Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1866-11-21

SUPREME COURT OF OHIO.

TUESDAY, Nov. 20. 1865.
Hon. Josiah Scott, Chief Justice; and Hon. Luther
Day, Hon. William White, Hon. John Welcb,
and Hon. Jacob Brinkerhof, Judges.
GENERAL DOCKET.
No. 70. Sidney q. Butler v, Rufus Peck. Ener
10 the Common Pleas Of LOrain county. Reserved
in the Uistr ct Court
BRINKERHOFF, j. Held:
I Where upon the land' Of p, there is msrshy ba-
sin, from which, in times Of higb water, q portion
OF the water contained in the basin overlows its
and natura y finds its way through a s~ale and
upen the lands Of b.. while the remaining portion of
the water Of the BASIN has outlet and is disspa
ted by evaporation cannot rightfully, by an arti-
fetal drain, conduct the water that has natural
outlet from the basin and along said swsle. so
damage.
Judgment affirmed.
No. l45. CaInaIine CArderv. The Board of Com
missiOners of Fayette county; and
No. l49. The Same v. The Same. Error to the
Common Pleas Of Fayette county. Reserved in the
District Court.
WEIGH, J. Held:
/. The widows election to take undera will does
not estop her from setting up her right heir t. the
ing the validityof deVses therein and it is not the
duty Of Probate Judge TO advise her of her rights
as such heir, at the time OF her election.
A county can take real estate by devise; and
where the devise is made 10 the county by name
without limiting the uses of the property, il
in the Board of Commissioners for the use Of the
county, and may be appropriated by them to any
and all authorized county purposes
3. Where there is condition annexed to such de-
wise that the county will pay annuity 10 the Wild
Ow it is immateria to inquire into the constitution
alty Of subsequent statute authorizing the coun-
ty to leVya tax for the payment Of the annuity as
It is not the inability OF tue county to raise means
for future nstalments Of the annuity, but its &C.
tual default OF payment that can work forfeiture
Of the condition.
4. Nor does the failure of the county to pay the
costs of probate Of the will, TO refund them 70
the Executrix. who had caused probate thereof to
be made before the county officers know of its ex-
stence, and who had mover demanded payment
work forfeiture Of the condition. that the county
should pay all expenses OF securing its title" to
the land devised .-H
JnIgment in case No. 14s reversed, and cause 70.
mAnded. judgment in case No. n9 affirmed.
No. u. Gotleib Brobst ct al. v. Joel +. Skellon
OF al. Error TO the District Court of Shelby county
WHITE, j. Held:
]. Inc sheriff and his suretes are liable on his
ocal bond for his failure TO deliver to the proper
parties in accordance with the order Of the Court
notes taken during his term Of Office for tho pur-
chase money of property sold partition, although
no demand therefor be made until after the expi-
ration Of his term Of Office, l,
2. Where the Sheriff actually converts such
notes to his own u'e during after the expiration
Of his tesm of Office the measure OF damages in an
the notes.
B. The object of the statute in giving time for the
payment Of the purchase meney is not to provide
mode ofinyestment for the benefit Of the parties to
the partition, but to encourage bidders and thus
effect better sale OF the property; and the Sheriff
and his sureties are. therefore, bound for all the
money he may return as received from the sale,
though the amount may exceed what the purchaser
was required, by the terms Of the sale to pay in
Judgment of the District Court, and the Court of
Common PleAs reversed; and Judgment rendered
No. o.. Daniel H, Giaiu and wife v. Israel TN
derwOod ct al. Error to the District Court Of Knox
county. Judgment Of the District Court and Of the
Common Pleas reversed, demurrer TO answer sus-
sained. and cause remanded to Common Pleas.
This case is decided upon the principles settled in
the preceding case, No, a..
tants Evangelical German Congregation, Of Cinein-
No. 81. e. Klotter 4 60. v, Same defendant.
No. 80. Christian Boss v. Same defendant. In
error TO the Superior Court Of Cincinnati.
DAYyJ. Held; e,G t.f. tfr a.ga9
Where a corporation, without other authority
porated religious societies" passed March 5, 1896,
engages in the business OF banking for the purpose
of receiving deposit keeping and circulating the
money Of others, such business comes within the
prohibition OF the first section of IAN act 10 pro-
hibit una1thorized banking" de-, passed larch 70
lsi5; and note discounted in the transaction of
such business is illegal and void.
Judgments reversed aud causes remanded.
WBITE.-J., coDcuTring in the above proposition,
dissented TO its application 10 the eases; .dctSCi
No. 200. Char es DutOit v. julia Doyle 'et -al.
Error to the Superior Court Of Montgomery county.
No. 200. General Docket.
ScoTT. @. J Held; .3j C]9qQG. .25s3g
That the 7th Section Of the act descents
passed March IA, 1853 did net change the rule (Which
has always prevailed in Ohio that fn case Of de-
scent castnpon children, where some Of the children
were living, aud others dead, leaving issue. the
share to which each Of the deceased children would,
IL living have been entitled. should descend to the
ISSUE or legal representatives Of each respectively
Therefore, where ID. died intestate in 1860 leaving
six living children; two other children having
previously died, one leaving family Of three chill
dren. nd the otheroffye; these eight Rrandchldren
are not entitled to participate equally in the parti-
ton Of lands descending from the inteslate but the
three Of one family entitled each, TO one twenty
fourth part Of the premises and the ye. OF the other
family, entitled 10 the 0ne-fortieth part only.
Order Of partitionreversed, and partition ordered
and cause remanded
No IS. John Anketel ct al v. Waldo +. Converse
ct al. Reserved in Huron county. Passed for want
Of papers, which are out by consent Of counsel.
No.e &c.. Felix Reider v. Milton Saylor etal Error
70 the Superior 0ourtyof Gncinnatis Passed ior
No. 81. Peter Masters v. Francis N, Freeman Of
al. Error. Reserved in RichlaDd county. Passedfo
'i''''' "A 81 MorioN DocKEr. ~ Z.
No.S2. WIN. J. w. Smith v. The State of OHIO.
Motion for writ Of error TO the Common Pleas oi
FAyette county. Ovefruled. spAt . saitllse ~
..I t L.