Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1864-01-14
SUPREME COURT OF OHIO.
January Term--1s84.


january Term.-1s84.
Hon. William v. Peck, Chief JUSTICE and Hon.
Jacob Brinkerhof5, Hon Josiah h. Scott. Hon. Rufus
]. Critehfeld, Reporter.
TUESDAY January 12, 1854.
GENERAL DOCKET,
! No.43.. William Rayner vs: Jacob Kinney. In
error to the Court of Common Pleas Of Perry county.
Reserved in the District Court. IIf. 10" j , .-
| WILDER, j. When, in an action for SANDER, the
truth Of the words spokenis pleaded in justification,
in good faith, under honest belief in their truth
and with reasonable grounds for such belief, the
plaintiff is not by reason Of such plea on the failure
of proof to sustain it, entitled to exemplary damages
nor should it be regarded as an aggrayation beyond
the real injury sustained by the plaintiff. judgement
of the Common Pleas reversed, and cause remanded
| No 40. Geo. s. Coe, Trustee, etc. vs.. John Ger
man ct. al. Error to the Common Pleas of Union
RANNEY, J. Held:
L, The case Of Coe VS.. The Columbus, Piqua and
Indiana Railroad Company, 10 o., ST. R., 372, and
Coe VS.. The Knox County Bank, h., 4l2, have set
titled, that railroad company deriving its powers
5 under the regulating railroad c9Tpanies
e5rusy m s $ nay be in monsS It's
whether real or PERSONAL TO De subsequently, acquired;
but that the existence of such mortgage does not
operate 10 exempt such property in its nature per-
sona and wheit remains in possession Of the corpo-
ration from being levied upon by Judgment creditors
ofithe company.
the mortgage, upon default of payment, to take
possession Of the railroad and other property con-
nected Herewith, and use or sell the same must be
exerted upon all the property mortgaged and does
not authorize the mortgage to deach portions there
Of, either from the possession of the company or an
officer succeeding to its rights by valid levy there
g.. The right and proper" damages given by the
statute to the defendant, in an action Of repevin
brought by the norgages against the officer when
exceeds its value is not the value of such property
Or the amount of the execution levied upon it, but
nominal merely. -.
Judgment for damages reversed and judgment
for nominal damages rendered, . IN. Il 81.
No. A. Samuel w. Scars ct al v. Elijah s.: Hanks
ct al. Reserved in District Court Of Lucas county
On motion to set aside appraisement and sale.
Scott j. Heidi. Judgment creditors, at whose
suit conveyance made by their debtor has been set
aside, as fraud upon their rights, cannot upon exc
cuon issued under the the case, set up the
fraudulent conveyance against which they claim as
bar to the debtors assertion Of his right to have
family homestead exempted from sale on such execu-
ton. -lag. 9l' - n
q The proper time for the assertion of the debtors
claim, under the statute, have such homestead ex-
empted from sale, swhen the Sheriff other officer
is about to execute the writ Of execution order OF
sale and the claim is available as well against de-
creal orders OF sale, as against executions founded
| on judgment at law.
Appraisement and sale set aside; and case remand
| cd to Court of Common Pleas for execution.
40. commissioners of Knox county v. Amos Mich
OILS and wife. Reserved in the District Court Of Knox
Peck, Ch. j. Held: yyHss
4. A statute enacted prior to the Constitution Of
1851, authorizing the Commissioners of county, up
on the approval of majority Of the electors TO issue
and deliver county bonds to bona ckhoders Of
araroad located tlrough such county, to be applied
at par in payment Of their stock subscriptions and
the proceeds applied to be used exclusively in con-
structing the road within the county the county be-
ing amply indemnifed for said loan Of its credit by
bond and mortgage Of said subscribers is not in con-
fct with the Constitution of 1902. ...,
2 Nor such statute repealed by tho Constitution
of 1851 although the bonds had not been issued MOI
the vote Of the electors given until after that Cons
tuition went into operations. Cass v. Dillon %. St
Rep. 6o7, and Ohio ex rel Smead v. Union Township
rs0hiS St. Rep. 400 followed, =. .2., =
not be delivered by the commissioners until sufi
cient sum was provided by stock subscriptions, OF
them the duty Of ofdeiveripg the bonds when said pro-
vision has been made, without indicating any person
or tribunal to determine that fact necessarily dole
ss;np IN faith and with reasonab ana
and caution should decide that such provision had
been made and deliver the bonds, the bonds will mo-
6einvaidated, If It should subsequently appear thai
A. Where a power created by statute has been fully
executed, and something, not authorized by the sta
tuto, has been added but which scleary distinguish
able from the rightful execution-the execution O
the power is good far authorized by the statute
and void only as to the excess. . - I -',l !
Demurrer TO reply overruled and cause remandeC
IL RANNEY j., adhering to his opinion in Cass v. Dill
lon dissented from the second proposition, and OK
pressed no opinion upon the ether questions arsin
No. As. William vining and others v. Christophe
q. Bricher. In error to the Court of Common Plea
Of Delaware county. Reserved in the Distric
Court. ~
WILDERJ. s. od8 lg Jlh-.Tl -i.l "
!. To determine whether a contract made contrar,
to the provisions Of penal statute is illegal an,
void, the statute must be considered whole, h
ascertain whether or not it was the intention of tn
legislature that the statute should have such effect
-. A note given in consideration Of sale Of dis
eased sheep, which sale was within the provisions
hcAct Of Feb. u 1851 to prevent the spread Of dis
st section Of said Act il intended to leave tb
rights Of the party sustaining damage by reason o
such sale, unchanged by the statute.
Judgment of the Court Of Common Pleas afhrme,
No. 2s. The Northern Bank Of Kentucky " Mari
Buckingham ct al. Error reserved in Clermon
county, Judgment affirmed. Nofurther report will
No. a. Joseph W. Butler '. Aaron wiHOughby
Error 70 the District Court Of Putnam county
Judgment reversed and cause remanded. No fur
thor report Of the case will be made.
10 tho District Court Of Knox county. Judgmen
affirmed No further report Of the case will b
made. d ger -aan oHl
No. ~. Robert Hosea ct al. " Jacob Hoffner ct a
Motion to qnash writ OF mandamus overrnled. Th
motion involves an inquiry into the whole merits
Motion to take case on general docket out of its
|, der also oyerruled. 80, 6,.yi .oprs.,gta
Russell G. Daniels ct al. Passed for notice Of me
No. 4s. John Seaman, Trustee, v. S. B. Eagel
Leave given 70 docket reseTyed case. ~
Jsor ETC. Riternatiye writ Of msndamus s sowse SS"
No. so. William b., Lewis v. Commissioners
Marion county. Alternative writ Of mandamus q
IT, -. q "a o,.i .sis