Volume 7 — Ohio State Reports, New Series

In chancery. On the 8th day of March, 1836, the general assembly of Ohio passed “ an act to incorporate the Ohio Railroad Company,” *and vested it “ with the right to construct a double or single railroad or way from some suitable point, to be selected, on the east line of the State of Ohio, in the county of Ashtabula, from, at, or near the northeast corner of the county of Ashtabula, and to pass westwardly through the counties of Ashtabula, Geauga, Cuyahoga, Lorain, Huron,…

<p>S. and his wife A., jointly executed and acknowledged, in 1815, a deed of conveyance for lands of A., but the certificate of the officer does not show a separate examination of A. In 1829, the coverture still subsisting, A. separately, and upon proper examination, again acknowledged the deed before-a different officer; both the certificates being on the same sheet of paper with the deed. Held, that these acknowledgments were sufficient to perfect the conveyance. Williams v. Robson, 6 Ohio St. 510, approved.</p>

This case comes to this court by petition in error to reverse the proceedings of the district court of Hamilton county. The original proceedings were upon a petition before the commissioners of Hamilton county to open and establish a county road. George Kluntz, the owner of lands through which the road was established, prosecutes the petition in error; his principal complaint being that he was entitled to damages.

Petition in error to reverse tbe judgment of tbe district court of Butler county. In November, 1843, John Irwin took upon bimself tbe administration, with tbe will annexed, of tbe estate of Tbomas Coocb, deceased. Tbe administration accounts of Irwin were settled by tbe probate court, and tbe cause removed, by appeal, to tbe court of common pleas.

Petition in error to reverse the judgment of the district court of Butler county. The original proceeding was a suit instituted in the common pleas of Butler county, by Mary Walden, against James L. ^Chambers, as administrator of James Walden, her late husband, to recover on an account containing the following several charges, to wit: 1. Amount of money remaining in the hands of James Walden, as executor of Nancy Telfer, coming to .

The facts are these: Stephen Wheeler died seized of a large tract of land in the city of Cincinnati, of which the premises in controversy are part, leaving six children and heirs at law, four of whom, on the 13th of December, 1814, conveyed their undivided *interests in the estate to Samuel Newell, husband of Abigail Newell, who was a fifth heir.

Demurrer to petition. The plaintiff is a corporation, duly organized as a banking company, under the act of March 21, 1851, “to authorize free banking,” and commenced business August 31, 1851.

Mandamus. On the first day of November, 1851, the relators, Thomas Sharp, Jun., Elias P. Davis, and 'William G-reen, filed in the Supreme Court of Ohio, for the county of Meigs, their petition for a mandamus, setting forth “that they are members and trustees of a religious society in Columbia township, being original surveyed town- ’ ship No. 9, of range No. 15, in the Ohio Company’s purchasei inMeigs county; that said society was organized in 1830, and then, gave itself the…

This was an action of debt, brought January 31, 1851, in the-court of common pleas of Richland county, by defendants in error, under the tenth section of an “ act to authorize the establishment, of poor-houses,” passed March 8, 1831, and in which reference is-had to the ninth section of an “ act for the relief of the poor,” passed March 14,1831.

This is a motion for the allowance of a writ of error to the court of common pleas of Guernsey county. '¡-The material facts upon which the application is based are as follows: Harper was indicted in the court of common pleas of Guernsey county, in’ June, 1857, for keeping a tavern‘where intoxicating liquors were sold by him in violation of the act of May 1, 1854, “ to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio.” In the…

<p>Error to the Superior Court of Cincinnati.</p> <p>The case is stated in the opinion of the court.</p>

<p>In error.</p> <p>The case is stated in the opinion of the court.</p>

A habeas corpus was issued to the warden of the Ohio penitentiary, upon affidavit, that Stephen M. Shaw was imprisoned by the warden without any lawful authority. The warden made return, from which it appeared that he held the relator, Shaw, in custody ■under a sentence of the court of common pleas of Madison county, whereby it appeared that Shaw was indicted for horse-stealing, and was sentenced to .hard labor for the period of One year.

The petition filed in the court of common pleas, January 14; 1854, by the plaintiffs, defendants in error, contains the following statement of the original cause of action: That the plaintiffs are the children of Bersheba Hartly; that she married Thomas Adams, Sen., in 1802; that on the 20th of July, 1837, Bersheba died, leaving the plaintiffs, and the co-defendants of said Thomas, her heirs at law ; that, at the time of *her death, her residence and domicil were in Ohio,…

Demurrer to answer. *Petition to redeem mortgaged premises. The facts are as-follows: On the 28th day of November, A. D. 1835, C. M. Giddings conveyed by deed to Maurice Wakeman, divers lots and parcels of land, in and about the city of Cleveland. On the same day, Wakeman executed to Giddings a mortgage upon the premises to secure the unpaid purchase money, amounting to $65,000. The mortgage was received for record January lT, 1836.

This is a petition in error, Julian & Co. brought assumpsit against Upton & Co. on a note of hand.

Ejectment. Thomas J. Conover owned a tract of land, called the Chambers •tract, bounded on the south by a county road. One Smith owned land on the east' side of this tract; and defendants below, McAfferty .and Stimpsons, owned land on the south side of the Chambers tract. The county road run between the Chambers tract and the lands of McAfferty and Stimpsons. Conover and Smith, in 1849, .procured a surveyor to survey the Chambers tract.

This is a writ of error to reverse the judgment of the district court of Richland county. The prosecuting attorney filed an information in the probate court charging Montgomery with stealing the property of the value of one dollar of Henry Deckison.

<p>In error to the Superior Court of Cincinnati.</p> <p>The case is stated in the opinion of the court.</p>

At the October election in 1855, Benjamin Adams was elected treasurer of Muskingum county, and entered upon the duties of bis office on the first Monday of June, 1856. On the 16th of September, 1857, Adams died; and on the 17th of the same month the commissioners appointed John Dillon to fill the vacancy. On the 18th of September the sheriff gave notice, by proclamation, for the election of a treasurer for the full term, and also one to fill the vacancy.

The facts are as follows: July 27,1853. Bissell brought a civil action against Lawson, in Scioto common pleas, to enforce the specific execution of an alleged' parol contract, for a ninety-nine-years’ lease from Lawson to him, and also to recover certain supposed profits, alleged to have been derived by Lawson, from the premises covered by the contract. August 22, 1853.

The plaintiff in his petition, which was filed March 2,1854, claims, that ever since the 17th of September, 1853, he has, by virtue of a chattel mortgage, been the rightful owner of a certain piano forte, and that the defendant, at the time aforesaid, came into possession of said piano, knowing it to be the property of plaintiff, and has refused to deliver it to plaintiff, although it has been demanded, and has converted it to his own use; by reason whereof, the plaintiff…

This case is submitted on the following agreed statement of facts, signed by counsel for the parties : On the 5th day of July, a. d. 1844, Thaddeus Andrews, of Portage county, made his last will and testament, substantially disinheriting his children, and bequeathing almost his entire property to the trustees of the Western Eeserve College, the Home Missionary Society, the Foreign Missionary Society, and the American Bible Society.

<p>j£he pi-obaie judge of a county, who is notified of the order for the discharge of a patient from the asylum, under the 9th and 27th sections of the act of April 7, 1856 (53 Stat. 81), has no judicial discretion in issuing a warrant for the removal of a patient. The power of the officers of the asylum to •discharge, is plenary, and when made, the duty of the probate judge to issue the warrant is entirely ministerial, and if he refuse, he may he compelled by mandamus to issue the warrant.</p>

Petition in error to reverse the judgment of the district court of Cuyahoga county. The original action was brought in the court of common pleas of Cuyahoga county by Stanley against the railroad company, to-recover damages for a personal injury alleged to have been sustained by him from the carelessness of the company in running a train of cars along its railroad. Stanley recovered a judgment, from which the company appealed.

In error. Ramsey sued Grant before a justice of the peace, to recover two months’ rent, at six dollars per month, for a house and lot in Mount Yernon. He recovered before the justice, and an appeal was taken to the court of common pleas.

This is a petition in error to reverse the judgment of the court of common pleas of Tuscarawas county. Such proceedings were had by the plaintiff in the probate court of Tuscarawas county, in August, 1853, that certain real estate of the defendant, was condemned to the use of the plaiñtiff for its railroad. The jury assessed the damages at $1,425, and the probate judge confirmed the assessment.

<p>Assumpsit.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

<p>It is a rule of equity, in the distribution of the joint and separate assets of insolvent partners, that the individual assets of a partner be first applied to-the debts of his individual creditors, and the partnership assets first to the-partnership debts; the preference of the separate creditors in the individual property resulting, as a necessary correlative, from the priority of the joint creditors in the joint effects, inseparable from the nature of the-relation of the partners to each other.</p> <p>This rule does not apply when there is no joint estate for distribution, and no-living solvent partner. But, where there are joint and separate effects for-distribution, the joint creditors can, in equity, only look to the surplus of the separate estate of a partner, after the payment of his individual debts..</p> <p>*And the individual creditors can, in equity, only seek distribution from the partnership effects, out of the surplus of the joint fund, after payment of the partnership debts.</p> <p>The individual creditors of a partner are not entitled to an equal distribution' with the partnership creditors out of the joint effects, on account of an-indebtedness of the firm to such partner, for money loaned by him to the-firm, unless the money loaned was obtained by the firm fraudulently, or advanced by the partner with an improper design to augment the joint, estate by a reduction of the separate estate.</p>

<p>*In error to the district court of Hamilton county.</p> <p>On the 12th of April, 1850, Evarts mortgaged to Lawrence certain goods described as follows :</p> <p>“The following property, now situated in Walter & Meader’s bureau factory, so called, on Smith street, near Front, Cincinnati, viz: three 12-feet planing-machines, Nos. 3, 4, and 5.” • • • “ Said ^articles being now in my shop, in said Walter & Meader’s bureau factory building.”</p> <p>It was recorded on the same day. At the June term, 1850, of the Superior Court of Cincinnati, Benjamin D. Wheeler obtained a judgment against Evarts for $1,006.50, damages and costs; and on "the 26th day of June, 1850, an execution issued upon said judgment, and was the same day levied by Cooper, as sheriff, upon the goods (among others) described in the levy, as “ three unfinished large planing-machines.”</p> <p>On the 6th of July, 1850, Lawrence replevied them; and on the trial a verdict was given for the plaintiff. The case was then appealed ; and on the trial in the district court, the court found for the defendant, as to these machines, and assessed Cooper’s damages at $1,328.45. A motion was made for a new trial, because the finding was against the law and the evidence, which was overruled, and a bill of exceptions taken.</p> <p>It appears from the testimony, made a part of the bill of exceptions, that Evarts was engaged in manufacturing planing-machines; that he only attempted to make six; and of these six, he only completed one. Lane, one of the witnesses, says, that at the time the three planing-machines, numbered 3, 4, and 5, were mortgaged to Lawarenee, he was in the employ of Evarts, and that Lawrence a,nd Evarts, about the time the mortgage was made, pointed them. out to him, and told him they were mortgaged; that they were in, the same place as described in the mortgage, from that time up to-the date of the seizure by the coroner. The same machines that had been pointed out to him, at the time the mortgage was given, were pointed out by him to the coroner at the time of the replevin. These machines were in the shop at the time of making the mortgage. This witness ^states also, that after the replevin, he-finished two of them, one of which sold for $1,300, and one for $1,000.</p> <p>The machines, as far as made when the mortgage was executed, were put together ; but two of them lacked bed-pieces, and other-constituents necessary to complete them. They were not one-third, completed when levied upon.</p> <p>A small amount of work and materials was added after the mortgage, and before the levy, but the precise amount does not appear.</p> <p>Machinists testified that a planing-machine, unfinished and incomplete, or lacking parts necessary to make it operate and work, was not considered by them a “ planing-machine.”</p> <p>The unfinished machines, at the time the mortgage was made, were worth about three or four hundred dollars each.</p> <p>The plaintiff in error claims that the description in the mortgage-was sufficient to enable all interested to identify the property, aided by such inquiries as the subject would suggest, and therefore good; and that the court below erred in overruling his motion, for a new trial/</p>

<p>A mortgage of a leasehold for the term of ten years, accompanied by possession held under an instrument in writing not witnessed or recorded, comes within the terms and policy of the act of February 22, 1831, ‘‘ to provide for the proof, acknowledgment, and recording of deeds and other instruments of writing,” and, when executed and recorded in conformity with the provisions of that act, takes precedence over a prior mortgage not thus executed or recorded.</p> <p>Under the act of February 24, 1846, “ to require mortgages or bills of sale of personal property to be deposited with township clerks,” a refiling of the original mortgage, with the proper and requisite indorsements, within thirty days preceding the expiration of a year from the original filing thereof, is' a substantial and valid compliance with the fourth section of said act.</p> <p>®Where the year from the original filing of the chattel mortgage expires on Sunday, such Sunday is not excluded from the computation of the thirty days preceding the expiration of the year.</p> <p>.Actual notice of a prior mortgage is, per se, conclusive evidence of mala fdes in a subsequent mortgagee; but constructive notice merely is not such evidence. ■</p>

<p>H. , by Ms last will, bequeathed to his daughter, M., more than $10,000. The money being in the hands of the executor, W., and M., in contemplation of marriage, executed an agreement, stipulating “that the said M., after her marriage with the said W., shall hpve full and entire control of her estate, now in the hands of the executor of her father; and shall have the right to receive, receipt for, or draw orders for any sum or sums, of interest or principal, which may be at any time coming and payable on her portion of her father’s estate, and invest the same, or any part thereof, as she may deem proper, . . . in as full and perfect a manner as she could if of full age and sole; . . . and at the decease of the said M., her estate shall pass to her legal distributees and heirs, on her father’s side, subject, however, to any disposition that she may make by will.” About two years after the marriage, "M. died intestate, and without issue. During the coverture, she drew from the executor most of her legacy, and passed the money into the hands of her husband, W., who invested it in lands, for which he took the title in his own name, with the approbation of M. Held—</p> <p>I. That the effect of the antenuptial agreement was to exclude the husband from that interest in and control over his wife’s property which would otherwise, at common law, have been vested in him by the marriage; and to give1 the wife a separate estate in the legacy, in respect to which a court of equity will treat her as a feme sole.</p> <p>2. The agreement does not, either expressly or by necessary implication, limit M. to a life estate in, or to the income of, the legacy. She must, therefore, be regarded as retaining the unqualified ownership of the capital, and, as incident thereto, had the right of disposing of it at pleasure, by gift or otherwise, and was not restricted to the single mode of disposition by will.</p> <p>3. Though the husband can assert no marital rights in the property specified in the agreement, yet he is not estopped from claiming as a donee, under a power conferred upon his wife by the agreement.</p> <p>4. Though in cases of alleged gifts from the wife to the husband, courts will look with a jealous and scrutinizing eye upon the transaction, yet undue influence on the part of the husband will not be presumed from the mere relation of the parties; it must be shown either by direct proof, or by circumstances from which it may be fairly inferred.</p> <p>5. The residue of the legacy remaining i'n the hands of the executor, and of which no disposition was made by M., will, by the terms of the agreement, pass to the complainants.</p>

Petition in error to reverse the judgment of the district court of Cuyahoga county. The original action in the court below was brought by Harman against Abbey, to obtain the possession of a stock of goods in a country store.

<p>Before the code of civil procedure took effect, the final order of the court of common pleas, in proceedings for the appropriation of a right of way by a railroad company, under the act of February 11, 1848, regulating railroad companies, was subject to revision by the district court, on certiorari.</p> <p>An assessment of damages in the “sum of $150, with a wagon-way and stop-for cattle,” as the damages sustained by the owner of the land taken, is not in conformity with the provisions of said act, nor with the provisions of the constitution of this state, requiring compensation to be made to the-owner for the property so appropriated to public use.</p> <p>An order of the court of common pleas, confirming such assessment of damages, was in that respect erroneous, and was rightfully reversed by the district court, on certiorari. And a mandate from such court, on such reversal, authorized the court of common pleas to vacate its order of con,-* firmation.</p>

<p>The discounting of a bill of exchange by the Kentucky Trust Company Bank, at Covington, in the State of Kentucky, and the loan of its notes of f, circulation thereon, with' the understanding that said notes should be paid out in the northern part of the State of Ohio, in the purchase of produce, are not acts which fall within the prohibition, or contravene the policy of the act of February 24, 1848, “ to amend the act supplementary to the act to prevent unauthorized banking, and the circulation of unauthorized bank-paper.”</p>

<p>Where, in an action brought to recover for an injury to personal property, a count in trespass quare clausum fregit, is joined in the declaration with several counts in case, for negligence, the court, looking to the provisions of the act of March 12, 1844, “to regulate the practice of the judicial courts,” will not arrest the judgment on account of an alleged misjoinder of causes of action.</p> <p>Where such action is brought against several defendants, and there is evidence tending to show th£t some of them were principals and employers, and others were agents and employes, it is error to instruct the jury that proof of negligence will entitle the plaintiff to recover under the counts in case, against all concerned, whether, as between themselves, they were principals and agents or not.</p>

<p>Where a service by publication is attempted to be made upon the defendant resident in the county in which the action is brought, under the mistaken belief that he is a non-resident of the state, and such defendant thereupon files a motion to strike the case from the docket for want of service, and, pending such motion undecided, also files a demurrer to the petition, it is error to order the case to be stricken from the docket, although the demurrer may have been previously withdrawn by leave of the court.</p> <p>A party defendant pleading to the action thereby, by implication of law, enters his appearance in the action, and is estopped from denying the service of process.</p> <p>An order of a court of common pleas, that a case be stricken from its docket for want of service, and for the payment of costs, is not a final judgment from which an appeal lies to the district court, but is a final order, for error, in which a petition in error is the proper remedy.</p> <p>It is competent for a court of error to reverse a judgment void for want of jurisdiction in the court rendering the same, although the plaintiff in error may have voluntarily resorted to such last-mentioned court.</p>

Petition in error to reverse tbe judgment of the district court of Hamilton county. Debolt’s term, as treasurer of Hamilton county, expired in 1852. When he came to a settlement with the trustees of Cincinnati township, he held township funds amounting to $11,687.65. On the 9th of June, 1852, he paid them $4,129.67 of this sum, for which they gave a receipt, as a payment on account.

This is a petition in error to reverse the judgment of'the district court of Cuyahoga county. *The original proceeding was an action of debt, commenced by Maxwell, December 18, 1851, in the Superior Court of Cleveland, against Kelley, impleaded with Alfred W. Bossman (as to whom the sheriff returned “ not found ”), upon the covenants contained in a certain chattel mortgage, executed April 24, Í850, by Bossman and Kelley, to Maxwell, on the steamboat called “ The Great…

<p>Error to the district court of Columbiana county.</p>

This is a petition in error to reverse the judgment.of the court of common pleas of Boss county.

■In error to the district court of Hamilton county. The controversy in this case relates to a question of boundary between lots owned by the parties respectively. Under an order of sale, made in a proceeding in chancery, the sheriff of Hamilton county, acting as a special master commissioner, made a subdivision of several squares of ground in Cincinnati, belonging to the estate of Samuel Betts, which subdivisions he platted and placed upon record.

In July, 1854, Johnson filed a petition in the court of common pleas of Cuyahoga county, against the plaintiffs in error and one Horace Nott, in which he says “that the scow Mary Ann, of which he was the owner, on the 7th day of April, 1854, was ashore on the west side of the west pier at the harbor of Cleveland, and on that day the plaintiff hired of their owners the scows Helen and Eddy to go out of the harbor of Cleveland and light off the said Mary Ann, and at the same…

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

<p>Assumpsit. Demurrer to plea.</p> <p>The declaration is on a bill of exchange for $3,150, drawn at Thornville, Ohio, December 28, 1849, by Trovinger (defendants’ testator), Culbertson, Eisher, and Good, on Babcock & Co., New York city, payable to the order of Culbertson, five months after date, acceptance waived, and indorsed by Culbertson to Smith, and by him to plaintiff. The averments are of demand and non-payment at maturity, and that the drawers had not, either jointly or severally, at any time before or at the time the bill became due and was presented for payment, any effects in the hands of the drawee; and that there was no consideration for drawing the bill, or for accepting or paying it, or any part of it, by the drawee ; and that neither have the defendants, as executors, nor their testator, sustained any damage by reason of not having notice of the nonpayment of the bill by the drawee.</p> <p>Plea — That the bill declared on was an accommodation bill, made for the exclusive accommodation of Culbertson ; that all the drawers, other than Culbertson, were his sureties and accommodation drawers; that at the time of their so drawing, he agreed with them to look after the bill and take it up at maturity; that Smith discounted the bill with notice of these facts; that Culbertson, at the maturity of the bill, informed them that it had been taken up; that Culbertson was solvent until long after the maturity *of the bill; that they supposed it had been paid, until on or about December 1,1851, when Culbertson became, and has ever since remained, insolvent; and that Smith was the holder of the bill until long after its maturity, when it was indorsed to plaintiff.</p> <p>To this plea there is a general demurrer.</p>

<p>A patent for land issuing from the government of the United States, in the name of a deceased person, is void, and the title to the land designated in the.patent remains in the government.</p> <p>Where an act of Congress is subsequently passed, providing that, in each case, the title to the land “ shall inure to and become vested in the heirs, devisees, or assignees of such deceased patentee, as if the patent had issued to the deceased person during his life,” the title does not by relation so vest in the heirs of the deceased patentee that the statute of limitations will run against such heirs prior to the time of the passage of the curative act.</p> <p>Where twenty-one years have not elapsed subsequently to the passage of the curative act, such heirs are within neither the letter nor the policy of the statute of limitations.</p>

<p>In error to the Superior Court of Cincinnati.</p> <p>*This action was originally brought by the defendant in error upon a life-policy, dated June 7, 1851, procured by Henry S. Applegate, in the name, and for the sole use and benefit of, his wife, the said defendant in error, at the office of the plaintiff in error, for $2,000.'</p> <p>The application was signed “Henrietta Applegate, per H. S. Applegate,” and contained answers to numerous interrogatories, which, by the terms of the policy, were made part thereof. One of these answers, so made by H. S. Applegate, states that he “ had not since birth been afflicted with consumption, or any other disease of the lungs, spitting of blood, habitual cough,” etc., “or any other disease tending to shorten life.” The declaration contains two counts in covenant, in the ordinary form, making profert of the policy. The defendant set out, upon oyer, the policy, and the application containing the interrogatories and answers, and filed eight pleas. ‘ •</p> <p>The first plea was non est factum; the next four set up misrepresentation and false allegations in the application, as to the health of the said Henry S. Applegate, and as to the spitting of blood; and were traversed by replication.</p> <p>The sixth plea alleged that the deceased procured the policy in the name of his wife, and surrendered it afterward to the company, in consideration of the supposed misrepresentation, and the issuing of a new policy upon his life, dated June 21, 1852, for the benefit of his representatives, for five hundred dollars, without premium. To this plea the plaintiff below demurred, and the court sustained the demurrer.</p> <p>The seventh plea averred that H. S. Applegate, with the consent of the defendant in error, surrendered the policy sued on, an d took out a new one for $500, which she accepted.</p> <p>In the eighth plea this surrender of the policy, and the acceptance of another for $500 in lieu thereof, are stated as the acts of the defendant in error.</p> <p>These last two pleas were traversed by replication.</p> <p>The issues of fact thus made presented two grounds of defense : 1. That the application whereon the policy issued was untrue; 2.</p> <p>*That the policy was surrendered and a new one taken in lieu thereof by Mrs. Applegate.</p> <p>At the trial below the plaintiff in error offered in evidence certain statements of Henry S. Applegate, made more than a year after the date of the policy sued on, in regard to his having spit blood before he made the answer on that subject contained in the application for the policy. The court refused to permit evidence of these statements and admissions to be given for the purpose of establishing the condition of his health before the policy was issued, and the plaintiff in error excepted.</p> <p>The court below tried the case on submission, and found all the issues in favor of Mrs. Applegate. The plaintiff in error moved for a new trial. The motion was overruled, and judgment entered. This judgment was affirmed on error at the general term of the Superior Court. To reverse the judgment of affirmance is the object of the present petition in error.</p> <p>It is assigned for error that the court below sustained the demurrer to the sixth plea — rejected the evidence of Henry S. Applegate’s statements, mentioned above — found the issues in favor of the defendant in error, and refused a new trial.</p>

<p>A written assignment of personal property from A to B, as agent, authorizing B to sell the property to C & D, at a price therein named, to be paid by them to the workmen and creditors of A, obtained by threats of personal violence by the workmen, was voidable on the part of A for duress.</p> <p>If A chose to avoid said assignment, it was incumbent upon him to do so, by notice to B and to C & D, when released from duress.</p> <p>Where, previous to notice of avoidance of the assignment for duress, C & D had in good faith, in accordance with the terms of the assignment, and at the request of the agent, purchased the property, and paid the price to the workmen for A’s benefit; upon the avoidance of said assignment, and action of trover brought by A against C & D, the payment to them so made to the workmen for A’s benefit, is admissible in evidence on the trial, in mitigation of damages.</p> <p>Where such evidence has been improperly excluded, but, pending the petition in error, A shows to this court that he has remitted from his judgment the amount of such payment and interest, the judgment will not be reversed for such error.</p>

<p>Motion for leave to file petition in error.</p>

Bill of review. This is a bill of review, filed in the district court of Clermont county, and seeks the reversal of a decree of that court, rendered, at its May term, 1854, dismissing the complainant’s bill in the original case.

<p>In error to the district court of Hamilton county</p>

The original proceeding was in the nature of a creditor’s bill. Jn the year 1855, Bradstreet, as agent of certain named parties, filed an original and amended petition in the Superior Court of Cincinnati, to foreclose a mortgage executed by Klonne and wife on the 14th of April, 1854, and to ascertain and settle certain liens on the mortgaged premises. Some of the defendants claiming liens, answered, setting up their claims and asking relief.

The relators in their petition set forth : That they are the holders of a bond for $1,000, issued by the trustees of the township of Jefferson, Muskingum county, to the Steubenville and Indiana Railroad Company, or bearer, dated April 1, 1852, payable July 1, 1862, with seven per cent, interest, payable semi-annually on the first days of January and July *of each year.

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

<p>Demurrer to petition.</p> <p>The case is stated in the opinion of the court.</p>

This is a petition in error to reverse the judgment of the Superior Court of Cincinnati. *The defendants in the court below, the present plaintiffs in error, were, with others, stockholders and directors of the Cincinnati and Whitewater Canal Company, a corporation chartered April 1,1837, by the general assembly of Ohio, to construct a canal from Cincinnati to the east boundary line of the State of Indiana.

On the 9th of May, 1857, on the application of the relator, an alternative writ of mandamus was issued out of this court to the defendant, reciting, among other things, that under the authority of the provisions of an act of the general assembly, “ to amend the-act entitled an act to provide for the organization of cities and incorporated villages,” passed March 11,1853, the city ^council of Chillicothe, on the 23d day of July, 1853, adopted an ordinance-“for borrowing money…

Demurrer to petition. On the 18th of March, 1854, Asa B. Waters„and Israel R. Waters-entered into a written contract, of which the material provisions are as follows: “That in consideration of the promise and undertaking of said Israel R. Waters, hereinafter stated, the said Asa B. Waters hereby sells to said Israel R. Waters the following-described ^personal property and claims, to wit.” Then follows a description of the property and claims, consisting of a large amount of…

This is a petition in error to reverse the judgment of the court, of common pleas of Montgomery county. The case is as follows: John Rench partly completed a building in Dayton for Samuel *B. Brown. After Rench’s death the building fell to the ground and injured the plaintiff’s church edifice, on the adjoining lot. The plaintiff brought an action against Rench’s administrators, for damages for the inj ury.

<p>^Motion for a peremptory mandamus.</p>

The suit was originally commenced by Moss, against the schooner Muskegan, before a justice of the peace, under the “act to provide for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name” (Swan’» Rev. Stat. 185), and taken to the court of common pleas on appeal.

On the 26th day ofScptember, 1853, James Milliken in stituted a proceeding before the mayor of the city of Toledo, against the steamboat Northern Indiana, by name, for the collection of a claim of less than one hundred dollars, against the boat, under the act of February 26,1840, “to provide for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name.” Swan’s Rev. Stat. 185.

In chancery. From Erie county. Retained, after reversal on •error, for further hearing and decree. There is a very large mass of papers filed in this case which have no relation to the merits of the controversy. Such of the facts as it is deemed necessary, in order to understand the rules of law which the court apply to the case, will be stated.

<p>The form of information and indictment, under the fourth section of the act “ to provide against the evils resulting from the sale of intoxicating liquors,” etc., approved by this court in Miller & Gibson v. The State, 3 Ohio St. 488, is sufficient in law.</p>

In chancery. The complainants, Richard H. Rogers and Lucy Rogers, his wife, Washington Wood and Emily Wood, his wife, on the 5th of October, 1852, filed their bill in chancery, in the court of common pleas of Erie county, setting forth that said Lucy Rogers and Emily ■Wood are childron of Hope Tucker, deceased, and of his widow, Lucy Tucker, and that they are entitled to two-twelfths of one hundred acres of land, situate in Perkins township, in said county, as legatees of…

Reserved in the district court of Franklin county. This is a petition for an order of distribution of assets, in the-hands of the petitioner, as executor of Philemon Needles, deceased.

In chancery. The complainants ñled-their bill in chancery September 18,1851,. under the third clause of the first section of the “ act to amend the act directing the mode of proceeding in chancery,” in connection with the 15th section of the act thereby amended.

<p>Where a suit has been instituted in a state court, by a citizen of the state, against a citizen of another state, for the recovery of over $500, and the defendant, at the time of entering his appearance, files his petition, offers surety, and complies with the provisions of the act of Congress for the removal of the cause for trial into the circuit court of the United States; and the state court thereupon, refusing to accept the surety and stay further proceedings, proceeds to trial, and renders judgment in the case against the defendant: Held—</p> <p>1. That, for the purpose of jurisdiction and removal, in such ease, a company incorporated by, and doing business within another state, is to be regarded as a citizen of such other state.</p> <p>2. That, independent of the assumed authority of Congress to prescribe the duties of a state court, the course of practice so prescribed by the act of Congress having been uniformly recognized and followed by the courts' of this state ever since their organization, as proper and convenient in such cases, the same has thereby become established as a rule of practice of the courts of this state.</p> <p>*3. That, in such a case, the proper remedy for the defendant is the ordinary one of petition in error, the facts being made to appear upon the record by plea to the jurisdiction, or by bill of exceptions.</p> <p>4. That the extraordinary remedy of a peremptory mandamus, after judgment so rendered by the state court, is neither an appropriate nor adequate remedy in the case.</p>

This action was brought in the court of common pleas of Delaware county, to recover from the village of Delaware damages, on account of the corporate authorities grading a street.

*In error to the court of common pleas of Morgan county. The plaintiff in error was indicted for the murder of Benjamin P. Scott, and at the March term, 1857, of the court of common pleas-of Morgan county, was tried, found guilty and sentenced to be liungon the 27th day of June next following. A writ of error was allowed on the 6th of June, and the execution of the sentence stayed by order of a member of this court.

Action on the case. This cause was commenced in the court of common pleas of Erie county, on the 31st day of May, 1853; and at the February term, 1854, was submitted to the court upon the issue joined, and judgment was entered for the defendant.

<p>In an action against special bail, judgment was entered against the principal, at the April term, and execution issued thereon, and returned “not found,” and suit commenced against the bail, in which summons was issued returnable on the 10th, and served upon the 3d of September, and duly re-' turned; and September 29th default of bail for answer to petition was entered upon the docket by order of the court, and cause continued to the October term, during which, on the 8th of October, the bail, without showing cause arising previous to their becoming finally charged, obtained leave of court, and surrendered their principal. Held—</p> <p>1. That the bail having become finally charged, and their undertaking being no longer conditional, such order of court did not give them legal authority to surrender their principal in discharge of their liability.</p> <p>2. That an answer filed by the bail setting forth such surrender of the principal in accordance with the order so made by the court, does not show a legal defense to the action.</p> <p>3. That the court refusing to hear proof of such surrender, upon a motion filed with their answer by the bail for exoneration, and overruling the motion, and holding the facts so stated in their answer to be an insufficient defense» and refusing to set aside the default, did not show an improper exercise by the court of its legal discretion.</p>

On the 6th of March, 1845, the general assembly of this state passed an act, entitled “ an act to amend an act entitled 1 an act to abolish the board of canal commissioners, and to revive the board of public works,’ passed March 5, 1839, and the several acts supplemental and amendatory thereto, and for the better regulation of those having in charge the public works of this state.” The fifth section of this act is as follows: “ Sec. 5.

Information, in the nature of quo warranto. On the 29th day of April, 1858, Christopher P. Wolcott, attorney-general,'filed in the Supreme Court ofhOhio an information in the nature of quo warranto, giving the said court to understand: “ That William Kennon, and William B. Caldwell, and Asahel Medbery, for the space of three-weeks now last past and more, have 'held and assumed to exercise, and yet do claim to have, hold, as•sume to exercise and enjoy, without any lawful…