Volume 1 — Cincinnati Superior Court Reporter

<p>This was a suit on tlio following check:</p> <p>“ No. 5,670. “ Cincinnati, August 25, 1869.</p> <p>“Homans & Co. pay to Mr. N. S. Jones or order three thousand and twenty-five fifty-fivo-hundredths — $8,025.55.</p> <p>“ Procter & Gamble.”</p> <p>Indorsed “ N. S. Jones.”</p> <p>The plaintiff alleges that Jones indorsed to it, and that it is the holder and owner of the check; that it was presented to Homans & Co. on the 26th of August, 1869, and payment demanded and refused, of which refusal defendants were notified the same day. The plaintiff asks judgment.</p> <p>The defense is a 'denial that the plaintiff is the holder and owner of the check; they admit they drew the check, and aver that on the day of its date it was presented to Homans & Co. for payment, and paid in part in checks on other banks, in Cincinnati, and in part by a check of a voluntary association, known as the Clearing-house, and that being so paid, the check was on the day delivered by plaintiff' to Homans & Co., who charged it up to tile defendants and canceled it. They also allege that they had funds on that day on deposit with Homans & Co., more than sufficient to pay the check, and that on tlm next day, the 26th of August, 1869, Homans & Co. became insolvent. They deny that the check was legally presented on the 26th of August to Homans & Co. for payment, the same having been already paid, delivered to drawees,and canceled on the 25th of August; and they admit notice on the next day, of presentment, demand, and refusal to pay. They ask to be dismissed with costs.</p> <p>An agreed statement of facts was filed, and the ease was reserved to general term.</p> <p>From the agreed statement of facts, it appears that the Clearing-house Association is a voluntary and unincorporated association of banks and bankers in Cincinnati, both incorporate and private, which had agreed to be governed by certain articles, which are set out fully. Among other things, these articles provide for officers of tbe association, suitable rooms, furniture, clerks, and prescribe the duties of the manager’. Article fifth provides, “That the hour for making exchanges shall be at 2:15 p. m., when messengers from all the associated banks and bankers shall appear with their respective demands, separately made out against each bank and banker, and the totals summed up. At three o’clock they shall return for settlement, when the manager shall issue his check or warrant upon the debtor banks or bankers for the balance, which checks shall, on presentation, be settled promptly by the debtor to the satisfaction of the creditor, in whose hands alone they are to be available.”</p> <p>Eor a long time previous to the failure of Homans & Co. the members of the association caused to be posted in their places of business in a conspicuous place, near their respective counters, a printed notice in illustrated type, to the effect that checks on banks in this city deposited after 1:45 p. m. could not be collected until the ensuing day, and were at the risk of the depositor until collected.</p> <p>Article sixth provides, “In case of failure to respond promptly to the cheeks of the manager on the part of any member of the association, they shall be immediately returned to the manager, who shall call upon the other banks or bankers to make up the sum for which payment has been refused, in proportion to the checks upon the defaulting member sent into the Clearing-house at the preceding settlement, which sums so furnished or contributed shall constitute claims in the hands of the responding members respectively against the defaulting member; and it is hereby agreed that the checks l’eeeived from the Clearing-house by the defaulting members shall be delivered, if required, to the members owning the same, without mutilation. The agency of the Clearing-house, it is understood, is only as a trustee, and in no case is the association to be held responsi- ' ble for any loss that may occur.”</p> <p>The practical operation of the Clearing-house previous to, and on the date of the check sued on, was as follows:</p> <p>There were tables in the room, divided into separate spaces for each bank. A clerk from each bank, at 2:15 each day, attended with the checks hold against the other members; the cheeks against each bank pinned up in a separate package, with an accompanying ticket for each package, with each check noted on it, and the whole footed up; and also with a separate list of the total amounts held against each bank also footed up for the use of the manager.</p> <p>The manager charges each bank with tlie total of checks held against it by the other banks contained in the list made by its clerk in the Clearing-house and credits it with the total of checks held by it against the others.</p> <p>It was agreed that the check sued on was drawn on the day of its date to the order of N. S. Jones, who indorsed the same and deposited it with plaintiff's before 12 m. of the same day, the amount being placed to his credit on the books of the plaintiff, who was the owner thereof; that on the same day this check, with a similar cheek on Homans & Co., for $70.15, was in the regular course of business sent by the plaintiff to the Clearing-house, making the total amount held by plaintiff against Homans & Co. that day $3,095; that on the same day Homans & Co. held against plaintiff on said Clearing-house a check for $581; that plaintiff on August 25,1869, had credits on the books of the Clearing-house for $99,349.70, and a debit of $79,262, leaving a balance to its credit of $20,087.70; that Homans & Co. had credits on the same day on the books of the Clearing house $8,078, and debits $58,281, leaving a debit balance of $55,202; that the credit balance on that day due to plaintiff was settled by two checks drawn by the manager of the Clearing-house,- one of which was as follows:</p> <p>“ Clearing-House, August 25,1869.</p> <p>“Homans & Co.: Pay to Merchants’ National Bank, or order, $12,207. Gf. P. Bassett, Manager.”</p> <p>The two checks on Homans & Co. for $3,025.55 and $70.15, making $3,095.70, were sent to the Clearing-house by plaintiff, and were delivered to the clerk of Homans & Co. by plaintiff’s clerk, and were taken by Homans & Co.’s clerk to their banking house, and were canceled, and were charged by Homans & Co. on their books to the account of defendants. On August 26,1869, Homans & Co stopped payment.</p> <p>The manager’s check for $12,207.70 was on that morning presented to Homans & Co. for payment, and refused. Thereon plaintiff' returned the manager’s cheek to the Clearinghouse on the same day, and contributed an amount equal to the full amount of the checks held by it on Homans & Co. to make good the dishonored check. The plaintiff presented the check sued on during business hours at the office of Homans & Co., and demanded payment, which was refused, and the same was protested, and notice given to defendants.</p> <p>It was agreed that all checks presented at the office of Homans & Co. on the 25 th of August were paid.</p>

<p>Error to Special Term. — The facts of this case are presented in the opinion.</p>

<p>In November, 1861, tbe relation existing between the peoplo and State of Ohio, and the people and State of Arkansas, one of the Confederate States then waging war against the United States, was that of enemies, and the judicial proceedings under such Confederate State Government do not fall within section 1 of article 4 of the Constitution of the United States, which provides that “full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State."</p> <p>The record of a judgment rendered in a court of such Confederate State of Arkansas, in November, 1861, against a citizen of the State of Ohio, is not competent evidence of indebtedness, although it may purport to show that process was served on the defendant prior to the-commencement of the war.</p>

<p>Felix Saas brought suit upon a note given for the purchase money of land, and the Stock Company brought suit to enjoin the collection of the note on the ground that the title to one-third of the land conveyed to the company by Saas was defective, being in the heirs of Martha C. Dudley, deceased, subject to the life estate of Ambrose Dudley, her surviving husband. The life estate of Ambrose Dudley was in Saas. The Great Western Stock Company is in peaceable possession, and anticipates no eviction till the death of Ambrose Dudley; but it has reason to believe that upon his decease litigation will commence, and it asks to be protected against having to pay for the land. This cause was before this court at General Term, on a former occasion, by reservation, to decide whether the heirs of Martha C. Dudley should be stricken from the original suit, of which they had been made parties on a previous motion. It was then held that the heirs of Martha C. Dudley were not proper parties to that suit, because their claim was no defense against the suit of Saas; that as there had been no eviction of the Stock Company, and as it was in quiet possession of the property, it could not refuse to pay the purchase money notes; that if the title should prove to be defective and the company should be evicted, its remedy was on the covenants in the deed. The court in that decision followed the ruling of the Supreme Court in Hill v. Butler, 6 Ohio St. Rep. 207.</p> <p>The heirs of Martha C. Dudley were, therefore, on motion, dismissed from the suit, and the case was remanded for further proceedings; and such proceedings were had at Special Term, that a judgment was rendered against the Stock Company for the amount of purchase money due, to reverse which this petition in error is prosecuted</p>

<p>The forfeiture of a particular estate to the reversioner, under section 76 of the tax law (2 S. & O. 1464), is but an inchoate right until decreed by a court of competent jurisdiction.</p> <p>■ Where the statute, for waste by a life tenant, forfeits the life estate to the reversioner before judgment of forfeiture is ordered, equity will allow the life tenant to repair the waste and save the forfeiture.</p>

These were suits for amounts due for building, repairing, furnishing, equipping, etc., the steamer Petrel No. 2, at Cincinnati, Ohio, the home port of said boat, she being then wholly owned by parties residing in Ohio. The suits were brought to enforce an alleged lien under the watercraft law of this State against the boat by name, and she was accordingly seized. Motions were made by defendants to dismiss the proceedings for want of jurisdiction, and reserved to General Term.

<p>The Federal statutory prohibition of the admission of certain writings in evidence, unless stamped, applies only when such instruments are the predicates of an action, and does not aifect their competency when introduced to establish merely a collateral fact</p> <p>A., one of two copartners, without the authority of B., his partner, formed, in the firm name, another copartnership with C., without the authority or knowledge of B. Held, that A. exceeded his authority as partner, and was legally liable to B. for lo'ss resulting from such unauthorized act.</p>

<p>Howry, tie lessor, -who alleged that his tenant was holding over, under a parol lease from month to month, brought an action of unlawful detainer before a justice of the peace, against Petseh, the tenant, to recover the possession of certain-premises. Petseh claimed to hold under a parol lease for three years; and upon the hearing, Mowry obtained judgment of restitution. During the trial no exceptions were taken by Petseh, and he took no appeal. "When the writ of restitution was about to be executed, Petseh, upon petition to this court, obtained an injunction to prevent its execution, upon the ground that according to section 10, Justices’ Act (1 S. & O. 772), the justice had no jurisdiction to declare a forfeiture of his lease. Mowry answered the petition, denying its allegations, and alleged the tenancy from month to month, the holding over, and the insolvency of Petseh, and set up the judgment in detainer.</p> <p>Held, 1. That whether or not there was such a tenancy as the plaintiff in detainer claimed, and the party was holding over his term, were questions of fact for the determination of the justice, and this court, not being a court of error or appeal in detainer, is bouijd by it.</p> <p>2. That the action of unlawful detainer is a possessory action merely; and that sections 10 and 126 of the Justices’ Act must be so construed as to harmonize the act and support the jurisdiction of justices in the action.</p> <p>3. That in actions of unlawful detainer, the nature of the plaintiff's title, whether in fee simple or for years, is immaterial. Proof of his possession, at the time of creating the tenancy and delivery thereof to the defendant, is sufficient to support the action, and the defendant can not, by the introduction of proof of title, defeat it.</p> <p>-4. Title, in the legal construction of section 10, Justices' Act, does not mean title by mere possession which only the plaintiff need prove.</p> <p>5. The tenant having other remedies under the act relating to actions indetainer (1 S. & O. 791), guare, whether this court can intex-fore in such a case as this, where he has not chosen to avail himself of them ?</p> <p>The facts of the case are set forth in the opinion.</p>

Reserved from Special Term. This is a suit to recover an assessment for grading and paving Seventh street with Nicholson pavement, asking a judgment for $212.30, and that it might be declared a lien on the defendant’s land.

<p>A common carrier having given a bill of lading for goods, can not relieve himself from liability on the ground that the goods were never received by him, except by the clearest proof of that fact.</p>

Reserved from Special Term. This is an action for breach, of a warranty in the sale of a horse. The facts found by the judge at Special Term, and which accompany the certificate of reservation, are as follows: “First. That on the 2d March, 1869, the defendant sold and delivered to the plaintiff, at his stable in Cincinnati, a horse for $400, and warranted him to be sound and safe property. “ Second.

Reserved from Special Term. ' This case came to the General Term, on motions to strike out the second and third defenses, and on a demurrer to the fourth defense. The suit was brought by a passenger on the steamboat Magnolia, on a trip from Cincinnati to Maysville, against, the owners for damage suffered by him from an explosion of the boilers, caused, as is alleged, by negligence of the defendants and their servants.

Reserved from Special Term. This is an action to recover an assessment upon the defendant’s wharf property to pay the cost of a sewer which has been constructed under Ludlow street to the river.

This case was reserved to General Term on a motion by Good, a purchaser of the steamboat Melnotte at sheriff’s sale, to have the purchase money refunded to him because he received no title to the hoat, the sale being void for want of j urisdiction in this court which ordered the sale. The suit of the plaintiffs, Dowell & Bowman, was commenced by a seizure of the boat under the watercraft law of Ohio, on the 2d July, 1866.

The plaintiff in error was plaintiff below, and in her petition set out: That the defendant was indebted to her, and to recover the debt she had brought suit before a magistrate. That she there proved her claim by her own oath, but the defendant, to the surprise of the plaintiff, denied the indebtedness, well knowing her testimony to be false.

The plaintiffs, who are the personal representatives of - A. J. Reeves, deceased, are the owners of a written instrument, of which this is a copy: “ Ohio College of Dental Surgery. “ This may certify that Dr. A. J. Reeves is entitled to one share of the real estate property of the college, drawing, an interest of six per cent., and transferable only in accordance with the constitution of the college association. Shares one hundred dollars each. “Charles Bonsall, Jas.

This case, was reserved, on a motion for a reference to a master, to. state an account. .¿The suit was brought by the plaintiff, a contractor, to recover a balance due from the city for many items of work done and materials furnished on the Commercial Hospital. The answer of the city denies the indebtedness and states that it is a matter of complicated account, as shown by the petition.

Suit for §1,339.78, price of liquors furnished defendants at their request. The defendants were keepers of a gambling house, and the liquors were used there as an accompaniment of their business. One of the defendants answered and one was in default. Both, however, had been served with process, and both testified. The judge at Special Term gave judgment for the defendant who answered, and judgment by default against the other, to which the plaintiffs excepted. '

On the 24th of March., 1869, G. M. Mirrielies, in New York, drew a bill of exchange on defendants, a firm doing business in Cincinnati, payable on demand to his order, for $299, which he negotiated the same day with the plaintiff, who advanced the money; whereupon the drawer, as collateral security, deposited with them a bill of lading, signed by an agent of the “ Atlantic Time Line,” admitting the shipment of three casks of stearine by Mirrielies, to be delivered to the…

<p>Error to Special Term. — The facts are stated in the opinion of the court.</p>

This case was taken to the General Term, in part by reservation, and in part by a petition in error. Under a decree in a partition - suit among the heirs of Isaac Golden, a sale was had of valuable real estate on the 3d of May, 1867, and Mary J. Holenshade, one of the heirs, became the purchaser of the property in question in this case, situated on the west side of Elm street, for $18,100; and also of other property belonging to the estate.

<p>Reserved to General Term. — The facts appear in the opinion.</p>

— This is a suit for deposits made by the plaintiff with the defendants, amounting in all to $6,000,- with which for commissions and reward to buy gold coin for the plaintiff, which, it is alleged, the defendants neglected and refused to do, and afterward on request to repay the said deposits, they refused.

This case was reserved from' Special Term upon the defendant’s motion for a new trial, the verdict below having been there rendered-for the plaintiff.

<p>When depositions or other written) evidence have been offered and read to .the jury, it is error in the court to bold that such evidence shall not be taken by the jury with them on their retirement.</p> <p>Whatever may have been the practice in other States, or in England, it always has been the admitted right óf the jury in Ohio, at least in the southern part of the State,^to examine, on their retirement, all such evidence as may have been read to them.</p>

In G-eneral Term on Error. — The defendant m error sued to recover $622, wages for four months in 1868.

Reserved erom Special Term. — This is a suit by Mrs. Elinn, widow and devisee of Judge Jacob Elinn, deceased, to recover a bouse and lot from Lewis D. Manning, wbo is in possession of it, claiming title. Sbe alleges that tbe property belongs to ber late husband, and by bis will was conveyed to ber. The defendant denies' the title of the plaintiff, and also 'avers that the property was acquired from Eox and wife to.

This case was reserved for the purpose of determining the validity of an ordinance adopted by the city council, August 21, 1863, for gracing and macadamizing Parker street. The objection to the ordinance is that its adoption was not recommended to the city council by the board of city improvements, and therefore the council had no power to act on the subject.

Reserved erom Special Term. — This suit is brought for .■an injunction against the city and the trustees of the Cin■cinnati Southern Railway.

Reserved erom Special Term. — In February, 1847,1848, and 1849, the legislature passed several acts by which the Dayton and Cincinnati Railroad Company became incorporated. It was known generally as “ The Short Line Railroad,” and is so designated. It had power to construct a road from Dayton to Cincinnati, though, in the first two acts it was called by other names, andyvas authorized to construct roads with different routes and termini.

The plaintiff below, the defendant in error, on the 23d of November, 1869, filled an order for goods in favor of one G-. Held: and that they were not to be delivered. On the same day he wrote to Eranklin inquiring as to his financial condition, and stating in conclusion : “ On receipt of your reply we shall ship your goods at once.” The plaintiff supposed his order to the express company had been observed until about the 8th of December, when, having learned…

In General Term on Error. — Tbe petition shows that tbe plaintiff was elected in April, a. d. 1868, to tbe office of city commissioner took tbe oatb, and gave tbe bond, and entered upon tbe duties of tbe office for tbe term of three years, at a salary of two thousand dollars per annum. And that since July 1,1869, tbe city council has refused to pay tbe plaintiff any salary, and that on tbe 1st day of August, 1870, tbe unpaid salary amounted to $2,166.66, for which be sues.

<p>Error to Special Term. — The facts are presented in the opinion of the court.</p>

This suit was brought to recover damages from tbe city caused to tbe improvements of, the plaintiff, upon a lot fronting on Spring street, between Hunt and Court streets, by raising tbe grade of Court street at its intersection witb Spring street. Tbe grade of Court street was raised in connection witb Gilbert avenue, and other street improvements in Deercreek valley, some nineteen feet at tbe point where it passes tbe street on which tbe plaintiff’s lot is situated.

<p>Error to Special Term. — The facts appear in the opinion of the court.</p>

<p>In a suit on a promissory note, the answer was that “the defendant denies all the allegations of the petition.”</p> <p>.5teld, that such an answer was equivalent to the general issue, and did not authorize, under the Code, proof of special matter by way of defense.</p> <p>"W hen, by consent of both parties, a jury is waived, and a cause submitted to the court, neither party can subsequently withdraw his waiver and demand a jury, unless for special reasons to be determined by the court.</p>

This cause went to General Term, on a petition in error, to reverse an order of one of the judges at Special Term, taxing the referee’s fee of $350 in the case, and ordering the plaintiff to pay it.

<p>Error to Special Term. — The facts appear in the opinion of the court.</p>

This case was reserved on a motion to confirm the report of a master commissioner, for the purpose of determining, not whether this report shall be confirmed, but to determine the principle upon which the court shall proceed in deciding whether it shall be confirmed or set aside. The pleadings of the case show that it grew out of partnership transactions, and sought an account.

This was a suit for damages to the plaintiff’s horse through negligence of the defendant’s agents. The accident happened on Eifth street, east of Main. The forward wheels of the car had passed, and the horse backed against the car, and placed his foot on the track in front of the hind wheel, and was injured. There was testimony that the boy, who was trying to catch the horse, called to the driver to stop, but that the car did not stop.

The cases of Scully v. Wayne, Scully v. Miller, and Scully v. Serrian were before the General Term about a year ago, when demurrers to the petitions were sustained, and the causes sent back to Special Term for further proceedings; amended petitions were filed, and demurrers sustained to them. The causes were consolidated, and the plaintiff'then filed a supplemental petition against the city of Cincinnati, who answered.

Eisenmann. brought suit November 29, 1870, against N. & A. Thill, upon their promissory note for $300, and on the same day sued out a writ of attachment against Nicholas Thill, alLeging that before that time N. & A. Thill had dissolved partnership; that said Nicholas took all the partnership assets and assumed all the partnership liabilities, and had absconded with the intent to defraud his creditors.

The suit was brought upon a policy issued by the defendants on the 1st of May, 1868, insuring the plaintiffs as owners of the steamboat United States, against loss by fire, for the term of one year, the vessel having liberty to navigate the usual Western rivers. She was insured in $10,000, and the premium paid for the risk was $500.

<p>In General Term on Error.</p>

In General Term on Error.—The defendant is the owner of property assessed for the improvement of Maple street, on which his property fronts.

Eeserved from Special Term. — This is a suit by a judgment creditor of the Cincinnati Home Insurance Company, in behalf of himself and all other creditors of the company, to enforce the statutory individual liability of the stockholders to the creditors. The company is shown to be insolvent, .and to have made an assignment for the benefit of its creditors.

In General Term on Error. — This -was a suit brought by Eiley against Coghill for the dissolution of their partnership, the appointment of a receiver, and the settlement of the partnership business, and the recovery of a balance claimed as due to the said Eiley. The petition -was filed ■ ■February 9, 1867.

In General Term on Petition in Error. — The original petition stated that the plaintiffs, under a contract with the city, made June 9, 1869, graded and paved Cross street, from Hamburg street, 333J feet westwardly; that the city assessed the cost by ordinance on the owners of property fronting on the street improved; that the estate of N. Longworth, deceased, resisted the payment of the assessment uj>on certain lots belonging to it, on the ground that the assessment exceeded…

Special Term. — The plaintiff filed a bill to quiet title to certain real estate, which had been conveyed to him by one Perguson, who had purchased it at sheriff’s sale under a decree in chancery.

Reserved to G-eneral Term. — On April 4,1856, Robert B. Bowler, now deceased, executed to Augustus C. Parry an agreement in writing, by which, he leased to Parry a lot at the northeast corner of Front and Yine streets, in Cincinnati, twenty feet front, to be held by Parry and his assigns from the 27th of that month for a term of ten years, at an annual rent of $600, payable in quarterly installments, the lessee to erect a substantial building upon the premises before the…

Reserved to General Term. — At Special Term a motion was made by tbe defendants to dissolve a restraining order tbat bad been granted to prevent tbe use of ~Walnut street, Cincinnati, for the car track and route of a street railroad, better known as “Route No. 9.” It was argued by the plaintiff on the ground of irremediable injury to the plaintiff* if the defendants were permitted to occupy the thoroughfare, and by the defendants that the plaintiff had no exclusive right to…

<p>The holder of a firm note, after dissolution of the firm, received the individual note of' one partner for the amount without new consideration. . Payments on account were made on the second note.</p> <p>Held, that the second note was not a payment of the firat nor an extinguishment of the firm liability.</p>

General Term. — Reserved from Special Term on motion to strike out from the answer to the cross-petition a claim of set-off. The facts are fully stated in the opinion.

— This is an action to enforce the lien of an assessment on real estate of the defendant, situated on Eront street, for grading and paving. The petition was filed on March 1, 1867, and a demurrer thereto sustained. An amended petition was filed November 16, 1869, to which a general demurrer was filed, on the ground that the petition disclosed the fact that the claim sued on was barred by the statute of limitations.

<p>Reserved to General Term on motion for a new trial. The facts appear in the opinion.</p>

<p>Action for Dower reserved to General Term on agreed statement of facts, which appear in the opinion,</p>

<p>In General Term on Error.</p>

General Term. — This case is reserved from Special Term upon demurrer to the petition, which discloses the following facts: The plaintiffs are the children of Stevenson Reddish and the grandchildren of Thomas Reddish, both of whom ai’e now deceased. The defendant derives his title from the grantee of Stevenson Reddish, and claims to hold the fee of certain real estate.

— 'The petition and demurrer thereto, which was sustained at Special Term, present the case as brought up on writ of error to the judgment below.

On the 12fch day of January, 1867, John Shillito & Co. commenced a suit against G. & J. Gibson, on a claim of §1,728.40, and procured an attachment, on the ground that they had disposed of their property, a stock of dry goods, with tbe intent to defraud thoir creditors, and caused it to be levied upon as the property of the defendants.

'The origiual complaint in this case was that the defendant, the White Line Central Transit Company, having received and undertaken to transport for the plaintiff' below forty-one boxes and packages, containing the machinery composing the printing press of the plaintiff, failed to deliver one box of the machinery for so long a time that the plaintiff' was compelled to procure other machinery, and suffered damage by delay'in consequence of keeping a large force of operatives…

<p>An antenuptial contract, by'which the wife is to receive less than the value of her dower interest in the estate of her husband, must be reasonable, as compared with the rest of his estate and in respect of the circumstances of the parties to the contract, in order to be enforced by a court of equity. "Where the husband owned a lot of ground thirty-five feet in front on Fifth street in Cincinnati, and by an antenuptial agreement settled upon his wife, in lieu of dower, a life estate in one-third of ten feet only of said lot, and where the personal estate was found to be only $74, such agreement was held not to be reasonable, and the court would not enforce it, by preventing the widow from having dower assigned in the thirty-five feet of ground.</p>

<p>The defendants were stock brokers, and had money belonging to the plaintiff, to the amount of $1,600, on deposit as a margin on purchases and sales of stock made and to be made under a contract between the defendants and plaintiff. The plaintiff gave ah order to the defendants to sell his Pittsburg, Port Wayne and Ohicago Railroad Company stock, and two hundred shares of Erie stock, which was one hundred more than he then had on hand. This order was not obeyed, but a larger amount of Erie stock was purchased, contrary to the plaintiff’s order. If the order of the plaintiff had been obeyed, the amount on deposit would have been increased to $2,100, while the course taken resulted in a loss. The plaintiff called for his money, and was told by the defendants that if he would let it remain they would work.the account, and would repay him all his money, viz: the $2,100, acknowledging their obligation to refund it. The defendants continued to speculate on the fund, and lost it all, and more.</p> <p>EM, that the defendants worked the account at their own risk, and were hound to refund to the plaintiff the $1,600 which he had when he gave the order which was disobeyed, and the additional $500 which he would have had if his order had been obeyed.</p>

<p>Reserved to General Term.</p>

<p>Where summons was issued against a foreign corporation and the return of the sheriff was as follows: “Served the within named the Baltimore and Ohio Railroad Company, by delivering a true copy hereof to H. P. Heekert, the general freight agent of said company, personally, at the usual business office of said company, no other chief officer being present:”</p> <p>jWeld, that the amendment to section 66 of the Code does not repeal section 68, and that under section 68 this service is sufficient.</p>

<p>Where a tract of land was listed and assessed, and the taxes paid, and afterward an error in the number of acres in the tract was discoveredj which the owner reported immediately to the auditor, that officer is not authorized by section 70 (2 S. & O. 1463.) of the tax act to assess and levy, himself, upon said tract the back taxes for the excess discovered.</p>

<p>In General Term on Error.</p>

In an action for goods sold and delivered, the defendant pleaded the statute of limitations of Ohio, claiming that the cause of action had not accrued against him within six years preceding the beginning of the action, as the merchandise on which a recovery was sought was sold to him early in Eebruaiy, 1861.

This action is brought to recover of the defendants a large sum of money, which it is alleged was in the hands of their intestate, at the time of his death, belonging to the estate of Eobert McLean, of whom Eobert McGregor had been the administrator. The plaintiff charges the amount thus unadministered by McGregor to be, with interest, $10,796.

Case reserved to General Term on the pleadings, a statement whereof is as follows : The plaintiffs claim that in June, 1866, they, with the defendants named and many others, formed a copartnershipunder the name of the - Butchers’ Association, the object of which was mutual protection against cattle speculators and high prices in cattle, as well as to provide a fund by contributions from each in monthly installments of two dollars.

Suit against husband and wife, asking judgment against the wife alone for work and labor done, and material furnished, at the request of the wife and under a verbal agreement with her, in repairing and making additions to a house, then her separate property. The amount claimed is $252 and interest.

<p>On a trial before a referee, who rendered a judgment on a counter-claim in favor of the defendants, the plaintiff made a motion for a new trial and took no bill of exceptions; but, after the referee’s report was filed,'made exceptions thereto, which the court overruled and rendered judgment for the amount fouSd due by the referee in favor of the defendants — to all which the plaintiff excepted, but took no bill of exceptions.</p> <p>Held, that there is nothing in the record properly before the Court which can be noticed on error.</p>

— This was an action upon the covenants in a lease alleged to have been made by Albert R-Wise, in Ms lifetime, by which he demised to the plaintiff certain premises on Third street, Cincinnati, for the term of five years, at an annual rental of $1,500.

Case reserved from Special Term on motion for new trial. This action was brought upon a policy of insurance issued by the defendants on the 3d day of July, 1867, to oue M. Pyne, by which he was insured, in the sum of $3,000, upon • the steamer St. Patrick, against all the usual risks while navigating the Ohio and Mississippi rivers below Cairo, during twelve mouths from the date of the contract. The policy was afterward assigned by Pyne to the plaintiff.

On error from Special Term to reverse a judgment rendered for the plaintiff below. The ease appears fully in the opinion.

This case was tried oil submission to the court at Special Term, when the issues were fouud for the defendant. A motion for a new trial was made, and the case on the motion reserved to General Term.

<p>A policy insures a person against loss or damage by fire, to the amount of $5,000, for the term of one year, on his merchandise, hazardous or not hazardous, and on his machinery, tools, and fixtures, contained in the five-story brick building occupied by him as a tobacco factory and warehouse, Nos. 19 and 21, situated on the west side of Hammond street, between Third and Fourth streets, in Cincinnati; adding that the premises were heated by a furnace in the cellar, and connected with the building by wooden bridges from the upper story; and that the premises were occupied as a tobacco factory.</p> <p>Held, that parol evidence was admissible to show that a room, connected by wooden bridges with the main building and used as part of the tobacco factory, was included in the premises described.</p>

Reserved to General Term on motion for a new trial, made by plaintiffs below. The case is fully contained in the opinion

Reserved to Special Term on the pleadings, demurrers, and motions to strike out, which, are set out fully in the statement. ' . The questions in this cause arise upon the pleadings, which are very voluminous.

<p>L. C. & Co. and Q. & Co. exchanged notes for the accommodation of the former, who negotiated in bank Q. & Oo.’s note. When due it was renewed. Before its maturity, L. O. & Oo. dissolved partnership, L. retiring, and the remaining members of the firm formed a new partnership under the style of O. & Bro., and assumed the liabilities of L. O. & Co. When the renewed note fell due, it was again partly renewed by O. & Bro.’s note, indorsed by Q. & Oo., and the balance paid in cash by O. & Bro., all without L.’s assent This last note was protested for non-payment, O. & Bro. having become insolvent. Through all these transactions, Q. & Oo. retained the original note of L. O. & Oo. as security. In a suit by Q. & Oo. against L. O. & Oo. upon their original note under section 500 of the Code (2 S. & O. 1095):</p> <p>Held, That L., the retiring partner, can not claim that the change of securities in the hands of the bank operates as a release of him, on the ground of a payment, or of an extension without his consent, of the original debt in the hands of Q. & Oo. sued on.</p> <p>Held, That such a change of securities did not suspend the right of action, which Q. & Co. have on the original debt of L. O. & Oo. to them.</p>

Case Reserved erom Special Term upon the evidence certified by the judge. The petition claims the defendants to be indebted to the plaintiffs for money loaned to them as partners in distilling whisky, at Hamilton, Ohio. Thornton, Dascher, and Potter composed the firm. Dascher answers that he owes the plaintiffs nothing, and denies all indebtedness.

<p>M., tie owner of the equity of redemption in lands, died before suit brought in the Common Pleas to foreclose the mortgage thereon. On the sheriff’s return it nevertheless appeared that M. was “served at residence.” After decree for sale, the plaintiff therein suggested M.’s death “after suit brought” on the record, and A. being sole heir at law’to M., the action was revived as against him,, and he answered by guardian ad-litem, setting up his interest as heir. Subsequently a new decree for foreclosure and sale was made, sale had and confirmed. On suit by A., against the purchaser, to compel an allowance of redemption:</p> <p>Held, that as the record showed that M. was served with process, the Oourt of Common Pleas prima facie had jurisdiction, and as the proceedings appeared to he regular on their face, its judgment could not he collaterally impeached, and the purchaser’s title disturbed.</p>

<p>The city of Cincinnati contracted -with Bearly to erect a school-house for $81,000, and Bearly made subcontracts with plaintiffs and with others to do parts of the work. The plans of the building were in some respects modified, and considerable extra work, including an extra privy, . was done, increasing the cost beyond the original contract price. The contractor failing to pay plaintiffs, they served a notice of the balance due on their claim for work which would have been included within the terms of the original contract. At the time of the service of the notice by the plaintiffs, the city had paid Bearly the entire sum of $81,000, which was the amount called for by the original contract, but the city nevertheless owed Bearly $1 ,S11 by reason of the extra work. Several of the defendants filed claims for work done on the same building, but not provided for in the original contract, unless it were under the clause providing that extra work should be stipulated for in writing and signed by the parties: ,</p> <p>Held, that the formalities required by the contract for extra work might be and were waived, and that the extra work was to be regarded as done •under one general contract embracing the entire job, and that the plaintiffs were entitled by priority of notice to establish a priority of lien upon the fund in the hands of the city against those who performed the extra work as well as against those claimants whose work was done within the terms of the original contract.</p> <p>Held, also, that the city clerk’s office was the proper place at which to serve the notice, and the clerk the proper agent on whom to serve it, and that the plaintiffs having first presented the statement of their claim- at the clerk’s office to the clerk, were entitled to be first paid out of the fund.</p>

<p>Error, to the Special Term. — The facts appear in the opinion.</p>

<p>In the assignment of errors in a hill of exceptions the error sought to he assigned must he distinctly pointed out, otherwise it will he held to have been waived.</p>

In this cause judgment was recovered, the property of the defendants sold on execution, and the proceeds were in court for distribution.

<p>The defendant refused to pay the insurance on a steamboat lost by fire, on the ground that two competent watchmen were not employed, and at the time of the accident no watchman was on duty. The plaintiff says, that by agreement one watchman was waived, in which respect the policy ought to be reformed; but that in fact two were employed and one was on duty at the time. The testimony was to the effect, that while the watchmen had gone to their supper, on the top of the river bank, the boat took lire and was burned; also, that it is the usage for the watchmen to got their meals on shore when the steamboat is in port. At Special Term the judge instructed the jury to inquire whether one watchman was waived by the agreement or not; if not, whether two watchmen were employed, and one was on duty at the time, within the fair intent and meaning of tbe'policy. A verdict was returned for the plaintiffs, and the defendant's motion for a new tidal was overruled.</p> <p>Held, that having due regard to the circumstances and the purposes of the stipulation contained in the policy of insurance, the charge to the jury was correct, and the motion for a new trial should be overruled.</p>

<p>Whore the sheriff returned a sale of real property on execution to Wenstrup for two-thirds of the appraisement, hut that the purchaser had refused to pay the purchase money, and the plaintiff in execution moved the court to confirm the sale, hut the court overruled the motion and set aside the sale:</p> <p>Held, that the motion was addressed to the sound discretion of the court, and that no such abuse of the judicial discretion was shown as to constitute error in this case.</p>

The petition in this cause was originally filed against the defendant, now plaintiff* in error, and Robert Harlan, the plaintiff’s husband, against whom, on demurrer, the court held the action could not be maintained.

This cause came on to he heard at Special Term on demurrer to the petition. The court below sustained the demurrer; and a writ of error was sued out by the plaintiff' to the General Term. The case appears fully in the opinion.

<p>Where an action is brought for the recovery of lands situated in Ohio, by the plaintiff, who was a slave in Tennessee when the cause of action accrued, and the defendant pleaded the statute of limitations:</p> <p>Held, that slavery was a disability by imprisonment, and that the statute of limitations began to run only when that disability was removed.</p> <p>Where the plaintiff and cross-petitioners were slaves: Held, that no comity now required a recognition and enforcement by this court of the laws of slave States, which made all slave children illegitimate, and so prevented collateral inheritance among slaves.</p>

Reserved ero’m Special Term. — This is a suit brought by the Second National Bank upon the following note; “ $4,000. Covington, Ky., July 11, 1868. “One year after date I promise to pay B. Homans, Jr., or order, four thousand dollars, value received, with interest.

General'Term. — Error to Special Term to reverse the' judgment rendered there against the plaintiff' in error, who was the defendant below. The facts on which the judgment below was rendered were as follows In 1865, Stephen S. Boyle died, seized of four warehouses, numbers 53, 55, 57 and 59, on Columbia street, Cincinnati, between Sycamore street and Broadway.

<p>A. conveyed to his son B. (who was the husband of the plaintiff) and his heirs a house and lot, “to have and to hold the same to the said B. during his natural life, and after his death to his heirs forever; provided that if the said B. should die without children, then the property was to revert to and vest in the heirs of A., the grantor herein.” B. had seven children, but survived them all, and also survived his father A.</p> <p>Held, that B. took under said deed but a life estate, with a remainder in fee to his issue, subject to the condition that if he died without issue living at his death, the estate should revert to the heirs of A., and that on the death of B., the plaintiff, his widow, took no estate from her husband, either as heir or as widow.</p>

This suit is brought to enforce specific performance of a contract on the part of the defendants, the heirs and devisees of Pollock and of Reynolds, by requiring them to pay an amount of money which Pollock & Reynolds undertook to pay Wade, the plaintiff, by the following contract : “Nehemiah Wade agrees to cancel the present lease on lot 177 in plat A of Wade’s subdivision, being 146 feet on Liberty street by 184 feet deep to Melancthon street, in Cincinnati, with August…

<p>Gunn, in 1830, procured a copyright for, and published, “Gunn’s Domestic Medicine and Poor Man’s Priend; in 1838 he sold and transferred one-half his interest to Raymond, in trust for Raymond’s wife and children, covenanting that he would not transfer it to any one else, and that he would prepare a larger edition, which Raymond was to publish at his cost; but the profits were to be equally divided, and so of every new edition of the work. In 1858, Gunn, having prepared another edition, under the title of “Gunn’s New Domestic Physician and Home Medicine,” sold it to the defendants with the knowledge, but without the consent of Raymond, and the defendants, in 1858, published the work, and continued to print and sell it till 18Í0, when Raymond brought suit to compel them to account to him for one-half of the profits of the publication.</p> <p>Held, that when a party claims to hold another as a trustee of personal property, under a mere constructive and not an express trust, of which he had notice, he must assert the claim within four years from the time when the trust is alleged to have originated, in analogy to the statute limiting actions for the detaining of personal property, and that this action is, therefore, barred by lapse of time.</p> <p>[Leave to file a petition in error in the Supreme Court refused. — Eds.]</p>

This was a proceeding in error on the part of the plaintiff below, to reverse a decree of tbe court in Special Term, rendered in favor of some of the defendants. Tbe whole case is fully stated in tbe opinion.

This is an action against the defendant, as a physician and surgeon, who undertook to cure the plaintiff of a painful swelling of the left arm, for reward, and it is alleged he so carelessly, negligently, and improperly treated the plaintiff, by cutting one or more arteries and veins, that her life was in great danger, and her arm has been rendered wholly useless, by reason of which, etc., she has been damaged $3,000.

<p>A. was-the owner of ten shares in a building association, incorporated under the laws of the State (S. & S. 194), on June 4,1863, and during the first year drew out of the treasury, in accordance with the constitution and by-laws of the association, $4,000. To securo this amount, together with the dues, interest, and fines, B. gave a mortgage on real estate to the association for the sum. of $4,480, the premium of $480 not being usurious by the laws of the State. A. stopped paying dues and interest, July 27, 1869. The building association commenced suit in October, 1869, to foreclose the mortgage and on March 3, 1870, obtained an order for sale.</p> <p>Held, that the present value of the mortgage in the decree of distribution dated, November, 1871, is obtained as follows: Ascertain by proof the probable duration of corporation, and calculate the dues and interest yet to come; then find the principal which, with interest for the supposed time, will amount to the dues and interest already calculated; this will be the present value of the anticipated payments; to this principal add the ' arrearages due, and the fines for the time between the date of default and the date of the entry of decree for sale, and the sum will be the present value of the mortgage.</p>

This was a proceeding to reverse a decree made at Special Term against the defendant below. The facts of the case are fully set forth in the opinion.

Action to recover the value of twenty-one bales of cotton, laid at $4,250, shipped in January, 1866, at Cincinnati, by the plaintiffs, on the defendant’s line, for Allegheny City, Pennsylvania. The cotton was put on an express train at Cincinnati, which, when it reached Xenia, Ohio, at about 8 o’clock p. m., was shifted onto a side-track. While there, in some way, the cotton took fire, and was consumed.

<p>Reserved, to General Term.</p>

<p>The granting of a motion for a new trial, made at the term of the trial, within the time prescribed by the rules, is within the discretion of the court, and ordinarily will not be reversed on petition in error.</p> <p>An order dismissing the case without prejudice, after the new trial granted, will not be reviewed on a petition in error unless there is a bill of exceptions showing the evidence before the court upon which it acted.</p>

<p>On the 13th Marph, 1850, A. mortgaged to B. real estate to secure five promissory notes, amounting to $12,000 and interest, and sold to O. the said real estate, who assumed the said notes as part payment of the purchase money. On the 27th September, 1855, after the last note had fallen due, and while the ten per cent, interest law was in force, G. entered into an agreement with B., to which A. was also a party, to pay ten per cent, interest for one year on the amount, principal and interest, due at the time when the last note fell due, viz: 1st September, 1855, in consideration of forbearance on the part of B. in collecting said notes and in foreclosure of said mortgage, and also in consideration of the extension of the payment of said notes and interest to the 1st day of September, 1856. O. continued to pay ten per cent, interest to March, 1868. The ten per cent, law was repealed April 1, 1859.</p> <p>Held, that this was an agreement for forbearance generally, for which O. agreed to pay ten per cent, interest, and that the time for which ten per • cent, is to be paid is not limited in the contract to one year only.</p> <p>Held, also, that the excess of four per cent, can not be charged as a lien on the real estate under the mortgage; but a personal judgment against C., for this excess, can he taken in this case, according to the prayer in the petition.</p>

The finding, on which the judgment of the court below was founded, was as follows, viz: 1. That Geo. W. Mayhugh, the plaintiff in case No. 24,037, was the owner in fee simple of the premises in question at the date of his departure from the State of Ohio, prior to January 1, 1856, and at the date of the reception of the last information from him, prior to his return therefrom, which last information was received at a date not later than February 15,1859; that said. Geo.

<p>In an action for damages for selling without authority mess pork held under the following contract, viz:</p> <p>“ Cincinnati, November 26,1869.</p> <p>“ We have this day sold Blackburn Holmes 300 barrels of mess pork (our brand) at $31.50 per barrel, to be delivered at his option, he paying interest at the rate of ten per cent, per annum. Commmission on sale, two and one-half. Storage, six cents per barrel per month. Margin of five dollars per barrel, to be paid us December 20, 1869. Charges to commence from date.</p> <p>[Signed,] “ Evans, Lippincott & Cunningham.”</p> <p>Defendants aver, as a fourth defense, “ that they sold said merchandise to the best advantage, and that they had the right under their contract with said Holmes, by virtue of the custom of the pork trade in Cincinnati, which custom was well known to the said Holmes at the date of said transaction, to sell said merchandise for want of margin thereon, irrespective of the orders of said Holmes, the margin having been exhausted at and before said sale, and said Holmes having been notified to renew said margin, and having failed to do so for a reasonable time. ”</p> <p>Held, that this contract contains no provision for a renewal of the margin, and that a sale made after a demand of a renewal of the margin without notice to the plaintiff of the time and place of sale, was not authorized by the contract, and that a custom of the pork trade in Cincinnati authorizing a sale under such circumstances, without such notice, would be unreasonable and in violation of law.</p> <p>Whether such a sale could have been justified under such a custom, if the contract had contained a provision for the renewal of the margin, quaere ?</p>

<p>Hamilton and Knight were accustomed to accommodate each other by an exchange of checks or notes. Knight gave Hamilton, who wanted to raise money, his check for $1,210, on a hank, payable to the order of Hamilton, and at the same time took from Hamilton a like check, payable to his (Knight’s) order, on the same bank, for the same amount. Hamilton transferred Knight’s check to a creditor as collateral to an existing debt.</p> <p>Held, that the check was not to he considered as accommodation paper, and that H.'s creditor was entitled to collect the check from Knight, although Knight had not transferred or brought suit on the check which he had received and held from Hamilton.</p>

On error to the Special Term, to reverse the judgment of the court below, in favor of the plaintiff. The facts appear fully in the opinion of the court.

<p>Bates sold the Louisville Theater to Fuller, retaining a lien by the deed for $26,000 of the purchase money, and providing that Fuller should keep on the property insurance in $10,000, loss, if any, payable to Bates, on which policies Bates brings suit. Before the Are, Fuller sold and conveyed the property for $75,000 to Mark Munday, retaining by the deed a lien for $50,000, with the condition that Munday should keep the property insured in $10,000, loss, if any, payable to Fuller.</p> <p>Held, that the interests of a mortgagee and mortgagor are entiroly distinct, and that the insurance procured by Munday, under his arrangement with Fuller, did not avoid the policies for $10,000 procured by Fuller under the arrangement with Bates, notwithstanding the provision in said policies that “ in ease the insured or assigns should make other insurance without consent of the defendants,” the policies should be void.</p> <p>That the word “ assigns,” in this clause, means assignees of the policy, and ■ not assignees of the property.</p> <p>That the sale to Munday by Fuller, he retaining a lien for $50,000 of the purchase money, did not avoid the policy issued by one of the defendants to Fuller, which contained the clause that “a transfer or change of interest of the insured, either by sale or otherwise, without consent of the defendant ” should^avoid the policy. The interest was not “ transferred or changed ” within the meaning of that clause in the policy.</p>

mn This suit was brought upon a promissory note made by the defendant. The note was for one thousand dollars, as follows: “ $1,000. Cincinnati, January 1, 1864. “ One year after date, I promise to pay to the order of - Catherine Seybold one thousand dollars, for value received, with eight per cent, per .annum interest from date.

Writ of error to Special Term, to reverse a judgment there in favor of the plaintiff below. William Green was the plaintiff below, and filed his petition on January 16, 1869, setting forth two causes of action, as follows: First.

This was an amieable suit reserved on an agreed statement of fact to General Term. The case appears fully in the opinion.

This was, in the court below, a proceeding by Scully, the plaintiff, for plastering done by him on the defendant’s house, under a sub-contract with Becket & Megrue, who were the contractors with Hiltz for the building of the house. Becket & Megrue failed to pay the plaintiff, their sub-contractor, for the plastering done by him, and he served a notice upon Hiltz, the owner, under the statute to subject the funds in his hands coming to the contractors.

Dan Ames, in his lifetime, conveyed to his two children, E. W. Ames and Olivia Hawes, all his real estate, his wife not joining in the deed. After the death of Dan Ames, both E. W. Ames and Olivia made deeds of their respective interests in the real estate to their mother, Mrs. Anne Ames, the widow, and the estate was managed for several years by them in the name of Anne Ames.

<p>This case came on upon the plaintiff’s motion for a restraining order.'</p>

<p>The case is fully stated in the opinion.</p>

<p>The defendants resided at Aurora, Indiana, and were shipping a quantity of hay to New Orleans in barges. Hayes, who also resided in. Aurora sent up to the office of the plaintiff, at Cincinnati, an application for insurance on the hay. The policy was issued, and the suit is for the premium. Hayes received a commission from the plaintiff. The defendants set up as a defense the statute of Indiana, that a foreign insurance company shall not enforce any contract made by an agent in Indiana; and also the act of Indiana, that it shall not he lawful for any agent of a foreign insurance company to take risks, or transact any business of insurance in said State, without first producing a certificate of authority from the auditor of said State.</p> <p>Meld, that the insurance was not to be considered as transacted in Indiana, but in the State of Ohio, where the suit is brought, and is not affected by the law of Indiana against agents of foreign insurance companies. Nor would it be affected in the courts of Ohio, even though the law of Indiana should prevent its enforcement in that'State.</p>