Volume 8 — Ohio Public Domain Citations

This case was adjourned from the county of Hamilton, upon a motion in behalf of the defendants for a new trial. The lessors of the plaintiffs claim as heirs at law; the defendants as devisees. The question at issue arose upon the alleged will of Hazen Swazey. The paper was produced in court, at the trial of the ejectment, and parol evidence offered of its due execution.

<p>Where there is an absolute conveyance of land, intended as a mortgage, and a separate covenant by the grantee, to reconvey to the grantor on the payment of a sum of money, the equity remaining in the grantor can not be sold upon an execution at law.</p> <p>In selling a mortgagor’s interest in the mortgaged premises upon execution, the valuation must he of the entire estate. It is not competent for the valuers to make an estimate of the value and deduct the incumbrance.</p>

Reserved in the county of Hamilton. This is a writ of certiorari, to reverse an order of the court of common pleas of Hamilton county, staying the proceedings in an action, of debt brought by the plaintiff against the defendants, as the appearance bail of ¥m. S. Smith, on a bail bond executed to the sheriff and assigned to the plaintiff. The facts are stated in the bill of exceptions.

<p>.AH incorporated companies for constructing roads or canals are subject to ' legal control in a proper case; yet chancery will not interpose such control in a controverted case of expediency of location within the proper points; nor will chancery, in such case, interpose upon the application of a person not otherwise affected or injured than by the actual location passing through his land.</p>

This case was reserved in the county of Richland, upon a motion for a new trial. The plaintiff, on October 30, 1832, commenced an action of trespass guare clausum fregit, in the court of common pleas, which’ came into this court by appeal. The declaration contains several counts, in all of which the trespass complained of is laid as having been committed in the month of April, 1826. In one count it is laid with a continuance.

<p>This case was adjourned from the county of Greene. It was a bill in chancery to be relieved against a judgment at law, upon an insolvent petitioner’s bond. The facts, as they appeared upon the whole case, are these :</p> <p>In April, 1833, the complainant applied to the respondent, who was commissioner of insolvents for the county of Greene, and took the preliminary steps to obtain the benefit of the insolvent law. One of these preliminary steps was giving the bond upon which the judgment at law was obtained. At the April term of the court of common pleas, 1833, his petition came on for hearing, and was dismissed, because the petitioner had not complied with the law. In 'November, 1833, a suit was commenced against the complainant and his sureties on the insolvent bond. This suit came-, in due course of law, before the Supreme Court, in Greene county, where, in June term, 1836, a judgment was rendered for the plaintiff in that suit. In August, 1834, a second application was made, by complainant, for the benefit of the insolvent act, and, upon this application, in November, 1835, the insolvent certificate was issued by the court. .</p> <p>The bill in this case was filed in the Supreme Court in June, 1836, while the suit on the bond and the second application for relief were both pending and undetermined. The sureties in the bond were not parties complainant, nor was the original creditor, or any other creditor parties defendant. The bill prayed .an injunction and general relief. The defendant answered and detailed the facts of the case, as above set forth. Upon this bill and answer the cause was heard.</p>

The complainants in this case are the heirs at law of Calvin Luzen, late of Sandusky county, deceased, and the bill is filed to redeem certain land under a mortgage incumbrance, and which has also been sold for taxes. As the facts of the case are stated m the opinion of the court, ib is unnecessary to introduce them here.

<p>When a vendor has a title, and refuses to convey, or when he disables himself from conveying by parting with the title, the rule of damages to he enforced in equity, is the value when conveyance ought to have been made-</p> <p>If the contract he to pay upon conveyance, and the vendee make no actual tender of the money, he can not have costs.</p>

Reserved in the county of Geauga. The bill states that the complainants are the only surviving heirs at law of Jacob Welsh, late of the county of Geauga.

<p>Where an injunction to a judgment at law, for the payment of money, is dissolved, the bill continued, and sundry payments made before its final dismissal, the decree is to be for the balance due at the time of dismissal,, with the legal penalty of damages upon that balance.</p>

This cause was adjourned from the county of Hamilton. The original and amended bill sets forth that J. & G. R. Gilmore have-recovered a judgment against the Bank of Cincinnati, foreight ■thousand seven hundred and eighty-four dollars and fifty-one cents .and costs; that execution has issued thereon, and that no property •can be found.

<p>A feme covert’s execution of a deed, in conjunction with the attorney in fact of her husband, is valid and obligatory upon her.</p>

This was an action of ejectment, submitted to a jury in the county of Columbiana. Moses Blackburn, sen., the grandfather of the lessor of the plaintiff, and father of the defendant, was in possession of the premises under a patent from the government, and continued in possession until the time of his death, when the defendant entered into possession, under the devise of his father,.

<p>This was an action of ejectment, reserved in the county of Hamilton.</p> <p>The facts were presented -in an agreed case.</p> <p>The plaintiffs seek to recover an undivided half of lot 3STo. 92, in Cincinnati. In 1805, William Woodward was the proprietor, in his own right, of three undivided eighths of the lot, together with an out-lot, and held one undivided eighth in right of his wife. The remaining four-eighths were respectively owned by Seth Cutter, Abigail Pillsbury (wife of Silas Pillsbury), Mary Cutter, and Hephzibah Poster (wife of Samuel Poster). In August term of the'common pleas of Hamilton county, a petition for partition was filed, as follows :</p> <p>“ The petition of the subscribers respectfully showeth, that John Cutter, late of Cincinnati, died seized of a certain in-lot, No. 92, containing se.venty-two perches; and one out-lot, No. 20, containing four acres, situate in the town of Cincinnati, held by purchase from and under the proprietors of the town; in which lots, William Woodward is entitled to three-eighth parts; Abigail, wife of said William, of one-eighth part; Hephzibah Poster and Seth Cutter, both of the town of Cincinnati, are each entitled to one-eighth part; Abigail Pillsby and Mary Cutter, both of Massachusetts, áre • entitled to one-eighth part; for which petitioners ask partition, etc,</p> <p>“William Woodward,</p> <p>Abigail Woodward,</p> <p>Samuel Poster,</p> <p>Hehpzibah Poster,</p> <p>Samuel Poster, Att’y for Mary Gutter.”</p> <p>On the journal of August 14th is entered, “The petition of Woodward, Poster, etc., for partition, to be advertised three weeks in the papers, as the law directs.”</p> <p>The record shows, that in December, 1805, an order for partition was issued to the sheriff, which was returned,- with a report by the commissioners, showing that they were sworn; that in their opinion the land could not be divided without injury; and that *they appraised the in-lot at seven hundred dollars and the out-lot at one hundred dollars. The court thereupon accepted the report, and allowed William Woodward and Samuel Foster to take the property jointly between them at the valuation.</p> <p>On September 12,1806, a deed was made by William McFarland, sheriff of Hamilton county, which was recorded December 5,1806, which, after reciting the original title, the petition, proceedings, and return, continues, “And the said Samuel Foster, being lawfully seized of one-eighth part or share of said two lots, by intermarriage with Hephzibah Cutter, daughter of the above-named John Cutter, did take and purchase the shares of Seth Cutter, Abigail Cutter, and Mary Cutter, being three shares of one-eighth part of said lots, each, for the proportion of the valuation of said lots, as returned, etc.; therefore, for the consideration of three hundred dollars, paid and secured to the satisfaction of three of the above-named’’ heirs of John Cutter, etc., proceeds to convey “one equal undivided half.” The acknowledgment of this deed, which was made on November 6, 1806, professes to be by William McFarland, late sheriff, etc. On the margin of the record of this deed the recorder entered the following memorandum: “This deed was drawn by the recorder, and executed in his presence by the sheriff. It was left in the office of the sheriff, subject to some arrangements with the grantee, but not delivered to him afterward; by an error entered on record, by the recorder, J. W. Browne.”</p> <p>It was shown, by proof, that Abigail Cutter, one of the heirs of John Cutter, was married to Silas Pillsbury, at the time of filing the petition, and that Hephzibah Foster was living at the time of filing, but died before any proceedings.</p>

This cause was adjourned, from the county of Brown. It was an action of debt, founded upon a judgment recovered in the county of'Notaway, of the commonwealth of Virginia. Defendant pleads, first, in general terms, that the judgment was obtained by fraud, upon which plea there is an issue in fact. In a >second and in a third plea, the fraud relied upon is specially alleged. To those pleas there were general demurrers, upon which the cause was heard.

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

<p>To prevent a pauper obtaining a settlement by twelve months’ residence, it is necessary that the overseers of the poor of the township where the pauper may be, should strictly comply with the law, in- warning him to depart by warrant, and in returning the warrant to the township clerk, and causing it to be recorded.</p>

Action of ejectment, reserved in the county of Richland. This action was brought to recover the possession of lot number 34, in the town of Yermillion, Richland county. The case, by consent of parties, was submitted to the court. The plaintiff claims title under a deed executed by the county auditor, pursuant to a sale for tax.

<p>"The court can not, upon a writ oí error, notice a bill of exceptions that is not made part of the record.</p>

This is a suit in chancery to redeem a mortgage, reserved for decision, from the Supreme Court of Hamilton county. The bill states that in 1819 she united with her husband in mortgaging to Samuel Broadwell, the defendants’ intestate, certain lands lying in Cincinnati, which she held by descent from, her father. A copy of the deed is made an exhibit, appended to the bill, and she submits if its form is available to convey her estate.

<p>This cause was adjourned from the county of Franklin, it was an ejectment, to be determined upon proofs involving naked questions of fact and law.</p> <p>The plaintiff laid two demises and claimed under two distinct, chains of title, derived from two different sources, both of which were judgments and executions against the same defendant.</p> <p>The first chain of title was deduced from a judgment, Westv. McCoy, in Franklin county. The proof consisted of the judgment, execution, levy, sale, confirmation, and the order that the deed to the purchaser be made, with the deposition of the person who ■officiated as sheriff, in making the sale, to this effect.</p> <p>“That in executing deeds, as sheriff, it was his uniform habit to have such deeds acknowledged and attested by two witnesses; that, in this case, he has no doubt that a paper purporting to be a deed, was given to the purchaser, and none, that the deed was properly acknowledged and witnessed. The witness had an impression that it was in his own store that he delivered the deed to the purchaser.”</p> <p>The purchaser was James Conger. The proof farther showed that McCoy, whose title Conger purchased, had been in possession many years, perhaps twenty or more. That soon after the sheriff’s sale, Conger went into possession, and held it two or three years. That, in the spring of 1834, Conger ran away and abandoned the possession, upon which McCoy again entered into it, and continued to hold.</p> <p>The second, or continuous chain of title, was founded upon a judgment against Conger, execution upon which was levied on the land in question, McCoy being in possession, at the time of the levy. A sale on the execution and levy was perfected, and C. Eox became the purchaser. In making the deed to Pox, the sheriff failed to recite all the writs of execution,- that had issued as the foundation of the sale. After issue joined, on. this fact, a second deed was made to Eox,'containing .these recitals. Eox had conveyed to the lessor of the plaintiff.</p>

These two cases came before the court in the county of Licking. Without going into a statement of the matters contained in the bill, cross-bill, and answers, it is sufficient to. say, that the objects of the several parties are to ascertain their respective rights growing out of sundry mortgages executed by, and judgments recovered against, the defendant, Henry Wells, to effect a sale of the mortgaged premises and a distribution of the avails of such sale.

<p>New matter introduced in the answer, and not responsive to the bill, must be proved, or it avails nothing.</p>

This case was reserved in Gallia county. It was an issue, out of chancery, to try the validity of a nuncupative will. The agreed case shows that David McCune, while domiciled in the island of Jamaica, made a written will there, by which he disposed of his entire estate, both-real and personal.

<p>In executing surveys under the laws of the United States, the mere marking a corner by the surveyor establishes no boundary, but such marked corner is controlled by the actual division lines subsequently made, field notes of -which are returned to the proper offices, and preserved according to law.</p>

This case was reserved in the county of Geauga, and the action was brought for the recovery of certain lands in that county. On the trial, before the jury, the lessors of the plaintiff proved that they were the heirs at law of Eleazer Paine, late deceased^ and that he died in 1804 seized of the lands in controversy, and here rested their Ciise.

<p>A contract to convey land sold, on the 1st of August, or as soon as the vender shall pay two thousand dollars, is fixed for ultimate execution on August-1, 1835. A subsequent tender of a conveyance does not entitle the vendor to an action for the purchase money.</p>

<p>Reserved in the county of Lucas.</p>

<p>This was a writ of error, adjourned from the county of Mont.gomery.</p> <p>The suit was commenced before a justice of the peace, in the mame of “ Jacob Lodge and James Dunkely, trustees of section 16, township 3, range 6.” It was brought into the court of common .pleas by appeal, where the declaration, that was filed, commenced -thus: “ The trustees of school section 16, township 3, range 6, ■Butler township, Montgomery county, complain,” etc., and proceeded to declare in assumpsit for use and oecujiation. The defendant demurred, but withdrew the demurrer, and substituted <the plea of non assumpsit, and upon this issue the jury found a «verdict for the plaintiffs, and judgment was rendered for them; .to reverse which the writ of error was brought.</p> <p>The errors assigned were : 1. That there was a variance in the ..parties plaintiffs to the original suit, before the justice, and the parties plaintiffs in the declaration, in the court of common pleas. *2. That assumpsit, for use and occupation of improved «school lands, can not be maintained to recover rents.</p>

Ejectment for 295 acres of land, it being entry Ho. 7,540, in the name of John Clemson, on the north fork of Paint creek, in Fayette county.

<p>This case was adjourned from the county of Knox. It was an action of trespass, for breaking and entering the plaintiff’s house. The defendant pleaded that he entered to distrain for taxes due on the house. The plaintiff replied, that the house was a professor’s, situate on the lands of the theological seminary, Kenyon College, and was not subject to taxation. Demurrer to the replication and joinder. In addition to the pleadings, there was an agreed case stating the came facts.</p>

Reserved in Sandusky county. The bill of complaint states, that the defendant, Whittaker, on.

<p>•Judgment reversed pending a bill to subject land to satisfy it, and again re- _ covered, the bill being continued, and a supplemental bill filed to reach the case of the second judgment, an alienation after the reversal and before the second recovery, is affected by the lis pendens.</p>

This is a proceeding by scire facias to revive a judgment. It is stated in the declaration that at the September term of the Supreme Court, 1830, in the county of Ross, William McDonald recovered judgment against John Waddle for $2,351.34 debt, to be discharged by the payment of $1,879.74, the amount due in equity, together with his costs, amounting to $19.61.

<p>This ease was adjourned from the county of Geauga.</p> <p>It was a bill in chancery, in which the complainants sought to have a contract for relinquishing an equitable interest in lands, made by their ancestor, rescinded upon the ground of fraud. The fraud was specifically alleged in the bill; one principal ingredient of which was, that Jacob French, taking advantage of David’s addiction to intemperance, procured him to be intoxicated, and in that condition induced him to transfer his interest in the lands in question to Hickox, who paid no consideration. The answers are directly responsive to the bill, and flatly deny all its allegations. Voluminous proofs were taken, and upon these elaborate arguments were submitted to the court. The principal question involved was the issue in fact upon the truth of the charges made in the bill. The report is confined to the legal points involved.</p>

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

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

This is an action of ejectment for the recovery of 200 acres of land, in lots Nos. 26, 27, and 31, in the township of Twinsburgh, ia •the county of Portage.

<p>Eeserved in the county of Guernsey.</p>

This was a writ of error, reserved in the county of Hamilton. The plaintiff in error was indicted for harboring and concealing a fugitive female colored slave. The indictment contained nine counts, in which the offense was variously set out — some of the counts specifying more or less of the particulars of the case,, four of them chárging that the defendant harbored the slave, well-knowing that she was a slave and a fugitive from service.

<p>A last ■will and testament devising lands in Ohio, if executed in a sister state, according to her laws, and probate there made, is a sufficient devise of lands in Ohio, upon its being duly recorded with the authentication of its probate in the county where the lands lie.</p>

This is a bill in chancery reserved in the county of Geauga. The following facts appear upon the bill, answers, and testimony. In 1799, the plaintiff was the sheriff of the county of Hampshire, in the State of Massachusetts. He appointed Thomas Kidd a deputy, who gave him a bond of indemnity, with Amasa Clapp and Charles Kidd his sureties. Clapp died in 1804, and the administration of his estate was committed to Solomon Clapp and A. Rice.

<p>This is an action of assumpsit reserved in the county of Franklin. The declaration contains four counts.</p> <p>The two first counts are upon a bill of exchange, drawn by the •defendants on one Flewelling, residing in the city of New York, for $5,000, payable six months after date, at the National Bank dn New York, dated March 14, 1837, and protested for non-payment.</p> <p>The other two counts are the common counts for money had and .received, etc.</p> <p>To this declaration the defendants filed five special pleas in bar, the first of which is in substance as follows, to wit: It is alleged, “that the said Hiram Paddleford, on March 3,1837, being in want -of money, made application to the plaintiffs to borrow of them -$5,.000, upon a note proposed to be executed by the said Hiram Paddleford, Dyne Starling, Noah H. Swayne, and William Miner; which application was taken into ^consideration by the plaintiffs, and afterward, to wit, on the 6th day of March aforesaid, the -said plaintiffs, in reply to the said application, gave the said Hiram Paddleford to understand and be informed, that the plaintiffs were not discounting notes, at the then present time, but that money might be obtained from the plaintiffs upon a bill on New York, Philadelphia, or Baltimore, payable six months after date, and -drawn by the said Paddleford, Starling, Swayne, and Miner; that thereupon and in pursuance of said suggestion of the said plaintiffs, the said bill in the declaration was signed for the purpose of being presented to the said 'plaintiffs to be by them discounted, .and thereupon afterward, to wit, on said March 14, 1837, the said Hiram Paddleford presented the said^bill so signed as aforepaid to the said plaintiffs, to be by them discounted, and thereupon, to wit, ■on the day and year last aforesaid, at Chillioothe, to wit, at the county aforesaid, it was unlawfully, usuriously, and corruptly .agreed by and between the said Hiram Paddleford and the said plaintiffs, that the said plaintiffs should then and there discount the said bill for more than six per cent, per annum, to wit, that the said plaintiffs should then and there discount the said bill and advance the said Hiram Paddleford thereupon the sum of $4,725.78 and no more; and the said Noah H. Swayne and William Miner-aver, that'in pursuance of said usurious, corrupt, and unlawful agreement, the said plaintiffs did, afterward, on the day and year last aforesaid, at Chillicothe, to wit, at the county aforesaid, discount the said bill for more than at the rate of six per cent, per annum, to wit, the said plaintiffs did then and there discount the-said bill, and advance to the said Hiram Paddleford thereupon the sum of $4,725.78 and no more, and'thereupon the said Hiram Paddleford did then and there deliver to the said plaintiffs, and the said-plaintiffs did receive and now hold, the said bill for the full amount of the said $5,000 specified therein, they, the said plaintiffs, upon the discounting the same as aforesaid, having advanced therefor, as the whole and sole consideration therefor, the said sum of $4,725.78 and no more. And the said Noah H. Swayne and William Miner further aver, that all the said several sums of money in the said-several counts of the said declaration mentioned, are the same sums of money contained and specified in said bill of exchange in the said declaration mentioned and declared upon, and not other or different; and the said bills of exchange in the said declaration mentioned, are one and the same bill of exchange and not other or different. *And the said Noah H. Swayne and William Miner further aver, that the discounting of said bill of exchange in manner aforesaid, was and is in violation of the laws of the land and of the articles of the plaintiffs’ corporation, and that the said bill in the hands of the said plaintiffs'is fraudulent and void in law, and this they are ready to verify,” etc.</p> <p>The second plea is like the first with only this difference, the sum alleged to have been received by Paddleford on the discount of the bill is stated at $4,796.67, instead of $4,725.78, as in the first plea.</p> <p>The defense set up in the third, fourth, and fifth pleas is substantially the same as in the first and second, although the facts are somewhat differently set forth.</p> <p>In reply, the plaintiffs say, they ought not to be barred because they say “that the said bill of exchange in the said declaration mentioned was drawn by the said Hiram Paddleford, etc., for a good and legal consideration, and no.t in pursuance of, or upon the said unlawful, corrupt, and usurious agreement, or for the purpose in the said plea of the said Noah H. Swayne and William Miner, mentioned in manner and form as the said Noah H. Swayne and William Miner have in their said first plea alleged, and the said president, directors, and company in fact say, that they purchased the said bill of exchange from the said drawers for a good and valuable consideration, to wit, for the sum of $4,725.78, and this the said president, directors, and company pray may be inquired of by the country,” etc.</p> <p>A similar replication was filed to the second, third, fourth, and fifth pleas, and an additional replication to the five-several pleas, precisely the same in form and substance as the replication to each plea separately.</p> <p>To these replications the defendants demur specially, assigning the following causes, to wit:</p> <p>To the first five replications.</p> <p>1. “ Each of said replications attempts to put in issue several and distinct matters, thereby tending to produce a multiplicity of suits upon the record.”</p> <p>2. “ Each of said replications tenders an immaterial issue.”</p> <p>3. “Each of said replications is multifarious, and presents a variety of points, but not one single point on which issue can be joined.”</p> <p>4. “ Each of said replications introduces new matter, and, therefore, ought to conclude with a verification.”</p> <p>*5. “Neither-of said replications set forth the time or place of the purchase of said bill, and for aught that appears, the purchase may have been made since the filing of the plea.”</p> <p>6. “Neither of said replications deny, or confess and avoid the plea which it assumes to answer.”</p> <p>7. “Each of said replications contains contradictory matter.” .</p> <p>To the sixth replication :</p> <p>1. “It tenders an immaterial issue.”</p> <p>2. “It ought to conclude with a verification.”</p> <p>To all the replications :</p> <p>1. “ The plaintiffs have put in two replications to each plea con-.taining distinct matters.”</p> <p>2. “Other causes.”</p>

This was an action of ejectment from Wayne county. The facts were agreed by the counsel for the plaintiff and defendant, and are fully stated in the opinion of the court. The case was argued by Avert, Silliman and Cox, for the defendants. Jarvis, who was counsel for the plaintiff, submitted it without argument.

<p>A bill of exchange drawn upon a person in Ohio, payable in New York, and protested for non-payment, does not entitle the holder to six per cent, damages for protest.</p>

The ■plaintiff in error was indicted at the November term, 1837, under section 28 of the act of March 7, 1835.

<p>This cause was adjourned from the county of Hamilton, and came before the court, upon a motion, by the defendants, for a new trial. The facts material to the point decided are these. The proprietors of the city of Cincinnati, at the time .of originally laying out the grounds for a town, set apart the ground in controversy for a public use, designating the lots, on the map, with red ink, and indorsing a note in these words: “ The town lots given for public uses are numbered and painted with red ink." The first settlers planted their first church on a part of these grounds, and continued to occupy them from that period, 1790, to the commencement of this suit. As early as 1807, the First Presbyterian Church was incorporated, and from that time exercised exclusive ownership over the grounds in respect to the grave-yard, and other appurtenances. A great deal of other matter was involved in the litigation, which does not affect the decision *of the court. At the trial, the defendants claimed the protection of the statute of limitations. But the court instructed the jury that the statute did not run against the claim of a town or city to property dedicated for public uses. The error of this instruction was one ground alleged for a new trial.</p>

The defendant in error brought debt, in the common pleas, against Greene and six others.

<p>This bill was filed in this court by the complainants in persuance of an act of the general assembly of the State of Ohio, entitled “.an act to carry into effect the acts heretofore passed for the relief of James Hampson and John S. Parkinson,” enacted on March 5, 1838. 36 Ohio L. L. 170. The case, so far as is necessary for the proper understanding of it, is stated in the opinion of the court.</p> <p>It was argued by H. Stanbery and H. Curtis, for complainants, and by Yinton for the state.</p>

Covenant reserved in Hui’on. The defendant being in default for want of plea, a jury was impaneled to assess the damages, and upon the return of their verdict, the counsel for the defendants moved in arrest of judgment; the questions arising upon that motion were reserved for decision here. The state of the case upon which the decision of the court rests, is fully stated in the opinion of the judge.

<p>Whffrh partners manifest an intention to hold land as partnership stock, and." sell it as such, dower can not he claimed in such lands to the prejudice of partnership creditors.</p>

Petition for partition from Champaign county. The facts are these: In 1833, Ackery Berry, by will, devised to his three sons as follows: “ First of all, I do give unto my son, David Berry, the one third part of all my land that I now have in possession. And the above, named David Berry is to have his third part off the east side of ■my land, to be divided from the rest by running of a straight line from north to south.

<p>"When a third person claims goods levied hy a sheriff on execution, and prosecutes his claim under sections 6 and 7 of the'law regulating judgments and executions, such claimant can not afterward have an action of trespass against the sheriff for the same goods.</p>

In chancery, from Seneca county. The bill alleges, that in May, 1831, a prosecution for forgery was instituted by the complainant against the defendant Adams, before xi justice of the peace, and that, on examination, Adams was discharged, owing in a great degree to the skill and ability of an attorney employed by him.

<p>'The election of a prosecuting attorney may be contested before the court of common pleas; but the contestor must show in bis notices of contest that be was a candidate or elector at the election.</p>

Bill of review to reverse a decree of the court of common pleas of Highland county, for errors on the- face of the proceedings.

<p>These cases came before the court, at its last term, in Guernsey county, on bills, answers, exhibits, and testimony, and were reserved for decision in this court.</p> <p>The complainant, Robert Clark, filed his original bill in the court of common pleas in Guernsey county, on November 20,1834, in which he states that on December 24,1824, John Clark, by deed duly executed, conveyed to him 200 acres of land, in the first quarter of the second township, first range of military land in Guernsey county, for the consideration of $400, which deed has been duly recorded, but through mistake, was not recorded until September 24, 1831. That the price agreed upon for said land was $400, for $195 of which, the said John Clark was at the time indebted to him on note and book account, and that.the balance of the purchase money has been since paid. That he immediately took possession of the land, and has remained in possession ever .since, and still is in possession.</p> <p>He further states that the defendant, William B. Hubbard, about March 24,1826, as attorney for the judgment creditor, procured an execution to be issued on a judgment, before that time rendered in Belmont county, against the said John Clark, caused the same' to be levied on tbe said land, and about February 28, 1837, became the purchaser at sheriff’s sale; and that the said Hubbard threatens to dispossess him of said land, etc. It is further charged that at the time the éxecution was issued, and the levy and sale made, Hubbard had knowledge of complainant’s interest in the land. The prayer of the bill is, that the complainant may be quieted in his title, that Hubbard may be decreed to release, etc., and also for general- relic</p> <p>On April 2, 1835, Hubbard answered this bill. In his answer, he admits the purchase at sheriff’s sale, and avers that the land was soon after transferred to him on the books of the auditor of the county for taxation. He denies that the complainant has any title to the land, and charges that if the complainant has any deed, the same is fraudulent and against law. He denies that he had any notice of complainant’s claim, until after his purchase at sheriff’s sale. He denies that the complainant has, or *ever had the possession of the land in controversy, but avers that immediately after the confirmation by the court of the sheriff’s sale, which was at the April term, 1827, he took possession of the land himself, •and has been -in the uninterrupted possession ever since. No deed was executed to him by the sheriff until March 31, 1835.</p> <p>The transcript of the record of judgment, executions, returns, orders of court, as'well as the sheriff’s deed, are referred to, and made part of the answer.</p> <p>To this answer a replication was filed, and testimony subsequently taken.</p> <p>On October 8, 1835, Hubbard filed his cross-bill. In this he states that he is the legal owner, and is in possession of the land in controversy. He charges that the deed under which Robert Clark claims title, and purporting to have been made by his brother, John Clark, was voluntary, fraudulent, and void at law, as against creditors and subsequent purchasers; that the said deed was not recorded until long after his purchase at sheriff’s sale, and long after that sale had been confirmed by the court. He refers to his answer to the original bill, and the exhibits therein made, and makes them exhibits in this bill. He further alleges that the said Clark is about to dismiss his original bill, gives out in speeches that he has the better title, or some kind of title, by which he is disquieted, etc.; and prays that his bill may be considered, as well a cross-bill as a bill for relief, that he may be quieted in his title, and that the said pretended deed of the said Clark may be delivered up to be canceled, etc.</p> <p>Robert Clark, in his answer to this cross-bill, refers to his original bill, and makes it a part of his answer, and avers that the facts therein stated are true, except as to the $195 therein stated to be a part of the price of the land. He refers to an account filed with the answer as showing the true state of the dealings between him and his brother John, taken from his own books; alleges that a note referred to in said account was given up Jo John Clark, and that the last payment on the account exhibited was made at the time of settlement, and was an even payment for the land of $30; denies all fraud, and insists that the purchase was bona fide, etc. This answer is not sworn to.</p> <p>There was some parol evidence in the case in addition to the papers exhibited; but as this evidence is commented upon in the court, it is not here stated.</p>

In chancery from Marion. The plaintiffs are judgment creditors of E. and S. Jeffrey, and claim the benefit of an assignment of their property, made by them to Ustick and others, their trustees. On May 3, 1837, R. and S. Jeffrey assigned to Ustick, Doty and Shunk, all their property, real and personal, enumerated in a schedule, in trust to sell, collect the avails, and apply them as follows: 1. To pay the expenses of the trust. 2.

<p>Ejectment from Tuscarawas county.</p> <p>Both parties claim title from Jacob Leonard, who was the patentee of the land from the government.</p> <p>On October 13, 1820, Leonard conveyed to Brehmer. On February 13, 1834, he conveyed the same land to Smith, under whom Northrup claims. The defendant was in possession, but had not recorded his deed. His deed was put on record on September 16, 1834, and Northrup’s on June 6, 1837. The plaintiff, though the youngest grantee, claims as an innocent bona fide purchaser, without notice, more than six months having intervened- between the execution and record of the deed to Brehmer. There was no evidence of notice in fact.</p>

The action was debt upon an arbitration bond. The declaration sets out the award by which Frost, the then defendant, was directed to surrender to Johnson a farm belonging to him which was then in Frost’s ¡possession, with the grain in the ground, and to pay 1173.76 damages, and also nine dollars of the costs of the suit.

<p>Since the passage of the act of March 16, 1838, “ declaratory of the law on the subject of mortgages,” all doubts are removed with respect to their priority, and whether executed before or since the passage of that act, they take effect from the time of their delivery to the recorder.</p>

The record shows a writ of certiorari from the court of common pleas, hy which proceedings, in forcible entry and detainer, before-two justices, were brought up and reversed.

<p>Trespass for mesne profits, from Hamilton.</p> <p>This-suit is brought to recover the mesne profits of a lot in Cincinnati, the plaintiff having obtained judgment in ejectment. 6 Ohio, 335. Upon trial to a jury, a verdict was obtained by the plaintiff for $1,030. The defendant’s counsel moved for a new trial, and the motion was reserved for this court. The motion is, “and the defendant moved the court to set aside the verdict and grant a new trial in this cause, because the court erred in rejecting evidence offered by the defendant.” The defendant had held possession of the lot under a lease made to him by Hargraves and wife, made in April, 1816. The fee in the lot was in the wife. Hargrave died in February, 1833. This lease was not executed as a deed, and this court has heretofore decided that the term expired with the life of Hargrave. 6 Ohio, 313.</p> <p>There was a clause in the lease providing that the tenant *“ should be at liberty to remove at pleasure all new buildings put by him on the premises.” The building on the lot was burned partly down, pending the ejectment, and repaired by the defendant. After verdict in ejectment, application was made to have the improvements valued under the occupying claimant law, and overruled by the court.</p>

This case was removed from 'the Supreme Court of the county ©f Trumbull to this court by writ of error.

<p>Petition for dower, reserved in the county of Montgomery.</p> <p>The complainants state in their petition, that the said SarahDerush, late Sarah Stearns, intermarried with one Orris Stearns; that during coverture the said Orris was seized in fee of certian town lots in the town of Miami'sburg, county of Montgomery, and of other tracts or parcels of land in said county, as specified in said petition; that the said Orris in his lifetime conveyed the said lands to the said Jenks Brown and A. C. Brown; that the said Orris in his lifetime and during coverture had an equitable in terest in certain other lands in said county of Montgomery, which he also disposed of to the said Jenks and A. O. Brown without the consent of the said Sarah; that the said Orris died in 1831, leaving the said Sarah his widow and relict; and that the defendants have the next estate of inheritance in the land in the petition described. The complainants pray that the said Sarah may be (endowed of the premises, both legal and equitable.</p> <p>To this petition, A. O. Brown, Mary Belville, and the heirs of 'Jenks Brown, by their guardian ad litem, have answered. Michael ■Gassilly is in default.</p> <p>The defense set up in the answer is, that Stearns purchased 'these lands as the agent, and with the property and money of the ■said Jenks and A. C. Brown, and took a conveyance of them in 'his own name as their trustee, and that in- the settlement of their ■ concerns, he released to them any and all claim in the land.</p> <p>The case was argued at length by Lowe, for the complainants, .and Odlin, for the defendants. But as these arguments were principally upon the facts, it is unnecessary and would be difficult to .abstract them.</p> <p>On the part of the complainants, the following authorities were cited: 7 Johns. Ch. 243; 2 Vern. 436; 5 Johns. 412; 1 Ohio, 535; 7 Ves. 454, 425; 9 Ves. 500: 1 Ves. jr. 431; 5 Ves. jr. 189; 4 Johns. Ch. 604, 605, 482; 6 Johns. 290.</p> <p>On the paid of the defendants, the following: 1 Johns. Ch. 582; 2 Johns. Ch. 405, 409; 3 Johns. 216; 2 Sugden, 152; Gow on Part 255; 5 Ves. 189; 17 Ves. 298; 1 Ohio, 542; 4 Kent’s Com. 50; 3 Blackf. 7; 1 Taunt. 141; 1 Cr. Dig. 154; Bac. Ab. 380.</p>

Ejectment from Greene. The facts in this case are agreed, and show that the plaintiff makes title under the heirs of Andrew Goudy. The title of the defendants depend upon the validity of certain proceedings in the court of common pleas of Greene county, at the instance of the ^guardian of those heirs, These proceedings are sufficiently shown in the opinion of the eours.

This was a petition in chancery for dower, which was heard upon the following state of facts : In the year 1803, the defendant intermarried with Geo. W. Allen, who was then seized in fee of seven half sections of land* each containing 320 acres, all situate in the refugee military lands, and lying in the counties of Franklin,'Fairfield, and Licking, in the State of Ohio, as those counties were bounded when the petition was filed. In the year 1805, Geo.

Reserved in the county of Muskingum. The declaration in this case is in assumpsit, containing the •common count. Plea, general issue, with notice of set-off. At the last term of the Supreme Court,'in the county of Mus•kingum, a jury was sworn to try the issue.

<p>A conveyance in trust may be canceled by a decree in equity, so as to bind the interests of all, though the cestuis qui trusts be not made defendants.</p>

This case came from the county of Hamilton. The bill alleges that the complainants were the owners of $7,000 worth of books, in the custody of William D. Jones, to be by him forwarded to complainants, at Alexandria, Louisiana. That they directed Jones to have the goods insured.

<p>This case was submitted to the jury, on the last circuit, in the county of Cuyahoga, and reserved for decision in this court, on a motion filed by the defendant’s counsel for a new trial. The action was founded on a negotiable note for the sum of $800, payable six months after date, to the order of the defendant, at the Bank of Cleveland, signed by Luke Ripley, and by the defendant indorsed to the plaintiff. The defendant plead the general issue, and gave notice of set off in the usual form.</p> <p>On the trial, the plaintiff, after having given the note in evidence to the jury, offered other proof, which was objected to by the defendant’s counsel, but admitted by the court, and which was as follows: T. C. Severance testified that he was, at the time, teller in the Bank of Cleveland, and that the note was left at the' bank for collection, before it became due. That, on the last day of grace, it was protested for non-payment, and a written notice thereof made out by the witness and deposited in the post-office of the city of Cleveland, between the hours of four and *six o’clock, in the afternoon of the same day. That the defendant resided at the time in said city, and was the keeper of a public house, midway between the bank and.the post-office; that the" bank, public house, and post-office were on the same street, and on the same side of the street; but the witness did not know whether or not the defendant was at home, when he left the notice at the post-office.</p> <p>John Tomlinson, a clerk in the post-office, testified that the defendant rented a box in the post-office, in which were placed, by his direction, all letters and papers which came to the office, directed to the defendant, and other members of his family; and that the contents of the box were called lor daily, or more frequently, by the defendant in person, his barkeepers, servants, or by one Sartwell, a stage agent, boarding with'the defendant; and it was admitted on the trial, by counsel, that all the letters and papers of the defendant, or members of his family, taken from the office by Sartwell, were delivered by him to the defendant, or to some one of his barkeepers. ' It was further admitted, on the trial, that there was, at the time, no penny-post, who distributed letters through the city of Cleveland.</p> <p>Luke Ripley, the maker of the note, testified that after the note became due, it was his impression the defendant called on him and requested him to have the note paid.</p> <p>On this evidence, the jury found a verdict for the plaintiff, and the defendant’s counsel submitted a motion for a new trial for the reasons as they appear on record:</p> <p>1. That the verdict is without evidence.</p> <p>2. That it is against the evidence; and,</p> <p>3. That it is against the law.</p>

Reserved in the county of Clinton. This is an action of ejectment for a tract of land in Clinton county. The cause was submitted to a jury at the last term of the court in that county, and, by consent, a verdict taken for the plaintiff, subject to the opinion of the court on the questions of law arising in the case.

<p>Debt upon a judgment rendered in the State of New York, in 1826, reserved in Cuyahoga county.</p> <p>The original suit was founded on a note given by the defendant, then, and for some time after, a citizen of New York, within which the corporation plaintiff exists. The defendant’s plea in bar sets up a discharge under the insolvent law of New Yerk, reciting particularly the proceedings, from which it appears that; Card, then a citizen of Ohio, being in Buffalo on business, was arrested on civil process, and filed his petition for discharge under the insolvent law before Burnett, first judge of Erie county court, of the degree of counselor at law, who assigned a day for hearing, but being absent from the county *on that day, one of</p> <p>the judges of the county court appeared, heard the application, and granted the discharge, etc. The replication admits the proceedings and discharge, but allege they are coram, non judice and void, because the judge of the county court, who ordered the discharge, was not of the degree of counselor at law.</p> <p>To this replication there is a general demurrer and joinder. The only question raised is, whether the judge of the county court, not of the degree of counselor at law, had authority to hear the application and grant a discharge?</p>

<p>This case was adjourned from the county of Hamilton.</p> <p>The whole matter of it is explained in the opinion of the court.</p>

<p>Assumpsit, reserved in Muskingum county.</p> <p>The issue of fact, on non assumpsit, was submitted to the court under the statute, instead of a jury. The facts, agreed by counsel, are as follows:</p> <p>That the defendant, Johnson, resided in Martinsburg, Knox ^county, in May, 1837, and had for years carried on an extensive business as a merchant. The 2d of January, in that year, he was indebted to the plaintiffs, who resided in Philadelphia, Penn., more than $3,000 for moneys lent to him by them, and Van Amringe called upon him at Martinsburg for payment, but obtained nothing. On that day Van Amringe and Johnson rode together to Nashport, where the defendant, Anderson, resided, and had astore, in connection with Johnson, conducted under the name of Johnson & Anderson. They arrived late in the afternoon, and took lodgings near the store. In the evening Johnson called on Anderson, and inquired if he did not want money? Anderson replied, he could use it if he had it. Johnson then said, he was going to Zanesville the next day and would try the banks; that it was best to draw two notes for $1,500 each, and if he could get the $3000, $1,000 of it should go to the Nasbport establishment. He then wrote in figures, $1,500 at the top on the left hand of two pieces of paper, and he and Anderson and Shipley signed their names, iollowing each other, to each piece of paper, on the right hand, some distance from the top, leaving room, and intending to have promissory notes written over their signatures. Johnson took the papers, returned to his lodgings, and handed them to Van Amringe, who dated them January 2, 1837, and filled them up as notes, for $1,500 each, one at ninety days after date, payable to the order of the plaintiffs at the Bank of Granville; the other in like manner1, at four months. Upon these notes this suit is brought. Van Amringe and Johnson left Nashport the next morning, the former not having visited the store or met Anderson during his stay. Van Amringe received the notes of Johnson in part of the plaintiffs’ account against him, and gave him credit on account for $3,000. He left them at the Granville Bank for collection, where they were protested for non-payment, and the plaintiffs then charged them to Johnson. Johnson, up to May, 1837, was in good credit, supposed to have ample means, and responsible for a much larger sum than $3,000; but about that time absconded totally insolvent, leaving the plaintiffs wholly unpaid, and without other security than the notes.</p>

Reserved in the county of Ross. This case came before the court upon bill, answers, replications exhibits, and testimony. The facts of the cases are stated in the opinion of the court, so *far as the same áre necessary to the proper understanding of the points decided. The case was argued at length by T. Scott and Leonard, for the complainants; and by H. Stanbery, for the respondents. On the part of the complainants, the following authorities were cited : 2 Eq. Cas.

<p>Error to the common pleas of Muskingum.</p> <p>Fisher sued Peabody in the court below as drawer of two bills of exchange for $298.58, both dated June 16, 1836, one at eight and the other at ten months. His declaration is in three counts, viz: .</p> <p>1. On the bill at eight months.</p> <p>2. On the bill at ten months.</p> <p>3. The common counts for money had and received, and upon an account stated.</p> <p>Peabody demurred specially to the first and second counts. To the third he pleaded non assumpsit as to the money had and received ; and as to the account stated, moved to strike that much out.</p> <p>The demurrers were heard and overruled, and, the cause being submitted to the court, judgment was rendered for the plaintiff To reverse which, Peabody brings this suit.</p>

■and publishing a note, “purporting to be issued by the Exporting, .'Mining, and Manufacturing Company’s Bank of Illinois,” and savers it was falsely and fraudulently published, passed, and put ■into circulation by Cahoon, he knowing that such bank never did, ,in fact, exist. Upon this indictment Cahoon was put upon his trial.

<p>On a sale of land for taxes, under the statute of 1822, the purchaser under the judgment obtains all the owner’s title, whether legal or equitable.</p>

Bill of review, reserved in Miami county. The case was argued, at great length, upon the facts, by D. S. G-rosvenor and Holt, for plaintiff; and R. S. Hart, and B. F. Powers, and Crane and Schenck, for defendants.

Trespass on the case, reserved in Cuyahoga. The ease is submitted to the court upon an agreed state of facts, which are fully stated in the opinion of the court.

Motion to change bail, on appeal from Richland. This suit came into the Supreme Court by appeal from the common pleas, bond, with security for the appeal, having been filed according to law. The appellant being desirous of availing himself of the testimony of the security in the appeal bond, moved for his discharge and for the substitution of other security, in order that the original security might be a witness for him.

<p>The franchises of a corporation can not be forfeited except by judicial sentence, nor can real estate conveyed to it be lost to its object by non-user.</p>

This is a bill filed in the county of Mercer, to review a decree in the Supreme Court, rendered in 1837, and reserved for decision in bank. The original bill, filed by the heirs of Huston, sets forth that he died seized of land, parts of which were sold in the due course of administration.