Volume 1 — Ohio Circuit Decisions

<p>ASSIGNMENT FOR BENEFIT OF CREDITORS.</p> <p>Holder oe Check Made Before Assignment for Creditors Holds Deposit.</p> <p>S., a depositor, drew his check in favor of H. upon a bank in which he had funds deposited sufficient to pay the same; afterward, and before the presentation or acceptance of the check, S. made an assignment for the benefit of his creditors. Said check was presented and payment refused, and his assignee drew the entire funds deposited, and holds the same as assets. In a proceeding by the holder against the assignee to compel the payment of the check in full from such funds in the hands of the assignee.</p> <p>Held, that the drawing and delivery of the check by S. to H. operated as an equitable assignment, pro tanto, of the fund on deposit with the bank, and that he was entitled to the payment of the check in full.</p>

<p>PRACTICE — EVIDENCE.</p> <p>1. Court has no Authority to Direct Verdict eor Dependant, ir Prima Facie Case.</p> <p>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>2. Papers in Another Case Must be Proven — Aeso Tax Deed.</p> <p>Papers in"another case do not prove themselves, but must be shown to be originals The execution of a tax deed must also be proven.</p>

<p>ORDINANCES —CONDEMNATION OF LAND.</p> <p>Ordinance Authorizing Condemnation of Land is Valid, When.</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 ou three different days, the rule requiring this to be done having been properly suspended. Such ordinance is not in contravention of section 6, article 8, or of section 1, article 13 of the constitution.</p>

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

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

<p>EVIDENCE.</p> <p>1. Answer of Third Person to an Inquiry made at Debtor’s Suggestion.</p> <p>The answer to an inquiry made of one to whom a creditor was referred, by parties against whom he was asserting a claim they -were disputing, they agreeing to pay the claim if he said it was right, is admissible in evidence against the debtor.</p> <p>2. Self-serving Declarations Inadmissible in Rebuttal.</p> <p>Where the plaintiff offers in evidence telegrams from defendants, instructing him to buy, to show that he was in their employ, they cannot rebut the admission by evidence of like telegrams, sent by them to others not in their employ.'</p> <p>3. Incompetent Parts of Answer of a Witness not Reached by Objection to the Question.</p> <p>Where an objection to a competent question is overruled, if the answer is objectionable, the complaining party should move to exclude the incompetent parts, as the objection to the question does not reach them.</p>

<p>NEGLIGENCE.</p> <p>1. City not Liable for Damages, if Proceedings Authorized by Special Act.</p> <p>Where a board of improvements of a city construct a street under acts of the legislature, such acts are evidence, as the city is exhonorated by them, from liabilities for resulting damages to abutting property.</p> <p>2. May Become Liable by Acceptance of Improvement.</p> <p>But the city may become liable by taking possession of the improvement, and using it after completion.</p>

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

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

<p>MECHANIC’S LIEN — PRACTICE.</p> <p>1. Requisites on Appeae Bond.</p> <p>If a sub-contractor sues the owner before a justice under sec. 3199, Rev. Stat., but the contractor claims the amount is not due, and the owner notifies the contractor of the suit, and judgment is rendered for the plaintiff, an appeal at the-owner’s instance, the bond being signed not by her, but by the contractor, is a good appeal.</p> <p>2. INTERPEEADING ADVERSE CEAIMANTS.</p> <p>A person sued before a justice may interplead adverse claimants, either in the justice court, or on appeal to the common pleas.</p> <p>3. Appeeeant Need not Sign Bond.</p> <p>Where the evidence shows that the case was appealed at the instance of defendant, it is sufficient, although only the sureties sign the bond.</p>

<p>PERSONAL JUDGMENT — EXECUTION.</p> <p>Action must be Revived by Personal Representatives on Death oe Either Party.</p> <p>When a personal judgment, or a decree for the sale of specific real estate, is taken, and the plaintiff dies before the sheriff or other officer levies the writ of execution, or seizes and appraises the specific real estate under the order of sale, the action must be revived in the name'of the personal representative of such plaintiff, before the writ-or order of sale can be executed.</p>

<p>CONTRIBUTORY NEGLIGENCE.</p> <p>1. Duty of Persons Crossing Railroad Track.</p> <p>Generally, a person who is about to cross a railroad track, must use his senses to ascertain whether a train is approaching the crossing, and if he fails to do so, and suffers injury in crossing the track, he is guilt}' of contributory negligence. That other engines were making noise and smoke imposes greater care upon him.</p> <p>2. Use of Senses to Ascertain the Approaching of Trains.</p> <p>Abstractly, under some circumstances a person is excused from using his senses to ascertain whether a train is approaching, but to render this rule applicable to any particular case, the facts and circumstances which excuse the plaintiff must be put in evidence.</p> <p>3. Plaintiff’s Contributory Negligence Bars His Recovery.</p> <p>Where there is contributory negligence, the plaintiff cannot recovér, although his negligence is slighter in degree than that of the defendant’s.</p>

<p>MASTER AND SERVANT.</p> <p>1. Regulations oe R. R. Co. Governing Safety of Employes.</p> <p>The duty of a railroad company to make rules for the protection of its employes is satisfied, if a reasonable provision is made for the particular case instead of a rule or regulation.</p> <p>2. Duty does not Extend to Strangers or Dicensees.</p> <p>While it is made the duty of a railroad company to provide for the safety of its employees, there is no such absolute duty as to strangers or even licensees.</p> <p>3. Plaintiff must Remove Presumption of Contributory Negligence.</p> <p>If the plaintiff, in making out a case, puts in evidence which raises a presumption that he was negligent, the burden is on him to remove it by further proof.</p>

<p>PARTITION — PRACTICE.</p> <p>1. Right oe Remainderman to Partition — Division Among Reversioners.</p> <p>One of several remaindermen, if he is also the owner of the life estate, may maintain partition, but no division among the other reversioners ought to be made unless by their consent, nor ought there be a sale subject to the life estate if division is possible; but if the life tenant agrees to a sale free of the life estate, it may be had if not prejudicial to the other parties.</p> <p>2. No Partition Unless Right to Present Possession.</p> <p>Remaindermen, or reversioners owning no interest in the life estate, cannot maintain partition until the estate expires.</p>

<p>Appeal from Court of Common Pleas of Butler county.</p>

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

<p>SETTLEMENT OF ESTATES.</p> <p>Insolvency — New Presentation oe Claim.</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 afterward 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>PARTITION.</p> <p>Report Need be Signed by Oney A Majority of Commissioners.</p> <p>The commissioners having signed and transmitted their report to the court, their functions are ended, and the erasure of his name by one, without consent of either of the others, is inoperative. At all events the action of the majority is sufficient on which to confirm the partition.</p>

<p>APPROPRIATION OF PROPERTY FOR STREETS.</p> <p>1. Mortgagee is Entitled to Notice of the Proceeding.</p> <p>In proceedings by a municipal corporation to appropriate private property for a street under section 2237, Rev. Stat., 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. Mortgagee without Notice may Recover of Municipality.</p> <p>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 conversion.</p>

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

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

<p>CONTRACT — STATUTE OF FRAUDS.</p> <p>Verbal Contract eor Possession oe Lands.</p> <p>Taking possession of one of several distinct parcels of land claimed under one parol contract is equivalent to taking possession of the whole, so as to take the contract of the whole out of the statute of frauds.</p> <p>Error to the Court of Common Pleas of Clermont county.</p>

<p>MECHANIC’S LIENS — PLEADING.</p> <p>1. Mechanic’s Ríen on Rairroad Bridges.</p> <p>Under a completed contract to erect six railroad bridges, three of which have been paid for, a mechanic’s lien for the balance due, attaches to three remaining bridges only. Each bridge is to be charged with a lien for its own structure.</p> <p>2. New Matter in Repry. v</p> <p>In an action to foreclose a railroad mortgage, where a cross petition asserts a lien on certain bridges for their construction, a reply thereto, showing that the trustee, in ignorance of the claim for a hen, had bought in a mortgage on the road, which was in existence before the contract for the construction of the bridges was made, and was, therefore, entitled to the benefit of the prior mortgage, is a departure. The facts should have appeared in the petition, and will be stricken out on motion.</p>

<p>RAILROAD FENCES.</p> <p>Erection oe Fences Aeong Raieroad Right of Way.</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 recoveiy 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>Error to the Circuit Court of Butler county.</p>

Plaintiff, on the 11th day of 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>ATTACHMENT — PRACTICE—FRAUD.</p> <p>1. Attachment Not Allowed for Constructive Fraud.</p> <p>Attachment on the ground of fraudulent conveyance of property lies only in case of actual fraud. The mere fact that the debtor converted his business house into a corporation, and transferred his assets to it, will not sustain such attachment, without evidence of fraudulent intent.</p> <p>2. Evidence as to Intention in Conveying Property.</p> <p>An attachment debtor may testify as to his intention in conveying his property. An objection to a question is too late after the answer is not what is expected.</p> <p>3. Right to Open and Close the Argument.</p> <p>It is not error, in a court trial, to allow the side not having the burden of proof, to open and close the argument. The court may hear that side first, as to which the judge has a doubt.</p>

<p>FIRE INSURANCE.</p> <p>Proviso Against Change oe Ownership.</p> <p>Where a policy holder sells a half interest in a stock of goods, and then repurchases it, before loss by fire, the change of ownership is the same as a selling and replenishing, and does not forfeit the policy, although it may not have been in force during the joint ownership.</p>

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

<p>CONSTABLE — SUMMONING JURY.</p> <p>1. Refusal to Serve Venire for Jury.</p> <p>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. Right of Constable to Demand Fees in Advance.</p> <p>A constable has no right to demand in advance of service his fees for summoning a jury under section 6551, Revised Statutes.</p> <p>3. Authority of Magistrate to Try a Case Without a Jury.</p> <p>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>JUSTICES OF THE PEACE — PRACTICE.</p> <p>1. Demurrer to Bill of Particulars.</p> <p>It is not proper practice to file a demurrer to a bill of particulars before a justice of the peace.</p> <p>2. Overruling Motion to Dismiss.</p> <p>It is not error for a justice of the peace to overrule a motion to dismiss, the hearing of ‘ which involves the merits of the case, and proceed to a' trial of the action as if no such motion was filed.</p> <p>3. Liability of Husband for Antenuptial Debts.</p> <p>Before the act of 1884, the husband was liable for the antenuptial debts of his wife, and a joint judgment might properly be rendered against husband and wife on such indebtedness. The act of 1884 qualifies this liability,</p> <p>4. Right of Defendant to Retrial of Cause.</p> <p>A defendant properly summoned, and appearing and making defense before a justice of the peace, and against whom a judgment is rendered, am' who does not appeal, cannot on petition in error to reverse such judgment have a retrial of the case on the facts, and an amendment to his petition in error, assigning such errors of fact, may be disregarded.</p>

<p>APPEAL BONDS.</p> <p>Additional Time to File Appeal Bond.</p> <p>The 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>STREET ASSESSMENTS.</p> <p>1. Power to Levy.</p> <p>Under section 2264, Revised Statutes, municipal corporations have the authority lo improve streets therein by grading and bouldering, and assess the expense upon the abutting lots and lands.</p> <p>2. When Petition of Abutting Owners Unnecessary.</p> <p>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. Averments of Petition.</p> <p>A petition to enforce an assessment for such improvement, which avers that the city council duly passed and published the ordinance, and that writen 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>SET-OFF.</p> <p>Set-off Against Non-negotiable Note.</p> <p>In an action against the maker by the holder of a non-negotiable note, received by endorsement from the payee in good faith, ior value, and before maturity, the maker is not entitled to set off an independent past due claim, purchased by him against the payee of such non-negotiable note after the same had been so transferred to such holder, and before the maturity thereof.</p>

<p>INJUNCTION — COSTS.</p> <p>1. Injunctions Denied Where Redress at Daw wile be Adequate.</p> <p>Where one railroad company seeks to enjoin another from transporting local freight over a portion of the road owned in common, claiming that under their contract the former was to have the exclusive local business, if it appears that plaintiff has lor ten years acquiesced in defendant’s doing a local business, he must establish his right at law, be ore he is entitled to an injunction, their being no proof to show that redress at law would not be inadequate.</p> <p>2. Judgment eor Costs upon Appeal.</p> <p>Where the same decree is entered on appeal as was entered below, the judgment should be the same as to costs.</p>

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

<p>JUDGMENT IN ERROR.</p> <p>Subsequent Acquired Relations Not Affected.</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>Error to the Court of Common Pleas of Butler county.</p>

<p>MANDAMUS — PLEADING.</p> <p>1. Pleading in Mandamus.</p> <p>In mandamus, the petition is under section 6743, Rev. Stat; the pleading in the case of relators, instead of the writ as formerly.</p> <p>2. Petition Made More Definite and Certain.</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 ot 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>Error to the Court of Common Pleas of Franklin county.</p>

<p>ELECTIONS.</p> <p>1. Duty of Canvassing Board.</p> <p>Where a canvassing board is about to do some act of a ministerial nature, which is in violation 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 which 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. Authority of Canvassing Board.</p> <p>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 preceeding of this character can only require the board to canvass such returns so received in this manner. It cannot, 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>3. Power of Court to Direct Omission of Returns.</p> <p>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. Counting the Votes.</p> <p>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. When Returns Must be Received.</p> <p>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. What is Substantiae Compeiance or Statute.</p> <p>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>Error to the Court of Common Pleas of Lake county.</p>

<p>CONVERSION — DAMAGES.</p> <p>Measure oe Damages eor Cutting Timber.</p> <p>The liability of a party who cuts timber from land decreed to belong to him, is, after reversal of decree, for the value of the timber on the land, at the time of severance.</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>ELECTIONS.</p> <p>1. Power of Canvassers over Returns.</p> <p>The canvassers of election cannot regard as a return a paper enclosed in an envelope, which paper does not on its lace purport to be an official return, but 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>% Forged Returns to be Rejected.</p> <p>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. Duty of Canvassers when Tallies are in Excess of Votes.</p> <p>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. Sections 298, 299, 300.</p> <p>4. Issuing Certificates of Election.</p> <p>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 & Guckes v. Commissioners Darke Co., 21 Ohio St., 311, 322.</p>

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

<p>FIRE INSURANCE.</p> <p>1. Effect of Twelve Months’ Limitation Clause.</p> <p>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 twelve months from the time of the loss,” cannot be maintained unless brought within twelve months from the time of the fire.</p> <p>2. Meaning of .Such Clause.</p> <p>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 Clause is Valid.</p> <p>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 mak->.</p>

<p>COUNTY COMMISSIONERS — BIDS.</p> <p>Discretion of, in Fixing Amount of Bond for Construction of a Courthouse.</p> <p>Although the commissioners of a county have a wide discretion in fixing the amount and determining the sufficiency of a bond to be given by the lowest bidder for any branch of the work in the construction of a courthouse, the-abuse of that discretion will be prevented by the courts.</p> <p>2. Authority of, to Contract for Labor and Materials.</p> <p>Such commissioners have no legal authority to contract for the labor and material in any branch of such work at a price in excess of the preliminary estimate therefor.</p> <p>3, Lowest Bidder Not Necessarily Entitled to Awarding of Contract.</p> <p>, The person making the lowest bid for such work pursuant to a legal advertisement does not thereby acquire such right to have the contract awarded to him as will prevent the commissioners, acting in good faith and with regard to public interests, from rejecting all bids and advertising anew.</p>

<p>CORPORATIONS — FRAUD.</p> <p>1. Hypothecation oe Stock Certificate Fraudueentey Fileed Up.</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. D., 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. G. F. D. fraudulently and criminally filled up said certificate as one to himself for 100 -hares of said stock, and without the knowledge of said company, or any of its officers, other than the said D. 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 companv 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 D. 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 D. 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, D. was not acting as the agent of the railroad company, but for himself.</p> <p>2. Negeigence on Part of Corporation.</p> <p>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 equivalent of bad faith or fraud.</p> <p>3. Contributory Negeigence of Peaintiff.</p> <p>That the plaintiff in taking from D. the said certificate, without further inquiry of the officers , of said company, as to its legality aud validity, was guilty of contributory negligence.</p> <p>4. The Naturae and Proximate Cause of Bank’s Toss.</p> <p>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 D. was the natural and proximate cause thereof.</p>

<p>POWER OF ATTORNEY.</p> <p>1. How Construed.</p> <p>A power of attorney to confess a judgment must be strict]}' construed, and the authority therein conferred cannot be exercised beyond the limits expressed in the instrument.</p> <p>2. Authority Conferred by a Power of Attorney.</p> <p>A power of attorney authorizing one to appear in court and confess a judgment, does not authorize the 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 judgment so entered is invalid.</p> <p>3. When Action may be Brought on a Note.</p> <p>A negotiable note was dated November ,10, 1884, payable to the order of G. 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. Coeeaterae Impeachment of Judgment.</p> <p>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>

Appear from the Court of Common Pleas of Knox county. 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 and adopt her as…

The petition in this case in the common pleas court was filed by parties residing on Gholson avenue in the village of Avondale, who asked for an… 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 bjr the circuit court, or two j udgc s thereof in vacation.

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

<p>SLANDER.</p> <p>. Words That Constitute Prima Facie Actionabee Seander.</p> <p>To say to, and of another in a public discourse spoken in the presence and hearing of others: “You are a fraud. You do not pay your debts. You are a thief and a fraud, ” is prima facie actionable slander.</p>

<p>EASEMENT.</p> <p>Forfeiture of an Basement.</p> <p>By virtue of the degree 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 Company, 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>Error to the Court of Common Pleas of Noble county.</p>

This is an action originally brought to enjoin the commissioners of Torain' 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…

The case is stated in the opinion. The note sued on was an offer by Elder to do a certain thing, was a zmilateral 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, 32, section 17; Chi tty on Contracts, 9, 15; 1 Parsons on Contracts, 374-5. Performance, if it had been made in compliance with the terms 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 20, 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>Action in quo warranto.</p>

<p>MASTER AND SERVANT.</p> <p>1. Inspection of Cars.</p> <p>One entering the 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. Action for Negligently Causing Death.</p> <p>In an action against a railroad company for negligently causing the death of an employee, it is incumbent upon the plaintiff to show negligence on the part of the company presumedly causing the death, ■</p>

<p>MORTGAGES.</p> <p>Possession Herd not to be Notice oe Titee.</p> <p>F. béing the owner of real estate on which his wife held a judgment lien (they having separated), together 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. 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>Appeal from the Court of Common Pleas of G-uernsejr county.</p>

<p>GUARDIAN AND WARD — SURETIES.</p> <p>1. Reappointment in Another State, after Removal Does Not Exonerate Sureties.</p> <p>A guardian of the' person and estate of a minor, having received, after giving bond, money belonging to his ward, and converted it to his own use, the subsequent resignation of the guardian, and his removal to, and reappointment and qualification in another state, and filing an account there, in which he charged himself with the amount found due by the former court, at the time of his resignation, will not exonerate the sureties in the first bond, with respect to the money so converted, but they will be liable upon the ground that the guardian failed to faithfully perform his duties.</p> <p>2. Selection by Ward no -Release of Sureties.</p> <p>Nor will the fact that before such second appointment he was selected by his ward as her guardian, operate to release such sureties.</p>

<p>BAIL AND RECOGNIZANCE.</p> <p>Recovery of Money Deposited in Lieu of Bait.</p> <p>Where a person arrested upon a warrant for violating a penal statute of the state, agrees with the examing magistrate to deposit a sum of money, in lieu of bail, and such deposit is accepted, and the prisoner released pending his examination, the money so deposited, having, upon failure of the prisoner to further appear, been declared forfeited and paid into the treasury of the proper county, cannot be recovered back by the depositor.</p> <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 to him, and praying judgment for that amount.</p> <p>As a first defense the city denied receiving the money unlawfully, and alleged that on or about the day named in the petition, Reinhard and another person were arrested by the public authorities charged with an offense against the laws of the stare of Ohio; that thereupon Reinhard deposited one hundred dollars with the mayor of the city as bail for his appearance to.answer said charge, and a like sum as bail for the appearance of the other person; that the persons so accused failed to appear, and that the mayor declared the deposit forfeited, and the amount less costs was deposited in the city treasury. For a second defense it adopted the averments of the first, and further alleged that on or about the 6th day of December, 1881, before the commencement of this action, it was compelled to pay, and did pay, the portion of said moneys which it had received, $194.80, to Franklin county, the money having been received as bail in a prosecution under the laws of the state, and not under an ordinance of the city.</p> <p>Reinhard then filed a motion for a judgment for $194.80, for the alleged reason that from the averments of the answer it appeared that sum was due to him from the city.</p> <p>The court granted said motion and rendered a judgment accordingly, and this is assigned as error.</p>

<p>RAILROADS — NEGLIGENCE.</p> <p>1. Company Liable eor Negligence oe Contractors.</p> <p>A railroad company, in constructing its tracks 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: Construction oe Tracks Across Highway — Liability eor Negligence.</p> <p>The statute giving the railroad company the right to construct its track across a public road imposes a personal duty 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>COUNTY.</p> <p>1. Employment of Clerics in Hamilton County Recorder’s Office.</p> <p>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. Payment for Services.</p> <p>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 section 1343, Revised Statutes.</p>

<p>CRIMINAL LAW BILL OF EXCEPTIONS.</p> <p>1. Bill of Exceptions in Criminal Case need not be Sealed.</p> <p>Since the passage of the act of March 20, 1883, abolishing private seals, 3 Rev. Stat., 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. Special Charge to Jury, After General Charge.</p> <p>A special charge, applicable to the case on trial, and stating the law correctly, cannot 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. Law as to Self-defense.</p> <p>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 defendant, immediately prior to the shooting, and that it was necessary for the defendant tó 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 ASSESSMENTS.</p> <p>1. Petitioners Defined — Who May Become.</p> <p>Only those signers of a petition for an improvement who were owners at the passage of the ordinance (not the time of signing) can be counted in making up the petitioning property owners.</p> <p>2. Verbae Acts Not Considered.</p> <p>A petitioner for an improvement is one who signs a written request. Persons who verbally declare are not,</p> <p>3. Proof of Signature of Petitioners.</p> <p>The burden of proof is on the person who attacks the proceedings of a city council, even, to proving a negative, as regularity is presumed. Hence, where it is shown that the signature of a petitioner was not placed there by him, the other side must show that it was put there by authority. The signature need not be the personal act of the owner.</p> <p>4. City Not to be Counted as Petitioner.</p> <p>The city cannot be counted as-a petitioner, because of the passage of the ordinance in pursuance of the petition.</p>

<p>WILLS — CHARITABLE BEQUESTS.</p> <p>Testing Validity of a Charitable Bequest.</p> <p>An executor of a will made within a year of the testator’s death (sec. 5915), containing a charitable bequest pa3'able in two years, need not, under section 6202, Rev, Stat., wait until the two 3'ears are up, before inquiring as to its validity.</p>

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

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

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

<p>CURTESY.</p> <p>Execution Sate oe an Estate by Curtesy.</p> <p>A levy of execution against an estate by curtesy while heirs of the wife are living was valid, under section 8108, Revised Statutes, although the levy cannot be enforced during the life of an heir, but under the act of April 14, 1884, giving the life tenant a right to sell, the levy may be enforced. This act does not effect vested rights.</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>Appeal from the Court of Common Pleas of Franklin county.</p>

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

<p>Error to the Court of Common Pleas of Defiance county.</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 tiial at 6^2 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, oil the ground that the report of the master commissioner is vacated by the appeal.</p>

<p>CONSTITUTIONAL LAW.</p> <p>Act of a Generar Nature.</p> <p>The act passed by the general assembly of the state of Ohio, April 12, 1876 (Vol. 78 O. L., p. 821), entitled “an act to prevent gambling and the sale of intoxicating liquors at a place therein named,” is in violation of article II., 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>PROSECUTING ATTORNEY.</p> <p>Prosecuting Attorney Not Entitled to Commission on Costs.</p> <p>Section 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 sections 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>EVIDENCE — ASSIGNMENT FOR CREDITORS.</p> <p>1. Certificate of Acknowledgement as Evidence.</p> <p>A regular statutory certificate of the acknowledgment of a mortgage, is, in absence of fraud, conclusive evidence of the facts stated therein.</p> <p>2. Extent of Rights of an Assignee.</p> <p>In case of an assignment by an insolvent debtor for the benefit of creditors, the rights of the assignee in the property assigned are no greater than those of the debtor prior to the assignment.</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>DEVISE.</p> <p>Construction of a Devise.</p> <p>The testator, Richard Folger, by his will provided : ® * * “On the conditions hereinafter set forth I give and bequeath to my son, P. R. F., and my two daughters, M. B. P. & L. B. D., and their children, which they now have and may have hereafter, until said children shall become of lawful age, the use or rent of my aforesaid real estate, to be divided equally between them, share and share alike. But should any one or more of their chúdren decease before they become of age as aforesaid, such deceased children’s shades of the aforesaid rent of my real estate shall become as common stock and be divided equally between parents and children, share and share alike as aforesaid; but as each one of their children shall become of age, as aforesaid, such child’s share of the aforesaid rent shall become the property of his or her parent during the natural lifetime of said parent. But if either of my aforesaid children should decease and leave one or more of their children under lawful age, then shall such deceased parent’s share or shares be paid to their guardian, who shall expend the same in bringing up said minor children until they become of age as aforesaid, at which time all of the aforesaid shares shall be divided share and share alike, among the children of the aforesaid deceased parent until the last one of my aforesaid children shall have deceased, at which time I give and bequeath all of my aforesaid real estate to my grandchildren, to be equally divided among them all, share and share alike.”</p> <p>Held, that subject to the estate granted to the children and the grandchildren, during the lives of the children, the remainder became vested in the grandchildren at the death of the testator, subject to be opened up to let in after-born grandchildren.</p>

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

<p>APPEALS.</p> <p>No Appeal From Order Modifying Injunction.</p> <p>An appeal does not lie irom an interlocutory order modifying an injunction.</p>

<p>ADVANCEMENTS — GIFTS.</p> <p>1. Gift or Advancement — Intention of Parties.</p> <p>Whether a transfer of personal property by a father to a son, is to be considered as a gift or advancement, or whether the. amount or value thereof is to be regarded as debt against the sou, depends upon the intention of the parties at the time.</p> <p>2. Book Accounts Considered Debts — Not to be Deducted in Partition Proceedings.</p> <p>Where, in a proceeding for the partition of the real estate of an intestate (there being no personal estate for distribution) it is sought to charge one of the heirs at law, with an advancement claimed to have been made to him by his father, in personalty, and the only evidence submitted was proof of a book of the intestate, in which appeared various accounts, kept by him with a large number of persons, and among them one with his son, in the ordinary form of an account, with items of debts to him on the one side, and of credits on the other — many of the charges being for small sums, less in amount than SI, for cash furnished the son, and small articles purchased for him, with larger sums paid lor his clothing, books, boarding bills, and medical education during several years, while the son was unmarried and making his home with his father, and containing other charges against the son of two checks of $450 each, with entries of payments made by the son on the account, prima facie, this is a debt against the son, and not an advancement to him, and cannot be charged to him as such; nor can it in such proceeding, be deducted, as a debt due to the estate, from his share of the land, or the proceeds thereof.</p>

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

<p>SALES.</p> <p>1. Upon Waiver of Right to Immediate Payment, Title Passes.</p> <p>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. Right to Reclaim Property Lost.</p> <p>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>SETTING ASIDE A DEED.</p> <p>1. Failure to Answer in Action to Set Aside a Deed, Does Not Estop One from Asserting Interest in the Lot as Heir-at-law.</p> <p>Where an action is brought by A. against B. and her grantees, to set aside a deed made to her by A. purporting to convey the interest of A. in a certain lot of land, on the ground that it has been fraudulently procured, and the petition sets out that B., said grantee, had a life-estate in said lot under the will of her husband, and that the remainder therein being undevised had passed by descent to A. and C., her sister, and C. was also made a party defendant, but filed no answer, and took no part in said case, blit no relief was asked against her by the petition, or by the answers of any of the defendants, which answers were mere defenses denying the fraud and any title in plaintiff at the making of the deed, a judgment of the court in such case finding against the plaintiff, and dismissing the bill on the ground that she had no interest in the lot at the time of the conveyance, will not estop C. from asserting her interest in such lot as heir-at-law of the testator after the death of B., the life-tenant.</p> <p>2. Where Wife Receives Merely a Life Estate, Remainder Passes by Descent.</p> <p>It appearing from the will construed in this case, that it was clearly the intention of the testator to limit the estate given to his wife, in the lot in question to a life estate, and that no disposition was made of the remainder therein, it passed under the statutes of descent to his heirs at law; and though owing to the unskillfulness of the draftsman, reference is made to the residue of the estate that might remain after the payment of debts as if he contemplated a disposition of it, yet the whole will is to be taken together, and if it appears that only a life estate in the lot is devised, and no person named to take the remainder, it must receive such construction.</p>

<p>CRIMINAL LAW.</p> <p>1. Indictment does not Allege Distinct Offenses.</p> <p>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. U., vol. 82, page 241; and a motion to quash the same, on the ground that [it] is bad 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. Declarations of Injured Female as Evidence in Sodomy Case,</p> <p>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. Such Evidence Permissible in Corroboration.</p> <p>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 other 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 pr.,ve 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>4. Rule of Evidence in Sodomy Cases.</p> <p>Section 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>APPEALS — ERROR.</p> <p>1. Judgment Cannot be set Aside by Court Beeow, After Appeae — Error wiee eie. to such Action.</p> <p>M. E. A., brought suit in the Hamilton county common pleas against I. W. B. &. P. 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 : Held.,</p> <p>1. That the common pleas court had no power to set aside such judgment; that by the appeal the whole case went to the circuit court, and the judgment in that court superseded the judgment below. ,</p> <p>2. That the order was a final order to which error will lie in the circuit court.</p> <p>2. Waiver of Process by. County Soeicitor Sustained.</p> <p>Upon the filing of the petition in the common p'eas, R. B. S., county solicitor, waived issuing and service of process and entered the appearance of the defendants; Held: That uuder section 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>ROAD TAXES.</p> <p>1. Country Levy of Road Taxes to be Expended in a Corporation.</p> <p>Section 4919, Rev. Stat., as amended, 82 O. L , 171, is unconstititutional 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 o- the council of said city of Lima.”</p> <p>2. Auditor Not Compelled to Issue a Warrant for Illegal Taxes.</p> <p>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>PERSONAL INJURIES.</p> <p>Injuries Received on Tracks, not at a Public Crossing.</p> <p>A person has no right to be on the tra.'k of a railroad where there is no public crossing, and a railroad is not liable for injury by its train to a person oil its track where there is no public crossing, unless the injury be the result of wanton, willful negligence on the part of its employees in charge of the train.</p>

<p>FIRE INSURANCE.</p> <p>Gas Made From Gasoline Not Within Prohibitions of a Policy.</p> <p>A policy of fire insurance was to become void, when in the buildings insured, “nitro-glyceriue, gunpowder, phosphorous, fireworks, naphtha, benzoll, benzine, gasoline, or any of the products of petroleum, or coal oil, are deposited, stored, or kept, or used for light in the premises.”</p> <p>Gasoline was placed in a tank underground, thirty-five feet from the buildings insured, where, by means of certain machinery, it became vaporized, which vapor or gas was conveyed into said building by means of gas pipe, where it was used for light on said premises:</p> <p>Held, that the substance used for light did not come within the terms of the policy.</p>

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

<p>SETTLEMENT OF ESTATES.</p> <p>1. Administrator Liable For Rents of Real Estate,</p> <p>Rents received by an administrator from the real estate of his intestate under certain circumstances, may properly be charged to him, on his account filed for the settlement of the estate.</p> <p>2. Reopening of Former Accounts, on Subsequent Settlement.</p> <p>An account containing items of credit to an administrator for his statutory commissions, and for extra services, and for an amount paid by him for attorney fees in the settlement of the estate, and which account current was duly allowed and confirmed by the probate court, cannot, on the filing of a second account, more than one year thereafter, be reopened ior hearing, and such items be disallowed by the court, on exceptions filed thereto, when it is not claimed or found that there was any error or mistake therein, or in their allowance.</p> <p>3. Unfaithfulness in Administration does not Deprive of Compensation.</p> <p>Under our statute, an administrator is legally entitled to the statutory commissions “ on the amount of the personal estate collected and accounted for by him, and of the proceeds of the real estate sold under an order of the court for the payment of debts,” although he may have failed to charge himself with all the assets received by him, or has asked for credits for sums not paid by him. Even if there be unfaithful administration of the estate, it will not deprive an executor or administrator of a right to compensation for his services, so far ss they have been beneficial to the persons interested in the estate.</p>

<p>SERVICE OF SUMMONS.</p> <p>Service on a Railroad Company in Hands oe a Receiver.</p> <p>In an action against a railroad company, the service of a summons on a regular ticket and freight agent, at and in charge of an established station, the road being in the hands of a receiver, and such agent having been designated and appointed by the receiver, is not good service.</p>

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

<p>ANTE-NUPTIAL CONTRACTS.</p> <p>Ante-Nuptiai, Contract not a Bar to Dower.</p> <p>An agreement of a woman about to marry a man 77 years of age, with nine children, and owning 366 acres of land of no great value, to receive seven hundred dollars in lieu of dower, in case she survived him, does not bar her dower.</p>

<p>PLEDGE.</p> <p>1. Pledgee no Right to Appropriate Collaterals eor Other Debts.</p> <p>Where a partnership borrows a sum of money from a bank, giving a note therefor, and by the terms of said instrument, p'edging as collateral security for its payment, a promissory note, for a larger sum, belonging to said partnership, which is also indorsed and delivered to the bank, and the instrument of pledge only gives to the bank the right to hold it as collateral for the note so executed to it, the bank has not a banker’s lien upon the residue thereof, or the right to appropriate it, or any part thereof, to the payment of another note indorsed by said partnership to the bank, before the pledge of the collateral, and which still remains unpaid and on which the firm is liable to the bank — these being the only transactions appearing to have been had between the said parties. In such case the bank must stand on its written contract. ■</p> <p>2. Inability to Off-set Claims.</p> <p>After the dissolution of such partnership by the death of one of its members, and the appointment of a receiver therefor, an action was brought by the bank on the pledged note, and the receiver was made a party, and set up his claim for a judgment against the makers of the note, for the amount that would be left after the satisfaction of the note for which it had been pledged, and to this extent denying the ownership of the bank to the note. The bank replied, setting up its banker’s lien on such residue for the other note. By consent the whole amount due on the collateral note was paid to the bank without prejudice to the rights of the receiver, and was more than sufficient to pay the note for which it had been pledged. The bank filed an amended reply alleging the receipt of the money by it, but setting up as against the receiver’s right to it, the other note’by way of set-off. Heidi</p> <p>This cannot be done. The claim the receiver was asserting, was one against the makers of the collateral note; and when the bank received this, it was money had and received to his use, and became a claim against the bank, and could not be offset by a claim against a dissolved partnership. The rights of the parties must be adjudicated as they were at the commencement of the litigation, except so far as they may have changed them by consent.</p>

<p>ERROR — SETTLEMENT OF ESTATES.</p> <p>1. Questions Common Pleas may Review, on Error.</p> <p>Whether a judgment of a justice of the peace is sustained by the weight of the evidence, is a question which cannot be reviewed on error by the court of common pleas — but the question whether there was any evidence offered, on a point essential to be shown by the plaintiff to obtain the judgment may be.</p> <p>2. Proof Required in an Action against an Administrator.</p> <p>In an action against an administrator of an estate on an account alleged to be due from his intestate, it is essential to prove a presentation of such claim to the administrator, and its rejection, or what is equivalent thereto, by him ; orto show some other reason why the administrator is liable to be sued, notwithstanding the provisions of section 6113, Revised Statutes.</p> <p>3. How Rejection of a Claim may be Proven.</p> <p>In such an action, where it was sought to show a rejection of the claim, and the evidence of the plaintiff tended to show a presentation of the claim to the administrator, and its retention by him for examination, and that it was afterwards returned with no indorsement thereon, and no verbal message, but accompanied with a letter in relation thereto, which a witness for plaintiff stated was a rejection of the claim, and the defendant was not allowed to cross-examine such witness as to such letter, or to introduce it in evidence on his cross-examination, or afterwards when he came to the introduction of his own evidence, such action of the court was erroneous.</p>

Appear from the Court of Common Pleas of Noble county. The petition sets forth that on the 6th day of January, 1886, Stuart 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>SETTLEMENT OF ESTATES.</p> <p>1. Exceptions to Account, after Resignation of Assignee.</p> <p>When an assignee for the benefit of creditors, files in the probate court his account current and vouchers for settlement, and before such settlement he resigns his said trust and new trustees are appointed by the court, and thereupon exceptions are filed to such account, and a trial thereof had, such court has authority under section 6341, Rev. Stat., to settle said account, though it was not formally rehled after the resignation of such assignee. The acting upon it as such account, by the court and the resigned assignee is equivalent to a refiling of it after the resignation.</p> <p>2. Extent to Which the Court May Go in Entering an Order on Such Account.</p> <p>But such court is not authorized by said section to do more than settle the account, and cannot legally enter an order directing the late assignee to pay the balance found in his hands to his successor in the trust, and thereby, in case the late assignee desires to appeal from the finding as to a part of the exceptions, make it obligatory upon the probate court, under the provisions of section 6408, to fix the amount of the appeal bond to be given by him, at double the amount of the balance found in the hands of such late assignee.</p>

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

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

<p>TOWNSHIP DITCHES.</p> <p>1. Powers oe Trustees in Establishing.</p> <p>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. Permission to Box or Tile a Ditch.</p> <p>The only power which township trustees possess to grant permission to box or tile a township ditch, is conferred by section 4524, Revised Statutes, and its provisions must be strictly followed.</p> <p>3. Remedy at Daw Must be Resorted to.</p> <p>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>JUDICIAL SALES.</p> <p>1. Failure of Sheriff to Return not Regarded, after Confirmation of Sale.</p> <p>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. Publications in Semi-Weekly Paper.</p> <p>Where an advertisement of a judicial sale is published in a semi-weekly newspaper, it is not necessary that each insertion should be on the same day of the week.</p> <p>3. Insertions in Daily on Different Days of Week.</p> <p>Where an advertisment 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 delect as that a motion to set aside the sale made thereunder, on that ground, made before confirmation, should be sustained.</p>

<p>ADMINISTRATION BOND.</p> <p>1. Suit on Bond to Pay Expense or Collecting Claim.</p> <p>In a suit by an administrator to recover upon a bond given in pursuance of the provisions of section 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. Parties to Suit where such Bond has been given.</p> <p>Where a bond has been given in accordance with the provisions of section 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 he desires, or he will not be liable for the costs and expenses of such suit.</p>

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

<p>ERROR — JUDGMENTS.</p> <p>After Assignment of Errors, and Before Final Judgment, the Judgment of Reversal is Valid.</p> <p>After error has been assigned, a judgment of reversal is valid, even though one of the plaintiffs in error has deceased, and his legal representative has not been made a party to the proceedings in error.</p>

Defendant Martindale was arrested and tried before a magistrate, on a charge of cruelty to animals, under and in accordance with the provisions of sec. 3718a, Rev. Stat. He was convicted and fined. It is claimed for him, that he did not waive a trial by jury in writing, and that therefore the magistrate had no final jurisdiction in the casé, and erred in proceeding to final judgment without the intervention of a jury.

<p>EXECUTORS.</p> <p>Settlement of the Account of an Executor who has been Removed, Effect A settlement of the account of an executor, who has heen removed, does not bar a subsequent suit by him, against his successor, upon a demand existing in the lifetime of his testator.</p>

<p>Application for an injunction.</p>

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

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

<p>Application to suspend an order of the court of common pleas of Preble county dissolving a temporary injunction.</p>

Appear from the court of Common Pleas of Shelby county. At the beginning of the transactions out of which this suit arises, Howell was the owner in fee of the forty acres of land described in the petition, and in the actual possession thereof, and he was not the owner of any other real estate.

<p>ACCOMPLICE AND ACCESSORY.</p> <p>1. Construction of Section 6804, Revised Statutes.</p> <p>By sec. 6804, Rev. Stat, criminals — principals, aiders, abettors and procurers — were placed on the same basis as prosecutions for misdemeanors generally under former statutes and at common law.</p> <p>2. The Conviction of a Principal does not Preclude the Conviction of an Acces- ■ sort of a Higher Degree.</p> <p>Our statutory definition of manslaughter admits of aiders, abettors and procurers of that crime, who have heretofore been called accessories, and the conviction of one heretofore denominated a principal, of any degree of crime, does not stop or preclude the conviction of an accessory of a higher degree, as often the accessory may be the worse man.</p>

On the 11th day of October, A. D. 1886, the Merchants’ National Bank of Lima, Ohio, filed its petition in the court of common pleas of Allen county against Ream, praying for a judgment against him upon a promissory note, with an alleged warrant of attorney annexed, of which note and alleged warrant of attorney the following is a copy: “$105.00. Ada, Ohio, Sept. 11th, 1885. “On the 1st day of October, 1886, I promise to pay L,.

<p>DEATH BY NEGLIGENCE — LIMITATIONS.</p> <p>1. Action to Recover Damages Under Sec. 6134, R> v. Stat.</p> <p>A, as administrator of A, brought an action on behalf of the widow and next of kin to recover damages under sec. 6134, Rev. Stat., for an injury which- the said decedent received September 3, 1877, through the negligence of the defendant, and which resulted in his death August 29, 1883. On demurrer to the petition, on the ground that the action was barred by the statute of limitations: Held,</p> <p>2. Such Action is Barred in Four Years.</p> <p>(1). That the action is from ex delicto, and barred in four years from the time the cause of action accrued ; and</p> <p>3. Action Accrues at the Time the Injury was Received.</p> <p>(2). That the foundation of the action is the injury, and not the death alone, and that the cause of action accrued at the time the injury was received.</p>

<p>JUSTICE OF THE PEACE.</p> <p>Jurisdiction of Justice in an Action for Damages for Injury to Personae Property Caused by Bursting of Water Pipes.</p> <p>A justice of the peace has not jurisdiction of an action brought to recover damages for injury to personal property caused by the flow of water from the premises of the defendant, resulting from the bursting of the water-pipes on said premises. To maintain such action, the plaintiff must prove that the defendant had some title (by possession, or otherwise) to the premises from which the watei flowed, and the jurisdiction of the jus ice is thereby excluded under sec. 591, Rev. Stat.</p>

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

<p>JUDGMENTS — VERDICTS.</p> <p>Judgment Must Follow General Verdict, When.</p> <p>Judgment must follow the general verdict when a special finding is not inconsistent with it-</p>

This is a petition in error to reverse the judgment of the court ot common pleas, rendered in favor of defendant at the September term, 1886. The suit in the court of common pleas was upon a promissory note in the following form: “$250. . December 25th, 1884. “On or before the first day of February, 1886, I promise to pay to Frank Tobiu, or bearer, two hundred and fifty dollars, for value received, with interest at the rate ol six per cent, per aqnum.

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

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

<p>LANDLORD AND TENANT.</p> <p>One not in Possession and Having no Right to Recover Possession of a Building is Not Liable eor Rent.</p> <p>Receipts for rents made out by the mortgagor in the name of a mortgagee of machinery and chattels in a building, without his knowledge, do not bind him for rent, he not being in possession and having no right to recover possession of the building.</p>

Appear from a decree of the Court of Common Pleas of Fairfield county. The plaintiff, Mary Ruffner, filed a petition for dower in a quarter section of land, in Fairfield county. She was married to one Benjamin Ruffner, February 2, 1837, who died December 8, 1876.

<p>COURTS.</p> <p>The Probate Court, Under the Insolvent Law, Has Jurisdiction to Fix the Priority of Lienholders.</p> <p>The probate court, in a case of assignment under the insolvent law, when the personal property assigned has been sold and proceeds brought into court for distribution, can fix the priority of lienholders and distribute the proceeds, and for that purpose may decide all questions, legal and equitable, which may arise therein,</p>

<p>PROCEEDINGS IN AID OF EXECUTION.</p> <p>1. Effect of Judgment Ordering the Debtor of the Judgment Debtor to Pay the Creditor-.</p> <p>Where proceedings in aid of execution are commenced in a court of competent jurisdiction against the judgment debtor and one alleged to be indebted to him ; and the parties all appear, and a trial is had, aud a judgment entered that the person owing the judgment debtor shall pay the amount due from him to the judgment creditor — this is such a judgment (whether the amount be orbe not paid in conformity therewith), as will protect the person so ordered to make payment, from a suit on the same demand by the judgment debtor.</p> <p>2, Such Judgment Wide Protect the Payments, Though it is Afterwards Reversed.</p> <p>The fact that the judgment in the original case, on which the judgment in the proceedings in aid of execution was founded, was (alter the rendition of the judgment in the latter case) reversed, and the cause wholly dismissed, did not operate to reverse the judgment rendered in said proceedings in aid of execution — no bond for the stay of execution having been given in the error proceeding, and the person so ordered to pay not having been made a party thereto.</p> <p>3 Action Prosecuted by Next Friend, Where an Infant is the “Sore Peaintiff.”</p> <p>Where an infant is the “sole plaintiff,” and the action is prosecuted by her by a next friend, who by the statute is to be liable for all of the costs of the proceeding, she, and not the next friend, is the real plaintiff: And a judgment that the person named as next friend (who in his individual capacity, as owing the judgment debtor, is made a party defendant) pay to the plaintiff, is not an order to pay to himself. And a payment by him in good faith, to the attorneys of record of the plaintiff, duly authorized, is a payment by him to the plaintiff, and a valid discharge of the obligations of such judgment.</p>

<p>MARSHALING LIENS.</p> <p>Holder or Mortgage not Charged with Constructive Notice.</p> <p>The holder of a mortgage on real estate is not charged with constructive notice of a subsequently executed and recorded conveyance of a portion of the premises covered by his mortgage ; and he cannot, without proof of actual notice of such conveyance or circumstances equivalent thereto, be charged with the value of other portions of the mortgaged premises released by him after the record of such subsequent conveyance.</p>

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

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

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

On the 14th of August, 1840, Joseph Cairns made his will, and on June 25, 1845, added a codicil to it. He died in June, 1865, leaving an estate amounting to about $18,000. The principle part of it consisted of real estate in Mansfield and a farm a few miles distant. He left as a legacy to a grand-daughter, by the codicil, the interest on $1,000, during her life.

<p>ATTACHMENT.</p> <p>1. Mistake in a Notice by Publication, Effect.</p> <p>A mistake in a notice by publication does not vitiate an attachment properly issued and levied.</p> <p>2. Mode of Determining the Rights of Attaching Creditors.</p> <p>The rights of attaching creditors may properly be determined upon a motion for a distribution of a fund.</p> <p>3. Amendment of Petition upon which an Attachment has been Issued.</p> <p>While a petition upon which an attachment has been issued may be subsequently amended, such amendment cannot enlarge the scope of the attachment.</p> <p>4. Attachment Against a Member of a Firm, Effect.</p> <p>An attachment on goods belonging to a firm issued against a member of the firm, cannot take precedence of an attachment against the firm, although it is a prior levy.</p>

<p>BANKS AND BANKING — ESTOPPEL.</p> <p>1. Post-notes Mentioned in Sec. 5183, Rev. Stat. op U. S., are to Circulate as Money.</p> <p>Post-notes, mentioned in sec. 5183, of the Rev. Stat. of the United States, are post-notes to circulate as money, and not time certificates of deposit, representing an actual loan.</p> <p>2. Estoppel Against a National Bank.</p> <p>The facts, as expressed in the opinion of the court, create an estoppel against a national bank.</p>

<p>ERROR.</p> <p>The Circuit Court has no Jurisdiction to Review a Conviction and Sentence in the Common Pdeas.</p> <p>This court has no jurisdiction, under sec. 7356, Rev. Stat. (82 O. D. 39), to review a conviction and sentence in the court of common pleas, on a petition in error, unless there is attached to and filed with such petition in error, a complete certified transcript of the record in the case, as provided in sec. 7358, Rev. Stat., (80 O. D. 46.</p>

<p>FIRE INSURANCE — WAIVER.</p> <p>Waiver After Loss.</p> <p>A fire policy in a mutual company contained a condition, that it should be void if the assured neglect to pay any assessment for thirty days after request; also, a provision that the assured shall be required to submit to an examination under oath, touching the questions relating to the claim, and subscribe the same: Held, that after the nonpayment of an assessment for more than thirty days, a loss by fire having occurred during the time, if with full knowledge of all the facts, the company subjects the assured to an examination under said provision of the policy, the right to a forfeiture is waived.</p>

Stewart, a former auditor of Logan county, presented a claim to the county commissioners for services rendered by him for the county, in making what is known as road improvement duplicates. The board examined the claim, and disallowed it. From this order of the county commissioners Stewart appealed to the court of common pleas, duly perfecting his appeal. A petition was then filed in the court of common pleas, upon this claim, by Stewart v. Logan County.

<p>Moore, Seney and Beer, JJ.</p>

Miller was prosecuted before the mayor of Bellefontaine for the violation of one of the ordinances of the village, found guilty, and sentenced to pay a fine and costs. To review the judgment of the mayor, Miller filed a petition in error in the court of common pleas of Logan county, alleging several errors; but no leave was obtained of the court or a judge thereof to file such petition in error.

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

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

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

<p>BILL OF EXCEPTIONS — EXECUTOR—ACTIONS.</p> <p>1. Failure oe Bill of Exceptions to Contain the Charge of the Trial Court.</p> <p>"When at the close of the evidence in a case, the court at the request of the defendant charged the jury to return a verdict for him, which was done, and this action only appears upon the journal of the court, with an exception thereto, and no bill of exceptions was taken showing such ruling of the court or any exception taken thereto, though a bill of exceptions was filed certified to contain all the evidence given in the case, — on proceedings in error the reviewing court cannot properly consider whether the charge of the court to the jury was correct — such charge or the exception thereto not appearing in the bill of exceptions, which is the only mode by which a ruling of that kind can properly appear upon the record.</p> <p>2. Failure of Bill of Exceptions to Recit or State the Verdict of the Jury.</p> <p>When such a bill of exceptions does not recite or state the verdict of the jury — the(fact that there was a motion for a new trial, that it was overruled and exceptions taken, or a judgment on the verdict, but all of these facts do properly elsewhere appear upon the record, the reviewing court is bound to consider the question (if presented by the motion for a new trial) whether the verdict was against the weight of the evidence.</p> <p>3. Action Against Two Persons as Surviving Executors of the Will of Deceased Person.</p> <p>Where an action is brought against two persons as surviving executors of the will of a deceased person, representing that the testator at the time of his death was the owner of certain real estate, and that by his will he had authorized the three executors to sell the same, and that they as executors under and by virtue of the terms of said will, had contracted in writing with the plaintiff to convey the same to him, in consideration of a certain sum of money to be paid them, and the conveyance to them of another piece of property owned by the plaintiff — that afterwards one of said executors died, and that the plaintiff had tendered performance of the contract on his part, but that the surviving executors had refused to comply with their part of the contract, and a judgment was asked for against the defendants as executors for 820,000, his damages, and it appeared from the evidence that the contract had not in fact been signed by the deceased executor or by bis authority — Held: That the plaintiff in such case has no right to recover in this action against the surviving executors as such, for two reasons: First, that the contract was not executed by all of the executors, and second, because they were not authorized to make a contract for the exchange of lands.</p> <p>4. Failure to Show a Right to Recover Against a Surviving Executor.</p> <p>On failure to show a right to recover against the surviving executors in their representative capacity, on a claim so asserted against them, the plaintiff was not authorized to treat the case as one brought against the defendants as individuals. And the court was not bound to allow him to amend his petition in this respect, because it was not shown to be in furtherance of justice, and would have substantially changed the nature of the claim of the plaintiff.</p> <p>5. Claims Against a Person in his Individual and Representative Capacity as Executor Cannot be Joined.</p> <p>It is the clear rule of the law, that when a suit is brought against a person, seeking to charge him in his individual capacity, if it be on a contract on which the defendant is, or can be liable as such, he may also be so held, although he may be named in the petition as executor, administrator, or trustee, and the instrumenton which suit is brought may be signed by him as such — the addition of such descriptive words to the name of the defendant, either in the petition or to the signature affixed to such instrument, may be considered simply as a description of the person sued, and not of the character in which he is sued, or they may be treated as surplusage. But the plaintiff cannot recover against persons individually, who are described as executors, and where the evident object and intent of the petition is to hold them in their representative ' capacity, as to'a matter in which they could bind the estate of their testator.</p>

<p>HABEAS CORPUS — MISCONDUCT IN OFFICE.</p> <p>1. Indictment Against a County Commissioner, Charging Him with Misconduct in Office.</p> <p>When an indictment is duly found and presented to the court of common pleas, against a county commissioner, charging him with misconduct in office, as set out in the indictment, and a w irrant is issued thereon from the court, on which the defendant is arrested and committed to the custody of the sheriff, and application is made to the circuitcourt for a writ of habeas corpus and the discharge of the defendant from the custody of said officer, while the case remains undisposed of in the court of common pleas: Held,</p> <p>2. Jurisdiction of the Common Pleas Court to Hear and Determine all Indictments for Misconduct in Office.</p> <p>That the said court of common pleas being a court of general criminal jurisdiction, and with power and authority to hear and determine all indictments for misconduct in office, in the proper county, had jurisdiction to issue such process and render any proper judgment thereon. And that under the provisions of sec, 5729, Rev. Stat’ another court having jurisdiction in habeas corpus, ought not to allow the writ and discharge the defendant. And this is the case even if there be informality or defect in the proper judgment or order, if it appear that the court issuing the process had jurisdiction to do so.</p> <p>3. Construction of Section 6915, Revised Statutes.</p> <p>Section 6915, Rev. Stat., was not intended to provide a punishment for a county commissioner who might be found guilty of the violation of the provisions of either secs. 6909, 6910 or 6913. These sections provide in themselves for the punishment of all officers named therein, who might be guilty of the specific offenses therein defined. But it was intended to make unlawful and provide for the punishment of any county commissioner, who is guilty of the willful and corrupt violation of any of the other statutes of the state pointing out the duties of such commissioners.</p>

John Madden filed his petition in the court of common pleas, in which he sets forth, in substance, that he is unlawfully imprisoned by the said Dennis Smeltz, marshal of the village of Alliance, in Stark county ; that the alleged cause of his imprisonment is an order of the mayor ol Alliance for the arrest and the imprisonment of him, unless he pay a fine of twenty-five dollars and costs, assessed against him by the mayor, in the certain proceeding, wherein it was claimed…

<p>STOCKHOLDERS’ LIABILITIES — SUBSCRIPTIONS.</p> <p>1. Action by Creditor of an Insolvent Corporation Against Stockholders to Enforce their Stock Subscriptions.</p> <p>In a suit by a creditor of an insolvent corporation against the stockholders, to enforce their stock subscriptions, and also their statutory liability, where the stock subscription book shows that the subscriptions were made subsequent to the filing óf the articles of incorporation, such stockholders will not be permitted to show that such subscriptions were made prior to the filing of the articles of incorporation.</p> <p>2. Cancellation of Stock Subscription, Effect.</p> <p>In such a suit proof that certain of the subscribers to stock under an arrangement with one of the promoters of the enterprise, drew up and signed a cancellation of their own subscriptions, does not relieve such stock subscribers from liability to the creditors of the corporation.</p>

<p>BASTARDY — COMPROMISE—BOND—PLEADING.</p> <p>1. Answer to a Complaint in Bastardy to be a Bar to such Proceedings, Must Show.</p> <p>An answer to a comnlaint in bastardy, setting up a compromise before a magistrate, under sec. 5617, of the Rev. Stat., in order to be a bar to such proceeding, must show: (3) The payment, or securing to be paid, to the complainant, the amount of money or property agreed to be received in full satisfaction. (2) The giving “bond to the state of Ohio, with sufficient surety,” to be approved and conditioned as required by said section. (3) The discliarge of the accused from custody, upon payment of the costs of prosecution. (4) That the agreement was made or acknowledged by both parties, in the presence of the justice, and a memorandum thereof entered upon his docket.</p> <p>2. Failure oe Answer to Contain Certain Enumerated Requirements.</p> <p>Where such answer shows the first and fourth requirements, but fails to show the other two, the defense is not made out.</p> <p>3. Validity of Bond Given by the Accused at the Time and Place of a Compromise in a Bastardy Proceeding.</p> <p>A bond, or paper writing, executed by the accused, with surety at the time and place of said alleged compromise, in presence of the complainant and the justice, and to her satisfaction, and filed with the justice and entered upon his docket, but not given to the state of Ohio, nor having any obligee, nor conditioned as required by said section of the Revised Statutes, but purporting to covenant and agree to take the illegitimate child after a fixed period, and care for and maintain the same “ until said child needs no care,” is not good as a statutory bond under said section; nor does the same— together with the averments showing that the accused was able, ready and willing to take said child and maintain it, had gone for it and the mother had refused to let him have it — show a substantial compliance with said section.</p> <p>4. Right of Complainant in a Bastardy Proceeding to Effect a Compromise with the Accused.</p> <p>The great leading object of the law is to protect the public. No power whatever is given to the complainant to impair the public security by such settlement. It cannot be made until the accused has given security that the public shall not be burthened with the support of the child.</p>

<p>HUSBAND AND WIFE.</p> <p>Diabijwty of a Married Woman Upon’ Her Covenants of Warranty.</p> <p>A married woman is not liable, in an action at law, upon ber covenants of warranty made in 1873; the statute of 1866 did not change the rule theretofore existing.</p>

<p>APPROPRIATION OF PROPERTY — DAMAGES.</p> <p>1. Appropriation of Property for Street Purposes.</p> <p>Where a municipal corporation appropriated property for use of street, and caused damages to be assessed, but omitted to pay same within the time fixed by statute, and some years after took possession of the land without further judicial proceedings, but intending to proceed under said appropriation proceedings, and caused the street to be improved for the use of the public : Held,</p> <p>2. Election of Property Owner.</p> <p>(1.) That the property owner had an election to sue for the amount awarded him by the jury in the former appropriation proceedings — or to have the damages assessed him at • the time the street was finally opened.</p> <p>3. Right to Recover Interest on the Damages as Assessed.</p> <p>(2.) Held, further that having brought suit for the amount of said damages assessed, he is entitled to interest only from the time the street was finally opened.</p>

<p>sheriff:</p> <p>1. Payment to the Sheriff of the Costs of a Conviction.</p> <p>N., having been duly elected sheriff of the county of H., gave bond with sureties, conditioned to “punctually pay over to the parties entitled thereto all moneys that shall come into his hands by virtue of his said office, and shall in all respects faithfully and impartially discharge the duties pertaining to his said office of sheriff of said county, according to law. During his continuance in office, M. was, in the court of common pleas of said county, convicted of felony, sentenced to the penitentiary of the state, to pay the costs of prosecution and ordered into the custody of N., as such sheriff. Within the time required by law he delivered said convict into the custody of the warden of the penitentiary, together with a certificate of the sentence. Execution having been issued against said convict, and returned within the time required by law, indorsed, “No goods, or chattels, lands or tenements, found whereon to levy, and said M. having no property in any other county whereon to levy,” N., also, as such sheriff, at the same time delivered to the warden, “a complete bill of the costs made in the prosecution,” properly certified by the clerk, and allowed and certified by the judge of the court to be correct. Upon the certificate of sentence to which said cost bill was . attached, there was a summary account, in which the state of Ohio was debited to the sheriff of said county for the prosecuting and the transportation charges. The warden, having allowed said charges, gave to said N. a certificate of allowance on the state auditor for the amount, and took from him at the bottom of said account, a receipt therefor, which said N. signed as sheriff. Thereupon, said N. assuming to act, and acting as alleged, as such sheriff, obtained from the auditor of state a warrant upon the treasurer for the amount of said certificate of allowance, which amount he then and there received from said treasurer. He paid a part of said money to the persons entitled to receive it, but failed upon demand made to pay the balance to them, and thereupon suit was brought against him and his sureties upon his official bond, to recover said balance : Held,</p> <p>2. Acts of the Sheriff Which Constitutes a Breach of the Conditions of his Official Bond.</p> <p>(1.) That the money so received by said N., and sought to be recovered, was received by him in his official capacity, and by virtue of his said office of sheriff, and that his failure, on demand made, to pay it over to the parties entitled thereto, was a breach of the condition of his official bond.</p> <p>3. Acts Colore Officii.</p> <p>(2.) That it was not received by him in accordance with the strict letter of the statutory provisions defining his duties as sheriff, yet it was received by him under color of office, and his sureties on his official bond are liable therefor.</p>

<p>CONFLICT OF LAWS — INTEREST AND USURY.</p> <p>Lex Loci Contractus.</p> <p>When the interest expressed in a contract is usurious, both by the law of the place where-the contract is made and where it is to be performed, the law of the former place will govern as to the consequences of the usury.</p>

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

<p>ALTERATION OF WRITTEN INSTRUMENTS.</p> <p>-Ai/teration oe a Written Instrument, Eeeect, When Made in Good Eaith and Through Mistake.</p> <p>Where a written contract, signed by H. & D.,parties of the first part, ishy them delivered to their agent (D.), to have the same executed by N., the party of the second part, and said agent is authorized to complete, the transaction and receive the money thereon from N., and such contract is altered in a material part by D., the agent, and J., an attorney-at-law, acting for H. & D., parties of the first part (not, however, expressly authorized to make any alteration therein), before its execution by N., but said alteration was made in good faith, and through mistake, and without the knowledge or procurement of N., who executed the same in ignorance of any such alteration, and who, on the faith of such contract, paid to D., the agent of H. & D., the money stipulated for therein as a loan to H. & D., such written contract as to H. & D., is not wholly invalid, but may be enforced against them by Ni as it stood when it was executed by them.</p>

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

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

<p>TRUSTS — WILLS.</p> <p>Equity will Declare a Trust Created by a Will, Terminated, When.</p> <p>Where a testator, by his will directed his executors to invest a specific fund, the income therefrom to be paid to the widow during her life and widowhood, and at her death the principal thereof to be paid to her two sons; and the sons, on both arriving at the age of maturity, executed under their hands and seals to the widow an assignment of all their interest and right in such fund, authorizing her thereby to receive, collect and use, and dispose of such fund in any manner she might see proper, there being no other parties having any interest in such fund: Held, a state of things having arisen not contemplated or provided for by the testator in his will, and the entire interest in the fund having vested in the widow, equity will declare the trust terminated and order the transfer of the fund over to her subject to the payment of all proper charges to the trustees.</p>

<p>EMINENT DOMAIN — INJUNCTION.</p> <p>1. Construction and Maintenance oe a Telegraph or Telephone Line.</p> <p>The construction and maintenance of a telegraph or telephone line upon a highway, is a new. and additional burden upon the fee, to which, when the highway was established, it was not contemplated it should be subjected, and for which the owner is entitled to additional compensation.</p> <p>2. Construction oe Such Line Without First Acquiring the Right so to do, Effect.</p> <p>When such company proceed to and construct such line upon the highway, during the pendency of an action to enjoin them from so doing, against the objection of the owner, and without first acquiring the right so to do by contract with the owner, or otherwise, a court qf equity will order the same removed.</p>

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

<p>CONTRACTS- -INJUNCTION.</p> <p>1. Continuing Breach of a Negative Covenant, Remedy.</p> <p>Where there is a clear and continuing breach of a negative covenant in a contract, and where an injunction against the breach of it will do substantial justice between the parties by obliging the defendant to carry out his contract or lose the benefit of the breach of it, aud the remedy at law is not adequate, or the damages for such a breach are not susceptible of proper assessment by a jury, a court of equity’ may properly restrain the defendant irom such a breach of the contract, though the court might not be able to enforce a complete specific performance of the contract against the other party.</p> <p>2. A Court of Equity May Enjoin Defendant From Continuing the Breach.</p> <p>Where it is admitted or shown that a defendant, on a good consideration, has by contract in writing bound himself to receive from the plaintiff all the gas necessary for the proper illumination of certain premises, for the period of ten years from March 16, 1886, the same to be paid for at a certain price, at the expiration of each mouth, and the amount of gas consumed is not to fall below a certain amount each mouth; aud has further stipulated that he would not during said term, introduce into, or use on said premises oil lamps, electric lights or other material or power, for general illuminating purposes, or any other gas than that supplied by the plaintiff. Aud it is further admitted or shown that the plaintiff has duly kept and performed all of its stipulations in said contract, and is ready, able and willing to continue so to do ; but that the defendant has broken his part of said contract by refusing to receive from plaintiff all the gas necessary for the proper illumination of the premises, but has' introduced therein other lights, whereby the amount of gas consumed has been and will continue to be largely reduced below the amount stipulated to be used, this presents a case where the plaintiff has now no adequate remedy at law — the damages for such a breach of the contract (the same not having been wholly abandoned), not being susceptible Of proper assessment by a jury in a single action; but would require successive actions, or a delay until the end of the term, and a court of equity may enjoin the defendant from such a breach of it, to prevent a multiplicity of actions.</p>

<p>HOMICIDE — CHARGE OF COURT.</p> <p>1. Duty of Court in Charging the Jury, Where the Death was Entirety Accidental.</p> <p>Where a person is indicted for murder in the first degree, and on the trial there is evidence tending to show that the deceased came to his death from the discharge of a pistol at the time in the hands of the defendant, but which pistol was not intentionally pointed or aimed at the deceased by the defendant, or voluntarily discharged by him,</p> <p>' but that these facts were entirely accidental, and without fault on the part of the defendant, and while he was not in the commission of an unlawful act, it is the duty of court, on the request of the defendant, to charge the jury that if such a state of the case was shown, that he cannot be found guilty of any offense under said indictment.</p> <p>2. Construction of Sec. 6822, Rev. Stat.</p> <p>Where on a trial for homicide the evidence shows that the person killed came to his death by means of a shot discharged from a pistol, intentionally, but without malice, pointed or aimed by the defendant at or towards him, he may properly be convicted of manslaughter, the slayer at the time having been in the commission of an unlawful act. Sec. 6822, Rev. Stat., was not intended to cover a case of this kind, but one where the maiming or injury does not produce death.</p>

On the night of the 29th day of January, 1881, Hiram H. Seever was run over and mangled by a train of cars near the B. & O. railroad depot in the city of Tiffin. In his wounded condition he was found lying on the railroad' track, and was at once carried into the depot, where a number of persons — all strangers to him — surrounded him. A physician was then called, who, after making an examination of his wounds, said to Seever: “Your time is short.

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

<p>On appear from the Court of Common Pleas of Darke county.</p>

In the court of common pleas the plaintiff in error sought to recover against James Wilcox and J. F. Sink, personally, upon the following instrument, and as indorsee thereof : “November 26, 1884. “ Nine months after date we, the Board of Education of German township, Darke county, Ohio, promise to pay to the order of G. W. Eakle, three hundred and eighty-five dollars, without interest, value received. “ James Wilcox, President of Board. “J. F. Sink, Clerk.” Endorsed:…

<p>JUDICIAL SALES.</p> <p>1. Reversal oe Sale Made and Confirmed Pendente Lite.</p> <p>Where a sale of telegraph lines is made and confirmed pe7idente lite, leaving undetermined the liens of parties claiming them, such parties may bring suit in error to reverse such sale.</p> <p>2. Sales of Real Estate to be Conducted as- Upon Executions at Law, When.</p> <p>In Ohio sales of real estate under decrees either final or interlocutory are to be conducted as upon execution at law.</p> <p>3. Orders of Sale Issued Under Decrees Either Final or Interlocutory.</p> <p>Orders of sale issued on such decrees are executions under secs. 5372 and 5373, Rev. Stat.</p> <p>4. Extension of Order of Sale Beyond Sixty Days is Erroneous,</p> <p>Under sec. 5418, Rev. Stat., such orders of sale should be returned in sixty days, and it is en-or for the court under authority of which it is issued, without any return thereof to order the same writ to be extended; and a sale made on such extended writ after the expiration of the sixty days should be set aside.</p> <p>5. A Reviewing Court May Set Aside-Such Sale and Confirmation.</p> <p>If such sale is confirmed, a reviewing court may set aside such sale and confirmation.</p>

<p>CHATTEL MORTGAGE.</p> <p>1. Failure to Reeile a Chattel Mortgage as Required by Law.</p> <p>Where H. executed to W. a chattel mortgage which was duly filed, but was not refiled as. required by law, and after the expiration of the time for re-filing H. dies, having always been in possession of the mortgaged property, which is then appraised and sold by the administrator of his estate; and the whole amount of the assets is not sufficient to pay the debts of said intestate owing at the time of his death, the funeral expenses, and those of his last sickness, the costs of administration and the allowance to the widow for her year’s support, such estate is an insolvent one, and the holders of all such claims are creditors thereof; and such mortgage not having been refiled is-void as to them.</p> <p>2. Right oe Mortgagee Where the Administrator oe the Mortgagor Takes Possession of the Property and Sells it.</p> <p>Where such property is taken possession of by the administrator and sold by him, the mortgagee, even if he had a valid lien thereon, is not authorized to maintain in the court of common pleas, an action against the administrator and the purchaser of the property to foreclose said mortgage. Under such circumstances he must assert his. lien against the fund arising from the sale by the administrator in the probate court-</p>

<p>PLEADING — ACCOUNT.</p> <p>1. Petition for Goods Sold an Unincorporated Association.</p> <p>A petition which states that there is due to the plaintiff from an unincorporated association a certain sum, on an account for articles furnished to said association, as shown by an account attached to the petition,'and that the defendant was a member of said association when the debt was contracted, and kuew of and consented thereto, states a good cause of action against said defendant.</p> <p>2. Joint Liability of Members of an Unincorporated Association.</p> <p>When a debt is contracted by such an association with the knowledge and consent of all or a part of the members, so as to make those consenting liable therefor, if it is sought to recover the amount due from the members of such association who consented thereto, the liability being joint, all who are thus liable must be joined as defendants. If this is not done, a plea in abatement setting up that others (naming them), members of said association, at the time the debt was incurred, and who also consented to the incurring of the debt, were alive and within the jurisdiction of the court, and were so-when the action was commenced, is a good plea, and a demurrer to it should be overruled.</p>

<p>SPECIFIC PERFORMANCE.</p> <p>1. Action for the Specific Performance of a Contract for the Sale of Real Estate.</p> <p>In an action for the specific performance of a duly executed contract for the sale oí real estate, the defendant connot avail himself of the defense that his title to the land is contested by a suit, instituted after the contract was entered into, asking to have the conveyance to the defendant set aside as having been made to defraud the creditor of his grantor. Such suit having been commenced long after the contract for the sale of the land was entered into and placed on record, the purchaser having no actual or constructive notice of the alleged fraud, he was an innocent purchaser for value, and will take the title free from any claim of the parties to such suit.</p> <p>•2. Presumption Arising Where the Contract is Silent as to the Kind of Deed.</p> <p>Under a general agreement for the sale of land, the contract being silent as to the kind of deed it will be presumed that the intention was to sell the entire property, free of all claims, by a good and sufficient deed, which would be a deed of general warranty.</p> <p>■3. Refusal of the Seller’s Wife to Release Dower, the Buyer not Knowing the Seller was Married.</p> <p>Where in such an action it appears that the seller is a married man, of which the purchaser was not aware, and that the seller is unable to convey with release of dower, his wife refusing to sign the deed, the purchaser is entitled to protection against the contingent right of dower of the seller’s wife; and the manner in which such protection should be extended to the purchaser, is by requiring the purchaser to execute a mortgage to the seller, for whatever amount of the purchase-money the court shall deem right, to protect him against the contingent dower of the seller’s wife.</p>

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

<p>EXECUTORS — PLEADINGS—PARTIES.</p> <p>1. Contract by an Executor eor the Sate or the Testator’s Reat Estate.</p> <p>Where a testator, in his life-time, had entered into a contract for the sale of certain real estate, and in his will empowers his executor to sell the same and give deeds, etc., the executor under such power to sell can not enter into an agreement with the purchaser in the contract, to sell the laud for less than one-third the purchase-price previously agreed upon by his testator, and the estate will not be bound by such a contract of the executor, though such executor might in a proper action be made personally to respond to the party aggrieved in damages. But upon the tender of the balance of the purchase money, due upon the testator’s contract of sale, the purchaser is entitled to a deed from the executor.</p> <p>2. Failure oe Plaintiff to make out his Case, Effect.</p> <p>If plaintiff in an action for specific performance, in which it is sought to compel an executor to carry out the testator’s contract to convey certain real estate, fails to make out his case, his petition must, therefore, be dismissed and with it must also fall all the answers and cross petitions of the deiendants.</p> <p>3. Lienholders in such Case were only Proper Parties.</p> <p>The lienholders in such action were only proper parties in order to give plaintiff a good title, provided he makes out his case; but when he failed they ceased to have an independent standing in court.</p>

<p>Arpead from the Darke County Common Pleas.</p>

<p>Error to Court of Common Pleas of Meigs county.</p>

<p>CHATTEL MORTGAGE.</p> <p>1. Statement in Re-filing Chattel Mortgage.</p> <p>The statement exhibiting the interest claimed by the mortgagee in a chattel mortgage given for money loaned, on the property, at the time of re-filing the same, under sec 4155, must state the amount of the claim in dollars and cents; and a statement giving the amount of the claim in -(blank) dollars and-cents, is not sufficient to maintain the validity of the mortgage against the creditors of the mortgagor, or against subsequent purchasers and mortgagees in good faith.</p> <p>2. Re-filing Chattel Mortgage after General Assignment made by Mortgagor</p> <p>A mortgagee in a chattel mortgage is not required to re-file his mortgage within the thirty days next preceding the expiration of the year of filing the same, where the mortgagor has made a general assignment for the benefit of his creditors before the year expires, and the property mortgaged has passed from the possession of the mortgagor to the assignee. For in that case the rights of all the parties have become fixed by the assignment, and the mortgagee will have to look no longer to the specific property mortgaged, but to the fund arising from its sale by the assignee under order of the probate court; and the re-filing of the mortgage on property, which is no longer in the possession of the mortgagor, and which may have been already sold by the assignee free of the lien of the mortgage, would be a vain thing.</p>

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

<p>LIEN — CUSTOM—ASSIGNMENT BY CREDITORS.</p> <p>1. Lien of Bailee upon Property Delivered to him upon which he Performed some Work for the Owner.</p> <p>Where a person from the nature of his occupation, receives, and is at trouble and expense about the personal property of another, he has a lien upon, and may retain it until his contract price, or his reasonable charges therefore are paid — but when an article or instrument is delivered by the owner thereof to another person, with which the latter is to, and does perform work for the owner, this does not give to the person so doing work therewith, a lien on the instrument itself.</p> <p>2. To Make a Local Custom, it must Appear that it was Long Continued.</p> <p>To make a local custom good, it must appear that it was long icontinued, without interruption, acquiesced in, reasonable, certain, compulsory and known to the parties to be affected thereby.</p> <p>3. Where the Bailee Surrenders the Property without any Reservation, he loses his Lien.</p> <p>If a person who otherwise would be entitled to a lien on articles in his possession, on which labor has been done by him for the owner, voluntarily surrenders the possession thereof, without any reservation on his part, he thereby loses his lien thereon. And if a person having such a Jien, should take a security for the amount due him for labor or expen-e on such property, payable at a future time, he thereby loses his right to retain such property therefor.</p> <p>4. Remedy .of a Creditor of an Insolvent' Debtor, whose Claim has been Rejected by the Assignee.</p> <p>Section 6352, Rev. Stat., authorizes and requires a creditor of an insolvent debtor who has presented his claim to the assignee of such debtor, who has rejected the same to bring an action against the assignee within thirty days thereafter, to have the judgment of the court that the assignee should allow the same in the settlement of his trust. If the assignee .allows the same as a vajid claim against the estate of the debtor, but refuses to allow the same as preferred claim against a certain fund in his hands, will an action lie in the court of common pleas, to compel the assignee to allow it as a preferred claim against such fund? Queere. — If so, the court should only render such judgment when all the parties in interest are before the court. If it appears that the ' debtor, before his assignment, had executed to other persons not parties to the action, chattel mortgages on the property from which the fund arose, and who were claiming under the same, the court should not make any such order. And it would seem that the court, having jurisdiction as to the distribution of the fund, was the proper tribunal to settle the conflicting rights of the parties to such fund.</p>

<p>WILLS — APPEALS.</p> <p>1. Appeal From Probate Court of Refusal to admit Authenticated Copy of Foreign Will.</p> <p>In a proceeding in a probate court of this state, under sec. 5937, Rev. Stat., to admit to record in said court an authenticated copy of a will, alleged to have been executed and proved in another state according to the laws of such state, an appeal does not lie to the court of common pleas from a judgment or order of the probate court, refusing to admit the same to record.</p> <p>2. Errors in Probate Court not Sufficient for Reversal.</p> <p>Though such a proceeding is ex parte in its character, the judgment so entered will not on proceedings in error be reversed for the sole reason that the probate court allowed persons, asserting an interest in land alleged to be divised by said will, to become parties to the proceeding and offer evidence tending to show that said will had not been proved according to the laws of the state where it was admittedto record.</p> <p>3. Record Showing Proof of Foreign Will in a. Sister State Cannot be Impeached Collaterally.</p> <p>If the authenticated copy of the record so produced shows that the will was executed and proved according to the laws of such sister state, other evidence to contradict the facts so shown by it ought not to be admitted. Such record should not be impeached collaterally, but should have the same effect when offered in evidence here, that it has in the state where made.</p> <p>4. When Record will be held Sufficient to Show that a Will had been ProBATED.</p> <p>If such authenticated record shows that such will was duly recorded by the tribunal having jurisdiction of such matters in the proper record of probated wills, and where it should not be found, unless probated, and the statute of such state does not require the^entry of a judgment that it was admitted to probate, but only that it be recorded, in view of the presumption of the law that courts and public officers have properly discharged their duties, unless the contrary appears, and as there would be" no reason or propriety in recording the same where proof of the will had not been made, such record in the absence of other evidence, would be sufficient to show that it had been probated.</p> <p>5. Evidence of Facts to show that the Will was Admitted to Probate on the Testimony set out in the Record.</p> <p>Where such authenticated record shows that at the time of the original production of the will for probate, the evidence of one of the witnesses to such will as to its execution was taken by the register and with such will recorded in the will record, and the other evidence offered tended to show that the practice of registers, and of this register particularly, before aud after the time this will was offered for probate, was to record with the wi 1, if proved, all of the evidence upon which it was done, and there was nothing tending to contradict this, such evidence shows that the will was admitted to probate on the testimony set out in the record.</p> <p>6. Foreign Will, not Provable under the Laws of a Sister State, Cannot be Admitted here.</p> <p>Where the evidence produced shows that under the laws of such state a will could not then be legally proved by the evidence of a single witness, and that if a record showing such a state of fact was produced in evidence in the courts of such state, in a collateral proceeding, it would not be conclusive, or perhaps prima facte evidence of a valid probate, and to pass title to real estate, it is not entitled to greater credit in the courts of this state, and the probate court on such evidence might properly find that such will had not been proved according to the laws of such state.</p> <p>7. Evidence not Produced at triad below is not Admissible on Error.</p> <p>Where in a proceeding in the courts of this state, the statute or common law of a sister state is to be ascertained as a matter ot fact, the trial court, or a court reviewing its proceedings on error, cannot take judicial knowledge thereof, but the same must be proved by competent evidence like any other fact material to the case. And this court in reviewing the judgment of the probate court on the evidence, cannot consider a statute of such state, or a decision of the court thereof construing the same, unless evidence thereof was offered in the trial court, and made part of the record by the bill of exceptions,</p> <p>8. Evidence Showing- that there was Land Devised in the County in which the Will is Sought to be Probated.</p> <p>It was not essential in this case that the applicants in the probate court should there have offered evidence showing that there was land in this county devised by the will'. The defendants in error on their own motion were admitted as parties on their claim that they had an interest in land devised thereby, and the whole controversy proceeded on that idea. And the fact that no such evidence was offered in the probate court, would not, under the circumstances, have justified that court m refusing, on that ground alone, to admit the will to record.</p>

<p>CONTRACTS.</p> <p>Bohemian Oats Contracts are Void.</p> <p>U. sold to S. fifteen bushels of “Bohemian oats” at ten dollars per bushel, and as part of the contract U. agreed that thirty bushels of “Bohemian oats” should be sold for S. the next year, at ten dollars per bushel, both parties knowing that said oats were not worth more than fifty cents per bushel. Held: (1.) Such contract is fraudulent, immoral and void : (2.) The law will leave the parties to such a contract where it finds them.</p>

<p>Terror to the Court of Common Pleas of Sandusky county.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>1. The Board of Police Commissioners of Cincinnati are not Officers of the Municipal Corporation.</p> <p>The board of police commissioners of the city of Cincinnati, appointed by the governor of Ohio under the “Act to establish an efficient and non-partisan police in cities of the first grade of the first class, passed March 30,1886,” are not officers of the municipal corporation, but a body appointed by the governor, by the authority of the legislature, as an arm of the state for police purposes, and such as have a delegated quasi sovereigntyindependent of control by the city, except as limited by the act creating the board.</p> <p>2. No Attorney Designated to Represent the Police Commissioners.</p> <p>Neither the city solicitor of Cincinnati, nor the solicitor of Hamilton county, is designated as their attorney.</p> <p>3. Fund set Apart for the Maintenance of the Police Force.</p> <p>The fund set apart for the maintenance of the police force, is not a city fund, but is the police fund of the state for the territory of Cincinnati.</p> <p>4. Employment of Counsel by the Board.</p> <p>The board may employ and pay out of said fund such counsel as they select, whenever it becomes necessary to secure or preserve the fund entrusted to their control.</p>

The original action was brought by Simpson to recover of the plaintiffs in error the sum of two hundred dollars and interest, alleged to be due upon a promissory note, executed March 31, 1885, by the latter in favor of M. H. Buckley, and by him transferred by delivery, before maturity, to Simpson.

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

<p>DEVISE — PLEADING.</p> <p>1. Construction of a Will in which the Testator gives all his Property to his Widow.</p> <p>A testator, by his will, gave to his widow all of his estate, real and personal, after the payment of his debts; but then provided that she was not to divide, or allow his real estate to be divided, until his youngest child reached the age of twenty-five years. If all of his children (daughters) were theu happily married, his widow, if then living, might sell a certain parcel of the real estate, and divide the proceeds equally among them, and keep the balance -during her life-time for herself; with other provisions authorizing her, in her discretion, to keep all of the real estate together during her life-time. In an action brought by the minor children of a deceased daughter of the testator, before the youngest child of the testator had reached twenty-five years, and against the widow, and to which action the other heirs at law of testator, and the devisees and legatees under his will, were parties, alleging that the widow had never elected to take under the will, and that, contrary to her rights under the will, (or by law, if she had not elected to take under the same), was appropriating to her own use, the whole of the personal estate, after the payment of the debts, and the rents of all the real estate ; and praying that as to said personal property and rents, the court hold and decree that she hold the same as trustee of the children of the testator. Held: 1st, That by the terms of said will, the said widow took the personal estate absolutely.</p> <p>2. Rights of Widow under such Will.</p> <p>That until the youngest child of the testator, arrives at the age of twenty-five years, and until the said real estate, which she was then allowed to sell, was or should be sold, the widow was entitled to the rents and income of the whole of the real estate of the testator, for her own use.</p> <p>3. Election of Widow.</p> <p>The petition not setting out facts which show that the widow, after being duly cited for that purpose, had failed to elect to take the provisions made for her by the will, and was thetefore improperly converting any part of said estate o her own use, or that, if she took under said will, she was dealing otherwise with said estate than she was authorized by the will to do, it does not, in connection with other averments thereof, herein-before mentioned, state a good cause of action against said widow, or any of the defendants, and a demurrer thereto was properly sustained.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Contract Between a Municipal Corporation and an Attorney at Law for Professional Services.</p> <p>When a contract is entered into between the council of a village of this state, and an attorney at law, by the terms of which the latter was to render his professional services to the village in all prosecutions commenced before the mayor thereof, of persons who might be charged with the violation of a “ Sunday ordinance,” passed by the council of said village; he to receive therefor from such village the reasonable value of said services, and at the time of the making of such contract, the clerk of said village did not first or ever certify that the money required for said contract was in the treasury of said village, to the credit of the fund from which it was to be drawn, and not appropriated for any other purpose, and there was in fact no money in the treasury for such purpose unappropriated at the making oí said contract, the contract under the terms of sec. 2702 Rev. Stat. is absolutely void, and no recovery can be had for the value of any services rendered under the same. And the fact that the amount contracted to be paid therefor was wholly uncertain, and could not be definitely ascertained at the making of the contract, or that the services were to be rendered for the preservation of peace and good order in the village, did not take it out of the provision of said section.</p>

Suit was brought in the court below by Adam Lutz and Wm. McCarty, partners doing business under the firm-name Lutz & McCarty, against John G. Mitchell, Harford Toland and George D. Chapman, partners, etc., as Mitchell, Toland & Co., to recover the sum of $162.71, and interest, alleged in the amended petition to be due them upon a promissory note executed by said firm of Mitchell, Toland & Co Said Mitchell and Toland filed an answer denying that “ they, with their co-partner,…

<p>Error to the Court of Common Pleas of Stark county.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

The petition in this case alleges, in substance, that plaintiff is the daughter of Mary Jane Marsham, deceased, late of the city of Galion, Ohio; that her mother at her death owned a residence in Galion, and a farm of 140 acres in Morrow county, Ohio ; that when her mother was married to Marsham, plaintiff was young, and made her home with her mother and step-father until November, 1872, when the latter took an aversion to her and her suitor, who is now her husband, and…

This was an action in the court below, by the defendant in error against the plaintiff in error, praying for a writ of mandamus to compel him to pay to defendant in error the sum of $71.00 out of the tuition funds in his hands belonging to Staunton township.

This is a petition in error to reverse the judgment of the court of common pleas, affirming a judgment rendered by the probate court on appeal from an order made by the trustees of Jackson township, for deepening, widening and extending ditch No. 27, on the petition of J. H. Batdorf.

The original proceeding was a petition filed in the probate court by the assignee, to sel the real estate of the assignor, and to adjust the liens thereon. No question was made upon any liens, except that of the defendant, Salathiel Betz, and which arose upon the following statement of facts : On December 1, 1885, the assignor, Jas.

<p>On appeal from the Common Pleas Court of Champaign county.</p>

<p>PLEADING — NEGLIGENCE,</p> <p>1. Petition in an Action Against a Railroad eor an Alleged Injury.</p> <p>In an action against a railroad company to recover damages for an alleged injury, the petition should state facts sufficient to show that the negligence complained of as the cause of the injury was the negligence of the company.</p> <p>2. Negligence Towards Escort oe a Passenger.</p> <p>Where the petition states that the plaintiff assisted his wife to enter a train of cars and then attempted to alight therefrom while the train was in motion, and while so attempting to alight, a servant of the company, whose duty it was to aid passengers to enter the cars, ran against plaintiff and negligently threw him upon the station platform and under the train, without fault on the part of the plaintiff — in the absence of any averment showing that the servant at the time he ran against the plaintiff was acting within the scope of his employment: Held, the petition does not state facts sufficient to constitute a cause of action.</p>

<p>Mandamus. Reserved to Lucas county.</p>

<p>OPINION OF THE COURT ON MOTION FOR STAY. —</p> <p>Error to the Court of Common Pleas of Butler county.</p>

At the February term, 1887, of the common pleas, the defendant in error, as administrator of Elijah Bloomer, deceased, obtained a verdict against the plaintiffs in error. A motion for a new trial upon the ground that the verdict was against the weight of the evidence, and for errors of law occurring at the trial, was made, but not heard until the following (June) term.

In their amended petition the plaintiffs allege that on the 4th day of May, 1886, they executed to the defendant, Creager, their mortgage deed for 120 acres, situated in Greene county, and described in the petition, to secure a note for $6,133.05, executed by them to Creager upon the same day, and payable in one year with eight per cent, interest; that as husband and wife they owned said real estate until March 26, 1886, when they sold and conveyed the same to the defendant…

<p>Appeal from the Court of Common Pleas of Defiance county.</p> <p>Heard upon a demurrer to the petition. Facts sufficiently stated in the opinion.</p>

This action was brought to f oréele se a mortgage given by defendant Webb in 1881, to ‘his co-defendant, Wheeler, and assigned by Wheeler to the plaintiff. No issue was taken on the averments of the petition. Webb, the mortgagor, answered, setting up; 1. That his co-defendant, Wheeler, in 1874, sold him the mortgaged premises, and that the mortgage was executed by him to Wheeler to secure the balance of the purchase money unpaid at the date of the mortgage.

<p>SCHOOLS — STATUTES.</p> <p>1. Separate Schools for Colored Children.</p> <p>Since the passage of the act of February 22, 1887 (84 O. L., 34), repeating sec. 4008 Rev. Stat., a board of education of this state, no longer has the right to organize separate schools for colored children, and legally require such children who are entitled to the benefits of the public schools of a district, and who desire to avail themselves of such right, to do so, only in a school, organized, maintained or set apart by such board, solely for the education of the colored children of such district.</p> <p>2. Authority Conferred upon Boards of Education by Sections 4008 and 4013.</p> <p>Said sec. 4008, while in force, did expressly confer such power upon boards of e'’uca- . tion, and sec. 4013, was not intended to, and did not at the time of its enactment give the same authority. And the repeal of sec. 4008 did not so operate, as to give to sec. 4J13, any different meaning or effect than it had before such repeal.</p> <p>3. Repeal of Section 4008, Revised Statutes.</p> <p>The fact that prior to the repeal of sec. 4008, a board of education had, under its provisions, established a separate school for colored children, does not authorize it to continue the same after such repeal, and to require the colored children, against their will, to attend the same, and unless they do, to be deprived of the benefit of the public schools of the district. The legislature as to the conduct and management of the public schools, and the powers of the board of education is supreme. The law repealing sec. 4008, was not one affecting vested rights, or in any way impairing the obligation of contracts.</p>

Error, to the Court of Common Pleas of Pickaway county. The original action was brought by the Richmond City Mill Works against W. E. Harriman, the plaintiff in error, David Tarbill, and Joseph H. Porter, defendants, containing two causes of action, each declaring upon a promissory note, one dated October 1, 1884, at nine months, and one.dated January 2, 1885, at nine months, and each in the sum of $1,358.73, and signed by the defendants.

<p>APPEAL BONDS.</p> <p>1. Upon Substitution of Circuit for District Court.</p> <p>Section 454 d Rev. Stat., requiring a new bond within thirty days upon the circuit court being_ substituted for district courts, is within the power of the legislature, under the constitutional amendment by which the circuit court was organized, to enact.</p> <p>2. May be Aeeowed After 30 Days.</p> <p>The word “may” as used in said section will not he construed “must” and the court may allow the bond after thirty days.</p>

<p>APPEAL BOND.</p> <p>Upon Substitution of Circuit for District Court.</p> <p>The word “may” as used in sec. 5227 Rev. Stat., relative to bond upon substitution of circuit for district courts, does not confer upon the court discretion to allow the bond to be given after the expiration of thirty clays.</p>