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Pleadings-Practice.

PETITION-Continued.

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.

POSSESSION-

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.

PRACTICE-

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.

Practice.

PRACTICE-Continued.

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.

PRACTICE-Continued.

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.

PROBATE COURT-

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-

ver, 159.

PROCESS. See SUMMONS, 1, 2.

PROFITS. See DAMAGES, 2.

PROMISSORY NOTES. See BILLS OF EXCHANGE AND PROMISSORY
NOTES.

Protest-Railroads.

PROTEST-

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.

PUBLIC IMPROVEMENTS-

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.

PURCHASER-

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.

QUIET TITLE-

An action to quiet title can only be brought by a person in actual pos-
session; Harvey v. Jones, 65.

RAILROADS-

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

Railroad Bonds--Set-off.

RAILROADS Continued.

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.

RAILROAD BONDS-

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.

RECORD-

The record of a deed is but prima facie evidence of its delivery;
Harvey v. Jones, 65.

RECOUPMENT-

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.

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RENTS. See CONTRACTS, 6; DOWER AND CURTESY, 7, 9.

REPEAL-

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.

SALVAGE-

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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