Volume 8 — Ohio State Reports, New Series

This is a Bill of Review to reverse a decree of the late Supreme Court, sitting in Hamilton county, at the April Term, 1847. Reserved in the District Court. In September, 1838, Charles S. Clarkson of Cincinnati, then an extensive pork packer, went to the eastern cities for the purpose of raising money to prosecute his business the ensuing season.

At the March term, 1857, of the court of common pleas of Morgan county, the plaintiff in error was indicted for the crime of purposely, and of deliberate and premeditated malice, aiding and abetting Philip Eouts in the murder of one Benjamin P. Scott, on the 28th day of October, 1856.

Writ of error to reverse tb.e judgment of the Common Pleas of Marion county. The plaintiff in error was indicted at the November term, 1857, of the common pleas, for the murder of Nancy Holly, by administering poison.

This is a writ of error to the Court of Common Pleas of Jefferson county. At the October term, 1856, of that court, the plaintiff' in error was indicted for forgery.

Plaintiffs commenced a civil action before a justice of the peace, in Hamilton county, to recover of defendants two hundred and twenty-eight dollars in money, for the alleged conversion of personal property belonging to plaintiffs. A trial was had before the justice, and judgment rendered in favor of plaintiffs for eighty-eight dollars and costs. Defendants appealed to the court of common pleas, where a judgment was obtained in their favor.

<p>In error to the District Court of Lucas county.</p> <p>The defendant in error brought a civil action before a justice of the peace of Lucas county, to recover of the plaintiff in error, an amount of principal and interest exceeding two hundred dollars, due on a promissory note, and recovered a judgment for the sum of two hundred and twenty-one dollars, and costs. The plaintiff in error appealed to the court of common pleas, where a similar judgment was rendered, from which he attempted to perfect an appeal to the district court, by giving notice, filing an approved bond, etc.</p> <p>The district court, on motion of the appellee, dismissed the appeal for want of jurisdiction; and thereupon proceeded to order each party to pay his own costs, made subsequent to the rendition of the judgment in the common pleas, and execution to issue on their default.</p> <p>The plaintiff in error claims that the district court erred—</p> <p>1st. In dismissing the appeal.</p> <p>2d. In ordering the payment of costs.</p>

Campbell sued Beckett for the rent of certain lands occupied and cultivated by one Arthur, during the season of 1854. The facts relating to the merits of the case are not stated, because not essential to an understanding of the point here decided. The issue joined was tried in the common pleas to a jury.

<p>1. When the plaintiff has but one cause of action, the facts cannot be subdivided so as to present, fictitiously, as might have been done under common law pleading, two or more causes of action.</p> <p>2. Where one cause of action is sot forth in two counts, as at common -law, the court may, on motion of the defendant, require the plaintiff to elect upon which count he will proceed.</p> <p>3. Where it appears, on the face of the petition, that the cause of action accrued at such a period, that, under the statute of limitations, no action can be brought, the defendant may demur to the petition, on "the ground that the petition does not state facts sufficient to constitute a cause of action. But if the objection does not appear on the face of the petition, and the answer does not set up the limitation, it must be deemed waived.</p> <p>4. The following provision in the charter of the Bank of Sandusky, makes the directors of the bank personally liable to an action of debt, at the suit of any creditor, for a penalty, measured by the amount of the excess therein mentioned:</p> <p>“ That the whole amount of debt which the said bank shall at any time owe, whether by bill, bond, note, or other contract, shall not exceed twice the capital stock actually paid in, exclusive of the sums due on deposits; and in case of any excess, this act shall thenceforth be null and void, so far as any privileges or advantages are by the same conferred upon the banking company thus created, and the directors under whose administration it shall happen, shall be liable for the same in their natural and individual capacities, in an action of debt against them or any of them, their or any of their respective heirs, executors or administrators, in any court proper or competent to try the same, by any creditor or creditors of said bank, and may be prosecuted to judgment and execution, any condition, covenant or agreement to the contrary notwithstanding, but this shall not be construed to exempt said bank, or the lands, tenements, goods, chattels or funds of the same, from being also liable and chargeable with such excess, and any director or directors who may be absent when such excess was contracted or created, or who may have dissented from the resolution or act whereby the same was contracted or created, may respectively exonerate themselves from being so liable, by having their dissent or absence entered on the records of said bank, and by forthwith giving notice thereof to the auditor of state, and to the stockholders, at a general meeting which they shall have power, and are hereby required to call, by giving ten days notice in a newspaper printed in the city of Sandusky, or having general circulation in Huron county, setting forth in such notice the cause for calling such meeting.”</p>

The original action was assumpsit, brought in the court of common pleas of Lucas county, under the act to provide for the collection of claims against steamboats and other watercrafts navigating the waters within and bordering on this state, and authorizing proceedings against the same by name. The suit was instituted by Thompson as the surviving partner of Robey, for materials, labor and supplies in the building, repairing, and equipping the boat.

<p>Under the “ act authorizing the trustees of townships to establish water courses and locate ditches in certain cases,” passed May 1,1854, where, upon appeal to the probate court, a commission of review has been appointed agreeably to statute, it is competent for such commission to report against the location of the proposed ditch in toto.</p> <p>Such report of the commissioners of review, if full, pertinent, and not impeached for fraud, is final in the case, and the judge of probate has no authority, under the statute, to set the same aside, supersede the commission, and appoint a second commission of review.</p>

Reserved in the District Court of Washington county. This, is a petition for the sale of mortgaged premises, to pay the debts secured by a mortgage which was executed by Snodgrass and his wife, now Julia Ann Douthitt, wife of John Douthitt, two of the defendants.

<p>The defendants’ intestate executed the following paper : “ For value received, I promise to pay to Mrs. Hamor, wife of John Hamor, the sum of $300, as a small recompense for the kindness shown to mo by her. The executors of my last will and testament are hereby directed to pay the above to Mrs. H., or her sons, Moses and John, after my decease. “Attest: Philip Eraos. JOHN E. MOORE.</p> <p>“Feb. 28, 1850.”</p> <p>And delivered the same to the subscribing witness with injunctions to deliver it to Mrs. Hamor after his death; which was done. Held:</p> <p>1. That this was not a gift inter vivos, nor a gift causa mortis, nor was it good as a testamentary disposition.</p> <p>2. That the “kindness” mentioned in the paper, being acts of friendship and hospitality merely, done and accepted at the time as gratuitous, does not, in law, constitute a good consideration to support the express promise.</p>

<p>The territorial limits of the State of Ohio extend on the southeast, at least to the line of ordinary low-water mark, on the northwest side of the Ohio river.</p> <p>A reviewing court is not bound to notice errors which are not specially assigned; and will not do so where substantial justice does not require it to be done.</p>

Reserved in the District Court. The plaintiff in error filed his petition against the defendant in error in the common pleas of Sandusky county, alleging, in substance, that he was, at the time of the injury thereinafter complained of, in the employ of the defendant, and, with others, was, at the defendant’s instance, engaged in working upon the track of defendant’s road, which was then in use for the running of trains.

Reserved in the District Court. The original action was commenced by the plaintiff, on the 30th day of August, 1853, in the court of common pleas, to recover of the defendants $200 and interest, for a year’s rent, claimed to be in arrear, and due him from the defendants.

<p>In Error to the Common Pleas of Morgan county. Reserved in the District Court.</p> <p>The case is stated in the opinion of- the court.</p>

In Chancery. Reserved in the District Court of Eayette county. Francis Dade, holding a land warrant for some four thousand acres of land, in consideration of his services as an officer in the Virginia line, in the revolutionary war, died intestate in Virginia, in 1802, leaving three minor children, Lawrence F. Dade, James Dade, and Mary J. Dade, his heirs at law, who became entitled to the lands.

This is a petition in error to the District Court of Wood county.

<p>Section 562 of the code, which gives to the party against whom judgment is rendered, in an action for the recovery of real property, a right to demand another trial, hy notice on the journal, does not apply to actions of ejectment pending when the code took effect.</p>

<p>1. Where the petition, in an action for rent, alleges as the basis of the amount of rent, an appraisement “ duly and legally madeand the answer, instead of stating in what particular the appraisement is illegal, alleges that “ the appraisement was not legally and duly made,” the answer may be subject to motion under section 118 of the code, on account of indefiniteness; but if the parties proceed to trial on the issue, the objection is waived.</p> <p>2. Where the issue made by an answer involves a deduction or conclusion of law, it is not bad on error, if the language of the allegation, according to its ordinary meaning, contains a fact constituting a defense.</p> <p>3. Where two leases of school lands, under the act of 1817. 2 Chase Stat. 1026, vest by assignment in one person, the two tracts cannot be appraised as one entire tract or farm; the trustees being entitled to the benefit of any enhanced value arising from the original severance, and the assignee to the benefit of any enhanced value arising from the two lots having been united into one entire farm or tract.</p>

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

<p>Motion for leave to file petition in error to the Superior Court of Cincinnati.</p>

<p>Error to the Probate. Court of Jefferson county.</p>

The testimony, embodied in the bill of exceptions in this case, presents the following state of facts : M. Werk & Co., the plaintiffs in error, doing business in Cincinnati, had dealings with Harbaugh & Son, of Springfield, Ohio; and the usual course of their business transactions was such, that M. Werk & Co. made remittances, from time to time, in payment of balances due to Harbaugh & Son, in checks drawn on Cincinnati banks, and forwarded to Springfield by mail..

This is a writ of error to the court of common pleas of Hamilton county. The case is stated in the opinion of the court.

The record shows the following state of facts: On the 15th day of December, 1852, the plaintiff caused one Aaron Lytle to be arrested upon a writ of capias ad respondendum sued out of the court of common pleas of Wayne county.

This is an application for leave to file a petition in error in this court to reverse a judgment of the court of common pleas of Wood county, rendered on the 15th of February, 1859. The question presented to the court below arose on demurrer to the petition of the plaintiff, who is now plaintiff in error.

This is an application for a peremptory mandamus to enforce the payment of wages to the relator for teaching school.

Demurrer to special plea in bar. The plaintiff brought assumpsit in the court of common pleas of Darke county. The case was appealed to the district court of the county, and thence reserved to this court.

This is a petition in error to reverse1 the judgment of the District Court of Lucas county. The original action was brought by George Ery, the defendant in error, against John B. Clark, the plaintiff in error, and one Milton G. Freeman, to recover damages occasioned by the fall of Fry into an excavation made in Summit street, in the city of Toledo, in front of a lot owned by Clark.

Bill or Review reserved by tbe District Court of Hamilton county. Tbe principal question in tbe case related to tbe validity of tbe will of John Riddle, deceased. In 1847, tbe will was admitted to probate by tbe court of common pleas of Hamilton county.

This is a motion for a writ of error to reverse the judgment of the Court of Common Pleas of Miami county. In December, 1858, Becker was indicted in said court for a violation of the first section of the act of May 1st, 1854, “to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio.” Swan’s Rev. Stat. 898.

This is an application for a peremptory mandamus to compel tbe trustees of Union township, in Fayette county, and tbe treasurer of said county to pay tbe over due interest upon certain bonds issued by said trustees to tbe Dayton, Xenia and Belpre Railroad Company, and by that company indorsed to tbe relators.

This is a petition in error to reverse a judgment of the District Court of Portage county. Suit was originally instituted in the Portage common pleas, by the plaintiff in error, against the defendant in error, L. A. Seymour, H. E. Judd and W. D. Mann, jr., on the following note: $3,005 [No. 453.] $2,000 Ravenna, Ohio, July 25th, 1851.

In Error, to the Court of Common Pleas of Geauga county. Reserved in the District Court. The facts are substantially as follows : . On the 31st of March, 1846, Vincent obtained a judgment on confession against Kelley and others, in the court of common pleas of Geauga county. On the 24th of April, 1855, an alias vendi exponas on this judgment was issued, and certain of Kelley’s lands were sold.

In Error, to the District Court of Miami county. The original action was for the recovery of real estate, under the code. The petition alleges that the plaintiffs have the legal estate in, and are entitled to the possession, and that the defendants wrongfully withhold the possession from the plaintiffs of a certain tract of land described in the petition, and that for nineteen years the defendant has wrongfully kept the plaintiffs out of the possession of said land.

Petition for dower. Reserved in the District Court of Brown county. The plaintiff in this cause filed her petition in the court of common pleas of Brown county, claiming dower in certain premises, as the widow of Tarpley Jones, deceased, and setting forth that the defendant is entitled to the next immediate estate of inheritance.

<p>1. In the trial of an indictment for maliciously stabbing with intent to wound, it is not error for the court to refuse to charge the jury that they cannot rightfully convict, save for an assault or assault and battery, if they find the facts to be such that, had death ensued from the wound, the crime would have been manslaughter; nor is it error for the court to charge the converse of the proposition requested to be charged.</p> <p>2. Evidence of the intoxication of the defendant at the time of committing the act for which he is indicted, having been admitted on the trial in view of its bearing on the question of intent, it is not error for the court to refuse to charge the jury that such intoxication is “ a circumstance proper to be taken into consideration by them, and should have its just weight in determining the malicious intent.”</p> <p>3. The above holdings do not contravene the principle decided in Pigman v. The State, 14 Ohio Rep. 555.</p>

Tbe original action was ejectment brought by tbe plaintiff in error, before tbe code of civil procedure, in tbe court of common pleas of Hamilton county, and tbence transferred to tbe superior court of Cincinnati. Tbe case was submitted to tbe superior court on tbe trial at special term, and tbe court found for tbe defendant in error. Thereupon tbe plaintiff in error moved for a new trial, on tbe ground that tbe finding of tbe court was against tbe law and tbe evidence.

In Chancery; Reserved in Preble county. Tire complainants are the heirs at law of Joseph S. Hawkins, deceased. ■ The defendants are his late administratrix and widow,' and others. Erom the bill, answer, exhibits and testimony, the following facts appear, substantially: In April, 1852, Joseph S. Hawkins began to erect a dwelling house for himself and wife to live in, in the village of Eaton, in said county.

<p>Where, by a clause in a policy, it is provided that, “ the insurers shall not he liable for the expense of dockage, or hauling out for repairs, nor for any loss (except in case of general average) unless the necessary repairs, caused solely by the disaster, shall amount to ten per cent, on the agreed value in the policy if, by means of a peril insured against, repairs become necessary which are invariably made on a dry dock. Held:</p> <p>That a fair and reasonable charge for the use of the dock whilst such repairs are being made, forms a proper item in .the cost of repairs; and by a proper construction of said clause, is not to be excluded in a computation to determine whether it is a ten per cent. loss.</p>

Civil Action. Reserved in the District Court of Lucas county. This action was commenced in the court of common pleas of Lucas county, April 2,1855, and at the July term, 1855, the defendant had judgment. The plaintiffs appealed to the district court, and that court reserved the cause for decision here. The case stands on petition and answer, and the evidence is contained in the agreed statement of facts.

Reserved in the District Court of Clermont county. The petition in this case was filed by the guardian to sell the land óf his wards, and to quiet title. The facts in the case are these: James Sanders, sr., died August 12th, 1822, intestate, seized in fee simple of about one hundred acres of land, situate in Clermont county, leaving Keziah, Margaret, James G., and Elizabeth Ann Sanders, his children and heirs at law, and Elizabeth Sanders, his widow.

<p>In Error to the District Court of Butler county.</p> <p>The case is stated in the opinion of the court.</p>

Bill oe Review. Reserved in the District Court of Knox county. At the spring term, A. D. 1851, of the Knox county common pleas, the respondent recovered a judgment on warrant of attorney, against W. H. Sigler, S. A. Sigler, Jacob Sigler and John Welch, for $582 and costs of suit, on a bill of exchange, with warrant of attorney attached, purporting to have been executed by said parties, and bearing date February 12, 1851, payable at ninety days.

<p>Where A had, by letter, requested and authorized B to make sale of a tract of ■ wild land for him, and B, in accordance with the request and authority as expressed by the letter, made a contract of sale and received part of the purchase . money, and gave possession of the land to 0 for A, in accordance with the contract, shortly after the death of A, but without knowledge of that event, and 0 afterward paid the residue of the purchase money due on the contract, to the guardian of the heirs of A, on demand thereof; and afterward, the heirs having brought an action to recover possession of said lands, and C having, thereupon, commenced suit against them to enjoin their proceeding in such action: Held—</p> <p>1st. That the death of the principal, as a general rule, is a revocation of the agency by operation of law. 2d. That the transaction being a matter in pais, and not by deed, or necessary to be done in the name of the principal, and being in good faith on the part of B and C, and within the apparent authority of B as so expressed by A, without knowledge of his death, the heirs and representatives of A are estopped to deny such apparent authority of B, and the contract is obligatory upon them.</p>

This was an action brought by Rottier and Hoenig, the plaintiffs below, against Francis Fortman, the defendant below, to recover damages for his having, as they allege in their petition, falsely, maliciously, and without any reasonable or probable cause, made an affidavit that they, the plaintiffs below, were about to convert their property, or a part thereof, into money, for the purpose of placing it beyond the reach of their creditors; and for having falsely, maliciously,…

<p>A covenant on the part of a debtor to pay the debt out of the first moneys received from a particular fund, but which gives the covenantee no present right in or control over the fund, save through the covenanter, and looks to the future acts of the covenanter to render the fund available, does not operate as an equitable assignment of the fund to the covenantee.</p>

Civil Action. Reserved in Union county. In the year 1855, the trustees of Paris township, purchased of Samuel A. Cherry, ten acres of land for a township cemetery, and received a conveyance of the land; and to pay for the same, caused township orders to be issued.

Tbe Cleveland, Columbus and Cincinnati railroad track intersects a public highway in the village of Ashley, in the-county of Delaware.

<p>Where a record of a proceeding in. the court of common pleas, to subject lands of a decedent to the payment of- debts, upon the petition of the administrator, under the statute of 1831, sets out that it was “shown to the court that due notice had been given to the defendants : ” Held—</p> <p>That this language imports a finding by the court that the notice which the law required, under the cirumstances, had been regularly given. Evidence will not be received to contradict this finding of the court. Where jurisdiction is shown, or must be presumed, the judgment or order of the court cannot be collaterally impeached.</p> <p>Where a subscribing witness to a deed or other instrument of writing resides beyond the reach of the process of the court, the rule seems to be, that his handwriting may be proved.</p>

<p>Where the legislature, in the constitutional exercise of the right of eminent domain, authorizes an act, the necessary consequence of which is to injure the property of another, and at the same time prescribes the particular mode in, which the damages shall be ascertained and compensated, giving to the injured party the right to resort to the same, the person or corporation acting under such authority, and within the scope thereof, is not a wrong-doer, nor liable ' to an action for a tort, but must be proceeded against under the statute remedy.</p>

<p>1. In an action against husband and wife for an assault and battery committed by her, she cannot control the management of the defense, or a compromise of the action, against the wishes of her husband; and if he confess judgment for himself and wife, the court will not interfere at her instance, on the ground that she did not consent, or that she objects to the compromise.</p> <p>2. Section 29 of the code, which provides that if the husband and wife be sued together, the wife may defend for her own right; and if the husband neglect to defend, she may defend for his right also, is not applicable to actions lilte this, in which the trial and judgment must be joint, and no right of the wife separate from the husband can be passed upon, or recognized in the final order of judgment or the court.</p>

<p>Applications for the allowance of the writ of habeas corpus.</p>

<p>In Chancery. Reserved in tbe District Court of Hamilton county.</p> <p>Tbe bill is filed by tbe beirs at law of Matthew Benson, deceased, against tbe beirs at law of William Miller, deceased, and Rensselaer W. Lee and Jonathan Cilley, to redeem certain mortgaged premises in Cincinnati, in tbe possession of Cilley.</p> <p>Tbe material facts are as follows:</p> <p>On tbe 22d day of November, 1831, Matthew Benson gave a mortgage on tbe premises in controversy to William Miller, to secure tbe payment to him of a debt of three thousand dollars, three years from date.</p> <p>During tbe year 1832 Matthew Benson died, in possession of tbe premises, leaving tbe complainants bis beirs at law.</p> <p>On tbe 16th of August, 1832, Samuel Lewis, as administrator of Matthew Benson, filed a petition in tbe court of common pleas, stating that tbe personal property of tbe estate was but $427; that $600 bad been allowed to tbe widow for her years support; that tbe deceased owed Miller tbe $3,000, and also other debts specified; and prayed for a sale of tbe property.</p> <p>This administrator’s petition makes Mary Benson, tbe widow, and her six children, tbe present complainants, defendants. It states that the children are minors, and prays for a subpoena against all.</p> <p>A subpoena was accordingly issued on the 16th day of August, 1832, to the sheriff, commanding him “to summon Mary Benson, widow, and John Benson, Martin Benson, Margaret Benson, James Benson, G-eorge Benson, and Charles Benson, children and heirs of Matthew Benson, deceased, by Nathaniel Wright, their guardian, to appear before the judge of the court of common pleas at Cincinnati, forthwith, to answer a petition exhibited against them by Samuel Lewis, administrator of Matthew Benson, deceased, for sale of certain real estate, and this they shall in no wise omit,” etc.</p> <p>On said writ was the following indorsement of service:</p> <p>“I hereby acknowledge service of the within summons for all the defendants, as guardian ad litem, for the minors, and as attorney for the. widow. August 16th, 1832. Nathaniel Wright, guardián ad litem to John Benson, Martin Benson, Margaret Benson, J ames Benson, George Benson and Charles Benson, minor heirs aforesaid.”</p> <p>After these proceedings an order of sale was entered, and the property sold to Miller, the mortgagee. The sale was confirmed and deed made. Miller conveyed the property to Lee, and Lee to Cilley.</p> <p>On the 9th of January, 1851, the complainants filed their bill setting up the mortgage given by their father to Miller, alleging that Miller took possession under it, and ask to redeem, and for an account of rents and profits, etc.</p> <p>The defendants set up as a defense, the record of the administrator’s sale.</p> <p>The complainants claim that this sale is void, for the reason that they, the infant heirs of Matthew Benson, were never before the court, and that the court had no jurisdiction over them.</p>

Information in the nature of a quo warranto. On the 12th day of March, 1859, Christopher P. Wolcott, attorney general, filed in this court an information, giving the “ court to understand and he informed, that Walter Thrall, of the county of Pickaway, in the State of Ohio, is judge of the court of probate in and for said county of Pickaway, duly elected and qualified according-to law, and, as such, is duly commissioned, and is lawfully entitled to exercise the powers and…

In- Error to the Court of Common Pleas of Jefferson county. At the February term, 1856, of said court, George P. Clarke was indicted for forgery, and was put upon his trial upon the first count of the indictment, which was as follows: “At a court of common pleas- began and held at Steubenville, within and for the county of Jefferson, and State of Ohio, on Tuesday, the nineteenth day of February, in the year of our Lord one thousand eight hundred and fifty-six, the grand…

<p>In Error, to the Court of Common Pleas of Lucas county.</p>

<p>Motion for the allowance of a writ of error to the Common Pleas of Clark county.</p>

<p>1. On a trial for rape, or for assault with intent to commit a rape, the acts and declarations of the husband of the woman on whom the offense is alleged to have been committed, are not admissible to discredit the wife examined as a witness.</p> <p>2. Whatever may be the rule elsewhere, it is settled in Ohio, that in a prosecution for rape, or for assault with intent, etc., “ the substance of what the prosecutrix said,” or the “declarations” made by her immediately after the offense was committed, may be given in evidence, in the first instance, to corroborate her testimony.</p> <p>S. The character for chastity of the prosecutrix in this class of cases, cannot be impeached by evidence of particular acts of unchastity, but only by general evidence of her reputation in that respect. Nor can she be interrogated as to previous criminal intercourse with persons other than the accused himself; nor is such evidence of other instances admissible.</p>

<p>Where, after order of sale in partition, a judgment was recovered agaiust one of the defendants in partition and the premises were subsequently sold under said order to a stranger, and the sale confirmed, on bill filed by the judgment creditor to subject the undivided interest of his debtor, prior to said sale, to the payment of the judgment — Held:</p> <p>1. That the lien of the judgment upon the undivided interest -which the judgment debtor had at its rendition, was divested by the sale in partition and could not be asserted as against the purchaser at said sale.</p> <p>2. That such judgment creditor, on due application to the court having control of the proceeds of the sale, might have had the portion belonging to his debtor applied in satisfaction of the judgment.</p>