Contract-Covenant to Insure.

CONTEMPT OF COURT-Continued

nor to attachments for contempt in other cases, where such arrest or at-
tachment is employed in the nature of mesne process, for the purpose of
bringing the accused party into court, or of holding him in custody until
the prescribed formalities, preliminary to the award of final punishment
for the contempt, can be conveniently instituted. Ib.
CONTRACT. See SPECIFIC PERFORMANCE.

Where a contract is made for the sale of a lot of sheep, for a stipulated price
per hundred pounds, to be weighed and delivered by the vendor at a
specified time and place, fifty dollars of the price to be paid in hand and
the residue upon the delivery of the property, and the vendee, after pay-
ment of the fifty dollars in hand, voluntarily and without excuse, refuses
further compliance with the stipulations of the contract, and the vendor,
not being in default previously, sells the sheep to other persons after the
time fixed for the delivery, such resale does not, per se, give the vendee
a right to regard the contract as rescinded by the consent of the parties,
so as to enable him to recover back the sum paid by him on the contract.
Ashbrook v. Hite, 358.

CONVEYANCE. See MORTGAGE; COVENANTS OF WARRANTY.

1. An auditor's deed upon a sale of lands for delinquent taxes, containing
only the following description: A "tract of land in the county of Scioto,
to wit, one-third part of French Grant, lot sixty-six, containing seventy-
two and a half acres," and made upon a tax certificate containing only the
following description, "Part lot 66, acres 72”—is void for uncertainty.
Winkler v. Higgins, 601.

2. A certificate of acknowledgment of a deed, made "upon a separate strip
of paper attached to the deed by a wafer, with the officer's seal upon the
same," by a commissioner of deeds in New York appointed by the gov
ernor of Ohio, under the act for appointing commissioners, passed January
26, 1844, is not in compliance with the statute requiring the officer taking
an acknowledgment to "certify such acknowledgment on the same sheet
on which such deed is printed or written." Ib.

CORPORATIONS. See BANKs and Banking; Towns, CITIES, and Villages.
COSTS. See PRACTICE, 8, 12.

COUNTERFEIT MONEY. See BANK-BILLS; INDICTMENT.

COURT AND JURY. See CHARGE OF COURT; VERDICT.

COURTS. See JURISDICTION OF COURTS; SUPREME COURT OF THE UNITED
STATES.

COVENANT TO INSURE-

1. An assignee of a reversion, having also assigned to him by the terms of
his contract of conveyance the benefit of the covenants in a lease, may
bring an action in his own name, for a breach of such covenants, as the party
beneficially interested, under the code of civil procedure, which in this
respect supplies the statute 32 H. 8, cap. 34. Masury v. Southworth et
al. 340.

2. A covenant to insure, when the money realized in case of loss is to be ex-
pended in rebuilding or repair, is such a covenant as may run with the
land. Ib.

3. When such a covenant to insure has for its object a building to be erected
after the date of the lease, but which when erected is to be used by the
lessee, and is an essential ingredient in the agreement of the parties for
the creation of the estate, it is not indispensable to make such a covenant
run with the land, that "assignees" should be expressly named but the
covenant being one which may be annexed to the estate, and run with the
land, equivalent words, or a clear intent shown by the whole instrument,
may suffice. Ib.

Covenants of Warranty-Dower.

COVENANTS OF WARRANTY-

Where, in case of successive conveyances with covenants of warranty run-
ning with the land, the last covenantee, having been evicted, simultaneously
brings several actions and recovers several judgments against each and all
of his covenantors, and the judgments against the first and second cove-
nantors, respectively, having been by them paid and satisfied: Held, 1.
That such satisfaction of the judgment against him by the first covenantor,
is a bar to an action over against him by the second covenantor to recover
the amount paid by him in satisfaction of the judgment against him. 2.
That as the last covenantee, although he might have several judgments
against successive prior covenantors, was entitled to but one satisfaction,
his enforcement of two of his several judgments was wrongful, and the
second covenantor should have either resorted to equity to restrain the col-
lection of the judgment against him, or, having innocently paid off the
same, sued the plaintiff therein to recover back the money thus wrongfully
collected and retained. Wilson v. Taylor's Ex'rs, 595.

COVERTURE. See HUSBAND AND WIFE.

CREDITOR. See ATTACHMENT; ASSIGNMENT BY INSOLVENT DEBTORS; Hus-
BAND AND WIFE; MORTGAGE; PARTNERSHIP.

CRIME. See BANK-BILLS.

DAM. See ROADS, 1.

DAMAGES. See PARTNERSHIP; ROADS, 1.

DEBTOR AND CREDITOR. See ASSIGNMENT BY INSOLVENT DEBTORS; HUS-
BAND AND WIFE; MORTGAGE; PARTNERSHIP; SPECIFIC PERFORMANCE.
DECISIONS. See SUPREME Court of the UNITED STATES.

DECREE. See DIVORCE; JUDICIAL SALE.

DEED. See CONVEYANCE.

DESCENT AND DISTRIBUTION-

1. By the provisions of section 10 of the act regulating descents, passed Feb-
ruary 24, 1831, when an estate descended to nephews and nieces, legal
representatives of brothers and sisters, no brother nor sister of the intes-
tate surviving, the nephews and nieces took per capita; and if a nephew
or niece had died before the intestate, leaving children, such children took
per stirpes the share of the deceased parent. This rule has not been altered
by sections 5, 6, 7, and 8 of the present act regulating descents. The effect
of the present act is to extend, not to limit, the rule prescribed in section
10 of the act of 1831. Ewers et al. v. Follin et al. 327.
2. H. died intestate, without issue, and never having been married, seized of
an estate acquired by purchase, leaving no brothers nor sisters, but three
children of one brother, four children of another brother, eight children
of one sister, and two children and two grandchildren of another sister.
Held, that partition should be made by dividing the estate into eighteen
shares, each nephew and niece taking one, and the two children of the
deceased nephew one.
Ib.

DESCRIPTION. See CONVEYANCE, 1.

DISCHARGE. See ALTERATION OF NOTE.

DISCOUNT. See BANKS AND BANKING, 3.

DISTRICT COURT. See JURISDICTION OF COURTS, 2.

DIVORCE-

A decree from the bonds of matrimony, although obtained by fraud and false
testimony, can not be set aside on an original bill filed at a subsequent
term. Parish v. Parish, 534.

DOWER-

1. Where A conveys land to B in fee, and B at the same time delivers to A a
mortgage to secure the purchase money in whole or in part, the technical

DOWER-Continued.

Due-bill-Exceptions.

seizin of B does not confer upon B's wife a contingent right of dower in
the land as against those deriving title at judicial sale of the land on the
mortgage, although she did not join her husband in executing the mort-
gage. Welch v. Buckins et al. 331.

2. The rule is the same whether A himself conveys the land to B, or procures
C, who holds the legal title, to do so. Ib.

DUE-BILL. See INTEREST, 3.

EDUCATION. See SCHOOLS.

ELECTION. See ELECTOR.

ELECTOR-

1. Persons having a mixture of African blood, but a preponderance of white
blood, or being more white than black, and being otherwise qualified, were,
by the settled construction of the section of the constitution of 1802, regu
lating the exercise of the elective franchise, entitled to enjoy the right of
an elector. No change was made in this respect by the corresponding
section of the constitution of 1851. The same persons being otherwise
qualified, are not to be excluded on account of color, but are entitled, un-
der the present constitution, to vote at all elections. Anderson v. Millikin
et al. 568.

2. The plaintiff being one of the description of persons so entitled to vote,
having only one-eighth of African blood, and his vote having been refused
for that reason only at the election, in 1856, for electors of president and
vice-president of the United States, by the judges of the election, against
whom he brought an action for such refusal: Held, that he was entitled to
recover for the violation of a right secured by the constitution. Ib.
ERROR. See ATTACHMENT, 5; CHARGE OF COURT; JUDGMENT; PLEADING IN
CIVIL CASES, 1; PRACTICE IN CIVIL CASES, 4-6.

ESCAPED SLAVE. See FUGITIVES FROM SERVICE OR LABOR.

1. In an action by a holder of a bill of exchange against the other parties
thereon, it is competent to prove declarations made by a prior holder, be-
fore the transfer and after the dishonor of the bill, showing that the parties
were discharged from liability. Hollister and Smith v. Reznor, 1.
2. But the substance of the declarations, or sufficient of them to show their
tendency and effect, should appear in the bill of exceptions taken to the
ruling of the court below excluding proof of such declarations, so that the
reviewing court may be advised that the party may have been prejudiced
by such ruling. And therefore, where a witness is produced on the part
of the defense in such action to prove certain conversations touching the
liability of the parties to the bill, and the court sustain an objection to the
competency of the proof offered, but not to the competency of the witness,
and the bill of exceptions does not disclose what the conversations were
which were offered to be proved, nor their tendency and effect, the review-
ing court will not reverse. Ib.

3. In an action brought by a supervisor to recover damages sustained by the
traveling public on account of the deepening of a ford on a county road,
by the elevation of a dam erected for the use of a mill on the stream
crossed by the ford, evidence that the inconvenience to the public would
have been removed by a change in the bed of the stream, which could have
been easily made, and which the defendant, the owner of the land and mill,
before the commencement of the action, offered to make, but was not per-
mitted to make by the supervisor, is competent upon the question of dam-
ages to be ascertained and assessed by the jury. Bisher v. Richards, 495.
EXCEPTIONS. See BILLS OF EXCEPTION.

Exemption of Property from Execution-Fugitives from Service or Labor.

EXEMPTION OF PROPERTY FROM EXECUTION—

The benefits of section 8 of the act of March 23, 1850, "to exempt the home-
stead of families from forced sale on execution," etc., extend, and are
confined, to a resident of Ohio, being the head of a family, and not the
owner of a homstead," and who is the owner of one or more of three classes
of chattels, to wit, mechanical tools, a team, and farming utensils, and
who is holding such articles of property, whether belonging to one or more
of these classes, in good faith for use as instruments of labor, and means
of support for himself and family. Burgess v. Everett, 425.
See HUSBAND AND WIFE.

EXECUTORS AND ADMINISTRATORS. See MORTGAGE, 3.

1. An executor or administrator has the power, at common law, to submit to
arbitration a disputed claim against the estate which he represents. Ex'r
of Childs v. Updyke, 333.

2. This power is not affected by the provisions of the statute which authorize
the submission of such disputed claims to referees. Ib.

EXTINGUISHMENT. See ROADS, 2.

FORD. See ROADS, 1.

FOREIGN BANK-BILLS. See BANK-BILLS.

FORGED INSTRUMENTS. See BANK-BILLS; INDICTMENT.

FRAUDS AND PERJURIES, STATUTE OF—

1. A mortgage is a conveyance within the statute of frauds and perjuries of
1810. Webb's Adm'r v. Roff et al. 430.

2. A conveyance within the meaning of the statute is void only as against
creditors. Ib.

3. A conveyance made without consideration by one indebted at the time, can
not be avoided by subsequent creditors without showing actual fraud or a
secret trust for the benefit of the grantor. Ib.

FUGITIVES FROM SERVICE OR LABOR-

1. The provisions of article 4, section 2, of the constitution of the United
States, that "no person held to service or labor in one state under the laws
thereof, escaping into another, shall, in consequence of any law or regula-
tion therein, be discharged from such service or labor, but shall be delivered
up on claim of the party to whom such service or labor may be due." guar-
anties to the owner of an escaped slave the right of reclamation. Ex parte
Bushnell and Langston, 77.

2. A citizen, who, knowingly and intentionally, interferes with, for the pur-
pose of rescue, or rescues from the owner, an escaped slave, is guilty of a
violation of the constitution of the United States, whether the acts of 1793
and 1850, commonly called the fugitive slave laws, are unconstitutional or
not. Ib.
3. The question in this case is, not whether the fugitive act of 1850 is uncon-
stitutional in respect to the appointment and powers of commissioners, the
allowance of a writ of habeas corpus, the mode of reclamation, etc., but
whether Congress has any power to pass any law whatever, however just
and proper in its provisions, for the reclamation of slaves, or to protect
the owner of an escaped slave from interference, when duly asserting his
constitutional rights of reclamation. Ib.

4. Congress, from the earliest period of the government, has, by legislative
penalties, vindicated the constitutional right of the owner of slaves against
unlawful interference. Ib.

5. Such legislation was adopted in 1793 by the second Congress elected under
the constitution, composed of many of the members of the convention who
framed the constitution; has, from that day to this, been in active opera-
tion, and has been acquiesced in by all the departments of the government,
national and state; and the legislative power of Congress on this subject
has been recognized by the general assembly of the State of Ohio in their

Garnishee-Husband and Wife.

FUGITIVES FROM SERVICE OR LABOR-Continued.

statutes; by the Supreme Court of the United States, and by the Supreme
Courts of Massachusetts, New York, Pennsylvania, Indiana, Illinois, and
California; by the Supreme Court of Ohio on the circuit, and, indeed, by
the Supreme Courts of every state in the Union where the question has been
made, and has never been denied by the Supreme Court of any state-the
courts of Wisconsin, notwithstanding the popular impression, not forming
an exception. Ib.

6. The right to rescue escaped slaves from their owners being denied to all
citizens of the United States by the constitution; Congress having pro-
hibited it and enforced the prohibition by penalties; the Supreme Court
of the United States and courts of the free states having recognized and
acquiesced in such legislative prohibition and punishment-if the question
is not thus put beyond the reach of the private personal views of judges;
and if they possess judicial discretion or power to overrule, on the au-
thority of their individual opinions, this unbroken current of decisions and
this acquiescence of the states of the Union, and change the settled inter-
pretation of the constitution of the United States, then there is no limit,
and no restraint upon judges making at any time, and under any circum-
stances, their own individual opinions the arbitrary interpreters of the con-
stitution. Ib.

7. Whatever differences of opinion may now exist in the public mind, as to
the power of Congress to punish rescuers as provided in the acts of 1793
and 1850, no such vital blow is given either to constitutional rights or state
sovereignty by Congress thus enacting a law to punish a violation of the
constitution of the United States, as to demand of this court the organiza-
tion of resistance. If, after more than sixty years of acquiescence by all
the departments of the national and state governments, in the power of
Congress to provide for the punishment of rescuers of escaped slaves, that
power is to be disregarded and all laws which may be passed by Congress
on this subject from henceforth are to be persistently resisted and nullified,
the work of revolution should not be begun by the conservators of the
public peace.
Ib.
GARNISHEE.

GIFT-

See INTEREST, 1, 2.

1. The gift of the maker's own note is the delivery of a promise only, and not
of the thing promised; and upon the death of the maker, leaving the prom-
ise unfulfilled, the gift fails. Starr v. Starr's Ex'r, 74.

2. Such gift being without consideration, no recovery can be had on the note
against the executor of the maker. Ib.

HABEAS CORPUS. See FUGITIVES FROM SERVICE OR LABOR.

HIGHWAYS. See ROADS.

HOMESTEAD. See EXEMPTION OF PROPERTY FROM EXECUTION.
HUSBAND AND WIFE. See DOWER.

554.

1. Where the separate property of a wife, which is protected by statute
against the claims of her husband's creditors, is lost or destroyed by the
wrongful act of a third party, the same protection is to be extended, for
her benefit, to any judgment which she may recover against the wrong-
doer, for the value of the property so lost or destroyed. Pierson v. Smith,
2 The fact that such judgment has been obtained in the name of the hus-
band, is not conclusive evidence of a reduction to possession by the hus-
band. The presumption arising therefrom may be rebutted by proof that
the action was prosecuted at the instance of the wife, and for her sole benefit,
the name of the husband having been used merely as that of trustee, hold-
ing the legal title for the benefit of his wife, without any intention on his
part to appropriate the chose in action to his own use. Ib.