John A. Williams v. Daniel H. Mears.
word than "heir" has been held to warrant the application of this rule.
The word "heir" in the singular does not create a case for the rule in Shelley's case. Waker v. Snowe, Palm. 359; Bayley v. Morris, 4 Ves. 788.
Nor will the words "child, children, or issue," have such effect. Cruise's Dig., title 32, chap. 23, sec. 28.
For among the reasons given for the rule is this, that the use of the word "heirs" imports a tåking by descent, and the words are senseless unless construed as words of limitation, because nemo est hæres viventis, and as no one is an heir but he who inherits, hence its use conclusively shows a design to give an inheritable estate. And this conclusion follows from no equivalent words.
For these reasons we are of opinion that the rule in Shelley's case does not apply to this case, and that under it Mrs. Williams took but a life estate.
Another reason for so holding might perhaps be urged, towit: that the deed does not contemplate "the whole line of heirs to the tenant for life, and so builds a succession upon het preceding estate of freehold," but only uses language by way of designation to indicate a remainder in the heir, who, living at the death of the tenant for life, shall attain the age of twenty-one years. This would, it is well settled, take the case out of the operation of the rule in Shelley's case, but it requires a construction of the deed, which we do not feel called upon to give.
The court charged the jury that under the deed from John Mears to Horne and from Horne to the plaintiff, the legal title passed to the plaintiff, and that he was entitled to recover. No exception was taken at the time, but we are satisfied that there was no error in the charge, and that the law of the case is thus stated.
And this being so, there was of course no error in overruling the motion for new trial.
This result furnishes another reason for sustaining the court in excluding testimony. For it now appears that
John A. Williams v. Daniel H. Mears.
Williams does not stand in a position to sustain an action to set aside the deed of trust for fraud. And while at nisi prius, before his title is fully disclosed, a court might not be willing to exclude the testimony on this ground alone, a reviewing court will not disturb the result, if the party appears to have no interest in the question.
1. When the suit is on an account, attached as an exhibit, which is im-
perfect in its character, the remedy is to demand a bill of particulars,
under section 361 of the code. Gibson v. Ohio Farina Co. 499.
ACKNOWLEDGMENT-
1. Deeds of lands in this State, acknowledged in other States before
commissioners for Ohio, must be acknowledged according to the law
of Ohio. Brannon v. Brannon, 224.
1. All the facts necessary to constitute a cause of action or defense
should be pleaded. Dennistoun, Wood & Co. v. Merchants' Bank, 52.
2. An undertaking in attachment is not the proper subject of an action
in another court. King v. Snow, 73.
3. If there is a question, whether of law or fact, to be decided, as to the
liability of a garnishee, the plaintiff in attachment must bring an
independent action against the garnishee. Martin v. Gayle, 86.
4. The statute authorizing the courts to correct, amend, and relieve
a ainst any errors, mistakes, or defects, occurring in any deed, in-
tended to convey or incumber the estate of a married woman, there-
tofore or thereafter made, is constitutional. Purcell v. Goshorn, 90.
5. An act done maliciously or fraudulently will not furnish a ground
of action, if it be not in itself unlawful. There must be legal dam-
age resulting; it is not sufficient that the act is immoral. Smith v.
Bowler, 153.
6. It is essential to a recovery upon a policy of insurance, that the party
insured should have an interest in the property, both at the time of
insurance and time of loss. This interest need not be personal; it
may be as agent or trustee, but it must exist in some form or other.
Graham v. Firemen's Ins. Co. 255.
7. An action of foreclosure and sale of mortgaged premises can be
maintained against the administrator and heirs of a deceased mort-
gagor, without regard to the eighteen months allowed by law to
administrators for administration. Hathaway v. Lewis, 260.
8. In some cases the remedy for the collection of a debt may be lost or
suspended, and yet the right to proceed on a security given for the
debt will not be affected. Ib.
9. In an action to recover money agreed to be paid for railroad stock,
an averment of a readiness and willingness to issue and deliver the
certificates of stock is necessary. The right to enforce payment is
not distinct and independent from the ability to issue and deliver
the stock. Jumes v. Cin., Ham. & Dayton R. R. Co. 261.
10. A mortgagee, who was not a party to proceedings of foreclosure and
sale, may be compelled by the purchaser at such sale to exercise his
equity of redemption within a reasonable time, or be foreclosed.
Hess v. Feldkamp, 332.
11. A plaintiff in attachment is not liable to the sheriff for extraordinary
expenses in the care of property. Mathers v. Ramsey, 334.
12. Jurisdiction attaches upon the filing of a petition and issuing of sum-
mons. Spinning v. Ohio Life Ins. and Trust Co. 336.
13. A suit is never permitted against a receiver where the judgment
would affect the custody of the property sequestrated. 16.
14. Section 78 of the code, on the subject of pending actions and the
effect thereof, refers solely to questions of title in the specific property
in controversy. Ib.
15. An action will not lie for the recovery of damages alleged to have
occurred in consequence of a malicious civil suit, unaccompanied by
the arrest of the person or seizure of property. The costs of the
action in which he recovers are presumed to compensate him for his
loss. Springer v. Wise, 391.
16. When the foundation of the action is alleged damage in consequence
of the wrongful and malicious levy upon property, special injury
must be alleged and shown. Ib.
17. An injunction will lie in behalf of a devisee, and against the son of a
testator, on the showing that the son is collecting the rents of the
estate, pending the question of the probate of the testator's will, and
when waste is being committed. Piatt v. Piatt, 408.
18. In an action for the foreclosure of a mortgage, it is no defense, on
the part of the mortgagor, that a third party has subsequently
brought a similar action against him, in a court of concurrent juris-
diction, founded upon the same cause of action. West v. Morris,
19. A petition to enforce the forfeiture of a lease for non-payment of rent,
and also seeking to recover the rent, is bad for misjoinder. The
remedies are inconsistent, and plaintiff must elect. Owens v. Hick-
man, 471.
20. In an action brought by the members of one firm against the mem-
bers of another firm, it is not a sufficient defense that G. is a mem-
ber of both firms. However strict the rule of law, it does not exist
in equity, for there need be no decree against G., nor yet against the
other defendants, for his share of the debts. Gibson & Co. v. Ohio
Farina Co. 499.
21. No private action can be maintained against a county treasurer in
his official capacity, who refuses to pay an order, legally drawn by
the county auditor, upon the funds of the treasury. Bates v. Fries,
22. In such case the treasurer's duty is purely ministerial, and mañdamus
is the proper remedy. Ib.
23. A traveler who is forced to abandon his nearest route, by reason of
the non-repair of a street, and seeks his destination by a more cir-
cuitous route, whereby he suffers injury in his business, does not
sustain such a special damage as to entitle him to an action against
the party charged with the duty of keeping the way in repair. Far-
relly v. Cincinnati, 516.
24. So, also, in case of an omnibus line which has lost custom by reason
of being unable to pursue its customary route, in consequence of the
foundrous condition of the street. Ib.
Administrators and Executors-Amercement.
25. But this is not the subject of an action in Ohio, because it is not
special damage, but the ordinary inconvenience and loss sustained
by the public at large, and only to be redressed by a public prose-
cution. Ib.
26. A party in possession of premises by right of ownership of the undi-
vided half in fee, and under a lease for years from the owner of the
other undivided half in fee, can not maintain a suit for partition
during the existence of such lease. Shillito v. Pullan, 588.
ADMINISTRATORS AND EXECUTORS—
1. An action for foreclosure and sale of mortgaged premises may be
maintained against the administrator and heirs of a deceased mort-
gagor prior to the expiration of the eighteen months allowed by law
for administration. Hathaway v. Lewis, 260.
1. The defendant in attachment may deny by affidavit the specific acts
charged by the plaintiff, to entitle him to the process of attachment,
as they apply solely to the remedy, and not to the right of action.
Alexander v. Brown, 395.
2. A certificate "subscribed and sworn to before me" is sufficient in form
for a jurat. Sargent v. Townsend, 472.
3. Where legal proceedings are based on insufficient affidavits, the right
to amend or file new affidavits will, ordinarily, depend on whether
any change of priorities may result. Patterson v. Gulnare, 505.
See PRINCIPAL AND AGENT; WATERCRAFT, 1.
AGREEMENT. See CONTRACT.
AMENDMENT-
1. The power of amendment extends as well to a bill of exceptions as to
any other part of a record, when the same is in furtherance of jus-
tice. Hazlewood v. Parker, 429.
2. No amendment will be permitted which will enable one creditor in
the race of diligence to gain an advantage over another creditor.
Patterson v. Gulnare, 505.
3. In an action against a firm in the partnership name, commenced by
service of process at the place of business, leave was given to sub-
stitute the individual names of the partners as defendants. Held:
that the substitution was not complete until the petition had been so
amended as to charge them, and process been served on them indi-
vidually. Marienthal v. Amburgh, 586.
AMERCEMENT. See ATTORNEYS AT LAW.
1. As a general rule, no officer of the court can be considered in default
until he has technically refused to perform that which he may be
required to do. Moore v. Moore, 490.
2. It is proper for a party to demand payment of moneys before the
officer can be amerced, or interest be claimed for withholding it.
An action may be brought, however, before an actual demand is
made, and interest will be allowed from the commencement of the
action. Ib.
3. There are cases where it is obligatory upon the fiduciary to seek the
party entitled to receive the fund, and thus relieve himself of the
trust. He can not retain money for an indefinite time, use it as his
own, and hold it without interest after his term of office has ex-
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