particular charges objected to, will not be taken notice of on error;
Moody v. Thomas, 294.
2. See PRACTICE, 11, 12.
EXECUTION—
1. The lien acquired by a levy, does not depend upon the continued ac-
tual possession of the property after seizure; it may be lost by such
acts or conduct as would make it unjust, and in the nature of a fraud
to others, to allow it to be enforced; Moore v. Powell, 144.
2. A plaintiff in execution is not liable for a trespass or wrongful taking
of goods unless he ordered or directed the officer to levy on the par-
ticular goods, or participated in the taking other than by mere suing
out process; Coe v. Higdon, 393.
3. See LEVY; PROCEEDINGS IN AID OF EXECUTION, 1.
EXECUTORS, ETC. See ADMINISTRATORS AND EXECUTORS.
EXHIBITS-
1. In an action on a city assessment, the plaintiff will not be permitted
to file the city ordinances as exhibits, or to embody them in the pe-
tition; Carney v. Kirby, 479.
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FOREIGN CORPORATION. See BANK NOTES, 1; RAILROAD BONDS, 1.
FRAUD-
1. An action for fraud and deceit must be founded on a misrepresenta-
tion of an existing fact, and can not be based on a future occurrence
or an act to be done; there must be knowledge at the time in the
party who is charged with fraud and deceit; Smith v. Bowler, 520.
2. In a contract for a performance at a future day, the mental reserva-
tion of one party that he will not abide the agreement, can not
change its nature or destroy its obligation; Ib.
3. An allegation that the defendant has fraudulently prevented the
plaintiff from performing the contract, since he has refused to give
him a written memorandum of its terms, as promised, does not raise
the implication of fraud or deceit; Ib.
1. A contract for services, not to be performed within the year, can not
be enforced, unless reduced to writing and signed by the party to be
charged thereby; part performance for two years will not strengthen
a claim for services originally agreed to be rendered for more than
three years; Smith v. Bowler, 520.
GUARDIAN. See INFANT, 1.
HABEAS CORPUS-
1. Whether a court of general criminal jurisdiction has jurisdiction of a
particular offense, would not be a proper subject of inquiry on a
habeas corpus before another tribunal; Ex parte Wagener, 10.
HAND-WRITING. See EVIDENCE, 8.
HIGHWAYS. See STREETS.
1. The covenant of married women to convey their real estate, can not
be specifically enforced; O. & M. R. R. Co. v. Crary, 128.
2. But it binds them by way of estoppel, and where it is contained in a
perpetual lease, with privilege of purchase, upon payment of the pur-
chase-money into court, an injunction will be allowed restraining
them from setting up title to the premises; Ib.
3. Where money is secured by mortgage upon the wife's property, and is
received by the husband, as her agent, to be reinvested for her ben-
efit, and is so reinvested, the fact of its passing through his hands is
not such a change of its character as entitles his creditors to subject
it to the payment of their claims: Newton v. Clark, 265.
4. In an action by the wife against the husband, to enforce an ante-nup-
tial agreement in relation to the wife's property, in the husband's
possession, the court is authorized to make an order, pendente lite,
for a reasonable allowance by the husband, to enable the wife to
prosecute her suit; and may enforce the payment thereef by execu-
tion; O'Donnell v. O'Donnell, 299.
5. But not for alimony, that being within the exclusive jurisdiction of
the court of common pleas; Ib.
6. The property of a wife is protected by law for her benefit, and where
her property is lost by the neglect of a railroad company, she is en-
titled to the damages recovered by her husband, for such neglect, of
the railroad company; Pierson v. Smith, 305.
7. The right of the wife will follow any claim or fund into which her
property has been changed by the act of another; Ib.
8. The reducing into possession the choses in action of the wife may be a
matter of inference from acts done, which may be rebutted, and the
attending circumstances may be considered; Ib.
9. A feme covert is not competent to enter into contracts so as to give a
personal remedy against her; she may pledge her separate property
and make it answerable for her engagements: Groene v. Frondhof, 504.
10. See ADMINISTRATOR AND EXECUTOR; DOWER AND CURTESY.
INDORSER-
1. Notice, by mail, to a non-resident, is sufficient if posted at 9 o'clock a.
M. next day, although it happens to be Saturday, and that such mail is
made up daily at 5 A. M., Sundays excepted; West v. Brown, 48.
2. The words "protest waived" is a waiver of all steps required to fix
the indorser's liability; McIlvaine v. Bradley, 196.
3. When the act of the notary is waived, it is equivalent to what his act,
if legally performed, would be when offered in evidence; Ib.
4. When a note is made payable at the Ohio Life and Trust Company,
N. Y., it is competent to prove that the Ohio Life Insurance and
Trust Company, N. Y. is meant; and presentment and demand ac-
cordingly is sufficient; Powell v. State Bank of Ohio, 269.
5. An inaccuracy in the description of the note, contained in the notice
of protest, by which the indorser would not be led to misunderstand
what note was intended, is immaterial; Ib.
6. See BILLS OF EXCHANGE; PRINCIPAL AND SURETY, 1, 2, 3; USURY.
INFANT-
1. In an action against an infant heir for the specific performance of a
contract to convey lands, the infant's portion of the purchase-money
will be ordered to remain in court until he arrives at age; O. & M.
R. R. Co. v. Crary, 128.
1. Acquiescence in, or consent to, alleged illegal acts of a majority of the
county commissioners, alleged on the part of the other commissioner,
as plaintiff in an injunction proceeding, would bar his right to an in-
junction; but it is a matter of defense which must be set up and relied
on by the defendants, at the hearing, in order to be available; Ruff-
2. The remedy, by injunction, exists under special circumstances, to en-
force the execution of a trust, with regard to chattel property, and
to preserve the same from waste; or, when the ordinary remedies at
law would be inadequate to correct the mischief; Winslow v. Troy
Iron and Nail Factory, 229.
3. It will be exercised in favor of a trustee, acting under a mortgage
given by a railroad company to secure bond-holders, where it is de-
sired to prevent the sale of the driving-wheels of a locomotive, which,
while temporarily detached for repair, had been levied on by other
creditors of the company; Ib.
4. See COUNTY COMMISSIONERS, 3.
1. In every case of double insurance, the risk must be on the same prop-
erty; the liability must be precisely the same; Roots v. Cincinnati
Ins. Co. 138.
2. The insured may take policies upon different parts of the same build-
ing, or of the merchandise within the building, or upon different in-
terests in both; Ib.
3. Parol testimony is admissible to establish the identity and extent of
property covered by a policy; Ib.
4. An acknowledgment of the receipt of the premium is conclusive, un-
less otherwise expressly provided; Madison Ins. Co. v. Fellowes, 217.
5. Where it is provided that all claims are to be barred unless prosecuted
within a year from the date of loss, the condition is complied with
by commencing an action thereon within the year; and in case that
action is abandoned, for good cause, and another instituted promptly,
but after the expiration of the year, the assured is not barred; İb.
6. In case the policy provides that other insurance, not notified to the
company and mentioned in or indorsed upon the policy, shall avoid
it, it is error to admit parol evidence of conversations to show that
the company had notice of other insurance at the time of delivery,
though not mentioned in the policy; Ib.
7. In case of such condition subsequent, it is enough if the assured give
notice of the subsequent insurance, and is ready and willing to have
the indorsement made; Ib.
8. Where the premises consist of two distinct buildings, separately in-
sured, and the subsequent policy covers both, it constitutes a case of
double insurance; Ib.
9. The word loss or average, in a marine policy, is not confined to sea-
damages, but extends to charges fixed upon the property by reason
of the accident itself; Hall v. Rising Sun Ins. Co. 308.
10. Where a policy provides that the insurers shall not be liable except
in cases of general average, for any loss or damage, unless "it
amounts to twenty per cent. of the aggregate value of such property,"
in estimating the loss, the expenses incurred for rescuing the prop-
erty, restoring it to its former condition, loading and unloading,
Interest-Judicial Discretion.
costs of protest, etc., may be added to the damage or injury done to
the property itself; Ib.
11. A charge for salvage is rather in the nature of a direct loss than of a
mere charge to bring forward the property; Ib.
12. Contracts for life insurance are not contracts of indemnity like those
of fire and marine insurance; if there is a failure to pay the premium
at the time when, by the terms of the policy, it is to be paid, the risk
is at an end; Robert v. New England Life Ins. Co. 355.
13. The failure to pay a premium note determines the policy; Ib.
14. A proposition made by A to insure on account of B C, loss, if any, to
be paid to A and D, when embraced in a policy, covers only the in-
terest of B C; Cin. Ins. Co. v. Rieman, 396.
15. Where insurance is taken upon merchandise by A for and on account
of whom it may concern, the risk attaches only to the interest of the
party actually intended to be covered at the time the contract was
made; lb.
16. Where premises, insured against loss by fire, are described in the ap-
plication and policy as a warehouse, a warranty is implied that the
property shall, during the continuance of the risk, conform to that
description, and any change in its character invalidates the contract;
Elstner v. Cin. Eq. Ins. Co. 412.
17. This consequence will not be averted by parol proof that the com-
pany were notified of the intention to make such change; Ib.
18. To authorize a court of equity to reform a policy on the ground of
mistake, there must be clear proof of a mutual mistake by the omis-
sion or insertion of a material stipulation, contrary to the actual
agreement and intention of the parties; Ib.
19. A clause in a policy of insurance reserving to the insurer the right to
terminate the insurance at any time, by giving notice to that effect
to the assured, and refunding a ratable proportion of the premium,
does not destroy the, mutuality of the contract, and is valid; Nat.
Ins. Co. v. Irwin, 430.
1. Payment of usury in other transactions is no defense to a suit on a note;
Smead v. Chrisfield, 18.
JOINDER OF ACTIONS AND PARTIES.
JUDGMENTS, ORDERS, AND DECREES—
1. The right to set off one judgment against another can not be defeated
by the plaintiff in the later judgment making an assignment of the
expected judgment to a third party; Johnson v. Taylor, 168.
2. A judgment will not be set aside on a showing of the defendant that
the plaintiff is not the real party in interest; Smead v. Fay, 531.
3. A collateral inquiry will not be permitted to impeach the validity of
the proceedings of a court of competent jurisdiction; Cadwallader v:
Evans, 585.
1. Where a justice of the peace exercises a legal discretion as to the
ability of bail on an appeal bond, he is protected by law unless he
Judicial Sale-Justices of the Peace.
JUDICIAL DISCRETION-Continued.
exceeds his authority, or actual malice is shown; Cohen v. Mar-
chant, 113.
2. See ERROR; NEW TRIAL; PRACTICE, 12, 13, 16, 19, 22.
JUDICIAL SALE. See PRACTICE, 25.
JURISDICTION—
1. The repeal of the act of March 12, 1852, creating the criminal court of
Hamilton county, invested the court of common pleas with general
jurisdiction in criminal cases; Ex parte Wagener, 10.
2. Whether a court of general criminal jurisdiction has jurisdiction of a
particular offense would not be a proper subject of inquiry in habeas
corpus before another tribunal; Ib.
3. The act conferring criminal jurisdiction upon probate courts, ex-
cluded this county; lb.
4. Where the real debtor is served with process, with a wrong descrip-
tion of his Christian name, the court acquires no jurisdiction over
him; Lyons v. Donges, 142.
5. A motion to require the sheriff to make a new return, or amend his
former return, so as to show the real name of the party served, will
not be entertained; Ib.
6. This court has no jurisdictian of an action founded on an administra-
tor's bond; that jurisdiction rests with the court of common pleas;
Chatfield v. Faran, 488.
7. This court has jurisdiction of an action to compel an administrator
to render an account of his administration; Cadwallader v. Long-
ley, 497.
8. A creditor can not be aided, either in law or in equity, in enforcing a
claim on real property situate beyond the jurisdiction of the court;
Butterfield v. Ogborn, 550.
9. The court of common pleas had jurisdiction of an action brought in
the year 1840, under the administration act of March 12, 1831, to
subject an intestate's real estate to the payment of his debts; Cad-
wallader v. Evans, 585.
10. The mere form of petition addressing the court as sitting in chan-
cery, or at law, can not derogate from the validity of any order or
decree rendered therein; Ib.
11. No collateral inquiry will be permitted to impeach the validity of
proceedings had by a court of competent jurisdiction; Ib.
1. Required in assessment of damages on the vacation of streets in a
town plat; Cincinnati v. Ham. Co. 5.
2. A new trial should be granted where depositions disclosing important
facts, though not admitted as evidence, yet were with the jury in
their deliberations; Bronson v. Metcalf, 21.
1. If a justice refuse to allow an appeal, or does any act whereby the
party is deprived of the benefit of his right to appeal, an action for
damages will lie against him; Cohen v. Marchant, 113.
2. Where the justice exercises a legal discretion as to the ability of bail,
or otherwise, he is protected by the law unless he exceeds his au-
thority, or malice is shown; Ib.
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