Cleveland morning leader. [volume] (Cleveland [Ohio]) 1854-1865, 1859-03-16
Supreme Court of Ohio.
SATURDAY. March
GENERAL DOCKET.

GENERAL DOCKET.
The Portage County Branch Bank, VS.. Gus
tavus Lane Error to District Court of Por
| tage County.
PECK, J.
Where L., at the request of s. & Co., fol
the purpose of procuring from the plaintiff /;
loan for the benefit of S. & Co Joined them il
note for $4,000, payable TO the plaintiff ninety
days after date, and left the note with S. d Co.
for negotiation, and the plaintiff, knowing thai
L. was merely a surety, refused TO discount
the note at its face, but without the knowledge
or consent of L., agreed with s. d Co., TO loar
them $4,000 upon it-and same day wrote
across the face of the note $4,000" This
note was discounted for $4,000, which amount
is due upon it-John II. Ebbert, Cashier and
the plaintiff, the note not having been paid al
maturity, brought suit against all the maker:
describing it as note for $500. Held:
l. That the note up to the time of its
transfer and delivery by S. d Co., to plaintiff
had no legal validity as a promissoIy note fol
any amount.
2. That the plaintiff having refused to dis.
count the note at its face, it never became ope.
ratiye as note for $4,000.
8. That the note when thus delivered and in
dorsed, become, and was, in legal effect, note
for $1,000 and. no more
4. That L. being merely a surety, and never
having assented TO The modification, was not IL
able upon it as note for 5000, nor for the
money loaned as upon request.
s. Where, upon the whole record, it is ap-
parent that on re-tral no recovery can be had,
a Judgment in favor of the defendant will not
be reversed, merely because the court below
may have erred in their instructions TO the
Jury
Judgment affirmed
William Christmas Admir- ct al. VS. Hiram
Griswold, ct al. In Chancery-reserved in the
county of Stark.
BRINKERHoFF J. delivered the opinion of the
Court. Held
A covenant on the part of the debtor to pay
the debt out of the first moneys received from a
particular fund, but which gives the covenantee
no presentright in OF over the fund, save through
the covenantor, and looks to the future acts of
the eOvenantOr to render the fund available,
does not operate as an equitable assignment Of
the fund to the covenantee.
Laterlocutory decree, and cause renanded for
further proceedings.
No. Sc, Lewis Snapp ct al, VS.. The Fire
mans Insurance Company. Error to the Su-
perior Court of Cincinnati.
SCoTT, J. Where, by clause in policy it
is provided that 'the insurers shall not be liable
for the expense Of dockage, or hauling out for
repairs, nor for any loss Except in case of gen.
eral average) unless the necessary repairs, caus
ed solely by the disaster shall amount to len
per cent. on the agreed value in the policy;" il,
by means of peril insured against, repairs be-
come necessary which are Invariably made on
dry dock.
Held: That a fair and reasonable charge for
the use of the dock whilst such repairs are be-
ing made, forms proper item in the cost of re-
pairs; and by proper construction of said
clause, is not TO be excluded in computation
to determine whether it is a ten per cent loss.
Judgment accordingly.
Swan. Oh. j., dissented.
John W. Erwin ct al, VS.. John II Shuey,
assignee DC Error to the District Court of
Butler county.
BRINkERHoFF, J., delivered the opinion of the
Court
Held: An instrument intended for a mort
gage, but defective because not nnder seal,
though otherwise duly executed and recorded,
creates no lien in favor of the intended mort
gagee as against an assignee under general
assignment subsequently,. made for the benefit
of creditors, although the assignee had full no.
tice of such intended mortgage.
Bloom vs. Noggle, o ST. B. As, followed
and approved Judgment affirmed.
No 81 George P Clark VS.. The State of o.
Error to the Court of Common Pleas of Jeffer-
son county.
By the court:
l. An Indictment for forgery must not only al
lege the false making or alteration of writing
specified in the statute, with intent to defraud
some named person or body corporate, but it
must also appear on the face of the Indictment
that the fabricated writing, either of itself or
in connection with the extensive facts averred,
is such, thatif genuine, it would be valid in the
Law to prejudice the rights of the persons or
body corporate thus named
2. Where an Indictment charged that C
lchh intent to defraud L had falsely altered a
receipt made to L by county treasurer. for the
of certain taxes due from l. 70 Civ
en- year, so that the receipt in its altered form,
the payment of sum larger than
that originally expressed the:ein, but did not
aver any extrinsic circumstances giving to the
receipt an operation beyond that imported by
its terms Held.
That the Indictment was bad because upen
the face thereof the receipt had no legal eff
eacy, as against L., and could not therefore,
in contemplation of law, impair any of his
rights.
Jud0uert raversed and cause ranapdad