ground of action, is the proximate cause of the injury, but that of the plaintiff only remote, consisting of some act or omission not occurring at the time of the injury, the action is maintainable.</p> <p>Third. Where a party has iii his custody or control dangerous instruments or means of injury, and negligently places or leaves them in a situation unsafe to others, and another person, although at the time even in the commission of a trespass, or otherwise somewhat in the wrong, sustains an injury thereby, he may be entitled to redress.</p> <p>Fourth. And when the plaintiff, in the ordinary exercise of Ms own rigMs, allows his property to be in an exposed and hazardous position, and it becomes injured by the neglect of ordinary care on the part of the defendant, he is entitled to reparation on the ground that, although, in allowing his property to be exposed to danger, he took upon himself the risk of loss or injury by mere accident, he did not thereby discharge the defendant from the duty of observing ordinary care, or, in other words, voluntarily incur the risk of injury by the defendant’s negligence.</p> <p>9. Having left its railroad uninclosed through a country where domestic animals are allowed to be at large, and thus exposed to the casualties of the animals accidentally getting upon the railway track, it is the duty of the. railroad company, acting through its agents, to use at least ordinary and reasonable care and diligence to avoid unnecessary injury to -the animals, when found in the way of a train on the road.</p> <p>10. The first and paramount object of the attention of the agents of the company, is due regard for the safety of the persons and property in their charge on the train, for which they are held to a high degree of care; and so far as consistent with this paramount duty, they are bound to the exercise of what, in that peculiar business, would be ordinary and reasonable care to avoid unnecessary injury to animals casually coming upon their uninclosed road; and for any injury to animals arising from a neglect of such care, the company is liable in damages to the owner.</p>

<p>Corporations are liable for injuries arising from the negligence or carelessness of their agents and officers, in the course of their employment, in the same manner and to the same extent as private individuals.</p> <p>The common law of England, when not inconsistent with the genius and spirit of our own institutions, and thus rendered inapplicable*to our situation and circumstances, furnishes the rule of decision in the courts of this, state.</p> <p>It is a settled maxim of the common law, founded upon the highest obligations of social duty, that every one shall so use his own, and so prosecute his lawful business, as not, by his negligence or want of care, to injure others. Hence, the law exacts of him who puts a dangerous force in motion, that he shall control it with reasonable care and skill.</p> <p>He can not divest himself of this obligation by committing its control to another, but he still remains liable, upon the maxim respondeat superior, for such injuries as arise from the negligence or carelessness of his agent while engaged in the prosecution of a business.</p> <p>These principles apply where a railroad company place a brakeman in their employ under the control of the conductor, the latter having the exclusive command of the train, and the brakeman, without fault on his part, is injured by the carelessness of the conductor. In such case, the brakeman is entitled to recover of the company for the injury, the conductor being the sole and immediate representative of the company, upon, which rested the obligation to manage the train with skill and care.</p> <p>But a principal is not liable to one servant in his employ for injuries resulting from the carelessness of another servant, when both are engaged in a common service, and no power or control is given to the one over the other. They stand as equals to each other, and are alone liable for the injuries they may occasion.</p> <p>This distinction arises from the nature of the relation of master and servant, and from the express and implied obligations incident to the contract of service. As between them, the company undertakes to furnish suitable machinery and apparatus, and control it with prudence and care. The 202] ^'servant undertakes to obey and perform as he is directed — the company reserving to itself the power of control, as between it and the servant, assumes the obligation to do it with care and skill; and a failure to do so, whether arising from the fault of the corporation, or its representative appointed for the purpose, is a breach of this obligation.</p> <p>But when the failure occurs in that branch of the service committed by the principal to their subordinate servants, it is their fault, and not that of their employer, and a breach of their obligations, and not Ms; and where they enter the service with a knowledge that several are to be engaged, each takes upon himself the hazards of the employment, including that of negligence by fellow-servants, and public policy requires that they should be interested in exercising supervision over each other.</p> <p>The agent or officer intrusted with power and control over the subordinates, and the operations of the business, is not engaged in a common service with them, admitting of joint participation; nor is he, in any just sense, their fellow-servant; but their employments are separate and distinct, although both are necessary to a successful result in the business.</p> <p>The case of Stevens v. Little Miami Railroad Co., 20 Ohio, 415, examined and affirmed.</p>

<p>Error to the criminal court of Hamilton county -, reserved in the district court.</p> <p>The plaintiff in error was jointly indicted with Addison Kyle for the crime of forging an indorsement on a promissory note, by the grand jury of Hamilton county, at the February term, 1854, of the criminal court. A separate trial was granted to the plaintiff in error, on a showing for that purpose. Addison Kyle was tried, 230] convicted, and sentenced at *that term. The plaintiff in error was put on his trial at the same term, but after the jury were charged with the case, the court discharged them from its further consideration, and entered a continuance to the next term. At the April term, 1854, the plaintiff in error was again put upon his trial, and found guilty under the second- count in the indictment, and not guilty under the first count. By his counsel, he thereupon moved the court for a new trial,, and in arrest of judgment, because of the insufficiency of the indictment, because the verdict was against the evidence, and for various other reasons specifically; which motion, upon argument, was overruled. A writ of error was granted by the district court of Hamilton, county, for good cause shown, at its April term, 1854; and the ease being found to involve important and difficult questions, was reserved for decision in this court. There, are four different errors assigned upon the record:</p> <p>I. That the indictment on which the plaintiff in error was convicted is insufficient in law.</p> <p>The second count, on which alone the jury placed their verdict, is in these words:</p> <p>“ And the jurors aforesaid, on their oaths aforesaid, do further present that the said Addison Kyle and Alpheus Poage, otherwise called Alfred Poage, otherwise called Alf Poage, on the tenth day of January, in the year eighteen hundred and fifty-four, with force and arms, in the county aforesaid, had in their possession and custody, a certain other promissory note, which said last-mentioned promissory note is as follows, that is to say:</p> <p>“‘©2.95. Dry Ridge, Ky., Jan. 6, 1854.</p> <p>“ ‘ One day after date, I promise to pay to the order of George EL Calvert, eighty-two dollars 95-100 dollars, at the Value received.</p> <p>‘F. F. Nesbit.’</p> <p>They, the said Addison Kyle and Alpheus Poage, otherwise called, (etc.,) afterward to wit, on the day and year last aforesaid, at the county aforesaid, unlawfully, feloniously, did forge on the back of the said last-mentioned promissory note, a certain indorsement of the said promissory note, which said indorsement is as follows, that is to say, ‘George H. Calvert,’ with intent to defraud Fleming Faris Nesbit, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Ohio.</p> <p>“A. J. Pruden, Pros. Att’y.”</p> <p>*11. The second error assigned upon the record is, that [231 the court erred in allowing the witness, Addison Kyle, to be sworn and to testify. The ground of this assignment of error is set forth in the bill of exceptions No. 1, in these words:</p> <p>“ Be it remembered, that on the trial of this case at the April term, a. d. 1854, of the criminal court of Hamilton county, the ■State of Ohio to maintain the issue on its part, in the progress of the trial, offered as a witness in behalf of the state, the above-named Addison Kyle, who was jointly indicted in this case with the said defendant, Alpheus W. Poage; and when said witness was about to be sworn, the said defendant, Alpheus W. Poage, by his counsel, produced the records of this court showing the conviction of the said witness Kyle, at the February term, a. d. 1854, of this court, of the crime of forgery, and all other proceedings of this court, consequent thereupon, as shown by said records, a true copy and transcript whereof is hereunto attached, marked ‘ Exhibit A,’ and made a part of this bill of exceptions. And thereupon the said defendant, by his counsel, objected to the said witness as incompetent to testify, on the following grounds :</p> <p>“1. Because the records of this court show that the said Addison Kyle stands convicted of the crime of forgery, and is now confined in the house of refuge, in Hamilton county, Ohio, therefor in pursuance of the order of this court, according to law, which order is not annulled or reversed.</p> <p>“ 2. Because the said witness is the principal offender, and ought not to be allowed to testify against an alleged accomplice.</p> <p>“ 3. Because the said witness, Addison Kyle, is a party to the record ; all of which objections were overruled by the court, and the said Addison Kyle allowed by the court to be sworn, and to testify in the case, to which rulings of the court, and allowance of said witness to testify, the said defendant, by his counsel, excepted, and prayed the court to sign and seal a bill of exceptions, setting forth said several matters, which is accordingly done, this the twelfth day of April, A. d. 1854, at the April term of our said court.</p> <p>“ Jacob Flinn, Judge, [l. s.] ”</p> <p>The “ Exhibit A,” referred to, is. a full record of the indictment, arraignment, trial, and conviction of the witness, Kyle, in the criminal court of Hamilton county, concluding as follows:</p> <p>“The said defendant, being duly arraigned at the bar of said court, and inquired of, if he have anything to say why the court, now here, should not proceed to pronounce sentence upon him, nothing further saith, save as he before hath said. It is, therefore, considered by the court that the said defendant, Addison Kyle, bé imprisoned in the penitentiary of this state, and kept at hard labor for the time of three years; that he pay the costs of this prosecution, and that the execution be awarded therefor.</p> <p>“And now here, to wit, on the twenty-seventh day of February, in the term and year last aforesaid, came the prosecuting attorney, 232] on behalf of the *State of Ohio, and also came the said defendant, and on motion, and for good cause shown, the court ordered the entry made, on the twenty-third day of February, A. D. 1854, a former day of this term, on page 68, of the judgment and sentence of the court, on the verdict heretofore rendered in this case, be and the same is hereby set aside, and held for naught.</p> <p>“ And now here, to wit, on the twenty-seventh day of February, in the term and year last aforesaid, comes into court the prosecuting attorney, on behalf of the State of Ohio, and the said defendant, Addison Kyle, who was brought into court in custody of the sheriff of Hamilton county, and it being shown to the satisfaction of the court, that the said defendant, Addison Kyle, is under the age of sixteen years, having arrived at the age of fifteen on the seventh day of October, a. d. 1853; it is, therefore, considered and adjudged by the court that the said defendant, Addison Kyle, be confined in the house of refuge, within and for the county of Hamilton, and State of Ohio, and kept at hard labor, under the control of the directors of said house of refuge, until he arrives at legal age, or is otherwise legally discharged ; and that he pay the costs of this prosecution, and execution is awarded therefor.”</p> <p>III. The third assignment of error is, that the criminal court refused to allow the defendant (here plaintiff in error) to ask the witness, "William G-. Stephens, as to the general moral character and reputation of Addison Kyle, one of the witnesses for the state.</p> <p>The bill of exceptions No. 2 shows that Stephens was called and sworn as a witness on behalf of the defendant below, to impeach the character of Kyle for truth and veracity; and that thereupon the defendant, by his counsel, put to him this question : “ Are you acquainted with the general moral character and reputation of the witness, Addison Kyle, among his acquaintances and neighbors?” which the witness answered in the affirmative. The witness was then further asked by the defendant’s counsel to state what that moral character and reputation icas, but the court, on the motion of the prosecuting attorney, overruled the question as improper, and directed the inquiry to be confined to Kyle’s general character for truth and veracity. '</p> <p>1Y. The fourth error assigned upon the record is, that the court put the plaintiff in error upon trial a second time, after having, without his consent and without a sufficient reason, discharged the jury first impaneled and sworn to try his case, and thus placed him a second time in jeopardy.</p> <p>*The part of the record referred to by this assignment is [238 as follows : “And the jury aforesaid, after hearing the testimony of witnesses, arguments of counsel, and charge of the court, retire under charge of the sheriff, to consult of their verdict; and, after the jury having retired, the court received the following note ; ‘ Hon. Judge Flinn, we can not agree on our verdict; one of our jurors is not a naturalized citizen. We want your opinion to see if we can be discharged.’ And the jury aforesaid being brought into court, court order said jurors be discharged from the further consideration of this cause.”</p>

<p>When a note is given by A to B, by -which A promises to pay to B a sum of money, upon full proof of a breach of covenant entered into on the same day by A with B, and the agreement containing the covenant refers to the note, the agreement and note, though on different pieces of paper, are to be considered as but one agreement.</p> <p>Where the note is to be paid upon full proof of a breach of the agreement, on . the part of A, and the agreement contains several covenants to be performed by A, some of more, and some of less importance than others, and the actual amount of damages which B would sustain by a breach of some of the covenants, would be easily ascertained, the sum mentioned in the note is not to be considered as liquidated damages, but in the nature of a penalty.</p>

<p>A conveyance, by a fraudulent vendee of goods, in payment or security of th'é \ vendor’s debt, requires no other assent than that which is contained in the vesting of the vendee with all the vendor’s right in the property.</p> <p>No just preference of creditors can be thus defeated, since, in every case in which the claim of the creditor is fair, the law would reward the greater vigilance of the creditor, and deny to any other creditor a preference resting in the favor or fraud of the vendor himself.</p> <p>Nor can the vendee suffer by allowing such a right in his vendee; for, if the consideration remain unpaid, he can well question the amount paid by the vendee, if the whole-fraud has been removed, on his own part; and if the consideration be wholly paid, the vendee would pay at his own immediate expense, and his own ultimate peril.</p>

<p>The owner of the chattel property, which is exempted hy law from execution and sale for the payment of debts, is not divested of the right of disposing of it by pledge, in security for the payment of his debts; and in case of a pledge or chattel mortgage the owner clearly waives the benefit of exemption, so far as the incumbrance extends or is operative.</p> <p>Where, by the terms of a chattel mortgage, the mortgagee, at the maturity of his debt, has the right to the possession of the property, and he sees proper to reduce his debt to judgment, and then, through his agent, to turn out the mortgaged property, and have it sold under the authority of an execution for the payment of his debt, the debtor sustains no injury in the right of possession in the property, which would support an action of trespass, even although the chattels thus mortgaged and sold belonged to the enumerated articles exempted by law from execution.</p> <p>There are certain enumerated articles which are absolutely exempted from execution, and which the officer is bound at his peril to notice and not take on execution, unless turned out by the debtor, by a waiver of his right of exemption; but there are other articles, the exemption of which from execution depends on the selection to be made by the debtor.</p> <p>Where the exemption depends on the selection to be made by the debtor, the selection should be made at the time of the levy, if the debtor be present; but if not present, then it should be made, and notice given to the officer, within a reasonable time thereafter, and before sale. And without such selection, the right to the benefit of the exemption does not exist as to those articles which the statute authorizes the debtor to select.</p> <p>In an action of trespass against an officer, for a seizure and sale on execution of chattels which are exempted by law from execution and sale, on the selection of the debtor, it is indispensable, in order to sustain the action, that the plaintiff should establish his right to the exemption, by proof of his selection of the property for the purposes contemplated by the statute.</p>

<p>T. and M., partners in trade in the city of 0., agree'to dissolve partnership, M., the party retiring from the establishment, binding himself that he shall not, within five years, enter into nor be concerned in the kind of business conducted- or carried on by the said firm, nor any branch thereof, within the said city, nor interfere in any way with any agency before established by the firm, nor establish any similar agency that may interfere or compete with any agency of the firm or of the party succeeding to its business upon its dissolution, whether such agencies be established in the said city or elsewhere: Held—</p> <p>That such a contract was reasonable and proper, so far as it restrained M, from engaging, for a limited time, in the city of 0., in the business theretofore pursued by the firm.</p> <p>But so far as it attempts to prevent M. from interfering or competing with any branches that T. might establish at any and all other places, it is clearly opposed to public policy, and is therefore void.</p> <p>Such a covenant is divisible, and does not constitute a breach of its legal obligations, if, within the time limited, M. should become employed at a distant point as an agent or otherwise, in the business in which the firm was engaged. Lange v. Werk, 2 Ohio St. 519.</p>

<p>Taxes due upon lands are a personal debt of him in whose name the lands are listed when the taxes accrue, as well as a lien upon the lands, unless “ the same are not his property, and are erroneously charged in his name for taxation.”</p> <p>The rule of caveat emptor applies to purchasers at judicial sales.</p> <p>It follows that if lands, incumbered by a tax lien, are sold upon execution, and'the taxes are afterward collected from the judgment debtor, by distraint of his personal property, or other proceeding under the tax law, he is without recourse upon the purchaser of the land, notwithstanding the incumbrance is thereby removed. On the other hand, if the taxes are made by a sale of the lands, the owner has no action against the judgment debtor, although the debt of the latter is thus paid. There is no relation of principal and surety between the parties.</p> <p>It may be presumed from circumstances that an order of court was made upon the motion of a particular person, where the record does not show who was the mover.</p> <p>If, upon the motion of a purchaser upon execution, surplus money remaining after the satisfaction of the writ, and to which the judgment debtor is entitled, is, by order of the court, and without the consent of the debtor, applied to discharge taxes due upon the land when sold, such debtor may, after a reversal of the order, recover the sum thus applied, from said purchaser, in an action of assumpsit for money paid to his use.</p> <p>278] *And such action may be maintained, although no order of distribution, expressly direcling said surplus to be paid to the judgment debtor, has been made, there being no other claimant of the money.</p> <p>'It is not meant, by this decision, to deny to purchasers at judicial sales, the well-known equitable relief resulting from a marshaling of assets, where the creditor has a lien upon two or more funds.</p>

<p>Upon decree of bankruptcy, all the property of the bankrupt, of every kind and description, passes to and is vested in the assignee.</p> <p>In an action on a promissory note or bill of exchange, made payable to several payees, one of them having become bankrupt, the assignee in bankruptcy must be a party plaintiff with the other payees, and not the bankrupt himself.</p> <p>If the bankrupt, before decree, has assigned a chose in the action so as to pass all the beneficial interest to his assignee, suit may be brought in the name of the bankrupt, for the use of the assignee.</p> <p>When one of the payees has become bankrupt after having transferred his interest in a note to the other payees, suit may be brought in the name of all the paj-ees, for the use of those who were not bankrupt.</p> <p>When the payees'do so unite, and on the trial of the case, after proof by defendant of such bankruptcy, the plaintiffs introduce a paper purporting to be an assignment by the bankrupt to the other payees, bearing date before bankruptcy, the mere fact that the paper bears date before, is not evidence that it was executed on that day, without any other evidence of the time of execution.</p>

<p>The general rule established by “an act defining tbe jurisdiction and regulating the practice of probate courts,” is that prosecutions shall originate in a proceeding before some officer who can hear testimony and decide upon its sufficiency, to put the accused on his defense before the probate court.</p> <p>Sneh a proceeding before an examining magistrate is necessary to confer juris' diction on the probate court, of all charges which may be brought before it, unless the “ act to prevent the adulteration of alcoholic liquors ” (Derby’s Swan, 479a), has made a particular exception in respect of the offenses it defines.</p> <p>(Whether such an exception can be made. Qucere, by Warden, J.)</p> <p>The jurisdiction being conferred, the information takes the place of an indictment, and, within the limits in which an indictme'nt may vary the charge, and still subject the accused to the consequences of a default on his recognizance taken by a magistrate, the information may vary or depart from the charge set forth in the transcript or recognizance.</p>

<p>Petition in error to reverse the judgment of the district court of Clark county.</p> <p>The original action was assumpsit on a promissory note, as follows:</p> <p>“$1,100. March 6, 1850.</p> <p>“ Twelve months after date, we, or either of us, promise to pay Evan Brock, or order’, eleven hundred dollars, for value received.</p> <p>“ Martin L. Car,</p> <p>“ Daniel Hornet, Sr. “Joseph Thomas,</p> <p>“ William Anderson,</p> <p>“ Samuel Briggs.”</p> <p>303] *The plea was the general issue, verified by affidavit. On the trial in the district court before a jury, the plaintiff, to maintain the issue on his part, gave in evidence, among other testimony, the note above mentioned. And the defendant, on his part, among other things, gave evidence tending to prove that Martin L. Car was the principal' on said note, and Samuel Briggs, if a party to the same at all, was only surety; that his name was affixed to it when the note was in blank, and after the names of the other persons appearing on the note had been placed there; that the body of the note, leaving the amount in blank, was written by one James Edwards at the instance of the plaintiff and said Car, and in the absence of all the other persons whose names appear on the note. The defendant also gave evidence tending to prove that the signatures, purporting to be those of William Anderson and Daniel Horney, Sen., on,said note, were not genuine. And the plaintiff, in rebutting, gave evidence tending to prove that prior to the note being written íd blank, ho and said Car had settled, and that on the settlement Car had been found to be indebted to the plaintiff in an amount exceeding one thousand ‘dollars; and that plaintiff proposed to give Car a credit of one year for one thousand dollars, with ten per cent, interest on his paying the balance, and giving a note, with security, for that amount; that Car accepted the propusition, paid the balance, and the note being drawn'in blank, and the names affixed to it, was• subsequently filled by “ eleven hundred dollars” being inserted, making the amount of one thousand dollars, with ten per cent, interest thereon for one year ; Briggs not being present at the time of the agreement between the plaintiff and Car at the filling up of the note. And there was no evidence given tending to show that Briggs had assented to the agreement, or the filling up of the note, other than that of his signature appearing on the note.</p> <p>During the progress of the trial the defendant asked the court to charge the jury that if they found, from the evidence, that Briggs signed his name to said note, as surety for Car, *prior [304 1 o the date thereof, and while the same was in blank and that without the assent of said Briggs, Car and the plaintiff agreed to cause said note in blank to be filled up for a loan, or credit of one thousand dollars, at a greater rate of interest than six per centum per annum, and that the same was accordingly so filled up, that the defendant was not liable on the note, and that their verdict should be for the defendant. The court refused to give the charge requested ; but on the contrary,-instructed the jury that if they found the facts as claimed, the plaintiff’s right of recovery would be limited to one thousand dollars, and six per cent, interest thereon.</p> <p>The defendant further asked the court to instruct the jury that if they found that Briggs signed the note in blank as surety only, and after the names of Horney and Anderson had been written thereon, and on the faith and understanding that the names of said persons on said note were their genuine signatures; and should further find that Brock knew Briggs to be surety only at the time he received the note ; and also find that the signatures of Horney and Anderson had been forged upon the note, that in such case the defendant would not be liable, and that the verdict should be in his favor. The court also refused this charge, as requested; but on the contrary, instructed the jury that the note being several as well as joint, if Briggs was only surety, and Brock knew the fact, and the names of Hoimey and Anderson were forged on the note, it would afford no defense to Briggs, unless notice of such forgery were traced to Brock at or before the filling up of the note.</p> <p>To this ruling and these instructions of the court to the jury, and the refusal of the court to charge the jury as requested, the defendant, by his counsel, excepted. And upon the ground presented by the bill of exceptions, this petition in error has been filed.</p>

Covenant ; reserved in the district court of Franklin county, into which court the action had come by appeal. The action was on a joint and several bond, executed December 31, 1849, by Elias F. Drake, Demás Adams, Jun., Thomas Móodie, William Miner, Joseph Whitehill, Demás Adams, John Graham, and the defendant’s testator.

Assumpsit. Reserved in the district court of Cuyahoga county. The causo was submitted to the district court without the intervention of a jury, the entire evidence being in deposition; but the judges being equally divided in opinion, the case was reserved on the defendant’s motion. The deposition was that of D: Spooner, captain of the schooner St. Lawrence, and was in substance as follows : Deponent sailed the schooner St. Lawrence upon Lake Erie .during the season of 1851.

Reserved in the district court of Montgomery county. The facts and questions involved are fully set forth in the opinion of the court.

<p>Where the apparent intention of the parties to a contract is to have new machinery made, and old machinery repaired, and put into running order, for a single purpose, of which work a part is not to be done without the whole, and all the parts bear a necessary relation to each other, and where the provision for payment indicates that the parties themselves regard the agreement as an entirety, their intention prevails over any technical rules of construction, and the contract is to be taken as an entirety.</p> <p>In such a case, the mechanic can not, by suing on part of the contract, which he claims to have fully performed, and declaring under the qxiantum meruit, as to the work not paid for, cut off the defendant’s right to recoupe . the damages on the whole.</p> <p>Unsettled as were for a long time the limits within which it could be made . available, as well as the condition of its exercise, the right of recoupment has at length become fixéd and certain in England, as well as in most of our sister states, and it must now be recognized as a part of the law of Ohio.</p> <p>Recoupment, however, even as enlarged in its meaning by modern usage, signifying nothing more than a reduction of damages, the right can not bo exercised under a plea, the office of which is to set up a complete bar. Notice of the intention to recoupe must be given specially.</p>

<p>The rule of estoppel applies in cases only where the grantee receives and holds possession, by virtue of the conveyance from the grantor, and relies upon it as the source of his title; it does not apply where the grantee already held under a prior and independent conveyance.</p> <p>In case of a petition for dower, the grantee of a deceased husband, and those holding under him, are not estopped to deny that their grantor had title.</p> <p>A person in possession of real estate under a bona fide claim of title, has the right to buy in any title, real or pretended, with a view to quiet the enjoyment of his possession; and the purchase of the adversary title, if it does not strengthen, can not impair his title.</p>

<p>Where a mutual insurance company was authorized by an amendment to its charter, to issue policies upon cash premiums, at the election of the applicant, which was to be taken in lieu of a deposit note, and the fund arising therefrom, together with the deposit notes, were declared to be the capital of the company for the payment of losses and expenses: Held—</p> <p>1. That the fund arising from cash premiums was subject to the same application as the premium notes, and could not be diverted to the payment of losses accruing before such premiums were received.</p> <p>2. That an assessment for the whole amount of losses accruing during the time such funds were received, made upon the deposit notes, without first exhausting the cash funds, as provided by law, was illegal and void.</p>

<p>Under the act for the prevention of gaming, of 1831, the loser of a bet may recover his money back, in an action founded upon the act, although commenced more than six months after the payment of the bet.</p> <p>The act gives the loser the exclusive right of action the first six months; after that, it gives it to any one, whether the loser or another, T^ho first sues.</p>

Error reserved from the district court of Crawford county. The facts of the case, and the questions involved, appear in the opinion of the court.

<p>Error to the district court of Monroe county.</p> <p>The opinion of the court embraces all the facts and questions in the case.</p>

<p>The statute regulating appeals to the district court, passed March 23, 1852, authorized an appeal on petition for partition..</p>

<p>A will and codicil are to be taken and construed together, as parts of one and the same instrument, and the intent of the testator gathered from the whole.</p> <p>A codicil will not be held to revoke the dispositions of a will, further than is clearly expressed or necessarily to be inferred from it.</p> <p>A bequest to the wife of a testator of one-third of his real and personal property, directed tó be sold and converted into money by his executors, is not impliedly revoked by a codicil which reserves from sale a part of such real property until her death, and secures to her the use of it during her life.</p> <p>Where a part of such personal property consisted of stocks, which were by the codicil directed to be reserved from sale, and the executor directed to pay over the dividends as they accrued to the “heirs” of the testator: Held, that the bequests of the will were not revoked.</p> <p>In such case, when the intention is manifest, the word “heirs” may be construed to mean legatees.</p> <p>An unconditional bequest of the dividends of the stock is a bequest of the stocks themselves.</p> <p>Lands directed to be sold and converted into money are treated in equity as personal property.</p> <p>A widow electing to take under a will containing provisions for her, expressed to be in lieu of dower and all other claims on the estate of the testator, is not barred of her right to the year’s support, provided by law, from the estate of the testator.</p>

Reserved in the district court of Perry county. The action is one of ejectment, and is in this court by agreement of parties, on the facts appearing in the notes of Judge Whitman taken at the trial in the common pleas, and the deposition of Margaret Shanon. From the judge’s notes, it appeared that the plaintiff first offered a deed from Owen Shanon to Ellen Shanon, for the land in controversy.

Reserved in Knox county. The proceedings in the court below were on a bill of review. The facts and questions involved sufficiently appear' in the opinion of the court.

<p>The “ancestor” meant by “an act regulating descents and the distribution of personal estates” (Swan, old ed., note a, 286), was any one from whom the estate was inheritable.</p> <p>The “ ancestor from whom the estate came,” was he from whom it was immediately inherited.</p> <p>E. P. purchased certain lands, and died intestate, leaving I. P. and J. P., his sons and heirs; and B., his widow, married again. Before the birth or conception of issue of the second marriage, I. P. died, intestate and without issue, being an infant. J. 'P. afterward died, intestate and without issue. At the time of Ms death, there was issue of the- second marriage. Held, that, within the meaning of the said act, I. P. was the ancestor of J. P., from whom a moiety of the lands came to the latter; and that on the death of J. P. his half-brothers took that moiety, under the last part of the fourth clause in section one of the act cited.</p>

<p>On a bill of review, a mere difference of opinion as to the weight of evidence, between the court which pronounced and that which reviews a decree founded on that evidence, will not warrant the reversal of the decree. Tracey v. Sackett, 1 Ohio St. 54, followed and approved.</p> <p>On all the questions of law and fact involved in the case of Huber v. Gazley and others, 18 Ohio, 18, the opinion of the'late Supreme Court in bank is approved.</p>

<p>An objection to a question and answer in tbe deposition of a witness, on the ground that the question is leading in form, is an objection, not to the substance or relevancy of the testimony of the witness, but to the form and manner of obtaining it, and should be made at the time the question was propounded, but if not made then, or within proper time before the cause is called for trial, it will fairly and reasonably be taken to have been waived.</p> <p>The exceptions to the general rule, that a witness must depose only to facts within his knowledge, leaving the inference or understanding from the fact, to be gathered by the jury, relate to questions of science, skill, trade, identity of persons, etc., as to which witnesses have been allowed to express their opinion or belief.</p> <p>The rule that a witness may state his impression, results from the fact that a witness can not be required to depose positively, when his recollection is not distinct and certain. But the impression of a witness, to be admissible as evidence, must be, not the result of a process of reason and judgment, but simply facts impressed on his memory, and of which his recollection is not sufficiently distinct to arise to positive assurance.</p> <p>The testimony of a witness consisting of the narration of the conversation of a party, is always to be received with great caution. And to allow a witness, after the narration of a conversation, to state his conclusions or understanding from the conversation, as to the meaning or understanding of the parties to the conversation, would be a most dangerous relaxation of the rules- of evidence.</p> <p>It is competent to give in evidence, with a view to prove the existence of a partnership and the firm name, besides the verbal admissions, or ordinary business transactions and conduct of a party, testimony showing the acts of the party under the solemnity of his deed in the firm name, and relating to the partnership business foreign to the particular transaction or contract which constitute the foundation of the action.</p> <p>On an issue before a jury on a separate plea of a surety, and also to assess the damages against other parties allowing judgment by default without plea, in a suit'on a promissory note, the principal on the note allowing default for want of plea, is not a competent witness for the party pleading to the action, no separate judgment having been rendered against him.</p>

<p>A gave his name in blank to B as an accommodation to enable B to raise money; B then wrote a promissory note'on the other side of the paper, payable to C or order, signed it as maker, and procured the indorsement of 0 upon the back under that of A; and subsequently procured the indorsement of D, and in this condition got it discounted. Held—</p> <p>That the holder was authorized to treat A as an indorser, and not an original promisor, upon whom demand was necessary to charge the other indorsers.</p> <p>Such a construction should be put upon the contract as will prevent its failure, and give effect to the obligation of each of the parties appearing on it at the time the contract itself takes effect.</p> <p>*Whenever the obligation of a party appearing upon the back of a nego-' [416 tiable paper can, at that time, take effect as an indorsement, it should be held to do so as conforming more nearly to the general intention of parties assuming that position upon it.</p> <p>In the application of these principles, when the name of a stranger is put upon the back of a note intended for a payee, and to give it credit with him, as such person can not be charged as an indorser, effect should be given to his undertaking by holding him liable as a surety or guarantor.</p> <p>But where the paper is not designed for the payee, and his indorsement is also obtained to give the paper credit with a subsequent party, the party indorsing at the time or before the paper is drawn, may and should be treated as a second indorser.</p> <p>It is not error to refuse to order the plaintiff, in an action against an indorser, to fill up the indorsement before judgment.</p>

In chancery. Reserved in Hamilton county Under the order of reference in this case (see 2 Ohio St. 114), the complainants took further testimony; among others, that of ¥m. H. Campbell, which was in substance as follows: The acceptanee of Choteau, Merle & Sandford to four drafts; one dated June 22, 1847, for §4,000, at six months, drawn by Thompson & Campbell; one dated July 3, for §1,500, at six months, drawn by Thompson & Campbell; one dated June 21, 1847, for §2,000, at…

*Error to the district court of Knox county. Scire facias [430 on a recognizance taken in a criminal case. The facts of the case and the questions involved, appear in the opinion of the court.

Assumpsit ; reserved in Yinton county It appears from the bill of exceptions, that proof was given, to the satisfaction of the district court (to which, without the intervention of a jury, the cause was submitted), that on the 18th of August, 1847, the plaintiff verbally contracted for the purchase, from the defendant, of certain real estate, whereon there was standing a number of acres of corn.

<p>The discretionary control of the court of common pleas over its own orders and judgments, during the term at which they are entered, ends with the term; and the power of the court to set aside or vacate its judgments, subsequent to the judgment term, is governed by settled principles, to which the action of the court must conform, and for a departure from which a judgment or order of the court may be subject to reversal on proceedings in error.</p> <p>A judgment may be set aside on motion, at a term subsequent to the judgment term, for irregularity or improper conduct in procuring it to be entered. And, in a proceeding of this kind, the court exercises an equitable jurisdiction, and should not vacate a judgment or order against the right and justice of the case.</p> <p>The doctrine that a material alteration in a deed, or contract in writing, beneficial to the holder, or party making the alteration, will vitiate the instrument, is founded on a presumption of fraud; and the alteration, to have such effect, must be such as to effect some change in the meaning or legal operation of the instrument.</p> <p>Where such alteration appearing on an instrument is not peculiarly suspicious, and beneficial to the person seeking to enforce it, the alterations will be presumed to have been made either before the execution of the paper or by the agreement of the parties afterward.</p> <p>The erasure of the name of a surety on a promissory note, or bill of exchange, by agreement between the surety and, the payee, is not such an alteration as will invalidate the instrument as against the principal.</p> <p>A warrant of attorney to confess a judgment executed by the principal and surety on a note or bill, although in its terms authorizing a joint judgment against principal and surety, may be a good power to take a judgment against the principal alone.</p>

<p>The constitution confers no jurisdiction whatever upon the court of common pleas, in either civil or criminal cases.</p> <p>] t is made capable of receiving jurisdiction in all such cases, but can exercise none, until conferred by law.</p> <p>The act of May 1, 1854, to abolish the criminal court in Hamilton county, and to transfer its unfinished business to the court of common pleas in the first district, has conferred the same criminal jurisdiction upon that court as is conferred by law upon the courts of common pleas in other counties of the state.</p> <p>And this, without regard to the question, whether the act is available to abolish the criminal court, and to vacate the office of its judge.</p> <p>Parts of an enactment, when capable of separation, may be valid and effectual, when other parts may be void, by reason of this repugnancy to a constitutional provision.</p> <p>This act gives the common pleas no power over the process of the criminal court, and no right to employ the grand jury summoned for that court.</p> <p>An indictment found in the common pleas, by such a grand jury, is illegal, and a plea in abatement for that cause sufficient.</p>

<p>Reserved in Hamilton county.</p>

<p>The constitutionality of the act of 1845, “ to authorize William Lewis, trustee of the Mechanics and Traders’ Bank of Cincinnati, to commence and prosecute suits against the debtors of said bank” (43 Ohio L. L. 308), so far as that authorizes suits against parties to notes, etc., given to said bank, and against delinquent stockholders, as well as in the prohibition it contains against the defendants setting up the nullity of such evidences of indebtedness, is no longer an open question.</p> <p>The fact that the note sued on was given for stock, subscribed without any intention to pay it, merely for the purpose of pretending to the public that the stock was greater than it really was, or for the purpose of preventing the predominance of certain stockholders, is no defense to the action of the trustee.</p> <p>Nor, under the common notice of set-off, could the defendant on such an action he allowed to set off against the claim the amount paid by him since the commencement of the action, under execution on a judgment rendered against him and others, as partners in said Mechanics and Traders’ Bank.</p>

Writ of certiorari to the court of common pleas. Reserved in the district court of Morrow county for decision by the Supreme Court.

Chancery. Reserved in Scioto county. The whole case is not examined in the opinion below; a sufficient -■statement is furnished by the opinion itself.

<p>For aught that appears in the journals of the senate and house of representatives of the general assembly, the act of May 1, 1854, entitled “ an act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” was constitutionally enacted.</p> <p>'The provision of the constitution art. 2, sec. 16, that “ every mil shall be fully and distinctly read on three different days, unless, in case of urgency, three-fourths of the house in which it shall be pending, shad dispense with this rule,” does not require that every amendment to a bill shall be read three times.</p> <p>Every reasonable intendment is to be made in favor of the proceedings of , the legislature. It is not to be presumed that the assembly, or either house of it, has violated the constitution. When, therefore, it appears by the journals, that a bill was amended by striking out all after the enacting clause, and inserting a “ new bill,” so called, it can not be presumed that the matter inserted was upon a different subject from that stricken out; especially when the matter inserted is consistent with the title borne by the bill before such amendment. This is the more obvious since the constitution provides that “ no bill shall contain more than one subject, which shall be clearly expressed in its title.” (Art. 2, sec. 16.) Nor does the fact that the inserted matter is called a “ new bill,” prove that it was not an amendment.</p> <p>Flo bill can become a law without receiving the number of votes required by the constitution, and if it were found, by an inspection of the legislative journals, that what purports to be a law upon the statute-book was not passed by the requisite number of votes, it might possibly be the duty of "the courts to treat it as a nullity. But it does not follow that an act £476 that was passed by a constitutional majority is invalid, because, in its consideration, the assembly did not strictly observe the mode of procedure prescribed by the constitution. There are provisions in that instrument that are directory in their character, the observance of which by the assembly is secured by their sense of duty and official oaths, and not by any superviso^ power of the courts.</p> <p>Fleither the 1st, 2d, 3d, 4th, nor 8th section of the act under consideration, properly construed, is repugnant to the constitution. In saying this, we do not mean to affirm that the legislature has the power to wholly prohibit traffic in intoxicating liquors in this state. Without deciding whether the assembly has any power over this subject by virtue of the general grant of legislative power in section 1 of article 2 of the constitution, we hold that the enactment of said sections of the law is authorized by the express grant of power in section 18 of article 16, in these words: “ No license to traffic in intoxicating liquors shall hereafter be granted in this state, but the general assembly may, by law, provide against evils resulting therefrom.”</p> <p>A violation of either the 1st, 2d, or 3d sections of the act subjects the offender to the penalties mentioned in the first clause of section eight. It is not necessary, in order to incur these penalties, that all three sections be violated.</p> <p>If a sale violate all three sections, the offender may be prosecuted under either of them; ’ and his conviction or acquittal will bar a prosecution .for the same sale under either of the other two sections.</p> <p>But a conviction or acquittal under the 1st, 2d, or 3d section is no bar to a prosecution under the fourth.</p> <p>To convict for a violation of the second section, it is necessary to aver in the information, and prove on the trial, that the seller knew the buyer to be a minor; and to convict for a violation of the third section, it is necessary to aver and prove, in like manner, that the seller knew the buyer to be intoxicated, or in the habit of getting intoxicated. Birney’s case, 8 Ohio, 237, followed and approved.</p> <p>To convict for a violation of the fourth section, it is necessary to aver in the information, and prove on the trial, that the place where the liquor was sold, was a place of public resort. And the proof must also show that it was a place where liquors were habitually sold in violation of the act. A single sale does not make the place a nuisance, or the seller a “keeper,” within the meaning of the act. A series of sales is necessary.</p> <p>No order to shut up or abate the place can rightfully be made, unless the nuisance continues to exist at the time such order is made. Unless, therefore, the court is satisfied that, at the time of making the order, the place is kept for the sale of liquors, in violation of the act, no order should be made. Bor it is the unlawful business (and not the place, per se) that 477] “creates the nuisance; and, hence, where the business has ceased, there is no nuisance to abate. No man’s property can be forfeited as a punishment for crime, the constitution providing that no conviction shall work a “ forfeiture of estate,” Article 1, section 12. Hence, there is no power to deprive a man of the use of his property, unless it be necessary in order to abate an existing nuisance.</p> <p>TW order is not to be directed to any officer. It is not an order to be executed by an officer. It is an order to the person convicted, obedience to which may be enforced, if the nuisance be continued, by attachment for contempt of court. The order being made, if the convict cease to keep a house of public resort, of the character named or referred to in the fourth section, he need give no bond; and having so ceased, no attachment can properly be issued against him. But if he desire to continue keeping such house of public resort, he must, in order to avoid an attachment, give bond. Ho has his election to quit keeping a house of public resort, or to give bond, and keep it without violating the law.</p> <p>The following information is sufficient in law.</p> <p>41 The State of Ohio, Clebmont County, ss. Probate court, May term, in the year of our Lord one thousand eight hundred and fifty-four: John Johnston, Prosecuting Attorney of the State of Ohio, for the said county of Clermont, now here in said probate court, in and for said county, in the-name and by the authority, and on behalf of the said State of Ohio, information makes, that on the second day of May, in the year of our LorcF one thousand eight.hundred and fifty-four, and from that day until the eom- ■ mencement of proceedings herein, to wit, on the twenty-third day of May, in the year aforesaid, at the said county of Clermont, in the said State of Ohio, one Frederick Miller was, and has been, unlawfully the beeper of a room of public resort, where intoxicating liquors were and have been then and there sold by said Frederick Miller, in violation of an act of the gen- • eral assembly of the State of Ohio, entitled “ an act to provide against the-evils resulting from the sale of intoxicating liquors in the State of Ohio,” and passed by said general assembly on the first day of May, in the year • aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.</p> <p>“John Johnston, Prosecuting Attorney of Clermont County.”</p> <p>A proseoution under this act can not be commenced in the probate court. It. must be commenced before a justice of the peace or mayor. But no very strict conformity between the information and the original complaint is' necessary. If the charge is substantially the same in both, there is no - room to quash the information on the ground of variance. The proper rule upon this point has already been stated at this term, in Gates and Goodno v. The State.</p> <p>PTul tiel record is not a proper replication to the plea of former conviction prescribed in the probate code; for there is no profert of a record in the ■ plea. *The proper replication is a general denial of the allegations [478. of the plea; and the issue thus made up is to be tried by the jury impaneled in the case.</p>

<p>Application for leave to file petition in error.</p>

The plaintiff below, here defendant, declared against the defendants upon the bill of exchange, drawn by S. Holmes & Co., for $3,000, and accepted by the defendants. The defendants by their plea denied that they had accepted the draft upon which the action was founded.

Ejectment. The case was reserved in Washington county. *The facts and questions involved, fully appear in the [496 opinion of the court.

<p>A writ of error can not be allowed before final judgment in the court below.</p>

<p>Application for writ of error.</p>

<p>When relief can be had in the district court, it should be sought there, unless-there is some special and sufficient reason for coming into the Supreme-Court.</p>

Debt. The cause was reserved in the district court of Clark county, on the pleadings. These are stated in the opinion of the court.

Certiorari. The cause was reserved in the district court of Tusjoarawas county.

. In chancery. Beserved in Carroll county . The complainants filed their bill in the common pleas of Carroll county, August 12, 1844.

The court of common pleas dismissed the appeal from a justice’s judgment, on the ground that the transcript does not show which of the parties took the appeal.

*Bill in chancery from Clermont county. [545 ‘The following statement of part of the case, taken from the opinion of Caldwell, J., 2 Ohio St. 374, is here repeated, in order to-a right understanding of the points decided at this time: “ This is a bill filed by the creditors of Matthias Kugler, the principal object of which is to set aside certain conveyances made by him to his-children, in March, 1847.

<p>Where a mortgage is given by the vendee of land to the vendor, to secure payment of the purchase money, the mortgagor has the same time in which to redeem, that he would have were the mortgage given upon any other consideration.</p> <p>Although, strictly speaking, there is no statute of limitations applicable to the right to redeem mortgaged premises in the possession of the mortgagee, yet courts of equity, acting on the analogy of the statute, would hold such right barred after a lapse of twenty-one years, where the mortgagee had, during all that time, held possession adversely to the mortgagor, and claiming to hold, not as mortgagor, but as owner. But he must hold the possession in such manner, that if the legal title and right of possession had been in the mortgagor, the latter would have been barred of an action of ejectment.</p> <p>It is not the possession merely, but the nature of that possession, which-, operates in equity as a bar to redemption. So long as the mortgagee admits, or by his acts shows, that he holds as mortgagee, and not by any other right, time does not begin to run against the right to redeem. Thus, where the mortgagee, within twenty-one years before the filing of the bill to redeem, took a judgment for the mortgage debt, and filed a bill of foreclosure, the right of redemption is not barred.</p> <p>A mortgagee brought ejectment on the mortgage against a purchaser from the mortgagor, and recovered. The defendant claimed the benefit of the occupying-claimant law, which was allowed, and valuations made pursuant to the statute. The plaintiff elected to take the value of the land, and-tendered a deed. The defendant neither accepted the deed, nor paid the 552] money, and ^nothing more was done under the act. Held; that these circumstances constituted no bar to the right to redeem.</p> <p>"The general rule is, that a mortgagor, or purchaser under him, seeking a redemption, must redeem the whole premises, the reason of which is, that the mortgagee will not be compelled to divide'his security, and apportion his claim. But where the mortgagee has extinguished the right of redemption to a part of the premises, and become the absolute owner thereof, there may be a redemption of the other part; for in such a case the reason of the rule does not exist.</p>

In error from Athens county. The plaintiff in error was convicted upon an indictment for receiving certain gold coin which had been stolen.

Error. The case is as follows: Groves sued out a writ of error to a judgment of the late Suprema Court, more than a year after the rendition of the judgment.

'This is a petitiou in error, to reverse the judgment of the com¡mon pleas of Huron county. The plaintiff in error having refused ■to pay the taxes assessed upon the property of the corporation for •state and county purposes, for the year 1852, Edward E. Huste’d, :as the treasurer of Huron county, instituted proceedings in the court •of common pleas, by scire facias, pursuant to statute, in order to en•force the collection of the taxes so assessed.