Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1861-01-10

T M TuBaDAy, Jan. 8, 1861.
Hon. Jacob Brinkerhon. Chief Justice; Hon. Josiah
Scott Hon. Milton SutliR Hon. VIM. v. Peck and Hon.
EaG1 II. y. CRIrcnrlrLp, Reporter
GENERAL DOCKET.
No. 30. Andrew q, Wilson v. Biachiey simpson =
Error to the Superior Court OF Cincinnati.
BRnKERHoT C.J delivered the opinion Of the Court
Held RfHff 8sl
4 The clrceusiapes That draft for money, otherwise
In the usual form check, payable on future spe
eihed day, s grna /dcie but not c0nolgeiUe, evidenci
that the Instruments bill Of exchange and as such
| titled to days OF grace. .T ln EN "
2. But when such instrument is drawnupon bank Of
banker, and 10 designed by the parties absolute
transfer and appropriation to the holder OF so much
OF actually existing fund.- belonging to the drawer
the hands Of the drawee, 1t Is nevertheless checi
and not bill OF exchange, and not entitled to day.
e. The language Of the oourtln the case Of Morrison
at ally. Baiiy NdI 0. St. r. l3, limited and ex-
: Judgment affirmed. ri N,h k&
No.'9. George Myers etal. v. Eeedhan NJ. standarl
Ct al. Reserved in the District Court Of cuyahoga:
| 0HoLsoNJ. Held
]. Under the ayerment, In q declaration, Of due de
IuAnd and notice Of the dlshonor Of bill Of exchange
the declarations Of the defendant showing an acknow
edgment Of liability upon, and Q promise to pay thu
amount Of the bill, are admissible evidence.
9. A bill Of exchange addressed, generally, to the
drawee in city, may be accepted payable at particular
bank in the same city, and presenmsnt for paymen
may be made at the counter Of such bank without pre-
Vous notice to- or the assent Of, the drawer.
g. The drawers Of bill, being partners dissolved the
partnership after the maturity and protest Of the bill bu
gave notice thereof to the payees OF the bill SOM
tune after the dissolution the agent Of the payees calet
one Of the partners for setteuent Of the bill, who
ferred him TO another aud by him declarations mad
that although there had been defect In the mode OF Civ
ing notice. which discharged the drawers they would no
take advantage Of IT, would settle when they were
satisfied nothing could made from the aoceptorB. The
acceptors wholly nsolvent and the action was mol
brought on the bill until after considerable lapse o.
mission in evidence OF the declarations. Held that theJ
properly admitted in evidence, as showing thai
there had bson due notice OF dshonor OF the BILL and
charging all the parties with liability thereon.
| Motion for O new trial overruled. tt
| No25. Edward Wade, v. 8. D. Comstocks Adminis
traitor. Reserved In Lucas County.
PECK j. yI. Y.s III
@. having perfect title to tract Of land in 1886
sod and conveyed the same with covenant OF general
warranty, to r. W., who neglected to have the deed
recorded In l8i5 said tract was seized in execution
and sold the property OF o. to D.. who had lice
oil the unrecorded Decd and c. in l8i6exscut ed quit
claim with special warranty and for the
sO to D. for said tract and two Shss: Which had
G, to d. all recorded before the deedofC TO r.
Held
That such subsequent conveyance by o. was lot a
breach OF the Of warranty In the deed to R. &
W., and their remedy IL any, action for the dam
actually sustained, Or as the case may be- for money
paid to the use Of q. - ..r
Judgment for the defendant. ..
Hugh Gibson and wife v. Moulton & Lorng ct al. In
Error to the Superior Court Of Cincinnati. e.
ScoTT, J.
8. devised certain real estate in Cincinnati to the
children OF his sister NJ W. for and duriLg the term Of
their natural lives, share and share alike, and at the
OF any OF such devsees the share Of the devse0
SO DYING was given to tho issue Of such devsee share
and share alike for the term Of their lives respectively
and again. at the decsase Of the issue last aforesaid
any them the shares OF the Issue dying we're given
the issue Of such Issue any OF them for the term
Of their natural lives, sand IN this down in en-
ament far as may be allowed by tho statute Ia such
case made and provided"
The will was made in 1884, and the teststor died In
le47 At his death his sister N. W. had three children
living TO wit N j. and W. who were hsHheirs at law
and Of whom N died in $780, leaving NJ iegitlmste
daughter her heir at law. W. died in 1850, leaving
daughter NJ. W who died In 1855, wiho father mother
brother sister, or onild The descendants of N. W.
were her neaass blood kin j. is still living with Issue.
Held
l. That the will gave to N, j., and w., the children
Of testators sister, each, life estate In the undivided
third part Of the premises devised, remainder for life,
OF each ones share 10 his or her issue In heirg the
Of the will, remainder In tall to the unborn Issue.
g That the reversionary fee simple Of which the en-
joyment expecant on the failure Of issue in the line
OF either OF the devices, before the estate tail devised
could be converted into absolute fee simple under
statute Of entails undsposed Of by the will and pass
ed by descent to j., aud W., the heirs at law Of es
tator, as tenants in common.
3. That NJ. the iilegmAte daughter NJ, could not
take ier the will the "isssn Of her mother nor
could she inherit collAtoray from NJ W., hsr mOthsrs
niece,
A. That NJ Is entitled, By inheritance from her mother
to third Of the reveronay fee in the premises and
the particular estates under the will having terminated
as to othirds Of the property devised by the failure
ISSUE NJ entitled to the possession Of third Of
these twothlrds; that s to tUo-ninths Of the whole
premises.
judgment of Court below affirmed
sutG J. dlssened as to the third and fourth propo
sitons. if-
No. 81. Androw McAlphinv v. Edward woosruS, Ad.
mnstrator &c, Of Michael cassidy, deceased, ct al
Error n the RuDerfOF Court of Cincinnati
DRINKERHoIF, @. j. ....
Where took lease Of real estate from G. for ninety
nine years renewable forever the only consde for
which was fixed annual rent and which contained a
covenant for quiet enjoyment and after 0s DEATH his
widow, by proceedings, obtained assignment Of
dover in the rents, Issues and profits Of the premses
In an action on the covenant BY against the admins-
traitors Of C.--Held.
L. That was entitled to recover his costs and reason
abo fees Of counsel In defending against the widows
claim for dover. .-Tr
g. That those holding The reversionary interest Of
in the promises and his rights under the lease, hayns
been made parties in the case, they were properly
Joined against collecting any more than twothrds Of the
rent due under the lease during the fetme Of the
widow. a|-
g. That the assignment Of dover in rents, issues and
profits, constructive evic ion OF the esse to the
lent Of onethird Of the demsed premises; that for
each eviction the Of damages is the third OF
the rent payable under the iease and that A. having
never since the OF proceedings for dover
by the widow paid than two.hds Of such rent
those who succeeded to the rights OF he entitled
to no further recovery.
Judgment affirmed.
No. 80. Gaylord McFall v. John Pleeharty ct al.
Judguentsfirned No further report will be made Of
this case. fi ..'|t .tt-''
No. 40. J. o. simmonsapd wife v. Simeon Jennings.
Error Reserved In Medina county. Dismissed Tor want
OF prosecution.
No. 81. Bennett N. Sexton v. George W. Powers ct
al. Error to the District Court or ouyhosa county
Dismissed for want Of prosecution .s-..
no. 50. Jacob Wolf v. Jacob Meyer. Dismissed for
want Of prosecution. .1 -.
case s 10 effect, decided by the case OF Leonerv The
State reports.
/ NOTION DOCKET.
James Dursy v. BiiDn and Letcher. Motion for leave
TO file petition In error II " f...
Per CURIAM. r -H
Blnn and Leteher were engaged as con tractors In the
construction Of railroad bed In Williams county In this
State and such, had their employ number Of hired
hands, with eams, wagons and other implements Dursy
sold 70 part OF such hands intoxicating liquors in yo
aton OF the act OF May 1e5 to provide against the
evils resulting from the sale Of fnoIicaDg liquor"&c,
whereby they became drunk, unable themselves TO work,
prevented the other hands and teams from working to ad
vantage, and the progress OF the Job was hDdefed and
delayed and the contractors thus injured In their
property aud means Of support. ?
Blnn and Letcher brought suit against Dufsy under
the seventh sec ton OF said act and the Common Ples
OF Williams county held atthey entitled to recoy
er; and by verdict Of jury, they did recover Sl03 19
actual, and $50 exemplary damages In all, 953 l2k,
The District Court Of that county on error affirmed the
dgment Of the Common Pleas and this Is assigned for
here We think there is error and the motion
No. II. Lsvlna Brown v Daniel and Joseph GriHith,,
executors, &c. Motion for leave file psttion In
error. a. LLs E.f.tr
Pa CuRriM. Held. ..,--..,
In proceeding for the contest Of the validity Of WILL
the contestants at liberty 70 proceed either according
10 the forms OF suit In Ohancery,or by petition under
the Code Of Civil Proceedure Bat In either CASE an
ssue, In form, must be made up, whether the WI
ting produced be the last Will Of the esator or