Volume 9 — Ohio Public Domain Citations

<p>When a promissory note is given in evidence under the money counts in as* sumpsit, no other defence will be received against it, than would he received if the note was offered in evidence under a special count upon it.</p>

Ejectment, reserved in Lucas. This case, was submitted upon documentary evidence and an agreed state of facts. The land in controversy is a part of section six, township four, of the Miami Reserve. This section crosses the river Miami of the Lake, and a portion of it is situated upon, the south and a portion upon the north side of the river.

<p>The Act incorporating the Cincinnati, Lebanon, and Springfield Turnpike Company authorizes the Company to collect tolls from mail and passenger four wheel stages, at the rate imposed on coaches.</p> <p>A clause imposing tolls upon “ coaches, chariots, and other four wheeled pleasure carriages,” includes stage coaches used for the conveyance of the mail, or of passengers.</p>

Trespass on the Case, for a nuisance in overflowing the plaintiff’s land. From Portage. At the trial of the issue of not guilty to a jury, *both parties claimed title to the land overflown, derived from Frederick, George, and John Haymaker.

<p>Where the wife joins her husband in a mortgage containing a renunciation of dower, a sale of the land by the administrator of the husband for the payment of his debts extinguishes the right of dower, and transfers an unincumbered title to the purchaser.</p>

Ejectment for an undivided tenth part of a piece of ground about 54 feet front, part of lots 101 and 102, on the north side of Front Street, in Cincinnati. From Hamilton. Upon the trial to the jury, it was admitted that John Stall died in 1810, seized of the whole of the premises described in the plaintiff’s declaration, leaving five heirs,, of whom George W. Stall was one.

<p>Instructions given by a prosecuting attorney to constable having a warrant from a justice of the peace, to arrest a person accused of crime, do not bind the county to pay for the constable’s services and expenses.</p> <p>A constable, in serving a warrant to arrest a person accused of crime, out of the State, violates both public and private right, and such service is no consideration upon which a promise to pay can be implied.</p> <p>A constable entitled to fee, for pursuing a fugitive from justice, under a justice’s warrant, must procure a transcript of the justice’s proceedings with a bill of fees, and present to the county auditor, and if the auditoi refuse, in a proper case, to give an order for the fees due, he may be compelled by mandamus, but his refusal to audit the account will not raise an implied promise by the county to pay.</p> <p>It is.no part of the legal duty of a prosecuting attorney to attend to prosecutions in behalf of the state before justices of the peace: his duties are confined to the Courts of Common Pleas and the Supreme Court.</p>

Bill in Chancery. From Clinton. This case, in the pleadings ■and proofs, involves many enquiries unnecessary to be stated to elucidate the point decided by the court. The following statement will present the facts connected with the point decided. In 1822 Sabin then owning a tract of about seventy acres of land in Clinton county, united with his wife in a conveyance of fifty acres of it to the defendant, David M’Millan.

<p>Trespass quare clausum fregit will not lie against a corporation aggregate.</p> <p>Where several are sued jointly for a tort, which in point of law and fact •could not be joint, a demurrer is good for all.</p>

Assumpsit. From Tuscarawas. The plaintiff declared in the common counts, for work and labor, goods sold, for money had and ^received, lent, etc. The defendant pleaded — 1. Non-assumpsit 2. That they did not accrue within six years. 3. Non-assumpsit within six years.

<p>Where the Supreme Court decree a dissolution of the bonds of matrimony, a gross sum may be decreed to the wife, and also another sum every three months during tbe joint lives of tbe parties, as alimony.</p> <p>But such a decree, if erroneous, can not be questioned in resisting a sale upon execution under it.</p> <p>"Where alimony is decreed in a gross sum, or in instalments, the decree may be enforced by execution for such instalment as it becomes due, or any nnmber of instalments, due when execution issues, may be included in one writ.</p>

Complaint against a solicitor of this court, for mal-practice in his official and professional character. From Portage county. The relator states, that he, with Hand and others, were security for the payment of a debt by one M’Oúne ; that M’Cune deposited with Hand, in his character as attorney, sundry demands and notes to collect and pay over upon the debt, and thus relieve the securities from their responsibility.

<p>Where a lot of land is listed for taxation, together with eight others, and so advertised for sale, hut the assessment of tax is of one aggregate sum on all, a separate sale and conveyance of them by the county auditor is unlawful, and confers no title.</p>

Scire Eaoias, to revive a judgment in ejectment. Erom Clark. The writ recites that the plaintiff lately recovered a judgment in the-Supreme Court of the County of Clark, for certain lands and tenements, included in a military survey of five hundred acres, patented to Benjamin Hough, on the 31st of January, 1818, and which survey is within the County of Clark. That execution had not been had of' said judgment.

<p>"Where H. conveys to B. and Ms heirs (all residents in Virginia) land in Ohio upon trust, a sale made by another trustee substituted for B. after Ms death by the Court of Chancery in Virginia, is invalid.</p> <p>In such case the land descended to B’s heirs in trust, and the trust may be enforced against them, or by the Ohio courts.</p> <p>It would be difficult, since Wills v. Cooper, 2 Ohio, 126, to sustain an authority to convey a legal title .to land, except derived from its owner, or from a court of territorial jurisdiction</p>

Bills in chancery for injunction. From Cuyahoga county. The two bills depending upon the same principles of law, and similar allegations and proofs, were argued by counsel, and considered by the court, together. The bills assert that the Cuyahoga river at Cleveland, is a navigable river, declared so by the laws of Ohio, and within the ordinance of congress of 1787, and therefore a common highway, to be kept for ever free to the citizens of the state and of the United States.

<p>Under the act of 1816, legulating the duties of executors and administrators,, the court granting letters had the same power to direct the sale of real property of the decedent, lying in any other part of the state, as in the-county where letters were granted.</p> <p>An administrator can only sell his intestate’s real estate to pay debts upon the-express order of the court, after they have ascertained the necessity of such-sale.</p>

Replevin. From Huron. The plaintiff replevied three stacks of hay and thirty-five bushels of corn in the ear standing on the ground. The defendant pleaded, 1. Non detinet. 2. Property in himself, derived through a constable’s sale.

<p>Under the following will: “ I bequeath to my wife my real estate, in -order to raise my younger children, to have it as long as she continues my widow, but if she ceases to be my widow, I wish it not to be disposed of until the youngest child becomes of age,” no partition can be made among the residuary devisees until the majority of the youngest child, although the widow's estate may have become extinct.</p>

Debt. From Lorain. Suit to recover compensation for the support and maintenance of Samuel B. Wilgus, a pauper, claimed to be an inhabitant of Brownhelm. The case came on to trial before a jury in Lorain County upon the general issue. On the trial of this ease it was proven that Samuel B. Wilgus, then ■an infant, from the year 1829, until late in the fall of 1834, was occasionally in the township of Brownhelm, but had there, within that time, no fixed residence. .

In Ohancert. From Richland. The case made in the bill and substantially proven, shows : — That in 1807, Friend” gave his sealed note to Sook for seventy-five dollars, payable in nine-months or a year,. 'the parties then residing in Pennsylvania. Before the note matured, Friend moved to Ohio, without Sook’s knowledge. In 1829, Sook discovered the residence of Friend, and came to Ohio and demanded payment.

Bill in Chancery. From Warren. Lebanon was laid out and a plat surveyed in September, 1802, the site then being in Hamilton county. The plat was acknowledged and recorded in October, 1803, after the county of Warren was created, including the town. Four lots (those now in controversy) were designated on the plat, “public ■ ground,” and as such are claimed to have vested in the county for the use of the town.

<p>Assumpsit. From Seneca. The suit is upon a promissory note, made by Cronise to Samuel Leighton, and by him endorsed to the plaintiff. The note is for five hundred and thirty dollars, with interest, dated 8th of June, 1837, payable to the order of Cronise in six months. 'The defence is, that the note was given for real estate conveyed to the defendant by Leighton, and that 'since its execution and delivery to Leighton, the words, with interest, had been inserted in it, and testimony was adduced showing the fact. Leighton was then called by -the plaintiff, for the purpose of explaining the alteration, and that it was done with his and Cronise’s consent. The defendant then called witnesses to prove that they heard Leighton say he was interested in the note, and his offer to sell it. This was objected to, but admitted by-the court, and the witness Leighton, was then rejected. The plaintiff submitted to a nonsuit, and now moves to open it up, because the •court erred in the rejection of Leighton.</p>

Ejectment. From Wood. The plaintiff seeks to recover lot 315, in Perrysburgh. The ease was submitted to the court in the county, who expressed an opinion in favor of the defendant. The plaintiff then moved for a new trial, upon the ground that the court mistook the law arising upon the facts of the case, and that motion is now before the court. As the facts of the case are fully stated in the opinion of the court, it is unnecessary to state them here.

<p>Under the act of 1835, an assignment by a debtor creating a preference among creditors, is void as to the preference, though the fraudulent intent is confined to the assignor.</p>

Ejectmentío recover Lot 4, T. 5, R. 11, in the Connecticut Reserve. From Portage. The case is submitted upon the following facts:— The plaintiff exhibits a deed from the trustees of the Connecticut-*Land Company, to Ebenezer and Fidelio King, and a regular title under it to themselves. The defendant traces his title to' a tax sale made on the 24th of January, 1824, for taxes accruing during the years 1821, 2, 3.

<p>A deed of release is a substantive mode of conveyance in Ohio, and effectually transfers title, notwithstanding an adverse possession at the time of its •- execution.</p> <p>A will made in another state, takes effect from the death of the testator, and not from the date of its registry in Ohio.</p> <p>The registration of a foreign will in Ohio, is merely, to admit a copy as evidence.</p> <p>There is no statute of champerty in Ohio, and the English statutes are foreign ■ to our condition and inoperative.</p>

Debt. From Hamilton. The declaration recites a capias from the Common Pleas, on the 2d of October, 1832, against one Johnston, the defendant, his arrest, committal to prison, and discharge upon giving ;& bond for the jail limits, a judgment for three thousand seven hundred •and forty-four dollars and fifty cents, in the suit at April term, 1833, :and assigns for breach, that Johnston left the prison bounds' the day he was committed.

<p>•■Case will lie for falsely and maliciously suing out a writ of attachment against the plaintiffs’ effects to their injury, though it be admitted they were indebted to the defendant.</p> <p>Jl creditor’s false affidavit, that his resident debtor absconds is not probable cause for issuing an attachment against his effects.</p>

The suit below was by Kelly against Carpenter and his co-security for Thorpe, for a contribution. The plaintiff proved the giving of a note by W. and A. Thorpe, and the defendant and himself as sureties, for fifteen hundred dollars, which the plaintiff had paid, and that the Thorpes were compounding their debts by paying and securing fifty cents on the dollar.

<p>Tinder the attachment law of 1810, the title acquired by the purchaser at auditor’s sale, is preferable to the title of an alienee of the judgment debtor, by deed executed more than one year before the service of the writ of attachment,' but not recorded.</p> <p>"Where the Record in the attachment does not show that notice of the pendency of the suit had been advertised, the fact of publication may be proven by parol.</p>

Ejectments. From Hamilton. These suits depend upon the same title, and were heard together upon agreed facts. The plaintiff claims two undivided eighths of lot 92, and out lot 20 in Cincinnati. He shows a title in his lessors, by a deed from John Cleve Synimes, dated in August, 1795, conveying the land to them under the names of Abigail Cutter and Mary Cutter.

<p>Ejectments. From Hamilton. The first is for one eighth of lot 92, and the second for a part of out-lot, 20, in Cincinnati. The plaintiff’s title in both these cases is -the same, and the title of the defendants depends upon the same facts, so the two could be, conveniently., and were considered together.</p> <p>In 1795, the premises were conveyed by J. C. Symmes to Seth Cutter, Abigail Cutter, Mary Cutter, Rachael Cutter, Martha Cutter, Hannah Cutter, Hepsibeth Cutter and Abigail Woodward, heirs of Seth Cutter, deceased. The plaintiff holds the interest of Hannah, Mary, and Martha, and Abigail Woodward, and is one of the heirs to Hepsibeth and Hannah. He recovered the original eighth of Hepsibeth, in the suit in this court reported 8 Ohio, 87. He is entitled to judgments for the remainder in these suits, unless the rights have been transferred by the two following deeds : 1. A deed made by Hannah, then wife of Isaac Wetherbe, Rachael, then wife of William Dixon, with their several husbands, and Martha then a widow of Henry Gardner, of which a copy follows :</p> <p>“ Boston, Nov. 20th, 1804.</p> <p>“Know all men by these presents, that whereas John Cutter of Cincinnati, territory north west of the river Ohio, deceased, who died intestate, having left two lots of land, lying and being in said town, *and numbered on the plat of said town, 92 and 20 ; viz. one half acre lot No. 92. and one five acre lot No. 20; and whereas, I, Isaac Wetherbe, of Boston, Massachusetts, and Hannah my wife, and I William Dixon, yeoman,and Rachael my wife, of Charleston, together with Martha Gardner, widow, of Medford, but all of the state of Massachusetts, being three of the lawful heirs of the above mentioned John Cutter, deceased, do for ourselves, our heirs, executors, administrators and assigns, severally agree, for the valuable consideration of twenty-five dollars, to each of us in hand well and truly paid, before the ensealing and delivery hereof, by William Woodward of Cincinnati, we do by these presents oblige and obligate ourselves unto him the said Woodward, as well as our heirs and administrators, to resign, give np, and forever quit claim to him the said Woodward, and his heirs, all our right and claim in the above described lot, together with all-the privileges and appurtenances, thereto belonging. Given under our hands and seals.”</p> <p>This instrument is duly sealed, and attested, and recorded on the 25th January, 1805. It is acknowledged by Isaac Wetherbe, William Dixon, and Martha Gardner, only.</p> <p>2. A deed from William Woodward and Samuel Foster, given in 1808, and duly executed, in the testatum clause of which Mrs. Woodward releases her dower to the grantee, M’Clelland, under whom Dennison holds lot 92.</p> <p>The objections taken are, 1. That the first deed is a Contract only, not a conveyance. 2. That the estates of the wives do not pass by it without acknowledgement. 3. That the last deed affects the dower only, not the remainder of the wife.</p>

In Ciianoert. From Hamilton. This bill is brought to quiet the plaintiff’s title to lot 92 in Cincinnati, or to have partition of that lot and out-lot 20, late belonging to the heirs of John Cutter in such form, that the plaintiff who holds a part of the title may protect his possession of lot 92. The plaintiff holds by purchase from William Woodward and Samuel Foster in 1808. Woodward and Foster at that time claimed a ■ complete title to both lots.

<p>A verdict is not amendable by the Supreme Court as. a court of errors. Neither a plea of guilty in a criminal prosecution, nor the judgment founded upon it, are conclusive against the defendant in a civil action.</p> <p>Such plea stands like any other confession of. a party, and may be controverted.</p>

Error from the court in bank to the Common Pleas of Huron. The plaintiffs were jointly indicted in the Common Pleas with others. The three first counts charged the having and secretly keeping instruments for coining certain “ coins of silver called Mexican dollars, currently •passing in the state of Ohio as and for moneythe two last counts charged the making counterfeit coin.

<p>In assumpsit for instalments of stocks which are payable on the requisition of directors and on the publication of notice, the facts of requisition and publication must be set forth with convenient certainty of time and place.</p> <p>"Where a defendant demurs and tenders issues of fact to the same pleading, he should be put to elect one, and abandon the other.</p> <p>Quere? Where A. subscribes stock in a canal company, authorized to construct a canal from the Portage Summit of the Ohio canal, and the legislature afterwards authorize the construction, from some other point of the Ohio-canal, is A. liable to pay up his subscription ?</p>

Assumpsit. From Fairfield. The suit is against the defendants as joint makers of a promissory note. Upon non-assumpsit the following note was offered in evidence : $290, Lancaster, Ohio, July 27th, 1838. Ninety days after date, I promise to pay to the order of E. Bright, at the bank of Cleveland, Ohio, two hundred and ninety ^dollars, value received. G. Carpenter.” On the back of the note the name of “ C. Sehuer,” is endorsed in blank.

<p>When a judgment creditor levies on only a part of the debtor’s land, he loses his preference as to other lands, first levied on by other execution creditors. A writ of certiorari is adopted in Ohio to correct such proceedings in inferior courts, as are not in conformity with the common law.</p> <p>'The reversal by the Supreme Court, of an order setting aside an order confirming a sheriff’s sale, necessarily affects those claiming against the sale.</p> <p>A judgment creditor who is himself the purchaser at sheriff’s sale, is affected by error in the judgment under which he acquires title.</p>

Ejectment. Prom Miami. The ease was submitted to the court in Miami, upon an agreed state of facts, and now for decision upon those facts; but as they are fully stated in the opinion of the court, it is unnecessary to repeat them here.

<p>An order of maintenance under the bastardy act is a judgment of a court of competent jurisdiction, and can not be collaterally impeached.</p> <p>Such order may be enforced by execution as in other cases, the security given under the act being resorted to only in case of the inability of the defendant.</p>

Ejectment. From Athens. This case is submitted upon the following agreed facts : That Ebenezer Sproat was sheriff of Washington county in 1799, and John White his deputy : that a deed was made upon a sheriff’s sale of the property which, after reciting the receipt of writ of levari facias, dated.the 9th of April, 1799, his sale as deputy, proceeded ; “ I, John White, as well by the power and .authority to me given, as in the consideration of, etc., to me paid, etc., do…

Replevin. From Pickaway. The plaintiff, in support of his title, gave in evidence a bill of sale or mortgage from one Richardson, to himself, including the property in dispute, and a note made by Richardson to Isaac Hombeck, and endorsed to the plaintiff, which remained unpaid, and proved that after the time mentioned in the bill of sale for it to become absolute, viz. in December, 1838, the property remained in the possession of Richardson until April, 1839, and that…

Ejectment. From Licking. Upon trial to the jury, it was ad-•mitted that the plaintiff’s evidence made out a sufficient title in his ^lessors ; and the only questions raised were upon the defendant’s title, depending upon the validity of a deed from the auditor of Licking county to William Wilson, on a sale for taxes, under the act for the remission of penalties and for the sale of land for taxes, passed the 30th Jan. 1822.

<p>“Whore a tract of land is divided by a county line, leaving part in each county, each portion should, under the act of 30th Jan. 1822, be listed for taxation in the county whore it lies.</p> <p>A judgment against the whole tract is void, and the sale, confirmation, and deed, under such void judgment, of no validity.</p>

The first suit is case, and the second trespass. Prom Wood. The ■cases depend upon the same title, and the two suits are brought to .avoid the risk of defeat, by the form of action.

<p>Where an officer taking an acknowledgment of deed, describes himself as an officer whom the law authorizes to take it, he need not state the fact in his certificate, that he was so authorized.</p> <p>A recorder’s copy of a deed, thereon which is a certificate of an associate . judge in Pennsylvania, of proof having been made before him of its execution, in August, 1800, is competent evidenoe, under the act of 1831.</p>

Ejectmemt for a part of section 4. T. 6, R. 20. From Huron. ■Upon the trial, the plaintiffs proved themselves to be the heirs of James Thompson, late of the state of Connecticut, deceased, and claimed title to the land in controversy under a grant from that state; made on the 10th day of May, 1792. Thompson died in 1785, seven years before this grant was made.

Bill in Chancery. From Greene. The complainants allege, among other things, that at the August term of the Supreme Court iu 1833, they obtained a decree against one John Campbell, a non-resident* and Bobert Bogges a resident of Greene county, for five thousand two hundred and fifty-eight dollars, ninety-four cents, with interest and costs, and siso for the control of a judgment before recovered by said Campbell against said Bogges, for two thousand five hundred and three…

Bill in Chancery. From Stark. This is a bill of interpleader, seeking to distribute the surplus moneys produced by the sale of * mortgaged premises. The lands were mortgaged by Davis to Strong, in May, 1836. They were sold by the plaintiff, as master commissioner in chancery, and after paying the mortgage money and certain other incumbrances against them, the sum of $12,501, is left for distribution.

Ejectment. From Sandusky. The case is submitted upon an agreed statement of facts. The plaintiff claims the west part of the S. E. Qr. of frac., S. 2, 6 T. and 13 R. under a deed from Samuel Scribner, and the defendant under a sheriff’s deed, upon a judgment and execution against S. Scribner. The plaintiff’s deed was executed in New York, the 26th Dee. 1823, and recorded the 28th June, 1825.

Bill in Chancery. From Portage. The bill in this ease was-originally filed in the court of Common Pleas, and the cause was heard there upon the bill, answers, exhibits and testimony, and a decree rendered, by consent of parties, against the defendants. From this decree the defendants gave notice of appeal, and perfected the appeal by bail, according to law.

In chancery. From Huron. This bill seeks to quiet the complainant’s title to two hundred acres of land, in Danbury, Huron county. The facts of the case, as they appear in the pleadings,, exhibits, and evidence, appear (as well as they can be extracted from a mass of loosely drawn papers), to bo substantially these: Gabriel Yillard died intestate, leaving a widow, Josette, and three daughters, his heirs at law.

Ejectment, for lot 93, in Perrysburgh. From Wood. The plaintiff shows a patent from the United States, for the lot, dated in 1834. The defendant traces his title to a deed from the governor of Ohio, to McKnight, in 1830. The authority to make this-deed depends upon the extent of a grant made by act of Congress to the State of Ohio, in 1823, for the Black Swamp road.

Covenant. From Lorain. The suit is brought upon a sealed land contract between the parties, dated March 22,1836, by which the defendants “bind themselves, their heirs and administrators, to pay or cause to be paid to the plaintiff, his heirs, etc., the sum of $350, in manner following — that is to say, fiity dollars on July 1, 1836; $100 on April 1, 1837; and $100 annually thereafter until ■the whole sum be paid, with interest to be paid annually, etc.; and in consideration…

Bill in chancery. From Muskingum. The plaintiffs, Peter Mills and others, claiming to be the lawful trustees of a charitable fund, created by the will of John Mclntire, bring this bill against the Zanesville Canal and Manufacturing Company, the executors of Mclntire, and D. Young and wife, late the widow of Mclntire, who hold or claim the estate, for an account.

The special master, Goddard, appointed to examine into and report upon the affairs of the Ohio Life Insurance and Trust Company, reported at the last term that the company had issued notes or bills calculated to circulate as money, and payable on time, which were not authorized by their charter.