Volume 5 — Ohio Public Domain Citations

<p>'Teller of a bank competent witness to testify concerning the handwriting of president and cashier.</p> <p>Persons skilled in a knowledge of handwritings competent to testify concerning them, although they never saw the parties write.</p> <p>Whether a bank note offered in evidence on an indictment for counterfeiting be subscribed H. or N. Biddle is a question of fact, and the decision upon it can not be raised in error, unless the note accompanies the record. Quaere, if it can be alleged as error.</p> <p>An indictment for counterfeiting need not set out an indorsement upon the counterfeited paper. ■</p> <p>In prosecution for having counterfeit notes in possession, proof that other counterfeits were found secreted in prisoner’s house, and in possession of .his wife, is admissible.</p> <p>Indictment against two, one only put upon trial. It is not error if it can be justly inferred from the record that an order for a separate trial was madej though it does not appear in form upon the record. Two may be joined in indictment for having counterfeit notes in possession.</p> <p>An indictment for haying counterfeit bank notes in possession, and for making sale of them, need not charge that the sale was for a consideration, or to the injury of any one, or that the notes were indorsed. And if such acts are charged to be felonious, it is not error.</p>

This was an action of debt on the act of assembly assessing a tax upon lawyers. The cause was tried by jury at the May term of Hamilton county, on a written agreement as to evidence and the questions to be made under it. It was admitted that the court assessed a tax of five dollars on each member of the profession and on the defendant, as stated in the declaration, defendant to make any and every constitutional objection to the action.

This cause came before the court on a writ of error to the court ■of common pleas of Hamilton county.

This was an action of ejectment, submitted to tbe court upon an agreed statement of -facts, in the county oí Hamilton. The following is the state of facts: Wm. McMillan devised the lands in-controversy to his wife, for life, without impeachment for waste — reversion to the lessors of the plaintiff. The wife, tenant for life, is still alive.

This was a suit in chancery, reserved from the county of Greene. The bill sets forth, in substance, that Williams, in September,. 1817, sold and conveyed, by deed of bargain and sale', to one David Connelly, two hundred and sixty-nine acres of land, in the county of Greene, for three thousand five hundred and ninety-six dollars, sixty-six and two-third cents.

This cause came before this court by adjournment from the county of Muskingum. It was an action on the case for a nuisance, brought against the-testator in his lifetime, and to which his executrix, after his death, was made a party by scire facias, under the statute of Ohio. The suit was commenced January 26, 1829. After issue joined' the defendant died.

This was a suit in chancery in the county of Hamilton, where it stood upon bill and demurrer, and was adjourned here for decision. The object of the bill was to quiet the complainant in the title and possession of a certain tract of land therein described, situate in the county of Hamilton, and which he claims to hold, by virtue of a deed from one Nicholas Longworth, bearing date April 4, 1829.

This suit was brought in the name of Ethan Allen Brown, Ebenezer Buckingham, and Simon Perkins, described as commissioners of the canal fund. The declaration was in assumpsit; the plea, the general issue.

This cause came before this court, by adjournment from the •county of Licking. It was an action of trespass, guare clausum fregit, and was submitted to the court upon an agreed statement of facts.

This cause was reserved for decision here, in the county of Licking. It was an action of assumpsit, upon promises between the respective intestates. The first cause is upon a note for thirty-five dollars, in grain or pork, given by the intestate of the defendants to the intestate of the plaintiff. The second count is upon a similar note for twenty dollars.

<p>:If administrator pay out all the personal estate to one creditor, where the estate is solvent, by selling the realty, and does not apply for such sale, it is a devastavit.</p> <p>Under our law plene administravit is an immaterial plea.</p>

This cause was adjourned here for decision from the county of Hamilton. It was an action of replevin for taking and detaining ■ one hundred and seventy-five bales of sheetings and eighty-three bales of shirtings. The following pleas were filed to the declaration: 1. Not guilty; 2. Non ceperunt; 3. Avowry property in John. -Clark and Charles Bradley. On all these pleas issue is joined.

<p>Where, upon demurrer, the matter of a plea is adjudged no bar, and a writ of inquiry awarded, the case is not opened by the jury of inquiry returning a special verdict, finding the ¡same facts. The judgment on the demurrer estops the party against whom it is given.</p> <p>A covenant with B. that 0. shall sell and account for the price to B. for all merchandise B. may put into C.’s hands to sell. B. settles with C., finds a balance due, and takes C.’s note, one day after date, for that balancer Held, that if the note is not paid, A. is liable on his covenants.</p> <p>Where justice is done by the verdict, the court will not grant a new trial and leave to plead to let in a mere technical defense.</p>

This case was adjourned here for decision from the county of' Hamilton. It came before the court upon a motion made by the plaintiff for a repleader and a new trial. It was an action on thecasé brought by the plaintiff, owner of the reversion in certain-lands through which the Miami canal passed, against the defendant, charging him with entering the land unlawfully, and digging up and carrying away the soil. Two pleas were pleaded not guilty, upon which issue was joined.

<p>This was a suit in chancery, adjourned here for decision from •the county of Knox.</p> <p>The complainant was a creditor of Christopher Myers, and the ••object of the hill was to set aside certain conveyances made by •him to his sons as fraudulent, and to subject the property conveyed to the payment of the complainant’s debts. The case made in the papers was this :</p> <p>In the year 1819, Christopher Myers contracted with the com•plainant for an exchange of land, valued at twelve thousand dollars. Of this sum, nine thousand dollars was paid by the conveyance of a tract of land. The payment of fifteen hundred dollars •was secured by a mortgage upon part of the land obtained from complainant, and a covenant was executed by which C. Myers bound himself to convey to complainant, within five years, a house .and lot in Zanesville, or pay him fifteen hundred dollars. This house was then the property of a son-in-law of C. Myers.</p> <p>In 1820, C. Myers conveyed to his sons and sons-in-law, who are .nil defendants, five tracts of land, one to each, for the consideration expressed of one thousand dollars each, but, in truth, for the cqnsideration of natural love and affection, and an annuity from</p> <p>• each, during life, of twenty dollars. At the time these conveyances were made, they included all the property then owned by ■0. Myers.</p> <p>At the time of making the original contract with complainant, the sons and sons-in-law of C. Myers were present, and it was declared by him, in the presence of them and of complainant, that his object was to provide for his sons and sons-in-law, and settle them arouud him.</p> <p>Subsequent to the conveyances by C. Myers to his children, he •failed to obtain for complainant a conveyance of the house and lot :in Zanesville. Suit was brought,, and judgment recovered for fifteen hundred dollars, which is the debt which the bill seeks to-have paid.</p> <p>At the time of making the original contract, C. Myers was not in* volved in debt. In the different answers of the ^defendants, it is alleged that complainant agreed that upon receiving a conveyance of the house and lot, he would release an equal value .of the mortgaged lands. That he refused to do this, but prosecuted the mortgage, and sacrificed the lands ; and for this reason the. conveyance-was not made. A conversation importing an understanding, such as is claimed in the answers, was proved to have taken place,, while counsel was preparing the deeds and mortgages.</p>

This cause came here from the coun ty of Butler, on exceptions to the report of commissioners appointed to value improvements. The plaintiff recovered in ejectment, and, on the motion of the defendants, commissioners wero appointed to value the land and the improvements under the statute of the state. The land recovered was one hundred and six acres and two-thirds.

<p>This cause came before the court upon a writ of error toa judgment, of the court of common pleas of Hocking county, and was-adjourned here for decision by the Supreme Court sitting there.</p> <p>The original case was this: An action of debt was brought in the name of the State of Ohio, for the use of Jacob Clive, against Joseph Westerhaven. The declaration counted upon a bond mad» by Joseph Westerhaven and others, on May 2, 1826, conditioned, that if Simon Decker should well, truly, and faithfully discharge the duties of constable for the township in the year 1826, etc. The declaration averred that Decker held the office of constable for the year 1826; that on May 20, 1826, an execution was put into his hands, in favor of Clive, against one Burt; that Decker refused and neglected to levy upon property to make the money due on the execution; that for this default Clive recovered judgment against'Decker, upon which execution had issued and return made that nothing could be found to satisfy the same.</p> <p>The general issue of non est factum was pleaded, with a notice. This notice set out that Docker was elected constable, but did not give bond within ten days, whereupon the trustees appointed another person to the office of constable; that if defendant ever did give bond for Decker, it was with other obligors than those-named in the bond declared upon; that the bond declared upon never was delivered to the clerk of the township, and by him. received as defendant’s bond; and that the same never was approved of by the trustees. Yerdiet and judgment for the plaintiff.</p> <p>At the trial the plaintiff offered in evidence the record of the-judgment, Clive v. Decker, which was objected to, but received. Defendant excepted.</p> <p>Plaintiff then gave in evidence the township record, containing-the subjoined entries: “April 16, 1826. Ordered, that Horae» Stone and Samuel Alexander be appointed and *serve as constables for said township the present year, and that they be notified of their appointment by the township clerk.”</p> <p>“May 2, 1826. Simon Decker gave bond as.constable, in the-sum of six hundred dollars, with Joseph Westerhaven, T. W. Claxton, W. Wallace, and J. W. Coffinberg as sureties — bond filed the same day.”</p> <p>Whereupon the defendant offered to prove by the individuals-who were trustees at the time, that the bond declared upon was-never accepted by them, but absolutely refused and rejected. The-plaintiff objected to the admission of this testimony, and the court rejected it. The defendant excepted.</p> <p>The evidence being closed, the defendant moved the court to instruct the jury, that the bond not being given within ten days-after the election, and a new appointment having been made, there-being no evidence of the reappointment oí Decker, he could not be held a constable, and the bond was not obligatory; that the township record showed that Wallace was a surety, in the bond accepted, and his name not being on the bond declared upon, it-did not appear that the bond declared on was the one on which Decker acted as constable.</p> <p>The court refused to give all the instructions asked for, and the-defendant excepted. The errors assigned were predicated upon these different exceptions.</p>

This cause was adjourned for decision here from the Supreme-Court of Pickaway county. The ease made in the bill was this: The complainant alleged that he was owner of a tract of land, and' in its actual possession and ^occupancy, situate between the Ohio canal, a certain feeder and dam and' the Scioto river, the feeder being upon the land thus owned and possessed by the complainant.

This case was adjourned from the county of Ross, and came before the court upon an agreed state of facts. It was an action of covenant upon a warranty in a deed of conveyance made by Kerr,, in his lifetime, December 30, 1807, to M. Baldwin, for a lot in the-town of Chillicothe, in which deed the consideration expressed was two hundred dollars.

This case was adjourned here for decision from the county of Hamilton. The bill charges that in the year 1803, the Miami Exporting Company were incorporated and organized, and that, before the year 1818, the complainant became the owner of two hundred shares of the stock, at the price of one hundred dollars per share.

<p>This was a writ of error adjourned here for decision from the -county of Ross. The executors of Rogers brought suit in the common pleas against the plaintiffs in error, and declared upon a penal bond for four thousand two hundred and fifty-seven dollars, dated August 12, 1828; conditioned, that Thomas Scott and others had, ■on April 20, 1828, obtained writs of error and supersedeas to'the common pleas of Ross county, to a judgment recovered by said executors against said Scott and others at June term, 1827, and if they should prosecute said writ to effect, and abide the judgment of the -court thereupon had, then the obligation should be void. The plaintiffs aver, that at June term, 1823, in the lifetime of Rogers, he recovered judgment in said court against Scott, Rutledge, and Burden, for two thousand one hundred and twenty-eight dollars and twenty-five cents damages, and twelve dollars and ffty-two cents costs; and that in June, 1827, Rogers having died, the judgment *unpaid, his executors sued out a scire facias to revive said judgment, and obtained an order of revivor and for an execution in their names; and aver further, that at November term, 1828, of the Supreme Court, the said judgment of revivor was affirmed on said writ of error,with costs amounting to eleven dollars and sixty cents, yet the said Scott and others had not paid said judgment revised as aforesaid, nor said costs on the affirmance; and so said Scott and others did not prosecute said writ of error to effect, and abide the judgment of the court thereon, whereby ah action hath accrued, etc. To this declaration, defendants below pleaded non est factum, and annexed thereto, under our statute, a notice of several matters in bar. 1. That by the terms of the bond and conditions, they only became bound for the judgment named in the condition,, and not for the judgment mentioned in the declaration as recovered by the testator in June, 1823, and only liable for the costs on the scire facias, and on the writ of error. 2. That after the judgment of affirmance on the writ of error, and before the commencement of this suit, they paid the costs on the judgment of revivor, on the sci.fa., and of the writ of error. 3. That the bond is void because not made in conformity to the statute. 4. That no execution had been issued against Scott et al., and “ returned no goods or lands,” in the matter aforesaid, but, on the contrary, property of theirs had been levied on sufficient for the payment and.satisfaction thereof.</p> <p>On the trial, the plaintiffs below offered in evidence the record of the proceedings on the writ of error described in the condition of the bond, showing the judgment in favor of their testator, the judgment of revivor, etc., as described in the declaration. Upon which writ of error, the plaintiffs in error assigned errors as well upon the original judgment in favor of the testator, as on the judgment of revivor. To the assignment of errors upon the original judgment in favor of Charles Rogers, the defendants in error pleaded in bar the statute of limitations, which being demurred to, was, adjudged for them. Upon in nullo est erratum, to the errors assigned on the judgment of revivor, the judgment was affirmed with costs. It was admitted by the plaintiff’s counsel, that before this suit was brought, execution had issued on the judgment in favor of the executors as aforesaid, which had been levied, and remained levied on lands of the defendant, Purdon; and also, that no execution had been taken out and returned “ no goods,” etc., against the-1 principal obligors. The defendants below objected to this evidence, as insufficient on which to render judgment against them, under their plea and notice, and that upon the whole case judgment ought to be for defendants. The court overruled the objections, admitted the evidence, and gave judgment for plaintiffs; to which defendants excepted, and tendered a bill of exceptions. Upon this-bill of exceptions general errors are assigned</p>

This case was adjourned here for decision from the county oí Knox. It was a bill in chancery by Norton, who had purchased certain lots of land under execution to enjoin a sale under an elder judgment. The material facts of the case are as follows: In November, 1819, Beaver recovered a judgment against S. 0.

<p>■Oase on facts. Equity does not correct errors in the proceedings of the court of law.</p>

This case came before the court by adjournment from the county of Champaign.

This was a billl in chancery brought here for decision from the county of Washington. The complainant, who describes himself a supervisor of highways, sets forth in his bill that a certain county road runs along the bank of the river Muskingum, between certain lots in the town of Marietta and the river, which lies-within his district.

<p>A deed not attested by two witnesses, does not operate to pass the legal estate in land, and unless it does so operate, it can not contain a covenant of warranty, that works an estoppel against the maker, in asserting the • legal title remaining in himself. «</p> <p>Conveyance made to the Shaker community, where wife is united to such community, in which provision is made for minor children, qucere, is void', under the statute ?</p> <p>Son, thirty years of age, living separate from the father, not protected by the'. statute.</p>

This cause came here for decision from the county of Ross. It was a bill in chancery asserting that the complainant held the legal title to certain lands, and was in possession, and that the respondents pretended a claim to the same lands. The prayer was that the complainant might be quieted against the claim of the defendant. The facts material to the decision of the cause are-set out in the opinion of the court.

<p>This was an action of debt upon an administrator’s bond, and was adjourned here for decision from the county of Franklin, on a demurrer to the declaration.</p> <p>The declaration set forth a bond, wherein it was recited that Robert W. Riley had been appointed administrator of James Downs, deceased, and that on December 8,1824, the other defendants, with Robert W. Riley, made the bond in due form of law. It then averred that Riley, as administrator, settled his accounts with the court in September, 1828, when a balance was found in his hands of one hundred and eighty dollars; that debts were due from the es.tate of Downs which Riley had neglected to pay, whereupon the court removed him from the office of administrator, and appointed George Raridon, for whose use this suit was prosecuted. It further avers that Riley refused to pay the balance to Raridon, etc.</p> <p>The defendants demurred generally.</p>

This cause came before the court, upon a writ of error to the common pleas of the county of Morgan,'and was adjourned here for decision by the Supreme Court in that county. The original suit was an action of replevin, brought by Gundy against Roland for a horse. Yerdict and judgment for the plaintiff.

<p>This was a suit in chancery, certified from Stark county. The bill sought to enforce the specific performance of a contract, made between the commissioners of Stark county and Wm. Reynolds, .in his lifetime, reduced to writing, and dated May 28, 1823, for a lease of a certain part of the grounds originally appropriated, by the proprietors of the town of Canton, for a site for public buildings. Previous to the making of the contract, these proprietors had released all their interest to these grounds to the comrnissioners. The bill set forth the written contract, and charged a^part performance, by payment of one year’s rent, and entering into' possession, and erecting buildings with the knowledge of the then commissioners, and without objection from them.</p> <p>The present commissioners refused to jierfect the contract, by making the lease, and deny their own power to do so, or that of their predecessors to make it.</p> <p>The court of common pleas dismissed the bill, and the complainants appealed.</p>

This cause was adjourned from the county of Jefferson. It was an action of debt, brought in the common pleas of Jefferson county, to November term, 1830. The declaration counted upon a writing obligatory made by the intestate in his lifetime, dated August 7,1819, for the payment of one thousand four hundred and thirty dollars to the Bank of Steubenville, at that bank, sixty days after date.

<p>Tax collector justifies as such, proof of acting and general reputation sufficient.</p>

This cause was adjoftrned from the county of Hamilton. It was-an action of debt, and set out that the defendants, on March 7f 1825, made their writing obligatory, by which they acknowledged-themselves to owe to the State of Indiana five thousand dollars, subject to a defeasance, reciting that Robert John had been duly appointed collector of the county of Franklin, and if he should well and truly perform the duties of his office of collector, obligation to be void, etc. It…

<p>Fi.fa. issued and levied on lands after the defendant’s death, sheriff's sale confers no title.</p>

This cause came before the court upon a motion made by the plaintiffs for a new trial. It was adjourned from the county of Belmont upon the subjoined state of facts. This suit was founded upon a note under seal for seven hundred dollars. Smith, one of the defendants, set up, by way of defense, that he executed and delivered the note as an escrow. At the time it was signed by Smith it was left blank for the amount.

<p>This cause was adjourned here from the county of Hamilton. 'It was a bill in chancery, in which the complainant alleged that he ■ was owner of óne-half of lot No. 61, in the city of Cincinnati, being part of the block of lots situate between Third and Fourth and Main and Sycamore streets. The complainant, with other owners -of property in this block, united in petitioning that a twenty-foot .. alley should be opened between them from Third to Fourth street, and that the land should be equally appropriated from the east and west ends of the lots, except complainant, who was to be paid the full value of his ten feet, the residue to be paid for by • contribution.</p> <p>That subsequent to this a second petition was agreed upon, and signed by all the parties except the complainant, praying for a ten-foot alley only, on the ordinary terms of mutual *contribution according to the advantage received. Under this petition the ten-foot alley was opened, and the whole ground taken from complainant. That the appraisers made a mistake and only appraised five feet, valuing it at eighty-seven dollars and fifty cents, and that afterward the assessor of contribution apportioned two hundred dollars and seventy-four cents upon complainant, for which suit had been brought before the mayor and judgment recovered, under the city ordinances, and process issued to sell the lot to make that sum. The bill prayed general relief and an injunction. The defendants demurred.</p>

<p>This cause was adjourned here for decision from the county of Huron. The points arising on the case are stated in the opinion-of the court.</p>

This was a writ of error to the common pleas of Hamilton county, adjourned here for decision, from the Supreme Court of that county. The ease was this: Levin brought an action of assault and battery against Hanly, Wright, and Rooney.

<p>Decision in Stewart and Chaplin v. Treasurer of Champaign County, recognized and sustained.</p>

This was a writ of error, adjourned here for decision from the county of G-allia. The case was this: 'Stewart was indicted for an assault with in“ient to kill and murder.

This was a suit in chancery to set aside certain proceedings in partition. , It came before the court upon bill, answers, exhibits, and depositions, and was adjourned here for decision from the ■ county of Hamilton. The case is stated in the opinion of the court.

This was a motion for a new trial, by the defendant, in an action of ejectment. The case is stat ed in the opinion of the court..

In this case, application was made at the Supreme Court in Jefferson county, in 1831, for a rule to be directed to the Bank of Mount Pleasant, situate in that county, to show cause why a writ of quo warranto should not issue, to examine and determine if its charter should not be forfeited, for certain alleged misfeasances. The application was made by an attorney of the court, in the name of a private individual, and was adjourned here for decision.

<p>Tarty advising or aiding in committing a trespass, liable though not personally present at the time of committing it.</p>

This was a motion for a new trial, made by the plaintiffs, in an action of ej'ectmont. The cause was adjourned from the county of Hamilton. The facts are stated in the opiniqn of the court.

<p>Previous to the statute of frauds, enacted in 1810, a trust might be created in real estate by parol, and established by parol evidence.</p> <p>Case upon facts.</p>

This was a writ of error, adjourned here from the county of Delaware. The original cause was assumpsit. They pleaded nonassumpsit, and two special pleas of the statute of limitations, upon which issues were taken. The damages claimed in the declaration were eight hundred dollars. The jury found the first issue •for the plaintiff, and'assessed the damages to eight hundred and fifty-three dollars seventy-five cents. The verdict was silent as-to the special pleas.

<p>Interest on money. Rule for calculating it in a particular state of accounts.</p>

<p>■ This case was adjourned from the county of Hamilton. The case is stated in the opinion of the court.</p>

<p>Where party bids in property on sale or execution to'protect a previous purchased title, third persons interested may consider the bid as money in the party’s hands, and hold him accountable in an action for money had and received.</p>

This was a writ of error to the court of common pleas of Hamilton county, allowed on the 10th of December, and made returnable to the court in bank.

<p>Where supervisor sues for penalty for obstructing road, there can he no judgment against him for costs; in such case, appeal lies from judgment of justice to the common pleas.</p>

This cause was adjourned from the county of Fairfield. It was an action of trespass, in which a verdict was found for the defendant, and a new trial moved for, upon the ground of the admission of irrelevant testimony. The following state of facts was agreed by the parties: The declaration in this ease, lays the trespass to have been committed on the southwest quarter of section No. 1, township 15, range 19.

<p>This cause was adjourned from the county of Trumbull. The-case is stated in the opinion of the court.</p>

<p>Bond, on appeal, must he for double the amount of debt and costs in the common pleas. Costs taxed against the appellant are not to he included.</p>

<p>This cause was adjourned from the county of Clark. The case is stated in the opinion of the court.</p> <p>No counsel on either side.</p>

This cause was adjourned from the county of Fairfield. It was an issue out of chancery, to try the validity of a will. The defendant, in chancery, moved the court to order that the affirmative of the issue might devolve upon him; that his answer, and the deposition in chancery, might be read on the trial. Swan and Hunter, in support of the motion.

<p>Two persons indicted separately for the same arson, one convicted and judgment passed, the record is not admissible evidence against the other, when on trial.</p>

Tried in Hamilton county, June, 1831, before Judges Hitchcock ■and Wright. This was an action of assumpsit, commenced on August 17, 1829, for money had and received. Issue, non assumpsit. On. the trial of the issue to the jury, the case made by the evidence was this: The members of the Methodist Episcopal Church of Cincinnati had been incorporated under the “ act for the incorporation of religious societies,” passed February 5, 1819. See 17 •Ohio L. 121.

<p>This is a scire facias to charge real estate of the decedent in execution. It was issued November 27,1830, and served May 6,1831. The writ sets forth that the plaintiff recovered judgment in the-Supreme Court, at October term, 1828, against the administratrix of Meigs, upon which execution issued, and some personal property was taken and sold, making a small part of the debt, and nulla bonareturned as to the residue, and prays a remedy. The command of the writ is that it be made known to the administratrix and to the heir at law (who are named), and to the tenants (without naming-any one), of all and singular the lands and tenements in said court, whereof the intestate died siezed, to show cause why execution should not be made of the balance of said judgment of these lands- and tenements. The return is, “ Served the within on Mary Sophia Jackson (the heir), and Sophia Meigs (administratrix), May 6,1831, in presence of A. T. D. Joline and Silas Cooke, and on-John Brophey, ^October 10, 1831, in presence of Daniel Nicoll and William Greene, and on J. E. P. Putnam and William Deval, October 12, 1831, in presence of David Barber and George Barker.”</p> <p>The administratrix and heir plead jointly:</p> <p>1. That the judgment was recovered against the executrix in •‘her representative character, and she was then and ever since had •been a resident in said county, her letters of administration being still in full force.</p> <p>2. That at October term, 1831, of the court of common pleas of said county, the said administratrix filed her petition for the sale of all the real estate of the deceased in said county which would ■be required to pay debts, according to law, and then obtained an order of court for the sale, which is still in force'.</p> <p>The plaintiff replied to the first plea that the date of the fi. fa. upon which the return of nulla bona is made is more than five years before the scire facias was sued out; and to the second, that more than five years had elapsed since administration was granted before the date of the scire facias. To these replications there is a general demurrer.</p>

In chancery, reserved from Hamilton county. The complainants are creditors of Jordan, Ellis & Co. They Rave prosecuted their claim at law, recovered judgment, and taken •out execution, but are unable to find property to satisfy their claim.

<p>Covenant upon a policy of insurance, reserved from Hamilton. The policy was for four thousand dollars, “ on the entire of the steamboat Belle Creole, including her machinery, furniture, etc., for four' months, etc., with the privilege of navigating the Mississippi and Ohio rivers, with such of the tributary streams as are safely navigable.” It is stipulated in the policy that it shall be lawful for-the boat to “ sail to, touch, and stay at, any ports and places thereunto obliged, by stress of weather or other unavoidable accident, without prejudice to this insurance; ” and “in case of any losü 'or misfortune, it shall be lawful for the assured, etc., to sue, labor, and travel, for the defense, safeguard and recovery of the said vessel, or any part'thereof, without prejudice to this insurance; to the charges whereof the said insurance company will contribute according to the rate and quantity of the sum herein insured.” “ But no partial loss, or particular average, shall in any case be paid unless amounting to five per cent.” . ■</p> <p>At the trial it was proven to the jury that the boat was owned by the plaintiff in Cincinnati; was laden with half freight for New Orleans and the intermediate ports; and on her way down Red river, bound for New Orleans, broke her shaft so as to render her unable to proceed. The break was within the perils incurred of risk. When the accident occurred, New Orleans was the nearest port where the boat could refit. She was unable to proceed without being towed, and was towed into port by another boat. The crew assisted in taking her into port, and about the repair while in port; and so soon as the repair was completed, the boat proceeded on her usual business. While the crew were so employed they were paid and subsisted by the assured. The damages claimed were: 1. The new shaft, one hundred and seventy-nine dollars and sixty-five cents. 2. For towing the boat to New Orleans, one hundred and fifty dollars. 3. For the wages and subsistence of the crew while getting into port, three hundred and thirty-six dollars and eighty cents. 4. For the wages and subsistence of the crew while in port repairing, four hundred and sixty-five dollars and ninety-two cents. Amounting, with interest from April.28, 1828, to thirteen hundred and eighty-one dollars and forty-nine cents; for which sum a verdict was taken, subject to the ^opinion of the court, upon the questions of law arising upon the facts. It is now submitted to the court upon the facts, to say what items in the bill are chargeable against' the insurers, and it is agreed that the verdict and judgment shall be entered ■for the sum allowed with interest, if it shall amount to five per •cent, upon the amount insured.</p>

Assumpsit upon two bills of lading, of tbe same terms and date, adjourned from Hamilton county.

<p>The plaintiffs declared in debt for two hundred dollars under the act for the relief of the poor. 22 Ohio L. 331. There are two .counts: 1. That one Richard Brown, who had his legal settlement in Chagrin, came into Bloomfield and became lame, diseased, a pauper, and unable to support himself, by reason whereof the plaintiffs were obliged to provide for his support during his illness, and to expend large sums for necessaries and medical aid, viz: two hundred dollars, and that so the defendants became indebted to the plaintiffs in the sum of two hundred dollars. The second count is for meat, drink, etc., furnished for one Richard Brown,-a pauper and inhabitant of Chagrin, who became sick, etc., in Bloomfield. Plea nil debet, with a notice of special matter in bar.</p> <p>Upon the trial, before the jury, it was agreed by the parties that the father and mother of the pauper were legally settled in Hampshire county, Massachusetts, and that the father died there' in 1820, leaving the mother a widow, and Richard, the pauper, an infant. The mother, with her infant son, afterward removed to Chagrin, in Cuyahoga county, and resided there one year and three months from January 15, 1823, without being warned out, and there married Levi Brown, who was then a resident of Perkins, in *the county of Huron, and had a legal settlement there.. She removed with her husband another township, Cuyahoga county, where she died in five months thereafter. Richard, the pauper, did not go with his mother, but resided in some .township in Geauga county, for eighteen months, and then at Bloomfield, in Trumbull county, became disabled by a wound, and a township charge. At the commencement of this suit he was still in his minority. The overseers of the poor in Bloomfield removed the pauper to Chagrin, and offered him to the trustees, who refused-to receive him. They, at the same time, presented their account and demanded payment, which was also refused. Upon these facts the jury found a special verdict for the plaintiffs : Debt, one hundred and twenty-one dollars and seventeen cents (the amount of the account), and ten dollars and forty-nine cents damages, if the court should be of opinion, upon the facts, that the pauper, on April 1, 1830, had a legal settlement in Chagrin ; but if the court should be of opinion, upon the facts, that at that time the said pauper had no legal settlement in Chagrin, then the jury found for the defendants. The questions arising on this yerdict were adjourned for decision here from Trumbull county.</p>

This cg.se was reserved in the county of Delaware. It is an application for divorce. The facts of the case, so far as it is necessary to state them, are as follows: The petitioner resides in the county of Delaware, and the defendant in the county of Perry. The petition was filed in the county of Delaware, a summons was issued directed to the sheriff of Perry, which was by him duly served and returned. No other notice of the pendency of the petition was given.

<p>This cause was reserved in the county of Warren, upon a motion for a new trial.</p> <p>It was an action on the case for a nuisance.</p> <p>The declaration contains two counts: The first count alleges that the plaintiff, on May 1,1829, was, and for a long period before that time had been, the owner of a certain tract of land in the county of Warren, and between the Miami rivers, and that upon *Jan--nary 1, 1830, ho was .possessed, and still is possessed, of a certain ancient water-mill, over and upon a certain river or water-course, commonly called the Little Miami river, in the same county of Warren, and that he had, and of right ought to have, the free current, course, use, and benefit oí the water of said river, running and flowing from his said mill down the said river, without the same being penned back upon the said mill or the wheels thereof, to the obstruction of his said mill, and that defendant, on September 1, 1830, erected a dam in and across said river, below the mill of the plaintiff, and upon the land of the defendant; by means whereof, the water was set back upon the mill, mill-wheels, and tail-race of the said plaintiff, so as to obstruct the operation of his said mill, to his great damage.</p> <p>In the second count the injury complained of was that, in consequence of the erection of the dam, the water of the river was retarded in its course, and heightened in the bed of the river.</p> <p>To this declaration the general issue plea of not guilty was filed.</p> <p>Upon the trial of the cause, much testimony was introduced.; some of which was contradictory. The weight of evidence, however, seemed to be, that although the water was, in consequence-of the dam erected by the defendant, somewhat heightened in the channel of the river, opposite to a part of the plaintiff’s land; yet it was not caused to flow back upon the plaintiff’s mill or mill-wheels. '</p> <p>The court charged the jury that the backing of the water in the-channel of the river upon that part of it which passed along the land of the plaintiff, was not actionable, unless productive of real' or substantial injury.</p> <p>A verdict was returned for the defendant. Whereupon the counsel for the plaintiff moved for a new trial, on the ground that-the court mistook the law in the charge to the jury.</p>

These cases came before the court, by adjournment from the county of Wood. By an agreement of counsel they were submitted for a final decision upon the merits of the whole matter in controversy. The first was an action of assumpsit, the object of which was to recover back purchase money paid for land, alleged to have been sold to Pray, by Oliver and Baum.

<p>On application to redeem lands sold for taxes, if judges of the common pleas are disqualified from sitting, case may be certified to the Supreme Court.</p>

This case was reserved in the county of Pickaway. It is a proceeding in chancery, but as the question decided has-no connection with the merits of the case, it is unnecessary to give-an abstract of the bill, answer, exhibits, or evidence. Certain depositions were offered in evidence by the complainants, which were taken before the mayor of the town of Alexandria,, in the District of Columbia.

This is a chancery suit, and was reserved in Hamilton county for decision here. The facts are disclosed in the opinion of the court.

This cause came before the court in Muskingum county, and the judges not fully concurring in opinion, was reserved for decision at the court in bank. It is a wri t of error to the court of common pleas.

<p>This is a motion to quash an appeal from the common pleas. It is the same case adjourned here from Cuyahoga the last term. See 5 Ohio, 276.</p>

This cause came before the court in the county of Gallia, and in ■ consequence of some difference in opinion of the judges, was adjourned for decision to the court in bank. It is an action, by scire facias, to make the defendants parties to a judgment rendered by the Supreme Court in Gallia county, at the April term, 1828, in favor of the plaintiffs, against Benjamin Whitney, James Jones, and John Noland.

Writ of error to the court of common pleas of Richland county,, adjourned for decision from that county. The plaintiff below declared in the common counts in assumpsit for work and labor, for goods sold, and for money lent, paid, and had and received. Issue was taken upon non assumpsit, and a notice of set-off.

In chancery, adjourned from Pickaway county. The bill sets forth that in 1818, Littler and Heath entered into partnership in the purchase and disposition of a drove of cattle, and, to prosecute the business, borrowed, upon their joint note, two thousand two hundred dollars, of the Bank of the United States, at Chillicothe. The complainant and several others indorsed said note upon the credit of both the drawers.

<p>January, 1831, there was an election for an associate judge for the county of Ashtahuia. The journal of the house certified the election of Samuel Moffitt — that of the senate the election of Lemuel Moffitt. The two houses did not correct and reconcile this discrepancy. The speakers did not sign the certificate of election to the governor, required hy law, and' no commission issued. The court of common pleas of Ashtahuia county admitted Lemuel Moffitt to take the oath of office and sit as an associate-judge : Held, that this was illegal, and that Lemuel Moffitt could not, upon such state of case, he inducted into office.</p>

Reserved in the county of Ross, upon a motion for a new trial. The action is ejectment for recovery of a part of in-lot number •nineteen in the town of Chillicothe. On the trial to the jury, the only evidence, on the part of the plaintiff, was a deed executed by John McLean, auditor of Ross county, conveying to the plaintiff the premises in controversy.

<p>This case was reserved in the county of Stark, on a motion, made by the plaintiff for a new trial.</p> <p>It was an action of assumpsit, for money had and received.</p> <p>*On the trial of the case the following facts were proven : On August 7, 1819, the defendant entered into a contract under seal to convey to the plaintiff a quarter section of'land in the county of Stark, for the sum of five hundred and sixty dollars. Previous to February 21, 1821, the purchase money was paid.</p> <p>On December 20, 1822, another contract, under seal, was entered', into between the plaintiff and defendant, in which they agreed to make an exchange of the quarter section of land, mentioned in the first contract, for a quarter section of land in Columbianacounty, which the defendant was to convey to the plaintiff, on or before January 1, 1828. At this time the fee of the quarter section of land in Columbiana county was in the United States, but-one David Henline was the owner of the certificate of entry, on which the first installment of eighty dollars had been paid. The certificate of entry lay at the United States land office, in Steuben-ville, subject to his order. At the same time, also, a contract was in existence between the defendant McG-rew and Henline, by which Henline was bound to transfer this certificate to McG-rew.</p> <p>On February 21, 1824, a verbal agreement was made between the plaintiff, defendant, and Henline, that the said Henline should transfer the certificate to the plaintiff (without any time being-specified for the transfer), that Henline should pay to the plaintiff two hundred dollars, that the defendant should, pay him one hundred dollars, making in the whole three hundred dollars, which was supposed to be sufficient, at least to enable the plaintiff to pay the land out of the office, and obtain a patent in his own name upon the certificate so to be transferred. This sum of three hundred dollars was admitted to have been paid. On the conclusion of this agreement, the plaintiff and defendant signed a joint order-in favor of Henline and Isaac Shelton, in whose hands the certificates of August 7, 1819, and December 20, 1822, aforesaid, were lodged for safe keeping for him to deliver it up to be canceled.</p> <p>It was also proven, that,subsequent to this period, the plaintiff stated that he did not want a transfer of the certificate, as he could do better with his money than to pay the *land out of the office. The certificate was not transferred, and on July 4, 1829, the land was forfeited to the United States for non-payment of the purchase money, and has since been sold to other persons. Some short time before the last-mentioned day, and before the-commencement of this suit, the attorney for the plaintiff called . upon the defendant with copies of the certificates of 1819 and 1822r when the defendant stated that Henline had transferred the certificate, and if he could establish that fact, he would refund the-money received under the first contract.</p> <p>Upon this state of facts the court instructed the jury: 1. That-if the plaintiff agreed to give up and cancel the aforesaid contracts-between him and the defendant, on the verbal agreement aforesaid, and agreed to take the verbal promise of Henline to transfer the aforesaid certificate, and -to accept of such transfer and the payments aforesaid, instead of the conveyance mentioned in the aforesaid second contract between the plaintiff and defendant, that would exonerate the defendant entirely; although the plaintiff might have no right of action against Henline on such verbal agreement. 2. That even if the plaintiff once had a right to rescind, if he neglected to exercise that right until events so happened, by lapse of time or otherwise, that he could not be restored to his original situation, that the right to rescind here was taken awajq although the right to rescind arose from the act of the defendant.</p> <p>Á verdict having been returned for the defendant, the plaintiff moved for a new trial and assigned the following reasons :</p> <p>1. The verdict is contrary to the evidence in and the law and equity of the case. 2. The court mistook the law in the direction to the jury. 3. Since the trial the plaintiff has discovered new and material evidence.</p>

This was an ejectment tried on the last circuit, in Trumbull county. A verdict was found for the plaintiff, and a motion made by the defendant for a new trial, which was reserved for decision here. *It was proved on the trial that Sperry, the lessor, was seized'in fee of a tract of land through which Mill creek flows, in the county of Trumbull.

<p>Decision as to water power in the canal, 4 Ohio, 251, affirmed.</p>

This case was reserved in the county of Hamilton. It is an action of replevin, in which the plaintiff declares that-the defendant, on May 1, 1830, wrongfully detained fifty kegs of ' gunpowder, of the value of four hundred dollars, the proper good»’ and chattels of the plaintiff.

<p>Judgments in the United States Circuit Court for the District of Ohio, ren-dered previous to May, 1828, attached as liens upon the defendant’s lands, throughout the state, in virtue of the adoption, by that court, of the execution laws of the state, for the regulation of its practice.</p> <p>Between judgment creditors where a year transpires before execution upon either judgment issued out, execution first issued and levied obtains-preference.</p> <p>Purchaser upon execution entitled to benefit of occupying claimant laws.</p>

<p>This case was reserved in the county of Muskingum.</p> <p>The declaration contains two counts:</p> <p>The first count sets forth that the Muskingum river is a navigable stream, and a common highway for all citizens. That at or near the town of Zanesville there was a certain dam across the river,, and a lock, through which lock it was the right of all citizens-to pass free of expense and without delay. -That by a certain act of the legislature of Ohio, of February 24, 1816, the defendants were required, within one year therefrom, to erect said dam and lock agreeably to an act in favor of John McIntyre and his associates, passed February 21,1812, by which last-named act the dam. and lock were particularly authorized and described; and the-proprietors required, at all times, to keep said lock in good repair,, and upon application to open said lock without delay or expense. And should they so erect said works, or suffer the same to get out of repair, as that the convenient navigation of the river should be impeded or rendered dangerous, that they should be liable to the civil action of any person injured. . That the said plaintiffs, on. April 29, 1828, were possessed of a certain Orleans boat and loading, and were passing down said river and wishing to pass through *said lock, applied to and requested the defendants to pass-through without delay, etc. That the dofendents have availed themselves of the privileges óf said acts and assumed the obligations therein required. That the waters of the river were, at the. time, sufficiently deep to pass a loaded boat over the ripple. Yet the defendants, well knowing, etc., although, etc., did not nor would, not open the said locks, but wholly neglected and refused; by-means whereof the said plaintiffs were obliged to pass over said dam of defendants, and by means whereof the navigation of said river was impeded and rendered dangerous, and in so passing the boat was wrecked, etc.</p> <p>The second count recites that the Muskingum is a navigable stream, emptying through the Ohio into the Mississippi, and a common highway, and that the defendants have built a dam across, said river, and obstructed and rendered dangerous the navigation; that the plaintiffs, being citizens, etc., on April 29, 1828, had a right to navigate and pass along said river, etc.; that the defendants, well knowing, etc., with intent to injure, etc., did erect said dam and obstruct, etc., and in passing down said river with a certain Orleans boat and loading, plaintiffs were constrained to pass their said boat over the said dain of the defendants, by means whereof the said boat was wrecked and lost, etc.</p> <p>Plea, not guilty.</p> <p>On the trial of the cause it was proven that, in February or March, 1828, a. boat of the plaintiffs, with valuable loading, was passing down the Muskingum river from some of its head waters, under the care of one Rogers as supercargo; that when arriving at a point one mile or more above the dam of the defendants the boat was stopped in order to ascertain whether it would be passed through the lock. Upon examination, it was found that the lock was so filled and blocked up with sand and driftwood that it could not be opened, and that there was no prospect of opening it until the water should fall. This drift wood and sand had accumulated in and about the lock in consequence of the unusually high state of the water in January and February of that year. There was evidence to show that the wing dam and the main dam were not of the same height, the consequence of which was *to create a strong counter current at the angle made by the junction of the two. The tendency of this counter current was to increase the accumulation of sand and drift about the lock.-</p> <p>It being impossible to pass the boat through the lock, it was concluded to go over the dam, and. Rogers employed two skillful and experienced pilots and boatmen to take charge of the boat, and having «taken out as much of the loading as was deemed necessary to enable the boat to pass over the dam, and the pilots having made such other arrangements as they deemed necessary, started with the boat from a point higher up the river than they had been accustomed to start from when taking boats over the dam, with a view of getting as far out into the river as possible. A strong wind was blowing from the west, which was believed to have prevented them from getting as far out into the river as could have been wished, and they crossed the dam near the angle made by the.wing dam. The counter current before alluded to turned the boat upon its broadside, and in that situation it went over the dam. Although every exertion was made, they were not able to right her until she struck against the pier, of a bridge, some little distance below, and was stove in pieces. That the piers of the bridge were ninety feet apart, and the boat might have passed in safety had it not been for the dam.</p> <p>It was in consequence of the misdirection given to the boat by the counter current on the dam that the boat struck the bridge. But for the dam the navigation would have been safe. It would have been more safe could the boat have passed over the dam at a point further west, but with every exertion a point further west could not be reached. One of the boatmen thought it possible that the stern might have been thrown down the river, and the boat righted in that way in time to save it, but the pilot, who had the chief command, thought otherwise. Not more than twenty seconds intervened between the passing of the dam and striking the pier. On cross-examination one of the boatmen stated that a man of ordinary care would not, in his opinion, have taken the boat over the dam, at that stage of water, with so much loading; h&d it been his boat he should have delayed until the lock could have been opened, or taken out all the loading *and gone with the boat empty. It appeared, however, that it was not an unusual thing to pass boats over the dam. It was also proved that the load could all have been taken out and hauled round the obstruction, reloaded below, and the empty boat taken over the dam at a comparatively small expense and loss of time.</p> <p>The Muskingum river was proved to be navigable, and there was evidence to show that previous to the erection of the dam, at the same stage of water with that at the time the accident happened, it was a smooth sheet, and that the boat was managed as well as could be done. „</p> <p>There was also proof in the case that the dam and lock were constructed substantially according to the description contained in the acts of incorporation, etc. The lock sometimes got out of order, and was sometimes injured by high water. A slope had been originally constructed at the junction of the wing and the dam, as required by the act of 1812, but was carried off by high water during the first year.. It was also in proof that the lock was cleaned at as early a day after the subsiding of the high water as possible, and that a second boat of the plaintiffs, which came down the river three or four weeks later, passed through the lock ■in safety.</p> <p>It was agreed on trial that the defendants .were an incorporated ■company, and were authorized by the law of Ohio to erect a dam and lock in the place where this was, and that the lock, at the time of the arrival of this boat, was not opened, and could not be 'by reason of the drift, etc.</p> <p>The following acts of assembly were read and considered to be in evidence: _</p> <p>An act to enable John McIntyre and his associates to erect a dapi .across the Muskingum river, passed February 21, 1812.</p> <p>An act to incorporate the stockholders of the Zanesville Canal and Manufacturing Company, passed February 24, 1816.</p> <p>An act to amend the act entitled “an act to enable John McIntyre and his associates to erect a dam across the Muskingum river,” passed January 27, 1823.</p> <p>The case was finally submitted to the jury for the assessment of damages, subject to the opinion of the court on the questions at law arising in it.</p> <p>*The jury returned a verdict for the plaintiff, and assessed ■damages, at one thousand six hundred and seventy-one dollars, the actual loss sustained, together with four hundred and sixty-five ■dollars and seventy-seven cents interest on the same, amounting in the whole to the sum of two thousand one hundred and thirty-six dollars and seventy-seven cents.</p> <p>The case was argued at great length by Culbertson, Gfoodenow, and H. B. Curtiss, for the plaintiffs, and by Goddard, Stillwell, and Spangler, for the defendants.</p> <p>It was deemed unnecessary, however, to insert the arguments, ■as the points made are, solar as they relate to the principle upon which the case is decided, referred to in the opinion of the court.</p>

This case was reserved in the county of Jefferson, upon a motion to set aside a nonsuit and order a new trial. It was an action of assumpsit for work, labor, etc., and the declaration contains three counts: 1. For work and labor in and about the erection of a certain fulling mill and carding machine for the defendant at his request, and for materials found.' 2.

<p>Insurer does not insure against loss resulting from the negligence of the assured, or those employed by him.</p> <p>Master and mariners are agents for the assured.</p> <p>Navigators of flat-boats on the Ohio river, that are insured, are agents of the-assured, and are bound to all care and diligence. (¿wcerc, if bound in all cases to keep a watch at night ?</p> <p>New trial granted for further investigation.</p>

Writ of error to the court of common pleas of Jefferson county, returnable to this court. Morrison was indicted for that one Driskell, on January 1, 1829, stole a certain gelding, the property of a person to the jurors unknown, and that he (Morrison) on January 2,1829, did conceal said Driskell in his (Morrison’s) dwelling house, knowing him to be a horse-thief.

<p>In suits before justices to recover militia fines, appeal lies to the court of common pleas.</p>

This is an action of assumpsit for money paid. Issue is taken •upon the pleas of non assumpsit and non assumpsit within six years. The case was submitted to the court in Pickaway county, on an agreed statement of facts, and adjourned for decision here. The material facts agreed are, that Edward and Isaac Williams entered into a joint and several bond to one Heath, for twenty-two hundred and nine dollars, which fell due on September 14, 1817.

<p>This was a motion for a new trial, in an action of ejectment, reserved from the county of Hamilton.</p> <p>On the trial the plaintiff exhibited a connected legal title to lot No. 40 in Cincinnati. The defendant’s title depends on the validity of a sale of the lot by the administrators of Jesse Newcomb. The sale was proved by the administrators’ deed. To prove the right to sell, the following documents were offered in evidence:</p> <p>1. A paper from the files of the common pleas of Hamilton county, indorsed, “A petition for the sale of real estate of Jesse Hewcomb, deceased, April, 1813,” a copy of which is as follows:</p> <p>. “To the honorable judges of the court of common pleas, Hamilton ■county:</p> <p>“We, your petitioners, who being appointed administrators of the estate of Jesse Newcomb, and guardians of the children of said Newcomb, deceased, humbly showeth that we are anxious for the welfare of his widow and children, take this means to acquaint the honorable court with the situation of the property, consisting -of a lot of ground in Cincinnati, situate on Sycamore street, being part of lot No. 40 in said town plat, being thirty-three feet in front and one hundred and ninety-eight feet *deep, with the walls of a brick house twenty-four by eighteen feet, and shingled in, and a small frame building back, together with a work-house thereon ; that the property is now 'in the situation it was at the death of said Newcomb, and there is no funds belonging to said ©State to finish it, nor for the support of the .widow and children. We therefore pray the honorable court to grant us a‘ permit to sell the real property.</p> <p>“ William Dynes, Administrator.</p> <p>Ann Newcomb, Administratrix.</p> <p>Christopher Smith, } Guardians-</p> <p>“ Cincinnati, April 14, 1813.”</p> <p>On the back of this is written, in the handwriting of one of the associate'judges of that court: “Allowed. John Wood, John ■Crone, James Hicks, appraisers.”</p> <p>2. The following document, under the seal of the court: ■“Whereas, by a petition to the honorable the court of common pleas of Hamilton county, at April term, instant, close in these words” (recites the foregoing petition). “Which petition being read, and all and singular the premises aforesaid being seen and fully understood, upon mature deliberation the court do order that the above-described property be sold and conveyed by said petitioners, and they appoint John Wood, John Crone, and James Hicks to appraise said property agreeably to the statute in such -case made and provided, and that you in all things observe and bo governed thereby.</p> <p>“ By order of court.</p> <p>“ [l. s.] In testimony whereof I have hereunto set my hand, .and affixed the seal of our said court of common pleas, at Cincinnati, this 15th day of April, 1813.</p> <p>“JohnS. Gano, Clerk.”</p> <p>This paper is indorsed thus: “ Order of court for the sale of real estate of Jesse Newcomb.”</p> <p>3. The original appraisement is as follows: “ We, the appraisers chosen by the court.of common pleas in the county of Hamilton to value the real property of Jesse ^Newcomb, deceased, after viewing the premises, do value the same at one thousand one hundred dollars.</p> <p>“John Crone,</p> <p>James Hicks,</p> <p>John Woods,</p> <p>“Appraisers.</p> <p>“ Cincinnati, April 16, 1813.”</p> <p>4. The settled account of the administrators of J. Newcomb.</p> <p>W. Dynes, sen., and Ann Newcomb, administrators of J. New-comb, deceased, in account with the estate of J. Newcomb, deceased.</p> <p>Dr. to divers items.....................................................$464 22'</p> <p>Cr. by divers items..................................................... 464 22</p> <p>Amount of sale of house and lot................. $1,590 00</p> <p>Interest on $1,060, 1 year.....:.................... 60 36 — $1,650 36</p> <p>Paid widow one-third amount of sale........... 530 00</p> <p>Paid interest on $1,060............................. 60 36</p> <p>Paid Dr. Douglas his bill........................... 10 00</p> <p>Paid widow for support of three children.... 60 00</p> <p>Paid for bank stock................................. 990 00 — $1,650 36-</p> <p>This account is indorsed, “Jesse Newcomb, dec’d, filed August 16, 1814. J. S. Gano, Clerk.”</p> <p>Mr. Gano, the clerk, testified that the journals of that and several other terms were originally kept in separate stitched paper books, which he had collected and bound. Some leaves appeared not to be present, and some entries were written on loose papers, attached to the book by wafers.. He knows no alteration or mutilation, but, as far as he knows, they remain as they were made by the court. That the petition was filed by him, and the order" of. sale made by the court, but no entry of it is found on the journals.</p> <p>The plaintiff objected to the whole of this evidence, but it was. received by the court, who directed the.jury to return a verdict for the defendant. The plaintiff moves the court for a new trial, assigning for cause, that the evidence was improperly- rejected,, which motion is reserved for decision in bank.</p>

At the trial in the Supreme Court, the plaintiff proved that his lessors were the widow and heirs of Samuel McChosney. He pro- ■ duced a deed from John McDowell'and wife to Samuel McChes,ney, dated October 16, 1818, a patent to McDowell, dated January .9, 1804, and a plat and survey from the county surveyor. The defendant gave in evidence a deed from McChesney to-Joseph Kemp, and a deed from Kemp to him.

<p>Lands granted to A. and taken possession of by B., whose possession is not protected by the statute of limitations ; proof that. B. purchased the warrants of A. before their location, located them and paid the-taxes, not admissible to raise the presumption of a conveyance from A. to B.</p>

This was a motion for a new trial, reserved in the county of Champaign. The action was ejectment, in which the plaintiff’s title depended on a sale of land for taxes. He offered in evidence an exemplied copy of the books of the county auditor, showing the listing for taxation and the advertisement of the sale, in the following manner : The court instructed the jury that this description was so imperfect, that no valid sale for taxes could be made.

<p>This is a suit in chancery reserved from the county of Harrison. *The bill states that the plaintiffs are the children and heirs of Joseph Smith and Elizabeth Smith, his wife, who was one-of the heirs of David Miller, deceased. That David Miller died in 1816, leaving David Miller, the defendant, his administrator. Maxwell, Anderson, and Archbold were the sureties of the administrator. That a bill was formerly filed against these defendants by these plaintiffs, seeking an account, settlement, and distribution of the estate of David Miller, which was dismissed as to the sureties, merely on the ground that no suit could be sustained against them until the liability of the administrator was established ; but a decree was passed against Miller, the administrator,, finding a balance in his hands and ordering payment. The present bill avers the non-payment of the money, the insolvency of Miller and Maxwell, the surviving parties to the bond, and seeks to enforce the payment of the money found in the hands of the administrator by that decree, from all the parties to this suit.</p> <p>The defendants demur, assigning for cause that a former suit on the same cause of action was once instituted against these defendants, and was terminated by a general dismissal.</p>

This was a suit in ejectment, reserved in the county of Delaware. . It is presented to the court upon the following agreed facts: In 1824, Jeremiah Williams, being the owner of three hundred and twenty acres of land, which are the subject of the present suit, conveyed them to Salsbury, by a valid deed. In February, 1826, Jeremiah Williams filed his bill to vacate this conveyance, and reclaim the title, on the ground of fraud.

<p>This was an action of ejectment, reserved in Hamilton county,, ■and submitted to the court, on an agreed statement of facts.</p> <p>Both parties claim under the will of John Hale. The tenements were devised by the following words: “ To my son Walter, I give and bequeath, as also to Phebe his wife, the use of two lots; my will is, that Walter and Phebe aforesaid may have the use of these two tracts of land during their respective lives; but, at their decease, my will is, that these two tracts of land descend to their heirs, to whom I bequeath the same to have and to hold said tracts, to themselves, their heirs and assigns, forever.” The plaintiff claims title from the heirs of Walter and Phebe Hale. The defendant’s title arises from the grantee of Walter and Phebe Hale. If Walter and Phebo had a fee simple in the land, it is vested in the defendant; but if they had but a life estate, the plaintiff is entitled to judgment.</p>

<p>The sixth rule of the Ohio Insurance Company, in relation to double insurance, extends to a case of subsequent as well as previous insurance on. the same risks.</p>

<p>¿Person arrested and in prison upon a criminal charge conveys to a third person, in fee, real estate worth two thousand five hundred dollars, renting for eighty dollars per annum, in consideration of the grantee becoming bail, and agreeing to pay the grantor an annuity of one hundred dollars per annum during life, not relieved against in equity, though grantor is aged and intemperate, there being no proof of fraud in the case.</p>

Ford commenced an action against Nelson before a justice of the * peace of Fairfield county, which was appealed to the common pleas-, where Ford declared against Nelson in debt. The declaration contained three counts. The first stated that the parties, etc., by their writing obligatory, sealed, etc., submitted a controversy, etc., to the arbitration of, etc., and that for the performance of the award, they bound themselves each to the other in one hundred dollars.

<p>Lease of a cellar and lower room in a building of several stories, gives the-lessee no interest, in the land — and if the whole building is destroyed by fire, all the lessee’s interest is gone.</p>

This is an ejectment. The facts were agreed on by the parties, and it was submitted to the court on the last circuit in Fayette county, and reserved here for decision. The facts are, that Peter Harnes, on February 25, 1830, in the court of common pleas for the county of Fayette, entered into a recognizance in one hundred dollars, for the appeai’ance of Adam Harnes to answer to an indietment pending against him in that court.

<p>The erection of a toll bridge is a public use, for which land may be condemned.</p> <p>Where the journal of the court of common pleas contains entries showing a regular series of measures condemning l^nds for public uses, it is competent to prove the proceedings in pais by parol, w.here no complete record, is made, and the original papers are lost.</p> <p>Oommissioners appointed to appraise lands to be condemned for public uses¡. the concurrence of a majority binds the minority.</p>

This is a certiorari to the court of common pleas for the county of Clermont.

<p>Case of Ludlow v. Johnston reviewed and affirmed.</p> <p>Loose and vague proceedings of the courts in the first stages of the territorial' government, to be sustained if possible, consistent with principle.</p> <p>The power of an administrator to sell the lands of his intestate is derived-' from'and dependent upon the statute that creates it. Though an order of court be made for carrying the law into effect, yet, if the statute be repealed before the order is executed, its effect is at an end, and no valid’ sale can be affected.</p> <p>An order of court, authorizing the administrator to sell the lands of his intestate, remaining unexecuted, is not a “ suit or prosecution pending,” within the saving clause of the general repealing law of February 22,180&.</p>

This was an action of. trespass tried on the last circuit, in Ross county. A verdict was found for the plaintiff, against McNeil, for twenty dollars; the other defendants were found not guilty. A motion was made by McNeil for a new trial, which was reserved. The action was commenced by Haggard; on his death it was revived by his administrator.

<p>This cause, on the last circuit, was reserved by the court in Jefferson county for decision here. It was an action of debt. The declaration contained five counts; to it the defendant filed a general demurrer, and the plaintiff joined in demurrer. On these pleadings it came on to be decided.</p> <p>The article of agreement on which the action is founded, is made a part of the record, and is as follows : “ Memorandum of an agreement made and entered into, October 31, 1810, between Duncan McArthur, of Ross county, Ohio, of the one part, and Benjamin W. Ladd, acting for himself and partner, Joseph Ladd, and as agent for Thomas Norvell, of the State of Yirginia, of the other part, witnesseth, that the before-named Duncan McArthur, now receives from the -said Ladds and Norvell, Yirginia continental-military warrants and assignments of warrants, to the quantity of ten thousand acres, which he, the said McArthur, is to locate and survey immediately for the said Joseph and Benjamin W* Ladd and Thomas Norvell, upon the following terms and conditions, to wit: The entries and surveys are all to bo made on the west side of the line run by Ludlow, from the head spring of the Little Miami river, to intersect Ludlow’s .north boundary line,, which lino, when produced, was intended to strike the source of Scioto river, and to be the dividing line between Yirginia military and Congress lands. All office fees, chain carriers, etc., are to be-paid by Joseph, and Benjamin W. Ladd and Thomas W. Norvell. Duncan McArthur shall be entitled to one-fifth part of the land so located, having respect in the division to quantity, quality, and situation; but it is to be understood, that if from any cause whatever, the location made under this contract by the said McArthur for the said Ladds and Norvell should not hold the land, then and in that case the said McArthur shall not have any interest in or part of said warrants, but they shall be exclusively and entirely at the disposal of said Lsidds and Norvell: Provided, nevertheless, that in case Congress should give other lands or money in lieu of the land which shall be located by the said McArthur, it is to be understood that he, the said ^McArthur shall have his one-fifth part of all such lands or money; it is also expressly agreed upon between the parties hereto, that each, in proportion to-the interest that he or they may or shall have in the land, shall pay his or their proportionate part of all the expenses which may be incurred in trying the validity of the locations made by virtue of this agreement, whether before any court of law or before Congress, etc. Eor the faithful performance of all and every part of the foregoing contract, the parties hereto bind themselves, their-heirs, executors, etc., each to the other in the sum of fifty thousand dollars. G-iven under our hands and seals, in the town of Chillicothe, the day and date first above written.</p> <p>“ Benjamin W. Ladd, [l. s.]</p> <p> “For himself and partner, Joseph Ladd, and as agent for Thomas Norvell. </p> <p>“ Duncan McArthur., [l. s.]</p> <p>“Before And. Lindsey and Peter Spurgh.</p> <p>“Memo. — Whatever warrants or assignments B. W. Ladd shall send on to Duncan McArthur, in addition to the quantity mentioned within and one thousand acres now handed him, the said McArthur, is to be located on the same terms and conditions expressed within.</p> <p>(Signed,) “ Benj. W. Ladd,</p> <p>Dunoan McArthur.”</p> <p>The first count of the declaration states that, “Whereas the said Benjamin W. Ladd heretofore, to wit, etc., etc., by his certain writing obligatory, sealed with his seal, etc., acknowledged himself to be held and firmly bound to the said Duncan, etc., which said writing obligatory was and is subject to a condition in writing, being part and parcel thereof, to the effect following: ” then follows a copy of the agreement, except the part containing the penalty and the conclusion, and adding thus: “And it was also agreed by the parties that,” etc.; here follows the memorandum, indorsed on the agreement.</p> <p>It is then averred that Benjamin W. Ladd, in addition to the warrants for ten thousand acres and for one thousand acres, put into McArthur’s hands, to be located according to said agreement,1 warrants for four thousand seven hundred and sixty and two-thirds acres, amounting in all to fifteen thousand *seven hundred and sixty and two-thirds acres; that McArthur immediately made entries in Richard C. Anderson’s office on these warrants for all the lands called for by them; the land entered all situate west of Ludlow’s line, etc., and that he surveyed them. Here follow copies of the .entries and surveys. It is then averred that in making these locations he paid for office fees, chain-carriers, and necessary expenses ten thousand dollars, and that he paid for the use of Benjamin W. Ladd and Ladd and Norvell, in defending said locations before Congress and the judicial tribunals of the United States and the State of Ohio twenty thousand dollars, (sixteen thousand dollars) four-fifths of which Benjamin W. Ladd is made to pay; that McArthur, by the locations, became entitled to one-fifth part, etc., of the land located, but that B. W. Ladd, or Ladd and Norvell, or either of them, would not convey or assign to him, although requested, etc., the one-fifth part of said lands, or pay him any part of the money advanced as above. That the said B. W. Ladd afterward, etc., assigned and transferred the warrants located as aforesaid without and against the consent of McArthur; that the assignees withdrew the entries aforesaid, and thereby made void the locations and surveys made by McArthur, which makes it impossible for McArthur to obtain his one-fifth part of said land, whereby he is injured, etc.; whereby, etc.</p> <p>The second count is as the first; omitting the averments of money advanced by McArthur.</p> <p>The third is as the second, except that it avers generally that McArthur located the warrants according to the agreement, but does not set.out copies of the entries and surveys.</p> <p>The fourth is on the agreement rejecting the indorsement as a part, and is in other respects substantially as the third.</p> <p>The fifth is for the penalty only, without setting out the contract or assigning breaches of it.</p>

<p>A judgment, by confession, without pleadings, and found only on the journal of the court, though erroneous, is not void.</p> <p>Defect in description of a levy may be supplied by parol.</p> <p>Where several executions are levied upon the same lands, a sale upon one subjects the price paid, to distribution according to law, if application be l made in season. A sale upon each is unnecessary.</p> <p>Holder of lands, in the Virginia military district, by entry and survey only, sells and conveys. After his death, patent issues to his heirs, title inures to purchaser, who, or his assigns, is so invested with the fee that it may ’ be sold on execution.</p> <p>An original liability, as security, can not be so connected with a subsequent conveyance to secure, as to overreach an intervening judgment.</p> <p>Vendee from judgment debtor, having relinquishment of dower, can not set up that dower, as a separate independent estate, against preferable purchase under judgment.</p>

<p>Decided by Judges Collet and Wright, in Madison, 1831.</p> <p>This was an action of debt under the statute, to recover compensation for necessaries furnished a pauper. The father of the pauper had a settlement in Pike township, in Madison county, .and died, leaving the son a minor, who afterward became a charge upon the township. The county of Union was afterward established in 1819. The southern line of the county divided Pike township and threw part of its territory into Union county. A dispute arose about this line, Which lasted several years. Various lines were run at different times as the true line. By some of these lines, the house at which the pauper was boarded, fell into one county, and by others into the other. The line was finally settled in 1828, and the house at which the pauper was boarded fell into Union county. The township of Union, in the latter county, adjoined the territory cut off from Pike. Under the impression that Unioju township was liable for the support of the pauper, this suit was brought to recover the expense of keeping him since Union county was established. There was no evidence that the part of Pike township which fell into Union county was ever attached to the adjoining township of Union, or formed.into-a new township, though it appeared that the trustees of Union township had exercised jurisdiction over it.</p>

Decided by Judges Hitchcock and Wright, in Guernsey, 1832; Trespass for entering plaintiff’s house, and forcibly carrying -away his wife and keeping her away, and also for persuading away the plaintiff’s children.

<p>Tried before Judges Lane and Wright, in Jefferson, 1832.</p> <p>This was a writ of error to the common pleas of Jefferson.</p> <p>The only question raised is whether a creditor of a deceased person, in Ohio, can sustain a suit against an executor de son'tort.</p>

Decided by Judges Hitchcock and Wright, in Franklin, 1832. Assumpsit for money had and received. The defendant was a creditor of an intestate estate, and the plaintiff the administrator. The plaintiff, supposing the estate solvent, had paid the defendant several sums upon his demand, but, upon final settlement with the court, found the estate insolvent, and that he had paid the defendant more than his distributive share.

<p>Practice in case of divorce.</p>

Beeore Judges Hitchcock and Wright, in Morgan, 1832. Application for divorce on the ground the defendant had a former wife living at his intermarriage with the complainant. Evi- ■ dence was offered to prove the former marriage by cohabitation and reputation. <•

<p>This cause was adjourned here for decision from the county of Hamilton. It was a bill in chancery for confirming an arrangement between the complainants and the administrators and heirs of John H. Piatt, deceased. The case is stated in the opinion of the court.</p>

This was adjourned here for decision from the county of Pair-field. It was a motion for a mandamus, to the court of common pleas of Fairfield county, commanding that court to proceed to the trial of James Turner, upon an indictment for murder.' The case is stated in the opinion of the court.

<p>Adjourned from Delaware county.</p>

This cause was reserved in the county of Richland. It was an action of debt upon the transcript of a judgment of a justice of the peace, in the State of Pennsylvania. The question to be decided arose upon the plea of nil debet, which was demurred to.

<p>Indorsers charged at law, on the ground of being secured, subsequently, by a decree in chancery, are deprived of the security fund, in favor of a previous lien, can not be relieved in equity.</p>

This suit is reserved from Franklin county, to settle the form of a decree, in cases brought to collect money secured by mortgage.

<p>This was a suit in chancery adjourned from the county of Hamilton. The object of the bill was to charge the real estate of the late Arthur St. Clair, deceased, in the hands of the defendants, with the payment of a debt of the intestate. Administration had been granted, and all the estate, real and personal, disposed of, by the administrator, who died after.the commencement of this suit. No administrator de bonis non having been appointed, a question was made whether the cause could proceed without such appointment, and the person receiving it being party defendant to the suit.</p>