Volume 6 — Ohio Public Domain Citations

This case was adjourned here for decision from the county of Hamilton. It was an application for the benefit of the occupying claimant laws under the following circumstances. The defendants were in the possession of the premises, which they claimed in virtue of a deed made by the administrators of Israel Ludlow to John Kidd, deceased, from whom they claimed by descent. The plaintiffs had recovered in ejectment upon a title deduced from the heirs of Israel Ludlow.

<p>This case was adjourned here for decision, from the county of Hamilton. It came up for decision on a motion for a new trial, made by the plaintiffs, on the following state of facts:</p> <p>The plaintiffs, to show title in themselves, produced in evidence a record of a judgment rendered in the general court, in Hamilton county, at March term, 1800, at the suit of Mills against Symmes; the original writ of ft. fa. et lev. fa. issued upon this judgment, returnable to March term, 1801, and returned levied upon the premises in question; a vendí., returnable to October term, 1801; and the sheriff’s deed, upon a sale made under the vendí., dated September 10, 1801, acknowledged in open court by the sheriff, in conformity with the then existing law.</p> <p>Upon examining these documents, it appeared that no seal had been attached to, or impressed upon, the original writ of ft. fa. et lev. fa., the law requiring, and the general court then having and 12] using a seal to authenticate its process. The defendants *moved-the court to reject the executions and deed for this defect, insisting that a writ of execution not under the seal of the court, was void. The court rejected the evidence, and the plaintiffs moved for a new trial.</p>

Case against a sheriff for the negligent escape of a prisoner in jail on an execution, reserved in Licking. Plea, not guilty. At the trial, the plaintiff having proved his judgment, execution, arrest, commitment, and escape, rested. The defendant then offered evidence to prove that the escape arose from the insufficiency of the jail, and also that the debtor had no property. This evidence being objected to and ruled out, a verdict was taken for the plaintiff.

<p>A bill of exceptions, not made part of the record, can not be considered upon a writ of error.</p> <p>In a prosecution for keeping a disorderly tavern, it is not necessary for the prosecution to produce at tbe trial, tbe license. Equivalent proof may be given in evidence.</p>

This cause was reserved in the county of Jefferson. It was an action of debt upon a bond. The declaration was in the usual, form. The defendants, Hoge, Andrews, and Jenkinson, craved oyer of the bond, which was had.

<p>Error to the common pleas of Huron county. The plaintiff in error was indicted, in the court below, for house-breaking. The indictment contained three counts: 1. For breaking and entering the mansion-house of A. Mason, and committing an assault and battery upon Mary, his wife. 2. For breaking and entering the mansion-house of Mason, in which he and his family then lived, and attempting to assault, beat, ill-treat, and abuse Mary, his wife. 3. For an assault and battery upon Mary Mason. The jury found the defendant guilty generally, and the court sentenced him to imprisonment in the cell o*f the county jail, to be fed on bread and water, for fifteen days; to pay a fine of two hundred and fifty dollars, and the costs, amounting to eighty-three dollars and five cents.</p> <p>The counsel engaged in the defense, during the progress of the trial, seem to have waged war upon the court, and to have exerted themselves to multiply the obstacles in the way of its advance. Exceptions were taken at every step of the trial, and to almost every word which fell from the court. The record is so lumbered up, and the case so involved in obscurity, as to leave it no easy matter to find out the true state of it. In the language of the record, counsel took, “exception to all and every of the acts and opinions of the court, in overruling questions and testimony, and in its in-20] structions and charge to the *j ury; in its refusal to charge, and generally in not permitting the defendant to make out hie defense, as he offered to do.”</p>

This case was adjourned from the county of Hamilton. It was a certiorari to reverse an order of the court of common pleas of Hamilton county, distributing certain moneys, made by the sheriff, upon execution. The controversy arose upon the following state of facts: At March term, 1824; of the court of common pleas of Hamilton, John Thompson, as administrator of R. Scoggins, recovered a judgment against Joel Scoggins.

Trespass, guare clausum fregit, from Trumbull. Plea, not guilty, with a notice that the freehold in the close was in the defendant. At the trial, the defendant offered in evidence a certified copy of the record of a deed from his immediate grantor to himself. The plaintiff objected to this testimony, but the court admitted it.

This was a writ of error to a judgment of the court of common pleas of the county of Fayette. The case presented is as follows: On March 28,1828, Coffin recovered a judgment against Torbet, before Samuel Loofborougb, a justice of the peace, for seventy-five dollars and costs. From this judgment an appeal was regularly taken, by Torbet, to the next court of common pleas, and perfected before the justice.

From Muskingum. Covenant upon a sealed agreement between the intestate and the defendant, dated September 1, 1819, for five thousand dollars. E. Granger died in September, 1822, insolvent.. Administration was granted upon his estate in August, 1829. The defendant pleaded not est factum, to which he affixed a notice of set-off under the statute. At the trial the plaintiff, having read the contract to the jury, rested.

This cause came up from the county of Huron. It was an action of debt, founded upon the transcript of a judgment rendered by the court of common pleas of Tompkins county, New York, at the suit of the plaintiff against the defendant. The declaration was in the usual form.

In chancery, from Trumbull. The bill makes the following case: That the complainant being pressed for money in October, 1827, applied to the defendant to lend him one hundred dollars.

This cause was adjourned here for decision from the county of ELuron. It was a bill in chancery, the object of which was to enjoin the collection of a tax levied for the erection of a schoolhouse. The bill stated that the complainant owned five entire lots of ground, and the half of a sixth lot in the township of Ridgefield, in the county of Huron. That the lots.

<p>In a suit by an indorser against tbe maker of a promissory note, the question of due diligence, where the facts are not disputed, is one of law to be decided by the court.</p> <p>Where the facts are contested, the question of law becomes mixed with fact, and is for the decision of the jury, under instructions from the court, upon the hypothetical state of facts claimed to be proved.</p> <p>As to negotiable paper strictly commercial, such as that on its face negotiable at banks, the act of Ohio, of 1820, makes no change in the rule of the law-merchant.</p> <p>A demand of the maker of a negotiable note, and notice on the ninth day after the note arrived at maturity, is not the use of due diligence to charge an indorser.</p>

<p>A charge that A. B. received a letter to convey, containing money, giving himself a false name at the time, and promised to deliver the letter, instead of which he broke open the letter and used the money, is a charge of larceny and actionable.</p>

<p>Reserved from Hamilton. Assumpsit upon a policy of insurance-on the steamboat Trenton, which, by distress of weather, ran on the rocks at the falls of the Ohio. On trial, the jury found the following special verdict, viz: “The jury, upon their oath, do find ■that the defendant did undertake and promise, as the plaintiff in his declaration has alleged, and that the following items of loss *,re made out by the evidence, that is to say:</p> <p>“1. For the expense of repairing the steamboat Trenton at .Louisville, one hundred dollars; for expense of repairs of same at Pittsburg, five hundred dollars, which reduced one-third, for new work, leaves chargeable upon the insurance four hundred dollars.</p> <p>“ 2. The boat’s average for extra expense of labor, etc., in getting her off the rocks, seven hundred and sixty-nine dollars seventy-two cents.</p> <p>“ 3. The boat’s average on jettison of cargo, seven hundred and twenty-four dollars thirty-four cents.</p> <p>“4. The boat’s contribution for wages of the crew while on the rocks, three hundred and ninety-eight dollars.</p> <p>“Making, in all, the sum of two thousand two hundred and ninety-two dollars six cents; one-half of which sum is chargeable 72] upon the policy offered in evidence in this case. *But the jury, being unadvised which of said items are in law chargeable under the policy, refer that matter to the court; and if the court •shall be of opinion that the whole of said items are a proper charge upon the insurers, then the jury assess the plaintiff’s dam.ages to one thousand two hundred and eighty-three dollars fifty-five cents, that being one-half' of said sum, with interest from May 1, 1831; but if the court shall be of opinion that anyone or more ■of said items is not a loss chargeable on said policy, the amount so rejected, with interest, shall be deducted from said damages, and the jury assess the damages of the plaintiff to the remainder of ■said sum.”</p> <p>The plaintiff moves for judgment on this verdict.</p>

<p>■Widow to he endowed according to the value of the ground at the time of assignment, excluding increase of value from improvement, hut including increased value from other extrinsic and general causes.</p>

<p>Chancery will not relieve against a judgment at law, and grant a new trial, where the matter complained of arose in any way from the negligence of the complainant, or because the parties relied upon the promise of the judges to see the proper entry made.</p> <p>"When a security receives from the principal debtor demands, for the purpose of discharging the debt by their transfer to the creditor, or by payment of the money collected, he holds the claims, or their proceeds, as trustee of the creditor.</p>

This was a writ of error reserved for decision in the county of Huron. The original case was an indictment containing several counts, charging H. and G. Bixbee with shooting R. Prior and P. McCormick, with intent to kill and wound. When the cause was called for trial, the accused claimed each a separate trial, which the court refused to allow.

<p>This cause was tried on the last circuit in the county of Perry, .a verdict found for the plaintiff, and reserved for decision in this court on a motion for a new trial.</p> <p>*The ancestor of the plaintiff’s lessors, Thomas Hart, on [88 November 16, 1816, received a lease of the northeast quarter of section 16, granted by Congress, for the use of schools, in 1802. This quarter section contained one hundred and fifty-eight acres? then situated in the township of Pike, in the then county of Pair-field, now county of Perry. The lease to Thomas Hart was executed by the trustees of said Pike township, under the provisions of section 3 of the act, entitled “an act authorizing the trustees of the original surveyed townships in the county of Fair-field, to grant permanent leases for their reserved section, No. 16, within said county,” which, among other things, authorizes and requires the trustees to grant permanent leases of said section, when laid off into lots, for ninety-nine years, renewable forever. Thomas Hart, on April 19, 1819, conveyed to John Hume fifty acres of the said quarter section. The lands in controversy are one hundred and eight acres, the residue of the said northeast quarter section, to which the plaintiff’s lessors claim title, as heirs at law of Thomas Hart, under the lease of November 16, 1816. The heirship of the plaintiff’s lessors, and the possession of the defendant, were admitted on the trial.</p>

Powers declared in the court below, in three common counts in assumpsit. 1. Upon an indebtedness by the intestate, and a promise by him. 2. Upon a like indebtedness, and a promise by the administrator. 3. Upon an indebtedness of the administrator, as such, and a promise by him, as administrator. On a general demurrer to this declaration, the court below gave judgment for the plaintiff. To reverse which, this writ is brought.

<p>Declaration avers indebtedness in .1818. Plea of the statute of limitations. Replication, demand in 1827. Demurrer to replication. Held, that cause must be decided on the pleadings, and that the statute operates.</p> <p>Pact that plaintiff, as executor, was trustee, can not, at law, take the case out of the statute.</p> <p>■Causes of action accruing under laws repealed, if barred by those laws while in force, continue barred by them; if not barred during their continuance, shall nevertheless be limited by them..</p>

This cause was reserved for decision here in the county of Montgomery.

<p>Individual holders of lots around a square conveyed to the county, for the use • of public buildings and a court-house, have not such individual interest in the ground as will authorize chancery, on their application, to enjoin county commissioners from leasing portions of the ground to individuals, reserving rent to the county.</p> <p>Such persons have no right to proceed in chancery to enforce the public right to such ground.</p>

This was a bill in chancery, reserved for decision here in the county of Geauga. The facts, in brief, were these: Seymour Austin and Calvin Austin had transacted business in partnership, as merchants. Both were deceased, and both deceased insolvent. There were no funds of the firm, but Seymour Austin left individual separate property.

<p>Devise to “ my son, JH. G., all my estate, real and personal, subject to the following bequestsone of which is to B. 0., one thousand dollars, to he paid to her at the age of eighteen, “ in land at such place as my son Henry can buy," does not create a charge on the devisor’s real estate in the hands of purchasers from the devisee.</p> <p>In such case the purchaser is not hound to attend to the application of the purchase money.</p>

From Champaign county. The plaintiff counts in debt upon two judgments, recovered in Virginia, in 1802, in a suit commenced, by attachment, and makes proferí of the record.

<p>Land inherited by an infant from his father, sold by guardian and converted into money under an order of court; the infant dies in his minority; his half-brothers and sisters, children of his mother by a second marriage, are his heirs.</p> <p>In such case chancery has jurisdiction.</p> <p>■Guardian bound to employ money of an infant in his hands so as to make interest if practicable, and is chargeable with interest if he fail to do so.</p>

Debt, from Hamilton. The plaintiff commenced his action in November, 1831. He declares upon a sealed bill, dated January 16, 1807, payable on demand. Plea, that the cause of action did not accrue within fifteen years next before suit brought.

<p>This was a motion for a new trial, reserved for decision from the county of Ross.</p> <p>*The suit was assumpsit upon the following writing: “We, [127' the subscribers, agree to pay or convey to the commissioners of the canal fund, for the use of the canal fund, the sums of money or real estate attached to our respective names, on condition that-the canal passes through the town of Chillicothe. The sums of money subscribed, are to be paid at the convenience of the purchasers, at any time within three years from this date; the conveyances of real estate are to be made within six months after the-line of the canal, passing through the town is put under contract.Chillicothe, December 1, 1825.</p> <p>(Signed,) “ David Collins, two hundred dollars in land at cash-value, or cash.”</p> <p>The case was tried by a jury; a verdict was found for plaintiffe. The following reasons are assigned to support this motion for a new trial:</p> <p>1. That the subscription paper does not show any contract; or' if any, it is variant from the declaration.</p> <p>2. The evidence does not show the contingency happened by which the money fell due.</p> <p>3. No evidence was offered to show the existence of any board of canal commissioners.</p> <p>4. No proof of notice to defendant of the completion of the canal;-</p> <p>5. The rejection of the defendant’s testimony.</p>

Trespass, from Wayne county. The declaration contains three counts. The first two for an assault, battery, and false imprisonment of the plaintiff, and the third for an assault, battery, and false imprisonment of the plaintiff’s wife. The delendants pleaded, severally: 1. Not guilty; and, 2.

<p>Appeal does not lie to the Supreme Court from a decision of the court of common pleas, adjudging that the proof adduced to prove the execution of a will is insufficient for that purpose.</p>

Debt from Licking. The suit is brought upon the official bond of the defendant, as clerk of the court of common pleas. The declaration contains three counts: 1. Upon the penalty of the bond alone. 2.

<p>Liens upon land are given by statute, and can not be extended in equity. Judgment creditor acquires no lien, in equity, upon the choses in action of his debtor, until a bill is filed to charge them. The elder equity is always preferred.</p> <p>It is not sufficient evidence of fraud to vitiate a contract, that a great bargain was obtained in the purchase of a litigated property from an embarrassed debtor.</p>

Ejectment from Ross. On the trial in the county, the plaintiff, in support of his title, offered a final certificate of purchase, issued for the land claimed by the United States land office, to his lessor’s ancestor, upon which no patent had in fact been issued. He offered no other direct evidence of title, but proved that the ancestor had laid out a town upon the quarter section and recorded the plat of it under our law, and that he had paid the taxes of the tract.

<p>¿Keeper of a ferry from the Virginia to the Ohio shore, across the Ohio river, landing persons upon the lands of the keeper of a ferry on the Ohio shore, is a mere trespasser, whom chancery can not restrain by injunction.</p>

This cause was adjourned for decision here, from the county of Geauga. It was a bill in chancery, seeking the specific performance of a contract, or compensation in money. The material facts of the case were as follows: In January, 1818, the complainant purchased of the respondent, Champion, six hundred and sixty-six acres of land, at the aggregate price of three thousand five hundred and sixty-two dollars.

This cause was adjourned here for decision, from the county of Jefferson. It is a bill in chancery, in the nature of a bill asking the specific performance of a contract for the sale of lands, by tho vendor against the vendee. Many allegations and some testimony were introduced, extrinsic of the grounds upon which the cause was decided. It is only necessary to state so much of the case as is necessary to a full understanding of the points determined.

<p>This is a.suit in chancery, adjourned from Hamilton county. The bill states that, complainant was, prior to September 1, 1818, a stockholder in the Miami Exporting Company, and on July 14, 1818, contracted a debt with said company for three thousand dollars, upon a pledge of his stock, upon which suit has been instituted, and they are pressing it to judgment, notwithstanding the pledge of stock, and notwithstanding they have paid him no dividends. Complainant avers that the interests of the company have been greatly mismanaged and their rights abused, and the capital stock nearly all squandered ; that illegal by-laws have been made, by which the company has been paralyzed so that they have been unable to pay off their notes, whereby the credit ot the company was ^impaired, and the stock depreciated; and especially,- [177 that without authority, and for the purpose of ease and favor to themselves and others, on September 22, 1818, the board of directors adopted an illegal resolution, which was made known to but few, whereby it was agreed to accept a transfer of stock in payment of debts due, thereby enabling those that were indebted to withdraw what they had paid in upon stock; and that certain of the defendants, as named in said bill, made transfers under said resolution, amounting in all to one hundred thousand seven hundren and seventy-six dollars and thirty-one cents, and thereby withdrew so much of the capital stock of said company ; and under another resolution of May 8, 1821, of a similar character, forty-six thousand one hundred and nine dollars and ninety-six cents of t.he capital stock of said company was transferred in payment of debts due, which, added to the sum withdrawn under the resolution of September 22, 1818, makes the entire amount of capital stock thus withdrawn one hundred and forty-six thousand eight hundred and eighty-six dollars and twenty-seven cents, since September 22, 1818, and j>rior to January 1, 1823, and in which complainant has an interest in proportion to his stock; the whole amount then (that is, on September 22, 1818,) paid in being four hundred and seventy-nine thousand six hundred and forty-five dollars and thirty-one cents, and his stock twenty thousand dollars. It is then stated that William Barr, on or about May 21, 1821, subscribed for six hundred shares of the-stock of said company — one hundred shares in his own name, one hundred in that of S. Patterson, dne hundred in that of J. Sterret, one hundred in that of D. Griffin, one hundred in that of J. Eiddle, and one hundred in that of Samuel Perry — for which he paid sixty thousand dollars, making the capita] stock paid in five hundred and thirty-nine thousand six hundred and forty-five dollars and thirty-one cents; and that subsequently, on June 5, 1821, by resolution, the board of directors (the said William Barr, Samuel Perry, David Griffin, James Eiddle, and John Sterret being members, and present, voting in the affirmative,) agreed to take back the stock, and did accordingly take back fifty-nine thousand dollars of stock, and refunded to Barr fifty-nine thousand dollars of the capital stock of said company, in conformity with some fraudulent agreement, made previous to the taking of said stock, and for the purpose of securing their own 178] election; which, added to the sums withdrawn *under the resolutions of September 22, 1818, and May 8, 1821, makes the total amount withdrawn two hundred and five thousand eight hundred and eighty-six dollars and twenty-seven cents, si nee September 22,1818, and for which there is nothing to show, leaving a balance of three hundred and thirty-three thousand seven hundred and fifty-nine dollars and four cents of the capital stock, which has been sunk and totally lost by the mismanagement of the affairs of the said company; and this loss will fall upon complainant and others if those who have withdrawn the amounts paid by them are permitted to hold the same. The bill closes by a prayer that those who have transferred stock may be compelled to resume the same, and pay their debts, and meet their proportion of the losses of the said company, and that William Barr be decreed to refund the fifty-nine thousand dollars withdrawn under the resolution of June 5, 1821, and reinstate his stock therefor, and for relief generally.</p> <p>The answer of the Miami Exporting Company admits the act of incorporation, and that complainant is the owner of twenty thousand dollars of the stock of said company, and was in indebtedness and.pledge of stock as stated in the bill, and that no dividends have been declared since April 1, 1821, soon after which they learned they could not pay dividends, though they had paid complainant. his dividends previously. They say that complainant acquiesced in the necessity of stopping dividends, and deny that he demanded any dividends since April 1, 1821. They deny that they have abused their rights, mismanaged the capital stock of said company, or violated their charter by the adoption of illegal resolutions. They admit the resolution of September 22, 1818, but deny it was passed to defraud any stockholder or creditor, or that it was known only to a few, and adopted only for a select few, but that it was general and as public as any other of their resolutions; that it was in force a long time and generally known, and that all stockholders indebted were entitled to the benefit of it, and that when passed they were redeeming their notes with specie, and their credit was unimpaired, and their stock was believed to be worth more than par, and was then selling, and continued to sell for a long time after it, at par. They considered they had the right to pass that resolution, and then believed it for the benefit of the stockholders, and, as far as they know, the stockholders acquiesced in that resolution, and manifested *thoir confi- [17® dence in that board by their re-election. They admit a transfer of stock, as stated in their answer, under this resolution, to the amctmt of ninety-six thousand seven hundred and seventy-six dollars and thirty-one cents, and not one hundred thousand seven hundred and seventy-six dollars and thirty-one cents, as stated in the bill, and that they were, bona fide, for a fair and valuable consideration in payment of debts. They admit the'resolution of May 8, 1821. They deny that it was fraudulent; they state that by it one-half of the stock owned by any stockholder was authorized to be transferred in payment of debts, as the stock was not greatly depreciated, and that the remaining half would be sufficient to cover their proportion of losses, and they believed that by this resolution they were promoting the interests of the said company, and that the whole amount of stock transferred under this resolution, as therein stated, was thirty-five thousand five hundred and fifty-seven dollars and sixty-eight cents, which, added to that transferred under the resolution of September 22, 1818, amounts to one hundred and thirty-eight thousand eight hundred and twenty-two dollars and ninety-four cents, and not one hundred and forty-six thousand eight hundred and eighty-six dollars and twenty-seven cents. All these transfers are alleged to have been made in good faith, without any intention of fraud. They admit the capital stock paid in to be four hundred and eighty thpusand six hundred and forty-five dollars and thirty-one cents. They deny that Barr subscribed, on May 21,1821, for six hundred shares of the said company, but on that day he came into the office of said company and directed the officers of the company to charge on the books of the said company six hundred shares of the said company, as alleged in the bill, and that the money was paid in. They admit that the stock was not charged upon the books, though entered upon a piece of paper in the said office, and they admit the resolution of June 5, 1821, and set it out at large, but say the stock when taken back was well worth as much as it was when taken by Barr, and the company sustained no loss, and no fraud was intended ; and though said stock was voted on May 22, 1821, yet stock so taken did not elect the board, as there was a heavy majority without it. They deny that complainant ever applied to adjust his account, but, as they understood, set up some extravagant claim against the said company. They state, by a resolution of November 6, 1823, there was a consolidation of. stock partially 180] paid in, so as *to reduce the stock to the amount paid in, from which deducting the transfers left three hundred and forty-two thousand nine hundred and ninety-two dollars and thirty-seven centsof capital. The debts owing amount to ninety-nine thousand dollars, which, added to the capital, makes four hundred and forty-one thousand nine hundred and ninety-two dollars and thirty-seven cents. The debts due, they say, are about four hundred and thirty-eight thousand eight hundred dollars, and real estate seventeen thousand three hundred and twenty-nine dollars and fifty-nine cents, and depreciated paper three thousand two hundred and ninety dollars. Total, four hundred and fifty-nine thousand four hundred and nineteen dollars and fif'ty-nine cents, upon which there will be very great loss. They say they have made great exertions in attempting to collect, and have expended about nine thousand dollars in charges upon that account; and they say that there is considerable stock held by those who have transferred, and in the aggregate it amounts to one hundred and twenty-three thousand and fourteen dollars and five and a half cents. For further particulars, they refer to their books. They say that all the stock transferred was transferred by the holders thereof, and transferred at par, and that the stock transferred under the resolution of September 22,1818, was believed to be at par value, and after said resolution was rescinded, stock was sold at par for cash, and they believe that that transferred under the resolution of May 8,1821, was worth ninety cents, down to seventy cents on the dollar, stock varying, in 1821, from par to seventy dollars per share. They deny all fraud, etc.</p> <p>The answers of the other defendants all concurred in denying fraud, and asserting that the sales of stock were effected in good faith. Some controverted the legality of the complainant’s ownership of stock. Some insisted on the statute of limitations. Thomas D. Carneal alleged that the complainant should refund eleven thousand nine hundred and twenty dollars received for dividends upon stock that he could not legally own.</p>

This case was adjourned here for decision, from the county of JButler. It was decided upon a single point, and only so much of the case is reported as is necessary to understand that point. It was an action of ejectment, brought by heirs at law, to recover lands of which their ancestors died seised. At the trial, the material facts were agreed. The ownership of the ancestor, the possession at the time of his death, and the heirship of the plaintiff’s lessors, were admitted.

<p>A judgment creditor may resort to chancery to subject the effects of his debtor beyond the reach of execution at law, before he takes out execution on his judgment, if it appear that the debtor has not effects to satisfy the judgment, or the effects are connected with equities or trusts, or involve a variety of interests, so that adequate remedy can not be had at law.</p> <p>Upon a sci. fa. on a mortgage, where the mortgagor, to show payment, exhibits evidence of his dealings, and also of a judgment in his name against the mortgagee, and the jury find the payment and a balance due to the mortgagor, the judgment offered in evidence is not merged in the judgment for the defendant, upon the sci. fa. on the mortgage, or extinguished, but .stands as a judgment, to the extent of the balance remaining due the mortgagor.</p> <p>A juror may be a witness, to relate what claims of a party were allowed by a jury, under a plea of payment.</p> <p>An agreement with some of several defendants to make no defense to the suit, and let the property of a co-defendant be sold, if not carried into execution, will not affect the complainant’s real rights.</p> <p>The right to proceed by sci. fa. to charge decedent’s lands in the hands of heirs, no longer exists. Such land must be converted into personalty by the administrator to pay debts. The heir and his alienee hold the lands descended discharged of the ancestor’s debts, if the creditor do not assert his claim within five years after the administration account is settled.</p> <p>Lands, at the death of ancestor, descend to the heir, and are his, charged with the ancestor’s debts, until the representative of the personal estate of the deceased proceed to convert them into money to pay the debts.</p> <p>The heir, in such case, is bound to pay the taxes, and if he suffer them to accumulate and the lands to be sold, become himself the purchaser, and have them conveyed to his guardian, or to another, in trust, the estate, as to creditors of the deceased, is not changed.</p> <p>A sale of land by administrator, for debts, to a trustee, to place it beyond the reach of creditors, under an agreement or understanding that he should hold it for the benefit of the heirs and such debts as the parties might agree, is fraudulent and void.</p> <p>A trustee of a fund in which several parties are interested has no right to make any agreement to advance the interest of one of the parties at the expense of another of them, even if confirmed by the court; the court will be held to have confirmed the act inadvertently.</p> <p>An administrator has no power to create a trust. If a minor can, he is then chargeable with fraud, as adult. A sale by an heir is good, but the purchaser takes subject to the debts of the ancestor.</p> <p>Persons dealing with heirs for lands are chargeable with knowledge of the extent of their rights.</p> <p>Where there are several tracts of land descended, and some have been aliened by the heir, equity will compel a creditor to seek his debt: 1. Of that unaliened; and 2. To proceed back upon that aliened in regular order, beginning with that last aliened.</p> <p>When one has a lien upon two funds, and another a posterior lien upon only one of them, the one having both liens will be compelled first to exhaust the subject of his exclusive lien, and permitted only to resort to the other for the deficiency.</p> <p>In cases of decedents’ estates, where the administrator is before the court, equity will so shape the proceedings as to settle the estate.</p>

This cause was heard in the county of Fairfield, and taken under advisement for decision in the county of Franklin. The facts are fully stated in the opinion of the court.

<p>Held, that when a justice committed a person charged with crime, the court of common pleas, then in session, might recognize the accused for his appearance from day to day, without a habeas corpus, and without inquiry into the circumstances.</p>

This cause was adjourned from the county of Hamilton. The lessors of the plaintiff claimed the premises in dispute as heirs at law of Elias Glover, deceased. The defendant claimed under a sale made by order of the court of common pleas of Hamilton county, upon a petition for partition among the heirs at law of the said Elias Glover, deceased. The validity of that sale was the matter presented for decision.

<p>Held, that the assignment of insolvent’s choses in action vests the legal interest in the commissioner, and that he alone can maintain an action.</p>

This was a writ of error certified here for decision from the ■county of Meigs. The plaintiff in error was indicted for perjury. The offense was alleged to have been committed in making affidavit to a plea of non est factum, in a trial before a justice of the peace, in which the plaintiff in error was defendant.

<p>A mistake of the clerk in entering the judgment of this court, at the December term, 1833, putting the name of the defendant in error for that of the plaintiff, ordered to be amended.</p>

This was a writ of error adjourned here for decision from the county of Fairfield.

<p>Contract to convey as soon as purchase money is paid is mutual, and calls for simultaneous performance. Party that would sue upon such a contract-must perform or tender performance of his own part, before a causo of action accrues.</p>

This cause was adjourned here for decision from the county of Pickaway. It ❖as an action of debt, and the declaration contained four counts.

<p>Dedication of lands for a public use accrues as a grant; a grantee is not necessary to its validity.</p> <p>A dedication in specific terms on the recorded plat of a town, is not to be affected by parol proof of the intention of the donors.</p> <p>Town plat made hy agent; his numbering of lots, laying out of streets, etc., recognized by the proprietors and acted upon by them, is sufficient proof of his authority.</p> <p>Individual owner of adjacent lots may proceed in equity to enjoin proprietors from making private appropriations of a square dedicated for public purposes.</p>

<p>Plaintiff, on an appeal from a justice of the peace, is confined, in his evidence to the bill of particulars filed before the justice.</p>

This case was reserved here for decision in the county of Delaware.

<p>This cause was adjourned from the Supreme Court, in the county of Hamilton. It came up on a motion for a new trial. The suit was in ejectment for part of in-lot No. 89, in the city of Cincinnati. The case was submitted to the jury upon the following facts agreed, and the opinion of the court thereon;</p> <p>It was admitted that Seth Cutter was formerly the owner of the lot, and that he died in possession previous to the year 1812; that soon after his death that part óf the lot in dispute, with adjoining property, was set off to his widow, Ann Cutter, for her dower, who soon after married Maxwell Hargraves, *from [314 whom both parties claim title. The plaintiff gave in evidence:</p> <p>1. A deed from Hargraves and wife to Samuel R. Miller, dated July 26, 1831, including the property in question, and adjoining property.</p> <p>2. A deed from Samuel R. Miller to the lessor of the plaintiff, and H. G. Phillips and D. Gwynno, dated November 20, 1831.</p> <p>3. A deed from Phillips to Worthington, including the premises in question, dated February 11, 1832, and adjoining property.</p> <p>4. A deed from Gwynne to Worthington, including the premises in dispute, dated February 11, 1832.</p> <p>It was proved that Hargraves died on some of the first days of February, 1833. It was admitted the defendant was in possession. This was all the evidence on the part of the plaintiff.</p> <p>The defendant gave in evidence a lease made by Hargraves and wife to himself, for the premises in question, dated April 26,1816, not acknowledged. It was also admitted that the lessor of the plaintiff had received rent of the defendant for the ]iremises,as by receipts dated June 13, August 7, and November 21,1832, and January 21, 1833, which were admitted to be his handwriting. It was admitted that Mrs. Hargraves was still living.</p> <p>Upon this evidence the'jury returned a verdict for the plaintiff, subject to the opinion of the court whether he is entitled to recover.</p> <p>If tho court should be of opinion that plaintiff is entitled to recover, then judgment is to be entered on the verdict; if not, then the verdict is to be set aside and judgment entered for the defendant.</p> <p>The charge of the court and the verdict of the jury was in favor of the plaintiff. The defendant moved for a new trial.</p>

This case was adjourned here for decision from the county of Portage. The action was debt upon a penal bond, subject to the condition that Bierce (one of the defendants) had obtained an injunction in chancery restraining the obligees from erecting a meeting-house on two lots in the village of Ravenna; and if he should fail to prosecute his bill to effect, and pay all damages, losses, or injuries the obligees-might sustain by reason of the injunction, the bond should be void.

<p>To bar tbe dower of a wife by a deed, executed under the act of 1805, it is necessary that the certificate of acknowledgment should show the wife was made acquainted with its contents.</p>

This cause was adjourned in Hamilton county. It came before the court upon a special verdict.

<p>This was a bill in chancery brought here by adjournment from the county of Montgomery. The object of the bill was to obtain possession of certain property purchased, improved, and occupied as a place of worship, by a congregation of the Baptist denomination. The pleadings and proofs make the following state of facts:</p> <p>*On May 29, 1824, the First Baptist Church, of Dayton, was founded, a declaration of faith and rules of business in meetings of the church were agreed on and adopted. The form of faith established under this organization was that professed by those who call themselves Particular Baptists.</p> <p>On July 27, 1827, at a regular meeting of this society, these articles were unanimously abrogated, Keyser, one.of the complainants, being present, and new rules of faith and doctrine adopted.</p> <p>In September, L827, Keyser, Gosney, and Stansifer were elected trustees. On November 7,1827, they purchased a lot in the town of Dayton, and took a conveyance to themselves as trustees of the First Baptist Church, in Dayton, and to their successors in office. By the operation of the statute of 1825, vol. xxix, page 464, these trustees became a corporation, and the title in fee became invested in them by the conveyance. A house of public worship was erected upon it, partly from the contributions of the society, and partly by the aid of donations from others.</p> <p>On March 23, 1829, certain charges were preferred against Keyser, in a course of discipline, and he was excluded from the society by vote, and another trustee appointed in his place. On the 31st of the same month, all former creeds and symbols were abolished by the society, and a new covenant introduced, by which the New Testament was declared the only rule of faith" and practice.</p> <p>The bill brought by Keyser, the excluded trustee, and by Cox, charges that the defendants by abandoning their original declaration of faith, and'certain usages common to the Baptists, by embracing certain doctrinal errors, and by thus separating themselves from the general Baptist association, have ceased to be the First Baptist Church, of Dayton. That the First Baptist Church consists of themselves and their associates, who from their numbers, in part consisting of married women, and of such as have connected themselves with the schism, can not all unite in their bill. They ask to be permitted to prosecute the bill for the benefit of themselves and all concerned, and pray the court to decree an appropriation of the property in question to its legitimate use.</p>

This case was adj'ourned' from the county of Ross. The plaintiff’s title, as offered in evidence on the trial, was as follows : 1. A patent to the heirs of Powell, by name, dated November 4, 1818, for survey, No. 503, for eight hundred and sixty-five acres. 2. Deeds from Powell’s heirs to the lessors of the plaintiff, covering the whole land included in the patent, and dated April 15, 1826, the other dated September 17, 1830.

<p>This is a motion to set aside a verdict rendered at the trial of a suit in Champaign county, which is reserved for decision here.</p> <p>The declaration contains two counts in assumpsit: 1. For use and occupation. 2. For money had and received. A verdict was rendered for the plaintiff for one thousand two hundred and forty-six dollars, subject to the opinion of the court; whether, upon the facts proved, a recovery can be' had in this form of action. Qn July 19, 1824, Hinde and wife obtained a decree in the Circuit Court of the United States in this district against Richey, by which Richey was directed to convey to Mrs. Hinde the title to a certain tract of land, and to surrender the possession. In September, 1824, the possession not having been given up, was transferred to Hinde, by an hab. fao. poss. issued under this decree. In October, 1824, the deed was executed transferring the title to Mrs. Hinde. In 1828, an appeal having been taken, the decree was reversed. In November, 1828, the possession of Hinde was terminated by proceedings in forcible entry and detainer at.the instance of Fox, who had acquired Richey’s interest in the land. The plaintiff seeks in this suit to recover the rents and profits of the land while in the possession of Hinde.</p>

This was an action of debt, adjourned for decision here from the county of Franklin. The case is stated in the opinion of the court.

<p>A written proposition to the canal commissioners to convey grounds for hydraulic purposes on the canal, upon certain terms and conditions, not accepted by resolution or otherwise concluded, by specifying the land or reducing the agreement to specific terms, can not be specifically enforced in equity.</p>

<p>Original process issued by a justice of tbe peace can not be made part of the record, by oyer, on appeal to tbe common pleas.</p> <p>In case before a justice for killing a hog, plaintiff may declare in trespass, in the common pleas.</p>

<p>This case was adjourned from the county of Montgomery, and came before the court upon an agreed statement of facts.</p> <p>In 1820, Dehart, from whom both parties claim title, conveyed the lands in dispute, being sixty acres, to Regal, Hubbler, and Jacoby. In 1827, Jacoby conveyed his undivided third part to Treon, the lessor of the plaintiffs. In 1820, a judgment was recovered against Hubbler and Regal, upon which execution was issued against them, which, in August, 1820, was levied upon their interest in this land. A sale was effected upon a subsequent execution in 1827, and Treon became the purchaser. The levy is in these words: “No goods levied on forty-three and a half acres of land on the east side of a tract of sixty %eres, that Dehart [392 conveyed to Jacoby, Regal, and Hubbler, in the west half of section 13, T. 3, R. 4, east of M. D. Said land to be run off by a line the same course with the east boundary'of said sixty-acre tract; said levy is made only to include Regal and Hubbler’s interest in said land.”</p> <p>The appraisement under vrhich the land was sold by the sheriff was of an undivided third part of the sixty acres. The sheriff’s deed recites the levy truly, and the appraisement of two undivided third parts of sixty acres, and proceeds to convey to Treon “ the premises so taken.”</p> <p>The defendants were in possession under a sale for taxes made in 1822. The description of the land in the duplicate and advertisement of sale is as follows: “Not known (owner’s name), R. 4, T. 3, S; 13, p. N. half sixty acres.”</p>

This case was adjourned from the county of Highland. It was a writ of error made returnable to this court. The facts, as they appear of record, are these: The grand jury at the March term of the court of common pleas of Highland county, 1834, returned a bill of indictment against the plaintiff in error, containing three counts.

<p>A general decree in, a suit by purchaser of land asking specific performance, can not be avoided by investigating the grounds upon which it was decided, in a new bill in relation to the same matter.</p>

This was an action of ejectment in the county of Ross. Yerdict for the plaintiff, and a motion for anew trial, which was adjourned for decision here.. Judge Wright thus stated the case: On trial the plaintiff offered the following evidence to the court and jury : 1. The record of a judgment in the Supreme Court, in favor of Harris v. John Carlisle, in a case brought into that court by appeal from the court of common pleas, rendered at December term, 1822. 2..

This case was adjourned from Fairfield county. It came up on a scire facias, setting forth that the plaintiffs, as administrators of Pitcher, recovered judgment against one George Hanison and David Reese, which yet remains unsatisfied without execution, and praying execution thereof against Reese as survivor.

<p>Where the consideration of a note is a lease of lands within an Indian reservation, and the lessor makes title under an Indian, plaintiff can not recover.</p>

This was a sci.fa. to subject an indorser for costs, adjourned for decision here from Hamilton county. The declaration sets forth, that on February 27, 1826, Henry Tice, a non-resident plaintiff, caused a summons to be issued against the plaintiff in this suit, which was returned to the February term of the common pleas of Hamilton, of the same year, and that the defendant indorsed the summons for said Tice, for costs, on November 18, 1828.

<p>This case was adjourned from the county of Knox. It was a motion to set aside an order, made in the Supreme Court, quashing the appeal in the cause from the court of common pleas, on the ground that one of the attorneys in the case was one of the securities in the appeal bond.</p>

This cause was adjourned from the county of Washington. The bill states that Jonathan Cram died intestate, leaving considerable estate, and that letters of administration were taken by his widow, the defendant, Sarah Green, who subsequently intermarried with the other defendant. That the complainants are the next of kin of the decedent; that the defendants have neglected and refused to settle their administration accounts, or to make distribution of the estate.

<p>This was a bill in chancery adjourned from the county of Montgomery. The following are the facts in the case:</p> <p>Jonathan Stutsman owned sixty-six feet of lot 156, in Dayton, and in December, 1819, conveyed a part of it to the complainant. On March 4, 1820, he mortgaged his remaining interest in the lot to John Lehman, to indemnify him for being security on several notes given by Stutsman to the Dayton ^Academy- Some [431 of these notes were assigned to T. Squire, by the Dayton Academy, and in June, 1820, he took from John Lehman an assignment of Stutsman’s mortgage to him, and gave him an indemnity against the notes he signed as security. In August, 1820, Squire assigned the last of the notes with the mortgage to Huffman. In October, 1825, the complainant purchased the remainder of the lot from Stutsman, and took a conveyance to himself. On the same day he entered into a written contract with Huffman, for an assignment of the mortgage held by him. The complainant afterward fulfilled this agreement, and Huffman assigned to him the mortgage August 18, 1829.</p> <p>On November 2, 1821, the executor of Yanderslice recovered a judgment against Stutsman, as survivor of Peter Lehman, on their joint and several obligation, which was a lien on the lot in dispute; and in May, 1823, obtained another judgment on the same note against the administrator of Peter Lehman. The judgment against Stutsman was kept alive by execution without levy, until August 22, 1829, when an execution was levied on that part of the lot deeded by the complainant in 1825; the same mortgage to J. Lehman in 1820, which came by assignment to the complainant in 1829. The complainant at the time of the judgment against Stutsman, and when the execution was levied, was in possession of the lot.</p> <p>After the death of Peter Lehman, a portion of his heirs and distributees filed a bill in chancery to effect a sale of his lands, and a distribution of his estate. Pending that bill, John Lehman, the administrator of Peter, filed his cross-bill, setting forth the recovery of the judgment against him by the executor of Yanderslice, and that Stutsman was insolvent, and praying to charge the payment of said judgment upon the proceeds of the estate before distribution. A sale was ordered, settlement made, and a final decree rendered in September, 1826, that of the proceeds of the estate, the said judgment against the administrator of P. Lehman should be first paid, and the balance be distributed among the heirs according to their several rights. The sale, payment, and distribution was had accordingly ; and one share of the proceeds distributed to Brown, one of the defendants, who claimed as the assignee of Stutsman’s wife, one of the heirs and distributees of P. Lehman.</p> <p>482] The court, in their decree in that case, ordered that the *executor of Yanderslice should, on receiving payment of his judgment, against the administrator of Peter Lehman, assign the judgment to the heirs of the said Peter Lehman, which was done accordingly on January 31, 1827.</p> <p>The heirs of Peter Lehman, and the other defendants claiming their rights under that assignment, now seek to enforce the lien of the judgment of the executor of Yanderslice against Stutsman, by a sale of that part of the lot conveyed to the complainant after the rendition of said judgment; and the object of the bill is to enjoin them from asserting the lien by sale, and to disembarrass the title of the complainant.</p>

<p>This case was adjourned here for decision from Franklin county.</p>

<p>Neither sheriff nor county commissioners are hound to feed an insolvent debtor in jail. He must provide for himself in what manner he can.</p>

This case was tried in Franklin county, and reserved on a motion for new trial. It was a suit in assumpsit on the general counts, and tried on the general issue. It was proved at the trial, that the plaintiff performed work as a carpenter in building a nine-pin alley for the defendant, the keeper of a coffee-house.

<p>-This cause was adjourned from Hamilton county. At the May term of this court, in Hamilton county, an alternative mandamus was issued upon the relation of the Universal Church against the trustees of the ministerial section, No. 29, granted by Congress for religious purposes, lying in Columbia township, commanding that they pay to the relators an equal dividend of the rents and profits of said section, for distribution in January in the years 1833-34, or show cause why they refuse.</p> <p>To this writ, the trustees return the following cause for refusing to pay, that is to say:</p> <p>That by law every denomination of religious societies, before they can entitle themselves to participate in the dividend of the rents and profits of said section, must give themselves a name, and appoint an agent to demand and receive their portion of the dividend, who shall produce to the trustees at their annual meeting in January, a certified list of the names of the members of the society for whom he claims dividend.</p> <p>446] *That by law the said trustees are required to meet annually on the first Monday in January, to make distribution of said rents and profits to such religious societies as may so apply.</p> <p>That the trustees did meet according to law on the first Monday in January, in each of the years 1833-34, and there divided all the said rents among the Presbyterian, Episcopal, and Reformed Methodist and Baptist societies, they being the only societies applying for any portion of said rents.</p> <p>That at neither of the times of making said dividends, nor since, have the relators ever applied to said trustees, by agent, who has exhibited evidence of his agency, and certificates of the members of the relator’s society, and demanded any portion of said rents and profits.</p> <p>And that no part of said rents and profits remain in the hands of said trustees for distribution.</p> <p>To this return the relators plead that on the first. Monday of January, 1833, they appeared by William Connel, their agent, with a certified list of forty-seven members, and'on the first Monday of January, 1834, they appeared by Ira Broadwell, their agent, before the said trustees with a certified list of forty-two members, and made regular application for a portion-of the dividend of the rents and profits of said section, and then produced sufficient evidence, of their right to a portion of said dividend.</p> <p>The defendants demur to this pie a generally. There are several other pleas tendering issues in fact.</p>

<p>The Supreme Court may direct a struck jury for the trial of a cause pending before it, in a different county from that in which the order is made.</p>

<p>This cause was adjourned in the county of Portage, and came before the court upon the following state of facts: Parsons, the defendant in error, had a judgment against Hart et al., on which he caused an execution to be issued, and put into the plaintiff’s hands, as sheriff of Portage county. The plaintiff levied the ft. fa. on a large quantity of ironware. The property was left in the hands of the judgment debtors, and their bonds taken for its delivery. The plaintiff then advertised the property for sale, and afterward called on the judgment debtors, according to the condition of the bond, and in the life of the ft. fa. to redeliver the property, which they did not do. The plaintiff then returned the execution, stating the above facts in his return. The judgment 450] creditor afterward, *at the May term of the common pleas, 1834, moved to amerce the plaintiff for neglecting to serve the execution, according to its command, founding his motion on the above facts, as returned by the plaintiff. The common pleas eustained the motion, and amerced the sheriff in the sum of two thousand nine hundred and forty-six dollars and ninety-three cents, the amount of debt, damages, and costs, and in the further sum of two hundred and ninety-four dollars and sixty-nino cents, being ten percent, penalty thereon and costs of suit. The plaintiff seeks to reverse this judgment, and has assigned for error: 1. That the plaintiff was not liable to be amerced for any of the reasons set forth in the motion. 2. That the court of common pleas amerced the plaintiff, no plea nor answer being filed, nor any issue made up between the parties. 3. The general assignment that the order and judgment of the common pleas should have been for the plaintiff in error.</p>

This case was adjourned from Hamilton county, on a motion for a new trial made by the defendants. It was an action of assumpsit on a policy of insurance, in which the defendants took a risk of five thousand dollars upon the hull, engine, tackle, and furniture of the steamboat G-alena, valued at seven thousand dollars, against unavoidable, external violence in navigating the western waters, for six months.

<p>Land sold for taxes before patent issues, the legal title of the patentee not affected by such sale.</p>

This cause was adjourned from Hamilton county. It was a scire facias setting forth that the plaintiff, in 1824, recovered a judgment against Lytle (then living), as survivor of St. Clair, for six thousand three hundred and sixty-seven dollars and seventy-four cents, besides costs; that in March, 1825, he issued a fieri et levari facias to the sheriff of Clermont county, which was levied upon one thousand acres, part of a survey of fifteen hundred acres in *the name of De…

<p>Upon parol contract for the sale of lands, mere payment of the consideration does not take the case out of the statute of frauds and perjuries.</p>

This case was adjourned from the Supreme Court in Seneca county, where it was docketed as an appeal from the common pleas. The proceedings of that court, as certified up under the-statute, show that the parties appeared, a jury was impaneleu there to try the issues, and that the plaintiff “ thereupon fails further to prosecute his suit, and the jury were discharged.” Judgment was rendered against the plaintiff for costs. He gave notice-of appeal.

<p>This cause was adjourned from the county of Belmont.</p>

The last will and testament of Joseph Hunter was presented to ■the court of common pleas, in Franklin county, at June term, 1834, by the executors therein named, for probate. There not being a sufficient number of disinterested judges of that court to form a quorum, the application and the will was certified to the Supreme Court. The will was again offered for probate in the Supreme Court, the evidence taken, and the questions arising under it reserved for decision in bank.

<p>Executor resident out of the state, never-having given bond here, not entitled' to appeal, without giving appeal bond with security.</p>

This cause was adjourned from Ross county. It came before the court upon a motion for a new trial. The material facts of the case are as follows. On the trial the plaintiff gave in evidence: 505] *1. A survey made for Miles King, on November 3,1793, for one thousand acres, beginning on the upper side of Paint creek, at two elms and two sycamores on the bank of the creek, thence up the oreek (several corners and distances), passing the mouth of Buckskin, to a corner. 2.

<p>This cause was adjourned from the county of Hamilton. It was assumpsit on a note in the following words:</p> <p>511] ■ *“ Cincinnati, December 22, 1828.</p> <p>“ Thirty days after date, we, or either of us, promise to pay Thomas Reddish, or order, five hundred dollars for value received. Also, we, or either of us, promise to pay the said Thomas Reddish, ■or order, fifteen dollars each and every thirty days, for the use or interest of the above sum of five hundred dollars, the said interest to be paid each thirty days in advance, until this note is paid.</p> <p>“Yalue received. ' Thomas Watson,</p> <p>P. J. Holcomb,</p> <p>C. B. & H. L. Holcomb.”</p> <p>On the back of this note was indorsed: “ Received, January 24, of P. J. Holcomb, one hundred and four dollars, on account of principal, which pays the same to February 21, 1829. Balance due three hundred and ninety-six dollars. T. Reddish.”</p> <p>The writ was returned served upon the Holcombs, but as to Watson, not found. Two issues were joined with the defendants served with process: 1. On non assumpsit. 2. The second issue presents two propositions by the defendants: 1. That Watson signed the note as principal, and the Holcombs as securities. 2. That Reddish, after the note fell due, by agreement with Watson, and without the knowledge or consent of the Holcombs, gave him further time to pay the note, for thirty days beyond February 21, 1829. On trial, the note was given in evidence to the jury, with the indorsement and the following receipt:</p> <p>“ Received of P. J. Holcomb one hundred and sixteen dollars twenty-four cents, on account of Thomas Watson’s note, and interest due the 22d inst. T. Reddish.</p> <p>“January 24, 1829.”</p> <p>Other evidence was given to the jury, as to the fact of the relation of the principal and security between the signers of the note. The judge trying the cause, in charging the jury as to the construction of the note, said:</p> <p>“As we understand the import of the note, it contains on its face an agreement by all the parties, that the payee may postpone the day of payment from time to time, for periods of *thirty days each, on receiving the interest for such ex- [512 tended time in advance. This is the legal construction of the instrument, and it authorized such time to be given, at least, until notice by the parties that no further time should be given. Therefore, if you have no evidence of such notice (and I have heard none), you must find the second issue for the plaintiffs; but if you have such evidence, you wiJJ. regard it and find accordingly.”</p> <p>The jury under the advice of the court, and by agreement of counsel. returned a special verdict, finding the issues for the plaintiffs, re-' ferring the law fixing the rate of interest to the court, assessing the plaintiff’s damages at eleven hundred and thirty-six dollars and fifty-two cents, if by law the plaintiffs can recover interest at the rate of fifteen dollars for each and every thirty days; or at five hundred and nineteen dollars and forty-two cents, if they were only entitled to interest at six per cent, per annum. The defendants move for a new trial, on the ground that the court misdirected the jury as to the construction of the note. The plaintiffs resist this motion, and move for a judgment for the highest damages assessed by the jury. Two cases at law, of Lodge v. Wood and Hodgson, on notes drawing interest at twelve percent, per annum, payable monthly, and a bill in equity, Bacon v. Ben-ham, upon a mortgage to secure the payment of a loan at twelve per cent, per annum, were argued upon the construction of the statute fixing the rate of interest, and considered with the case of Reddish v. Watson et al.</p>

<p>From Ashtabula. Application for a writ of error.</p>

<p>Court may order special bail after action brought upon sufficient cause being shown.</p> <p>Debt, upon record of judgment for money, sustainable.</p> <p>Joinder to demurrer “in short” insufficient.</p> <p>It is error for the court to decide the facts of a cause, when no issue is made.</p>

This cause was brought to the court in bank for decision from the county of Miami. It was a bill in chancery, filed to open the' settlement of a partnership account and readjust its several items. The bill charges many specific errors and to a large amount, alleging that these errors are of a character necessarily involving the practice of fraud. The answers deny all fraudulent intent, and deny also the existence of the alleged errors in the settlement.

This cause was adjourned from the county of Pickaway. It was a bill in chancery to enforce a specific performance of a contract to sell lands, 6691).

<p>Decree of dismissal in the court of common pleas, though pronounced pro forma, the parties understanding the cause was to ,be appealed for preparation and hearing, is final, if the appeal is not consummated</p> <p>Such defense may be made by answer.</p>

<p>It is a libel to charge a man with infracting a regularly granted patent for bark mills.</p>

<p>From Cuyahoga. Assumpsit. The declaration contained the common counts for money. Plea-, puis darrein'continuance, that the defendant paid the plaintiffs six hundred and eighty-eight dollars and sixty-nine cents, in full of all moneys then found due for the several causes of action set forth in the declaration, which they received in satisfaction thereof. Issue was joined on this plea; and the evidence being in writing, was by agreement submitted to the court without a jury.</p>

This cause was adjourned from Hamilton county. It was a scire facias to revive a judgment in the Hamilton common pleas in favor of the plaintiffs. The scire facias was original in the common pleas, and removed hereby appeal; plea, nul tiel record. The transcript of the record produced showed that the judgment had been rendered upon a notice according to a provision of the company charter. This notice was set out.

<p>This cause was adjourned from Muskingum county. It was debt upon a bond, and came before the court on an agreed state of facts.</p> <p>The defendant, with John Matthews, deceased, became security for E. Granger, also since deceased, in an appeal bond, dated August 2, 1819. In the Supreme Court judgment was rendered against Granger, and execution issued and levied upon a tract of land as the property of Granger. The return was “ not sold for want of bidders.” The levy produced nothing, in consequence of subsequent events over which the plaintiff could have no control. The question raised was as to the continued liability of Pierce.</p>

<p>Sheriff’s deed for lands sold under execution, correctly reciting the judgment execution, levy, and sale, is prima facie evidence of title; hut parol evidence is admissible, that it does not in fact cover all the land claimed un der it, and embraced in its description of boundaries.</p>

<p>Township trustee’s office is a public office within the occupying claimant law, in reference to leases of school lands.</p>