Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1865-03-16

TUESDAY, March IA, 1866.
Hon. Jacob Brinkerhof Chief Justice; Hon. Josiah
Scott, Hon. William White, Hon. John Welch and
Hon. Luther Day, Judges. l.. j. Critchfed. ESQ.,,
Reporter. L. 5 Shepard, Clerk.
GENERAL DOCKET.
No. SO. John S. Hoffman v. W. j. NJ. Gordon 4
Bro. Error to the District Court of Hamilton coun
WELSH J. Held:
!. A petition charging the defendant with a
wrongful act committed while he was in the employ
mcnto another, without alleging that the act was
done within the scope Of his employment, is not de-
murrable on the ground Of responsible superior.
2. An answer denying that the defendant COM
mitted such act and alleging that it was committed
by third person. is merely denial, and requires no
5. The refusal Of new trial, where no reasons for
the new E s are alleged M IN the ,aS9p therefor
al, IA Ohio st. Rep, 276, affirmed.
4. The petition charged defendant with flooding
the plaintiffs cellar by o6structfn0 the street, and
the answer denied the charge On the trial evidence,
admitted without objection, showed that the food
ing was occasioned BY defendants wrongful opening
e s crcas nts b SSr TN SrOSSsn
placed in the streets by others. Held: That IL was
not error for the Court, although no amendment Of
dence for the plaintiff. and 70 render Judgment ac
cordingly. Such proceedings in conformity TO 1.-THE
l31st aud l32d sections Of the Code.
No. Ii. Levi sutiia v. Collins Atwood. Motion
for new trial Reserved in the District Court Of
Trumbull county.
WHITE, j. Held:
l. Where a lease was made Of a dairy farm, "
with certain stock thereon; for term Of years at
stpuAted annual rent" the contract for rent runs
with the land; and the assignees Of the term are
the voluntary assignment Of the lessee, or bypur-
chase at sherfPs sale.
O. An express contract Of the lessee fixes his liza
bitty for the whole term but that Of the assignee
is limited 10 the rent accruing during the continu-
ance Of his interest The lessee may at his election
pursue either or both for payment. ~ t
3. II is the legal duty Of the assignee to pay the
rent while be enjoys tho estate; and the personal
liability of tho lessee IL in the nature Of security
as between him and the assignee. and in the absence
of agreement between them, the latter Is primarily
| liable.
| 4. Where the lesaor became the assignee Of thu
purchaser at sheri,s sale, his right to demand thu
| rent accFuing while ho held the term was compen
| sated by his liability TO pay il.
| k, The measure Of his liability for rent, is th,
amount fixed By the lease. which binds the partie
6. The giving, by the lessee, Of his own notes Z
the lessor payable at the times and for the smount
stipulated in the lease for the rent is not Of itself
| payment; nor while held by the lessor, does thei
| negotiability alter the case. -
No 81. John w. Ha twell v. Oliver Smith. Erro
to the Superior Court Of Cincinnati.
!. Under section sl2 and 2Is Of the code, an .un
dertaking for the discharge Of an attachment N
presence Of the sheriff, whilst the order OF attach
ment remains in his hands, either before or after
levy upon property under the writ
2. Where the surety In such undertaking, ate