Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1863-12-24
SUPREME COURT OF OHIO.
December Term--1s63.

Hon. William Y. Peek, Chic, Justice, and Hon.
=. Ranney. and Hon. Horace Wilder, Judges. l..
J. Critchfeld, Reporter. "I EtH
.Hu "I. TUESDAY, December %, 1858.
GENERAL DOCKET,
No. 10. Abram Crittenden ". David Lingle. : In
error to the Common Pleas of Fulton county. Re-
served in the District Court. .t .... .I....... 81
Wilder, j. Held:
l. When constable makes levy by virtue of an
execution in his hands, upon property which is after
ward replevied by person claiming title to the
property, by purchase from the judgment debtor
prior to the levy the plaintiff in repevin on execu-
ting an undertaking as required by law, acquires
right to the possession of the property and all the
interest in it which had been acquired by such con
Ry Se be alleged Sy
the plaintiff in rcplevin. was fraudulent and void as
against creditors. }T
paramount to any right TO be acquired by subse-
uuent levy the same property under an execution
against the same judgment debtor
8. When such subsequent levy is made and the Of
cer sells the property such plaintiff in repeyin may
maintain AN action of replevin against the purchaser.
Judgment reversed and case remanded.
judgment, but dissented from the Sd proposition in
the syllabus,
Ann V. Benson. In chancery. .,,.f- FIJI
Reserved in the District Court Of Hamilton coun-
Rannoy ]. delivered the opinion Of the Court de7
creeing for the complainants. Syllabus will be pub
10. %. Jacob wcstfall " Levi DUNCAN and Jo-
seph j.. Thompson, executors, etc. Of Reese Z.
Thompson, deceased. Error to the Common Pleas
of Jackson county. Reserved in the District Court,
Brinkerhof j. Held:
issues Of fact made by the peadngs in an action are
not subject to review on error except where it ap-
pears from the record that motion Tor a new trial
finding of the court is against evidence, and such
motion has been 0verruled. -
2. In case of an executed contract of sale, by ex
ecutors of the property of their tcstators, the pur-
chaser making no offer or attempt TO rescind the
contract, the purchaser in an action by the execu-
tors as such for the recovery of the purchase mon
ey cannot avail himself of false and fraudulent rep
rcsentatiOns made by the executors ut the time of
the SALE in respect to its subject MATTER either as
a defense, or by way Of recOupment, or counter
claim. His remedy, if any, is against the executors
Judgment affirmed.
No. IL. Samuel Quinby, Executor of EPhraim
Quinby, deceased, V. Robert II. Walker, and W lillian
H. Prindle. Error to the District Court of Trumbull
county. .r
Where testator, at the time of his death, held
certain bonds in personal trust for the sole benefit
Of others and was in no default as to the dItie; Of
by his executor, with the knowledge and apparent
acquiescence of the benefciarie.. aud tho proceeds
were not paid TO the parties entitled thereto under
That the trust funds were not assets of the estate
of the esat9r and therefore an action could not be
sureties in the executors bond for misappropria-
ton of the trust funds so collected. ...
Judgment CT the District Court affirmed.
No. Z. w. I. Spice d Son V. Jacob Steinrak.
Error to Richland Common Pleas
PECK, Ch. J.-Held: Vii.
l. That the restriction upon amendments in Sec.
1877 of the Code, that the proposed amendment must
not change substantially the claim or Defense" does
not refer to the form Of the remedy but to the general
identity Of the transaction forming the cause of COM
plant. Therefore, e. Hs.f.. A..
IA. Where the original petition demanded damages
for wrongful arrest under an order issued by JUS
tice of the peace, containing ayerments making
case of malicious prosecution, an amendment, strik-
ing out the averment Of want of probable cause"
and alleging that the same arrest was made illegal
ly and with force, may be allowed if it conform the
pleading the proof upon such terms may appear
proper and just 10 the court. .r,. taIa -
. 3. Where statute confers upon a court or magis-
trate the power to issue order of arrest in civil
case upon certain conditions, the statute, being in
derogaOn Of personal liberty, is to be strictly con-
strued; and creditor ayaing himself of the rene-
dy, must comply with all the conditions imposed by
4. The clause in section 20 of the Act regulating
thejursdicon ETC.. of Justices Cf the Peace, requir
statement Of the facts claimed TO justify the belief in
the existence of the particular fraudulent act SGT
FORTH is of the conditions precedent to the right
TO issue such 0rde and an order which Is predlcated
on an affidavit which does not contain such state
ment is void for want of legal authority in the us
tice to issue it, and an arrest under is illegal
5. statement Of facts in the affidavit which hayo
legal tendency TO induce such belief, though such
facts may be slight and nconclusiye, will. neverthe-
less, sustain such order until it is reversed or set
aside. The issuing Of an order under such circum-
stances is mere error in Judgment. reg ...l s.. I
Judgment affirmed. t.s.. -.
No. %. Samuel johnson ct al. "; John p Rowan.
Error to the District Court of Wood county. Judg.
ment of District Court reversed, and judgment of
Common Pleas affirmed. No further report of the
No. "a. James Emmitt Co. v. Redman Conden.
Error Reversed in Pike county. Judgment affirm
ed. Nofurther report of the case will be made,
~ No %. Lathrop Penfeld, Guardian etc., y; Mark
briefs.
V. the Evangelical Lutherian Congregation Of Can
ton, worshiping in Jerusalem CHURCH. Partition-
sSf tbs briefs on '
no. q. Richard s. Spencer " Henry B. Nageyl&
Paulson Nagey. Eerror u the District Court Of
Clarke county. Dismissed for default for two terms
No. So. Joseph Chenewith ct al. " James NJ.
Trimble, Bill Of Review. Reserved in the District
Court of Franklin county. Remanded to the District
Court as having been improyidently reserved. The
case presents nothing but difficult questions OF ydet
No. 80. Ferdinand Peterson Y. The State of Ohio.
Error to the District Court of Medina county Jndg-
ment affirmed No further report Of the will be
No. 81. james Harvey ct al. V. George W Tucker.
Error to the Superior Court of Cincinnati. Dismiss
ed for want Of prosecution. The plaintiffs in error
have failed to file briefs.
MOTION DOCKET.
No. 35. Archibald Huston, Assignee, ETC. ", Will
liam Brown. Leave Ia file petition in error refused
No. SO. Robert Jackson v. Simon jackson. Leaye
to file petition in error granted:
No. 81. Michael Wyrick and Ryan kirkpatrick V.
Mahoning County Bank. Leave given to file petition
in error
Leave granted to docket cause, but motion to take
the case out of its order overruled. - Ii
No. 80. Daniel A. Job v. Aaron Harlan. Motion
~ i,,1n NJ "a