ROADS AND HIGHWAYS. [CHAP. 373. offence was committed, to be appropriated in manner aforesaid; and if the obstructer of any public road or highway shall suffer such obstruction to remain to the hindrance and inconvenience of travellers, and shall afterwards be notified thereof and requested to remove the same; if the obstructer after receiving such notice and request, shall not after notice as aforesaid, use due and sufficient means to remove the obstruction, and sufficient time shall elapse for the removal thereof, without effecting the same, such neglect or refusal shall be considered a second offence, and every additional neglect and refusal to remove the obstruction after like notice and time shall be considered an additional offence. Penalty for de- 27. That if any person or persons shall with intent to injure, take stroying or down, obliterate or destroy any advertisement or written notice, necessary to obliterating ad- be put up under the provisions of this act, the person or persons so offending, vertisements shall for every such offence forfeit and pay ten dollars, to be recovered by set up in pur- action of debt, at the suit of any person suing for the same, before any justice suance of this of the peace within the township wherein such offence was committed, to be appropriated in manner aforesaid. act. Penalty for res road. 28. That if any person appointed by the county commissioners as a fusing to act as viewer of any public road, under the provisions of this act, shall refuse or viewer of a neglect to perform the duties required by this act, without making to the commissioners a satisfactory excuse for such neglect or refusal, the person so refusing or neglecting, shall be fined in a sum not exceeding five dollars, to be recovered by action of debt, by any person suing for the same, before any justice of the peace within the township wherein the person so appointed and refusing or neglecting may reside, to be appropriated in manner aforesaid. This act may be given in evi dence on the general issue. Compensation to surveyors, viewers, &c. Roads laid out by three per § 29. That if any person or persons shall be sued for doing or performing any act or thing required of him or them by this act, he or they may plead the general issue, and give this act and the special matter in evidence; and no such suit or action shall be brought or maintained, unless it shall have been commenced within three months after cause given: Provided, that nothing in this section shall be construed, to prevent the trustees of any township from collecting any moneys in the hands of the supervisors of highway. 30. That the following persons required to render service under this act, shall receive as a compensation for each day they shall be necessarily employed, and allowed by the commissioners the following sums: viewers, one dollar; each surveyor, one dollar seventy-five cents; chain-carriers and marker, seventy-five cents each, to be charged as costs and expenses, and to be paid out of the county treasury. 31, That the several roads and highways laid out and opened in this state, under the three per cent. fund, granted by congress for laying out and cent. fund may opening roads in this state, shall be subject to the same regulations and alterabe altered as other roads. tions by the commissioners of the several counties, as county roads are by this act; any thing in the several acts making appropriation of the said three per cent. fund to the contrary notwithstanding. viso. Streets in § 32. That all streets in towns laid out, or which may hereafter be laid towns, public out in this state, pursuant to the laws thereof, shall be and they are hereby highways; pro- declared to be, so far public highways, that any person obstructing or fencing in any such streets of such town, shall be subject to the same fines and penalties, and recoverable in the same manner as fines and penalties are imposed and recovered by this act, for obstructing public roads and highways: Provided however, that the keeping open and in repair such streets, shall not exempt the citizens of any town from the ordinary labor required to be performed on the public highways in the township by such citizens, One-fourth of 33. That a part not less than one-fourth, nor more than one-half, of the land tax for proportion of land tax appropriated for county purposes, shall be appropriated county purpo- by the commissioners of the several counties, on public roads and bridges ses may be ap- within their respective counties: Provided however, that whenever the ordipropriated for making roads or nary revenue of any county in this state, after having levied a tax to the bridges. extent allowed by the law regulating county levies shall not be sufficient to defray the necessary expenses of such county, and to pay any debts previously contracted, the commissioners of such county shall not be bound to appropriate on roads or bridges any part of the land tax as provided in this section. 34. That the act for opening and regulating roads and highways, passed the twentieth day of February, eighteen hundred and nine, the act amendatory thereto, passed the twenty-eighth day of January, eighteen hundred and O. L. c. 186, 254, 296, remealed. eleven; and an act declaring streets in towns, public highways, passed the This act to take effect and be in force from and after the first day of May When to take next. [Passed, February 16, 1816.] CHAP. CCCLXXIV.-An act to amend the act fixing and establishing the permanent and temporary seats of government. effect. [IN FORCE.] Seat of government to remove. Tuesday of on second § 1. Be it enacted, &c. That from and after the second Tuesday in October next, the seat of government of this state shall be established at the town of Columbus, and there continue, agreeably to the provisions of the second section of the act, entitled 'an act fixing and establishing the perma- October, 1816. nent and temporary seats of government,' passed February fourteenth, eighteen hundred and twelve. 2. That the auditor, treasurer, and secretary of state, shall in the month Duty of state of October next, remove or cause to be removed, the books, maps and papers officers to rein their respective offices, to the offices prepared and designated for them move records severally, in the town of Columbus; and the treasurer shall also remove any and papers. public money which may be in his office; and the said public officers shall there attend and keep their offices respectively, from and after that time, any law to the contrary notwithstanding. 3. That it shall be lawful for the auditor, treasurer and secretary, to Expense of represent their accounts for expenses incurred by the removal, agreeably to the moval, how second section of this act, to the governor, who if he shall approve thereof, paid. shall certify the same; and the auditor shall issue bills for the amount of their accounts so certified, payable at the state treasury out of the contingent fund. [Passed, February 17, 1816.] tions for tres pass on person CHAP. CCCLXXV.-An act supplementary to an act, entitled 'au act regulating the duties Repealed, Janof justices of the peace and constables in civil and criminal cases.'* uary 25, 1819; 1. Be it enacted, &c. That it shall be lawful for the plaintiff, in actions O. L. c. 446, § 18. of trespass on personal property, to commence his or her action in the township where such trespass shall have been committed; and in all such cases, where Manner of prothe defendant or defendants shall not reside or cannot be found in the town- ceeding on acship where such suit may be commenced, it shall be lawful for the justice before whom such suit may be commenced, to issue his summons or warrant, al property. (as the case may require,) directed to any constable in the township where such justice may reside, who is hereby authorized and directed to go into any township where the defendant or defendants shall reside, or may be found, within the county where such suit may be commenced, and to make service and return of such summons or warrant to the justice issuing the same; and the defendant or defendants shall be held or liable to answer to any such warrant or summons, in the same manner, as if such defendant or defendants resided in the township where such suit was commenced. ble in the coun 2. That in all cases where execution shall issue against any person or Justices may persons, on any judgment against such person or persons, and the constable issue executo whom such execution shall be delivered, shall make return thereon, that tions directed sufficient goods and chattels cannot be found within the township where the to any constajustice issuing the same may reside; and it shall be suggested to said justice, ty in certain that the person or persons against whom judgment was rendered as aforesaid, cases. hath or have goods and chattels within any other township in the county where such justice may reside, it shall be lawful for such justice to issue an execution on such judgment, to any constable of the township where such goods and chattels may be found; which constable is hereby authorized and directed to make execution and return to the justice issuing such execution, in the same manner as if said justice resided in the township where such goods and chattels may be found. 3. That the jurisdiction of justices of the peace shall extend to actions Justices jurisof trespass on real estate, in all cases where the damages demanded for such diction to extrespass shall not exceed the sum made cognizable by a justice of the peace tend to trespass in other cases; and no claim of property set up by the defendant shall take on in certain cases, away or affect the jurisdiction hereby given.t [Passed, February 17, 1816.]* *See O. L. c. 327, 328. + By the terms of this section it would seem, that the sum demanded is the test by which the jurisdiction is to be ascertained. (Norton vs. Hart, 1. O. R. 155.) real estate Obsolete. Obsolete, Amended, O. L. c. 437; obsolete, CHAP. CCCLXXVI.—An act in addition to an act, supplementary to the act, entitled 'an act to incorporate the original surveyed townships."* Whereas, it hath been shown to the general assembly of the state of Ohio, that the trustees of fractional township number five, in the second fractional range of townships, in the Miami purchase, did heretofore reserve a certain lot or parcel of ground containing by estimation sixty acres, in the northwest corner of section number twenty-nine, in the said fractional township: and whereas, the said trustees are not authorized to lease any lot of less than eighty acres, as is pointed out in the fifth section of the act to which this is a supplement therefore, Be it enacted, &c. That the trustees of fractional township number five, in the second fractional range, in the Miami purchase, or their successors in office, are hereby authorized to lease a certain lot estimated at sixty acres, lying in the northwest corner of section number twenty-nine, in the fractional township aforesaid, agreebly to the provisions and restrictions pointed out in the act to which this is a supplement. [Passed, February 17, 1816.] CHAP. CCCLXXVII.—An act for the relief of the inspectors of the Ohio penitentiary. Whereas, it has been represented to this general assembly, that sundry expenses have necessarily accrued, in putting in repair the Ohio penitentiary for the reception of convicts, not provided for by law: therefore, Be it enacted, &c. That four hundred and thirty dollars and eighty-three cents, be appropriated to defray the expense accrued and not heretofore provided for by law, to be paid on the order of the auditor in favor of the inspectors, out of any money in the treasury not otherwise appropriated. [Passed, February 21, 1816.] CHAP. CCCLXXVIII.—An act fixing the ratio of representation within the state of Ohio. † 1. Be it enacted, &c. That the representation of this state shall be so fixed and apportioned, that the several counties shall be entitled to send representatives and senators to the general assembly, as is hereafter directed, to wit: the county of Hamilton, three representatives and two senators; the county of Butler, three representatives and one senator; the county of Warren, two representatives and one senator; the county of Montgomery, two representatives and one senator; the county of Preble, one representative; the county of Miami, one representative; and the two counties last named, one senator; the county of Champaign, two representatives and one senator; the county of Delaware, one representative; the county of Franklin, one representative; the county of Madison, one representative; and the three counties last named, one senator; the county of Pickaway, two representatives and one senator; the county of Ross, three representatives and two senators; the county of Fayette, one representative; the county of Highland, one representative; and the two counties last named, one senator; the county of Green, one representative; the county of Clinton, one representative; and the two counties last named, one senator; the county of Clermont, two representatives and one senator; the county of Adams, two representa tives and one senator; the county of Scioto, one representative; the counties of Pike and Jackson, one representative; the county of Gallia, one representative; and the four counties last named, one senator; the counties of Washington and Athens, two representatives and one senator; the county of Fairfield, three representatives and one senator; the county of Muskingum, two representatives and one senator; the county of Licking, one representative; the county of Knox, one representative; the county of Richland, one representative; and the three counties last named, one senator; the counties of Tuscarawas and Coshocton, one representative; the county of Guernsey, one representative; and the three counties last named, one senator; the counties of Belmont and Monroe, three representatives and one senator; the county of Jefferson, three representatives and one senator; the county of Harrison, one representative and one senator; the county of Stark, one representative; the county of Wayne, one representative; and the two counties last named, one senator; the county of Columbiana, three representatives and one senator; the county of Trumbull, two representatives and one senator; the county of Portage, one representative; the counties of Ashta *See O. L. c. 221, 267, 320, 348. + See O. L. c. 275. bula, Geauga, Cuyahoga and Huron, two representatives; and the five counties last named, two senators. 2. That where two or more counties elect in common a member of the general assembly, the judges and clerks shall be governed by the twenty-sixth section of the act regulating elections, passed February fifteenth, eighteen hundred and nine; and the abstract of votes given for senator, in the county of Preble, shall be transmitted to the clerk of the county of Miami; the abstracts of votes given for senator, in the counties of Delaware and Madison, to the clerk of the county of Franklin; the abstract of votes given for senator, in the county of Fayette, to the clerk of the county of Highland; the abstract of votes given for senator, in the county of Clinton, to the clerk of the county of Green; the abstract of votes given for representative, in the county of Jackson, to the clerk of the county of Pike; and the abstracts of votes given for senator, in the counties of Pike, Jackson and Gallia, to the clerk of the county of Scioto; the abstract of votes given in the county of Monroe, to the clerk of the county of Belmont; the abstract of votes given for senator and representatives, in the county of Athens, to the clerk of the county of Washington; the abstract of votés given in the county of Tusca rawas, and the abstract of votes given for senator, in the county of Guernsey, to the clerk of the county of Coshocton; the abstracts of votes given for senator, in the counties of Licking and Richland, to the clerk of the county of Knox; the abstract of votes given for senator, in the county of Wayne, to the clerk of the county of Stark; the abstracts of votes given for representatives, in the counties of Ashtabula, Geauga and Huron, to the clerk of the county of Cuyahoga; and the abstracts of votes given for senators, in the counties of Portage, Geauga, Ashtabula and Huron, to the clerk of the county of Cuyahoga. [Passed, February 23, 1816.] CHAP. CCCLXXIX.-An act pointing out the manner in which suits may be prosecuted on [IN FORCE.] the bonds of executors, administrators and officers. See O. L. c. 841,9. 1. Be it enacted, &c. That it shall be competent for any person injured Suits may be by the misconduct of an executor, administrator or officer within this state, to sustained on obtain from the person holding the bond executed by such executor, adminis- the certified trator or officer, a certified copy thereof, on which copy the person so injured, copy of a bond; may institute and carry on, in the name of the obligee of such bond, for the proceedings use of the person so suing, an action of debt against such executor, adminis- thereon; protrator or officer and his securities, in any court having proper jurisdiction, and viso. recover judgment for the amount of the bond, on which judgment an execution may issue, for such sum as it may be ascertained will be sufficient to indemnify the person so suing: * Provided, That in no case shall the obligee of the bond be responsible for costs; but in case judgment should be rendered in favor of the defendant, cost shall be taxed and recovered against the person for whose use the suit was commenced. 2. That it shall be lawful for any other person injured as aforesaid, to Scire facias proceed by scire facias, in such judgment, until the amount thereof be ex- may issue. hausted: Provided, That the plaintiff shall always set forth the breach or breaches on which he may intend relying, to support his suit: And provided also, That nothing in this act shall be so construed, as to prohibit such executor, administrator or officer and his securities, from pleading any matter which may be pertinent to their defence. [Passed, February 23, 1816.] CHAP. CCCLXXX.-An act further to extend the time for the county commissioners to make Obsolete. out the duplicate of resident land tax.† 1. Be it enacted, &c. That the commissioners of the several counties shall not commence making out their duplicates of resident land tax for the * Under the provisions of this act it is sufficient to name the person for whose use the suit is brought in the process and declaration, without specially setting forth the nature of his interest. (6 O. R. 151.) But the statute fairly admits the construction which requires of the plaintiff to set out the condition of the bond and assign breaches in the declaration: and it is not sufficient to assign a general breach of the condition of the bond, but it must be done with such certainty as to show the subject matter of the complaint. (6 Ó. R. 153, 154.) In an action on a sheriff's bond, judgment must be for the debt, with leave to take execution for the damages; judgment for damages only is erroneous. (Smith's Administrators vs. Commissioners of Licking county, 20. R. 313.) See also, (Ohio, use of Fulton vs. Colerick, 2 O. R. 487.)) + See O. L. c. 244. Repealed, Jan. 26, 1827; O. L. c. 711, 5; see also c. 455. Agent to lease improved lots. Time allowed year one thousand eight hundred and sixteen, until the first Monday in April next, and that they shall be allowed until the first Monday in May next to make return thereof to the office of the auditor. 2. That the auditor shall give immediate notice of this act to the commissioners of the several counties who shall govern themselves accordingly. [Passed, February 23, 1816.] CHAP. CCCLXXXI.—An act supplementary to the several acts regulating the Scioto salt works.* § 1. Be it enacted, &c. That the agent of the Scioto salt works shall, upon application to him made for that purpose, lease out for the term of one year from the first day of March next ensuing, any lot or lots of improved land not leased or occupied under any existing law (giving the preference to the present lessees or occupiers) and each lessee shall be bound to pay fifty cents per acre for the rent thereof and to keep and leave at the expiration of his lease the fences and improvements in a good state of repair. § 2. That William Givens shall be allowed until the first day of April to Wm. Givens next to tube and complete his salt well, he complying with the conditions and to complete his restrictions provided in the law, entitled an act to make further experiments at the Scioto salt works,' passed the fifteenth day of February, eighteen hundred and fifteen. [Passed, February 24, 1816.] well; see O, L. c. 347. Repealed, Feb. CHAP. CCCLXXXII.-An act allowing mutual debts and demands to be set off, and concerning 19, 1824; O. tenders.† L. c. 581, § 4. Pleas and pleadings. Proceedings on a plea of tender. Defendant hav . 1. Be it enacted, &c. That in all actions and suits brought on any bond bill, note, promise or account, in any court in this state, it shall be lawful for the defendant to plead the general issue, and at the same time to give notice in writing to the plaintiff or his attorney, of any debt, contract or demand against the plaintiff, which he may be desirous to have set off and allowed to him in such action or suit, or of any payment or payments he may have made on any such bond, bill, note, promise or account; and if it shall appear that the plaintiff is indebted to the defendant, in a sum equal to or exceeding what is found due from the defendant to the plaintiff, the defendant shall have judg ment for the sum so found due with his costs, and if it shall appear that the plaintiff is indebted to the defendant in any less sum, then judgment shall be given for the plaintiff for such balance only and his costs: Provided always, That no bond, bill, note or other writing assigned over to the defendant after the suit is commenced against him, shall be allowed to be brought in by way of set-off to such suit. 2. That in any action or suit brought on any writing obligatory, promise or contract for the payment of money, if the defendant on a plea of tender shall prove that he did tender payment of the money due on such writing obligatory, promise or contract, at the time and place when by such writing obligatory promise or contract he was holden to pay the same or at any time before the commencement of such action or suit thereon and shall bring into court the money so tendered, the plaintiff shall not have judgment for more than the money so due and tendered, without costs; and shall pay the defendant his costs and in any action or suit brought on any writing obligatory promise or contract for the payment of any article or thing other than money, or for the performance of any work or labor, if the defendant shall plead that he did tender payment or performance on such writing obligatory, promise or contract, at such time and place, and in such article or articles as by such writing obligatory, promise or contract he was bound to pay or perform, and the court or jury find that the defendant did tender as is alleged in his plea, they shall at the same time assess the value of the property or labor so tendered, and thereupon judgment shall be rendered in favor of the plaintiff for the sum so found without interest or cost, unless the defendant shall forthwith perform his contract or give to the plaintiff such assurance as the court may approve, that he will perform the same within such time as the court shall direct, in which case judgment shall be rendered for the defendant, and in case any article so tendered be of a perishable nature, it shall from the time of such tender be kept at the risk and expense of the plaintiff, provided the defendant take reasonable care of the same. 3. That when any plaintiff or plaintiffs shall be indebted to any defend+ See O. L. c. 206. See O. L. c. 301, 316, 347. |