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Miller and others o. Wilson and others 108 Guilford and others, The State v..... 593 Minns v. Morse and others.......... 563 Gwynne o. Niswanger...

367

Moreland, Paine's Lessee 0.......... 435 Morningstar and others o. Selby and others ....

........ 345

Morris' Heirs, Barton's Lessee v...... 408 Haines o. Tharp ......

130

Morse and others, Minns 0.......... 563 Hannel's Lessee v. Smith... Harrington o. Heath ..... Heath, Harrington o ..........

Niswanger, Gwynne 0.......

...... 367 Hey and others, Stevens 0.... 313 Heighway o. Pendleton,....

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Ohio v. Barnum ........ Humiston and others v. Anderson's

Ohio v. Clark and others ........... Administrator .................. 556

Ohio, Davis and wife o............. Huse and others, Wilkins' Lessee o.. 285

Ohio ex rel. Kemper v. Beecher...... 723 Hutchinson's Executor v. Hutchinson

Ohio o. Guilford and others......... 593 and others....

301

Ohio, Jackson d..... Hyatt o. Robinson and others....... 372

Ohio, Leggett o.....

Ohio, use of Hamilton county o. Piatt I. J. and others.

...... 15 Irwin's Lessee, Robb o.............. 689 | Ohio, Powell o...

579 Jackson o. The State........ ..... 652 Ohio, Reed v......................

217 Ohio, use of Rosett and others v. Boring and others...

......

507 Kendall, Rands and wife o. ......... 671 Overmyer's Lessee o. Williams...... 26 King, Thayer and others o..

..... Owen, Edwards 0..... ...... 500 King's Heirs v. King's Administrator 559 Klinker, Shroll o.... ...... 152

P. Kramer and others o. Bank of Sleu Paine's Lessee v. Mooreland......... 435 benville....

..... 253 Peck and others, Darling and others v. 65

Pendleton, Heighway o............. 7:35

Piatt and others, Ohio, use of Hamil. Laughery o. Laughery ............. 404 ton county 0.....

........ 15 Le Baron's Administrator, Benjamin o. 517 Pierce and others, Bierce and others o. 489 Leggett o. The State..... ..... 283 Potter v. Burlon...

...... 196 Lewis and others o. Lewis' Adminis Powell 0. The State.....

579 tratrix...

........ 715 Lowrey and others, Davies and others o. .........

Rands and wife v. Kendall.......... 671 Lowry and others, Frost o..........

Receivers of Bank of Circleville o. Lyon and others v. McCadden...... 551

Renick and others...... ...... 322

Reed o. The State...... ...... 217 M.

Rees' Administrator and others, Wil. Malone o. Stewart and wife.....

liamson's Administrator v......... 572 McCadden, Lyon and others o....... 551 Renick and others, Receivers of Bank McCombs v. Akron. ..... 474 of Circleville v...........

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123 Robinson and others, Hyatt 0........ Tharp, Haines 0........ .......... 130 Robb o. Irwin's Lessee..............

Thayer and others v. King.......... Tracy's Administrator, Arbuckle's Executor o..

432 Scott and others, McConnell o....... 401

Treat, Canal boat Etna o........... 585 Selby and others, Morningstar and

Tupper and others, Freeby 0........ others 0....... ........ 345

W. Sharp and others, Boswell's Lessee p. 447 Shehy and others, Sigler and others o. 471 Waldron's Lessee p. Woodcock ...... 13 Schroll o. Klinker.................. 152 Walke and others o. Bank of CircleSigler and others o. Shehy and others 471 • ville ................ ......... Smith, Hannel's Lessee o........... 134 Webster and others, Gillett o........ Spink and others, Christmas and oth Welch's Lessee, Cresinger 0......... 156 ers .......

600 Wildman, Taft o....... Spicer o. Giselman and others....... 338 Williams, Overmyer's Lessee 0. ..... Stevens r. Hey and others.......... 313 Williamson's Administrator 0. Rees' Stewart and wife, Malone 0. ........ 319 Administrator and others.......... 572 Swearingen, Crawford 0............ 264 Wilkins' Lessee o. Huse and others.. 285 Swetland and others, Creigh and oth Wilson and others o. Chalfant....... 248 ers 0 ..............

... 118 Wilson and others, Miller and others v. 108

| Woodcock, Waldron's Lessee 0. ..... 13

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF OHIO,

IN BANK.

DECEMBER TERM, 1846.

REUBEN WOOD, CHIEF JUDGE.
MATTHEW BIRCHARD, )
NATHANIEL C. READ, I JUDGES.
PETER HITCHCOCKS

HENRY STANBERY, Attorney General.

GEORGE A. BARKER vs. Cyrus Cory.

The act of March 12th, 1845, entitled “ An act to regulate the Judicial Courts, and the practice thereof," does not require a Bond to be filed previous to the issuing of a Writ of Error; such Bond need only be filed when designed to operate as a super

sedeas. If goods or chattels are delivered to a bailee for hire, and he convert them to his own

use, assumpsit will lie to recover their value. The act of March 4th, 1845, respecting appeals from a Justice of the Peace, does not apply to cases appealed before the passage of the act.

This is a WRIT OF ERROR to the Court of Common Pleas of TRUMBULL County.

The writ was issued under the provisions of the act of March 12th, 1845, entitled “an act to regulate the judicial courts, and the practice thereof."

On the circuit a motion was made to quash the writ, for the reason that, previously to the issuing of the same, no bond had been filed with the clerk, by the plaintiff in error to the adverse

Barker v. Cory.

IN BANK Dec. Term,

In Bank. party, conditioned to prosecute the writ, pay costs, &c., as

provided for in the 6th section of said act. To give a con1846.

struction to this section, was the object in reserving this case.

To dispose of the case finally, the errors assigned were also reserved for decision here. They are —

First: That the action was commenced before a Justice of the Peace in form, ex delicto, and that the declaration in the Court of Common Pleas was in assumpsit.

Second: That the Court below erred in rendering judgment against the defendant below, for the costs accruing against him in that Court.

Wade & Ranney, for Plaintiff in error..

Tod, Hoffman &. Hutchins, for Defendant in error.

READ, J. The object of the 6th section of the act of March 12th, 1845, entitled “an act to regulate the judicial courts, and the practice thereof," was to prevent writs of error to issue without the allowance of a Judge, as a matter of course. The reason of this change in the old law was, that, by this act, appeals were cut off which authorized a second jury trial, and writs of error substituted; and therefore all restraint upon their being issued was taken away. It was not intended by this act to impose a new condition upon a party seeking a writ of error, but to remove a restraint. But it is contended, on the part of counsel for the defendant, that, by this act, no writ of error can issue, unless the party suing it out shall give bond, with good and sufficient security to the adverse party, to prosecute the writ to effect, and pay all costs in error. Such a construction is opposed to the object of the act, and will not be adopted by the Court, unless compelled by its express terms.

That part of the 6th section relied upon by counsel for the defendant, reads as follows:

“ The clerk issuing such writ of error shall, in all cases, take good and sufficient bond and security to the adverse party,

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