Volume 4 — Ohio State Reports, New Series

*Bill of review, filed in the old Supreme Court, in Montgomery county; reserved for decision in the old Supreme Court in ■ bank. A sufficient statement of the case appears in the opinion of the court.

<p>Error to the district court for 'Washington county.</p> <p>The action in the original cause was one of assumpsit.</p> <p>The bill of exceptions shows the following facts: In the year 1836, ithe (then) defendant, Palmer, and one Elijah Short entered into ■partnership in the business of buying and selling merchandise and ¡produce at Lowell, Washington county, Ohio, and the business was managed exclusively by Short, Palmer being a resident of the State ■of Pennsylvania. The firm continued to do business, a part of the time under the name of E. Short & Co., and the other part under 'the ’ name of E. Short, until the month of June, 1841, when, by ¡mutual consent, it was dissolved, and the following notice published in the Marietta Intelligencer, to wit:</p> <p>* “ NOTICE.</p> <p>“The copartnership heretofore existing between the undersigned, .under the firm of E. Short & Co., and E. Short, at Lowell, Washdngton county, Ohio, is this day dissolved by mutual consent.</p> <p>“The remaining unsettled business of the firm will be adjusted by E. Short, who is hereby authorized to close all business trans* actions of the late firm.</p> <p>“ E. Short,</p> <p>“Dowell, June 28, 1841. W. Palmer.”</p> <p>Dodge, who instituted this suit in the court below, was a subscriber to this newspaper.</p> <p>At the time of the dissolution, one Sally Dana held the promissory note of the firm of E. Short & Co., for a sum of money lent by her to the firm, which fell due some months afterward. On the day when the note came to maturity — viz., April 15, 1842 — Short, in the name of the late firm of E. Short & Co., with the said R. H. Dodge as surety, executed a new note to Mrs. Dana for principal and ten per cent, interest, due at twelve months. The agent of Mrs. Dana, who attended to the taking of this note for her, knew that the firm was dissolved. At the maturity of this last note, it was again renewed for a year, at the same rate of interest, by Short, in the name of the late firm of E. Short & Co., and with Dodge as security. In April, A. d. 1846, Short died, leaving the last-mentioned note due and unpaid ; and the same, with legal interest, was paid off by Dodge in the following month of June. He then brought this action of assumpsit against Palmer, the surviving partner, to recover from him the amount thus paid to Mrs. Dana.</p> <p>On these facts the counsel for Palmer requested the court to charge the jury that E. Short, after the dissolution, had no authority to give said note to a person having knowledge of the dissolution, so as to bind the late firm of E. Short & Co.; and that said Dodge, having gone security on the note given after the dissolution, and with notice of it, had no right to recover from Palmer the money paid by him in discharge of the note.</p> <p>The court refused to give these instructions, but charged the *jury, that Short, after the dissolution, could not give a note in the name of the firm so as to bind his copartner thereby; but if Short, in the performance of his agency in settling up the business of the firm, thought it necessary for the interests of the firm to renew the note, and in good faith obtained Dodge as security for that purpose, he (Dodge) might recover from Palmer the amount originally loaned to the firm, with six per cent, interest thereon.</p> <p>The jury having found a verdict, and judgment being given thereon for plaintiff, this writ is sued out to reverse that judgment.</p>

<p>Bill in chancery to foreclose a mortgage; reserved in Geauga county. The factB sufficiently appear in the opinion of the court.</p>

<p>N. being largely indebted, and in an amount beyond the value of all Ms property, made an agreement in writing with four of his creditors, by wMch he bound himself to execute a mortgage to one of them, who agreed to sign notes as surety to the others, upon certain real estate for the security of all the claims; and, at the same time, delivered to the agent of the creditors certain title papers to the property agreed to be mortgaged. N., afterward refusing to perform the agreement, made a general assignment of his property for the benefit of all his creditors. Upon a bill filed to compel the execution of the mortgage, and to set aside the assignment, or give these creditors a parmount lien upon the property: Held—</p> <p>1. That the agreement created no lien upon the land in favor of the complainants, as against other creditors, deriving an interest under the assignment.</p> <p>2. Upon general equity principles, unaffected by statutory provisions, an agreement in writing, for a mortgage, is a valid contract, fixing a specific lien upon the property; and will be specifically enforced by a court of chancery against the party, and all subsequent purchasers from Mm with notice, as well as against any general assignment, either voluntary or by operation of law, for the benefit of his creditors.</p> <p>3. As between the parties to such a contract, the agreement is valid and effectual in tMs state, and a specific performance may be enforced.</p> <p>4. But no effect whatever can be given to it, consistently with section 7 of the act of June 1,1831, to provide for the proof, acknowledgment, and recording of deeds, etc., as against third persons who have subsequently acquired the' legal title to, or a lion at law upon, the property to which it relates.</p> <p>6. By the positive provisions of that section, as construed by the declaratory *act of March 16, 1838, and repeated decisions of this court, as against such third persons, mortgages have no effect, either at law or in equity, until delivered to the recorder of the proper county for record.</p> <p>6. The legal rights of such persons can not be displaced at the instance of the holder of a prior unrecorded mortgage, or contract for a mortgage, although acquired with notice of such mortgage, or of the existence of such contract; the object of the law being to avoid all the vexed questions of notice, actual or constructive, in determining priorities of lien.</p> <p>7. A creditor of an insolvent debtor, or one having assumed liabilities for him as surety, may lawfully take from him a mortgage to secure such debt, or save harmless from such liability; and, as the reward of such diligence, will be protected in the priority thus obtained.</p> <p>8. But if he attempts to extend the lien beyond the necessity of his own indemnity, and secure the debt of any other creditor, the mortgage is, in substance and legal effect, an assignment within the provisions of the act of 1838, relating to assignments by insolvent debtors; and the mortgagee, being a trustee for such other creditor, under that act, becomes a trustee for all the creditors of the mortgagor.</p> <p>9. This act can not be evaded by assuming a liability as surety forthe insolvent debtor, as a part of the transaction by which the mortgage is taken. If, in this case, therefore, the mortgage had been executed, or should be now decreed, the security would inure to the benefit of all the creditors of the mortgagor.</p>

<p>Section 42 of an “ act defining the jurisdiction and regulating the practice of probate courts,” passed March 14, 1853, providing that, “ upon a plea other than a plea of guilty, if the defendant do not demand a trial by jury, the probate judge shall proceed to try the issue,” is a valid and constitutional enactment.</p> <p>A record showing that the accused “ did not demand a jury,” sufficiently shows a waiver of the trial by jury.</p>

<p>The findings of a court, when substituted for a jury, are entitled to the same consideration as the verdict of the latter; and it is well settled that a verdict will not be set aside, upon the ground of erroneous finding, unless it is clear that such is the case.</p> <p>It is only by force of an agreement of the parties, that the giving of an un-. sealed note by tbe debtor will be payment of a precedent debt. The burden of proof is upon the debtor, who must establish the agreement clearly; and the question whether ther.e was such an agreement, is one of fact to be determined by the jury.</p> <p>A Vendee of goods, subsequently to the purchase, gave his note for the price, but it was not received as payment. Afterward, the vendors, to whom it was payable, without any fraudulent purpose, and under an honest mistake of right, materially altered it. Held, that such alteration did not preclude a recovery upon the original cause of action, the precedent indebtness.</p>

^Petition in error, to reverse a judgment of the district court ..in Licking county. The case is fully stated in the opinion of the court.

^ The original proceeding was an action on the case for consequential damages to the mill of Horace Pease, defendant in error. It was commenced before a justice of the peace. Judgment was rendered by him in favor of Pease, and an appeal taken to the Montgomery common pleas by the city. At the November term, 1852, the demurrer was withdrawn as to the first count of the declaration and overruled as to the second.

The case is sufficiently shown by the following extracts from the ■record: Declaration. “ The State of Ohio, Muskingum county, ss. “ Court of common pleas of Muskingum county, of the term of .March, a. d. 1852. “ Mathew Wilson, Jr., by his attorneys, complains of David Dutro, in a plea of trespass upon the case; for that, whereas, the Hope Hose Company, No. 1, before and at the time of the committing of the grievances hereinafter mentioned, had and enjoyed a certain lot or…

<p>In respect to official acts, the law will presume all to have been rightfully done, unless the circumstances of the case overturn this presumption; and, consequently, acts done which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter.</p> <p>Facts presumed' are as effectually established as facts proved, so long as the presumption remains unrebutted. ,</p> <p>An entry, made by the registrar of aland office, in the “tract-book,” that certain tracts are “ school lands,” is prima facie evidence that they were duly selected and approved as such.</p> <p>Where such an entry did not show for what township the tracts had been selected, but they had been taken possession of, and held, as its school lands, for over sixteen years, by the township in which they lie, and no claim had been made to them during all that period, either by the government or by any other township, or by any individual, and no other school lands had been selected for said township, and there was no evidence that any other township was without school lands: Held, that it should be presumed that the lands had been selected for said township in which they lie.</p> <p>It may be that, under the acts of Congress of April 30, 1802, and March 3, 1803 (2 Stat. at Large, 173, 225; 1 Chase, 72-74), it was not necessary that a survey, even into townships, should have been made, in order that the title to section 16 should vest in the state.</p> <p>But it is not clear that it was designed, by these acts, to appropriate section 16, specifically within the bounds of the “donation tract,” for school purposes. It seems most likely that that tract was considered as falling within the denomination of lands “granted or disposed of,” referred to in the act of 1802; and that, therefore, not section 16, but, in the language of the act, “ other lands equivalent thereto,” were intended as the school lands of this tract.</p> <p>'The “ donation tract” was not required to be divided into sections by the act of Congress of May 10, 1800. 2 Stat. at Large, 73. That act required such lands only to be surveyed or subdivided, as the previous act of May 18, 1796 (1 Stat. at Large, 464), directed to be sold. But no part of thq “ donation tract” was ordered to be sold by this latter act. Besides, there are provisions in the act of 1800 that forbid its application to the “ donation tract.”</p> <p>’“There was ample authority, under the acts of Congress of 1803 aforesaid, and 1818 (.3 Stat. at Large, 409), to select school lands for the “ donation tract.”</p> <p>Under the provisions of the acts aforesaid, of 1802 and 1803, every township, fractional or entire, containing a section 16, was entitled to it for school purposes, if undisposed of; if disposed of, then to its equivalent.</p>

<p>Petition in error, to reverse a judgment of tbe district court of Crawford county, affirming a judgment of tbe court of common pleas of tbe same county.</p> <p>Tbe original action, wbicb was one of trespass, was tried by jury in tbe court of common pleas, and a bill of excepting was taken to the overruling of tbe defendant’s motion for a new trial, a verdict having been rendered in favor of tbe defendant in error, then plaintiff. Tbe defendant below attempted to justify as supervisor of roads. Among tbe reasons assigned for a new trial were tbe common assignments, that tbe verdict was against tbe evidence, against tbe law, etc. But tbe bill of exceptions does not state that all tbe evidence given at tbe trial is set forth — the language of tbe bill being that tbe witnesses, respectively, “testified in substance” as therein set forth; and in one instance, that a witness being recalled, “ made some explanations, and testified in substance as follows.” Another reason assigned was that David Pulton, one of tbe jurors, was not, at tbe time of tbe trial, an elector of this state, and that that fact was not known to tbe defendant until after tbe jury bad returned tbe verdict and were discharged. In support of this assignment, tbe defendant introduced the affidavit of Fulton, that be was called by the sheriff to fill tbe panel of tbe regular jury; that be was not, when tbe trial was bad, nor was be when tbe affidavit was made, an elector of Ohio; that for tbe (then) last three or thereabouts, be bad been a resident of Indiana, until about six months before the time of the affidavit, when he removed to Ohio; and that he was a citizen a.nd elector of Indiana until October, 1853 (the affidavit is dated April 18,1854); also, the defendant’s own affidavit that he did not know that Fulton was an incompetent juror at the time of the trial, “ nor did he consent to be tried by said jury, ^knowing the same to have any incompetent member thereon; ” that “ affiant was wholly unacquainted with said David Fulton, nor did sai d affiant know that said David Fulton did not have the legal qualifications of a juror, until after said jury had returned their verdict and separate; and during the pendency of the above motion for a new trial, if affiant had known that said David Fulton was not an elector or competent juror, affiant would have challenged him off said jury; and now affiant makes his objection at the earliest opportunity.”</p> <p>The court of common pleas having given judgment on the verdict for the plaintiff, the defendant (here plaintiff) filed his petition in error in the district court,‘adding to his other assignments of error, the following: “The testimony in regard to the survey of William C. Parsons is illegal, and was improperly admitted to the jury.” The testimony referred to is not matter of express exception in the bill of exceptions; but it appears that one witness testified that he “was present when Parsons surveyed the route spoken of; acted as chainman. We started at the west end of the route, and chained through to about opposite plaintiff’s house, and there set a pole,” etc., giving the result of the survey; and several other witnesses refer to the same facts, in greater or less degree.</p> <p>, The judgment of the common pleas being affirmed in the district court, Eastman has been allowed to file his petition in error, the object of which is to reverse the judgment of affirmance.</p>

<p>This was an application for leave to file a petition in error, to reverse a judgment of the court of common pleas of Trumbull county.</p> <p>*The material facts, as shown by the record, are as follows:</p> <p>At the March session, 1854, of the county commissioners of Trumbull county, said John Lamb and Jobn McKee, with numerous other freeholders, presented their petition for the establishment of a county road, between points and upon a line therein described; which line passed through the lands of said Benjamin Lane. Proof that due notice had been given being made, and a bond as required by law being executed by said Lamb and McKee, as principals, witb others as their sureties, the commissioners, at the same term issued their order to three viewers, to view the proposed road, and if they, or a majority of them, should he of opinion that it ought to be established, then to assess damages pursuant to the statute.</p> <p>At the June session, 1854, the viewers reported in favor of establishing the road, and that said Lane had claimed damages, and they had assessed them at the sum of $500. Thereupon, Lane and others presented a remonstrance, and prayed for a review, which was accordingly ordered, and five reviewers appointed.</p> <p>At the September session, 1854, the reviewers reported in favor of establishing the road, and the commissioners being of the same opinion, and also approvi ng the assessment of damages, it was ordered that it should he established upon the payment of the damages.</p> <p>From this decision Lane appealed to the probate court, wherein such proceedings were had, that; on October 17, 1854, his damages were assessed by a jury of six men, at four hundred dollars, which finding, with the other proceedings in the court, after being recorded, were certified by the judge to the county auditor, and laid before the county commissioners at their December session, ,1854. Thereupon, the commissioners ordered that the road should be established upon the payment of said four hundred dollars into the county for the use of Lane, and the same being afterward so paid on February 28, *1855, an order was issued to the proper supervisor to open the road.</p> <p>At the March term, 1855, of the' court of common pleas, Lane exhibited his petition in error against Lamb and McKee, praying a reversal of said final order of the county commissioners establishing said road, and assigning for error “that the said commissioners ordered the said road to be established without any opportunity on the part of the plaintiff to have his damages for the same assessed by a jury, as provided by the constitution of this state in his favor, and without any assessment having been made.” And, as reasons for making Lamb and McKee, only, defendants, he represented that they were the only principals in the bond hereinbefore mentioned, and that they were the principal petitioners for the road, the other petitioners having no interest in the subject beyond the general interest, and, besides, they were very numerous.</p> <p>To this petition, Lamb and McKee answered in nullo est erratum; and thereupon, at the same term, the cause came on to be heard, and the court reversed the order- of the commissioners; whereupon Lamb and McKee moved that the cause be set down for further proceedings in the common pleas, which motion the court overruled.</p> <p>To reverse this judgment of reversal, or, if that can not be done, to reverse the order overruling said motion, leave was asked to file a petition in error in this court; and the following errors were assigned, to wit:</p> <p>1. The court erred “in holding for naught and reversing the proceedings and order of the county commissioners.”</p> <p>2. “In rendering judgment in favor of Benjamin Lane and against the plaintiffs.”</p> <p>3. “ In refusing, a&er reversal, to cause a legal assessment of said Lane’s damages, and neglecting to «make any proper order in the premises.”</p> <p>4. “ In holding that the assessment of said Lane’s damages in *the manner shown by the record, was a violation of the constitution of Ohio..”</p>

<p>Where A is entitled to a conveyance of land from B, and A lias agreed to convey the same land to C, npon the performance, on the part of C, of certain conditions, and it is agreed between A and 0, that the deed shall be executed by B to C and deposited with a third person, to be delivered to 0 upon his performance of the conditions of sale; and the deed is accordingly executed and left with such third person, who afterward delivers the deed to 0 without the performance of such pondition, no title passes to C by such delivery.</p> <p>Where the condition upon which the deed was to be delivered, was in substance, among other things, that 0 was to. execute a mortgage upon the premises to be conveyed, to secure the payment of money for A to a third person, and a bill is filed by A for a specific performance of the agreement, a court of equity will compel the execution of the mortgage, or if the money thus secured to be paid is due, will decree the same a lien the land, and direct • a sale of tlie interest of A and 0 in tlie land, to pay tlie amount which, was to be secured by the mortgage.</p> <p>Where 0, after procuring the deed out of the hands of the person who held the same as an escrow, by unfair means, makes a mortgage on the same to a stranger, such stranger acquires no lien on the land which can be prior to the lien for the money which 0 was, by. mortgage, to secure to A before he was entitled to the possession of the deed.</p>

In Chancery ; reserved in Licking county. The case is as follows: On the 4th of February, 1839, Abraham Wright was the owner of one undivided third of a tract of 1,300 acres of land, the remaining undivided two-thirds being owned by Joseph Taggart, in his own right and as trustee of Edward Gray and Robert Taylor; and Joseph Taggart was also, as above, the owner of the ^undivided two-thirds of two other tracts, one of one hundred and thirty-two, and the other of one hundred…

William Rutledge and others, plaintiffs below, brought a civil action, in the court of common pleas, against Samuel Winegarner and Thomas Ewers, upon an administrator’s bond, given by Wine-garner as principal, and Ewers and others as sureties, reciting that Winegarner had been appointed administrator, with the will annexed, upon the estate of William Rutledge, Sen., deceased, and conditioned according to law..

Ejectment. Reserved in Licking county. The facts appear in the following agreed statement: “ It is agreed by the parties to submit the trial of the issues, joined in this case, to the court, on the following agreed statement •of facts: “ First. It is agreed that the plaintiff has no complete paper title. “ Second.

<p>Ejectment. Reserved in Licking county.</p>

<p>Motion for the allowance of a writ of error.</p> <p>The ease is stated in the opinion of the court.</p>

This is a proceeding in chancery, in which, among other things, partition of certain real estate is prayed for, and the question of the validity of a mortgage on the premises presented. The heirs of Ann Robinson, deceased, and also Daniel Heltzler, : are made defendants; the former as the owners of the fee of the undivided fifth part of the lands in question, and the latter as the holder of a mortgage lion upon the same interest.

*Bill in Chancery ; reserved in Montgomery County. This bill is filed to restrain the sale of chattels, taken in execution as the property of the husband of the complainant, upon a judgment in favor of Huffman. She claims that the property is hers by virtue of an ante-nuptial contract, entered into in Germany by her and her husband, before they emigrated to this country, a translation of which contract is here inserted: [hessian revenue stamp.] Obernkirchen, March 31,1838.

*Error to the district court of Miami county. The action below was assumpsit, brought March 13, 1851, by the plaintiff, Loudenbaek, as indorsee, against the defendant, Collins, as maker, of five promissory notes — two of which were drawn payable to William B. Spears, or bearer, and tbe others, to Chester Shattuck, or bearer.

Petition in Error,, to reverse tbe judgment of tbe common, pleas of Morrow county. Tbe original action was brought by tbe plaintiff in error, on tbe 15th of January, 1853, on tbe defendant’s guaranty of the payment of a promissory note, before George D. Cross, Esq., a justice of tbe .peace, who upon the trial of the cause, rendered judgment in favor of tbe plaintiff. Tbe defendant appealed.

^Petition in Error, to reverse a judgment of tbe district court of Trumbull county. The case is stated in the opinion of the court.

*This case was reserved from Columbiana county. It was before this court in 1849, on demurrer to the bill, and is reported in 18 Ohio, 116 ; and the demurrer was then overruled. It now comes before the court for hearing on the bill, answer, replication, and tes.timony. The facts of the case material to the question decided, are stated in the opinion of the court.

Case reserved in Muskingum county. The amended declaration counted on an indebtedness in the lifetime of the plaintiff’s intestate, from the defendant as executor, in the sum of two hundred dollars, “ for money then and there, by the appraisers of the estate of the said Joseph Dorah, deceased, certified to be necessary for her, the said Elizabeth Dorah’s, twelve months’ support, from the death of the said Joseph Dorah, deceased, she being his widow,” etc. The defendant…

<p>In Chancery. Beserved from Wood county.</p> <p>The case is stated in the opinion of the court.</p>

Petition in error, reserved in Fairfield county. The petition was filed in the district court to reverse a judgment of the court of common pleas, in a proceeding in certiorari. Thecertiorari was resorted to to reverse certain proceedings of the probate court, on an application by the Cincinnati, Wilmington, and Zanesville Railroad Co., for tlie appropriation of lands owned by John U. Giesy and Jacob Bowmaster.

The plaintiff, as administratrix, with the will annexed, of James Thompson, deceased, in the course of her administration of said •estate, in the year 1852, paid to the Ohio Life Insurance and Trust Company the snm of $700, principal, and three installments of interest, amounting to the sum of $87.30, being the amount then due. on a mortgage to said company, made by ¥m. Hamilton, in 1835,1 on lot No. 147, in Circleville, Ohio. *On the settlement of her accounts with the…

Petition in error, filed to reverse a judgment of tbe district, court in* Greene county, affirming a judgment of tbe court of common pleas — tbe last-named judgment reversing an order of tbe probate court.

W. H. Davis & Co., the plaintiffs below, brought an action of as.sumpsit against N. W. Graham & Co., the defendants below, which went by ajjpeal to the district court of Muskingum, where they recovered a judgment for $2,620.18 damages, and $194.94 coste; to reverse which judgment this petition is filed. *The third count of the declaration, and the bill of exceptions, are all the parts of the record necessary to be read for an un•derstanding of the case.

Certiorari, to the court of common pleas of Hamilton county.

This suit was originally brought upon the official bond of a justice of the peace. The questions presented arise upon demurrer to the plea.

*Bill in chancery, reserved in Hamilton county. On the 2d of April, 1851, the city council of Cincinnati, by ordinance entitled “to open North Elm street,” enacted that certain ground, specifically described, he condemned and appropriated to public use, as a street; that three disinterested freeholders of the •city he forthwith appointed by resolution, to separately assess, within sixty days, the damages and benefits of each owner of property, by reason of said…

The original action (on the case) was originally brought before a justice of the peace. The declaration alleges that plaintiffs are the owners of the premises ; that they were in the possession of their tenant at the time of the injury; and that defendants wrongfully blasted and threw large-quantities of rock, earth, and stones upon and *against the dwelling-house and fences, and broke and injured them.

The original action was debt,-upon a constable’s bond, against the - obligors, to wit, the constable and his sureties. The declaration was as follows: Court of Common Pleas of Erie County, of the Termof May, A. D. 1849. “ The State of Ohio, Erie County, ss: “ The State of Ohio, who prosecutes this action for the use of John Story, complains of Roswell J. Jennings, Alexander H. Barber, and Robert Cassidy, in a plea of debt.

*Error to the district court of Butler county. The defendants in error brought their action on the case, in the ■court of common pleas of Butler county, against the Cincinnati, Hamilton and Dayton Eailroad Company, to recover damages for the killing of two horses of the defendants in error, by reason of the careless and negligent management of a locomotive and train of cars of said company, by its servants and employes.

Petition in error, to reverse a judgment of tbe court of common pleas of Clinton county. *The case is stated in the opinion of the court:

Writ of error to the court of common pleas of Ashland county. Reserved in the district court for decision here. At the March term, 1854, of the common pleas of Ashland county, the plaintiff in error was indicted, tried, convicted, and sentenced .to five years’ imprisonment in the penitentiary, for the crime of .selling, bartering, and disposing of false, forged, and counterfeit bank notes.

In chancery; reserved in Ross county. The bill was filed July 27,1849, by the complainant, chiefly for the purpose of determining whether certain legacies given by the will of Andrew Simpson, deceased, to his children and grandchildren, were charges on the land devised by said Andrew Simpson to his son, Moore Simpson, and which the complainant claimed to have purchased from said Moore; and, in ease said legacies were charged on said land, whether the complainant, as such…

<p>Ejectment ; reserved in Fairfield county.</p> <p>Tbe case is sufficiently stated in the opinion of the court.</p>

<p>Writ of error to the probate court of Belmont county.</p> <p>*The case sufficiently appears in the opinion of the court.</p>

Reserved from the district court of Franklin county. Held: commencing on the 5th day of July next, such additional and adjourned term being necessary for the purpose of completing the business now on the docket and unfinished for the want of time.” On the 26th day of June the following entry was made at the close'of the day: “ And thereupon the court adjourned until nine o’clock on the 5th…

The object of the petition is to reverse a judgment recovered by Elliott against the company for killing his cattle.

*Eeeoe to the probate court of Morgan county. The facts of the case and the questions involved are fully stated in the opinion of the court.

Petition in error, filed by leave in this court, to reverse a judgment of the district court of Summit county. The case is sufficiently stated in the opinion of the court.

*The fourth count of the information upon which the plairtiffi in error was convicted, was as follows: And the prosecuting attorney aforesaid, in the name and by the authority of the State of Ohio, further gives said court to understand and be informed that said Elijah Woodworth, late of the township of Conncaut in the county aforesaid, on the ninth day of June, in the year of our Lord, one thousand eight hundred and fifty-four, in the township of Conncaut, in the county…

This is a petition in error, praying a reversal of a judgment of the district court of Muskingum county, etc. The case is stated, in the opinion of the court.

Mandamus. Leave given to amend the writ of mandamus in ten -days, and to answer the amended writ in ten days thereafter.

<p>The statutory provisions authorizing the establishment of township roads, do. not contravene the constitutional provision that “private property shall ever be held inviolate, but subservient to the public welfare.”</p> <p>A township road is as subject to public travel, and as free and open to every individual, as any other road in the state.</p> <p>But the-statute is fatally defective in this, that it makes no provision for a jury,, in the proper sense of the term, to assess the damages of the property-holder. Lamb and McKee v. Lane, affirmed.</p>

At the February term, 1850, of the Superior Court of Cleveland, 'Thomas Dowlin recovered a judgment against the schooner Marinda. To obtain a reversal of this judgment the schooner filed a petition in error in the Supreme Court, at December term, 1854. Dowlin now moves that the petition be dismissed, because *it \was filed more than three years after the rendition of the judgment.

<p>Where a person is restrained by injunction from making a race to his mills and the conditions of the injunction bond are, that the obligors will pay all moneys and costs due and to become due, from the complainant in the bill, and all moneys and costs which shall be decreed against him, and the bill is dismissed at the costs of the complainant, the person so restrained can sustain an action on the bond against the complainant and his sureties, to recover the damages sustained by reason of the injunction.</p>

<p>The courts of probate in this state, by section 2 of the act of March 15,1853, defining their jurisdiction and regulating their practice, were invested with power, upon final settlement with the administrator of an intestate estate, to order distribution of the money remaining in his hands to the persons entitled thereto.</p> <p>There exists no constitutional impediment to conferring such power upon that court.</p> <p>In the exercise of this jurisdiction, the court is authorized to determine every disputed question of fact (or, in its discretion, to cause the same to be de termined by the verdict of a jury) which may be necessary to ascertain the amount justly due from the administrator to such distributees.</p> <p>Such order of distribution has so far the force and effect of a judgment that it may be enforced by execution.</p> <p>The powers of the court are exhausted when the order of distribution is made; and it has no jurisdiction to entertain a petition brought to enforce the collection of the amount awarded to the distributee as a debt against the administrator.</p>

March 19, 1853, McCarter brought an action of assumpsit against Jacob Stober, as administrator of John Stober, deceased, to recover the price of work done for, and goods sold to, the intestate.

*Writ of error to the common pleas of Hamilton county. Eeserved in the district court. The case is sufficiently stated in the opinion of the court.

Error. Reserved in the district court of Perry county. The judgment in the court of common picas was for Sturges, a motion for a new trial made by defendants being overruled. The case was taken on error to the district court.

Writ of error to the court of common pleas of Butler county. *At the September term of the court of common pleas of Butler county, 1854, the plaintiff in error was put upon his trial, on an indictment containing four counts, the first of which charged, an assault with intent to murder; the second, an assault with intent to rob; and the third and fourth counts, respectively, a robbery, under section 15 of the statute for the punishment of crimes.

The judgment sought to be reversed in this proceeding is that of the district court, affirming a judgment of the court of common pleas of Hamilton county, in an action on the case, in which the plaintiff in error was also plaintiff, and the defendant in error was defendant.

<p>Where a treasurer elect, on the first Monday of June next after his election, executed and delivered a bond to the commissioners of the county with sufficient surety, according to the statute, and the commissioners on that day neither accepted nor rejected the bond, but on the next day approved it, and the treasurer immediately thereafter took the necessary oath, and had the same indorsed on the bond, he thereby became the legal treasurer of the county.</p>

<p>Mandamus.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

<p>An information charging the defendant with selling intoxicating liquors to A, a person who then and for a long time had been in the habit of getting intoxicated, which habit was then and there well known to the defendant, ought not to be quashed upon the ground that the affidavit upon which the defendant was arrested did not state that defendant knew A was in the habit of getting intoxicated.</p> <p>A count in an information charging B with selling intoxicating liquors to be drunk at the place whore sold, will be sustained by proof that the liquor was sold by C, as the agent of B, and that it is not necessary to aver, in the information, that it was sold by an agent.</p> <p>Where the testimony shows that the liquor was sold in the house of the defendant and at his bar, by his son, in the absence of the defendant, without any other evidence of the agency, it is error in a court to charge that such testimony makes a prima facie case of authority, from the defendant to the son, to do the illegal act.</p>

Reserved by tbe district court of Cuyahoga county, on a motion for a new trial. The facts are stated sufficiently in the opinion of the court.

Petition in error, to reverse the judgment of the district court an Hancock county. The case appears in the opinion of the court.

<p>In a proceeding to appropriate the land of a person for the use of a railroad company, the owner of the land proposed to be appropriated is a competent witness to testify in his own behalf, provided the proceedings have been instituted since the code took effect.</p> <p>As a general rule, the opinion of a witness as to the amount of damages which the landholder will sustain by reason of the construction and use of a railroad is not evidence.</p>

<p>In error to the district court of Erie county.</p> <p>February 14, 1851, Follett, as administrator of Wood, for the use of Bear & Moore, brought an action of assumpsit, in the Erie common pleas, against Buyer, on a note, or due-bill, for $100, dated February 21,1849, made by Buyer, and payable to Wood or order.</p> <p>Buyer pleaded to the declaration non assumpsit, with the common notice of set-off.</p> <p>The jury found a special verdict, which, omitting the formal parts, is as follows :</p> <p>“ The jury, upon their oaths, do say:</p> <p>“ 1. That the amount of the note, due in one day from date, of *N. Buyer, to Wood, is one hundred dollars, and interest on game to September 22, 1851, $15.50 ; making $115.50.</p> <p>“ 2. The amount of Buyer’s account against Wood, accruing previous to Wood’s death — it being the balance due, including interest thereon — is $22.96; which accrued before Buyer had notice that Bear had the note.</p> <p>“3. The amount of money paid‘by N. Buyer for the use of Wood,, on judgment of Flood & Landsdown v. I. Wood’ — which was entered April 13, 1849, and bail entered by N. Buyer April 23, 1849, —which judgment N. Buyer has paid, to the amount of $51.24.</p> <p>“ Also a joint note, made to Ira Brainard by Joshua Wood, with N. Buyer as surety, dated January 25, 1849, due six months from date. Judgment rendered September 20, 1849, against N. Buyer' alone, amounting, September 22,1851, to $64.04; which has been by Buyer, in amounts, as follows: Paid September 24,1850r $34.00 — interest on same, $2.04; paid October 4, 1850, $20.00 — interest on same, $0.85 ; paid October 19, 1850; $7.80 — interest on -same, $0.30; making $64.00.</p> <p>“4. That Bear obtained the note on or about June 17, a. d. 1849; about that time gave to Buyer notice thereof.</p> <p>“5. That the defendant became liable on the judgment of Flood .& Landsdown April 23,1849, and to Ira BrainarcT, on note and judgment, January 25, 1849.</p> <p>“6. That Joshua Wood died July 20,1849.</p> <p>“But whether, upon the whole matter aforesaid, by the the jurors .aforesaid in form aforesaid found the said defendant is entitled to ■set off the said moneys, so paid by him for said Wood, deceased, against the said plaintiff’s claim, the jurors aforesaid are altogether ignorant, and therefore they pray the advice of the court; and if,” etc.</p> <p>The court held that he was not entitled to set off the moneys *paid by him upon the judgments aforesaid, but allowed the set-off of $22.96, due upon account; and gave judgment accordingly.</p> <p>To reverse this judgment, Buyer filed a petition in the district court, assigning for error said non-allowance of set-offs. The court reversed the judgment. To reverse the judgment of reversal the present petition was filed.</p>

<p>Section 92 of the justices’ code (Swan’s Stat. 514) does not make the payment of the jury fee a condition precedent to the rendition of judgment. If it be not paid, the justice may make an order that the successful party pay it. and enforce such order by an attachment; but he can not omit to give judgment because it is not paid.</p> <p>Section 107 of the justices’ code provides that, “upon a verdict, the justice must immediately render judgment accordingly.” This provision may not make a judgment rendered upon a subsequent day absolutely void, but it makes it irregular; and for such irregularity, when not waived, it is reversible.</p> <p>The common pleas, upon the reversal of such a judgment, must retain the cause for trial and final judgment.</p>

Motion by Abbey, for leave to file a petition in error, to review •a judgment recovered against him by Searls & Rider, in the district -court of Cuyahoga county.

From Summit county. This was a bill of review, the object of which was to reverse a decree pronounced by the late Supreme Court, in Summit county, in a suit brought by William Wetmore against Joseph Hale, executor, and others. The papers having been returned to the county shortly after the rendition of the decree of reversal, hereinafter mentioned, the opinion of the court could not be drawn up at length.

<p>*Bill of review; reserved in the district court of Butler county.</p> <p>The original bill was filed by the complainants, in the court of ■common pleas of Butler county, in 1853. It prayed that a certain mortgage, executed by Daniel Leiby to Joseph, Jacob, and George Leiby, on certain real estate at Middletown, Butler county, might be postponed or set aside, and the property so mortgaged sold for the payment of judgment liens and the general benefit of creditors. The petition represented that the complainants recovered said judgments in the years 1848-9, against Daniel Leiby and BE. P. Clough ; that BL. P. Clough had no property out of which the judgments could be made, and that levies had been made upon the property in Butler county, and also upon certain real estate owned by Daniel Leiby, in the city of Cincinnati; that the Cincinnati property was mortgaged by Leiby to Gardner Phipps, one of the defendants, on the 20th of October, 1847, to secure the payment of three promissory notes, each for the sum of $2,387.49 ; that Phipps had instituted a suit in Hamilton county and obtained a decree, by virtue of which the said property had been sold at a great sacrifice to said Phipps; and that the proceeds of said sale were applied, first, to discharge the amount found due to Phipps by the decree, and the residue directed to be paid to George Leiby, Joseph Leiby, and Jacob Leiby, upon a certain pretended mortgage given by Daniel Leiby to them, dated June 3, 1848; that complainants were not made parties defendants to the proceedings in Hamilton county, although most of them had a subsisting levy upon the said'premises; that they knew nothing of the said proceeding until after the sale, and that they claim not to be prejudiced thereby ; that the mortgage given to George, Joseph, and Jacob Leiby, was without consideration, and for the purpose of defrauding complainants and other creditors of Daniel Leiby; and that the mortgage did ■*not sufficiently describe the said premises, and was not legal notice to the creditors who levied upon the said premises.</p> <p>The complainants further stated, that on the 3d day of June, 1848, Daniel Leiby executed a certain other mortgage to George, Jacob, and Joseph Leiby, by which, in consideration of several thousand dollars pretended to be paid, he conveyed to them some pretended interest in certain real estate, by the following desorption : “All that certain.real estate, to wit — all the real estate owned and held by the said Daniel Leiby, in the town of Middletown, in the county of Butler, and State of Ohio, and being the same conveyed by Abner Enoch to said Daniel Leiby, and by George Leiby to said Daniel Leiby; also all the real estate owned and held by said Daniel Leiby, in common with other persons, being the interest of said Daniel therein, in said town of Middletown, and all the equitable title of said Daniel Leiby, in his mill property at Middletown aforesaid, held by said Leiby under contract.” The bill then states that, by virtue of the said mortgage, George, Jacob, and Joseph Leiby pretend to have a prior lien upon the property levied upon by complainants, in the county of Butler; and complainants claim that said mortgage is void lor uncertainty and indefiniteness of description, and deny that it constituted.any'notice to them of its being a lien on said property levied on, or that they had notice otherwise of that fact. They also claimed that the •mortgage was void for the uncertainty of its condition, inasmuch as it recited that George, Jacob, and Joseph Leiby were indorsers and security for Daniel Leiby, in divers sums of money and debts, due and to become due, but did not state the amount for which the mortgagees were security; nor to whom the same, or any part, was due ; nor the nature of the security; nor any other fact by which a creditor of Daniel Leiby’s could ascertain the validity of the mortgage lien. They further insisted that, if held valid, the mortgage must be, in equity, construed to be an assignment in trust for the benefit of all the creditors of said Daniel Leiby.</p> <p>*In the answer, the respondents, George, Jacob, and Joseph Leiby, deny that they received any surplus under the foreclosure made by Phipps, on the property in Cincinnati; and they also deny that the mortgage made to them by Daniel upon said property, was without consideration, and for the purpose of defrauding and delaying creditors.</p> <p>Respondents set forth, that the consideration for the mortgages was the liability of the said George, Jacob, and Joseph Leiby for the sum of $8,188, besides interest, incurred by them as indorsers and securities for Daniel Leiby. Gardner Phipps, in his separate answer, stated that the mortgage given to him by Daniel Leiby, upon the property in Cincinnati, was to secure the payment of $7,162.47, money before the date of the mortgage loaned by him to the mortgagor; that the premises were then incumbered by a mortgage to the Ohio Life and Trust Company, which respondent was compelled to redeem; that complainants were made parties and duly served with process, and that when the property was sold under the decree, it was purchased by him for $6,196 — out of which tho Trust Company’s lien of $1,105 was paid, together with the costs of suit, and the residue applied upon the mortgage of the purchaser; and that no part of the balance remaining due on the mortgage has since been paid.</p> <p>At the term of the Butler county common pleas, April, 1852, the-cause was heard. The court found that the lien of Gardner Phipps upon the premises in Cincinnati was the prior lien; that the proceeds of the sale of said premises had all been distributed, and could not be reached. And they further found, that the mortgage given-to George, Jacob, and Joseph Leiby, covered all the real estate held by Daniel Leiby in Butler county; and that it was an assignment by said Daniel, in trust, in contemplation of insolvency, and with a design to cover George, Jacob, and Joseph Leiby, John Shafer; Isaac Gardner, Gustavus W. Wampler, Samuel Lucas, and Aaron Russell,, creditors of the said Daniel Leiby; and that it ought, in equity, to inure to the benefit of all the ^creditors of Daniel Leiby, according to the amount of their claims, respectively.</p> <p>The cause was carried to the district court, which found that the mortgage upon tho property in Butler county was made in good faith, and valid; and that it gaye a prior lien upon the premises to-George, Jacob, and Joseph Leiby, John Shafer,.etc. The complainants then prefered this bill of review, which was reserved in the district court.</p>

<p>' In a proceeding upon habeas corpus, instituted by the father.of an infant child, against the mother, who is living in a state of separation, to obtain its custody, it is error to reject evidence offered by him, either in the first instance, or by way of reply to evidence of qualification on her part, to show her unfitness to have the custody of the child.</p> <p>In such a controversy for the custody of a child incapable of electing for itself, the order of the court should be made with a single reference to its best interests.</p> <p>Neither of the parents has any rights that can be made to conflict with the welfare of the child.</p>

<p>A lien on property, subject to levy on execution, Tvas not obtained by filing a bill, under the act of February 25, 1848, amendatory of the chancery practice act of 1831 (46 Ohio L. 96); therefore, such property, when not in the hands of a receiver, might be taken on the executions of third persons, notwithstanding the pendency of such a bill.</p> <p>'The pendency of an action at law was indispensable to authorize the filing of such a bill.</p>

The original action was one of assumpsit, brought in the court of common pleas of Hamilton county, Pecember 29,1852, but *re■moved to the Superior Court of Cincinnati, by consent of parties, May 11, 1854. The declaration is for money had and received, money paid, money lent, and money found to be due on an account ■.stated. The plea is the general issue.

Petition in error; reserved in the district court of Belmont county. The object of the petition is to reverse a judgment of the court of common pleas of the same county. The original proceedings were under the bastardy act.

<p>Certiorari to the district court of Union county.</p> <p>The case is stated in the opinion of the court.</p>

The original action was one before Isaac Fleming, a justice of the peace, founded upon breach of warranty in the sale of a horse. The defendant in error was plaintiff, and the justice gave judgment for defendant, whereupon defendant in error appealed and filed his declaration in the common pleas in assumpsit.

The original action was brought to recover from the defendant, for the construction of its railroad upon 'the lands of the plaintiff, by which he claimed he was damaged f 4,000.

Bill of review. The cause of Sturges & Anderson v. Nicholas Longworth was decided at the January term of this court, 1853, the decree of the court below in favor of the defendant being reversed. To review this decision the bill now before the court was filed ; and this is a motion to dismiss the bill, on the ground that the court has no jurisdiction to entertain it.

Reserved in Columbiana county. This was an action on the case, brought in tbe common pleas of Columbiana county, October, 1852, to recover from defendant, as a common carrier, tbe value of a wagon and four horses and harness, lost in crossing tbe Ohio river on defendant’s ferry-boat.