Express Company-Guardian and Ward. EXPRESS COMPANY. See CODE OF CIVIL PROCEDURE, 8. 1. The proprietors of a "faro bank" are jointly liable, for money won and received by "dealers," or players employed by them in carrying on the business of the bank. Lear et al. v. McMillen, 464. 2. In an action to recover such money, it is sufficient for the plaintiff to show the aggregate amount of his losses, or of the excess of his losses over his winnings, between specified dates, without proving the amount and date of each particular loss, or the particular agent or proprietor to whom each sum was paid. Ib. FOREIGN JUDGMENT. See EVIDENCE, 2. FOREIGN WILL. See WILL, 4, 5, 6. FORGERY แ The plaintiff in error was charged in an indictment with forging an order for the payment of money, of the following tenor: M. C. & Co., pay Binam $5.75. J. L. C." Held, that the writing does not on its face, unaided by innuendo, or the statement of extrinsic facts, import an order for the pay ment of money; and the indictment containing no such averment, is bad. Bynam v. The State, 142. FORMER RECOVERY. See JUDGMENT, 8. FRAUD. See WILL, 8 to 11; DEBTOR AND CREDITOR, 1; PRACTICE IN CIVIL CASES, 38 to 44; EVIDENCE, 17. FRAUDS, STATUTE OF A verbal agreement for the sale of lands, which has been fully performed on the part of the vendor, is not rendered void by the statute of frauds. Randall v. Turner, 262. GAMING. See BILLIARD TABLE; FARO BANK. GRAND JURY 1. It is a good plea in abatement in a criminal case, that one or more of the grand jurors who found the indictment had not the legal qualifications of grand jurors. Huling v. The State, 583. 2. But mere irregularities in selecting and drawing grand jurors, which do not relate to or affect their personal qualifications as such, must be taken advantage of, if at all, by challenge for cause, and can not be so pleaded in abatement. Ib. 1. When an answer of a guardian ad litem for an infant defendant does not, in express terms, deny the allegations in the petition as required by the code, but the record shows that it was regarded by the court as such denial, and that the plaintiff was required to prove such allegations: Held, that a judgment rendered against such defendant can not be reversed on error for the want of such express denial. Randall v. Turner, 262. 2. It is the duty of a guardian ad litem to make for the infant a proper defense, and for this purpose to bring the rights of his ward under the consideration of the court for decision. Long et al. v. Mulford et al. 484. GUARDIAN AND WARD 1. The four years' limitation, prescribed by the act for the settlement of estates, within which suits are to be commenced against executors and administrators, applies to an action instituted on a guardian's bond; and the disability of infancy will not save the plaintiff from the operation of the statute. Favorite v. Booher's Adm'r, 548. 2. The refusal to pay over to a minor or his attorney, after the guardianship has terminated, money in the hands of the guardian belonging to such minor, is not a breach of the bond of the guardian; and such refusal will Highway-Infants. GUARDIAN AND WARD-Continued. not give the minor a right, by his next friend, to institute suit against the surety on the bond. Ib. 3. Although no formal cause of action may have accrued, for want of des mand by a competent guardian, or by the minor after coming of age, yet - as it was competent for the plaintiff to have perfected his cause of action during his minority, by having a guardian appointed and a demand madequare: whether the four years' limitation would not still run against him Ib. 4. Money arising from the sale of land possessed by the decedent at the time of his death, and sold for the payment of debts, and money received by the administrator from the guardian of the heirs of the intestate under an arrangement made to save their lands from sale, are not new assets within the meaning of section 104 of the administration law, and will not extend the four years' limitation within which creditors are required to sue. Ib. 5. See EXECUTORS AND ADMINISTRATORS, 1, 2; INFANTS; GUARDIAN ad Litem. HIGHWAY. See ROADS. HUSBAND AND WIFE. See DEED, 1, 2, 3. ILLEGAL CONTRACT. See DEBTOR AND CREDITOR, 2. INDICTMENT. See BIGAMY, 2; FORGERY; LARCENY; PRACTICE IN CRIMINAL CASES, 4, 6, 8, 14. INDIVIDUAL LIABILITY. See CORPORATIONS, 2, 10. INFANTS 1. When an answer of a guardian ad litem for an infant defendant does not, in express terms, deny the allegations in the petition as required by the code, but the record shows that it was regarded by the court as such denial, and that the plaintiff was required to prove such allegations: Held, that a judgment rendered against such defendant can not be reversed on error for the want of such express denial. Randall v. Turner, 262. 2. It is the duty of a guardian ad litem to make for the infant a proper defense, and for this purpose to bring the rights of his ward under the consideration of the court for decision. Long et al. v. Mulford et al. 484. 3. The jurisdiction which courts of equity employ to protect infants, is not confined to cases of a strictly fiduciary character. The principle on which relief is given, applies to all cases where influence is acquired and abused, and confidence reposed and betrayed. In the former, influence is presumed; in the latter, its existence must be proved. Ib. 4. If a party having an infant under his influence and control, against whom he is prosecuting a suit in which no defense is made for the infant, intends to insist on the rights of an ordinary adversary, he ought first to surrender the advantages arising from his fiduciary or quasi-fiduciary character. Ib. 5. In a suit by bill in equity against an infant for the specific performance of an alleged contract with his ancestor, he is entitled to a day in court, after coming of age, to show cause against the decree, and if an absolute decree be taken against him, it will be error. Ib. 485. 6A decree against an infant may be impeached for error by original bill; and what would have been a good cause of action to sustain an original bill is a good cause of action under the code. Ib. 7. Where adult heirs obtained a decree upon insufficient evidenc, against their infant co-heir, of tender years, for a large portion of the estate, as having been purchased from the ancestor, but which was in fact given by way of advancement; and obtained also a decree for partition of the residue of the estate; and the proceedings were managed solely by the adult heirs-no defense being made for the infants, and no day given them to show cause against the decree--the partition will be set aside and a new partition ordered. Ib. 8. Deeds, in accordance with the partition, obtained from the infants on their coming of age, in ignorance of their rights, and under representations that VOL. XVII-42 INFANTS Continued. Injunction-Judgment. the making of the deeds was according to the order of the court, should be set aside as fraudulent. Ib. 9. Lapse of time to bar the rights of the infants does not, in such case, commence until their discovery of the wrong; and the burden of showing such knowledge as to make them chargeable with laches, rests on the defendants. lb. 10. See EXECUTORS AND ADMINISTRATORS. 1. 2. 9, 10. INJUNCTION. See DITCHES, 1, 2; JURISDICTION, 1; PRACTICE IN CIVIL CASES, 54. INSOLVENT DEBTOR. See DEBTOR AND CREDITORS. INSURANCE Where a fire insurance policy contains a provision, that, if another insurance shall be made on the property thereby insured, not consented to in writing thereon, or if the property shall be sold, the policy shall be void: Held, 1. That if the property so insured was, at the time the policy was made, under a mortgage, and the policy, with the assent of the company making the same, was assigned to the mortgagee, the delivery of the possession and control of the property to the mortgagee, subsequent to the date of the policy, is not such a sale as will invalidate the policy. 2. That if a stock of goods insured by such policy be removed to another place and merged in another stock of goods insured in other companies by policies covering accruing stocks, such policies will include the goods of the former stock, and such new insurance thereon will invalidate the former policy, unless it be effected by consent, in accordance with the terms of the policy. Wash ington Insurance Co. v. Hayes, 432. INTEREST 1. Where interest is payable annually, or at other stated periods, it bears simple interest from the time it falls due till paid; and payments are to be applied, first, in satisfaction of the interest due upon interest; secondly, in satisfaction of interest due upon the principal; and thirdly, in satisfaction of the principal; but in no case will the interest upon interest be made to bear interest. Anketel and wife v. Converse et al. 11. 2. See RAILROAD COMPANIES, 2. JOURNAL OF COURT— An order made by a court of common pleas in 1843, confirming a sale on execution, and appearing on the journal among the proceedings of a day in term time, is not rendered invalid by the fact that the minutes of that day's proceedings are signed by the senior associate judge, although it appear from the journal that the president judge was present in court on the same day. It will be presumed that the president judge was not present wher the minutes were publicly read and approved by the court. Sheehan ct al. v. Davis, 571. JUDGE OF SUPREME COURT. See JURISDICTION, 1. JUDGMENT— 1. Where the docket of a justice of the peace shows a trial, and then proceeds: Therefore it is considered," etc., without noting any continuance, the date of the judgment will be held to be the same as that of the trial, although the appeal bond recites the judgment as of a later date. Hoagland v. Schnorr, 30. 2. Where the judges of the court of common pleas, under the act of April 12, 1858, fixed the times for holding the courts of their district, and issued their order specifying that the several terms would commence at 10 o'clock A. M. on the day so fixed, which order was entered upon the journals of the courts, as required by said act; and where the journal of a court held under such order showed that the court convened on the day so fixed: Held, 1. That, under the provisions of said act, the record is conclusive evi Jurisdiction. JUDGMENT-Continued. dence that the term of court began at 10 o'clock A. M. on the day named in the order; and that it is not competent to prove that the court in fact opened at an hour later than that shown by the record. 2. That the lien of a judgment, which under the statute began on the first day of the term, attached from 10 o'clock A. M. on the first day of the term of the court fixed pursuant to said act, although the court may not have convened until after noon on that day; and such judgment lien is prior to that of a mortgage delivered for record at 11 o'clock A. M. on the same day. Davis v. Messenger, 431. 3 The assignees of a judgment, which had been improperly paid to the credtor after notice of the assignment, filed a bill in chancery against the debtor and creditor, to have the satisfaction of the judgment which they had caused to be entered upon the record, vacated. In the bill they alleged the insolvency of the debtor, and prayed for, and at the hearing obtained, a decree vacating the entry of satisfaction, and ordering the creditor to pay and deliver over to them the money and choses so paid to him by the debtor, and that the avails thereof should be applied upon the judgment. Held, that the assignees did not thereby affirm the payment so made to the creditor, and that they are entitled to execution for the balance due on the judgment, after so applying the amount realized by them. Welsh v. Childs et al. 319. 4. The assignee of a judgment, transferred to him to secure a debt due from the judgment creditor, could maintain a bill in chancery under the old practice act, to subject choses and rights of the judgment debtor to the payment of the judgment, without first reducing to judgment the claim so secured. And it is no defense to such a bill to show that the claim so secured has become barred by limitation. Ib. 5. An erroneous decree in chancery, where the court has jurisdiction, is binding between the parties until reversed. 6. Where only part of a record is given in evidence, that part of it which relates to process and appearance being by agreement of parties withheld, the court will presume that all parties who are named as such in the petition and decree were properly before the court. Ib. 7. Where a judgment has become dormant during the pendency of a provisio nal injunction against execution thereon, the court will, on final dissolution of the injunction, order execution to issue for the balance equitably due. Ib. 8. Where the captain of a steamboat hired a barge, and executed to the owner thereof a contract in the name of the boat, "for the sum of ten dollars per day, until delivered back in Cincinnati, in like good order as received," but no time was mentioned when the barge should be returned, or the money paid: Held, that the barge was to be returned in a reasonable time under the circumstances of the service for which it was hired; that the amount due for the hire of the barge would then be payable; that the contract is entire and not divisible; and that a recovery in an action brought thereon, after the expiration of such reasonable time, for the amount then due for the hire of the barge at the rate specified in the contract, is a bar to a subsequent action on the same contract for the hire of the barge, accruing after the period embraced in the judgment recovered in the former action. Stein v. Steamboat Prairie Rose, 471. 3. Where a case is taken on error from the special to the general term of the Superior Court of Cincinnati, and the judgment of the special term is reversed, it is not error, under the statute organizing that court, for the court at general term to proceed and render such final judgment as should have been rendered at the special term, when the record shows that in no event can any other judgment be rendered in the case if the cause were remanded to the special term. Ib. JURISDICTION 1. Under the constitution of this state, the general assembly can not confer Jury-Limitation of Actions and Suits. JURISDICTION- Continued. on a judge of the Supreme Court jurisdiction at chambers, to grant or dissolve an injunction in a cause pending in another court. P., Ft. W. & C. Railway Co. v. Hurd & Fair, 144. 2. See RIGHT OF WAY, 1; PRACTICE IN CIVIL CASES, 53. JURY. See GRAND JURY; PRACTICE IN CIVIL CASES, 2, 3. LAPSE OF TIME. See LIMITATION OF ACTIONS. LARCENY 1. On an indictment for larceny, laying the value of the property at four hundred and eighty dollars, a general verdict of guilty implies a finling that the value of the property stolen at least equals thirty-five dollars, and an express finding in the verdict of such valne is not necessary. The opinion in Barton v. The State, 18 Ohio, 221 qualified. Schoonover v. The State, 294. 2. In an indictment for larceny, it is sufficient to describe United States treasury notes, as promissory notes of the United States given for the payment of money," adding their denomination and value. Hummel v. The State, 628. 3. In such an indictment it is not a misdescription of the notes of national banks to denominate them "national bank-notes, commonly called na tional currency notes, being obligatory promissory notes of the nationa currency issue, given for the payment of money." Ib. 4. See PARTNERS AND PARTNERSHIP. LEGAL SETTLEMENT Of a minor child and wife of a man who abandons his family. See Spencer Tp. v. Pleasant Tp. 31. LEGACY. See WILL. LIEN. See Executors and ADMINISTRATORS, 5; Judgment, 2; Mortgage. 1. Where one of two proprietors, respectively, of adjoining lands holds actual, continuous, notorious, and exclusive possession up to a certain line, though not originally the true one, for the full period of twenty-one years, the statute of limitations applies in his favor and against the adjoining proprietor, although such possession may have grown out of the mutual mistake of the parties respectively, in respect to the locality of what was originally the true line between them. Yetzer v. Thoman, 130. 2. The service of a summons on the return day is not void, but only voidable; and if such service is, on motion of the defendant, set aside, the plaintiff may, under section 23 of the code, within the time therein limited, brings his action anew, notwithstanding the time allowed for commencing the action may have expired between the time of instituting proceedings and the time of setting aside the service. Meisse v. McCoy's Adm'r, 225. 3. Where a devisee or legatee accepts a devise or bequest charged by the will with the payment of the debts of the testator, the law imposes on the devisee or legatee a personal obligation to pay such debts; and in an action to enforce such personal obligation, the fact that the devisee or legatee is or is not also executor of the will, makes no difference in the case; and in such a case the statute limiting actions against executors and administrators to four years, does not apply. Fuller v. McEwen, 288. 4. The action in the case being founded on an implied personal promise of the devisee or legatee, the statute of limitations would begin to run in his favor only upon his acceptance of the devise or bequest. Ib. 5. The assignee of a judgment, transferred to him to secure a debt due from the judgment creditor, could maintain a bill in chancery under the old prac tice act, to subject choses and rights of the judgment debtor to the payment of the judgment, without first reducing to judgment the claim so secured. |