Cleveland daily leader. [volume] ([Cleveland, Ohio]) 1865-1873, 1866-01-29
Ohio supreme Court.

From the report of the proceedings Of
this court, in the Columbus papers, we
extract the following cases Of Northern
Ohio interest:
No. 26. John ". sprsguo, adminiatrstor,
ETC., Us. Jonathan C. Childs. Error to the
Court of Common Pleas. Reversed In the
District Court of Erie county.
White, ]. Held;
!. ANY defendant between whom and the
plaintiff an issue of fact has been Joined
which either party thereto has the right to
lave tried by q jury, has the right, under
the statute, To q second trial.
2. The perfeeting his right to such trial,
by one of several defendants, sued as joint
contractors, does not open, for r~e-trial,
the issues which have been found be-
tween the plaintiff and the other defend
ant, who have not taken q second trial.
3. If the defense set up by the party
taking the second trial, is several only,
leaving a valid cause of action against the
other defendants, the liability of those not
taking a second trial, as fixed by the find
ings on the first trial, will remain uAaffeot-
ed by such second trial.
4. But if the defense is Joint in its nature,
and goes to the validity Of the cause of ao-
ton, It will, to the extent it may be estab-
lished, inure to the benefit Of OF the other
defendants.
5. All the parties to the action whose in
terests may be effected By the results Of the
second trisl, remain before he court, qasd
sueh interests, and such judgment may be
rendered as the rights of the party require.
Judgment of the Common Pleas affirmed.
Ne. Is. Elizabeth Ferguson rs. Gilbert q
Rush. Error to the District Court of Trum-
bull county.
Scott J. Held:
/. Upon the trial Of issues of fact, the
general rule is that the burden Of proof
rests upon the party holding the affirmative ]
and this is so especially where, from the ma
ture VI the case, the facts alleged must be
peculiarly within his own knowledge.
2. The code of civil procedure does not
authorize the same cause of action to be
stated in different forms as so many distinct
causes of action. It wholly sbolishes this
artificial mode Of pleading. But if the petit
ton contain a full statement Of the facts
constituting the PLAINTIFF cause Of %acrion,
and this is improperly followed by another
count, differing from the former only in
being more general in its form, and less
specific in its statement Of facts, and no OBJ
lection is taken to the petition, the second
count may be regarded as mere surplussge.
s. A transfer Of property made by a debt
or, upon a secret trust, is primo face fraud
ulent as against creditorsj and, as against
them, the burden of proof is on the party
claiming under il, to show adequacy Of con-
sideration, and good faith in the transac-
ton.
4. The production and proof of a mere
formal transfer Of property by the debtor is
net enough to cast upon antecedent credit
ors the burden of showing q want Of good
faith or Of adequate consideration.
5. A motion for a new trial, based on the
ground that counsel in the case were led, by
a misrepresentation Of the law, to abstain
from offering evidence pertinent to the issue
made therein, is addressed TO the soundd dis
erection Of the court, under all the cireum-
stances of the casej and its eetion thereon
is not subject to review, upon error.
Judgment Of District Court affirmed.
No. %. Henry W Simons ". Charles W.
Pierce ct al. Error TO the Court Of Common
Pleas of Asthtsbuls county. Reversed in
the District Court.
By THE CouRT. Held:
The priority of lieu of a ohattel mortgage
upon q frame building subsequently, remoy-
ed by the mortgagor to and upon other lands,
is not defeated or affected by a subsequent
mortgage upon such other lands, given by
the same mortgagor to q mortgage having
full knowledge Of the prior chattel mort
gage,
overruled, and case remsnded for further
proceedings.
The venerable VIM. Huffman, SEN, says
the Dayton Journal died on Thursday, st