Volume 6 — Ohio State Reports, New Series

Petition in error to reverse the judgment of the district court of Crawford county. The original action was assumpsit, brought by the plaintiffs in error against the defendant in error, in the court of common pleas of Crawford county, March 17, 1852. The plaintiffs declared on a written contract as follows, viz: “ This is to certify that ffm.

<p>A bill of exceptions, appearing from the transcript of the record to have been filed after term, by order of one of the judges of the district court, can not be deemed a part of the record.</p>

<p>In chancery, from Trumbull county.</p>

This is a petition in error to reverse the judgment of the district •court of Washington county. The plaintiff sued in trespass for an injury to his land. The -defendant plead not guilty, and gave notice of special matter in bar. The action was commenced in 1846.

In chancery. Eeserved in the district court of Franklin county The facts are sufficiently stated in the opinion of the court.

<p>Information in the nature of a quo warranto.</p>

The Stark County Bank demands a preremptory mandamus ■Against the auditor of Stark county, commanding him to accept the return of the bank, made under the act of April 13, 1852, for the assessment and taxation of property. The facts of the case are stated in the opinion of the court.

Ejectment. Reserved in the district court of Hamilton county, on a motion for a new trial. The facts sufficiently appear in the opinion of the court.

On certiorari to the order of a judge of the court of common pleas of Jefferson county, made on habeas corpus.

<p>Motion to amend proceedings in certiorari.</p>

The opinion of the court contains a statement of facts sufficient for a proper understanding of the questions determined.

Petition in error, to reverse the judgment of the district court of Jefferson county. The original action was assumpsit instituted by the defendant in error against the plaintiffs in error, in the court of common pleas of Jefferson county, in November, 1852. The declaration contained simply the common counts.

<p>•Steps taken by filing an appeal bond to vacate a judgment of the court of common pleas, and to transfer the action for trial to the district court, is a proceeding in an action; and the 137th section of the code, which authorizes courts to permit an amendment of a mistake, in any respect, in any proceeding, is applicable to appeal bonds; and mistakes therein may, by consent of sureties, be amended in the appellate court, or a new bond, by way •of amendment, may be filed.</p>

*Error to the court of common pleas of Jefferson county. Reserved by the district court of said county. The original action was replevin for “ two stacks of wheat.” Plea, general issue. At the August term, 1851, of the court of common pleas, the cause was tried to a jury, who returned a verdict for the plaintiff below, and assessed his damages at five cents.

In chancery. Reserved in Morrow county. *On the 8th of December, 1835, Richard Truax made his [98 will, containing the following bequests: “ I give and bequeath unto my son, Nathaniel Truax, all my real estate, by his paying the valuation of §2,000, which §2,000, after the decease of my wife, is to be equally divided among my heirs,” etc. (naming his six children.) “ I also direct that my wife receive one-third of all my real and personal estate, during, lifetime, and to…

Petition in error, to reverse the judgment of the district court of Muskingum county. The facts are sufficiently stated in the opinion of the court.

^Reserved in the district court of Butler county. This is a special action on the case, instituted in the court of common pleas of Butler county, in 1852, for an alleged omission, by the defendant, as sheriff of Butler county, to take a sufficient bond, on the discharge of a canal-boat seized under the water-craft law of this state at the suit of said plaintiff in said court. The •declaration charges the defendant with liability on account of such nonfeasance in office.

This is an application for a writ of mandamus to compel the auditor of Hamilton county to draw a warrant upon the treasury for money therein alleged to belong to the plaintiff — being the treasurer’s penalty of five per cent, and compensation of five per cent, on the taxes of the Ohio Life Insurance and Trust Company, for 1852 and 1853.

Reserved by the district court of Huron county. This is a bill in chancery filed by complainants in the old Supreme Court for the county of Huron, against the Mad River and Lake Erie Railroad Company, and a supplemental bill against the-same defendant and the Sandusky City and Indiana Railroad Company, which, together, came on for hearing in the district court for the county of Huron, and was reserved for decision in the Supreme Court.

The record of the proceedings of the probate court shows that on the 1st day of July, a. d. 1854, the prosecuting attorney of Ross ■county filed, in said court, an information against the plaintiff in error, charging him with a violation of the first section of the act of May 1, 1854, “ to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio.” The information was indorsed as follows : “ This information was filed on a transcript from…

Bill of review. At the February term, 1840, of the court*of common pleas of Hamilton county, a decree was taken for complainant for the sale of lands mortgaged by defendants, to secure the payment of promissory notes given by them to complainant for the same land, under .and by virtue of which sales of the premises were made; and at the November term, 1840, a final decree was entered in the case, .approving the sales and proceedings.

Petition in error to reverse the judgment of the Superior Court of Cincinnati in general term. The facts are sufficiently stated in the opinion of the court.

Petition in error, to reverse the judgment of the district court of Holmes county. *The original proceeding was an action of assumpsit, instituted in the common picas, by the defendants in error, against the-plaintiff in error. The declaration contained a special count on a promissory note, and the common counts; to which the plaintiff in error plead non-assumpsit, and also two special pleas, setting up, in different forms, accord and satisfaction.

Motion to stay proceedings pending a petition in error in the nature of a bill of review, etc. ■On the 26th day of October, 1856, during the vacation of this court, one of the judges thereof granted to the plaintiff in error leave to file in this court his petition in error to review the decree of the district court of Champaign county, and, at the same time, directed that proceedings on said decree should be stayed, on the petitioner giving bond in the sum of ten thousand…

This is a petition in error to reverse the judgment of thecourt •of common pleas of Warren county, affirming a judgment of the probate court of said county. The record shows the following state of facts : In August, 1854, the Little Miami Railroad Company instituted • certain proceedings in the probate court of Warren county against the defendants, heirs of Moses Collett, deceased, for the purpose of appropriating to and for the use of said company about five acres -of land.

The parties being adjacent proprietors on a stream of water in Perry county, the defendant constructed and kept up a mill-dam on his premises, which flowed back the water upón the land of the plaintiffs, for which they brought this suit.

<p>"Where an administrator offers for sale at public auction the land of his intestate, for the purpose of raising money to pay the debts of the estate, and the same is struck off, at two-thirds of its appraisement, to G. and K., with the understanding on their parts that they are buying it for the benefit of the widow and children of the decedent, and on the day of such sale, and before confirmation, thereof by the court, the administrator executes a deed to one of the buyers, who is pecuniarily irresponsible, without authority from the other, and without assigning any reason for such act, and neglects to complete tbe contract of sale, by requiring the payment of one-third of the purchase money, and the making and delivering to him of notes and security for the other two-thirds in nine and eighteen months, according to the conditions of the sale, but after retaining the deed for six months, finally makes an agreement with the grantee named in it, by which the latter transfers to him the land, on condition that he take the place of G. and K. in reference to the sale, and pay the price by them bid for the land: Held—</p> <p>1. That the acquisition of property by the administrator, under such circumstances, creates suspicions that unfairness may have been practiced by him in the accomplishment of that purpose, is contrary to the policy of the law, is a violation of the trust reposed in him as a fiduciary, and may, for that reason, on the application of the cesiui que trusts, be set aside.</p> <p>2. But whether the administrator made use of artifice, or employed collusion to secure the property to himself, does not necessarily affect the determination of the case. To guard against the uncertainty and hazard of attempting to prove unfairness in him, the rule in such cases will permit the cestui que trusts to come into court, at their option, and, without showing actual • fraud or injury, insist, as of course, upon having the property resold.</p> <p>*3. The fiduciary relation of an administrator to the land of his intestate [190 is not terminated when it is struck off and declared sold at public auction, but continues until the title of the vendee becomes perfect, by the payment of the purchase money and the delivery of the proper deed of conveyance, whereby the title passes from the heirs of the estate, unincumbered by any charge in favor of the administrator or the estate arising out of the sale.</p> <p>4. When an administrator has enjoyed the use and occupation of real estate under a title derived from a sale made by himself, and for that reason void as to the heirs of the estate'he represents, an account of improvements made, and of rents received by or chargeable to such administrator, will be ordered to be taken, and out of the proceeds of the sale, any balance which may be found due to him will be first paid, and the residue retained ¡by the administratrix for the use of the estate.</p>

The plaintiff sued the defendant in the common pleas of Fairfield county. The defendant demurred to the petition. The court overruled the demurrer, and the defendant, by leave, answered. The plaintiff demurred to the answer; which demurrer was sustained, and an amended answer filed. And the plaintiff moved to strike out a part of the amended answer; which motion was sustained. To these several rulings of the court, the defendant excepted.

<p>Reserved in the district court of Montgomery county.</p>

Petition in error to reverse the judgment of the Superior Court of Cincinnati, at general term.' An insurance was effected on the steamboat Sam Cloon, in four insurance companies; the agreed value of the boat being $20,000, and the amount insured- in each office $3,750, or in all $15,000. The policy in each case was in the same form and with the same conditions.

Keating v. Shibnah ■Spink, reported in 3 Ohio St. 105, involved the question of the repugnancy of the water-cpaft laws of this state to the constitution •of the United States, for the purpose of enabling the party to carry the ease to the Supreme Court of the United States on writ of error.

This ease comes before the court upon a petition in error to reverse the judgment of the district court of Lucas county.

This is a petition in error, to reverse an order of the district court of Seneca county. *The material facts shown by the record are the following: The plaintiffs in error brought suit in the court of common pleas of Seneca county against the defendants in error, under the statute “relating to wills” to contest the validity of a paper writing which purported to be the last will and testament of William Myres, deceased. , .

*In error to the district court of Clermont county.' Alfred Holter sued David Dial, in the court of common pleas, for libel and slander. The first count of the declaration charges that Dial wrote and published of Holter, that he knowingly and maliciously removed a. corner-stone of O’Bannon and Taylor’s survey — that he had been guilty of falsehoods, and that he had committed an assault and battery on Benjamin Hammett.

Reserved from Montgomeiy county. The facts stated in the opinion of the court are sufficient for a proper understanding of the points decided.

Writ of certiorari to the district court of Knox county. The facts of the case are as follows : On the 9th of August, 1852, Margaret Beckwith, the defendant in certiorari, made a complaint in bastardy against John Hobbs, the plaintiff in certiorari, before a justice of the peace of Knox county. Proceedings were regularly had under said complaint, and at the November term, 1852, of Knox common pleas, a trial of said case was had, in which the jury failed to agree.

^Petition in error to reverse the judgment of the court of [255 •commom pleas of Erie county. The plaintiff in error recovered a judgment in the Cuyahoga common pleas, against the Sandusky, Mansfield and Newark Railroad Company and others. The principal office of this company being at Sandusky city, and the railroad company being the principal •debtor, an execution was issued on the 8th day of March, 1855, .and sent to the sheriff of Erie, county.

<p>Where a bank takes a bond which is void for usury, with a warrant of attorney to confess judgment annexed, from S., as principal, and O. and A., as sureties, and judgment is taken against all without process or notice, and the bank afterward files a bill in chancery to subject equities of the sureties to the payment of the judgment, the sureties, though ignorant of the usury until after the rendition of the judgment, can not, by cross-bill, allege the usury, and have relief against it, without a tender of the amount due in equity.</p> <p>*In such a case, the same allegations and proof are requisite in a cross-. [263 bill that would be required in an original bill seeking to impeach the judgment for usury, and the rights and remedies of the principal and sureties are the same.</p>

<p>Application for a writ of error to the judgment of the probate ■court of Hocking county.</p> <p>There is a sufficient statement of facts in the opinion of the court.</p>

'This is a proceeding under a writ of error to the court of common pleas of Muskingum county, allowed by a judge of the Supreme -Court, and- made returnable to the district court of said county, and reserved for decision here. At the May term, 1856, of the Muskingum common pleas, the plaintiff in error was indicted for an assault and battery.

d. 1850, the said defendant was an acting justice of the peace in and for the township of Cincinnati, county of Hamilton, and State of Ohio, duly commissioned and sworn; that on said- day the plaintiffs recovered a judgment before said defendant, as such justice of the peace, against Joseph Dupler, for the sum of 181.12 damages, and $9.25 costs; that from said judgment said Dupler attempted to take an appeal to the court of common pleas, of said county, and offered as…

<p>The decision in the case of the Exchange Bank of Columbus v. Hines, Treasurer, etc., 3 Ohio St. 1, giving a construction to the 2d and 3d sections of the 12th article of the constitution, an'd declaring unconstitutional and void the 1.0th section of the tax law of April 13, 1852, approved and followed.</p>

The facts are these: On the 15th of May, 1851, the commissioners of Clinton county subscribed $200,000, to the capital stock of the Cincinnati, Wilmington and Zanesville Railroad Company, and agreed to pay the same in the bonds of the county at their par value, to be issued to said company on the terms and under the restrictions imposed by the act of March 1, 1851 (49 L. L. 519).

<p>■In an examination of a complaint made under the act of May 1, 1854, “ to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” it is not necessary to the validity of subsequent proceedings, for the examining magistrate to make an entry on his docket in express terms that he finds “ the complaint to be true.”</p> <p>If such finding appears, by necessary implication, to have been made, it is sufficient.</p> <p>'The clause in the eleventh section of said act, which directs the magistrate, if he finds the complaint to be true, to recognize the accused, was intended only to direct and inform the mind and control the conscience of the examining officer.</p> <p>In order to justify the reversal of a judgment in error, the record must affirmatively show, not only that error intervened, but that it was to the prejudice-of the party seeking to take advantage of it.</p>

Bill in chancery. Reserved in Ashland county. *In January, 1849, the complainant and defendant formed themselves into a company, which they named “ The Mohicansville Mining Association,” for the purpose of acquiring gold and other articles of value in California.

Petition in error to reverse tbe judgment of tbe district court of Wayne county. The facts are sufficiently stated in the opinion of the court.

Petition in error to reverse the judgment of the district court of Wayne county.

This is an application for a peremptory mandamus upon the auditor of state, to compel him to issue notes of circulation to the plaintiff, under the act to regulate free banking, passed March 21, 1851.

<p>The Supreme Court of the United States has appellate jurisdiction in certain cases over the courts of last resort in the several states.</p> <p>The entry of the mandate from the Supreme Court of the United States, is in accordance with uniform practice heretofore prevailing in this state.</p> <p>The provision of the constitution of the United. States, expressly conferring appellate jurisdiction on the Supreme Court, does not authorize the exercise of appellate power by that tribunal over the state courts, but extends simply to appeals from the subordinate federal courts.</p> <p>There is no provision in the constitution from which a supervising power in the Supreme Court of the United States over the state courts can be derived, by way of incident or implication.</p> <p>The Supreme Court of the United States has not been constituted the exclusive-tribunal of last resort, to determine all controversies in relation to conflicts of authority between the federal government and the several states of the-Union.</p> <p>The state courts and the federal courts are co-ordinate tribunals, having concur-344] rent '''jurisdiction in numerous cases, but neither having a supervising power over the other; and where the jurisdiction is concurrent, the decision of that court, or rather of the courts of that judicial system, in which the jurisdiction first attaches, is final and conclusive as to the parties.</p> <p>Under our system of government, a power not conferred by the constitution can . not be acquired by repeated acts’of usurpation.</p> <p>Mere precedent or practice can not be relied upon as settling a fundamental principle, in respect to which no question was made or passed on.</p>

<p>In error to the Superior Court of Cincinnati, in general term.</p> <p>This was an action, brought in the Superior Court of *Cin- [440 cinnati, by Messiek & Co., the plaintiffs, against Roxborough,, maker, and "Wilcox, indorser, of a promissory note.</p> <p>On the trial, at the special term, it was proved that the defendant, Roxborough, had purchased the interest of his partner, Wilcox, in a grocery-store — the price being five thousand dollars — and Roxborough made his ten notes, for five hundred dollars each, payable, at different dates, to Wilcox, or order, one of which was-sued upon in this action. These notes were transferred to the plaintiffs, Messiek & Co., to secure a large sum of money, due by Wilcox to them. Messiek & Co. received the assignment of the notes in good faith, without any knowledge on their part, that. Roxborough had any equity that he could assert against their payment. The defendant, Roxborough, Wilcox, the payee of the-notes, and Messiek, one of the plaintiffs, were examined as witnesses on the trial. The testimony of Messiek repelled any presumption that Messiek & Co., in receiving the notes from Wilcox,, incurred any new responsibility, or gave further time, or changed, in any manner, their relation to Wilcox, in respect to his indebtedness to them.</p> <p>On this state of facts, the defendant, Roxborough, contended, that as the notes had been transferred as collateral security, merely, for a pre-existing debt, the plaintiffs were not entitled to the protection given by law to indorsees for value. The judge, however, held that the plaintiffs were indorsees for value, and-protected from all the equities of the maker. This ruling was given to the jury, who rendered a verdict for the plaintiffs; exception was taken \ and the law, thus stated, affirmed by the Superior Court, at their general term. This petition is filed to reverse the judgment of affirmance.</p>

<p>In error to the court of common pleas of Monroe county.</p> <p>The plaintiff in error was the plaintiff below.</p> <p>The defendants in error are the widow and heirs at law of John Sovil.</p> <p>The material facts stated by the plaintiff, in the petition filed in the Monroe common pleas, are the following:</p> <p>On the 15th December, 1845, Sovil and wife undertook to give plaintiff a mortgage, to secure a certain debt Sovil owed him, on a •certain tract of land Sovil had purchased *of one Donahoo; [460 the debt being for advances of goods, etc., made to Sovil, on credit, by.the plaintiff, during the time Sovil was making payments for •the land; and upon the assurance, on the part of Sovil, that when he got title to the land he would secure plaintiff’s claim by a mortgage on the same.</p> <p>The Donahoo land was the southwest quarter of the northeast quarter of section 10, township 7, range 7, Monroe county. In the mortgage executed and delivered by Sovil and wife to plaintiff, the land was, through the mutual mistake of the parties, described as •the southwest quarter of the northwest quarter of section 10, etc. ■The mortgage was filed and recorded, and the mistake in describing the quarter was not discovered until after Sovil’s death, and until after a sale to plaintiff of the land described in the mortgage under .an order of court, in proceedings by him ag'ainst the defendants to foreclose the mortgage. The sale was confirmed, and the widow and heirs (who had, up to that time, been in possession of the .Donahoo land), supposing it was the land described in the mort-' gago and the land sold, yielded the possession of' the same to the-plaintiff.</p> <p>Sovil had no title to the land described in the mortgage, but did have title to the Donahoo land at the time the mortgage was made, and lived on it before and up to the time of his death, but neither-had, nor claimed to have, title to any other land.</p> <p>Some time after the defendants left the land, having discovered the mistake in the description of the same, they returned to the land, and were occupying an old house on a part of it at the time-plaintiff filed his petition in the court below, alleging that the mortgage debt had been satisfied by the sale of the quarter which was 461] made under *the order of court, and disputing the right of the plaintiff to the Donahoo quarter.</p> <p>The petition below asked the court to order the defendáis to yield up to the plaintiff full.possession of the Donahoo land, to correct the mistake, and for alternative and general relief.</p> <p>To the jietition stating the foregoing facts, the defendants filed a demurrer, setting out as causes of demurrer:</p> <p>1. That the petition shows that the plaintiff’s mortgage was fully satisfied by the judicial sale therein mentioneu.</p> <p>2. That the court has no jurisdiction of the subject of the action.</p> <p>3. That the petition does not state facts sufficient to constitute a. cause of action.</p> <p>The court sustained the demuiTer, and rendered judgment against, the plaintiff for costs.</p> <p>To reverse this judgment, the present petition in error is prosecuted.</p>

<p>In error to the court of common pleas of Hamilton county.</p> <p>The plaintiff in error was indicted for, and convicted of, miscon•duct in office, as one of the commissioners of Hamilton county.</p> <p>The indictment charges, in substance, that he combined with one Samuel B. Arnold to cheat the county, and by falsely representing to oüe of his associates in office (Marine Ruffner), that it was imperatively necessary to rebuild a Abridge across Lick Run, in [468 "that county, immediately, and that the building of such bridge was worth $700, induced his associate to join with him in executing a written contract with Arnold (who, it is charged, applied therefor at the instance of the accused), to rebuild the bridge for that sum; whereas, in fact, it was not necessary to rebuild the bridge in question, nor, even if necessary, was it worth more than the sum of $140, all which the accused well knew; and that, in so fraudulently obtaining the signature of his associate, Ruffner, to the contract with Arnold, and in signing it himself, he was guilty of corrupt misconduct in office.</p> <p>The bill of exceptions is very voluminous, containing all the evi■denee, and numerous errors are assigned; but the view taken of the ■case by the court, renders it necessary to state only that it appears from the bill of exceptions, that Arnold built the bridge, and after it was finished, received from Patton and Ruffner an order for the ■stipulated sum of $700, and on the same day obtained the money at the Central Bank; that upon the trial in the court below, after the ■state had rested, Arnold, having been called as a witness for the defense, was asked, upon cross-examination, whether he had not, on the day the money was paid to him, made to one Charles Hilts, at the office of the latter, certain specified declarations as to Patton, which implied not only fraud on the part of Patton in regard to-the making, of the contract for the bridge, but that Arnold was to-give Patton $100 of the money thus paid to him for the bridge. Arnold denied that he had made such declarations ; and after the defense had rested, the state called Hilts, who testified that Arnold stopped at his office, when coming into town to see the commissioners, on the day he drew his money (but whether before or after 469] he received either the order or money, does not clearly *appear), and that while there, Arnold made the specific declaration, in regard to Patton, which, on his cross-examination, he had denied making, and which declarations, if competent for that purpose, tended strongly to prove that Patton was guilty of the misconduct, charged. All of this testimony of Hilts was objected to, but the objection was overruled, and the defendant excepted.</p> <p>The counsel for the defense asked the court to charge the jury that the testimony of Hilts, as to the above-specified declarations of Arnold, was competent only for the purpose of impeaching Arnold,, but was not to, be considered as testimony against Patton. The court did charge that such was the law, unless the jury should find, from the other evidence (excluding for this purpose the declarations of Arnold, as testified to by Hilts), in the case “that a conspiracy between Patton and Arnold to defraud the county, existed at the timebut if they should find from such other evidence, “ that a conspiracy was entered into by Arnold and Patton to cheat, and defraud the county on this contract,” they might “take all the-evidence of Arnold, as well as his. declarations in regard to the matter, and give it such weight as, under all the circumstances, they thought it deserved.” The defendant excepted to the entire charge-of the court; and this ruling is among the matters assigned for error.</p>

<p>In error to- the common pleas of Monroe county.</p>

<p>Petition in error to reverse the judgment of the district court of Washington county.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

<p>Where a defendant filed a demurrer and answer, at the same time, and in the same paper, to a petition containing but one cause of action, he ought to he compelled to elect between the two incongruous issues he presents, and the paper oüght to be either reformed or stricken from the files.</p> <p>In a petition in error in this court, to reverse a judgment of a district court affirming on error a judgment of the common pleas, this court will look only to such errors appearing in the record of the proceedings in the common pleas as were assigned for error in the district court. The district court may look beyond the assignment of errors before it, but it is not obliged to do so.</p> <p>Where, in such a case, the common pleas err in overruling a demurrer to a petition, but the defendant takes no exception to such ruling, and -answers over, and goes to trial on, the issues of fact, and the overruling of the demurrer is not assigned for error in the district court, it can- not he taken advantage of here.</p> <p>Where a mechanic undertakes and completes a building, as an entire job, by the job, and for an entire price, he need not, in an account filed with the county recorder, in order to secure a mechanic’s lien, make a detailed. statement of his labor and materials. In such case, the entire job may be set down as a single item.</p>

<p>A future contingent interest in real estate, in the nature of a contingent remainder or executory devise, being an interest in the land, known to the law, is transmissible by devise or deed.</p> <p>Where, in case of a devise of real estate to a widow for life, and the remainder in fee to one of the testator’s sons, the widow, without following the form prescribed for making her election to take under the will, sets up no claim for dower, but actually and in fact takes under the will, and has the use and occupancy of the premises for a series of years, she would be barred of her dower, and estopped to deny her election to take under the will.</p> <p>Where a limitation, carved out of an estate by will, and falling within the “’denomination of a contingent remainder, has been defeated as a [481 remainder by the lapse, or other failure, of the preceding estate, it may, by construction, be allowed to take effect as an executory devise, and be upheld as such, in order to effectuate the intention of the testator.</p> <p>When a testator, after a devise of “ the plantation on which he was living,” with all the property thereon, to his widow, devised “ the plantation ” to one of his sons, from and after the death of the widow, the subsequent estate, in case the life estate should fail by the widow declining to lake under the devise, will not be defeated by the rules governing contingent remainders, but take effect as an executory devise.</p> <p>No words of perpetuity being essential in a will to pass an estate of inheritance if the language used as descriptive of the estate be general and sufficient to comprehend the whole property, without any words of limitation or provision in the will qualifying the interest devised, a fee in the land will pass.</p>

<p>Petition in error to reverse the judgment of the district court of' Cuyahoga county.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The officer taking a deposition must certify that the witness was first duly sworn, but the certificate of that fact may-be made by the officer, either at the end or at the commencement of the deposition,</p> <p>'Section 290 of the code permits a bill of exceptions to be taken to any decision of the court upon a matter of law, and to become part of the record; but there is no provision made, nor authority given in the statute, for excepting to the opinion of the court on a motion for a new trial, predicated on the ground that the verdict is against the weight of evidence. The ruling of the court below, on such a motion, will not be reviewed on petition in error, nor will the facts on which the verdict was rendered be examined by this court, in order to determine whether the verdict was sustained by the proof.</p> <p>'The act of March 12, 1845, “ to regulate the judicial courts and the practice thereof,” which conferred a right to except to the opinion of the court in any case of a motion for a new trial, made on the ground that the verdict was supposed to be against the evidence, and by that means to remove the case, bjr writ of error, to the Supreme Court, was repealed by section 606 of the code, and no law conferring that right has been since enacted.</p>

<p>In a suit on a bond purporting to have been executed for the appeal of a cause from the court of common pleas to the Supreme Court, within and for a particular county of this state, and conditioned for the payment of the “ amount of the condemnation in said Supreme Court and costs,” in case a decree shall be entered in favor of the “ appellee,” such bond can not be construed as a bond for an appeal to the district court of such county; nor, as against the surety therein, can its condition be at all varied from, or extended beyond its plain terms.</p> <p>On such a bond, executed in 1852, when appeals no longer lay from the common pleas to the Supreme Court, and the district court had taken the place of the former Supreme Court in the several counties of the state, no action can be maintained.</p>

<p>Petition in error to reverse the judgment of the district court of Clermont county.</p> <p>The original proceeding was an action of assumpsit brought by the plaintiff in error, against the defendant in error, in the court of common pleas of Clermont county, in December, 1852. The plaintiff declared on a special contract in writing, and added the ■common counts for work and labor, goods sold and delivered, ■etc. The defendant plead the general issue, and gave notice of .set-off, etc. On the trial in the common pleas before a jury, the plaintiff recovered, and the defendant appealed. At the May term of the district court, 1855, the cause was tried, and the plaintiff nonsuited, and a bill of exceptions taken, which shows, that after the jury was impaneled, the plaintiff, to maintain the issue on his part, offered, in evidence, the original contract, a copy of which is rs follows:</p> <p>“Jackson Township, Clermont Co., Ohio,]</p> <p>March 25, 1851. j</p> <p>“ Article of agreement made and entered into between Joseph •Curies of the first part and Edward Allen of the second part:' “Said Allen doth agree to furnish all the materials, except the •timber in the tree, and the stone in the creek, and build a saw-mill of the size and form of Jerry Harlow’s, on the east fork of the Little Miami, except the middle wall in the lower story — that is to be a Trame. Said mill is to bo built on the east fork on the farm of the said «Curies; the wheels and irons are to be'the same as Harlow’s. Said Allen is to dig the pit and tail-race, and put up the walls of said mill. Said Curies is to pay said Allen five hundred dollars; *one [506 hundred to be paid by the 15th of September, and two hundred when the mill is completed, and the balance in two years from the time the mill is completed. The mill is to be completed against the first day of January, 1852. Said Curies is to furnish timber in the wood, on said farm herebefore mentioned, in the tree. Said Allen is to do the work in a workmanlike manner. The said Allen is to Board himself.</p> <p>(Signed,) “Joseph Cueles,</p> <p>‘ Edward Allen.”</p> <p>And the plaintiff, further to maintain the issue on his part, proved that he had commenced labor in pursuance of said contract — that he had erected the foundation walls and frame of said mill; and that, after performing labor and furnishing materials for said mill to the value of about two hundred and fifty or three hun-. dred dollars, he left said work without completing the same.</p> <p>Plaintiff further offered testimony tending to prove that some slight variation from said written contract was made in the plan of said work, which would increase his expenses to some extent.</p> <p>And this being all the testimony offered in the case, the plaintiff rested. Whereupon the defendant asked the court to arrest the testimony from the jury, and to direct a nonsuit. The court sustained said motion, and ordered a nonsuit.</p> <p>Whereupon the plaintiff moved the court to set aside the nonsuit .and grant him a new trial, but the court refused to do so. The plaintiff claims that there is error in said rulings of the distinct •court.</p>

<p>In order to the valid execution of a deed of conveyance, so as to bar the wife’s right of dower in the premises conveyed, under the act of February 24, 1820 (2 Chase, 1139), it is not necessary that the acknowledgment of husband and wife be jointly and simultaneously taken. A separate acknowledgment of the husband one day, and a separate acknowledgment of the wife on a subsequent day, are sufficient.</p> <p>Lessee of Fosdick v. Risk, 15 Ohio, 107, 108; Chestnut v. Shane’s Lessee, 16 Ohio, 599; and Card v. Patterson, decided at the last term, affirmed.</p>

This cause comes into this court upon a petition in error to reverse-the decision of the district court of Lorain county, made at the September term, 1855. The original action was case for slanderous words, and was commenced in October, 1852. *The actionable words charged in the declaration were, that [517' said Cynthia was a whore, and defendant could prove it by Thomas Goman, and that she was Thomas Goman’s concubine.

<p>1. A purchaser of land, who has received a deed, containing a covenant of warranty, can not plead in bar to an action on a note given for the purchase money, defect of title, unless he has been evicted by title paramount.</p> <p>2. Therefore, in an action brought by A against B, on a note given by B for the purchase money of land, B plead in bar that A executed to him a deed for the land, with covenants of general warranty; that, at the time the deed was made, there was a lien on the land by a judgment against A, upon which the land was sold, and sale confirmed; and that he (B) had yielded up possession to the superior title of the purchaser under the execution. On demurrer, held, that the plea was defective, in not averring that a deed had been executed to the purchaser under the execution.</p>

<p>Where the charter of a bank gives it power to loan money, buy, sell, and negotiate promissory notes and to discount, upon banking principles and usages, promissory notes and other negotiable paper, with a proviso that said bank shall not take more tban six per cent, per annum in advance, upon its loans and discounts; and such bank receives from its debtor, in. good faith, and in payment of a pre-existing debt, but at a rate of discount .greater than six per cent, per annum, the negotiable promissory note of a third party, the same being bona fide business paper, such transaction is not usurious, nor beyond the corporate capacity of the bank.</p>

<p>It is not essential, in order to charge an indorser of a bill of exchange drawn in Ohio and payable in another state, for the notary who protests it for nonpayment, to attach thereto a certificate of protest; notice of demand and non-payment is sufficient to charge the indorser.</p> <p>The certificate of protest is convenient proof of the demand and non-payment, but is not, in such a case, essential for anjr other purpose than the recovery of statutory damages.</p>

<p>The defendants bound themselves to carry the United States mail for the plaintiff between Elyria and Cleveland, performing a daily trip each way from. December 12, 1853, until July 1, 1856, for the price of $50 per month, and also for a carriage and set of harness which were delivered to the defendants at tire date of the contract. The defendants entered upon tlieir duties under the contract, and carried the mail in pursuance thereof for about two and a half months, and then refused to perform the contract on their part any further. In an action brought by the plaintiff for such refusal, on a demurrer to the petition, Held—</p> <p>'That the stipulations of the parties respectively in the agreement stated are independent covenants.</p> <p>’That the petition was sufficient, although it did not aver a'payment, or a tender of payment of the full amount due from the plaintiff to the defendants, according to the terms of the contract.</p>

<p>'Demand of payment of a promissory note, made at an office in Cincinnati, where the maker received business calls, and directed them to be made (he having no other place of business in the city), is sufficient, though the same office was the place of business of other persons. .</p> <p>'jNotice of non-payment of such note, addressed to the indorser at his place of residence, out of the city, and put into the post-office by nine o’clock a. m. on the next'day after its dishonor, is sufficient, although the mail for the indorser's place of residence was, by the regulations of the post-office, closed daily at five o’clock a. m.</p>

<p>Petition for dower. Reserved in the district court of Pickaway county.</p> <p>There is a sufficient statement of facts in the opinion of the court.</p>

<p>Error to the district court of Hamilton county.</p> <p>The original action was brought on a policy of insurance in the name of Wilson & Co., for the use of parties whose goods were shipped by J. A. Shaw & Co., at Cincinnati, September 14, 1849, on the canal-boat Ben. Eranklin, consigned to said owners at points on the Wabash canal, in Indiana, being insured by the plaintiffs in error under the following circumstances :</p> <p>Wilson •& Co., acting in the capacity of insurance brokers, and for the Protection Insurance Company, received from the latter an open policy, whereby they were held out to be insured “for themselves, or whom it may concern, on all shipments, in the sums hereinafter specified, when indorsed *on the back of this policy [55á by Samuel E. Mack, agent at Cincinnati; beginning the adventure upon said property, as per indorsement, and to continue during the voyage, and until safely landed as per indorsement.”</p> <p>The perils assumed are stated in the printed part of the policy, and are in these words :</p> <p>“ Touching the perils which the said insurance company are content to bear, and take upon themselves in the premises, they are of seas, rivers, fire, jettison, enemies, pirates, overpowering thieves (and no other thieves), and restraint and detainment of all kings, princes, and rulers.”</p> <p>The blank used was the ordinary cargo policy upon river risks.</p> <p>Shaw & Co., it appears from the bill of lading, shipped as forwarders and commission merchants, various consignments of goods on the Ben. Franklin, and applied to Wilson & Co. for insurance upon cargo. The boat was inspected and approved by the proper agent of the insurance company, and the premium was paid, as appears by the following receipt, made by Wilson & Co., for the plaintiffs in error:</p> <p>“ Received, Cincinnati, September 14, 1849, of J. A. Shaw & Co., six 25-100 dolls, premium, for insuring two thousand dollars, on .cargo of C. B. Ben. Franklin, from Cincinnati to Covington, Ind. Jas. Wilson & Co., per Woods, for Hartford- Protection Insurance Company.”</p> <p>Thereupon the following indorsement was put upon the policy by. Samuel E. Mack, the agent, the back of the policy being thickly covered over with other like transactions, all headed “ Insured 1849.”</p> <p>“ $2,000: — On cargo C. B. Ben. Franklin, at and from this port, per Miami and Wabash canals, to Covington, Indiana, and landed at §=$7.50. Sam’l E. Mack, Agent.</p> <p>“Cincinnati, Sept. 14, 1849.”</p> <p>555] *The bill of lading of this cargo shows that there was “shipped Sejitember 15, 1849, in good order, etc., by John A. Shaw & Co., forwarders and commission merchants, on board canal-boat Ben. Franklin, the following property, to be delivered as consigned below.” Then follows numerous consignments, among which are three to Kuhn & Wood and M. Amberg, the parties for whose use the action is brought. -At the foot of the bill of lading is the following instruction to the consignees : “Insurance taken on cargo with agency in this city, of the Hartford Protection Insurance- Company, for $2,000. In case of’ accident, don’t neglect getting protest immediately and sending to the office here.”</p> <p>The boat proceeded north, and, while on the Miami canal, in a descending lock, between Bremen and St. Mary’s, the back floodgate being broken, the boat, as she sunk.below its level, was deluged by the water spouting from the flood-gate into' her stern hatch. The master and hands testify that this defect of'the gate, being under water, could not be detected as they went into the lock. Ten or twelve hands were set to work without loss of time, to force open the front gates of the lock, and the boat was pumped out immediately after being extricated from her situation. No injury to the cargo was suspected, but on arrival at their destination it was found that three consignments above mentioned, consisting of dry goods, were damaged by the water. The nature and amount of this injury, as well as the ownership and interest of the parties for whose use the action was instituted, are snown by the depositions attached to the bill of exceptions.</p> <p>TTpon these facts judgment was given for the plaintiffs in the court below, and again in the district court upon appeal.</p> <p>*The plaintiffs in error have assigned as reasons why the [556 judgment of the district court should not stand :</p> <p>1. That neither the plaintiffs below, nor Shaw & Co., had an in surable interest in the loss.</p> <p>2. That this particular insurance was not made for the parties for whose use the plaintiffs sued.</p> <p>3. That the loss was not by a risk or cause within the terms of the policy.</p>

<p>Action to quiet title. Reserved in the district court of Hamilton ■county.</p> <p>The petition is filed under the code, by the heirs of Francis A. Parish, against the brothers and sisters of Andrew Ferris, to quiet title. The defendants, by counter-claim, allege that they are the owners of the land in controversy.</p> <p>The ease depends upon the construction of the will of Andrew Ferris. The facts ai-e briefly these:</p> <p>* Andrew Ferris having an only daughter unmarried, on 7th [564 June, 1849, made his will, and thereby devised as follows, to wit:</p> <p>“Second. I give to my daughter, Elizabeth A., the use of the two hundred acres, more or less, of land on which I now live (and then described it) ; also, sixty-seven acres, more or less, in section No. 21 (of the same township as the above, describing it), during her natural lifetime. To have full use and control of the same, with the appurtenances to the same belonging, as long as she shall live.</p> <p>“Third. I give and bequeath to my daughter Elizabeth’s children (if she shall have any heirs), their heirs and assigns forever, all the above described two hundred and sixty-.seven acres of land, after Elizabeth is done using or occupying it, and at Elizabeth’s death.</p> <p>“Fourth. If my daughter, Elizabeth A., shall die without children, then and in that case, 1 give and bequeath the said two hundred and sixty-seven acres of land (above described) to my brothers and sisters, their heirs and assigns forever, after the death of Elizabeth A., as aforesaid.”</p> <p>In 1850, after the death of her father, Elizabeth A. Ferris married Francis A. Parish.</p> <p>On 17th August, 1852, Elizabeth A. Parish, wife of Francis A. Parish, was delivered of a- child, that lived only about one hour.</p> <p>On 22d August, 1852, she made her will, devising- to her husband, Francis A. Parish, his heirs and assigns forever, all her property, and soon after died, leaving no child or children surviving her.</p> <p>Andrew Ferris left brothers and sisters, who survived his daughter.</p> <p>Francis A. Parish survived his wife, and has since died, leaving the plaintiffs, his brothers and sisters, his heir at law.</p>

<p>A subsequent purchaser of real estate, without actual notice of prior equities,, is not chargeable with constructive notice of such equities, although the same may be disclosed in the recitals of an unauthorized deed duly recorded from the executors of a'person through whose heirs the subsequent, purchaser claims title.</p>

<p>In chancery. Bill to quiet title. Reserved in Lucas county.</p> <p>Edward Bissell made his deed, purporting to convey the whole of lot No. 311, in the Vistula division of the city of Toledo, to the complainant, for a consideration (Darned) of $3,000. The deed was acknowledged and filed for record on the 1st of June, 1838, but dated May 26, 1837. On the 10th of April, 1839, Benjamin F. Stickney conveyed, by a quitclaim deed, the same premises to the complainant, which *was recorded on the 18th of Juno, 1839. The [586 complainant claims under these two deeds.</p> <p>On the 12th of October, 1837, said Edward Bissell and his wife made to the defendant, then and ever since a resident of the city of Baltimore, in the State of Maryland, a mortgage upon said premises, and other lots in Toledo, to secure the payment of $6,996, in two equal annual installments, from the date thereof, and the same was deposited for record October 20, 1837. This mortgage was dated June 28, 1837, and contained a clause authorizing the defendant, in ease of default in the payment of the money secured, to sell the premises in manner provided by law. Subsequently, the defendant filed a petition to foreclose this mortgage, without making any party to his proceedings but the mortgagor. In March, 1843, a decree for $9,170 was, by the court of* common pleas, rendered for the defendant. All of the property described in the mortgage was appraised by freeholders, under the direction of the sheriff, at $4,400, which sum being insufficient to satisfy the decree, the equity of redemption of Bissell was declared to be barred, and a deed ordered to be made to the defendants for the several lots embraced in the mortgage, which, on the 2d of August, 1843, was by the sheriff accordingly done. The defendant now claims to hold the lot in controversy by virtue of said decree of foreclosure, but has never taken any steps against the complainant or his title, except by his defense in this suit. JBEe denies any knowledge of complainant’s equity in the premises at any time before March, 1841, and claims the entire lot, under his mortgage from Bissell and the proceedings to foreclose it, and also sets up a claim for taxes, by him paid for several years, on the lot.</p> <p>Benjamin F. Stickney was the original patentee of the land, and 587] *conveyed three-fourths of lot 311 to Bissell before the deed of the latter was made to complainant. The title to the other fourth part of the lot remained in Stickney till his conveyance to complainant, in 1839.</p> <p>The bill prays that the title of the complainant to lot 311 may be quieted as against the defendant’s claim thereto.</p> <p>Bissell has been examined as a witness, and states that complainant was the owner of the “American Hotel,” in Toledo, and that, lot 311 adjoined the hotel premises, and was unimproved by buildings; and whether it that year laid open as a common he can not positively say, but has an impression that the front fence was built, that summer. The lot was used principally as a yard in which to hang out and dry clothes, and for such other purposes as would be-convenient in the establishment, by the tenants of the hotel; and that Daniel Segur was, during 1837, such tenant; that the deed by him to complainant “ was signed and acknowledged at the respective times which the deed imports;” that he keeps a record of conveyances, and in his record the lot is set down as conveyed May 26, 1837.</p> <p>Other witnesses state, in substance, the same as Bissell does in regard to the possession and use of the lot by complainant. It is-shown to have had a fence on the west side of it; and beside the use of it by Segur as a clothes-yard, it had contained lumber and other trash that accumulated there when the hotel was being built, which Mason, one of them, says' he thinks were removed by complainant; that he thinks he saw the latter at work there some time in the summer of 1837; and that in May, June, or July, of 1837, he thinks Segur was in possession of the lot, using it in manner aforesaid, in connection with the hotel.</p> <p>Segur was examined as a witness by complainant, and stated that he went into possession of the hotel under Williams, in September, 588] 1836; but the question was not tasked him, nor did he state, whether, in any form or for any purpose, he occupied lot 311 during any portion of the time that he was tenant of the hotel.</p> <p>The “ American Hotel” is situate on lots 309 and 310, and covers the front of them. Lot 311 adjoins the hotel lots.</p>

On error. . Reserved in the district court of Clermont county. On the 19th day of December, 1854, Worley filed his petition against Brunaugh in the court of common pleas of Clermont county, claiming one hundred and fifty-two dollars and fourteen cents, with interest, and asking judgment therefor. Brunaugh answered, controverting Worley’s right to recover, and 598] sotting up a counter-claim and asking judgment ^against Worley.

This is a petition in error to reverse the judgment of the district court of Portage county. The defendants in error brought an action on a policy of insurance to recover damages for loss by fire of certain buildings owned by them, and insured by the plaintiff in error. The insurance was effected August 21, 1848, and the loss occurred August 26, 1852. Notice of the loss was given to the plaintiff in error within thirty days, and payment requested.

This is a petition in error to a judgment of the district court of' Hamilton county, and is predicated upon the following state of facts •as disclosed by the record: ' On the 19th of May, 1851, the plaintiff in error,William *Hud- • dloson, who was also plaintiff below, was convicted before the mayor of the city of Cincinnati, of selling honey in Lower Market, in said city, by weights not having been sealed by the city inspector of weights and measures, and was thereupon…

Beserved in the district court of Crawford county. This is an action under the code, brought upon the official bond of Harper, as treasurer of Wyandot county. His term of office commenced on the first Monday of June, 1852, and expired on the first Monday of June, 1854. At his settlement with the county commissioners, before going out of office, there was found a balance due from him of over two thousand dollars, which he refused to-pay to his successor.

Civil action. Reserved in the district court of Seneca county.

The action below was assumpsit, brought to recover the amount of two promissory notes given to the plaintiff, dated August 22, 1848, each for $100, one payable in two, and the other in three years-after date. Poindexter was the principal in the notes, and Thomas C. G-owdy, Jackson White, and Francis Donaldson were sureties. Poindexter was not served with process, and the suit has been prosecuted against and defended by the sureties.