Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1867-01-23
Supreme Court of Ohio.

SAAH CAAAC CSNAA VI OAAAOa
TUESDAY, Jan. Is, 1867.
Hon. JOSIAH ScoTT, Chief Justice;
Hon. LUTHER DAY, Hon. WIN. WHITE,
Hon. JOHN WEIGH and Hon. JACOB
BRINKERHoFF, Judges.
L. j. CRITCHFIED, Esq, Reporter.
GENERAL DOCKET.
No. 24. Matilda Byers v. Joseph X.
Mackman.
Error to the Court of Common Pleas
of Wood county, reserved in the District
Court.
WEIGH j.:
a resulting trust, arising from the pay
ment Of purchase money, may be estab-
lished by patrol proof.
Where the defendant in a statutory
proceeding for partition appears and an
swers, and the case is submitted to the
Court on an agreed statement of the facts,
the order of partition made will not be re-
versed in error, merely because the agreed
statement shows an equitable, and not a
strict legal title, in the demandant.
A purchaser of land at SherifFs sale.
under a proceeding in attachment, takes
it subject to all equities of third persons,
unless he can project himself under the
plea of bona Jfde purchaser without notice.
Such a plea cannot be interposed where,
after the service of the attachment, and
before the Sheriff7s sale, the defendant in
attachment conveys the legal title to the
equitable owner, and the deed is duly re-
corded before such sale, although the
purchaser had no actual notice of the
deed, or the rights of the grantee therein.
Judgement affirmed.
Thomas Mimms VS.. the State of Ohio
Error to the Court of Common Pleas of
Hamilton county.
DAY, J.-Held:
l. The sentence on a conviction of MUIR
der, will not be reversed upon errors as
signed to the rulings of the Court on the
examination of a juror upon his Uoir dire,
or to the refusal of the Court to sustain
the defendants challenge of such juror
for cause, where the juror was set aside
on ~peremptOry challenge of the defend
ant, and where without exhausting his
peremptory challenges, he permits the ju-
ry, called as provided by law, 10 be sworn
and to try the case without further chal-
lenge or objection.
2. It is competent, on q trial for murder,
for the State to prove, as a circumstance
for consideration of the jury, that the de-
PENDANT made threats against the property
Of a person other than the deceased, and,
where the evidence shows that such prop
erty was then in the possession of the
deceased, and that shortly after the muir
der, was found in the possession of the
defendant
3. Where the Court improperly over
ruled the objection of the defendant to tes-
timony offered on the trial by the State,
the judgement against him shall not be re-
versed for such ruling, when
the Court, on motion of the defendant,
excluded all the testimony so given from
the consideration of the jury, and Instruct
ed them that It must be wholly d~isregarded.
4. Where, on trial for murder. it is
shown that property, in the possession of
the deceosed, shortly before the murder,
was soon thereafter found concealed on
the premises of 4 third person, about that
time in the COMPANY of the defendant, it
is competent for the State to prove the
acts and declarations of such third person
accompanying the discovery of the prop
erty, tending TO show his custody thereof,
as a circumstance for the consideration of
the jury, in connection with other proof,
in determining whether he was made such
custodian by the defendant.
3. 1t Is not in error for the Court, in
charging the jury, to recite what IS claim
ed by the parties to be proved, where this
Is fairly lone for the purpose of a proper
explanation of the law applicable to the
case.
G. 1t is not in error for the Court, in
criminal prosecutions, to instruct the jury
as to the form of a verdict proper to be
rendered by them, and the Court may give
them such forms of a verdict in writing,
either of which it will be proper for them
to adopt as they may find the facts to
require, under the instructions Of the
Court.
Judgement affirmed.
No. %. William Patterson VS.. Cyrus
McNeely, Ex'r of Eliza II. Hatcher, decd.
Error in the Court Of Common Pleas of
Harrison County. Reserved in the Dis
trict Court.
SCOTT, J. c.
In q promissory note, made payable one
year after date, there was the following
clause ''The above to be at ten per cent.
interest annually. Held: l. That the
word s.annuqlLy'' III this connection, IS
to be understood as relating 10, and def
ming the rate 0 finterest, and is equivalent
to .he words per GzH0ns and that the
clause is not a stipulation for the annual
payment of interest.
3. The interlining of the word paid be-
fore the word annually in the clause
aforesaid, is a material alteration~of the
note.
3. Where such note has been signed by
a surety, and was subsequently, without
the knowledge or consent of the surety,
so altered, before delivery the payee be-
ing priyy to such alteration at the time of
delivery, and knowing that the surety had
not assented thereto;-Held: That no ac-
ton can be maintained, against the surety
upon such altered note.
Judgement OF the Court of Common
Pleas reversed, and judgement entered
for defendant below, IN the special verdict
of the jury.-Colum5Hs Journal.