Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-01-10
GENERAL DOCKET.

| Day. Hon. William White. Hon. John WEIGH
| and Hon. Jacob Brinkerlof, Judges.
| l.. j. Ontchfeld, Esq, Reporter.
| GENERAL DOCKET.
| No. 40. John Carver Executor Of J,hn Miller
! deceased, v. sarah Miller Error to the Common
Pleas oil Wayne county Reserved in the District
BRfNKERHoFF,. ,.J. Held
| l. parol post nuptial agreement between hus-
band and wife. made in view OF n voluntary separ =
tion and fully executed the part OF tue husband.
Wnereby for a consideration which, in tho light OF
all the circumstances OF the parties at the time the
contract is made, is fair reasonable and JUST the
Wite reinqushes all claim ~ distrbutiVe share OF
the husbands personal estate in case she survives
him, will be upheld and niOrced IN equity ana the
| intervention between them Of trustee IS unneces-
| sary. 80 = o.
2. But it is an essential element of the foregoing
proposition, that the terms Of the contract shall be
fair reasonable and just to the wife, in view Of all
the circumstances OF the parties at the time when II
| was made and such contract can be made available
in pleaning full defense to an action by the vile
for distributive share Of her deceased husband 5
estate only when accompanied by such ayermehts
a show it to have been fair reasonable and lust to
her.
9. Where BY the terms Of post-nuptal contract
between husband and wife, made in contemplation
of separation of the parties, the husband agreed
10 pay the wife a gross sum 0t money IN O9nd IN
consideration of which she agreed to relinqgish all
claim TO distributive share OF his personal estate
in caseisbe survived him and the stipulated sum
w.s paid and received accordingly, and the parties
ever afterwards lived separate from each other and
aft the death OF the husband the wife brings an
action TOR the recovery of disTlbutye share OF his
personal estate under the statute. Held
That the facts above stated cOnst ttute rfDd Tdcie
q good defense in, equity to the action as 10 the
amount so received by the wife, under the contract
Judgment reversed and cause remanded.
No. "a. William Stephenson aud Mary Ann Reed
v. Ezekiel Haines and others. Error TO the Supe-
rior Court Of Cincinnati.
Where iand is conveyed in fee, subject to the pay
ment of annual rents by the gIantee to the grantor
aud the deed OF conveyance reserves to the grantor
the right tore enter and avoid tue conveyance upon
default OF payment, the Rrantor has lien upon the
premises for the rent superior 10 that Of MORTGAGE
Of the grantee
Judgment affirmed;
No. IS. Lutner Johnston v. Israel Pierce. Error
TO the District Court Of Madison county.
WHITE, j. H-.-
In written contract between p. and j.. it was
DECLARED that had, tue day Of its date, sold TO
j. one hundred head Of good merchantable fat hogs,
TO be as folows-spe flying what the hogs were re-
qured to weigh, and stpulAtlng for their delivery,
alta future u1.e, at place named. 10
i. That the contract on its face was not for the
sale Of specific butOf indeterminate chattes.
2. That in action against j. for refusing to re-
ceive the hogs tendored b. in performance Of the
cOntract, pAr0l evidence, Ohergdtor tue purpose Of
showing that the hogs owned by p. at the date Of
the contract formed part OF the huadred head con-
tIasted Tor, was properly rejected.
No. As. Jane A. M. Bissell, Adm'x, v. Samuel
Jandon ct al. Error to the district Court Of Lucas
county. ...--. .if r. -....
DAY, J. Hem. - ExaZTJ
l. The presumption Of the payment Of a claim
arising at common law from the lapse Of time, may
be rebutted by,proof that 1t remains due and un-
paid, by proof that the debtor, within toe period
required TO raise such presumption. acknowledged
such claim to be an existing liability.
9. Where Judgment is rendered in another State
upon claim secured by mortgage Of the judg-
ment debtor; and where, in SUBSEQUENT suit to
of such claim be consents 10 decree ordering the
sale of the mortgaged premises, and that tue pro-
eeeds thereof may oS spPiied t9 dise9SSrse ,Ss the
embraced 10 such Judgment such consent eonsti-
tutes al acknowledgment Of an existing liability"
upon such Judgment within the meaning Of the 9Th
section Of tue act Of 1884, for the Limitation Of
tiGns and action in this State on such judgment,
will not be barred under that act until tie expira
ton Of fifteen years from the date Of sucn Acknowl
judgment Of the District Court affirmed. rI
No. as. Il. NJ. Jones v. William Carr 4 Co. Err
ror to the District Court Of Mahoning county.
Where goods and chstteIs are levied upon, by
q Sheriff, under coor Of process in Sttacthment or
execution, issued from court Of record; and the
same are claimed by person other than the defend
ant named in the process; trial Of such claimants
right to the property can be had, in the mode pre-
scrIbed by section 426 Of the code, onlyat tho in
stance Of such claimant and not be instituted at
the sole instance Of the Sheriff or officer making the
levy, and against the viii Of the claimant. !
Judgments Of the District Court, Of the Court Of
Common Pleas, and Of the Justice OF the Peace,
seyeTAly reversed. ..-
No. 140 James A. FRAZIER et al V. .. w. 'SeiDem
OF al. Error to the Superior Court Of CincinnAti
No. I5O. Isaac W. Parker ct. al. v. same. Errer
10 the Superior Court Of Cincinnati; and
No. 1856, Thomas w. Cornell v. Israel e. Carter,
Treasurer Appeal. Reversed in the District
Court Of summit county.
These three cases, involving tho question Of tnx-
ing National bank stock In the hands Of the stock
holders taken out Of their order for hearing and
set down for oral argument on February 9th. -
The Court called twenty fve cases beginning
with No. rs.
MOTION DOCKET.
No, u. William r. Morris, jr., 1surviviDg admin
istrAtor v. Richard ii Stone. administrator Of Nell
b. Rairden. Leave TO file petition In error re-
| fused. .n.. lr4 Ia. L..fL,. .-yI. - - s
| No. 37. Solon Palmer v. Kesiah Palmer. Leave
| granted 10 file petition 10 error. ~
No. 3s. John Arral v. Samuel McGlll. Passed for
No. 80. Cleveland. Painsyillc 4 AshtabulA r. r.
| Go. v. Benjamin Curran. Leave granted 10 docket
/ reserved case,
No. 40. Lyman White, administrator dc 6onis non
| Of Joel w. Wilson, deceased v. Lyman w. Noe and
r. Mel. Gibson. Leave granted TO file petition in
/ error.
Writ Of error to Morgan County Common Pleas al
ENc. Is. James A. Frazier ct al. v. $. W. soibem
auditor OF al. Motion 70 take eases Nos. ls9 and
$50 out Of their order on general docket for hearnl
Adjourned until Thursdsy morning at 10 o'clocl
Piano Tuning.
| n.dare 1aft Of I Harria a. "a "a Store Mr.