Volume 1 — Ohio Circuit Court Reports

The defendant in error, John Hesket, filed his petition in the court of common pleas, setting forth that on the 30th day of January, A. D. 1885, John G. Stewart was engaged in a general banking business in the village of Coshocton, Ohio, and then had on deposit in the Importers’ & Traders’ National Bank, in New York City, the sum of $13,677.25, under an agreement between him and said Importers’ & Traders’ National Bank, that it would deliver said money to such persons, at…

<p>Practice — The court, where plaintiff makes a prima facie case, and the defendant offers evidence in answer thereto, has no authority to direct the jury to find a verdict for the defendant.</p>

<p>An ordinance by a village council, authorizing the condemnation of land, for the purpose of having the county commissioners build an avenue thereon, under a special law granting authority to them to do so, is valid, though not read on three different days, the rule requiring this to be done having been properly suspended. Such ordinance is not in contravention of sec. 6, art. 8, or of sec. 1, art. 13 of the constitution.</p>

<p>Error to the Superior Court of Cincinnati.</p>

<p>Probate Court — Jurisdiction—Action on Bond of Trustee or Assignee.</p>

<p> City not liable for Negligence of Board of Improvements acting as Agents of the State. </p>

<p>Error to the Common Pleas Court of Hamilton County.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Error to the Superior Court of Cincinnati.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>On petition for writ of mandamus.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Master and servant — Regulations of R. R. Co. governing safety of employes — Physician’s bills in estimating damages, when not claimed in petition, and no proof is offered as to value — Burden of proof as to want of negligence on the part of plaintiff in certain cases.</p>

<p>Error to the Court of Common Pleas of Clermont County.</p>

<p>Homestead Law — Effect of Section 5435, Revised Statutes, on Debts which accrued prior to its Passage in 1869.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Where a claim against an estate is allowed by an administrator thereof, and the verified account is left with him, and the estate is after-wards declared probably insolvent, and no commissioners of insolvency appointed, the claim should be reported to the court as a valid one, without a new presentation and allowance thereof, unless the holder of such claim is duly notified by the administrator that it is disputed or rejected by him.</p>

<p>Practice in partition proceedings — Effect of a report signed by three commissioners and filed in court, and the name of one improperly erased therefrom — Where all the commissioners act, the report need not be unanimous, but the action of a majority is binding and valid.</p>

<p>1. In proceedings by a municipal corporation to appropriate private property for a street, under section 2237, K. S., a mortgagee, whose mortgage is duly recorded, is an “ owner ” within the meaning of that act, and entitled to notice of the pendency of such proceeding.</p> <p>2. If any of the property so mortgaged be appropriated without notice to the mortgagee, he may maintain an action against the municipal corporation to recover damages for the same.</p>

<p>Error to the Superior Court of Cincinnati. (13 W. L. B., 250.)</p>

<p>Petition to vacate judgment, at former term rendered by District Court.</p>

<p>Statute of Frauds — Effect of taking Possession of one of several distinct Parcels of Land claimed under one Contract.</p>

<p>Mechanic’s Lien on Railroad Bridge— When attaches — Priority between Mechanic’s Lien, Solder, Mortgagee, Bondholder — When Contract is entire, Pleading — New Matter in a Reply — Subject to Motion to strike out.</p>

<p>Railroad company — Right-of-way—When agreement to build and maintain fences by grantor not a covenant running with the land — Right-of-way passing by mortgage and sale of railroad company to lessee of purchaser — Provisions of section 3329, R. S., do not prevent a recovery for failure of company to erect fences, when compensation for the building of it was not taken into consideration and estimated as a part of the consideration paid for the right-of-way.</p>

<p>Judgment against one of two Defendants on a joint Obligation, and Continuance of the Case for Trial as to the other — Judgment as to him at a future Term — Merger.</p>

Plaintiff, on the 11th day óf July, 1879, brought suit against C. H. Shonert, as treasurer of Crawford county, Ohio, to enjoin the collection of $96.50, the costs and expenses of surveying and constructing a township ditch, which stood as a tax charged against his land on the treasurer’s duplicate, to be collected like other taxes, and which, he alleged, was there without authority of law. The ditch proceedings were conducted under the laws in force January 26th, 1875.

<p>Opening and Closing of Argument in Trials to the Court — Improper Question, Objection to be made before Answer — Fraud, constructive and intentional — Attachment for Fraud, intentional Fraud must be proven— Forming Corporation and transferring Property to the same as Fraud.</p>

<p>Fire Insurance — Proviso against Change of Ownership — Sale of Stock during Fife of Policy, and Be-sale to original Owner before Loss by Fire does not forfeit a Policy.</p>

<p>Railroad and Passenger — Duty of Passenger obtaining Ticket at reduced Rate, under Contract to comply with Conditions of the Contract.</p>

<p>1. A recital in the transcript of a magistrate, “that the constable has demanded his fees in advance, and' refuses to serve a summons for a jury because not paid,” is not a return of the constable, and will be disregarded by a court on error. .</p> <p>2. A constable has no right to demand in advance of service his fees for summoning a jury under section 6551, revised statutes.</p> <p>8. When a jury is properly demanded and selected in a trial before a magistrate, the refusal of a constable to serve the summons on the persons so selected as jurors, gives no authority to the magistrate to try the case without a jury.</p>

<p>Error to the Court of Common Pleas of Franklin County.</p>

<p>Tbe Act of April 16, 1885, authorizing the circuit court to grant further time to file additional bond in cases appealed from the court of common pleas, is valid.</p>

<p>1. Un dor section 2264, revised statutes, municipal corporations have the authority to improve streets therein by grading and bouldering, and assess the expense upon the abutting lots and lands.</p> <p>2. Under said section, if two-thirds of the members elected to the council concur in the resolution, etc., and proceedings, no petition of the abutting property holders is necessary.</p> <p>3. A petition to enforce an assessment for such improvement, which avers that the city council duly, passed and published the ordinance, and that written notice thereof was caused by the city to be duly served, etc., contains, in the absence of a motion to make more definite, and as against a general demurrer, a sufficient averment of the valid passage and publication of the resolution, etc., and the proper service of a valid notice.</p>

On the 6th of May, 1880, Samuel J. Bennett and Wm. K. Bennett filed their petition in the court of common pleas of Pickaway county against Jonathan Taylor, which petition was as follows: “ The plaintiffs allege the following facts as their cause of action : They say that on or about the 8th day of April, 1879, Samuel J. Bennett, the father of the plaintiffs, made and published his last will and testament; that afterwards he departed this life at Pickaway county, where he…

<p>Error to the Court of Common Pleas of Franklin County.</p>

<p>Injunction — Rule as to when it should be granted — Acquiescence for ten Years in Act complained of, without ISvplanation, to be taken as Admission that Case does not fall within that Rule.'</p>

<p>To maintain a suit to enforce the statutory liability of a deceased holder of stock in an insolvent corporation, it is not essential that a claim on account of such liability he first exhibited to his personal representative.</p>

<p>Effect of the judgment of the supreme court in a proceeding in error, to reverse the judgment of the district court, where the reviewing court proceeds to render the judgment the trial court should have rendered, on rights acquired by the parties after the judgment in the district court.</p>

<p>Action against a railroad company — where to be brought, and how summons served, when defendant’s road, running through the county where suit is brought, is held by lease, and not absolutely.</p> <p>Effect of motion to quash summons and return thereof in such case, on the grounds that the court has no jurisdiction of the action for the reason that defendant’s road does not pass through such county, and because the summons is not properly served.</p> <p>Questions of evidence, and of what the .court will take judicial notice. Qwere: Rights of conductor and of passengers in certain cases.</p> <p>Effect of consent of plaintiff to an entry of a remittitur of a part of his verdict, and to which he also excepts.</p>

<p>In mandamus, the petition is under section 6743 Rev. Stats.; the pleading in the case of relators, instead of the writ as formerly.</p> <p>This petition may, on motion, be required to be made more definite and certain.</p>

<p>Appeal from the Court of Common Pleas of Muskingum ■ County.</p>

The relator filed his petition in the court of common pleas against the defendant, the probate judge, for a peremptory-writ of mandamus, to compel that officer to issue to the auditor certificates for the allowance and payment of certain claims, alleged to be due to the relator as superintendent of the county infirmary, on account of services in the care of persons who had been adjudged to be entitled to admission to the lunatic asylum of the state, at Dayton, and were…

<p>X. The probate court, on appeal from the proceeding of the township trustees in the location of a ditch, is not made a court of error to review their record and pass upon error and irregularities appearing therein; but its jurisdiction is by statute limited to hearing and determining the preliminary questions pertaining to the case, and the dismissal of the appeal if it be found that the same is not perfected according to law; and in case the preliminary proceeding for appeal are in substantial conformity to law, then to the selection of, and trial to the jury, and the proceedings subsequent thereto in the statute provided for.</p> <p>2. Upon the trial on such appeal, the duties of the jury are confined to determining and rendering a verdict in writing therein, finding whether it will or not be conducive to the public health, convenience or welfare to cause the proposed ditch to be established or located, and the amount of compensation and damages to be awarded to the persons claiming the same.</p> <p>3. The jury, after being sworn, are required to examine the ditch, and may, from such examination, with or without the aid of testimony, make up their finding as to whether it will or not be conducive to the public health, convenience or welfare to cause said ditch to be es-established or located; and it is not error for the court, after having charged the jury that “ before they could find in favor of the ditch, they must find that it would be conducive to the public health, convenience or welfare of the neighborhood through which it passes,” to refuse to further instruct the jury “ that the burden of proving the the public necessity of the ditch by a preponderance of testimony is on the petitioners.”</p> <p>4. The location and construction of one ditch by the township trustees to drain certain territory does not exhaust the power of draining over that territory, nor confine it to the deepening, widening, etc., of such previously constructed ditch ; nor are trustees in the location of ditches restricted to the course of the natural flow of the surface water. The only limitation as to the number, course, and location of township ditches, is that they shall be conducive to the public health, convenience or welfare.</p> <p>5. For the'land appropriated for such ditch the land-owner is entitled to full compensation, and is also entitled to the damages to his other lands from which the appropriation is made. He is not entitled to have awarded him as part of his compensation the value of a strip of land not actually appropriated, on each side of the ditch; nor is he entitled to have the costs of constructing such portion of the ditch as the trustees apportion to him to construct, assessed as part of his damages.</p> <p>6. It is not error to the prejudice of the land-owner, on the trial of his claim for compensation and damages, to permit, against his objection, a properly qualified witness to be asked, “ what injury, as matter of fact, the ditch would cause to the lands ? ” and to which question the witness answered: “ none.”</p>

<p>1. Where a canvassing board is about to do some act of a ministerial nature, which is in violatiou of the statute prescribing its duties, the court, before the result is fully declared, by mandamus may require it to proceed according to law. The fact that a mode is provided by . whioh the election may be contested does not prevent the exercise of such jurisdiction ; nor is there any other plain and adequate remedy in the ordinary course of law. By no other judicial proceeding could this relator compel this board to discharge its legal duty or furnish him a certificate of election, if upon a legal and proper canvass he is entitled thereto.</p> <p>2. The statutory provisions that the “ clerk and justices shall not receive any paper as a poll-book unless it be delivered by one of the judges of election held in such precinct, and in making the abstract they shall not decide on the validity of returns, but shall be governed by the number of votes stated on the poll-books,” are mandatory in their nature, and must be strictly complied with. Said board is not authorized to receive or canvass any paper as a poll-book unless so returned. When a return so made, is on its face substantially in accordance with law, it must be counted by them, though they may be satisfied that there was gross fraud in the election itself, or in the returns thereof as made to the clerk. And the court in a proceeding of this character can only require the board to canvass such returns so received in this manner. It can not, any more than can such board, go behind such returns. All the court can do, is to require the board to do what the law requires.</p> <p>S. When it appears to the court that the board is canvassing as returns, papers which are not such, either in form or substance according to the statutes* or not returned to the clerk by a judge of the election precinct, the court may properly direct the board to omit them from. the canvass.</p> <p>4. If the poll-book and tally-sheet show that the votes as stated in the tally-sheet are substantially more than the votes cast as given by the poll-book, no greater number of the votes on the tally-sheet should be counted than equals the number of names on the poll-book.</p> <p>5. To entitle such return to be received and canvassed by such board, it must be returned before the time fixed for the commencement of the canvass (six days), as the canvass is by fair interpretation of the law, to be made of the returns received at that time.</p> <p>6. Where a return properly signed by two of the judges and one of the clerks, constituting a majority of the election board, is filed by one of the judges of the precinct in the clerk’s office, within the time allowed by law, it is probably a substantial compliance with the provisions of the statute. At all events the court not’being clearly satisfied that it was the duty of the clerk and justices to reject it, they will not be required by the court to do so.</p>

<p>Conversion — Measure of Damages.</p>

<p>Error to the Court of Common Pleas of Lake County.</p>

Quo Warranto. It is a fundamental principle lying at the foundation of all organizations such as this, that the majority of shares shall control it, and that each share entitles the owner to one vote for each officer to be elected, whether director or other officer. This is the common law of corporations. Redfield on Railways, vol. 1, pages 71 to 76, chapter 4, section 3; Blackstone’s Com., 468-471; Kent’s Com., 293, 294. .

<p>1. The canvassers of election cannot regard, as a return a paper enclosed in an envelope, which paper does not on its face purport to he an official return, hut is simply a note of results taken from a tally-sheet, addressed to some person or body, other than the clerk or official canvassers.</p> <p>2. Where upon the face of a return, it is evident that there has been a forgery or falsification of figures, the canvassers should reject and not count such forgery or falsefied figures, whether the same were put there before or after the return came into the custody of the clerk.</p> <p>3. When the tallies on a return are in excess of the number of votes on the poll-book, the canvassers should, if sufficiently large to 'show fraud and change in the result of the election, throw out the whole precinct, or they may divide the excess among the candidates of different parties proportionately, according to the rules laid down in McCrary on Elections. Secs. 298, 299, 300.</p> <p>4. Where in a proceeding in mandamus the court find that the relators have a plurality .of votes, they may order the canvassers to so certify, and the clerk to issue certificates to the persons whom the court find elected, and this too even if the clerk had previously issued certificates of election to persons whom the court finds were not entitled to them. Boren & Guekes v. Com’rs Darke Co., 21 Ohio St., 311, 322.</p>

<p>A mechanic’s lien dates from the first item in the account, andif the lien-holder files his attested account for record within the time provided for hy statute, such lien will have priority over a mortgage filed for record any time subsequent to the date of the first item in said account.</p>

<p>1. Action against an insurance company to recover a fire loss, under a policy containing a limitation clause providing that “ no suit against the company shall be sustainable unless brought within twelvemonths from the time of the loss,” cannot be maintained unless brought within twelve months from the time of the fire.</p> <p>2. Such a clause does not mean twelve months from the time the loss was payable, where the policy requires proof of loss within thirty days, and provides that the loss shall be payable ninety days after the receipt of such proofs.</p> <p>3. Such a limitation clause is not against public policy, but consistent therewith; nor is it repugnant to statutory limitations, being simply ■ a valid clause in a contract which the parties had the right to make.</p>

<p>From the pleadings and the evidence it appears that the defendants and other officers and persons adopted and approved the plans, specifications and estimates for a court house in Franklin county, and made all the preliminary arrangements that are required by chapter one of title six of the revised statutes; that thereafter, on the 6th day of January, the auditor advertised for bids to perform the labor and furnish the material required in the different branches of mechanical employment. Pursuant to said notice the relatorsfiled their written proposal, offering to perforin,the labor and furnish the material, for the cut stone work fori $97,270.00. The preliminary estimate¿for that branch of^the work was $92,850.00. On the 7th day of February, the defendants passed an order requiring that each contractor should enter into-a bond for the performance of his contract, in a sum equal to-the contract price of his work, with sureties owning unincumbered real estate in Franklin county equal to one-third the amount of the bond, such value to be shown by the auditor’s duplicate.</p> <p>Of the proposals for this branch of the work, that of the relators was the lowest,*and*on the 6th day of February the defendants awarded the contract to them on condition that by the 16th of February they give the required bond. On that day the relators filed a bond which was ample to secure the-performance of the contract, although the duplicate did not-show the sureties to be owners of as much real estate in Franklin county as was required by the order of the defendants. On the 17th this bond was rejected by the commissioners, upon the ground that the sureties were insufficient. On being notified of such rejection, the relators took their bond from the office of the defendants for the purpose of procuring the signatures of additional sureties, expecting that further time would be granted them for that purpose. On the 19th day of February, another bidder demanded that a contract be made with him for the same work. On the 21st the defendants sought legal advise as to their duty in the premises, and were informed that they could not make a legal contract for this branch of the work because the lowest bid was in excess of the preliminary estimate, and upon the same day they re~ • voked the previous'award, rejected all bids for cut stone work and directed the auditor to advertise anew for proposals. On the 23d day of February, the relators tendered another bond with a contract signed by them, and demanded that the bond be accepted and the contract executed by the defendants. This demand being refused, the relators brought this suit on the 27th.</p>

<p>A blank certificate of stock in a railroad company, which had been signed by the president of said company, and by G. F. 33., its secretary, was left with the latter to be used in making necessary transfers of the stock of said company, all of which had previously to said time been issued. Gr. F. 13. fraudulently and criminally filled up said certificate as one to himself for 100 shares of said stock, and without the knowledge of said company, or any of its officers, other than the said 33. hypothecated the same to the plaintiff, in this city in which the office of the company was situated, no inquiry having been made by the plaintiff at the office of the company as to its genuineness. There was evidence tending to show negligence on the part of the officers of the railroad company in failing to examine the books and papers of the company left with the secretary. The note of 33. not being paid at maturity, it was by the plaintiff presented to defendant, with a request that said stock be transferred to it, as its own, in conformity with the power of attorney of 13. on the back thereof, and on refusal to do so, this suit was brought to recover damages.</p> <p>Held: , 1. That in so issuing said certificate illegally, 33. was not acting as the agent of the railroad company, but for himself.</p> <p>2. That if there "was negligence on the part of the railroad company in the matter complained of, to entitle the plaintiff to recover on that ground, it must be of such gross character, as to be the equivalent of bad faith or fraud.</p> <p>3. That the plaintiff in taking from 33. the said certificate, without further inquiry of the officers of said company, as to its legality and validity, was guilty of contributory negligence.</p> <p>4. That the loss of the bank, if any, was not the natural and proximate result of the negligence of the directors of the railroad company in failing to examine the books of the company, but that the crime of 33. was the natural and proximate cause thereof.</p>

<p>1. A power of attorney to confess a judgment must be strictly construed, and the authority therein conferred cannot be exercised beyond the limits expressed in the instrument.</p> <p>2. A power of attorney authorizing one to appear in court and confess a judgment, does not authorize tho entry of an appearance before the note becomes due, and an appearance prematurely entered by virtue of said warrant, confers on the court no jurisdiction of the person of the maker, and the j udgment so entered is invalid.</p> <p>3. A negotiable note was dated November 10,1884, payable to the order of Gr. one day after date; the day of date must be excluded, and no action can be maintained on the note until the lapse of the full third day of grace.</p> <p>4. One, not a party to such judgment, has a right to collaterally impeach it, whenever in any case it is attempted to be enforced against him, or to prejudice his rights.</p>

<p>Appeal from the Court of Common Pleas of Knox County.</p> <p>The petition sets forth in substance, that in the year 1840, the plaintiff was about two years of age, and resided with her mother, Nancy J. Elliott, a single woman, who had the sole-care and custody of her) that during said year, James E. Woodbridge and Lydia T. Woodbridge, his wife, requested the said Nancy J. Elliott, the mother of the plaintiff, to permit them to take the said plaintiff to their home ánd adopt her as-their own child; and as an inducement to grant said request, they informed said Nancy J. Elliott, that they had no children, and did not expect any ever to be born to them, and that they had abundant means to keep and provide. for the plaintiff; and as a further inducement to grant said request they promised and agreed with. the plaintiff’s said mother, that if she would give up plaintiff to them, and forever afterward renounce all claim and right to the care and custody of her said child, they would adopt and keep said plaintiff as their own child and heir, and that she should be cared for and provided for by them the same as if she. was their own daughter, and that the said James E. Woodbridge would make her his heir, and that she should succeed to the title and possession of his property at his death, with all the rights, claims and privileges thereto that she would were she his own child. And it was further agreed that the plaintiff’s said mother should keep secret from her said child her true parentage and never make herself known to the plaintiff, as it was the desire and wish of said Woodbridge and wife, that plaintiff should grow up supposing ' them to be her true parents, and that she should bestow upon them all the love and affection she would were she their own daughter.</p> <p>That relying upon said promises, the said plaintiff’s mother did consent- that said Woodbridge and wife should take the plaintiff and adopt her as their own child, and to have the care, custody and control of her during her minority that they would were she their own daughter. That in pursuance of said agreement, the said Woodbridge and wife did take the plaintiff to their home in Mt. Vernon, Ohio, and immediately thereafter changed the plaintiff’s name to that of Woodbridge, and wrote in the family record the name and date of her birth as follows : “ Mary J. Woodbridge, born February 2nd, A. D. 1838.” And from that time until the death of said Woodbridge they called the plaintiff their daughter, and taught her to call them father and mother, and they always gave the plaintiff to understand and caused her to believe that she was their own child, and they gave the plaintiff’s husband, E. G. Swan, to understand and caused him to believe that she was their own daughter, and thes said Wood-bridge gave his consent to plaintiff’s husband, as her father, to marry her, and on the 17th day of May, 1870, said Wood-bridge performed the ceremony of giving plaintiff’s hand away in marriage to the said Swan; that said Swan, the plaintiff’s husband, did not learn that his said wife was not the daughter of said Woodbridge and wife until after the death of the said James E. Woodbridge. That after her marriage the said plaintiff and her husband frequently visited at the house of Woodbridge and wife — visiting them as her father and mother, and they received her as their daughter.</p> <p>Plaintiff further avers that the said mother on several occasions .visited .at the home of said Woodbridge and wife, while she was there, to see her; but that pursuant to said agreement she did not disclose that she was plaintiff’s mother.</p> <p>That no children were ever born to said Woodbridge and wife. That on the 28th day of August, 1874, the said James E. Woodbridge departed this life intestate, seized of real and personal property amounting in value to $40,000, without providing by will or otherwise for the carrying out and performance of his said agreement with the plaintiff’s said mother. That immediately after his- death the said Lydia T. Wood-bridge informed the plaintiff for the first time that she was not the daughter of said Woodbridge and wife; that up to that time plaintiff had no knowledge of her true parentage, but supposed and believed that she was the daughter of the said James E. Woodbridge and wife. That the said Lydia T. Woodbridge well knowing the agreement between her husband and plaintiff’s mother, and for the purpose of deceiving the plaintiff and preventing her from asserting her right and claim against said estate, under and by virtue of said agreement and the performance on their part by the plaintiff and her said mother, falsely and fraudulently represented to the plaintiff that she was taken while an infant by them to raise only, and that she had no rights to, or claim against said estate ; and that the said Lydia T. Woodbridge would not then, or at any time thereafter, disclose to the plaintiff who her mother was, and concealed from her her true parentage. That Lydia T. Woodbridge then took letters of administration upon said estate and converted said estate to her own use. That on the 25th day of March, 1875, said Lydia T. Woodbridge died, leaving a last will and testament in which the said defendant, Shahan, was made executor. That said Shahan was duly appointed and qualified as such executor, and took possession of the whole of the real and personal estate of said James E. Woodbridge, amounting then in value to the sum of $39,000, claiming the same to be the property of the said Lydia T. Woodbridge, and has since been in the control thereof. Plaintiff avers that she did not learn of said agreement, nor her true origin and parentage until April 15th, 1882.</p> <p>Plaintiff therefore prays that she be adjudged and decreed the owner and entitled to the possession of said eastate, real and personal, and that the defendant, Shahan, be required to account and turn over to her all moneys, credits and property of every kind coming from or belonging to the estate of James E. Woodbridge, and for other proper relief.</p> <p>To this petition Reasin W. Shahan, executor, filed an answer, the first defense of which is in the nature of a general denial of the averments of the petition.</p> <p>Second — That the alleged contract was for the transfer of real estate, was not in writing and is within the statute of frauds.</p> <p>Third — That the alleged contract was not intended to be, nor was it capable of being performed within one year; was not in writing and is within the statute.</p> <p>Fourth — That the cause of action did not accrue within six years next preeeeding the commencement of this action.</p> <p>Fifth — That James E. Woodbridge departed this life on the 28th of August, 1874. That on the 1st day of September following, his wife, Lydia T. Woodbridge, was appointed and qualified as administratrix of his estate. On the 22th of March, 1875, said Lydia T. died. On the 2nd day of April following, Charles Baintree was appointed administrator de bonis non; that he has fully settled said estate and that more than five years have elapsed from the issuing of letters of administration upon said estate before the commencement of this suit. That the same is barred by the statute of limitation.</p> <p>Sixth — That the property and estate of which said James E. Woodbridge died seized, did not come to him by descent, devise or deed of gift, and that by his death it descended to his wife as sole heir; that she left a last will and testament, by which the defendant Shahan was made executor; that he was appointed and qualified as such, and that more than five years have elapsed since his said appointment and publication of the notice thereof, before the commencement of this suit, and that the same is barred by the statute of limitations.</p> <p>Seventh — That Lydia T. Woodbridge bequeathed to the said plaintiff the use of six thousand dollars during her life, and that she accepted the same with full knowledge of all her rights, and has not paid or offered to pay back any portion of the sums received by her under said bequest.</p> <p>Eighth — Avers the death and administration of the estate of James E. Woodbridge as set forth in fifth defense, and the death, last will and testament of Lydia T. Woodb'ride, and the appointment of defendant, Shahan as executor: that the said plaintiff did not present the claim on which this suit is founded to the said Lydia T. Woodbridge as administratrix, or to the said Shahan as executor, for allowance; nor did either of them disallow the same.</p> <p>To the second, third, fourth, fifth, sixth, and eighth defenses, the plaintiff demurred, and she filed her reply to the seventh defense, to which defendant demurred.</p>

<p>The petition in this case in the common pleas court was filed by parties residing on Gholson'A venue in the Village of Avondale, who asked for an order restraining the village! and its contractor from building a sewer on that avenue, on the ground : 1st, that the main sewer did not have an outlet in a proper place; 2nd,®that the plaintiffs were already provided with private drainage and therefore could not be assessed; 3d, that the system was defective and would create, a nuisance; 4th, that the clerk of the village had not certified that there was money in the village treasury sufficient to meet the expense of building this sewer; 5th, that the assessment would be unequally distributed among the ^various property holders on Gholson and other avenues.</p> <p>Upon the filing of the petition Judge Robertson granted a temporary restraining order, which the defendants moved at once to have dissolved. ' Upon this motion a full hearing of the case, was had, which resulted in an order by Judge Robertson dissolving the temporary restraining order, and from which interlocutory order the plaintiffs appealed, but failed to obtain two judges within the 10 days for which Judge Robertson had suspended his order. After the expiration of.that time, Judge Cox was applied to for an order suspending the order of dissolution below, but that judge was unwilling to decide whether or not two judges were required by law to make such an order. At his request the defendants consented to postpone the continuation of the|work, until Judge Smith could be obtained and the case could be heard before two judges. Upon the hearing of the case before Judges Cox and Smith it was held, that on appeal from such an interlocutory order dissolving an injunction,"made by the court of common pleas or a judge thereof, such interlocutory order, under the provisions of section 5226, as it now stands, is not suspended by such appeal unless it is so ordered by .the circuit court, or two judges thereof in vacation.</p> <p>The case was then fully argued by counsel on both sides to the two judges. On consideration, Judge Cox, while expressing no opinion as to the merits of the case, inclined to the opinion, that the injunction should be continued until the final hearing on appeal. Judge ^Smith held that a proper case was not made for the injunótion, and the following is his opinion:</p>

<p>Where a tenant for one or more years holds over after the expiration of his term, the landlord has the option to treat him as a trespasser or a tenant for another year upon the terms of the prior lease.</p> <p>Such holding over however is not conclusive, but only prima facie, and may be rebutted. •</p> <p>If the tenant in such case under his contract notifies his landlord that he-will hold over on condition that certain improvements and repairs be-made to the premises, which the landlord refuses to make, and is then notified by the tenant that he will continue in the possession of the premises only until such time as he can secure other premises-suitable for his business, ^.nd pays one month’s rent in advance, and' no objection is made at the time on the part of the landlord, such ' tenant is liable only to pay rent for the time he occupies the premises.</p>

<p>Error to the Court of Common Pleas of Hamilton County,</p>

<p>By virtue of the decree of ouster by the Supreme Court of the right of the Ohio & Pennsylvania Canal Company, to, and its privilege in maintaining the Ohio & Pennsylvania Canal, and its right to be a corporation of the State, (23 O. S., 121) there was a forfeiture of the easement of the canal company, and the land reverted to the devisees of the original owner of the. title freed from the incumbrance and burden of the easement.</p>

This is a petition in error to reverse the judgment of the court of common pleas. Wiseman, a physician, brought suit against the Columbia Street Railroad Compa'ny, to recover five hundred dollars for medical and surgical services rendered to one Charles Grossclaus, injured while a passenger of •the defendant, being run over by the defendant’s car.

<p>Trustees of township may, in a proper case, afford public relief to persons in a condition requiring the same, without waiting for the notice provided for in Sec. 1494.</p>

This is an action originally brought to enjoin tbe Commissioners of Lorain County, from constructing a proposed ditch across the lands of plaintiff, or assessing his lands with any portion of the cost of the same, upon the ground that the proceedings of said commissioners, in locating said proposed ditch, are illegal and void, and that said ditch will, if constructed, be of no benefit to the lands of the plaintiff, for the reason that said lands already have abundant natural…

The case is stated in the opinion. The note sued on was an offer by Elder to do a certain thing, was a unilateral promise; and did not become, and has not become a contract, because the company has not accepted it. Pollock on Contracts, 160, note b ; 180, note f; 1 Addison on Contracts, 82, Sec. 17; Chitty on Contracts, 9,15; 1 Parsons on Contracts, 374-5. Performance, if it had been made in compliance with the térms of the offer, would have been an acceptance.

The plaintiffs brought suit upon four promissory notes, each calling for the sum of $108.00 executed by the defendant, dated January 20th, 1881 and payable in three, six, nine, and twelve months respectively, with interest, and to foreclose a chattel mortgage given to secure the payment of said notes upon a steam saw mill and attachments.

<p>When a question of law has been directly decided by one, of the circuit courts of Ohio, it should be followed by the other circuits, unless it clearly appears to the court that the decision is wrong.</p> <p>State ex rel. Dent v. Balloway, 1 Circuit Court Reports, 157, followed.</p>

<p>1. One entering tlie service of a railroad company in the capacity of conductor of a train, has a right to exact from the company such care in the inspection of the cars composing his train as is usual among those engaged in the operation of railroads, and no more.</p> <p>2. In an action against a railroad company for negligently causing the death of an employe, it is incumbent upon the plaintiff to show negligence on the part of the company presumedly causing the death.</p>

<p>F. being the owner of real estate on which his wife held, a judgment lien (they having separated), to-gether with his wife deeded said real estate to McC. At the time McC. leased back the real estate to F. with privilege of purchase at the end of the lease. Afterwards F. executed a mortgage on the property to trustees to secure former judgment to wife. McC. and F. subsequently deeded the property to L.</p> <p>Held, that as between L. and the wife of F., L. took the property free from equities between F. and wife ; that F’s possession was not notice to L. of title inconsistent with his deed to McC.; that the mortgage to wife by F. could only be notice of the title F. held, which was a leasehold.</p>

The circuit court, after stating the issue as made by the petition and answer and demurrer — a reply having been understood to have been filed to the answer, — and reading the contract between the plaintiffs and the S., J. & P. R. R. Co., which was the subject matter of the controversy, (which contract provided that the S., J. & P. R. R. Co. should forever erect and maintain at its own expense the crossing— target watchman’s house, required under section 3333, and pay all…

<p>C. devised land to his wife for life, and further provided, “ if my wife should die before all my children should become of lawful age, then and in that case all the children that have not left home before they were of lawful age, and have submitted themselves to the control and direction of their mother, shall be entitled to an equal portion of said estate, when the youngest child becomes of lawful age, held:</p> <p>1. The children took a remainder in fee contingent upon the widow dying before the youngest child became of age.</p> <p>2. The widow having survived the coming of age of the youngest child, the children of testator took a fee in the land as heirs and not as devisees.</p> <p>J. 0., a son of 0,, during the life of the widow purchased the interest of his sister, L. O., in said land, and afterward sold and conveyed to defendant all his title, interest and estate, legal and equitable, to said land, as purchased from, and quit-claimed to him by, L. O., describing the deed, together with all and singular the hereditaments and appurtenances as conveyed in the above desci-ibed conveyance, held: This deed did not convey the interest of J. O. in said land as heir.</p>

<p>Error to the Court of Common Pleas of Noble County.</p>

The defendant in error filed a petition in the court of common pleas, alleging that on or about the 31st day of December, 1879, the city of Columbus unlawfully and wrongfully received into its possession $200, the money of the defendant; that on or about the same date, without his consent, it converted the same to its own use; that on or about the 2d day of January, 1880, he made demand therefor, and that the city then refused, and has ever since failed, to deliver the same…

<p>1. A railroad company in constructing its track across a public highway, cannot by employing contractors to do the work shield itself from responsibility for injury done to a traveler ^by the negligence of its contractor. ’ .</p> <p>2. The statute giving the railroad company the right to construct its track across a public road, imposes a personalfduty on the railroad company, of care and diligence to the public; and the contractors whom it may employ to do the work, are simply its agents and servants, and it is responsible for their negligence.</p>

<p>1. Where the commissioners of Hamilton county have appointed persons to act as janitors and night-watchman for the office of the county recorder, against whose capacity or fitness no objection is made by the recorder, but he refuses to allow them to discharge such duties, and appoints other persons who do so act, such persons are not entitled to be paid for such services from the county treasury.</p> <p>2. A person appointed by such recorder as “paper custodian,” to take charge of and keep in order the records of said office, after they are made up, is not entitled to be paid for such services from said' treasury, but must be paid, if at all, from the allowance made to the recorder by the court of common pleas, to pay the assistants of such officer, under the provisions of See. 1343, ftev. Stats.</p>

<p>1. Since the passage of the act of March 20, 1883, abolishing private seals, 3 Kev. Stats., page 2, it is not necessary to the validity of a bill of exceptions in a criminal case, that it be sealed by the trial -judge.</p> <p>2. A special charge, applicable to the case on trial, and stating the law correctly', can not properly be refused by the court, because asked for by the defendants after the argument and the general charge to the jury.</p> <p>3. Where a defendant is indicted for shooting another, with intent to kill him, or to wound him, and the evidence submitted tends to show an unprovoked, felonious and dangerous assault by the prosecuting witness upon the deiendant, immediately prior to the shooting, and that it was necessary" for the defendant to fire-the shot to save his life, or prevent great bodily harm to himself, it is error for the court to charge the jury, “Nor does the right of self-defense arise, if the person can reasonably rely for protection upon legal authority, or can reasonably get out of the way of danger,” and to refuse to charge the jury, when requested to do so by defendant’s counsel, that, . “ Where a person in the lawful pursuit of his business and without blame, is violently assaulted by one who manifestly or maliciously intends or endeavors to kill him, the person so assaulted, without retreating, though in his power to do so, without increasing his danger, may kill his assailant, if necessary to save his own life, or prevent enormous bodily harm,” if there be no equivalent language in the charge given to the jury.</p>

<p>.Street improvement under an unconstitutional act — Insufficiency of petition to authorize ordinance therefor — Wbo by participation in causing sucb improvement to be made, or by silence while same is being made, are estopped to assert invalidity of proceedings — Application of doctrine of same cases in 39 O. S., 281.</p>

<p>Error to the Court of Common Pleas.</p>

<p>■Where an action is brought by a tax-payer, not living on or owning any property abutting on the line of a street railroad, to enjoin its use, on the ground that the grant is illegal and void, it is not error in the court to dismiss the case, the petition not averring and the evidence not showing that expense will be put on him by taxation or otherwise, the petition having been filed after the road was completed and in operation.</p>

<p>1. Where personal property is described in a policy ot insurance as being situate in a particular building, and such place of storage is afterward changed without the consent of the insurer, and loss accrues, no recovery can be had.</p> <p>2. Where the assured notified the company that she would change the place of storage, and was informed that the assent of the company to such change, when made, must be entered upon the policy of insur-. anee, and nothing further is done by the assured, either notifying the company of the change made, or procuring its assent, such notice is not sufficient to bind the company.</p>

<p>Error to the Court of Common Pleas of Guernsey County.</p>

<p>Estate by the Ourtesy — Effect of Repeal of Sec. 3108, JR. S. O., by Law of April 14, 1884.</p>

This was an action in replevin, brought in the court of common pleas of Pickaway county against the said defendants, to recover the possession of a large amount of clothing, sold by the plaintiffs to Robert B. Hain and Daniel Myers, Jr., a firm doing business under the name and style of Hain & Myers.

<p>AppeaU from the Court of Common Pleas of Franklin County.</p>

<p>1. In an action brought by a city organized under the laws of Ohio, it is not necessary that its petition should be signed by the city solicitor as such officer.</p> <p>2. It is not necessary that an action on behalf of such city should be brought by the city solicitor.</p> <p>3. A city suing for a claim formerly due a village, from which it has been advanced to such city, will not be required, on motion, to set out in its petition the proceedings by which said village was advanced to a city.</p> <p>4. A mayor of a city in an action against him for the amount of fines, licenses and forfeitures collected by him, can not offset against such claim the amount of his uncollected costs on the mayor’s docket.</p> <p>5. If a mayor does present to the city council an account charging such uncollected costs to the city, and crediting it with the amount of fines, licenses and forfeitures by him collected and not paid over, and obtains an order from the city council for the payment to him of the excess of such costs over the amount so collected by him, such action of the city council will not be a bar to the recovery by said city of the full amount of said fines, licenses and forfeitures from said mayor.</p>

<p>Suit was originally brought in the common pleas by Evans, trustee of Dick E. Arrowsmith, then a minor, residing in California, against the defendants, on guardian’s bond. Within two years after the minor became of age, and more than four years after the final judgment in the common pleas, he commenced this proceeding in error in his own right.</p> <p>Held: That in all proceedings and suits of guardians and other trustees of minors, no.proceedings in error in the minor’s own name will lie after he becomes of age, unless brought within the time limited (two years) for other proceedings in error.</p>

Pope was sued before a magistrate at Wyoming, some ten miles from Cincinnati, on an account, and demanded a trial by jury. The case was set for trial at 6J o’clock, P. M. Pope was engaged in business in Cincinnati, his only means of reaching the place of trial being by railroad.

<p>Motion for a re-reference, on the ground that the report of the master commissioner is vacated by the appeal.</p>

<p>The act passed by the General Assembly of the state of Ohio, April 12, 1876 (Vol. 73 O. L., p. 321), entitled “an act to prevent gambling and the sale of intoxicating liquors at a place therein named,” is in violation of article 2, section 26 of the constitution of the state,^and is void.</p>

The plaintiff, in his petition, alleged that at the time of the accident, hereinafter mentioned, the said city was causing a certain street therein to be opened and constructed; that the said Edwin D. Throne was employed by the city as a common laborer for hire, at the said work; that in order to construct the said street, it was necessary to cut down and remove a certain hill; that the said Throne was assisting in cutting down the hill under the direction of the street…

. This was a petition filed by Aristeus Hulse in the court of common pleas of said county, for the partition of lands.

<p>1. Sec. 1298, of the Revised Statutes, does not entitle a prosecuting attorney to receive, from the county treasury, a commission of ten per cent, on the-amount of costs received from the state, and paid into such treasury under the provisions of Secs. 7336 and 7337 of the Revised Statutes.</p>

The plaintiffs are a partnership of merchants, doing business at Circleville, Ohio. One of the partners, S. Jacobson, resides in the city of New York. On or about the 13th .day of November, 1882, he purchased for his firm a first-class seal skin coat of Lyon Brothers, in the city of New York, and directed them to forward it to W. & S. Jacobson & Co., at Circleville, Ohio.

<p>The facts are stated in the opinion.</p> <p>Appeal from the Court of Common Pleas of Sandusky County.</p>

Amanda Weaver filed her petition in the court of common pleas against the plaintiffs in error, alleging that they were the makers of a promissory note for ninety dollars, delivered to her, and by its terms payable to her or her order; that prior to its maturity the note was lost; that it had never been indorsed by her, or delivered by her to any other person, and that at the time of filing the petition the note was past due.

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>A married woman can be compelled to execute a contract in writing, made jointly with her husband, to convey her separate real estate, though the contract is not in the form of a deed, and there is no acknowledgment by her separate and apart from her husband.</p>

<p>An appeal does not lie from an interlocutory order modifying an injunction.</p>

<p>Appeal from the Court of Common Pleas.</p>

<p>The facts are stated in the opinion.</p> <p>Appeal from the Court of Common Pleas.</p>

<p>1. Although it is clearly the law, that on a contract of sale of articles at a specified price, and there is no other stipulation as to payment, it is presumed to be a cash sale, and the delivery of the goods, and payment of the price are to be simultaneous and concurrent acts; and the delivery of the goods on such sale with the expectation of an immediate payment, is not an absolute delivery and no title vests in the purchaser till the price is paid, yet the seller may either expressly or impliedly waive this right to immediate payment, in which • case the title will pass to the purchaser.</p> <p>2. Where on such an agreement, the property contracted for, was delivered to the purchaser in several lots, and no demand for such payment was then made, and the seller had knowledge that the purchaser was accustomed to ship like property purchased by him and sell the same to obtain money to pay the purchase price thereof, and made no stipulation that it was not to be done in that case, or that the title to the property was to remain in him until payment therefor, but afterwards at different times received part payment therefor, and asserted no title to the property itself for several weeks after the delivery, this amounts to a waiver, and he loses his right to reclaim the property from a vendee or a mortgagee of the purchaser, taking such title in good faith, four weeks after the delivery thereof, and when such vendee or mortgagee is in the actual possession of such property.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>1. An indictment, which with other proper averments, charges, that three defendants unlawfully made an assault upon another person, and did then and there unlawfully have carnal copulation, against nature, with such person, is a good indictment under the act of May 4, 1885, O. Xi., vol. 82, page 241; and a motion to quash the same, on the ground that is had for uncertainty, repugnancy and duplicity, and a demurrer thereto for the reason “that the facts stated therein do not constitute an offense punishable by the laws of this state,” were properly overruled.</p> <p>2. While it is the clear rule of the law, that in prosecutions for the crime - of rape, the declarations of the injured female, made shortly after the alleged criminal act, as to the commission thereof, are competent evidence for certain purposes, this being an exception (founded on necessity) to the general rule as to hearsay evidence, there is strong ground for holding that it must not be extended to prosecutions under the sodomy statute — the reasons which exist for the rule in the one case, not existing in the other, and there appearing to be no authority which holds such evidence to be competent.</p> <p>3. But even in prosecutions for rape, such statements of the prosecuting witness are only competent, as tending to corroborate her evidence given upon the witness stand. And where in a prosecution for sodomy, the bill of exceptions taken in the case, shows, that the trial court, against the objection of the defendants, allowed evidence to be given of the statements and declarations made by the person alleged to have been assaulted, to o.ther persons, shortly after the time the act * was said to have been committed, as to the manner, and by whom it was done, “ for the purpose of further maintaining the issues on the part of the state of Ohio, and to prove the allegations in said indictment contained, ” and the bill of exceptions does not show that the person injured was examined as a witness in the case, it was error to receive such evidence at all, or if such person had been examined as a witness, to receive it for such a purpose.</p> <p>Sec. 7297, Revised Statutes, as a rule of evidence, is applicable as well to prosecutions for sodomy as to those for rape.</p>

On the 18th day of June, 1881, the plaintiff brought suit in the court of common pleas to contest the validity of the last will and testament of James Riddle, deceased. The cause was continued from term to term until the October term, 1885, when it was tried to a jury, and on the 23d day of December a verdict was rendered affirming the validity of the will.

<p>M. F. A. brought suit in the Hamilton county common pleas against I. W. B. & F. R., as auditor and treasurer of said county. Judgment was rendered for defendants, and the cause appealed to the circuit court where judgment was also rendered. The case was then taken to the supreme court on error. Subsequently, defendants filed a motion in the common pleas to set aside the judgment on the ground of fraud, which motion was granted, and judgment set aside:</p> <p>Held: 1. That the common pleas court had no power to set aside said judgment; that by the appeal the whole case went to the circuit court, and the judgment in that court superseded the judgment below. 2. That the order was a final order to which error will lie in the circuit court.</p> <p>Upon the filing of the petition in the common pleas, R. B. S., county solicitor, waived issuing and service of process and entered the appearance of the defendants:</p> <p>Held: That under Sec. 2862, R. S., and by the previous conduct of the parties, that R. B. S. was authorized to enter the appearance for defendants, and that the parties were properly before the court.</p>

<p>1. Section 4919, Rev. Stats., as amended, 82 O. L., 171, is unconstitutional so far as it provides that the taxes “ levied and collected ” thereunder “ in the city of Lima, Allen county, Ohio, together with any balance which may remain unexpended, levied and collected in said city under said section, shall be expended within the corporate limits of said city, under the direction of the council of said city of Lima.”</p> <p>2. Where a tax for road purposes has been illegally assessed and collected, the county auditor cannot be required to draw a warrant upon the treasurer in favor of a municipal corporation for the amount of such tax paid into the treasury by the taxpayers of such municipal corporation.</p>

<p>A person has no right to be on the track of a railroad where there is no public crossing, and a railroad is not liable for injury by its train to a person on its track where there is no public crossing, unless the injury be the result of wanton, willful negligence on the part of its employes in charge of the train.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>A sewer was constructed in Annie alley, a public street in the city of Cincinnati, by private parties, and given to the city. L. F. B. owned property abutting on the street. She did not contribute to the building of the sewer. The Board of Public Works of said city refused to permit her to tap said sewer, unless she first paid eighty dollars. Ten dollars was the usual charge for a permit.</p> <p>Held: 1. That the sewer was a public sewer, and that L. F. B. had the right to tap it on the payment of the usual fee for a permit.</p> <p>2. That under section 2402, Revised Statutes, the B. P. W. had no right to charge more'than usual fee provided by ordinance of council.</p> <p>3. That mandamus is the proper remedy.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Error to the Court of Common Pleas of Guernsey County.</p>

<p>Appeal from the Court of Common Pleas of Clarke County.</p>

<p>Ante-nuptial Contract — What insufficient to bar Dower.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

The petition sets forth that on the 6th of January, 1886, Stewart Gordon was the owner in fee of the legal title of the one undivided fourth part of certain premises, situate in said county, and described by metes and bounds, containing 400 acres; that at the same time John Burgess, Wm.

<p>On application for a writ of mandamus.</p>

<p>When the owner of property abutting on’a street has improved his property with reference to an existing grade, and the grade is afterwards changed, whereby he is damaged, the damages assessed in his favor must be paid before the work of changing the grade is commenced.</p>

<p>Appeal from the Court of Common Pleas of Franklin County.</p>

<p>1. The powers possessed by township trustees in the location and establishment of township ditches are very broad, but being conferred by statute, cannot exceed the limitations of the statutes.</p> <p>2. The only power which township trustees possess to grant permission ■ co box or tile a township ditch, is eon ferrsd by Sec. 4524, Rev. Stats., and its provisions must be strictly followed.</p> <p>3. Where a plain and adequate remedy at law was open to a party, and he knowingly chose not to pursue it, he will not be permitted to appeal successfully to a court of equity for relief.</p>

<p>1. The failure of the sheriff to file in the clerk’s office his return on an alias order of sale within 60 days from the date of issuing, is not such an irregularity or neglect in the proceedings as will be regarded on error after a confirmation of a sale thereunder.</p> <p>2. Where an advertisement of a judicial sale is published in a semiweekly newspaper, it i§ not necessary that each insertion should be on the same day of the week.</p> <p>3. Where an advertisement of a judicial sale is published in a daily newspaper, and each insertion is not on the same day of the week, this is not a mere irregularity in the proceedings, but is such a defect as that a motion to set aside the sale made thereunder, on that ground, made before confirmation, should be sustained.</p>

<p>1. In a suit by an administrafor to recover upon a bond given in pursuance of the provisions of Sec. 6098, Revised Statutes, it is necessary, to enable him to recover, for him to show that the requirements of said section have been strictly complied with.</p> <p>2. Where a bond has been given in accordance with the provisions of Sec. 6098, Revised Statutes, the party giving the bond must be made a party to the suit upon the rejected claim, and permitted to defend if be desires, or he will not be 'liable for the costs and expenses of such suit.</p>

<p>1. In an action by the assignee of a promissory note against the executor of the maker, the assignor is by section 5241 (Rev. Stats.) prohibited from testifying concerning any facts which occurred before the death of the testator not within the other exceptions specified in section 5242 (Rev. Stats.) Such disqualification of the assignor as a witness is not made to depend upon his being called by the assignee, but exists as well when called by the executor.</p> <p>2. In such action written or verbal declarations of a prior holder by endorsement, made before he became such, are not competent evidence to affect the title of the plaintiff, or impeach the note in his hands; and where on the trial ¿f such action, the statement of the plaintiff for the purposes of the trial, and the charge of the court to the jury wholly eliminate from the case all claim of the plaintiff to stand upon the rights of such former holder as an innocent purchaser, the rejection of such declarations is not prejudicial error, if they were otherwise competent to prove that such prior holder was not a bona fide endorsee. •</p> <p>3. The declarations of an alleged conspirator cannot be given in evidence t’o charge liis fellow until after sufficient proof of the fact of conspiracy, and then only such as were made during the pendency of the enterprise.</p> <p>4. The summary statement of the clerk entered upon the Appearance Docket, of the prayer of a petition filed by the maker of the note against the payee, of which the plaintiff had no notice, is not admissible in evidence against the plaintiff to prove want of consideration in the note, or fraudulent transfer of the same, nor for the purpose of shifting upon the plaintiff the burden of proving consideration.</p>