Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1869-01-16
SUPREME COURT OF OHIO.
[Oficial Report Supervised by the Supreme
Court Reporter.l
TUESDAY, Jan, IL. 1869.

TUESDAY, Jan. II, 1869.
William White, Hon. Jacob Brinkerhoff,
Hon. Josiah Scott and Hon. John Welch,
Judges. l.. j. Chritchfield, Esq, Reporter.
GENERAL DOCKET.
No. 26. William Dunbar v. Richard D.
Harrison and others. Error to the Court of
Common Pleas of Clarke county. Reserved
in the District Court.
BRINKERHoFF, j.:
Where a railroad company assigns un-
paid subscriptions to its stock to its Presi-
dent, in trust for certain definite purposes
which have been fulfilled, and the company
being insolvent, one of its judgment cred
I ors brings an action under the 45Sth sec
tion of the code to subject the amount due
on such unpaid subscriptions to the pay
ment of his judgment-Held:
That as to the amount due on such sub
scriptions after the fulfillment of the trust
and the payment of all costs and expenses
OF its administration, the trustee is not en-
titled to retain from such fund the amount
of indebtedness of the company to him for
his salary as President thereof, the plain
tiff by his action having established spe-
cific lien on the fund as against less dill
gent general creditors, and being entitled in
equity to preference over them in its dis
tribution. Judgment affirmed.
WHITE, j., did not sit in this case.
No. 20. Addison L. Thompson ct al. vs..
Sarah L. Thompson. Error to the Supe-
rior Court of Cincinnati.
WHITE, j.,
l. In deed of conveyance to son-in-
law, the consideration stated was his mar
riage, and ''natural love and affection" of
the grantor for his daughter and the
grantee; and, the purpose express in the
deed, was to advance the grantee in life.
Held:
That no trust, in the estate conveyed,
arose in favor of the daughter.
2. In a suit to obtain the title to land. by
correcting mistake in deed under which
both parties claim, the grantor having no
interest in the controversy, is not rendered
incompetent as witness by Sec. 3l3 of the
code as amended March 81, 1864. though
the party against whom he is called upon
to testify, claims title and defends as heir.
8. Mistake as to the law of descents,
where the intention in making deed was
to vest the estate conveyed in the grantee,
affords no ground for relief in equity.
Judgment reversed and case remanded.
No. II. Samuel McCrory v James J.
Parks. Error to the District Court of Wood
county. { y @tft- .- = 5f-- t.-tf
Day, C.J.
An action was brought by one surety on
a Sheriff's bond against his co-sureties tor
an account between them, and to recover
OF each his proportionate share of iudg-
ed of him. One of the defendants also sought
to recover by answer and cross petition in
same case. against each of the parties, his
contributive share of an amount paid by
him on another judgment of amercement
to which all the sureties OF the Sheriff had
been made parties; but which judgment. it
appears, had been obtained by reason of
return, fraudulently procured by the de-
fendant upon an execution issued on
judgment against him, and the amount
paid by the defendant was in fact his own
debt that had not been otherwise dis
charged by him-Held:
l. The action was one in which the par
ties had not the right to demand trial by
jury, and was, therefore, appealable to the
District Court.
g. The parties in this case not being in
any sense adversary parties in the proceed
ings by which they were made parties to
the judgment paid by the defendant, and
his fraudulent conduct not being involved
in those proceedings, the plaintiff is not
estopped thereby from setting up, in this
case. the fraudulent non pay ment of the
original Judgment by the defendant.
g. The Judgment discharged by the de-
fendant being one that he alone ought to
pay, and one that resulted from his own
fraud, he has no ground for equitable CON-
tribution against his co-defendants in the
Judgment.
Judgment reversed and cause remanded
for further proceedings.
No. %. c. B xler by qua. dian v. John
Bixler. Reserved in the District Court of
Clarke county. Remanded to the District
Court TOR want OF prosecution in this
Court.
No. 80. Nancy Mcbride v. Sarah l..
Pool. Reserved in t e District Curt of
Rlchland county. Dismissed for WANT of
prosecution.
MOTION DOCKET.
No 3. Solomon Ludwig v. Henry Fry.
Leave refused to file petition i'll error.
No. Is. Etna Insurance Company v.
VIM. F. Church. Leave granted to file Pc
tition in error.
The Court are hearing oral arguments in
Nos. 33, 81 and 35 on general docket.