sarily and legally left to the sound discretion of the trustees, aided by the advice of the congregation. They must be taken to act in good faith, until the the contrary be alleged and proven. We can never presume their acts wanton, in the absence of all evidence. No such inference can be drawn from the vote of the society, and the resolution of the trustees, to build a new church. We should incline to restrain them from any wanton breaking up of the graves in this yard, though we see no necessity for deciding this question now.

From the view taken of this case, it results, that the trustees have a legal and equitable right, under Kirby's deed of trust, to determine, in good faith, the necessity of erecting a new church or place of worship, its dimensions and site, having regard to the convenient enjoyment, by the society, of the lots, for the purpose of the grant: That, in order to execute the trust fairly, they may so far interfere with the interments made on the lots, as may be necessary to lay the foundation of the new church; and in executing their work, they may disinter, and decently remove, the remains of any dead within such limits,-forbearing any act calculated to shock the feelings of surviving friends or the public.

We do not intend to express any opinion, encouraging the idea that the trustees of the Methodist church can appropriate this ground to any other purpose than the erection and maintenance of a suitable and convenient church, for the society, upon the plan agreed upon by the society, or the trustees; nor further interfere with, or disturb the remains of the dead, buried there, than is necessary to effect that object.

The bill is dismissed, and the injunction dissolved. Each party to pay their

own costs.

N. B. Judge Collett, who allowed the provisional injunction in the above cause, was present when the decision was made, and concurred with the court in the principles decided.

INDEX

OF

PRINCIPAL MATTERS.

ABATEMENT.

When the defendant pleads in Abatement a misnomer of the plaintiff, the plaintiff may reply,
that he is known as well by the one name as the other. Goodenow v. Tappan, 33.

In slander the death of the defendant abates the suit. Long v. Hitchcock, 571.

The death of the defendant in error, after assignment of errors and joinder, does not abate the
suit. Spurk v. Vangundy, 590.

ACCORD AND SATISFACTION.

Where, in an action of trespass against five, the plaintiff accepts a note from two, payable at a
future day, in satisfaction as to them, but not to operate as a satisfaction for the other defen-
dants, the cause of action is discharged as to all. Ellis v. Bitser, 262.

ACKNOWLEDGMENT.

An acknowledgment of a deed, taken by a Judge of the territory, whilst absent from the territory,
but within the U. States, is valid. Lesse of Moore, v. Vance, 5.

The acknowledgment to a Sheriff's deed is indispensable, nor can such acknowledgment be pre-
sumed where the deed itself is produced, nor can such acknowledgment be made in any other
court than that in which the Judgment is recorded. Roads v. Symmes, et al. 138.
Where the person taking an acknowledgment of a deed, gives himself no official character in
his certificate or subscription, the acknowledgment is insufficient. Lessee of Johnston v.
Haines, 249.

A lease for school lands is not valid unless it be acknowledged before a judge or justice of the
peace. Lessee of Atkinson v. Daily, 326.

Previous to the act of 1818, a seal was not necessary to an acknowledgment of a deed, except
where the estate of a feme covert was to be conveyed. Paine v. French, et al. 807.
SEE Deeds.

ACTION.

An action of Assault and Battery, will not lie against a corporation, nor can a corporation be
joined in such action with other defendants. Orr, v. B. U. States, et al. 25.

No action lies against the Sheriff for imprisoning a debtor in the same room with criminals, if the
county jail contain but one apartment. Campbell v. Hampson, 57.

An action lies against a Justice of the peace for refusing a transcript, in case of appeal. Lef-
fingwell v. Flint. 133.

It is well settled, that where money is paid upon a parol contract for the sale of land, and the
vendor refuses or neglects to execute the contract, the money paid may be recovered back.
Buck v. Waddle, et al. 163.

Where a lessee assigns a part of the premises to a third person, for the whole time of the lease, it
is but an underleasing, and the lessor can sustain no action on the lease for rent, against such
assignee. Fulton el al v. Stuart, 328

The holder of a note payable to A. B. or bearer in cattle, may maintain an action upon it in his
own name, but he must aver and prove that the note was delivered to him for a good conside-
ration. Byington v. Geddings, 333.

Under the act of 1810, a bond for the conveyance of town lots, to which no value is affixed, can-
not be prosecuted by an assignee in his own name. McCutchen v. Keith, 355.

Where there has been an escape for want of a jail, or where the jail is insufficient, the Sheriff is
liable to the judgment creditor, and has his remedy over against the County Commissioners.
Commissioners of Brown County, v. Butt, 390.

Where an obligation is made by Principal and Surety, and the Special Bail of the Principal are
compelled to pay the money, no action lies in favour of the Special Bail against the Surety, for
any part of the money. Smith v. Bing, 460.

A note payable "to A. B. or bearer in good merchantable whiskey at trade price" cannot be
sued by an assignee or bearer in his own name.
Rhodes v.
Lindley, 465.
The heir cannot sustain an action against the Security on an administration bond, until the ad-
ministrator's accounts are settled with the Court, or the plaintiff's rights established by a judg-
ment against the administrator. Treasurer of Pickaway v. Hall, 546.

An action may be sustained by an individual against a Township. Harding v. Trustees of
New Haven Township, 547.

For township liabilities an action lies against the "Trustees of the township," without naming
them, Ib.

The official bond of the Commissioner of Insolvents may be prosecuted against him and his sure-
ties, before the creditor has established his debt by judgment against the Commissioner. State
of Ohio v. Sherman et al, 651.

Where the obligor is appointed administrator of the obligee, the debt is not thereby extinguished,
but is merely suspended, and the debt becomes assetts in the hands of the obligor. Bigelow
v. Bigelow, 756.

An action will lie to recover interest, and in such action, interest may be recovered upon
the interest after it becomes due. Watkinson v. Root, 831.

An action for a nuisance is not merged in an indictment and conviction for the same offence.
Story v. Hammond, et al. 833.

A court of justice will not lend its aid to enforce an illegal or immoral agreement. Roll v.
Raguet, 842.

SEE Assumpsit, Debt, Covenant, Action on the case, Trespass.

ACTION ON THE CASE.

Trespass, and not Case, is the proper remedy where the defendant "so carelessly and negligently
navigated his steam-boat on the Ohio River, that he run foul of, and struck the flat boat of
the plaintiff, by means whereof it immediately sunk and was lost to the plaintiff." Case,
et al. v. Mark, 305.

Case is the proper remedy for the sheriff against the commissioners of the county, when he has
been subjected for an escape, occasioned by the want of a jail, or when the jail is insuffi-
cient. Commissioners of Brown county v. Butt, 390.

If an individual erects a mill dam which causes disease and sickness, he is responsible to indi-
vidual sufferers in an action on the case, for a nuisance. Story v. Hammond, et al., 833.
When a corporation, in grading the streets of a town, acts illegally and maliciously, an action
on the case may be sustained against such corporation, for damages. Goodloe v. the City of
Cincinnati, 867.

ADMINISTRATORS. SEE Executors and Administrators.

ADVERSE POSSESSION.

Adverse possession, after a sheriff's sale, and where the sheriff's deed has been omitted to be
recorded, is not actual notice to a subsequent purchaser, but raises a strong presumption. Les-
see of Cunningham, et al. v. Buckingham. 127.

An agreement to submit a question of boundary to arbitration, so far changes the character of a
possession otherwise adverse, as to defeat the statute of limitations. Lessee of Hunt v. Guil-
ford, 802.

AGREEMENT. SEE Contracts.

AMENDMENT.

Process against two, one not served, declaration against one, appearance and plea by one, ver-
dict and judgment against both in the Supreme Court; the judgment may be amended at a
subsequent terin, by striking out the name of the defendant not served. Hammer v. Mc-
Connell, 246.

A general judgment cannot be amended at a subsequent term so as to make it special. Greene
v. Dodge, et al., 638.

Where a return was made on a vendi. by the late sheriff, to Dec. 1810, that he had sold certain
lands previously levied on, and this return at Dec. Term 1812, the old sheriff being dead, was
ordered to be so amended, on motion of his representatives, as to state, that the property was
unsold for want of bidders, and at Feb. Term 1828, this order of amendment was rescinded,
on motion of the purchaser at the first sale, and an order made upon the sheriff to execute a
deed-Held, that these proceedings were regular. Fouble v. Rayberg, et al, 706.

A final judgment cannot be amended at a subsequent term except in matter of form. Botkin,
et al. v. the Commissioners of Pickaway, 168.

Motions to amend or set aside judicial proceedings should be made in a reasonable time. Fow-
ble, v. Rayberg, et al., 706.

AMERCEMENT.

A sheriff cannot be required by the plaintiff to pay money made on execution before the return
of the writ, and such refusal is no ground for an amercement.
Stone v. Ruffin, 444.
If a sheriff refuse to pay over money made on execution he may be amerced notwithstanding
the service of a writ of attachment, which he is bound to disregard. Dawson v. Holcomb,
134.

APPEAL.

An appeal from the Common Pleas to the Supreme Court does not vacate a submission to arbi-
tration nor their award. Treasurer of Champaigne county v. Norton, 130.

In a joint action against several defendants, one may appeal the whole cause, by giving the bond
required by law. Emerick v. Armstrong, et al., 218.

An executor or administrator in a joint suit can appeal the cause, as well as to himself as to his
co-defendants, without giving any security. Ib.

An appeal lies to the Supreme Court though the trial in the Common Pleas was irregular.
Mills v. Noles, 226.

In Replevin, the plaintiff may appeal from a voluntary judgment of non-suit. Reed v.
penter, 261.

Car-

When the bond for an appeal from the Common Pleas, is executed after verdict but before judg-
ment, the appeal will be quashed. Wilson v. Holeman, 349.

Where a plaintiff appeals to the Supreme Court and recovers no more than in the Common
Pleas, two judgments are entered, one for the plaintiff for the amount recovered, and the
other for the defendant for the costs on the appeal. Waters v. Lemon, et al., 476.