Cleveland morning leader. [volume] (Cleveland [Ohio]) 1854-1865, 1859-11-19
supreme Court Of OHIO
George W. Ewers ef al -. DAnid Follin ct al
Reserved in Richland eo,snty


Reserved in RichlaDd county.
GHoLsoN, j. Held
/. BY the provisions Of the 10th section of
the act regulating descents passed February
gath, 1881, when an estate descended to nepb.
ews and nieees legel Representatives, Of brothers
and sisters, no brother OK ister Of the intestate
surviving; the nephsWs and hieces took pey
capita; and il nephew OF niece had died before
the intestate, leaving children, such children
took per STRIPES the share of the deceased parent
This rule has not been altered By the 5lh, 9Th,
7th and sth sections of the present act repulat.
ing descents The effect Of the present act is
to extend, not to limit the rule prescribed in
in the 10th section of the act of is3l.
2 He died intestate without Issue and never
having been married. seized of an estate ao
quired by purchase, leaving no brothers or
sisters, but three children OF one brother. four
children of another brother, eight children of
one sister, and two children and two grand
children Of another sister. Held-That par.
titlon should be made by dividing the estate
into eighteen shares, each nephew and niece
taking one, and the two children of the de.
ceased nephew, one. Decree accordingly.
John Ash ps. James Ash Il al Reserved 10
Knox county.
SuTLFF J.-Where a tesatrir, having no
child, made her will. and afterwards had q liv
ing child, which she sutviyed-Held-
Under the lorteth SECTION of the act of
March @5ih, 1910, (Curwen 690) relating to
Wills
let That Che birth of the child revoked the
will
I'd, That the fact that the testatrix survived
the child did not revive the will
Nahum Nj. Childs, executor of Henry A.
Ohilds, deceased, Us Abel j. Updyke.-
Epr m tba 80 saF II
ScorT, J Held;
That an executor or administrator has the
power, at common law, to submit to arbitration
a disputed claim against the estate which he
represents-and this power is not affected by
the provisions of the statute which authorize
the submission of such disputed claims to re-
ferees. Judgment affirm ed.
Richard Harrison aud Thomas Wiley Us.
King, Carey and Howe Petition in error
Reserved in Belmont county.
GHoLsoN, j., Held:
While good practice requires that upon an
application tor an order of attachment to a
court or judge in action for debt not due,
the affidavit should set forth the facts and cir.
cumstances, and not merely the words of the
statute. Yet, ifa Court or Judge thinks proper
to act upon an affidavit stating the ground fol
an attachment substantially in the language OF
the statute, it is q matter of form or practice
not affecting any substantial right of the deien-
dant, and not proper cause for reversal upon u
petition in error
2. Upon like principle would stand any yari-
alton from the language of the statute which
did not affect the substance of the particular
ground upon which the order OF attachment was
granted.
The affidavit and order of attachment con
stitule no part of the pleadings in the action
and the grounds for an attachment should not
be stated in the petition. This rule applies at
well in case Of an action for debt not due, as
IN other actions.
The proper mode for the defendant Ia
meet the charge made in an affidavit for an at
tachment is by motion. In like mode a sub
sequent attaching creditor should be heard az
to any question Of priority between him and the
plaintiff, he cannot properly be made a party
in the action on the ground of an interest ac
quired by the levy of his order OF attachment
upon the same propnrty upon which the at
tachment of the plaintiff has been levied II
he be improperly made defendant there is nc
error in dismssing him from the action.
5 A court of error before reversing the de
cision Of an inferior Court, upon question O.
fact involved in motion to discharge an attach
ment, should be satisfied that it was clearly
erroneous.
PICK, j., was absent when the foregoing easei
were decided
Columns, Novl7, 1859.
Thomas Thompson vs. The State of Ohio. il
error to the Court oil Common Pleas of Ash
land county.
SUTLIFF, j.. Held
lst That in describing bank bill in an in
dictment for lt;ering and publishing it as trut
and genuine, whea IL was false and forged ii il
not improper to set out the names and residence
of the engravers as the same appears upon tn,
margin of the bill
I'd. That the first section of the act OF May
lst, 1854, to prohibit the circulation of foreign
bank bills, etc, Swans Rev. Stat, ll0) di,
not exclude such bank bills from the operation
of section 20 of the act of July lst, 1885, 70
the punishment of crimes but that the utterinl
and publishing false, forged and counterfeit baDl
bills of less denomination than ton dollars upoI
foreign banks as true ard genuine was within
the provisions Of said section 29.
Judgment affirmed,