Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1863-04-09

caused execution to be levied part Of the Iron
and soon aferward A., upon discovering his mistake
countermanded his instruciions-Held:
That under these circumstances. the rights OF the cred
tor under his levy, were greater than those Of b. hi
debtor, at the time Of the levy And that the law vii
not permit mere mistake Of facts to give an effect Il
B. inconsistent with the rights Of under the contract
subsisting between tho parties
/ Judgment reversed, and cause remanded.
| No. 1871. Julius Walker ct al. v. Margaret Walker
ct al Error to the Common Pleas Of Erie county Re
served In the District court,
| Brinkerhof, j. Held:
l. joint will Is unknown to the testamentary law
this State, and inconsistent with the policy OF s eRs
laton. And where husband and wife, each being th
separate Of property Join in the execution OF
instrument in the form Of will and treating the sepa
rate property Of ehch Joint fund, bequeathed lega
cies and devised lands to divers persons, the
not be admitted to probate the Joint will Of both par
| ties, nor as the separate will OF either.
@ That although como Of the provisions contained II
the body Of such will may bo, in form and effect sew
eral yet, inasmuch the provisions OF such will par
take Of the nature Of compact, in which such provision
s influenced by all the rebt ell the provisions Of the vii
must stand or fall together. I...-
3. In proceeding under the statute to contest tn
validity Of will It is to render final judgment OF
| demurrer to answer. An issue must be made up
aud tried by jury, under proper instructions by tn
| Court.
Judgment reversed and cause rem anded for trial II
| conformity with the statute.
Gholson and Scott JJ., dissened az to the FIRST ant
| second prOpObltlOnu.
No. liz. John X. Easter v. The Little Miami Rail
road CompIny. Error to the District Court Of Greer
lcounty.
Gholson, j.:
pany the right Of way thirty nine feet the east and
twenty feet the west Of the center Of its track
as then located and constructed and c0venanted for
himself, his heirs aud assigns to erect and maintain
fence each aide Of the right Of way and reserved the
right to pass and repass the In such way and
at such time would not interfere with the running OF
the railroad trains. t. subsequently conveyed the land
through which the right OF way was thus granted, by
deed In fee without exception reservation to H. and
r., tenant Holding under H., brought 40 action
against the company for killing his horse, being the
track where 1t passed through the land and no fence
having been erected, by the negligent running Of loco
motive--Held:
That the assignee Of t. was SO far affected by the COW
ensnt in the grant, that he could derive advantage
from its breach and that he could not claim from the
railroad company higher degree Of care to avoid ipju
ry to horse being the track through the land than
II the covenant had been kept.
Judgment affirmed.
No. I4I. John Trauman v. Doe, ex dem. Lore ct al
Error to the District Court Of Hamilton county,
Peck, Ch. j. Held:
1st. magistrate before whom deed is acknowledg.
ed, and who certiaes that the grantor acknowledged
the to be his voluntary act and deed is not there
by precuded from proving the legal incapacy Of the
grantor at the time.
I'd deed Of gift executed and acknowledged by one
having legal clpacty to convey, cannot be avoided at
tdao, by proof that it obtained by undue ipencs
The only remedy In such case Is in equity.
Judgment reversed and cause remanded.
MOTION DOCKET.
No. 93 Jacob Mayer v. Samuel Wick. Leave grant
ed to file petition in error.
No l2l. Matthew Broughton v. Frederick Wood, ct
al. Leave to fle petition in error refused.
No. l35. John Doty and Geo. T. Noe v. The Knox
County Bank OF Mt Vernon. Leave granted to Ale Pc
titon In error.
No. I37. Joseph Harrison v. Rassceas Castner. Mo-
ton to correct journal entry granted
No. 1873. Orange Davis v. Samuel 8. Davis. Leave
to hle petition In error refused
No. 139. Chester Huntington ct al administrator,
etc., v. Charles W. Seymour ct al. Leave to file petit
ton in error refused.
No. 140. Jesse 9. Norton ct al v. George Laskey ct
al. Motion for leave to file petion In error on the
ground that the act Of May lst 1862 to abolish the
ten tn judicial district is unconstitutional Motion
overruled.
No. l4l. solomon smithers Y. John G. Rainey ct al.
Motion continued
No. 49, Ohio ex rel. Bates v. George Fries, Treas.
uier, etc. Case renstated on the docket.
No. 143. Jacob Hoffner ct ale, members OF the
Church Of the Redeemer v. The First Congregational
Church OF Cincinnati. Alternative writ Of mandamui
allowed.
In all motions for leave to file petitions in Of
for wrts Of error not disposed Of couvse for the mo
tions have leave to withdraw the same and the papers
and apply to judge Of the Court in vacation.
Court ad jouTnod without day.