Cohen v. Marchant

Ohio Superior Court, Cincinnati

Cohen v. Marchant

1 Disney (Ohio) 113

DecidedJanuary 15, 1856

StatusPublished

This text of 1 Disney (Ohio) 113 (Cohen v. Marchant) is published on Counsel Stack Legal Research, covering Ohio Superior Court, Cincinnati primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cohen v. Marchant, 1 Disney (Ohio) 113 (Ohio Super. Ct. 1856).

Pincite

Opinion

The cause was submitted to a jury under the following charge:

Storjgr, J.

Every party against whom a judgment is rendered by a magistrate, has the right, by law, to appeal,by filing bail at any time within ten days from the rendition of judgment. If the magistrate refuse to allow an appeal, or does any act by which the party who has a right to appeal is deprived of the benefit, an action will lie against the magistrate, in favor of the party injured, and the amount of damages will be the actual loss he has sustained thereby. In all cases where the magistrate exercises a legal discretion as to the ability of bail or otherwise, he is protected by the law, unless he exceeds his authority, or actual malice is shown on his part..

■ The neglect of a magistrate to affix a proper date to the recognizance, or the act of post-dating, or ante-dating it, are not matters of discretion; they are not protected by the rule applicable to the judgments, or like proceedings of judicial officers..

It is for the jury to decide, upon the whole evidence, when the bail was given; if at the time stated in the docket, Dec. [115]*11530,1854, there is no cause of action made out; if, however, it was executed afterward, and in consequence of the erroneous date the defendant was prevented from taking his appeal, and has thereby been injured, the jury must assess damages sufficient to indemnify him for all that he has lost.

If there is malice found, as alleged in the petition, yet there can be no recovery for anything more than compensatory damages.

To measure the damages, the jury may consider the amount the plaintiff was compelled to pay; the loss of any time he was compelled to employ in attending to it, and reasonable counsel fees.

After all, it is a simple question when the recognizance was actually given. If it was given at any time after December 31, the plaintiff' need not have filed his transcript till May term succeeding, and if he has thus been deprived of it, he has his action for the injury.

Verdict for plaintiff' for nineteen dollars and thirty-nine cents. .

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The cause was submitted to a jury under the following charge:

Storjgr, J.

Every party against whom a judgment is rendered by a magistrate, has the right, by law, to appeal,by filing bail at any time within ten days from the rendition of judgment. If the magistrate refuse to allow an appeal, or does any act by which the party who has a right to appeal is deprived of the benefit, an action will lie against the magistrate, in favor of the party injured, and the amount of damages will be the actual loss he has sustained thereby. In all cases where the magistrate exercises a legal discretion as to the ability of bail or otherwise, he is protected by the law, unless he exceeds his authority, or actual malice is shown on his part..

■ The neglect of a magistrate to affix a proper date to the recognizance, or the act of post-dating, or ante-dating it, are not matters of discretion; they are not protected by the rule applicable to the judgments, or like proceedings of judicial officers..

It is for the jury to decide, upon the whole evidence, when the bail was given; if at the time stated in the docket, Dec. [115]*11530,1854, there is no cause of action made out; if, however, it was executed afterward, and in consequence of the erroneous date the defendant was prevented from taking his appeal, and has thereby been injured, the jury must assess damages sufficient to indemnify him for all that he has lost.

If there is malice found, as alleged in the petition, yet there can be no recovery for anything more than compensatory damages.

To measure the damages, the jury may consider the amount the plaintiff was compelled to pay; the loss of any time he was compelled to employ in attending to it, and reasonable counsel fees.

After all, it is a simple question when the recognizance was actually given. If it was given at any time after December 31, the plaintiff' need not have filed his transcript till May term succeeding, and if he has thus been deprived of it, he has his action for the injury.

Verdict for plaintiff' for nineteen dollars and thirty-nine cents. .

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Bluebook (online)

1 Disney (Ohio) 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-marchant-ohsuperctcinci-1856.