7. It is not a misjoinder, under the code, to join as defendants the surviv- ing co-obligors of a bond with the legal representatives of a deceased obligor; Chatfield v. Faran, 488.
8. Where a petition sets forth a contract for the sale and delivery of goods, and assigns two breaches, one that those actually delivered did not correspond in quality with the terms of the contract; the other, that another portion were not delivered at all; this constitutes two dis- tinct causes of action, and should be separately stated; Work v. Mitchell, 506.
9. See NEW TRIAL, 7.
PLEADINGS-
1. It is a fundamental rule of all pleading that all averments shall be direct and positive; the accompanying affidavit of verification may be made on belief, but the averments of the pleading should be posi- tive statements of facts; State Bank of Ohio v. Oliver, 159.
2. In an action on an undertaking in error, where the bond is referred to in the petition as "filed herewith, marked A," and it becomes necessary to look beyond the petition to the exhibit, in order to dis- cover the character, amount, and condition of the bond, the pleading is not sustainable; West v. Dodsworth. 161.
3. The value and extent of the obligation should be alleged in the peti- tion, showing the facts, amount, and foundation of the claim; Iỗ.
4. A single statement that each and all of the allegations are denied, is good as a general denial; but if the denial be intended to be specific, and facts are introduced for that purpose, it must appear, by aver- ment, to which of the material allegations those facts are intended to apply; Creighton v. Kellermann, 548.
5. See ANSWER; COUNTER-CLAIM, 1; DEMURRER, 1; MOTION, 1, 2; PETI- TION; PRACTICE, 2, 3, 4.
1. A possession adverse to the grantor at the time of purchase, is con- structive notice to the vendee; Harvey v. Jones, 65-
2. An action to quiet title can only be brought by a person in actual pos- session; Ib.
POWER OF SALE. See CHATTEL MORTGAGE, 1; CONSIGNOR AND CON- SIGNEE, 1, 2, 3.
1. An affidavit in the disjunctive will not support an attachment; Rogers v. Ellis & Sturges, 1.
2. The executors or administrators of a deceased mortgagor should be made parties to a suit in foreclosure; Hall v. Musler, 36.
3. An assignee, of damages resulting from injuries to personal or real es- tate, may maintain an action in his own name; Hall v. C. H. & D. R. R. Co. 58.
4. Such claim is distinct from a claim arising after his ownership of the property; and a demurrer will lie, if not separately stated and num- bered; Ib.
5. An action to quiet title can only be brought by a person in actual pos- session; Harvey v. Jones, 65.
6. When the real debtor is served with process, with a wrong description of his Christian name, there is no jurisdiction acquired; Lyons v. Donges, 142.
7. A discovery can not be claimed in a petition to enable the plaintiff to find out his own cause of action; the petition must contain a concise statement of facts, showing of itself, a cause of recovery against the defendants named; Work v. Haughton, 156.
8. An allegation in a petition that the defendant debtor has "no goods," is not sufficient in a petition, under section 458 of the code; the action is allowed when the judgment debtor has not personal or real prop- erty sufficient to satisfy the judgment; St. Bank of Ohio v. Oliver, 159. 9. The right to set off one judgment against another can not be defeated by the plaintiff in the later judgment, making an assignment, to a third party, of his expected judgment; Johnson v. Taylor, 168.
10. Mortgage notes, whether for principal or interest, are to be paid from the mortgage fund in the order of the maturity of such principal or interest; Beresford v. Ward, 169.
11. The decision overruling a demurrer may be assigned for error, al- though no exception thereto appears on the record; Ruffner v. Ham. Co. 196.
12. Where counsel, after the charge of the court was given, and when the jury were about to retire, told the court that he excepted to the charge generally, and was thereupon desired by the court to point out the particulars to which he objected, and was informed that on so doing, the jury would be reinstructed, but he declined to do so, the general exception, under such circumstances, will not be taken into notice, on error; Moody v. Thomas, 294.
13. In a suit by a wife against the husband, to enforce an ante-nuptial agreement in relation to the wife's property in the husband's posses- sion, the court may order the payment, pendente lite, of a reasonable allowance to enable her to prosecute her suit, and may enforce the same by execution; O'Donnell v. O'Donnell, 299.
14. But not for alimony, that being within the exclusive jurisdiction of the court of common pleas; Ib.
15. Such an order affects substantial rights between the parties, and may be reviewed on error; Ib.
16. It is proper practice to dismiss the action where an attachment, ob- tained on a debt not due, under section 230 of the code, is discharged; Heidenheimer v. Ogborn, 351.
17. It is too late to ask, upon a trial or final hearing, for the dismissal of an action, for want of other proper parties; whenever there is a de- fect of parties, the defendant may demur and set up the fact; Milius v. Marsh, 512.
18. The whole theory of the code practice is founded on the leading idea that an action once pending, shall not be permitted to fail, if by amendment any defects in pleading can be remedied; Ib.
19. The court are not required to await the presence of attorneys or clients when it is desirable to reinstruct the jury upon questions of law; Ib; Chambers v. O. L. Ins. & Trust Co. 327.
20. 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. 21. A general motion to make the reply more definite and certain, will lie where the plaintiff makes allegation of fact in a reply, not ad- dressed to any particular material allegation of the answer, setting up a counter-claim; and concludes with a general denial of every allega- tion in the answer not consistent with the reply; Creighton v. Keller- mann, 548.
Principal and Agent-Promissory Notes.
22. Where an order of attachment has been allowed and issued, before the debt is due, and it is subsequently discharged, it is a matter of discretion with the court whether the action shall be dismissed or allowed to proceed, after the debt has become due; Ramsay v. Over- aker, 569.
23. The costs and expense of storage, or for other care of property, is a proper charge on the fund arising from the sheriff's sale of the prop- erty; the plaintiff is not liable therefor; Ramsay v. Overaker, 571. 24. A motion will not be entertained to strike from an answer the state- ments of fact alleged as probable cause; a demurrer would lie if the facts, as stated, did not constitute such defense; Wilson v. Ferrari, 579. 25. Judicial sales will be upheld; no technical irregularities are permitted to deprive the purchaser of his rights; there must be not mere in- formalities, however gross, or error, however apparent, but a palpa- ble defect of power in the court, before his claim can be defeated; Cadwallader v. Evans, 585.
26. The duty to attach in the presence of two credible persons is directory and not imperative; Davidson v. Kuhn, 405.
27. The deposition of a plaintiff, taken during the pendency of the suit, is not admissible on the trial when the defendant has since deceased; Neville v. Hambo, 517.
28. See ARBITRATION AND AWARD; ATTACHMENT; CHARGE of Court; COUNTER-CLAIM AND SET-OFF; COUNTY COMMISSIONERS, 3; Error; EVIDENCE; EXHIBITS; NEW TRIAL; PETITION, 1, 2; SUMMONS, 1, 2. PRINCIPAL AND AGENT. See ACTION, 11; LIEN, 1, 2; Torts. PRINCIPAL AND SURETY—
1. The indorser of a negotiable note is discharged from liability thereon in case his indorsee gives the maker an extension of time, by taking a new note and receiving interest in advance; Atkinson v. Talbott, 111. 2. The mere promise by the maker of a negotiable note, made to the holder at maturity, that he would pay the unpaid balance in three particular payments, with ten per cent. interest, is not, of itself, suf- ficient to release a surety indorser; Tinan v. Wayne, 148.
3. Some binding agreement for an extension must be shown; Ib. 4. See ADMINISTRATION BONDS, 3; BILLS OF EXCHANGE.
PRISON. See PARDON, 1, 2.
PRIVILEGE OF PURCHASE. See CONTRACT, 1, 2, 3; COVENANT. PROBABLE CAUSE. See MALICIOUS PROSECUTION.
The act of March 14, 1853, conferring criminal jurisdiction upon probate courts, did not include this county; Ex parte Wagener, 10. PROCEEDING IN AID OF EXECUTION-
In an action, under section 458 of the code, an allegation that the debtor has "no goods," is not sufficient; such action is allowed when the judgment debtor has not personal or real property subject to execu- tion, sufficient to satisfy the judgment; State Bank of Ohio v. Oli-
PROCESS. See SUMMONS, 1, 2.
PROFITS. See DAMAGES, 2.
PROMISSORY NOTES. See BILLS OF EXCHANGE AND PROMISSORY NOTES.
1. Notice by mail to a non-resident, must be deposited in the post-office, with his address, in time to be sent by the mail of the next day, un- less the mail be closed before early business hours; West v. Brown, 48.
2. A notarial certificate is prima facie evidence of all the facts therein certified; Layman v. Brown, 75.
3. The words "protest waived," over the name of an indorser are held to be a waiver of all the steps required by law to fix his liability; McIlvaine v. Bradley, 194.
4. No consideration need be shown for such waiver; Ib.
5. When a note is made payable at The Ohio Life and Trust Co. N. Y., it is competent to prove that The Ohio Life Insurance and Trust Co. N. Y., is meant, and presentment and demand accordingly is sufficient; Powell v. State Bank of Ohio, 269.
6. An inaccuracy in the description of a note, contained in the notice of protest, by which the indorser would not be led to misunderstand what note was intended, is immaterial; Ib.
7. When a note is payable in New York, the party to whom it is sent for collection is the holder for the purpose of demand and notice; and notices sent by him, or the notary, leaving New York by the next day's mail, directed to the last indorser, and on the next day after their receipt, the one intended for the plaintiff in error was delivered to him in person by an agent of the last indorser, it is suf- ficient; Ib.
1. A city has a right to compensation, when her public improvements are appropriated or destroyed by the county authorities; Cincinnati v. Ham. Co. 4.
2. See COUNTY COMMISSIONERS, 2, 3, 7, 8.
1. A possession adverse to the grantor, at the time of purchase, is con- structive notice to the purchaser; Harvey v. Jones, 65.
2. The purchaser of the mortgagor's interest, after condition broken, takes but the equitable right to redeem, and is not protected by the rule as to bona fide purchasers, and is bound to take notice of all prior equities; İb.
3. The vendor of the stock, fixtures, and good will of a business, is not required to cease carrying on business in that vicinity; Moody v. Thomas, 294.
4. A bona fide purchaser, for valuable consideration, actually paid, ac- quiring personal property from one having possession and apparent ownership, and with the consent of the real owner, acquires a good ti- tle, although the possession was obtained from the rightful owner by fraud and false pretenses; Schaeffer v. Macqueen, 453.
5. See PRACTICE, 25; USURY, 7, 8, 9, 10, 11.
An action to quiet title can only be brought by a person in actual pos- session; Harvey v. Jones, 65.
1. The power granted under section 13 of the railroad act of Feb. 11, 1848, authorizing railroad companies to borrow money on the secur- ity of their property and income, includes the authority to mortgage
after-acquired property, and embraces every species of property necessary to the operation of the road; Ludlow v. Hurd, 552.
2. Such mortgage trustee will be protected by injunction against the at- tempts of a judgment-creditor who has levied on, and threatens to sell, çertain office furniture of the railroad company, when it appears that the other mortgaged property is insufficient to pay the mort- gage debt; Ib.
3. See CORPORATIONS, 1, 2, 3, 4, 5; RAILROAD Bonds, 1.
1. The statute of December 15, 1852, relating to the sale of railroad bonds at such prices as the directors may choose to take, does not apply to foreign corporations; McGregor v. Cov. & Lex. R. R. Co. 509.
2. See INJUNCTION, 3; MORTgage, 6, 7.
The record of a deed is but prima facie evidence of its delivery; Harvey v. Jones, 65.
A bona fide indorsee of commercial paper, without notice of a claim of recoupment against the payee, can not be affected by such claim, in his action against the maker; Loomis v. Eagle Bank of Roches- ter, 285.
RENTS. See CONTRACTS, 6; DOWER AND CURTESY, 7, 9.
Where two affirmative statutes exist, the one will not be construed to re- peal the other by implication, unless they can not be reconciled by any mode of interpretation; Ruffner v. Ham. Co. 39.
ROADS AND HIGHWAYS. See STREETS.
RULES OF CONSTRUCTION. SALES-
See CONSTITUTIONAL LAW, 4.
1. A contract of sale of personal property at a given price, to be reduced to the lowest sum that the vendor may accept at future sales, within a given period, is not void as a wager; McGregor v. Cov. & Lex. R. R. Co. 509.
2. A sale by a corporation of its own obligations for the payment of money, such as railroad bonds, is a contract for the loan of money; Ib. 3. See CHATTEL MORTGAGE, 1; CONSIGNOR AND CONSIGNEE; LIENS, 1, 2; USURY, 9.
A charge of salvage is rather in the nature of a direct loss than of a mere charge to bring forward the property; Hall v. Rising Sun Ins. Co. 308.
SECOND TRIAL. See NEW TRIAL.
SERGEANT-AT-ARMS. See COUNTY COMMISSIONERS, 4, 5, 6. SERVICE. See SUMMONS, 1, 2.
SET-OFF. See COUNTER-CLAIM AND SET-OFF.
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