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Practice.

PRACTICE-Continued.

against different persons, in the same bill. Cadwallader o. Granville

Alexandrian Society, 292.
16. Where a forfeiture of penalties may ensue, from the answers to a bill,

the defendant is not bound to answer. Ib.
17. Where forfeitures or a penalty may ensue from the answers to a bill, the

defendant is not bound to answer. Ib.
18. Where a bill is framed in the alternative, charging that property is held

under an illegal and void agreement, and praying that it may be set
aside; or, if held valid, that the debtor's residuary interest may be sub-
jected, the defendant may be protected in withholding a disclosure as to

part, while he would be bound to answer the remainder. Ib.
19. In a suit against principal and surety, a plea, by the surety, that the time

was extended without his consent, is bad, not being an answer to the

whole action. Slipher v. Fisher et al. 299.
20. Proceedings may be arrested at any stage of the case, when it is discov.

ered that judgment would be arrested after verdiet. Ib.
21. A general and standing order of the court of common pleas, directing

the clerk to issue execution for costs, will authorize him, without any

special order, to issue such execution. Elliott v. Ellery, 306.
22. The omission to make the certificate which judgment debtor is principal,

and which is surety, can not be corrected by writ of error. Kelly et al.

v. Collins, 310.
23. It may be corrected in the court where the judgment was rendered.

Semble. Ib. 311.
24. If the certificate were refused in a proper case, and the facts appeared by

bill of exceptions, error would lie. Ib.
26. Where a judgment is entered up for collection fees, in addition to the

principal debt and interest, the judgment may be set aside, on motion.

Shelton v. Gill et al. 417.
26. A defective appeal bond, if it contain the substance of a bond, will sus.

tain an appeal, so far as to justify an order to file a new bond. Saterlee

et al. v. Stevens, 420.
27. The right of a jury to judge of the law, in a criminal case, is not abso-

lute, but is to be exercised agreeably to section 6, article 8, of the consti-

tution, under the direction of the court. Montgomery v. The State, 424.
28. The substance of dying declarations is admissible, but it must appear

that the deceased was conscious of his condition in making them. Ib.
29. In proceedings against an attorney for malpractice, the evidence must be

confined to, and establish the specifications. Ohio v. Chapman, 430.
30. Where a person is appointed guardian for a female minor under twelve

years of age, his guardianship expires upon her attaining that age.

Perry v. Brainard, 442.
31. After her arrival at that age, the court can not order the guardian to sell

her land. Ib.
32. If such order and sale be made, it is void. Ib.

Presumption-Principal and Surety.

PRACTICE—Continued.
33. An objoction to the examination of a co-defendant in chancery, as a wit-

ness, without special order, comes too late at the final hearing, and after

cross-examination. Woods o. Dille et al. 455.
34. After a jury have returned their verdict, and have been discharged, they

can not be recalled, to alter or amend it. Sargent o. The State, 472.
35. In criminal cases, the verdict should be received in presence of the pris.

oner, that he may have the jury polled. Ib.
36. It may be received by a single judge. Ib.
37. The court may, and in some cases ought to, keep the jury together until

their verdict is rendered. Ib.
38. Where the jury, by mistake, render a verdict only upon one or more of

several counts in an indictment, it is competent for the prosecutor to
enter a nolle prosequi, as to the counts on which the jury have not

passed. Ib.
PRESUMPTION-
1. Arguments which assume the possibility that a co-ordinate branch of

government will wantonly violate its plain duty, ought to be held of

little weight in a court of justice. Ohio o. Choate, 511.
2. The presumption is that every public functionary will faithfully observe

the obligations of duty and of his oath. Ib.
3. The official acts of legislative bodies are to be considered legal until the

contrary appears. Ib.
See EVIDENCE, 7, 8; Trust AND TRUSTEE, 5, 6; BANKS AND BANKING, 10.
PRINCIPAL AND AGENT-
1. Where a commission merchant sells flour consigned to him contrary to

the instructions of his principal, he may be treated as a purchaser, and
the value recovered, as for goods sold. Woodward o. Suydam & Bly-

denburg, 363.
2. The value at the time of sale is the rule of damages. Ib.
3. But if the commission merchant, from time to time, sends a bill of sales,

to which no objection is made by tbe principal, and he draws for the
balance of the account rendered, it is a ratification, and the principal

can not recover for an alleged violation of his instructions. Ib.
PRINCIPAL AND SURETY-
1. The relation of principal and surety subsists after judgment. Bank of

Lake Erie v. Western Reserve Bank, 444.
2. The surety may demand from the judgment creditor the pursuit of the

debtor's unincumbered property. Ib.
3. If the creditor, unnecessarily and without cause, forego the means of

satisfaction, he will not be permitted to claim it afterward from the

surety. Ib.
4. A surety, by paying the debt, may substitute himself for the creditor,

and take upon himself the administration of his remedies. Ib. 451.
6. But he has no right to interfere with the creditor's pursuit, unless he can

VOL. XI-31

Priority-River.

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PRINCIPAL AND SURETY- Continued.

point out the property of the debtor upon which the burden will fall

moro equitably. Ib.
See SURETY, 2, 3, 4, 5, 6, 7.
PRIORITY-
See CREDITOR AND CREDITOR'S BIL.L.
Among judgment creditors and purchasers of land subject to judgment

liens. Kirsman v. Loomis and Wood, 475.
PROBATE-

See WILL
PROMISSORY NOTES-

See Dills OF EXCHANGE.
PROTEST DAMAGES-

See Bills OF EXCHANGE, 9, 20.
PUBLIC RIGHT-
The public right to a highway may be lost by non-liser, but not by the en-

croachment of an adjacent owner for eighteen years. Fox o. Hart, 414.
PUBLIC USE-
Unless a law which authorizes private property to be taken for public use

provides also for compensation to the owner, it is void. Foote o. Cin-

cinnati, 408.
PURCHASER-

See VENDORS AND PURCHASERS.
QUO WARRANTO-

1. Pleadings in. State of Ohio v. Granville Alexandrian Society, 1.
2. The jurisdiction of the court upon quo worranto is confined to the county

where the defendants have their office or place of business. Ib. 9.
3. And it should appear that the violation of law complained of must have

taken place in the county where the information is filed. Ih.
4. Form of plea, under section 26 of the act relating to informations in tho

nature of quo warranto, and regulating the mode of proceeding therein.

Ib. 18.
RATIFICATION-
See CHANCERY, 6; COMMISSION MERCHANT, 1; VENDORS AND PUR-

CHASERS, 8.
REAL CONTRACT-

See CONTRACT, 4, 5, 6.
RECITALS-

See PATENT FOR LAND, 1, 2; DEED, 13.
RELEASE-
A deed of release, without warranty, operates only on existing rights, and

works no estoppel to a grantor, who afterward acquires title. Kins-

man v. Loomis and Wood, 475.
RENT

See LANDLORD AND TENANT.
RIVER-

Land on the Ohio river, lying between high and low-water mark, is not

Roads and Highways-Seal.

RIVER— Continued.

common to the public, but may be conveyed by the adjacent proprietor,
whose land bounds on the river. Blanchard's Lessee v. Collins and

others, 138.
ROADS AND HIGHWAYS-
1. Where passengers, injured by the upsetting of a coach, have recorered

against the proprietors, the damages, assessed in such action, can not be
recovered by the coach proprietors from the road company, for failing
to keep the road in repair, which, in some degreo, occasioned the acci-

dent. Talmadge and Zanesville and Maysville Road Co. 197.
2. But a recovery may be had for the injury done to the coach. Ib.
3. Where a eiver of tolls is appointed by a court of competent jurisdic-

tion, that court has power to determine all questions of distribution and
appropriation. Miers and Coulson v. Zanesville and Maysville Turn-

pike Co. 273.
4. An incorporated road company, which is authorized by its charter to

lay out and construct a turnpike road, not exceeding one hundred feet
in width, to erect gates and collect toll, has no right to appropriate, for
a toll-house, land lying without the line of the road. Kemper o. Cin.

cinnati, Columbus and Wooster Turnpike Co. 392.
5. The public right to a highway may be lost by non-user. Fox v. Hart,

414.
6. But where there has been a continued use of such highway, although its

width has been encroached on by an adjacent owner for eighteen years,

the right is not lost. Ib.
7. The supervisor may open such road its full width. Ib.
8. A subscription, for the construction of a road, will be considered as a

contract to pay the person, by whom it shull be constructed, for work

and labor. Sperry v. Johnson, 452.
9. And, when the road is completed, he may recover from the subscribers

the amount of their subscription, on the common count, for work and

labor. Ib.
SALES

See VENDORS AND PURCHASERS.
SCHOOLS AND SCHOOL LANDS-
1. The act, regulating the sale of school lands, does not authorize the final

certificate of the county auditor to be used as evidence to charge the
county treasurer, nor is a certified copy of an account, made out by the
auditor of state from such certificates, competent evidence. The State

v. Well's Adm'r, etc. 261.
2. A school subscription, in aid of a common school fund, imposes no obli-

gation to pay, it black children are admitted into the school, or those
who are notoriously vicious, corrupt, immoral, or profane. Chalmers o.

Stewart, 386.
SEAL-
It is the duty of the secretary of state to furnish seals for the several courts.

Comm’rs of Trumbull v. Hutchins, 372.

Secretary of State-State.

SECRETARY OF STATE-
The secretary of state is required, by law, to furnish seals for the several

courts in this state, in new counties; and, also, where the seals have
been lost, worn out, or are otherwise unfit for use. Comm’rs of Trum-

bull v. Hutchins, 372.
SETTLEMENT-

See PAUPERS; OVERSEERS OF THE POOR.
SET-OFF-
Where money is paid, by mistake, on a supposed legal obligation, when, in

truth, no legal liability existed, if there was a moral obligation to make
such payment, it can not be set off against a subsequent claim between

the same parties. Commercial Bank o. Reed 488.
SHERIFF-
1. Equity has no jurisdiction to compel a sheriff to pay over moneys collected

on execution. Douglas o. Wallace, 42.
2. A sheriff's deed takes effect from the day of sale, so as to pass whatever

interest the judgment debtor had in the lands sold, at the time of the

levy. Boyd's Lessee v. Longworth, 235.
3. A sheriff's return, that he could find no goods or chattels, lands or tene-

ments of the principal debtor, unincumbered by mortgage, is sufficient
to authorize suit against the surety, on an injunction bond. Seymour o.

King and others 342.
4. The sheriff is an officer of the law; and a creditor need look to no other

source of information than his official return. Ib.
6. If it be false, the sheriff may be sued for a false return. Ib.
6. Sureties, on an injunction bond, have also such an interest in the sheriff's

return on an execution against principal, that it may be corrected, on

motion, in the court where returnable. Semble. Ib.
7. An execution may be levied on the interest of the mortgagor, in the pos-

session of mortgaged lands; but as no fair sale can be made of land so

situated, it affords a sound reason for abandoning such levy. Ib.
SPECIAL BAIL-

See BAIL.
SPECIFIC PERFORMANCE-
1. Where a parol contract for the sale of land is admitted bŷ the defendant

in his answer, without relying upon the statute of frauds, perfornance

will be decreed. Woods et al. v. Dille et al. 455.
2. Where an administrator undertakes, pursuant to the statute, to execute a

real contract for the conveyance of land, and, by mistake, the terms
employed do not carry the contract into effect, equity will relieve

against the defective performance. Evants v. Strode's Adm'r, 480.
STAGE-COACHES-

See COMMON CARRIERS.
STATE-
No suit lies against the state to compel subscription to stock. Miers and

Coulson o. Zanesville and Maysville Turnpike Co. 273.

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