Volume 7 — Ohio Public Domain Citations

<p>This cause was adjourned from the county of Muskingum. The points in discussion, and the form in which the case came up, are fully stated in the arguments of counsel and the opinion of the court. ></p>

Beserved in the county of Athens. The case is this: At the November term, 1835, of the Supreme Court for the county of Athens, A. Gr. Brown, of said county, filed an affidavit, setting forth that at the October election of that year* he was duly elected recorder for said county; that he had demanded the books, papers, documents, and records, pertaining to said office, of one Robert E. Constable, who had previously holden the office, and who refused to give them up.

A debtor dies after judgment against him, subsisting as a lien upon his real estate. The administrator makes a sale, that for irregularity passes no title. The judgment creditor may proceed, by scire facias, against the heirs and purchasers in possession, to revive the judgment, and to have •execution awarded against the lands.

Reserved in the county of Harrison. A statement, agreed to by counsel, presents the following facts: Edward Yealhall died in 1813, in Athens township, in the county of Harrison, seized of forty acres of land, situate in said county, leaving Ruth Yealhall, his widow, and an infant child, who died the following year.

Reserved in the county of Champaign. This case came before the court on writ of certiorari to the court common pleas for Champaign county.

This cause was adjourned here for decision from the county of Muskingum.

These two cases originated in the court of common pleas of Boss county, from which they were appealed to this court.. Although not precisely alike, they both depend upon the same-principle. The actions are debt.

This was an action of ejectment, in which a verdict was taken for the plaintiffs, subject to the opinion of the court, upon a motion for a new trial, on an agreed state of facts. It was adjourned for decision from the county of Huron.

<p>A final decree to sell mortgaged premises, is not opened by an appeal from the decree confirming the sale.</p> <p>Misapprehension of the right of parties at the time of selling mortgaged premises under a decree, where one of the parties is purchaser, may be cause for setting aside the sale.</p>

In this cause the plaintiff proved title in his lessor, and thereupon the defendant, in order to show an outstanding title, called upon J. D. Webb, Esq., attorney and agent for said Lloyd, for the production of a deed of quitclaim of said land, in his possession, from said Lloyd to Simon Perkins, dated May 21, 1821; which .deed was produced by said Webb, and thereupon the defendant offered it in evidence, to which the plaintiff, by his counsel, objected ; and thereupon it…

The bill states that on March 26,1792, Smith Sneed made an •entry in the Virginia military district, No. 2,067, of one thousand acres, on part of warrant No. 1,159, on the waters of the Scioto, beginning at the lower back corner of David Watkins’ entry, No. 1,298, running up with his back line the whole length, thence at right angles westerly for quantity.

This cause was reserved, in the county of Miami, for the purpose of settling a question of practice. The action was assumpsit, upon a long-running account between the parties. The plaintiff’s bill of particulars contained' one hundred and seventy-five distinct items; the defendants’ bill contained upward of two hundred items.

This cause was adjourned from the county of Hamilton. Itwas a suit on a covenant for quiet enjoyment in a lease, made ■by Hargrave and his wife, of the wife’s dower estate, in which Hargrave covenanted for quiet enjoyment. The declaration set forth the lease and averred an eviction in the usual form. The ■•defendant demurred generally.

This was an action of ejectment for a lot of land in the city of Cincinnati. On the trial, the plaintiff gave in evidence two mortgages executed by the defendant to him, for the same lot, one dated October 16, 1826, the other the 20th October of the same year; each to secure the payment of five hundred dollars.

From Hamilton county. 'This action is on a sealed note dated November 11, 1823, forth© amount of five hundred and seventy-one dollars thirty-seven and tone-half cents, payable on or before the ,20th day of January following. The note was made jointly by Peter Clarkson and the defendant, to I. & B. R. Jenkins, or order, and, by them indorsed to •I. Jenkins, and by him to the plaintiff.

This is a ease in chancery reserved in the county of Portage. The complainants, with the exception of John W. Allen, are the heirs at law of Horatio Howard and Harvey E. Howard, and Allen claims to be the assignee of the other complainants. The defendants are the heirs at law of Paul ^Williams, and with the exception of Geoi-ge Babcock and wife, are infants.

Reserved in the county of Hamilton. The mortgage bears date on the 16th day of October, A. D. 1826. It was executed by the defendant to the plaintiff, and conditioned for the payment of five hundred dollars in three years. To this scire facias a special plea is filed, and a replication taking issue on the facts it sets up.

Reserved in the county of Hamilton. This is an action of assumpsit, upon a promissory note in which there is a judgment by default, and the only question now to be considered is as to the amount of damages which the plaintiff is entitled to receive. The case is submitted without argument.

This was a motion for a writ of quo warranto, to inquire by what authority the defendant holds the office of trustee in the Ohio University. A rule to show cause was served, and cause shown at the term of the Supreme Court, in 1836, in the county of Athens. The questions arising upon the rule were reserved for decision in the court in bank. The reporter has no arguments of counsel, or information who were counsel on either side.

This cause was adjourned from tbe county of Huron. The material facts are all recapitulated in the opinion of the court.

'This is au ejectment reserved in the county of Hamilton. The -object of the action was to recover the possession of a certain piece of ground, situated in the city of Cincinnati, bounded on the east by Main street, on the north by Fifth street, on the west by Walnut street, and on the south by an alley, running from Walnut to Main street. Upon the trial of the ease at the May term of this court, 1835, the jury returned the following special verdict: The jury find: 1.

This was a bill for specific performance, and the material facts growing out of the bill, answers, and exhibits are these: On January 13, 1835, the defendant, William Fields, by a written agreement of that date, sold to the complainant the land in controversy, for the sum of eight hundred and thirty-one dollars, payable as follows: one hundred dollars in hand, two hundred dollars on March 13, 1835, two hundred dollars on June 13, 1835, and three hundred and thirty-one on…

This is a case in chancery reserved in the county of Cuyahoga. The case, as made by the bill, answer, exhibits, and testimony, is as follows.

This is a suit in chancery, brought from Hamilton county. On April 22, 1828, Bakewell and John H. Page, the agent of Ormsby, entered into an agreement in writing, by which it was- agreed that Bakewell should, from time to time, for one year from the making of the agreement, furnish to Page funds to purchase-wheat to be manufactured in Ormsby’s steam mill at Cincinnati, for Bakewell; that Page should purchase the wheat, and for every five bushels, Bakewell should have a…

<p>Tms case was adjourned from the county of Hamilton. It was an action of assumpsit. The declaration contained three counts. The first recited that the plaintiff was the guardian of Catherine Ford whilst a minor; that in 1823, during his guardianship, he presented his accounts, for settlement, to the court of common pleas, and a balance was found due to him of throe hundred and seventy-four dollars and sixty-eight cents. That in March, 1832, he again presented his guardian accounts for settlement, and a further balance was found due to him of two hundred and fifty-three dollars and twenty-eight cents, for advances made to the ward. Upon these recitals the declaration averred a promise to pay.</p> <p>*The second count was general for money advanced,' goods sold and delivered, labor performed, etc.</p> <p>The third count recited the guardianship, the death of the ward, and the payment of filty dollars for funeral expenses, whereof the administrator had notice, with the averment of his undertaking to pay, etc.</p> <p>The defendant pleaded specially to the first count in the declaration non assumpsit, within six years. The plaintiff replied that at the settlement of the first item of three hundred and seventy-four dollars and sixty eight cents, he was the legal guardian of the intestate debtor, and so remained, until within six years of the commencement of the suit, and to this replication the defendant demurred.</p> <p>There is a report of this case in Wright’s Reports of the circuit decisions of the Supreme Court, .page 200. Alter the decision there reported was announced, leave was obtained to withdraw the demurrer, and a general order made to amend the pleadings. Upon this order the case was again presented for hearing, and was adjourned upon the point now presented by the demurrer.</p>

This is an action of covenant reserved from the county of Hamilton. Williams, the defendant, conveyed a tract of land, with warranty, to Davis, in 1816. Davis afterward conveyed the same land to St. Glair, who died seized in 1820, leaving the plaintiff his widow, to whom the premises were set off as dower.

This was an action of trespass for cutting timber. The defendant justifies, as an agent of the Pennsylvania and Ohio Canal Company, under the act incorporating it. The plaintiff demurs, and for cause, shows that the plea does not show *that the damage has been assessed, or that any provision is made for assessing the same.

Reserved in the county of Richland. The plaintiff was indicated for forgery. The forged instrument is set out, in the indictment, in hcec verba: “ One year after date, I promise to pay William W. Simmons, or bearer, one hundred dollars, for value received, with interest from date. September 13, 1833. One hundred dollars. “Attest: Abijah Simmons.

This is a writ of error brought to reverse a judgment of the-court of common pleas of Medina county.

This is a suit in chancery, reserved from, the county of Butler.

<p>In an action against surgeons for misconduct in setting, a fractured bone, an. allegation in the declaration tbat the defendants promised to perfect & cure, can only be sustained by positive proof of an express promise. Tha law does not raise, by implication, such an undertaking.</p>

This was an action of ejectment, brought in Richland county, and reserved for decision in bank, upon the following facts: In 1814, Daniel Mickey received from the register of the Virginia military school ■ district a lease for the southwest quarter section three, range twenty-two, for ninety-nine years, renewable forever. In 1828, he died in possession, leaving his widow, Elizabeth, and ten children, of whom the lessor of the plaintiff is one.

Reserved in the county of Hamilton. - This is an action of debt, brought by the State of Ohio against the defendants to recover the amount of tax due upon dividends, declared on July 1, 1833, and January 1, 1834.

<p>Bill of review does not lie on a decree, in a petition for divorce.</p>

This was an action of trover for three hundred barrels of flour, originally the property of Henry Swearingen. The plaintiff produced an order from Henry Swearingen, on the defendant, who was his warehouse-man, directing him to deliver six hundred barrels of superfine flour, of his brand, to Levi Hutton. On the back of this order was an assignment, by Hutton to James Gordon and Eli Sidwell, of all his interest; also an assignment by Gordon to Joshua Woods; the plaintiff.

In error from Huron county. The record in the case shows that, at the November term of the court of common pleas of Huron county, 1833, Ebenezer Prentiss, preferred his petition in said court, representing that he was seized in fee simple of one-third part of all lands granted by the state of Connecticut to one Abigail Elliot, a sufferer by the-depredations of the enemy, in the war of the revolution.

The action is brought to recover of the defendants, who are mail contractors, certain amounts of toll claimed by the plaintiff to be imposed by the laws of the state on passengers in coaches, .in which the defendants conveyed the United States mails.

Reserved in the county of Delaware. The declaration was for several bags of wool and other articles of property. The plea non detinet, with notice that the property was in the custody of the law.

This case was reserved in the county of Hamilton. On May 19, 1835, and during the session of the Supreme Court in the county of Hamilton, Samuel H. G-oodin filed in said court an affidavit setting forth that, at the term of February, 1834, of the court of common pleas for said county, on Saturday, the 12th day of April, a day in said term, the court being in session and all the judges being present, the office of clerk of said court being vacant, said court then and there…

This was a suit in ejectment in Licking county, in which a verdict for the plaintiff was taken, subject to the opinion of the court, upon the following proved facts: In 1804, one hundred and nine persons, residing in Connecticut, associated themselves together under the name of the New England Licking Land Company, and purchased a tract of the United States military land, lying in Licking county, to be occupied and partitioned after the rules prescribed in the articles of…

This case was submitted to the court without argument. There . was but a single point, which is fully stated in the opinion óf the court.

Certiorari from the county of Wood. At the October term of the court of common pleas of the county of Wood, 1825, John Hollister, administrator of Samuel Ewing, deceased, preferred his petition to said court, setting forth that the personal goods and chattels of the intestate were not sufficient to pay the debts due from the estate, and praying for an order of the court for the sale of certain lands of which the said Samuel died seized.

Bill of review, reserved in Ross county. The original bill was filed in 1824, under the provisions of the act of the 22d January of that year. 2 Chase’s Stat. 1278, sec. 10.

This action of ejectment was submitted to a jury in the county of Pickaway. The lands in controversy are within the Virginia military district, and the declaration in ejectment contains several demises. Amongst others, one from Dresback, Apple, Ely, and one from' John Tench. On the trial, the plaintiff proved that previous to June, 1814, and at that time, one Nathan Kennedy and those claiming under him were in possession of the premises.

<p>This is a bill in chancery brought to review the decree in the case reported in 4 Ohio, 378.</p>

This was action of covenant upon a lease executed under seal-by David Funk and two other trustees, etc., to the defendant,, ■dated May 27, 1816, for a part of section 16. The lease purports to have been made in pursuance of a special act of the legislature, the premises thus leased being at the time of the lease in Fairfield county, but now in Hocking county. The declaration is in the usual form, except that it *does not aver that the defendant sealed the lease.

This case was submitted to the court in the county of Knox, and reserved for decision in bank. It is an action of debt.

This case was adjourned from the county of Hamilton, upon a-motion made by the plaintiffs for a new trial.

Reserved in the county of Pickaway. This case was submitted to a jury'at the last term of the court, in the county of Pickaway, and a verdict returned in favor of the plaintiff. The lands in controversy are situated within the Virginia military district. On the trial the plaintiff gave in evidence a patent from the United States, covering the land in controversy, and rested his case.

This cause was reserved in the county of Knox, and came before the court in bank on a motion, by the defendant, for a new trial. The lessor of the plaintiff claimed title under Hannah Hollister, whose title was derived under a decree of the Supreme Court divorcing her from her husband, and assigning her the land in dispute for alimony. The defendant claimed under a sale on executions, upon judgments against the husband, Hollister.

This is a suit in chancery, reserved from Hamilton county. The proceedings were instituted in 1828, and questions of the most complicated character have been frequently presented in various aspects to this court. 5 Ohio, 533; 6 Ohio, 227 ; Wright, 261, 596. The case was argued by Messrs. Fox, Wright and Walker, for the heirs of St. Clair, and by Messrs. N. Wright and Worthington, for the bank. The point decided is stated in the opinion of the court.

This cause was reserved in the county of Muskingum. It was a scire facias, reciting that, in the lifetime of E. Granger, the plaintiff recovered a joint judgment against Pierce, Granger, and Scovil which remained unsatisfied — reciting also the death of Granger, and the grant of administration to Goddard, and demanding that Goddard show cause why he should not be made a party to the judgment, and why execution should not issue against Goddard, as administrator, with Pierce…

<p>' This is a suit in chancery, reserved in the county of Belmont. The plaintiff claiming to be the owner in fee of 3185-4116 parts of one hundred and forty-six acres of land, which he holds as tenant in common with the defendant, asks partition.</p> <p>On April 3,1830, Mariam Penn, owning the premises, conveyed them to Francis Penn, her son and only child, and died sood afterward. On September 6, 1830, Francis Penn died seized of ■the land, leaving his wife pregnant. James Francis Penn, the posthumous child, was born on January 18, 1831, inherited the lands in fee, subject to the dower of his mother, and died on January 20, 1831. The plaintiff holds the interests in part, of those who, at the death of James Francis Penn, the person last seized, were his nearest of kin, of the blood of Francis Penn, “ the ■ ancestor from whom the estate came,” and upon whom the estate descended; and upon this title he seeks partition.</p> <p>It is shown by plea, that after the death of James F. Penn, his -mother intermarried with William Evans, to whom, on December 14, 1833, was born a son, Ather Evans; and the partition is resisted on the ground, that the subsequent birth of a brother of James F. Penn, although of the half blood, terminates the estate .of those who inherited the land at his death.</p>

<p>This case was adjourned from the county of Cuyahoga.</p>

The first and third counts of the plaintiff’s declaration set out,, in substance, that the decedent, on December 1, 1825, promised to-the plaintiffs that provided the canal should pass though the town of Chillicothe, he would pay or convey to the commissioners of the-fund, two thousand dollars in land, or in in-lots, of his addition to-the said town, or in money, at his option, the money to be paid in three years, and the land at any time within six months after the line of…

<p>Adjourned from the county of Guernsey.</p> <p>This was an amicable action in debt brought by the trustees of Wills township against the trustees of Center township.</p> <p>The declaration contained one count and plea, the general issue. The suit was brought to recover for necessaries furnished to William Smith, a pauper, and submitted to the eourt of common pleas at October term, 1835, upon a statement of *faets. The court rendered judgment for the plaintiffs below, and this writ of error is prosecuted to reverse that judgment.</p> <p>The facts agreed and submitted to the eourt were substantially these: About twelve or fourteen years ago Center township was organized and included part of Wills township, which had been organized before. Smith, the pauper, had a settlement in Wills township, and owned land there, on which he had resided about six years before Center township was organized. Smith sold his land and left the county, and has remained out of the county over since, until 1835, but has gained no settlement since he left Wills township. When Center was organized, it included in its limits the farm on which Smith lived when residing in Wills township. Smith returned to Wills in 1835, and became chargeable, and has been supplied there; he was legally tendered to Center by Wills, but Center refused to receive him or pay Wills for supporting him.</p>

<p>Eeserved in Highland county. This case was submitted to the court upon the following agreed statement of fact: •</p> <p>It was agreed that the plaintiff’s claim to the premises in question is based upon an entry for twenty-two hundred and fifty acres of land on Lee’s creek, a branch of Eattlesnake fork of Paint creek, made on April 20, 1795, which entry is as follows:</p> <p>“ No. 2,519. Anthony Singleton, attorney in fact for Christian Holmer, deceased, enters twenty-two hundred and fifty acres of land, part of a military warrant, No. 2,744, on Lee’s creek, a branch of the Eattlesnake fork of Paint creek, beginning at the west •corner of Hardin and Gray’s survey, No. 1,836, thence 39 west 616 poles, thence south 73 west 514 poles, thence south 17 east 574 :poles, thence north 73 east to the beginning.”</p> <p>This entry was surveyed by Nathaniel Massie, deputy surveyor, on April 30,1795, purporting to be “ surveyed for Anthony Single- • ton, attorney in fact for Christian Holmer, deceased,” and the plat and certificate of survey returned and recorded in the office of Richard C. Anderson, principal surveyor, on May 15, 1795.</p> <p>Said entry and survey was patented to Oadwallader Wallace by •patent bearing date May 28,1834, which patent is made a part of ■■•the agreed case. The granting part of the patent is as follows: “In consideration of military service performed by Christian ■Holmer, who was a major for three years to the United States in the Yirginia line and continental establishment, and in pursuance of an act of Congress,” etc., “there is granted by the United ■States to Oadwallader Wallace, assignee of John D. Munford, attorney in fact to Lucy H. Taylor, formerly Lucy H. Singleton, and Richard Singleton, the only children and heirs at law of Anthony Singleton, deceased, a certain tract of land,” etc., describing in part the land in controversy.</p> <p>*It was further agreed that the defendant’s claim is based •on an .entry made on September 14, 1818, of which the following is a copy:</p> <p>“ No. 9,669. Thomas M. Saunders and John W. Pope, assignees, •enter four hundred acres of land on a part of a military warrant, No. 5,349, on Lee’s creek, a branch of the Rattlesnake fork of Paint creek, beginning at a hickory, sycamore, and sugar tree, northeasterly corner to Richard' C. Anderson’s survey, No. 3,759, thence north 36J east 359 poles to the line of Levi Teagle’s survey, No. 2,298 ; thence south 25J east, and from the beginning south 25£ ■east with the line of Anderson’s survey, so far that a line north 46£ east will include the quantity.” Which entry was surveyed •by Thomas M. Saunders, deputy surveyor, October 6, 1818, and returned to the principal surveyor’s office and recorded November 25, 1818. This last entry and survey was patented to Pope .and Saunders anterior to the date of the patent to Wallace.</p> <p>It was a part of the agreed case that either party might intro•duee other competent testimony.</p> <p>Under this latter clause the plaintiff introduced copies from the United States general land office of the original warrant to A. Singleton, as attorney in fact to Holmer, deceased, bearing date-March 9, 1784; of Singleton’s entry and survey; of a power of attorney from Lucy H. Taylor and Eichard Singleton, deviseesof"Anthony Singleton, deceased, to John D. Munford, constituting him their attorney and authorizing him to manage and dispose of their lands in Ohio, dated July 23, 1832; of a conveyance from. Munford, as attorney as aforesaid, to Wallace of twenty-two hundred and fifty acres of land on the Singleton survey upon Lee’s-creek for the consideration of five hundred dollars, dated October-14, 1833; and a copy of an affidavit of Peyton Eandolph, filed in the land office and bearing date September 11, 1822, by which is proved that at that time Lucy H. Taylor and Eichard Singleton were the only heirs of Anthony Singleton, deceased ; and also a copy of Anthony Singleton’s will, dated July 6, 1795, and of the probate of the same.</p> <p>If, when these agreed facts are in evidence, the law of the case is with the plaintiff, judgment is to be entered in his favor, otherwise judgment is to be entered for the defendant.</p>

Reserved in the county of Belmont for decision in the court in bank.

<p>.Feme sole, one of several plaintiffs, marries pending the suit, good plea in abatement.</p>

The writ of error in this casé was made returnable to the court, in bank. The facts, as they appear in the record, are these r The grand jury of the county of Brown, at the August term of the-court of common pleas, 1834, returned a bill of indictment against the plaintiff, for uttering counterfeit coin, currently passing in this state, called Spanish dollars, knowing it to be counterfeit.

<p>A decree upon a bill of review can not be again reviewed in a second bill of review.</p>

This case was reserved from the county of Holmes. The plaintiff below recovered judgment in ejectment, against -the then defendant, Robert Vincent, on a sale under execution against A. Dougherty. The defendant claimed, under a sale from Dougherty after the rendition of the judgment, and after the levy, and also under a sale for taxes. He now applies for relief under 'the occupying claimant law.

The plaintiff, in his declaration, states, in substance, that he was one of the judges of the United States court for the district of Ohio, duly appointed by the President of the United States, to hold his office until the end of the next session of Congress, which was on the 30th day of June, then last passed; and whereas, it was expected and believed that the said Benjamin would be nominated by the President of the United States, to the senate of the United States, for…

<p>This action of ejectment is brought to recover three hundred acres of land in the county of Hardin, being entry No. 12,296, in the Virginia military district.</p> <p>The case is submitted to the court, upon an agreed state of facts, substantially as follows: Sally Winder, one of the lessors of the plaintiff, has a patent for the land in controversy, bearing date in 1826. John H. Winder and Sally Winder are *husband and wife, and the title to the premises is in the said Sally Winder, •unless the same has been legally transferred.</p> <p>The defendant claims title in virtue of a deed from the county auditor of Logan county, the lands having been forfeited to the ■state for the non-payment of the taxes for the years 1826 and 1827, and sold in pursuance of the act of March 14, 1831, providing for the sale of such lands.</p> <p>It is agreed that the lands were in every particular regularly forfeited to the State of Ohio, except that the plaintiff objects:</p> <p>1. That it does not appear of record that the collector in 1826, ■and the county treasurer in 1827, were sworn by the auditor to the correctness of the delinquencies returned by them for these •years respectively.</p> <p>2. That there is not a sufficient record of the advertisement of the delinquent list previous to the sale of delinquent lands in 1827.</p> <p>The parties respectively reserve the right to take exception to any acts which took place relative to the premises, subsequent to January 1, 1828.</p>

<p>This cause was adjourned from the county of Hamilton. It was a bill in chancery for dower, filed in the usual form. The answer of the defendants admit that the husband of the complainant was seized of the lands in which dower is sought, but avers that the two joined in a conveyance to the Bank of the United States, under whom the defendants claim. This deed is made an exhibit. It commences thus: “ This indenture made," etc., “be-' tween S. McFarland, and Catherine, his wife, of the first part, and the Bank of the United States, of the second part, witnesseth, that S. McFarland for and in consideration," etc., “ hath sold," etc., running through all the operative parts as the single acts of S. McFarland, and concluding thus : “ In' witness whereof said Stephen and Catherine have hereto set their hands and seals." It is signed and duly acknowledged by both.</p> <p>The defendants in their answer put certain interrogatories to the complainant, and call upon her to answer them. In her answer she avers that the land was purchased with her individual separate property derived from her father, and brought to her husband at their marriage ; that the price for which it was sold was applied to the payment of debts contracted by her husband, as security; that her family and' herself derived no benefit from it; that she was induced to execute the deed to preserve a good understanding and peace with her husband, and did it unwillingly; that she was apprised before she executed the deed that it was insufficient to deprive her of her dower; that she executed it in this belief, and would not have executed it at all, had she considered it as extinguishing her rights. The cause rested on the bill and answers and the deed.</p>

This cause was adjourned from the county of Hamilton. It was an action of debt on a prison bounds bond.

<p>Where a purchaser of real estate misrepresents his means of payment, when making the contract, and is finally guilty of gross negligence m performing on his part, equity should not aid him by decreeing a specific performance.</p>

<p>In a proceeding by administrator to sell decedent’s real estate, for the payment of debts, if minor children, not named in the petition, actually have an appearance entered for them in court by their guardian, pending the petition, they are bound by the order of sale. The irregularity does not affect the title.</p> <p>fíale of a part of a tract of land maybe made by an administrator, though the petition prays, and the court orders the sale of the whole.</p> <p>An equitable title may be sold by an administrator.</p> <p>An administrator selling real estate, und'er an order of court, may convey to the assignee of the original purchaser.</p>

<p>This was a bill in chancery, adjourned from the county of Tuscarawas. The complainant alleged ’that in the year 1800 he purchased from a broker in Philadelphia,for account of *himself and a partner, the warrant upon which the land in controversy was located. This warrant was originally issued to Gen. John Stark, in part compensation for his revolutionary services, and the law providing for its appropriation forbade its being assigned, so as that a patent could issue to any other person than such as the warrant was issued to or his heirs. The bill alleged that the warrant was purchased of Franklin Stark, who was authorized to sell it.. That the complainant, esteeming him the owner, procured its location, obtained the patent, and took possession of the land it covered. That he had held the possession and made improvements until ejected in 1834. That he had paid all the taxes, and that the grantee of the warrant had, by neglecting it, virtually abandoned his claim under it, and recognized the lawful ownership of the complainant.</p> <p>The answers deny that General Stark had ever authorized F. Stark to sell, or had sold his warrants, and deny the authority of the brokers to sell them, insisting upon their right and upon the policy of the law that protected their interests against unadvised assignments.</p> <p>The testimony was voluminous, but none was adduced showing a transfer of his right by General Stark, or an authority to any one to make sale of his warrants.</p>

This was a writ of error, reserved.for decision in the court in bank in Montgomery county. Davis was indicted for permitting gambling in his house.

<p>If the owner of an entry in the Virginia military lands, makes a mistake in-surveying it, and obtains a patent accordingly, equity can not aid him to-place it on the land the entry properly covered.</p> <p>Where a boundary bas been much litigated, and different verdicts rendered, equity, under proper circumstances, will direct a retrial in favor of the-party in possession.</p>

<p>This case was adjourned from Portage county.</p>

<p>"Where appearance-bail is given, the plaintiff waives his bond by accepting a plea and taking judgment, no special bail being entered.</p>

This cause was adjourned from the county of Cuyahoga. It was a special action on the case, for an injury to a lot of land and house owned by the plaintiff in the town of Cleveland. The alleged injury was committed by the defendants acting under .an order of the trustees of the town for grading the streets.

<p>The record book is admissible evidence, although the records have not been' examined and subscribed by the president judge.</p> <p>A naked statement of facts, in a bill of exceptions, it not being shown wherein their occurrence at the trial prejudiced the complaining party, lays no-ground for reversing a judgment.</p> <p>Where, in a prosecution for perjury, a written paper is referred to, the place- and time of subscribing it by the accused being involved in the alleged perjury, as set forth in the indictment, such paper is proper evidence at. the trial.</p> <p>It is not error, where the record book has been read to the jury, if the court, refuse to make an order to send it with them to their room of deliberation.</p> <p>Upon a writ of error nothing is examinable but what is set forth in the transcript of the record.</p>

In this case an agreed statement of facts is submitted on which the questions to be decided arise. Walter Turner was indebted to the Bank of Zanesville in the amount stated in the trust deed under which the plaintiffs claimed, and on the application of C. B. Goddard, Esq., the attorney for the bank, executed the deed which was prepared and signed by said Goddard, as one of the •subscribing witnesses, he being a stockholder in the corporation.

<p>Action for damages consequent on an act innocent in itself, and injurious only in consequence of particular circumstances, the declaration must set out the circumstances showing the wrong.</p>

This is a bill in chancery, brought by five citizens-of the town of Gallipolis owning lots adjoining the public square, to assert the property of the inhabitants of the town in it, and to restrain the defendants from converting it to any other use.

<p>This case was reserved in the county of Fairfield.</p> <p>It is an action of debt. The case made in the declaration is as - follows: On March 19, 1825, in the county of Fairfield, the defendants and one Edward B. Thompson, then the sheriff of said county,. by their writings obligatory, dated the said 19th day of March, bound themselves to the State of Ohio, in the penal sum of twenty-five hundred dollars, which writing obligatory, was and is subject to the following conditions, to wit: “ That whereas the said Edward B. Thompson had before that time given bond and security for the faithful discharge of his duty as sheriff aforesaid, in the sum of five thousand dollars, as the law directs, and whereas the associate judges of the court of common pleas in and for said county, at the March term of said court in the year last aforesaid, did consider and require the said Edward B. Thompson to give his bond with security, in addition to his bond aforesaid, in the further sum of twenty-five hundred dollars; if then the said Edward B. Thompson shall well, truly and faithfully do and perform all and every of the duties required of him as sheriff of the county aforesaid, according to law during his continuance in said office, then the foregoing obligation shall be void and of no effect, otherwise,” etc.</p> <p>The declaration then avers as the breach of said contract, that afterward, on September 27,1828, in the course of certain proceedings in partition which are specifically set forth, a sum of money ' amounting to sixty-five dollars and fifty-five cents, of right belonging to said Irwin, came into the *hands of Thompson, sheriff, as aforesaid, in virtue of his said office, which money was not by said Thompson brought into court, nor has the same been paid to said Irwin by the said Thompson during his lifetime, nor by his administrators since his death, nor has the same been paid by the ■said Crooks and Shaw, securities of the said Thompson, sheriff, etc. Whereby an action hath accrued, etc.</p> <p>To this declaration the defendants pleaded:</p> <p>1. Non est factum.</p> <p>2. That the said Thompson was at the annual election on the second Tuesday in October, 1824, duly elected sheriff of the county of Fairfield for the two years next succeeding. That having been •commissioned, he did, on November 4, 1824, at Fairfield county aforesaid, enter into an official bond in the penal sum of five thou" sand dollars with B. Buffner, Jacob Mussleman, Joseph Wilson, and George Berry, his securities, conditioned for the faithful performance of his duties as sheriff, which bond was approved by the court and deposited with the clerk. That said sheriff took upon himself his office on November 4, 1824, and continued therein for the term of two years. That during said term, to wit, on March 9, 1825, the associate judges of said county entered an order that said Edward B. Thompson, sheriff as aforesaid, should give additional bail in the sum of twenty-five hundred dollars within thirteen days. That the bond set forth in the declaration, executed by the defendants on March 19, 1825, was executed in compliance with said order; that since the execution of said bond, E. B. Thompson, Jacob Mussleman, and Benjamin Buffner, three of the obligors therein named, have departed this life, leaving the said Joseph Wilson and George Berry their survivors; that said bond so executed by said Thompson, Buffner, Mussleman, Wilson, and Berry, is now in full force, etc., and that the said surviving obligors are solvent .and well able to pay the said sum of five thousand dollars, the penalty thereof, to wit, at Fairfield county áforesaid.</p> <p>3. That at the annual election on the second Tuesday of October, 1824, said E. B. Thompson was duly elected sheriff, was commissioned and gave the several bonds as stated in the second plea. That at the annual election in 1826, said Thompson was again ■ duly elected sheriff for the constitutional term of two years, and</p> <p>on November 1, 1826, was duly ^commissioned. That he</p> <p>Jailed to give bond as required by the statute, whereby his office became vacant, and the duties thereof devolved upon G-othil Stein-man, who was then the acting coroner of said county, and remained bo vacant to the second Tuesday of October, 1828. That the several Bums of money in the declaration mentioned, were received by the said Thompson in the manner therein stated, after the expiration of his term of office from the second Tuesday of October, 1824.</p> <p>4. The same as the third plea, except that the election and commissioning of Thompson, in 1826, is not stated, with averments that the money charged in the declaration was received by him after his term of office had expired.</p> <p>These three several pleas conclude with a verification. Two other pleas were filed, but as no question was raised upon them for the consideration of the court they are not stated.</p> <p>To the three special pleas above stated the plaintiff demurred •generally, to which demurrer there is a joinder.</p>

This cause was' reserved in the county of Richland. The plaintiff in error was arraigned below on an indictment for stealing a gelding, the property of one Lucius Doolittle, in the year 1833.

This was a writ of error, adjourned for decision here, from the County of Cuyahoga. The object of bringing the case into this court was to settle and publish a rule of mercantile law, respecting days of grace, upon negotiable notes, payable at no particular place. The case was this, Ward, indorsee, brought suit against Sharp, his indorser, upon a note of hand, payable to an order one year after date, and dated June 12, 1830.

<p>Adjourned from the county of Washington.</p> <p>This was an action of debt upon a bond, in which the defendant was surety for one G-erman, appointed guardian of Bartlet. German was dead. The declaration assigned the general breach, besides special breaches, but set forth no ^settlement or liquidation, by suit or otherwise, ascertaining the amount of liability of German. The defendant demurred generally.</p>

<p>A lien on land sold for the purchase money, is preferred to the lien of judgment creditors, without notice.</p> <p>A mortgage to secure indorsers upon a note contemplated to be discounted at a particular bank, and so expressed in the deed, is valid to secure the same indorsers, though the discount took place in a different bank from the one named, and was subsequently transferred to a third bank, with the same indorsers.</p>

This was a bill in chancery, from Ross county, to review a decree in the Supreme Court in bank, made in December, 1831, a» reported in 5 Ohio, 199 where the facts are stated.

Reserved in the county of Knox. The action is a debt on a sealed note. Held: etc., to the defendant in error, in the sum of forty-nine dollars and twenty-five cents, to be paid to her twelve months after date. The defendant in error pleads: 1. Hon est factum; 2, 3, and 4.

<p>A justice of the peace has jurisdiction in a case for a nuisance to real estate where the damages are under one hundred dollars.</p>

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

Beserved in the county of Gallia. It is stated in the declaration, that the plaintiffs, as commissioners ■of Gallia county, were possessed of a certain wooden bridge of the value of five hundred dollars, then lawfully being over Baccoon creek, in said county, on a road leading across said creek, at a place ■called Gray’s mills, to wit: at Gallia county aforesaid; and afterward, to wit: on May 1, 1832, at Gallia county aforesaid, said defendant, by himself and servants, was…

Reserved in Hamilton county. This action was instituted to recover possession of divers articles of property enumerated in the process and declaration. The defendants pleaded: 1. Non detinet, with notice of special matter, 2. That at the time of said detention, the goods and chattels were the property of the defendants. 3. That they were the property of James Saffin, one of the defendants. 4.

Reserved in the county of Greene. This is an action of debt upon a bond executed by the defendants to the plaintiff, as commissioner of insolvents for the county of Greene, and the declaration contains several counts, which it is unnecessary to specify. The defendants, after craving oyer of the bond and condition, pleaded the general issue, and gave notice of special matter to be given in evidence under that plea.

<p>Reserved in the county of Clermont.</p> <p>This is an action of debt commenced on August 6, 1833, and in the declaration it is alleged that the indebtedness accrued on April 10, 1820.</p> <p>The defendant pleaded two pleas:</p> <p>1. The general issue.</p> <p>2. That the cause of action did not accrue at any time within six years before the commencement of the suit.</p> <p>Issue is joined upon the first plea, and to the second the plaintiff replied that the cause of action accrued before June 1, 1824, and at the time of the accruing thereof, the said John West was not a. resident of the State of Ohio, but of the State of Yirginia. That the said Hester West took letters of administration in the State-of Yirginia; and that neither the said John West during his life, nor the said Hester West since his death, were at any time withiit the State of Ohio previous to the commencement of this suit.</p> <p>To this replication the defendant demurs generally.</p>

<p>Hiee technical objections to an affidavit for hail are to be received with circumspection, and if not made upon the return of the process, they are to he disregarded.</p>

<p>The holder of a note payable to a payee named in it, or hearer, is held to he the owner prima facie, and he is not called to prove that he purchased.</p>

<p>Petition for divorce, reserved in the county of Clermont.</p>

<p>"Where an indictment contains two counts for the same offense, one good, the other defective, upon a general verdict of guilty, judgment may he given on the valid count.</p> <p>If twelve grand jurors agree in finding an indictment, it can not he invalidated hy showing misconduct of one of the fifteen jurors, nor can inquiry he made upon what grounds any one of the twelve jurors concurred in the finding.</p> <p>A plea, impeaching the conduct of a grand jury, and alleging facts in contradiction to the journal of records, can not he maintained.</p>

Reserved in the county of Warren. This case was certified into this court from the court of common pleas of Warren county, on the ground that there was not a competent number of disinterested judges in that court to try it. It was brought into that court by an appeal from an award of arbitrators, made pursuant to the act to incorporate the Warren County Canal Company.

' This case came before the court on a writ of error to the court of common pleas in the county of Montgomery, made returnable to tbe Supreme Court of the county of Franklin, and reserved for decision in bank.

<p>This was a suit in chancery, reserved from Hamilton county.</p>

This cause was reserved in the county of Knox. The action is on a bond executed by the defendants on December 6, a. D. 1817, at Baltimore, in the State of Maryland. The penalty is three thousand dollars. It was executed by the two first-named defendants as principals, and by the last as security, and was conditioned for the faithful discharge of the duties of the principals, as executors of the last will and testament of Charles Shipley, deceased.

<p>This cause was adjourned from Hamilton county.</p>

This case was adjourned from the county of Licking. It was a motion to quash an appeal, taken in the cause, from the court of common pleas to the Supreme Court. The facts were as follows: The appeal was taken by'the defendant, and docketed in the Supreme Court, in 1831. At the September term, 1832, it *was continued. At the term of 1833, continued and referred to arbitrators. No court hold in 1834.

This cause was originally adjourned from the county of Ross. A reference to the facts of the case, and the manner in which it now came up, is fully stated in the opinion of the court. The re-argument was made by

<p>This case was adjourned from the county of Seneca.</p> <p>It was a penal action founded on a bet upon the result of an election, and brought in debt under the provisions of the gaming act. The defendant, Oronice, and Eli Dresbaek, made a wager on the presidential election, in 1832, of three hundred dollars. Dresback lost, and paid the money to Oronice, to recover which the plaintiff, as common informer, brought this suit. On the trial, Dresbaek was called as a witness lor the plaintiff; he expressed his unwillingness to testify, and was objected to by the defendant. The court overruled the objections and required him to give evidence. He testified accordingly, and the jury rendered a verdict for the plaiutiff. The defendant’s counsel moved for a new trial, assigning two grounds:</p> <p>1. It was error to compel the witness to testify.</p> <p>2. That this description of wager is not prohibited by the statute.</p> <p>Upon these assignments, the motion was adjourned here for decision.</p>

This was a writ of error to the court of common pleas of Stark county, made returnable to the court in bank.

<p>This was reserved in the county of Coshocton. The action is< slander, in which the declaration charges that the defendant uttered of the plaintiff certain slanderous words, charging him with the crime of larceny. It is unnecessary here to state the specific words.</p> <p>To the declaration the defendant pleaded, first, the general-issue ; second, a special plea in bar, setting forth in substance,, that one Benjamin Ulin spoke and published of the plaintiff the identical words laid in the declaration; and further, that the defendant, when he spoke the said words, declared in the presence and hearing of the same person in whose presence and hearing said words were by him spoken, that he had been told the same by said Henry Ulin.</p> <p>This latter plea was traversed by the plaintiff. The issues joined were submitted toi a jury at the last term of the court in Coshocton county, and a verdict returned for the defendant upon the second plea.</p> <p>After verdict, the plaintiff moved the court to direct a new trial,, and to order a venire facias de novo, assigning for cause that the verdict was against law and evidence, and that the second plea was no bar to the action; and also moved the court to order a repleader.</p>

This cause was adjourned from the county of Trumbull. It was docketed in this court at December term, 1834, and continued. The land in controversy is claimed by the lessors of the plaintiff, by descent from their ancestor, Abraham Falconer, and by the defendants under certain proceedings in attachment against the administrators of Abraham Falconer. The plaintiffs’ title was admitted to be perfect, unless divested by those proceedings.

<p>Deserved in the county of Clermont.</p> <p>The original case upon which this writ of error is brought, was submitted to the court of common pleas on the following agreed state of facts:</p> <p>1. That a patent issued for the land in the declaration men* tioned, and which is the subject of controversy, to one Oliver Towles; that the same was sold for taxes due thereon to one John Bogges, who assigned the certificate of purchase to said Thomas Morris, lessee of the plaintiff, to whom the auditor of the county conveyed said land, by virtue of said sale, before the commencement of this suit; that said land was taxed and sold for nonpayment of taxes as aforesaid in the name of Towles, the patentee, according to the tax laws.</p> <p>2. That a patent issued for said land to 'William Lytle, *and he, after the issuing of said patent, to wit: on July 3, 1810, conveyed the same by deed, duly executed, to one Jones Bunnell, who, under said deed, entered upon and occupied said land from the date of said deed until April 10, 1811, on which last-named day said Bunnell, by deed duly executed, conveyed said land to said John Monroe, who then entered upon and occupied the same, and has continued said possession ever since, and still holds said possession.</p> <p>3. That the patent for said land to said Towles is older in date than that which issued as aforesaid to said Lytle.</p> <p>4. That the land deeded by Lytle to Bunnell, and by Bunnell to Monroe, was recovered in ejectment, in the Supreme Court of Clermont county, by Towles; that application was made for the value of improvements by Monroe; that the same was assessed and returned, where the cause is still pending, no writ of possession having issued..</p> <p>It was further agreed that if the law arising but of the above facts was with the plaintiff, then the court should render judgment in his favor for the land in controversy, otherwise that judgment should be rendered for the defendant.</p> <p>Upon this agreed state of facts, judgment was entered for the plaintiff, to reverse which judgment this writ of error is brought, and the general error assigned.</p>

This cause was adjourned from the county of Guernsey. It was an action of debt, upon the bond of an administrator, and brought against the securities. The bond was taken under the law of 1816, and'the suit was commenced before the taking effect of the law of 1834 on this subject.

<p>.Cause decided in bank, rehearing can only be allowed at the same term, in the same court.</p>

Deserved in the county of Eoss. This case comes before the court on writ of error to the court of common pleas of Eoss county. The original case in that court was assumpsit, in the name of Gilmore, as administrator de bonis non of Kercheval, against John N. Pomeroy and John McCoy. The writ was returned served as to McCoy, and not found as to Pomeroy.

<p>A decree of the circuit court of the United States, made in that court sitting for the district of Ohio, directing the conveyance of lands, does not operate as such conveyance under the laws of Ohio.</p>

Reserved in the county of Champaign. This is an action of debt. The declaration contains two counts: 1. Upon a judgment rendered in the quarterly court of Monongalia county, in the commonwealth of Virginia, at the suit of Evans v. Instine, on November 11, 1802, for the sum of fifteen dollars damages, and five dollars and fifty-two cents costs of suit. 2.

<p>This was a motion for the new trial of an action of ejectment, reserved in the county of Madison.</p> <p>The .plaintiff declared upon a demise of Henry Helfenstine. At the trial he produced a patent conveying the land to “Peter Helfenstine, in trust for the heirs and devisees of Peter Helfenstine, deceased,” with proof that he was one of the heirs of the decedent; and because the court rejected their testimony, as not establishing ,a legal title in the heirs of the deceased, P. Helfenstine, he makes ¡this motion for a new trial. •</p>

Tuts cause was adjourned from the county of Hamilton, and came before the court, upon a motion made by the defendant, for a new trial. The action was brought upon a. policy of insurance on the steamboat ’76. The policy was taken for a year, and'bore date December 2, 1831. The loss happened December 2, 1832, about noon. The case is stated at large, as the points made are discussed in the opinion of the court.

<p>If. a vessel insured receive an injury that occasions her total loss, before the expiration of the policy, but is not lost within its existence, the insurers are liable only for the actual injury within the time of the policy. Insurance upon an estimated value, without proof of fraud, concludes the parties to the policy.</p>