Volume 5 — Ohio State Reports

Reserved in Cuyahoga county. The Reporter finds no brief for plaintiff. I. Did the court err in its charge to the jury ?

<p>Reserved in the Cuyahoga county, on a motion for new trial.</p> <p>This suit was brought on the instrument set out in the opinion of the court. On the trial in the District Court, which was at the October term thereof, 1854, the intervention of a jury was waived, and the cause submitted to the court, on the issue joined, upon the following agreed statement of facts: .</p> <p>It is agreed between the parties that the evidence consists of the instrument signed by said Bailey, and drawn on Wicks, Otis & Brownell, for the payment of $300 to Burgess or order, on the 13th of July, 1853, dated Cleveland, Ohio, June 30th, 53and indorsed by Burgess; which paper was, in due form, presented for payment on the 16th of July, 1853, and protested for nonpayment; and notice given on the same day.</p> <p>And the evidence consists, further, of the following statements of witnesses, which, it is agreed, shall be taken and considered as if given in court, on the trial of this cause.</p> <p>Defendants’ Testimony. — Mr. Eoot, of Merchants’ Bank, a banker for seven years; II. A. Hurlbut, of the Bank of Commerce, a banker for three or four years; Parker Handy, of same bank, and a banker for eight or ten years; T. P. Handy, of Commercial Branch Bank, a banker for fifteen or twenty years; A. C. Brownell, of Wicks, Otis & Brownell, a banker for four years, and Dr. Wick, President of City Bank for four years, testify that it had been their custom, and the custom of the banks and bankers in Cleveland, to present for payment, and pay such a paper as sued on, on the day named, without grace.</p> <p>T. P. Handy would further say, that such custom had prevailed about five years; that nine years ago it was different, and grace allowed.</p> <p>W. H. Stanley, of Forest City Bank, a banker for some years, testifies that the usage had been to treat such paper as without grace; but had known one exception, where the drawer of the paper had no funds, and where he told the bearer that he supposed the paper was entitled to grace — which he did in order to put the man off, to favor the credit of the drawer; when in fact the custom, and as he supposed the law, to be the other way. This paper was not paid till after grace. His impression was that it was then paid, though not certain.</p> <p>J. L. Severance, Teller of Commercial Branch Bank, a banker for ten or fifteen years, testifies, that to treat such a paper as not having grace, has been the custom in Cleveland; has known three or four exceptions where grace was given. These exceptions were occasioned through a new book-keeper not being acquainted with said custom. Up to within two or three years, it had been the custom of the banks to treat such paper as entitled to grace; it may have been fiv'e years.</p> <p>T. C. Severance, Cashier of Commercial Bank; been a banker for many years; custom generally qot to give or ask grace; have been exceptions to the rule — but remembers of but one instance, of Mygatt & Brown not presenting such a draft till after grace. That the custom has been nearly universal with banks and bankers of Cleveland, with occasional exceptions, to treat such paper as without grace; which exceptions have been in the presentment. We, and the banks generally, have never claimed grace.</p> <p>The above testimony, as to custom, objected to by plaintiffs, and received subject to exception.</p> <p>Plaintiffs’ Testimony. — It is further agreed that the following witnesses, as to the custom, called by plaintiffs, testify as follows:</p> <p>George Mygatt, of the firm of Mygatt & Brown, bankers of Cleveland, testifies that he has been a banker for thirty years, in Norwalk, Painesville and Cleveland; in the City Bank of Cleveland for two years, and in the next succeeding and the last three years, as a private banker. That he does not know what has been the general custom in Cleveland as to such paper; but that it has been his invariable custom, whenever engaged in banking business, to treat such paper as entitled to grace, both in presenting them for payment and in paying them.</p> <p>George Williams, a banker for twenty years, testifies that he concurs with George Mygatt in his above statement, and believes it has been the general custom of bankers and banks in Cleveland, to treat such paper, when payable to order instead of bearer, as entitled to grace; that he does not now remember of any particular instance, without referring to his books, but that such is his recollection of the course of business in Cleveland for many years, and presumes he has had forty instances where such paper was treated with grace.</p> <p>It is agreed that the above was all the evidence, or agreed statement of evidence, offered on the trial; that the only question is, whether such a paper was entitled to grace.</p> <p>And it is further agreed, that all the parties to the paper were residents of Cleveland, and that the drawees were bankers, and that the paper was discounted by plaintiffs on the day it was drawn and indorsed. It is further agreed, that the signatures of R. B. Bailey and L. E. Burgess to the paper in question, are the signatures of defendants, respectively.</p> <p>The court, on this submission, found for the plaintiffs, and assessed their damages. Whereupon the defendants moved for a new trial, upon the ground, that the finding of the court was contrary to the law and the evidence, etc.; and the court reserved the case, on this motion, for decision by the Supreme Court.</p> <p>cited — Chitty on Bills, p. 1, sec. 1, p. 511, 50, 52, 322; Bayley on Bills, p. 1, sec. 1; Byles on Bills, p. 1, sec. 1, p. 71; Story on Prom. Notes, p. 614, sec. 487; Story on Bills 51; Chitty, Jr. 24 — 26 ; 21 Wend. 337; 6 Hill 174 ; 4 Yerg. (Tenn.) Rep.; Little’s (Ky.) Rep.; Blackford (la.) Rep.; Swan’s Statutes, pp. 587, 588, sec. 1; Bowen et al. v. Newell et al., 4 Selden 190.</p> <p>cited — Story on Prom. Notes, secs. 487, 488, 489, 490, 493, 496 ; 3 Kent’s Com. (6th Ed.), p. 75,104, note c ; Bx parte Brown, 2 Story’s Rep. 502; Bowen v. Newell, 5 Sandford’s Rep. 326; The Mohawk Bank v. Broderick <f Powell, 10 Wend. 304; S. C., 13 Wend. 133; Smith v. Janes, 20 Wend. 192; Salter v. Burt, 20 Wend. 205; Murray v. Judah, 6 Cow. 490; Holcombe’s Lead. Cases upon Com. Law, 264, 274, note; B,enner v. The President, Directors <f Go. of the Bank of Columbia, 9 Wheat. 581; 5 Cond. Rep. 690; Mills v. The Bank of the U. States, 11 Wheat. 431; Bank of Washington v. Triplett <f Neale, 1 Pet. 25; Bank of Columbia v. Magruder, 6 Harr. & J. 180; Pearce v. Butler, 14 Mass. 303; Whitwell v. Johnson, 17 Mass. 452 ; Hartford Bank v. Stedman, 3 Conn. 489 ; Wood v. Gorl, 4 Mete. 203; Little v. Phoenix Bank, 2 Hill 425.</p>

<p>There is no inflexible rule for running the open or lost lines of a survey. Each case depends on its own circumstances.</p>

<p>Where a bill in chancery is filed to recover the consideration paid on a contract for the purchase of real estate, after the contract of sale has been rescinded by the consent of both parties, and also to recover the value of the corn, wheat and potatoes growing on the land at the time of the rescission of the contract, and of hay taken off the land and in stack; and where the amount of the claim is to be reduced by the value of the use and occupation and injuries to the premises done by the purchasers, the respondent, alter answering to the merits and submitting his defense to the court, comes too late to object to the jurisdiction of the court, upon the ground that the complainant had a plain and adequate remedy at law.</p> <p>Where money is paid upon the purchase of real estate, and the contract is afterward rescinded by consent of the parties, upon an agreement that it shall be left to the honor of the vendor to pay back such part of the purchase money as shall be just and equitable, and he afterward refuses to pay any, a court will compel him to pay so much thereof as he, in justice and equity, ought to have paid.</p>

Petition for dower. Reserved in Delaware county. In 1817 or 1818, the complainant, then Ruth Atherton, was married, in Luzerne county, Pennsylvania, to one William Dennis. They lived and cohabited as man and wife one or two years, when they separated, and he went to Susquehanna county, in that State, where he afterwards married and continued to reside until his death, in 1853.

<p>A judgment for or against one of tbe several makers of a joint obligation, is a bar to an action afterwards brought against another.</p> <p>But not so if the obligation is joint and several.</p> <p>In such case, the creditor has the election to treat the obligation as joint or several, and he may sue and recover against each one of the makers separately, or all jointly; but he cannot do both; and hence the recovery of a joint judgment is a bar to separate actions, and separate judgments equally so to a joint action.</p> <p>The election of the creditor is not conclusively determined by the commencement of a joint action, and becomes fixed only upon the recovery of judgment against all the joint makers of the instrument.</p> <p>Until one judgment, either joint or several, is rendered for or against each of the makers of such an instrument, no merger of the several liabilities of any , one of them, as to whom no judgment has been rendered, takes place ; and a separate action may be sustained thereon.</p> <p>The commencement of a joint action, therefore, against all the makers of such an instrument, in which process was only served upon a part, and judgment against but one, is no bar to a separate action against one not served with process.</p> <p>In such case, the creditor has his election to sue out a scire facias against such several maker, to make him a party to the judgment against the others, or to commence and prosecute a separate action against him.</p>

Error. Reserved in the District Court of Hamilton county. This was originally an action on the case brought in the (former) Superior Court of Cincinnati, against the city, for alleged negligence of her agents, causing an overflow of water into the store of the Messrs. Stone. The plea was the general issue.

<p>An order of the Court of Common Pleas, discharging an attachment against a resident as to the whole of the property attached, is an order affecting a substantial right made in a special proceeding, which may be reversed, pending the action in which the order of attachment was made.</p>

<p>V. D., a married -woman, being seized in fee of a tract of land — purchased with her sole and separate money, and conveyed to her during coverture and after the taking effect of the “ act in relation to the interest of husbands in the estate of their wives,” Swan’s Stat. 712 — one J. rented of her husband eight acres thereof, for the purpose of raising a crop of wheat thereon, stipulating to pay to the husband therefor, one-third of the wheat when raised and threshed. J. accordingly sowed the land in the fall. The next spring, V. D. was divorced from her husband, on account of his aggressions, and it was further decreed that she be restored to all her lands and tenements. Afterward, and before harvest, she sold and conveyed said tract of land to G. At harvest, J., with his servants, cut and carried away the wheat, threshed it, and set apart one-third thereof for V. D.’s late husband. G. brought á civil action in the common pleas against J. and his servants, for entering said close and cutting and carrying away said wheat; and claimed over $100 damages. Upon appeal, the district court — a jury being waived — found for the plaintiff, and gave judgment for the value of the wheat cut and carried away, to wit, $75. To reverse this judgment, the present petition was filed. Held: ■</p> <p>That the second section of said act does not apply where the interest of the husband was vested in him before the act took effect.</p> <p>A justification of a prima facie trespass, on the ground of authority derived from the husband alone, must, in order to be complete, show that his interest accrued to him before the act took effect.</p> <p>The second section of the act is not limited to cases in which the entire interest of the husband is attempted to be conveyed or incumbered.</p> <p>All conveyances and incumbrances of a husband’s interest in his wife’s real estate described in said act, unless made or created as therein required, are, if the husband’s interest accrued after the taking effect of the act, absolutely void as against the wife. They are not void merely, as against a claim by her for support, but as to her, they are-void to all intents and purposes. Whether they have any validity as against the husband, guere ?</p> <p>Whether the agreement aforesaid was or was not in legal effect a lease, it would, if valid, have created an “ incumbrance,” within the meaning of the act, upon the husband’s interest in the land, as it would, at least, have conferred upon J. a right to use and to occupy the premises so far as might be necessary in order to raise and harvest the crop. The agreement was therefore void as against the wife. And being void as to her, it was void as to her grantee.</p> <p>The doctrine of emblements does not apply to the case, the husband’s estate having been determined, on account of his own misconduct, by a decree that restored to the wdfe all her rights. And the agreement with J. being void, he is in no better condition than the husband.</p> <p>The common pleas has original jurisdiction where the amount claimed exceeds one hundred dollars, although the verdict may be for a smaller sum. It is the sum claimed, and not that found due, that gives jurisdiction.</p>

Petition in error to reverse the judgment of the District Court of Hamilton county. The original action was brought by the defendants in error against the plaintiff in error, in the court of common pleas, on the 9th of December, 1847, for the recovery of damages for an alleged breach of covenant.

<p>Assumpsit. Reserved in the District Court of Ross county.</p> <p>This case was submitted and reserved upon an agreed statement of facts, which appears in the opinion of the court.</p>

<p>Motion for leave to file a petition in error, to reverse a judgment of the District Court of Fairfield county.</p> <p>The facts are stated in the opinion of the court.</p>

This is a petition for dower, reserved in Ashtabula county,, The material facts of the case are' as follows: Daniel Woodworth was the owner of the land in dispute. Having previously become bail to the United States, for Robert Harper, who had failed, he, in 1839, conveyed the land to Nathan Warner, without consideration, and for the purpose of preventing its being subjected to the payment of the claims of the United States against Harper, for which he was holden.

<p>This is a writ of error to reverse the judgment of the Court of Common Pleas of Muskingum county, on an indictment for the crime of shooting at a person with intent to kill. On the trial in the court below, after evidence had been given on the part of the State tending to sustain the indictment, the plaintiff in error gave evidence tending to prove, that at the time he did the act charged, he was laboring under an attack of delirium tremens. And after the evidence was closed, the plaintiff in error asked the court to charge the jury, that delirium tremens, although a consequence superinduced by antecedent continued drunkenness, is a diseased state of the mind, and exempts the subject from responsibility for crime, like insanity produced by any other cause. But the court refused so to instruct the jury, and the plaintiff in error excepted.</p>

<p>Clerical inaccuracies in the description of a debt, will not affect the lien of a mortgage as against the mortgagor or subsequent judgment creditors of his, provided the debt is clearly identified as the one intended to be secured.</p> <p>Under the recording acts in force in this State, a mortgage takes effect upon its delivery to the recorder for record; before that time, it has no effect as against the judgment creditors of the mortgagor; but after it is so delivered, whether correctly recorded or not, the lien of such judgments attaches only to the equity of redemption, and the judgment creditor stands in no better position than the mortgagor.</p> <p>A judgment creditor is not a purchaser, nor entitled to the privileges of that position.</p>

<p>Error to the District Court of Geauga county.</p> <p>The original action was debt on an administrator’s bond, executed June 21,1838, conditioned for the faithful performance by said Asa Cowles of his duties as administrator of the estate of Edmund Cowles, deceased.</p> <p>Declaration sets up, in assigning breach of said bond, that the intestate left Hannah Cowles, since the wife of A. H. Burritt, his widow; and Caroline and Sybil, infant daughters by the said Hannah, arid sole heirs, entitled to distribution of the personal property; that after the final settlement of said estate, in March, 1843, Caroline, without issue, died intestate, leaving Sybil her heir, and that in April, 1843, Sybil died also, intestate and without issue, leaving no brother or sister of the whole or half blood, whereby, as sole surviving parent, the said Hannah became her heir as to personal property, and would take the whole personal property in the hands of the above administrator on final settlement, etc. Said Hannah intermarried with Burritt in 1844.</p> <p>That Asa Cowles, as administrator, made his final settlement, which was duly recorded, etc., in 1841, showing in his hands, subject to distribution to said widow and heirs, f>1,363.87; which sum he did not pay over to said widow and heirs in their lifetime, though often requested so to do ; nor did he pay the same to the said Hannah, or said A. H. Burritt, though often requested so to do, etc.</p> <p>To this the defendants plead specially:</p> <p>1. Payment of said balance to said Caroline, said Sybil, and said Hannah.</p> <p>2. Payment to said Sybil and said Caroline.</p> <p>3. By agreement with said Hannah, while sole, all of said money was to be paid to said Sybil and Caroline.</p> <p>4. Said Hannah is not entitled to said money.</p> <p>5. The plaintiffs have never demanded said sum, of money of the defendant, Asa Qowles ; concluding with, a verification.</p> <p>To the above pleas, except the fifth, the plaintiff replied, and to that demurred generally.</p> <p>The record shows no disposition of this demurrer; that at the April term, 1850— the case having been commenced in 1848 — trial was had, and judgment for the amount of the bond, with an award of execution for $669.18, the amount found to be due in equity, and costs.</p> <p>The case was removed into the district court on error, in September, 1852, and disposed of at. the April term of that court, 1853, by reversing the above judgment of the eommon pleas, for the reason that the court proceeded to try the issues of fact in said case, while said issue of law was undisposed of.</p> <p>To reverse this judgment of reversal, the present petition was filed.</p>

Petition in error to reverse the judgment of the District Court of Hamilton county. Held: that a mortgage of chattels, though void as to a part of the thing mortgaged, on account of their character, is not void as to those proper to be mortgaged.

<p>Upon a hearing upon bill and answer, the answer will be taken as true in all points; and such answer cannot be contradicted except as provided in section thirty-one of the chancery act.</p> <p>When a bona fide sale is made of the property of a firm by its members, before any proceedings either in law or equity are instituted by a creditor of the firm, sucb creditor cannot, by any subsequent proceeding, acquire a lien upon the property thus disposed of.</p> <p>As a general rule, a creditor of a firm has no lien upon the partnership property until acquired by process of law.</p> <p>Whore one member of a firm purchases goods or borrows money for the firm on his own credit, giving surety for the payment of the money or for the goods, and such money or goods go into and are used by the firm, and the surety has to pay as such, the firm may convey the goods of the firm to such surety in satisfaction for the money thus paid, and a creditor of the firm cannot set aside such conveyance merely because he was, at the time of such conveyance, a creditor of the firm.</p>

Petition in error to reverse the judgment of the District Court of Madison county. The original suit was brought by Hays against Johnson in the common pleas of Madison county, for the recovery of the value of two hundred stock hogs, alleged to be worth nine hundred dollars, which Hays charged belonged to him, but which had wrongfully come into the possession of Johnson, who, on demand, refused to give the same up.

<p>Bill of review. Reserved in Summit county.</p>

Writ of certiorari to tbe Court of Common Pleas of Hamilton county. Reserved in tbe District Court.

Action of debt on penal bond. Reserved in the District Court of Licking county.

<p>This is a writ of error to reverse the judgment of the Court of Common Pleas of Preble county, reserved in the District Court for decision here.</p> <p>The original proceeding was a citation issued at the instance of the relators, against.the plaintiff in error, by the probate court of Preble county, March 1, 1852, calling upon the plaintiff in error, as surviving administrator of the estate of Hezeldah Philips, deceased, to show cause why he had neglected to make settlement of his administration of said estate. To this citation the plaintiff in error filed an answer, denying the right of the relators to call upon him for a settlement of his administration of said estate or to show cause why his settlement -accounts had not been filed, upon the following grounds, to wit: 1st. That the letters of administration on said estate were issued to him and his brother David Philips, (now deceased,) on the 25th day of August, 1818, more than thirty-eight years ago; and about thirty-eight years since, by the conditions of the administration bond, settlement of the administration was required, and more than twenty-one years since the relator, Sarah Harter, in whose right the proceedings were instituted, became of age, and the right of action, if any ever existed, had accrued to her. 2d. That the administration of said estate was closed and settled in a manner satisfactory to all parties interested, and had been acquiesced in up to the time of the issuing of this citation. 3d. That the letters of administration were issued under the administration law of 1810, and that there existed no law authorizing the proceeding by citation ; and that the only proceedings authorized under that administration law, were, suit upon the administration bond, and motion for the removal of the administrator. The .relators excepted to the sufficiency of the answer. And the probate court, after a hearing, dismissed the cause at the costs of the relators. The cause having been taken to the common pleas on certiorari, that court reversed the judgment of the probate court. And this proceeding in error is prosecuted to reverse the judgment of reversal. The assignments of error are all predicated on the sufficiency of the defense set up in the answer of the plaintiff in error, filed in the probate court.</p>

<p>In Chancery. Reserved in the District Court of Belmont county.</p> <p>The material facts in this case are the following:</p> <p>On the 15th clay of May, 1852, Benjamin Mackall and wife executed and acknowledged a deed, purporting to convey certain premises therein described to John T. Mackall and Kelion Hager, in trust.</p> <p>The object of the trust is thus defined by the deed:</p> <p>“ Now the uses, and trusts, and purposes, and objects of this conveyance, are these : That, whereas, I am indebted to sundry persons, and copartnerships and corporations in large amounts of money, some of which persons and partnerships are hereinafter named, and being apprehensive that, without a just and fair distribution among my creditors of my property, I shall not be able in a just and fair manner to discharge my obligation to them, I have granted, etc., to be held by them in trust, to and for the benefit of all my creditors, to be divided between them pro rata. And to that full and complete extent, the said trustees are hereby authorized and empowered to sell, either at public or private sale, and with such notice of sale, and in such manner as they shall think most expedient and beneficial to my creditors, the above described tracts of land; and out of the proceeds of said sales to pay, as soon and as fast as they may be realized — 1st. The costs of this assignment, and the reasonable costs, expenses and compensation to the said trustees, for the execution and carrying into effect the trust aforesaid. 2d. That they pay out the balance of said fund equally and pro rata to all my creditors, in proportion to the amount of their respective demands, hoping and expecting that the trust fund hereby created will satisfy all my debts, leaving a balance; which said balance, should it arise, the said trustees are to pay over to the mndersigned, B. Mackall, or his personal representatives.”</p> <p>On the afternoon of the same day the deed was executed, Benjamin Mackall, the grantor, took the deed to the county recorder’s office, and, laying it upon a table in the presence of the recorder (who was engaged with other persons at the time), and with his assent that he, the grantor, might lay the deed down there, remarked to the recorder, that there was a deed Mr. Kelion Hager wished him to record, and wished it done so that Hager could get it during the court; that Hager would call for it during the sitting of the court and pay him for recording it.</p> <p>The recorder, after Mackall the grantor had left, took up the deed and looked at it, and finding it to be of considerable length, and not having received his recording fee, laid it down upon the table again without indorsing upon the deed the time it was left for record, and without recording it. The deed laid upon the table in this way until the 19th of May, when the recorder, refusing to enter the indorsement as of the day the deed was left with him, of his own motion entered it as of the 18th of May.</p> <p>The deed was recorded May 21st, in the set of books denominated “ record of mortgages.”</p> <p>The grantees accepted the conveyances with the trusts it imposed, as they had agreed to do before it was executed.</p> <p>At the March term, 1852, of the court of common pleas of Belmont county, Samuel B. Wilson commenced suit against B. Mackall, as the surety of one Bailey, on a penal bond for $400; at the same term, Long & Byrne commenced their suit against the same defendant; and he had before that time given warrants of attorney to the complainants, and to Russell, Mercer & Co., and Slingluff & Ensy,' to enter up judgments for their several claims at the May term, 1852.</p> <p>The May term, 1852, of the court of common pleas of Belmont county commenced on the 18th day of the month.</p> <p>Judgments were rendered at this May term against B. Mack-all in all the suits, and on the warrants of attorney mentioned. The judgments in favor of complainants, and Slingluff & Ensy, were entered up on the first day of the term, May 18th; and the judgment in favor of Russell, Mercer & Co. on the 21th of May.</p> <p>One of the parties claiming adversely to the judgment creditors, examined B. Mackall, the grantor, as a witness. In this examination he states, in substance, that he made the deed of trust in order to pay all .his creditors alike, without sacrificing his property, and that in making the deed, he believed that his own creditors would be paid before the creditors of those he had indorsed for, or was surety for, and that he don’t know that he would have made the deed of trust had he not owed surety debts.</p> <p>Hager, the trustee, says: “Mr. Mackall-told me that he was in debt, and was unable to pay readily; that he wished to make an assignment, and wished me to act as his trustee ; and his object was, in doing this, that one creditor should not have the advantage over another; that he wanted to pay his own debts; that he was surety for one Bailey, who was guardian for some minor children; he had squandered their estate, and the heirs were about to sue him ; and he thought it very unjust that they should come in and sweep away his property from his creditors. The heirs spoken of were the children of John Wilson.”</p> <p>J. T. Mackall, the other trustee, says of B. Mackall: “ He stated to me that he did not want his property sacrificed to pay a part of his debts, and those who were willing to wait, to lose; he thought in the hands of a trustee it would pay more. He stated that there was a suit against him in court, but that he did not want his property sacrificed.”</p> <p>The returns on the executions show, that in July 1852, there was no other property on which to levy but that in the deed described.</p> <p>The object of the bill is to set aside the deed and obtain satisfaction of the judgment recovered by the complainants against B. Mackall.</p> <p>The general creditors resist such action, and claim their equitable rights as beneficiaries of the trusts created by the deed.</p> <p>The complainants insist, in the first place, that the deed is a deed of trust, in the nature of a mortgage, and did not take effect until entered for record, and that it was not delivered or entered for record until after the recovery of the judgments; and that they have the first lien. And secondly, that the deed was fraudulent.</p> <p>cited: O. L. Vol. 49, p. 103; Swan’s Stat. sec. 7, p. 266, sec. 4, p. 778; 2 Johns. Ch. Rep. 181; 4 Kent. Com. 310, note a; 19 Ohio Rep. 212 ; 3 Johns. Ch. Rep. 240 ; 1 Sand. Ch. Rep. 4; 1 Sand. Rep. 83; 12 Barb. S. O. Rep. 168; 5 Sand. Rep. 282; 2 Comst. Rep. 365; 14 Barb. S. O. Rep. 39; 3 Monroe Rep. 2 ; 8 Dana Rep. 263.</p> <p>cited: 7 Ohio.Rep., part 2d, 247; 4 Sand. S. O. Rep. 252, 311, 287, 280; 5 Ohio Rep. 122 ; 10 Paige 227, 229, 365 ; 12 Barb. 168, 175, 180, 186 ; 3 Am. Law Jour. 100; 1 Am. Lead. Cases 80, 84, 87 ; 4 Mason Rep. 210, 212; 3 Maul. & Selw. 372, 375; 4 Johns. Ch. Rep. 529; 13 Ohio Rep. 30 ; 11 Wend. 200; 3 Sand. Rep. 554; 1 Ohio St. Rep. 50; 2 Ohio Rep. 400; 8 Ohio Rep. 391; 13 Ohio Rep. 31, 40; 11 Wheat. Rep. 78 ; 2 Barb. 12, 24 ; 4 Sand. Ch. Rep. 476 ; 2 Kent. Com., 7th ed., 688, 689, note ; 3 Ohio Rep. 351, 532 — 5; 2 Johns. Ch. Rep. 307 ; 2 Gall. 557 ; 5 Wend. 235, 420 ; 4 East. 1; 3 Price 6 ; 1 Bin. Rep. 502, 517, 519; 2 Bin. Rep. 180, 183, 190; 5 Tenn. Rep. 235; 24 Wend. 280; 2 Comst. Rep. 371, 372 ; 9 Paige 398, 403, 405; 1 Sand. Rep. 83 ; 5 Barn. & Cress. 671; 12 Eng. Com. L. Rep. 351; Smith on Cont. 9; 4 Yo. & Col. 130 ; 4 Myl. & Cr. 660; 11 Mees. & W. 146 ; 15 Wend. 657 ; 2 Mass. Rep. 452; 10 West. Law J. 252; 4 Kent. Com., 7th ed., 138, 323, 500; 18 Conn. Rep. 257 ; 19 Ohio Rep. 20, 212, 215; 2 Story’s Eq., see. 1018 ; 1 Ohio St. Rep. 243; 2 Ohio Rep. 266; 7 Wheat. Rep. 556, U. S. Cond. 344; 7 Pet. Rep. 609; 6 Barb. 94; 12 Ala. Rep. 487; 20 Johns. Rep. 187 ; 15 Wend. 661; 10 West. Law J. 253; 3 Monroe Rep. 2; 8 Dana Rep. 263; 13 Ohio Rep. 40.</p>

In Case. Reserved in the District Court of Cuyahoga county. The defendant entered upon and dug down the lands of the plaintiff, and carried away gravel and sand therefrom; and constructed its railroad through and over said lands, and caused said lands to be appropriated to the uses of such railroad.

<p>Information in the nature of a quo warranto.</p> <p>The case is stated in the opinion of the Court.</p>

<p>1. When a contract is entered into for work at a certain price, with a stipulation that the same is to be paid for in specific articles at a certain rate or price, the debtor has an election to deliver the articles, or pay the specified amount of money, if such right of election is expressed or fairly to be implied.</p> <p>2. If such election is not expressed, and the subject matter of the contract or res gesta indicate that no such right of election was contemplated by the parties, then the general rules of law relating- to executory sales are applicable, and the contract is a single and imperative promise to deliver the specific articles.</p> <p>3. If the right of election to pay in money or the articles, at the ojition of the debtor, exists, and the articles are not delivered, the plaintiff recovers the amount of the debt and interest; but if no such election is expressed or implied, the plaintiff is entitled to the market value of the articles, with interest.</p>

<p>In chancery. Reserved in the District Court of Jefferson County.</p> <p>The complainants are John H. -Miller, and his wife Ann C. Miller, who is a daughter and heir at law of Thomas Stokely, deceased. The defendants are the other children and heirs at law of said deceased, including Samuel Stokely, a grantee as well as heir. The object of the bill is to have the deed from Thomas Stokely and wife to Samuel Stokely, mentioned in the opinion of the court, declared to be subject to an express trust in favor of the grantors and their heirs, and to .compel Samuel Stokely to account as trustee. None of the defendants answer but Samuel Stokely.</p> <p>The material allegations of the bill and answer, are set out in the opinion 'of the court, as are also the material facts, as found by the court.</p>

<p>This is a petition in error, to reverse the judgment of the District Court of Cuyahoga county.</p> <p>Kelley, the plaintiff in error, was the defendant in the court below, and now assigns for error, that that court overruled the defense he set up upon the facts admitted, and rendered judgment against him. The facts appear in the opinion of the court.</p> <p>cited Quachenbnsh v. BawJcs, 1 Denio 128 ; Bastings v. Lane, 3 Shep. 134; Forsyth v. Marbury, R. M. Charlt. 324; Garrett v. Loe, 1 Scam. 335 ; Guard v. Rowan, 2 Scam. 499; Steamboat Monarch v. Finley, 10 Ohio 385, 390.</p>

In chancery. Reserved in the District Court of Lucas county. The material facts in this case, are the following: On the 21st day of August, 1849, Raymond, the complainant, commenced an action of indebitatus assumpsit, in the court of common pleas of Lucas county, against the canal boat “ Wave,” by name, under the water-craft law, on á claim amounting then to $660.54.

<p>The vendee of a judgment debtor, who has not paid the purchase money, but has received a conveyance from the judgment debtor, cannot sustain a bill to quiet his title as against the purchaser of the land under a judgment rendered after the contract of sale, unless he has paid or brings into court the purchase money.</p>

<p>A judge of tho court of common pleas may, in the exercise of chamber powers, as a member of the district court, grant leave to file an information in the nature of a quo warranto.</p> <p>The authority of the prosecuting attorney of a county, to file an information in the nature of a quo warranto, is not repealed or superseded by the act relating to the duties of the attorney general, passed May 1st, 1852.</p> <p>The district court may entertain jurisdiction of an information in the nature of a quo warranto against an association of individuals, for usurping a corporate franchise, when either the office of the association, or the office of the president thereof, shall be within the county.</p>

<p>An assignment of property by an insolvent debtor to certain creditors of his, for the purpose of paying debts due to them and also other preferred creditors, is within the provisions of the third section of the act of March 14, 1838, (Swan’s Stat., ed. 1841, 717,) and inures to the benefit of all the creditors of the assignor.</p> <p>It is immaterial whether such assignment is made for the benefit of the preferred creditor, not being an assignee, or to indemnify the surety of the assignor to such creditor.</p> <p>In either case, the assignment secures the debt, and entitles the creditor to compel an application of the fund to its payment.</p> <p>The character and legal effect of such an assignment, is determined at the time it is made; and is not changed by the fact that the property assigned, turns out to be no more than sufficient to pay the assignees.</p> <p>If, at the time it is made and accepted, it subjects the assignee to account to any other creditor of the assignor, the assignment is in trust, and the assignee a trustee within the moaning of that act.</p>

In Chancery.. Reserved in Lucas county. The facts are stated in the opinion of the court. 1. The laws under which the re-assessment was made are retro-active, and operate to impair vested rights. Dash v. Van Sleek, 7 Johns. 506 ; (food v. Zercher, 12 Ohio Rep. 867; Chesnut v. Shane’s Lessee, 16 Ohio Rep. 609; Schooner Aurora Borealis v. Dobbie, 17 Ohio Rep. 125. The charter, as it originally existed, gave no power to re-assess.

In the act of the general assembly, passed April 26, 1854, “ providing for the appointment of officers of the Ohio Penitentiary, fixing their compensation, prescribing their duties, and determining the manner of working Gonvicts,” (43 Ohio Laws 60,) it is provided in sec. 13 as follows : “ All contracts for working convicts, shall be given to the highest reputable bidder ; the letting of which the directors shall give at least six weeks notice in two daily or weekly…

<p>The legality of the election of persons as trustees of a cemetery association, and their right, by'virtue of such election, to exercise the powers and conduct the affairs of the association, are questions which cannot be judicially tested by bill in chancery, but fall appropriately within the jurisdiction of proceedings at law by quo warranto.</p> <p>A special and express trust created by the appropriation of a lot of ground by a cemetery association, for the exclusive purpose of the burial of the dead of . a certain religious society, and the appropriation of the surplus means of the association solely to pious and charitable uses, are objects which will be upheld, and the execution of the trust strictly enforced in a court of equity, upon the application of any member of the association, where there has been an abuse or perversion of such trust.</p> <p>Where such association was not, either by its charter, or' its articles of association, placed under the special authority, control or direction of such religious society, the fact that some of the members of the association made special stipulations with the bishop of the diocese, that in consideration of his blessing the cemetery and consecrating the burial grounds, the rules and usages of the church should be strictly observed, and the directions of the bishop and priests of the church, be followed as to what members of the church should be entitled to burial in the cemetery, do not legally constitute conditions in the terms of the trust, so as to restrict, or in any manner control the legal powers of the corporation.</p>

The facts in this case are the following : Hill was the owner of a lot of ground at the south-west corner of Seventh and Plum streets, in the city of Cincinnati, fronting fifty-one feet on Seventh.

<p>In error to the Court of Common Pleas of Marion county. Reserved in the District Court.</p> <p>This case involves the question of the constitutionality of a special assessment for improving streets under section twenty-six of the act of May 3,1852, “ to provide for the organization of cities and incorporated villages.”</p> <p>The question is presented by demurrer to a petition in a suit brought to collect an assessment on Epler’s lot, for improving the street in front of it.</p>

<p>In Error. Reserved in Miami county.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Lands not in the possession of the judgment debtor, and in which ho has an equitable estate, created by a contract of purchase, cannot he levied on, and sold to satisfy a judgment against him; and the purchaser under the judgment does not become the assignee of the contract of purchase.</p>

Petition in error to reverse the judgment of the Superior Court of Cincinnati. The original proceeding was a suit on a replevin bond, signed by the plaintiff in error as surety for Joseph C. Rich, and given in a certain action of replevin which had been instituted in the common pleas of Hamilton county by said Rich, against Cornelius G. W. Comegys and William Comegys, and in which action judgment had been rendered for the defendants.

<p>This is a petition in error to reverse the judgment of the District Court of Athens county.</p> <p>The original action was ejectment, brought to recover a tract of land in Rome township, in said county, and bounded and described as follows: Beginning at the north-west corner of section 36, Tp. 6, R. 12; thence east 80 rods; thence south 230 rods; thence west 80 rods, to the section line; thence north to the place of beginning, containing 115 acres.</p> <p>The case was tried at the September term, 1854, of the district court, by the court, and resulted in a judgment in favor of the plaintiff below.</p> <p>The record contains a bill of exceptions, from which it appears that the legal title of the lessor of the plaintiff below having been given in evidence, the defendant below, to show the title to this land out of the lessor of the plaintiff below, and to maintain the issue on his part, gave in evidence a deed in due form of law, from the auditor of Athens county, dated June 27, 1846, for a tract of land sold on the 8th day of January, 1844, for the taxes of 1842 and 1843. The bill of exceptions does not show how the land was described in the auditor’s deed, but it appears that the lessor of the plaintiff produced in evidence the record of the delinquent list, and of the sales made.</p> <p>The delinquent list contained the following:</p> <p> </p> <p>The record of sales contained the following: “ 150 acres sold to R. de Steiguer, in Section (36), Tp. (6), Range (12), N. W., charged in the name of E. Wood, for taxation, he being the best bidder, and having paid the sum of $5.51, charged on said lands.”</p> <p>It further appeared in evidence, that the tract of land in fact delinquent, and on which the $5.51 were due, and unpaid, was a 150 acre tract, in the north-west corner of the section, and of the shape represented in the plat of said section, as follows :</p> <p> </p> <p>The land sought to be recovered in the action of ejectment was the 115 acres designated on the above plat, being a parallelogram, 280 rods long on the west line, by 80 rods wide on the north line of the section.</p> <p>The record does not show that the defendant below was the assignee of the purchaser at the tax sale, but counsel, in argu ment, seem to recognize such to be the fact.]</p> <p>The plaintiff below objected “ to the sufficiency of said descrip tion of said 150 acres so sold for taxes,” and the court sustained the objection, and gave judgment for the plaintiff and against the defendant below; to which action of the court the defendant below excepted, and on that ground moved the court for a new trial • which motion the court overruled, and the defendant below excepted.</p> <p>The plaintiff in error now assigns for error the action of the court in sustaining the objection to the sufficiency of the description of said 150 acres, and overruling the motion for a new trial, and giving judgment as stated.</p> <p>insisted that the description was sufficient to cover the land which was in fact delinquent ; but in case it should be held that the description defines 150 acres in a square form in the north-west corner of the section, then the judgment of the 'district court would be erroneous; for, under that construction, 75 acres of the 115 would have been embraced within the square, leaving but 40 of the 115 acres out of it; and that in either case the judgment of the district court was erroneous.</p> <p>Mr. Welch submitted an argument, in which he insisted that the description “ 150 acres north-west,” defines a square in the corner; and that, as the law required the advertisement to give a “pertinent description” of the land, and the tax charged against it, the advertisement was subject to this dilemma: The tax was charged on one tract — 150 acres, of an E shape, and another tract — 150 acres, of a square shape — was advertised as delinquent. Either the wrong tax was assessed, or the wrong land was advertised.</p>

<p>L. executes to Q. a mortgage containing full covenants of warranty to secure the payment of $625, payable in installments. Part of the installments being due and unpaid, and pending proceedings for foreclosure and sale, by agreement of parties, a decree of simple foreclosure is entered, and the notes evidencing the debt surrendered. Subsequently Q. is evicted under a prior mortgage, hitherto unknown to either party, executed by L.’s grantor. Held:</p> <p>1. The mortgage to Q. is not merged or in any way affected as a conveyance by the decree of foreclosure; its covenants of warranty remain in full force and vitality; and an action against L. may be maintained on them.</p> <p>2. Q. was not bound to discharge the prior mortgage, but might well rely on the covenants of warranty.</p> <p>3. The rule of damages, where the eviction goes to the entire estate, is the amount of the debt with interest, discharged by the foreclosure.</p>

The original action was brought by the defendant in error on a bill of exchange for one thousand dollars, dated May 9th, 1850, due in sixty days, and payable at the Bank of North America, Philadelphia. The defense set up was, that the bill was void, under the provisions of the 61st section of the charter of the bank.

Petition in error. Reserved in tbe District Court of Montgomery county. The facts and questions in the case are stated in the opinion of the court. cited Tremain v. Siming, Wright’s Rep, 644; Porter v. Noyes, 2 Greenleaf 22 ; Townsend v. Weld, 8 Mass. Rep. 146 ; Harlow v. Thomas, 15 Pick. Rep. 68 ; 1 Greenleaf’s Ev., sec. 2812 Starkie’s Ev. 549 ; Dunn v. White, 1 Ala.

<p>In error to the Probate Court of Vinton county.</p>

Petition in error to reverse the judgment of the Probate Court of Franklin county. The original proceeding was instituted in the court below, April 19, 1854, by an association of persons under the name and style of “ The Atlantic and Ohio Railroad Company,” as a corporation, to appropriate the right of way for a part of the road of the plaintiff through Franklin county, and also to obtain earth for the construction of said road.

<p>The 83d section of the municipal corporation act of May 3d, 1852, confers upon the police court of cities of the first class jurisdiction to try and determine a charge of obtaining money or goods by false pretenses.</p> <p>Such charge may be preferred by information filed in that court, and by the prosecuting attorney thereof.</p> <p>The constitutional right of trial by jury is not infringed, when the option is given to the accused to have the issue tried by the court or the jury, and he submits the cause to the court.</p> <p>A false pretense, within the meaning of the statute, must relate to a past event or an existing fact. Any representation or assurance in relation to a future transaction, is not included.</p> <p>The indictment or information must aver all the material facts which it is necessary to prove to produce a conviction; and with such reasonable certainty as to advise the accused what he may expect to meet on the trial.</p> <p>Whether procuring by false pretenses the signature of a party to a negotiable promissory note or bill of exchange, which he is ultimately compelled to pay, is an offense within the statute — quei-e.</p>

It appears from the •recordjn this case, that De Forest, the plaintiff in error, and others, in October, 1851, petitioned the trustees of Brookfield township, Trumbull county, to vacate the east end of a certain township road, describing it, and that the defendant in error, William Wheeler, and others, living in the immediate vicinity of the road, remonstrated against the vacation of the same, on the ground that it was useful to them, and in fact used by them, and that its…

<p>In an action for the recovery of real property under the code of civil procedure, tried on appeal in the district court, the losing party is entitled to a new trial of course, in the same manner as in the court below.</p> <p>In estimating the number of trials to which the party may be, of right, entitled in the district court, no regard will be had to the number or the result of trials had in the court below.</p> <p>A motion for a new trial for cause, regularly filed by the losing party, after verdict and before the actual entry of judgment against him on the verdic^ is a sufficient demand of another trial and compliance with the statute requiring “ notice on the journal.”</p> <p>When the causes for a new trial assigned in the motion, are deemed by the court to be insufficient, the order awarding a new trial should, to furnish a basis on which to determine the rights of the parties to subsequent trials, show that it is awarded as matter of right under the statute, and not for the causes assigned.</p>

This is a petition in error to reverse the judgment of the Court of Common Pleas of Monroe county.

In 1850, Sutphin instituted an action on the case against Yan Derveer, in the common pleas of Butler county, for a libel; to which the defendant pleaded the general issue, and filed sundry notices in justification. Upon the trial in Butler county, the jury failed to agree.

<p>In an action upon a guaranty indorsed on a note, thus : “ We guaranty the collection of the within to Cyrus Brown,” evidence maybe received that the defendant was injured by the delay of notice that the note guarantied could not be collected.</p>

The original action was ejectment, brought by the plaintiff against the defendant, and was, on appeal, tried in the district court of Hamilton bounty, at the April term, 1854, and resulted in a judgment for the defendant. The present proceeding is to inquire whether, under the state of facts presented by the record, the judgment of the district court was right.

In chancery. Reserved in the District Court of Lucas county. The complainant, Thomas Card, in his bill, filed in 1850, sets up an equitable title in himself to certain premises in controversy, situated in the city of Toledo, and asks the court to enter a decree against the defendants Patterson and Platt Card, by which he will be vested with the legal title to said premises, and quieted in possession.

<p>In error to the District Court of Hamilton county.</p>

This is a writ of error to tbe District Court of Hamilton county. In July, 1849, James Summons was indicted for the murder of Electa Reeves by administering poison. Held: at least in civil cases, that it is sufficient to prove the substance of what was sworn to on the former trial. 1 Greenl.

<p>In chancery. Reserved in the District Court of Athens county.</p> <p>The case is stated in the opinion of the court.</p>

<p>Motion for a writ of peremptory mandamus.</p>

Trespass. Reserved in the District Court of Ross county. The plaintiff is a branch pf the State Bank of Ohio, organized under the act of February 24, 1845, to incorporate the State Bank of Ohio, and other banking companies.

The action below was covenant on a sealed policy of reinsurance, by which, on the 26th day of October, 1847, the Washington Mutual Insurance Company insured the Merchants and Manufacturers’ Insurance Company “ against loss or damage, by fire, to the amount of four thousand dollars on $8,000, as insured by them to D. White & Co., on stock of flour, grain, and cooperage, contained in their stone and brick steam flouring mill, with cement roof, and detached from all other…

In chancery. Reserved in Lucas county. This is a bill in chancery, filed by the county commissioners of Lucas county, to enjoin the payment to defendants, of county orders of Lucas county to the… Held: “ that the giving up of suit instituted to try a question respecting which the law is doubtful, is a good consideration for a promise to pay a stipulated sum,” and this we do not dispute to be good law.

This is an application for a writ of mandamus. The material facts upon which the application is predicated, are the following: On the 22d day of March, 1851, the general assembly of the State of Ohio passed “ an act referring to the voters of Perry county, the question of a removal of the seat .of justice of said county.” At the date of this act, the county seat of said county was at the village of Somerset.

The record shows the following state of facts : Prior to the first of August, 1854, William B. Travis had been engaged, on his own account, in the dry goods mercantile business, in the town of New Lisbon. James A. Estill and Lewis Beebout, under the style of Estill & Beebout, were also engaged in the same business at the same time and place.

<p>Petition in error to reverse the judgment of the Superior Court of Cincinnati.</p> <p>The facts in this case, so far as the questions determined by the court require them to be stated, are as follows:</p> <p>In August, 1853, the city council of Cincinnati passed an ordinance to regrade and macadamize Harrison Road from the west line of Western Avenue to Mill Creek bridge, and to ascertain and assess the expense of so doing, according to the act of March 20, 1850, “ further to amend the charter of the city of Cincinnati,” and the general ordinance of June 12th, 1850, in regard to special taxes for the improvement of streets, etc.</p> <p>In September, 1853, the city contracted with McKeon & Reynolds to do the work; and the latter assigned their contract to John Kunkle and Wilson Saffin, who did the work.</p> <p>In February, 1854, the work being finished, the city council, to pay therefor, made an assessment of three dollars fifty-eight cents and six and four-tenths mills, on each front foot of the land abutting on that part of the road where the work was done, and directed the owners of the several lots of land to pay McKeon & Reynolds the assessments made upon their several lots respectively, within twenty days from the date of the ordinance, or be subject to interest and penalty.</p> <p>A. IT. Ernst was the owner of a lot on each side of the road, and the assessment on his land amounted to three thousand eight hundred and fifty-eight dollars and ninety-seven cents.</p> <p>In March, 1854, Kunkle and Wilson Saffin assigned to James •Saffin an interest in the assessments.</p> <p>Ernst, having refused to pay the assessment on his lots, Kunkle and the two Saffins sued him for the amount of it, with penalty and interest, in the superior court of Cincinnati,</p> <p>In his answer, Ernst set up a variety of defenses, and also a counter claim for damages alleged to have been done to his property by the improvement of the road.</p> <p>During the progress of the case through the superior court, the city of Cincinnati was made a party defendant by the plaintiffs below; and Ernst filed an amended answer and cross petition, setting up, among other things, a claim against the city for damages done to his lots by reason of the grading.</p> <p>The issues were tried to a jury, and resulted in a verdict against Ernst, who moved for a new trial, and in arrest of judgment; but the motion was overruled and judgment entered on the verdict, and the court ordered that the city be dismissed with costs, “ as there appears to be no cause of action against said defendant.”</p> <p>This judgment was affirmed on error, by the superior court in general term, and to reverse the judgment of affirmance, is the object of the proceeding in this court.</p> <p>The record shows that during the progress of the trial to the jury, a multiplicity of exceptions were taken by counsel for Ernst to the regularity of the assessment, and to the rulings of the court; but the more substantial points presented, relate to the constitutionality of the act in pursuance of which the assessment was made; and to the questions — whether the plaintiffs as assignees could sustain a suit to recover the assessment — whether the claim of Ernst against the city for damages could be sustained upon the facts in regard to it — and whether the counter claim in favor of Ernst and against Kunkle and Saffin for damages on account of the grading, could be allowed to him, the city being primarily liable therefor.</p>

Petition in error. Reserved in the District Court of Noble county. The material facts in this case are as follows : On the 29th of April, 1854, the general assembly of this State passed “ an act to provide for the permanent location of the seat of justice of Noble county, by the legal voters thereof, and for the erection of public buildings therein.” 52 Ohio Laws 177.

This is an application for the allowance of a writ of peremptory mandamus.

This is a petition in error to reverse the judgment of the District Court of Seneca county.

Petition in error to reverse the judgment of the Court of Common Pleas in affirmance of the judgment of the Probate Court of Jefferson county. The original proceeding was instituted by the plaintiff, in the probate court of Jefferson county, under the statute of April 30, 1852, relating thereto, for the appropriation of certain land belonging to the defendant, situate in said county, for the purpose of constructing thereon its railroad.

The material facts in this case are stated in the opinion of the court. The answer therein mentioned was/on demurrer in the court of common pleas, held to be a sufficient defense, and judgment was entered accordingly. The district court, on error, reversed this judgment of the common pleas; and the present petition in error seeks to reverse the judgment of reversal.

<p>Motion for a peremptory mandamus.</p> <p>The legislature made an appropriation “ for bedsteads, beds, bedding, chairs, tables, table ware, and kitchen utensils,” for the new lunatic asylums.</p> <p>The trustees of the two asylums purchased of the relator, under this appropriation and designation, the following described furniture:</p> <p>2 Tete-a-tetes, carved, upholstered in broehatelle................. $146 87</p> <p>2 French sofas, sweep-backed, rxpholstered with maroon plush, and carved.................................................... 162 58</p> <p>12 Parlor chairs, French stitched, upholstered broehatelle, carved fronts and backs............................................ 158 44</p> <p>8 Center tables, marble tops, rosewood, mahogany, and walnut____ 251 25</p> <p>1 Medallion carved table, legs and stretcher carved, rosewood..... 125 11</p> <p>4 Plush arm chairs, carved, upholstered in broehatelle, etc........ 1S4 43</p> <p>$1,028 68</p> <p>The auditor of State refused to allow the bill, and this manda-) mus is prosecuted to compel him to draw on the above mentioned appropriation to pay the bill.</p>

This is a petition in error to reverse the judgment of the District Court of Muskingum county. Baker, the plaintiff in the court of common pleas, declared inassumpsit. The declaration contained but one count — the common count for use and occupation. Plea, non-assumpsit.

<p>At common law, the death of one of the joint makers of an obligation, extinguished all remedy at law against his estate.</p> <p>No action at law could be maintained against his personal representative, either jointly with the survivor or by a separate suit.</p> <p>In such case relief was afforded in chancery, but only upon condition that the remedy'against the survivor had proved fruitless.</p> <p>The principle of the common law was abrogated by the 90th section of our administration law, (Swan’s Rev. Stat. 378,) and the estate made liable in the same manner “ as if the contract had been joint and several.”</p> <p>The 38th section of the code of civil procedure allows all persons severally liable upon the same instrument, to be included in the same action, at the option of the plaintiff.</p> <p>This section permits the joinder of the survivor, and the personal representative of the deceased obligor, in the same action, whether the contract is in terms joint and several, or made so by the 90th section of the administration law; and authorizes a several judgment to- be rendered against each.</p>

This is an application on bebalf of the city of Zanesville, for a writ of peremptory mandamus, to compel the defendant, as auditor of Muskingum county, to enter upon the tax duplicate of the county, against all the lands within the corporate limits of said city, the per centage regularly levied for city purposes in the year 1855.

In the year 1852, the city of Cincinnati, by order of the city council, removed the front of a storehouse belonging to Platt Evans, on Main street, in the city, and in which he was, at the time, carrying on the business of a merchant tailor. Evans brought an action against the city to recover for the injuries he sustained by the removal of the front of his building, and the consequent interruption to the business he was conducting in it.

<p>This is a writ of error to the Court of Common Pleas of Wayne county.</p> <p>The plaintiff in error was cdnvicted of arson at the September term, A. D. 1853, of that court, and sentenced to imprisonment in the penitentiary.</p> <p>It appears from a bill of exceptions taken on the trial, that one Jesse Taylor, an accomplice of the plaintiff in error, was examined as a witness for the State.</p> <p>A witness was then examined on behalf of the prisoner, to impeach Taylor, and being inquired of as to Taylor’s character for truth and veracity, testified that it was bad, and that he would not believe him under oath.</p> <p>The prisoner’s counsel then proposed to ask the impeaching witness the following questions:</p> <p>1; What is generally said of the prosecuting witness, Jesse Taylor, by those among whom he dwells, as to imputations for general turpitude of character ?</p> <p>2. Do you know the general reputation of the prosecuting witness, Taylor, among his neighbors, as to imputations of a criminal nature, and what is that reputation ?</p> <p>3. Do you know the general character of the prosecuting witness, Jesse Taylor, among his neighbors and those who best know him; and if so, what is his general character ?</p> <p>The court refused to permit these questions to be answered.</p> <p>And this refusal is assigned for error.</p> <p>There is no error in this refusal. The witness sought to be impeached, is a criminal by his own admission, and testifies against his associate in the very crime on trial. The necessity of the prosecution alone, places him on the witness stand, instead of in the dock. Of course his reputation for honesty and morality is bad, or at least ought to be. How, then, could proof of his turpitude add to his guilt already acknowledged ? But the testimony was incompetent, by the well settled principle which excludes all evidence as to the character of the witness, except for truth and veracity. It has never been departed from in Ohio, although the Supreme Court seem to intimate that it is here an open question. Bueldin v. The State, 20 Ohio Rep. 25. A better illustration of the impropriety of changing the rule could not be found than the case at bar affords.</p>