Volume 4 — Ohio Public Domain Citations

This was an ejectment, tried before the Supreme Court, in Hamilton county, in which a verdict was founded for the plaintiff, and a motion was made by the defendant for a new trial, which motion was adjourned here for decision. The case upon the trial appeared as follows: The plaintiff proved that the lessors were the heirs at law of Israel Ludlow, who died in January, 1804, intestate.

<p>Previous to the act of February, 1824, where a sheriff in office had levied a Jin. fa. upon land, a vendi. might issue to the same person after his office expired, and a sale made by him would be valid.</p> <p>A return, made on a vendí, by the late sheriff, to December, 1810, that he had sold certain lands previously levied on, was, in December term, 1812, the sheriff making the return being deuased, on motion of his representatives, ordered to be so amended as to state that the property remained on hand for want of bidders. At February term, 1828, this order of amendment was rescinded, on motion of the purchaser at the first sale, and an order made that the sheriff make a deed. Proceeding held regular.</p> <p>When a sale of land has been made by a formei sheriff, the deed js to be made by the sheriff in offieo at the time of the application.</p>

This case came before the court in Hamilton county, and was adjourned for decision at this special session. The record discloses the following facts: On September 21, 1808, Rayberg and Taylor i {covered judgment against Eowble for one thousand one hundred .&~¡ad fifty-five dollars fifty-three cents damages, eight dollars seventy-cue cents costs, in the court of common pleas, and eleven dollars twenty-nine cents costs in the Supreme Court.

<p>Bill in equity to subject the real estate of a decedent in Ohio, where the heirs and representatives reside in another state, and where no letters of administration have been taken in Ohio, can not be sustained. The creditor may himself take letters of administration, and thus have complete remedy at law.</p>

This was a bill in chancery, sent here for decision from Montgomery county. The principal object of the suit was to obtain the legal construction of a deed of trust, made by Sophia Lowry, deceased, of whom the defendant, Lowe, was administrator, and the other defendants, her late husband and her children by him and by a former marriage.

<p>This was a bill in chancery, which was adjourned here for decision from Montgomery county, in connection with the preceding cause, between the same parties. Tho facts necessary to state, for a clear understanding of the decision of the court, are these:</p> <p>In the month of January, 1822, Sophia Cooper, widow and relict of Daniel C. Cooper, deceased being possessed of considerable personal property, and some real estate, both in her own right, and as dower in her late husband’s estate, being also the mother of two children, sons of herself and D. C. Cooper, deceased, in contemplation' of a marriage with the defendant, Fielding Lowry, made a conveyance in trust, of her principal property, real and personal, to the defendant Steele, to hold the same for her own use, during her ^contemplated coverture, and for any issue that might spring from it, reserving a power in herself, at any time, to direct the trustee in making certain dispositions of the property, The marriage took place, and there was issue of it, one son, thfi defendant, Fielding Lowry, jr. The property remained in. the possession of Mr. and Mrs. Lowry, and was considered subject to the trust, until her death in 1825. She had contracted some debts during her widowhood, which remained unpaid. Some debts arose during her marriage with Lowry, in improving hec real estate, and the expenses of her last sickness and funeral were to be paid. The plaintiff Lowe, at the request of the defendant Lowry, took letters of administration to Mrs. Lowry, and under these, he claimed from Lowry, in whose possession they remained, the personalties included in the deed of trust. Lowry refused tv) deliver them, upon which Lowe, having had them appraised, brought a replevin against Lowry, and thus obtained the possession. On the trial of the replevin, a verdict was rendered against Lowe, and damages given in favor of Lowry for twelve hundred and fifty dollars seventeen cents, as the value of the -goods, one hundred and twelve dollars eighty-seven cents, as interest, and sixty-nine dollars twenty cents as costs.</p> <p>The bill sets out these proceedings, and also sets out the debts due from Mrs. Lowry, and the means within the reach of the administrator to pay them. It prays'a decree, charging the estate of Mi's. Lowry with these debts, and requests that some order be made for the legal disposition of the balance, asks an injunction against the judgment obtained by Lowry in the replevin suit, and prays for general relief.</p> <p>The defendant Steele admitted the facts stated in the bill; Lowry demurred.</p>

This was a writ of error to the court of common pleas of Athens county, brought to reverse a judgment rendered in that court, in a case where the plaintiff in error was defendant, and the defendant in error plaintiff. It was an action of trespass with force and arms', for breaking and entering plaintiff’s close, breaking down and carrying away fences, and for carrying away and converting rails. Plea, not guilty.

<p>Bond taken hy the sheriff" for defendant’s appearance on attachment is valid.</p>

This case came Defore the court on a motion for a new trial, made by the defendant; the decision of which was adjourned here from Clermont County. The defendant claimed title under a sale upon judgment and execution, the sheriff’s deed being executed by the deputy sheriff. At the trial this deed was rejected, with leave that the defendant move for a new trial, for error in the sourt in rejecting that deed.

<p>Judgments, in the same rights may he set off, on motion; but in a ease where different interests are involved, it ought not to be done.</p>

This case was adjourned here, for decision, from the county of Pickaway. It was an ejectment, and came before the court upon a case agreed. The material facts were these: T. W. Dyott, at June term, 1822, recovered a judgment, in the county of Pickaway, against Henry Nevill, for one' thousand and twenty-three dollars and fifty cents. Execution was taken out and levied upon a tract of land containing three hundred and thirty-three and two-third acres, on March 24, 1825.

<p>A- devastavit by an administrator can not be suggested and proved, in a suit on administrator’s bond, against the administrator and his securities.</p>

This was an action of covenant, adjourned here for decision from the county of Knox. The declaration contained two counts upon the same covenant.

Reserved from Hamilton county. The declaration is for taking and carrying away goods, etc., of the plaintiff to the value of five hundred dollars. The defendant pleads, first, the general issue. Second. That the defendant was treasurer of the county of Hamilton, and as such was authorized by law to collect all taxes assessed by and under the authority of the State of Ohio within said county.

This was a motion for a new trial, in an action of ejectment, the' jury having, Under the instruction of the court, returned a verdict for the defendant. The ease was this : The lessors of the plaintiff claimed, as heirs at law to their father, a lot in Cincinnati, conveyed to him by Joel Williams, on May 26,1812. The defendants claimed, under a will duly executed, dated July 25, 1811.

*This case was adjourned here for decision from the county of Ross. It was a bill in chancery, and the case made was as follows : On May 19, 1819, Daniel Yanmetre made his promissory note to Jesse McKay, payable at tbe Bank of Chillicotho, by whom and John Creed it was indorsed, and discounted at the bank. In consequence of non-payment it was duly protested, and suit brought, under the statute, against the maker and indorsers jointly.

This was an action of debt on an administrator’s bond. The facts are thus stated: This suit was brought on the bond of the administrator of Daniel Symmes, executed at the' time of the appointment of the administrator, to recover the amount of a judgment in favor of Samuel McHenry, a creditor of the estate.

This was an ejectment adjourned here for decision from Hamilton county. The plaintiff claimed as heir at law of Aaron Go-forth, who died legally seized of the lot in controversy, being No. 161, in Cincinnati. The seizin of the ancestor and the heirship were admitted. The defendant claimed under an alleged sale and conveyance, made by the administrators of A. Goforth, of the lot in question, for the payment of debts.

This was a writ of error, adjourned here for decision from the county of Jefferson. The original suit was an attachment sued out of the court of common pleas of Jefferson county, upon the affidavit of the defendant in error, filed in January, 1823. Upon the return of the writ of attachment, Joseph Hurford filed a declaration charging the assumpsit upon Robert Cowdin. George Starr, claiming to be creditor, filed his declaration in the same manner.

This was a writ of error to the court of common pleas of Rich-land county, adjourned here for decision from that county. The case was this: On October 10, 1828, J. Kling recovered a judgment against S. H. Hill, before Justice Gardner, in Richland county, for eighty dollars and fifty-four cents and costs.

This case was adjourned here for decision from the county of Ticking.

This was a writ of error adjourned here for decision from Jefferson county. The record shows that on May 23, 1826, the defendant in error sued out of the court of common pleas of Jefferson county a writ of attachment against William H. Hayes, John Pheeham, David Adams, Thomas Taylor, William Fitsrammons, and James Taylor, as non-resident debtors.

This case was adjourned here for decision from the county of Wayne. It was an action of trespass, and stood upbn a ease agreed. Held: on April 6, 1812, an equitable title to part of the land upon which the trespass is alleged to have been committed, and' on May 10, 1813, acquired a legal title, and conveyed to Sloane by deed dated July 3, 1820.

<p>JFeme sole, in contemplation of marriage, grants a term of seventy-five years of lier real estate to a trustee, in trust for her own use during the .contemplated coverture. The marriage takes effect and she has issue, but dies before her husband. He is entitled as tenant in courtesy.</p>

This case was adjourned here for decision from Ross county. It was an action of debt upon a bond, executed by the defendant as security for Stephen Loines, who, being arrested upot* mesne pro«ess, applied for the benefit of the insolvent act, and gave the bond in question for the making a schedule and delivering up of all his property.

This cause was adjourned here for decision from the county of Wood. It was a suit in chancery, in which the original and amended bill set forth, .that in August, 1827, Pray sued out process in Wood county against complainants, which was served on Oliver only. The declaration set forth a special contract made between complainants, by their attorney in fact, Peter G-.

This cause came before the court upon a motion for a new trial, made in behalf of the plaintiffs, and was adjourned here for decision from Jefferson county. The case was this: The plaintiffs brought their action of assumpsit, and declared for goods sold and delivered as upon an original contract with the defendant.

This cause was adjourned from the county of Belmont, where it came before the court upon a writ of certiorari to the court of common pleas, in the following case: The plaintiff brought an action on the case against the defendant for a nuisance, in causing the water to flow back on plaintiff’s land by a mill-dam. The suit was brought before a justice of the peace, and judgment rendered against the defendant, who took the ease, by appeal, before the court of common pleas.

This cause was reserved in the county of Delaware, on a written statement, as follows: “In ease, etc., for use and occupation. It is agreed in this case, that Moses Bixbe, in his lifetime, took possession of the premises in the declaration mentioned, claiming title to the same.

This was a writ of error, brought to reverse a decree in chancery, pronounced against the plaintiffs in error, by the court of common pleas of the county of Brown, in a suit wherein the plaintiffs in error were respondents and the defendant in error complainant. It was adjourned here for decision from Brown county.

This cause was adjourned here for decision from the county of Brown. It was a bill in chancery by the junior patentee of the elder entry, seeking a conveyance from the elder patentee. The case is stated in the opinion of the court.

This was an action on a policy of insurance, taken by the defendants upon the steamboat Hercules, for the sum of eight thousand dollars. Cincinnati was the home of the Hercules and of the plaintiff. She was run against by the B. Franklin and injured, but was nevertheless brought to Cincinnati and there repaired. The whole amount of charges claimed by the plaintiff for repairs was eleven hundred and thirty-six dollars.

<p>After this dismissal, Kidd sold part of the property, in fee, and leased a part of it for ninety-nine years, renewable forever, reserving an annual rent. Afterward, Kidd made his will, and di'rected that his executors ákpend the rent reserved for the education of poor children. For a time the executors received and so applied the rents, and at length transferred their interest and trust to the Cincinnati College. The Bank of the United States became the owners of the lease, and, in this condition of things, the bill of review was filed. Upon the service of the process on the bill of review the bank ceased to pay the rents. The court, having on the bill of review, reversed the decree of dismissal, the purchasers under Kidd put in the plea that they were innocent purchasers, without notice, and this plea was ruled in their favor. The rents reserved upon Kidd’s lease, and the value of the lot, as against Kidd’s estate, were all that was left for the complainants to obtain by a final decree in their favor.</p>

This was a suit in chancery to enjoin the defendant, one of the-acting canal commissioners, from selling certain water privileges created by the location of the canal at Dayton, and was reserved from the county of Montgomery.

The overseers of the poor brought an action of debt, before a justice of the peace, against Jordan to recover certain penalties for practicing physic in violation of the statute regulating the practice of physic and surgery. The case was appealed to the court of common pleas, and judgment was there rendered in favor of the overseers of the poor; to reverse which, this writ was prosecuted.

This cause was adjourned here for decision from the Supreme Court of Hamilton county. It came before the court upon a motion for a new trial made by the defendant, where the plaintiff had obtained a verdict in an action of ejectment. The ease is stated in the opinion of the court.

This was a suit in chancery, to subject to sale certain mortgaged •premises, and was reserved from the county of Geauga.

This was a suit in chancery, and reserved for decision by the Supreme Court in Washington county.

This cause was reserved for decision by the Supreme Court in Hamilton county. It was an action on the case to recover damages of the defendant, for negligence and omission of duty, as justice of the peace. The declaration alleged, that on April 25, 1825, one John Stewart voluntarily confessed a judgment, in favor of the plaintiff, Jacob Kerns, before the defendant, as a justice of the peace, for the sum of one hundred and seventy-two dollars and sixty-nine cents.

This was an action of assumpsit, brought against the defendants, as owners of the schooner America, to recover the value of two hundred and five barrels of salt, shipped on board the America, at Buffalo, in the State of New York, tobe delivered at Cleveland, in the State of Ohio, and which was lost upon Lake Erie. Upon the trial, before the Supreme Court, in the county of Cuyahoga, the plaintiff offered in evidence the following bill of lading: “ No. 197.

Hooker was indicted for horse stealing. On the trial, two bills of exceptions were taken. The first stated that after the prisoner had pleaded to the indictment, and the jurors called and impaneled, the prisoner moved the court to discharge one of the jurors for cause; but the court refused the motion until the prisoner should have made all his peremptory challenges.

At the August term of the Supreme Court in Ashtabula county, in the year 1826, Atkins obtained a rule upon the defendants, to show cause, at the next term, why'a mandamus should not issue, commanding them to sign a certain bill of exceptions, tendered on a trial, in the court of common plea. At the August term, 1827, the rule was extended to the next term.

Polly Gray was indicted for robbery. On the trial, at November term, 1829, the prosecuting attorney called to the stand a negro, as a witness in behalf of the state. The counsel for the prisoner objected to his admission, on the ground of ineompetency, under the statute regulating black and mulatto persons. The prisoner appeared, upon inspection, and of such opinion was the court, to be of a shade of color between the mulatto and white.

Carter brought an action of assumpsit, in the court below, against Colvin, and declared upon the common counts, for goods sold and delivered, and upon a special contract. Colvin pleaded the general issue, with notice of offset.

This was a bill in chancery, to establish an equitable life estate in the complainant, Maria Bigelow; and was reserved from the county of Hamilton. William Barr, Sen., died in May, 1816, having made his last will, devising one hundred and sixty acres of land near Cincinnati, to the defendants, William Barr, James Keys, and John B. Ennes, his executors, upon the following trusts: “First.

This was an injunction to restrain the defendants from interfering with the personal liberty of the complainant; and was reserved for decision by the Supreme Court in Hamilton county.

<p>This was an action of assumpsit to recover a sum of money, as interest, upon a special contract, and was reserved from Medina county.</p> <p>There was a contract between the parties, dated in April, 1826, by which the defendant agreed to pay the plaintiff four thousand five hundred and eighty-six dollars, in four equal annual payments, in the years 1830-31-32-33, with lawful interest, to be computed from July 1, 1825, and to be paid annually. This suit was brought in 1829, to recover the arrearages of interest which had accrued; and the only question was, whether interest was allowable upon the successive annual charges of interest, after they fell due.</p>

<p>Execution can not issue on a general judgment of restitution, without first issuing a sci. fa.</p>

This was a motion for a new trial, reserved from the county of Cuyahoga. The plaintiff brought an action on the case, to recover special damages, sustained by himself'and family, in consequence of a mill-dam erected by the defendant across a branch of Yellow creek, in Cuyahoga county.

<p>A judgment lien upon land is not discharged, against a subsequent purchaser, by the fact that chattels were once levied upon, and the levy released, by the mutual consent of the parties to the execution.</p>

This was a suit in chancery, reserved for .decision by the Supreme Court in Hamilton county. The bill was filed in the court of common pleas, and set forth that the plaintiff, some time in 1816, purchased of one William Stewart, a certain lot of ground in Cincinnati, for the sum of one thousand five hundred dollars, and received from Stewart a deed of general warranty.

<p>A bill of exceptions lays no foundation for reversing tbe judgment, unless it contains matter distinctly showing that the party taking it might have been prejudiced by the judgment excepted to.</p>

Lewis was indicted and convicted of larceny. The indictment charged the goods stolen to be the property of Christian and William King.

<p>Judgment against principal and sureties upon a bond under the insolvent law; if a creditor of the insolvent would proceed upon such judgment by sci. fa. he must set forth and establish his debt. It is error to award execution in his favor if this is not done.</p>

Henry Raguet brought a suit in the court below, against Peter Roll and Charles Roll, upon a promissory note for the sum of five hundred dollars. Charles Roll was returned by the sheriff, not found, and the declaration was filed against Peter Roll, -in the common form of the payee against the maker.

<p>When the court of common pleas make an order under the statute to distribute fees between the late and present sheriff, the Supreme Court will not interfere unless a strong ease of abuse is presented.</p>

Motion to discharge a rule taken upon the defendant to show cause why process of contempt should not be issued against him; and was adjourned for decision from the county of Belmont.

<p>Where defendant justifies breaking plaintiff’s close and carrying away stone, under the act of Congress for constructing the National road, the plea must aver and set forth the facts that constitute the necessity for such an invasion of private right, or it is bad.</p>

An action of debt was commenced before the mayor of the town of Marietta, to recover a penalty for the violation of an ordinance of said town, to restrain horses from running at large. From the decision of the mayor, the defendant in error appealed to the court of common pleas.

<p>Where a tenant is in actual possession of a water grist-mill, and of the lands adjoining, on a contract indefinite as to time, and on a rent of a portion of the proceeds of the mill, the landlord can not maintain trespass against a stranger for destroying the mill-dam.</p>

These actions were brought in the Supreme Court of Hamilton county to recover the possession of certain lots in the city of Cincinnati. Declarations were duly served upon the tenants in possession.

<p>Where a plaintiff recites a special title in his declaration conducing to his cause of action, as an ordinance of a city corporation, he must set it out in terms.</p>

This was a suit in chancery, reserved for decision by the Supreme Court in Hamilton county. The bill sets forth that the complainants are the heirs at law of one Henson Reeder, who died in the year 1811. That some time in the year 1810,' Henson Reeder purchased a certain lot of land, in the city of Cincinnati, of the United States, and paid up r part of the whole of the purchase money, and obtained a certificate therefor, in the usual form, and took possession thereof.

<p>Money made upon a junior judgment in life can not be distributed to elder judgments and levies, where five years have elapsed from issuing an execution, and the judgment is not revived.</p>

This was a bill in chancery, to which the defendants demurred generally. It was certified here, for decision, from the county of Hamilton. The bill charged that the complainant purchased from Culbertson Parks three different but contiguous pieces'of' ground, now situate within the limits of the city of Cincinnati.

<p>A subsequent purchaser from a mortgagor can not be let in to redeem against a purchaser under a judgment on sci fa. on the elder mortgage, though not made party to the proceeding.</p>

This cause was adjourned here for decision, by the Supreme Court of Hamilton county. It was an action on the ease, for an injury done to the real estate of the plaintiff.

The bill states that a number of individuals, in Cincinnati, associated themselves together, as Methodists; and in 1807 purchased lots of ground, in Cincinnati, for the accommodation and convenience of themselves and others, for a place of worship and burial; and shortly after-the purchase, at their joint expense, erected a place of worship, and opened a burial place, in which the members of the society had liberty to bury their dead, free of expense; and others had leave,…