Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-12-18
SUPREME COURT OF OHIO.
TUESDAY, Dec. II. 1857.
Ghief Justice-Luther Day. Justices-Williau
mite. John Welch, Jacob Brinkerhoff, and Josial
scott. Reporter-L. j, Critct field

TUESDAY. Dec. II. 1867.
wIts Hba .dS Pfy
scout. keporter-L. j. Critct field.
GENERAL DOCKET.
No. 4, James Ward q Co. v Wick Br thers &
70 ct al Error to the Court of Common Peas Of
ScorT. j. In a suit brought on negotiable prom
ss?ey notes b. the in lorsee and holder against the
make answered. svtrring that the notes were ma e
ior the ole recommendation OF the payee. and that
dorsemoat another party. afterwards. and before
IN me maturity, tn knowledge of the character
consideration. and without the knowledge or con.
sent OF the maker. that the plaintiff would pr tect
their ahs apa mo @ awe ~ ans payee time
de also averred that the plaintiff paid ID took up
SS.s s nc notes shortly after their maturity. though he
mhs not iegaly CHARGED as indorser by due
disho1or or otherwise.
Held: That the facts so averred do not constitute
because lst The terms of the cor tract set up as
oetense DO not import a direct agreement to dis |
tension Of time is void for uncertanty and could
not therefore discharge the maker if he be re-
the laches Of the holder in failing to give him due
notice OF dishon2r the maker not prejudiced by
ana sn is not thereby discharged.
N9.ls Ellj,h Taylor v. Samuel G. Fosters Ad-
BIS wife Civil sction. reserved in an The pistI,ei
Court of Preb!e county.
DhiNhEhHOFF, u. by tho will of q testatriX. af-
ter directing the payment of her debts. it was pro-
"seoOn lily: will that the children of the body
ss5sy Re .r& oGFd,sna
Of my neioe named ip the second place should die
with ut issue, that the share shares of such de-
ce lent or decedents shall be equally divided among
the survivors of thsm +" -
HedIrhat as to the real estate of the testasrix
bel by her In fec. there vested in sch Of her
deyisees. in common with the others. an estate in
each of them. the contingency of his or her dy-
ing without issue; that on the happening OF such
dents passed to the survivor or survivors BY wa,
OF eXscatory devise; and that on the death. with
he provisions Of the will had sucaeeded to
tion the share of prior decedent. the portion
or portions to which he had thus succeeded was
I SUBJECT to the same contingency as his original
share and passed to the survivor or survivors in.
| Demurrer to answer overruled. and cause reman-
No. 81. Charles Sehaefsr. Jesse wickersham
y, b. Turner Y; Marienthal, Lehman Co.
Error to the Supreme Court of Cincinnati in Gen.
eTal eTal Term.
l. Where Judgment is reversed, and the cause
fomanded for further pr ceedings, error will lie TO
still pending in the court to which it has been so
the sheriff under writs Of attachment. the sheriff
and the attaching creditors cannot. by virtue OF
/
action to recover damages for its subsequent CON
version or detention by q stranger.
defendants. and judgment of the court, her eupon
that the property be returned to them an action
evidence of property in the defendants, and may
De De Iebutted by showing exclusive property in one
Judgment affirmed.
No. SO. Elijah umstead v. Henry A. Buskirk ct
coany Reserved IN the be ,istrct Court. s Oh seneca
WHITE, He'd: !. The liability imposed by
of Incorporated companies in this State, on the
of certain corporations therein named
addition ~ to their stock subscribed, is security
creditors over which the corporate authorities have
Wright ct al. v. Mccormick ct al, announced at
| the present term.
9. The liability the part of the stockholders $
several IN its nature but the right arising out Of
this liability is intended for the common and equal
| benefit of q | the creditors.
should. under the statute he for the benefit of a !
of the creditors and the stockholders whose Ii bill
ity Is 'ught tn be enforced have the right Insist
on their co-stockholders being made parties for tn.
PURPOSES of gene tal account. and enforce from
stock. '' ''' - '''p'' ''0n u 'neif shA'eS Oh
A.. rhe rght of contribution grows out of the or
between them and the creditors each stockholder is
severalIy liable to all the ere litors-a as between
themselves etch st1ckhoder is bound to pay in pro-
5. Whsre a judgment creditor of an iusolve ut
zion Of his judgment by the enforcement of the
statut ry liability of the several Stockholders. and
is the only creditor. and the defendants the only
stockholders of the coroor4tion. and the petition
contains the necessary averments to charge the de-
PENDANT as such stockholders-the sustaining of a
demurrer a1d the dismiss, CT the petition the
sole ground tnat it does not show a of action
against the defendants. is erroneous.
| g. The corporation ought to have been made q
party, hut the omission, not having been OF jected
to in the Court below, constitutes no objection 20
| the reversal of the judgment.
Judgment reservsi aud cause remandel to the
Court of Common Pleas tor further proceedings.
Hannah w ilsoh ct al. v. Joseph p. Wilson and
| Butler.
BRINKERHooF. j.. Held
l. there person occu pies the double relation of
administrator of decedent's estate and guardian
of the minor heirs of such decedent, and it be-
comes his duty. as such admnstr ator, to pay over
guardian of the minor heirs the law will, in sener-
| al. presume such payment to have been made.
3. But this legal presumption may be rebutted.
And where he charges himself with the fund in his
account as administrator but fails to accredit him
self in that account with its payment to himself az
| guardian; and in an attempted settlement of his
therein with such fund, the legal presum ption of q
transfer of the fund is rebutted and in an action
for the recovery Of the fund he will be estcpped to
deny that he still holds the same administrator.
| judgment reversed and cause remanded.
MOTION DOCKET.
No. 80. Jacob Klein v. Joseph Thompson Leave
granted to tiis petition in error.
No.3s. Tnomis " dsara v. Ths State of Ohio.
writ OF error granted and execution of sente nee
No. 80. Ri.h,rd L. Bri,htwsll v. Levi Toot Q.
AL Leave e file petition in error refusei.
Case No. Ia on general docket taken out of its
Adjourned until Wednesday morning at 10 O'Clock
for oral argument.