Volume 12 — Ohio State Reports, New Series

The petition'stated that the defendants appeared before the court of common pleas of Licking county, and entered into a recognizance before said court as follows : “ The State of Ohio v. John W. Lawrence.

Civil Action. Reserved in the district court of Erie county.

<p>Error to the superior court of Franklin county.</p> <p>In the court belGW, Enos Hopkins, as. administrator of Ab:-ner H. Pinney, deceased, filed a petition to annul an'd vacate a ■mortgage executed and delivered July 7, 1857, by Pinney, ■the decedent, and Anna C. Pinney, his wife, who is still living, to John L. Gill, the plaintiff in error, on certain real estate in Franklin county.</p> <p>The petition claims the relief sought upon two grounds :</p> <p>1. That the mortgage was not filed for record until after •the death of Pinney; “that on said 7th day of July, 1857, the said Pinney executed and delivered to said Gill a certain written instrument, purporting to be a mortgage upon a larg*quantity of real estate (a copy of which is hereto annexed and made a part of this petition), but was not to be recorded, unless the said Gill should consider it necessary in order to save himself from loss. That said Pinney died at six o’clock, or thereabouts, in the morning of the 21st day of October, 1857, and that said Gill, thereupon, at two o’clock in the afternoon of the same day, and after the death of said Pinney, and after said Gill had been informed of his death, filed said supposed mortgage for record in the recorder’s office of said Franklin county.”</p> <p>2. That the mortgage is void by reason of the uncertainty and vagueness of the condition. The condition is as follows:</p> <p>“ Provided, however, and these presents are upon this express condition, that, whereas the said Abner H. Pinney has this day executed and delivered to the said John L. Gill, his certain penal bond, which is in substance as follows; ‘Know all men by these presents, that I, Abner IT.’Pinney, of the county of Franklin, and State of Ohio, am held and firmly bound unto John L. Gill, of said Franklin county, in the penal sum of thirty thousand dollars, to the payment of which well and truly to be made, I do hereby bind myself, my heirs, executors, and administrators. Sealed with my seal, and dated this 7th day of July, A. D. 1857. The condition of the above obligation is such, that whereas the said John L. Gill has heretofore become liable and is now liable as surety for said Abner H. Pinney upon a large amount'of notes and bills, either as joint drawer with said Pinney of said notes or as accommodation indorser of said bills or otherwise, which notes and bills have been negotiated and used by said Abner H. Pinney for his own benefit; and whereas, at the request of the said Abner IT. Pinney, the said John L. Gill is about to become hereafter surety in like manner for said Abner H. Pinney, upon a large amount of bills and notes, to be negotiated and used by the said Abner H. Pinney for his own benefit. Now if the said Abner IT. Pinney shall well and truly pay all such notes and bills on which the said John L. Gill is now liable as aforesaid, or on which he shall hereafter become liable as surety for the said Abner H. Pinney as aforesaid,when and as they shall respectively become due, and shall indemnify the said John L. Gill against and save him harmless from all loss and damage by reason of his having heretofore become, and of his hereafter becoming liable on said bills or notes respectively as aforesaid, and from all loss and damage arising from the said John L. Gill having heretofore become surety for the said Abner H. Pinney upon any bills or notes or in any manner whatsoever, then these presents to be void, otherwise, in full force. (Signed) A. H. Pinney [Seal].’ Now if the said Abner H. Pinney shall well and truly pay all said notes and bills mentioned in the condition of said bond when and as they shall respectively become due, and shall indemnify the said John. L. Gill against and save him harmless from all loss and damage by reason of his having heretofore become, and of his hereafter becoming liable on any bills or notes as specified in the condition of said penal bond, and from all loss and damage arising from said John L. Gill having heretofore become, or hereafter becoming surety, for the said Abner H. Pinney, upon any bills or notes, or in any manner whatsoever; and if the said Abner H. Pinney shall well and truly do and perform all things by him stipulated to be done and performed in and by the said penal bond so by him executed, then these presents; shall be void; otherwise, in full force.”</p> <p>The petition sets forth “ that at the time of the death of said Pinney, and the filing of said supposed mortgage for record, the said Gnll was liable as surety and indorser for said Pinney on certain debts, as follows: Debts in existence at the time of the execution and delivery of said supposed mortgage, the evidence of which had not been changed by renewal or otherwise; debts in existence at the time of the execution and delivery of said supposed mortgage, but the evidence of which had been changed by renewal or otherwise; new debts created after the execution and delivery of said supposed mortgage.”</p> <p>Gill demurred to the petition. His demurrer was over ruled and he excepted. Judgment was thereupon given against him in accordance with the prayer of the petition, and lie again excepted, and filed a petition in error in this court to reverse that judgment.</p>

Civil action. Reserved in the district court of Clermont county. The plaintiffs filed their petition, February 3, 1855, in the court of common pleas of Clermont county, setting forth that they are the heirs of Zaccheus Biggs, who died intestate, September 8, 1826.

The defendant in error, filed a petition in the court of common pleas of Brown county, to recover the amount due upon a forfeited recognizance, acknowledged by Alfred Squires, Roily B. Calvin, Henry Thomas and John B. Stump, in open court, and conditioned for the appearance of the said Alfred Squires, to answer to two indictments for horse-stealing, pending against him in said court of common pleas. .It appears from the averments of the petition, that on November 14, 1854,…

Reserved in the district court of Richland county. The action was brought to charge the defendants with individual liability, as stockholders, upon certain notes of the Bank of Wooster, held by the plaintiff. The liability is alleged to have been imposed by statute. A statement of the legislation necessary to be considered.in determining the question of' such liability, is as follows : The Bank of Wooster was incorporated February 14,1834. 32 Local Laws, 76.

In his petition, filed in the court of common pleas of Wood county, Baird, “ the plaintiff, says that the defendant, on the 11th day of… Held: for that reason, l£ that the defendant in removing the fence was not a trespasser.” The court ruled also, “that it was not necessary that the fence should, in fact, be an obstruction, but that, if the supervisor had reasonable grounds so to regard it, he had the right to remove the fence, doing the plaintiff no unnecessary damage.”…

The original action, in this case, was brought in the court of common pleas of Greene county by the plaintiff in error, to recover damages for injuries received by him from falling through a bridge built by defendant in error, on its road, across a small stream, near its depot, at Xenia; and which bridge being a footway for passengers, was, by the negligence of the defendant, left open and uncovered.

<p>Error, to the district court of Noble county.</p> <p>On the 27th of June, 1855, Burnham Morgaridge filed his petition in the court of common pleas of Noble county, in an action against Joseph C. Tilton, Josiah B. Parry, Dennis S. Gibbs and Alfred B. Clark, charging that they, intending to injure him, the plaintiff, on the 21st of April, 1855, had, maliciously and without reasonable cause, filed their written complaint, under the oath of said Parry, before Joseph L. Clark, a justice of the peace in and for said county, charging him, the plaintiff, and Frederick and Purley Morgaridge, with having on the 12th of April, 1855, at said county, and within the southern district of Ohio, while acting as carriers of the mail, etc., unlawfully secreted, embezzled and destroyed certain letters with which they were then and there entrusted in said mail, etc., and, by reason of said complaint so falsely, causelessly and maliciously made, having procured the said Joseph L. Clark, justice as aforesaid, to make and grant his certain warrant, under his hand and seal, for taking said plaintiff, and Frederick and Purley forthwith before John Doe or any commissioner at the city of Cincinnati, in said state, to answer said complaint, and to be further dealt with according to law; and that without any reasonable cause, etc., they caused the plaintiff to be arrested and taken by the marshal, etc., to and before John L. Pendery, a United States’ commissioner, etc., at Cincinnati; and before and by whom the plaintiff was. on the 25th April, 1855, adjudged not guilty of the supposed offense so charged in said complaint, and was then and there fully acquitted and discharged. By means whereof the plaintiff says he is greatly injured in credit, reputation, etc., and asks for damages.</p> <p>A summons was issued and served; and the defendants Parry, Gibbs, Clark and Tilton made answer to the petition, that each and every allegation mentioned (therein) is untrue.</p> <p>The cause was continued from term to term at the instance of the plaintiff, until the June term, 1858, when the journal shows that “the same parties, by their attorneys, and all of said parties in open court waived a trial by jury, and submitted the cause to the court; and thereupon this cause came on to be heard upon the petition of said plaintiff and the answer of Dennis S. Gibbs, one of the defendants in this case, setting up, as a ground of defense, a release to him, executed by Burnham Morgaridge of all actions or causes of action in regard to the subject matter of this suit, and the replication of the said plaintiff thereto ; and after hearing the evidence and arguments of counsel, the court being fully advised in the premises, does find that all the material allegations set forth in the answer of said Dennis S. Gibbs, so far as inconsistent with the facts set forth in the replication of said plaintiff, are untrue; whereupon said plaintiff by his said attorneys in open court dismissed this action as to defendant D. S. Gibbs; and on motion to the court defendants have leave to answer herein, instanter, which is accordingly done. And thereupon this cause came on further to be heard, and a jury came, to-wit,” etc., and rendered a verdict for the plaintiff for eleven hundred dollars, upon-which judgment was entered.</p> <p>The defendants took a second trial under the statute, and the cause was continued from the June to the October term, 1858, and then again to the March term, 1859, when it again came on for trial.</p> <p>Before the jury were impanneled and sworn, the defendant, A. B. Clark, “ asked leave to answer, setting forth the fact that since the commencement of the above cause, D. S. Gibbs, one of the original defendants,. had entered into a contract with said Burnham Morgaridge, whereby the said Gibbs agreed to pay to said Morgaridge the sum of ten dollars, and that in consideration of said sum of ten dollars the said Burnham Morgaridge was to release and dismiss the above cause as to him the said Gibbs; and that in pursuance of said contract said Gibbs paid to said Morgaridge said sum of ten dollars, and that he, the said Morgaridge, accepted the same, and in consideration, agreed to release said Gibbs from said action.” But the court overruled the motion of Clark, and refused to allow him to file such answer, and he excepted.</p> <p>The plaintiff then introduced a witness to prove a separate and distinct arrest of the plaintiff for the same offense, prior to the arrest complained of; to which proof the defendants objected, but the objection was overruled and the proof admitted ; and the defendants excepted.</p> <p>The plaintiff also offered in evidence the affidavit of the defendant Parry to procure the arrest, and the warrant issued thereon by justice Clark. The defendants objected to the introduction of this proof, but the objection was overruled and the defendants excepted.</p> <p>The jury returned a verdict in favor of the plaintiff for sixteen hundred dollars.</p> <p>The defendants thereupon filed their motion for a new trial, assigning for cause that the verdict was against the law and evidence.</p> <p>This motion was overruled and judgment rendered upon the verdict; to which the defendants excepted.</p> <p>The bill of exceptions sets forth evidence offered upon the trial by the plaintiff, and also evidence offered by the defendants, which is by the court certified to be “ all the evidence introduced by plaintiff for the purpose of proving, or tending to prove, the arrest of plaintiff upon said warrant, issued by said Joseph Clark, justice, and all the proof of defendant tending to disprove the matters charged.” But it is not stated, in the bill of exceptions, that the evidence set forth therein, is all the evidence given on the trial.</p> <p>The case was taken to the district court on error, by the defendants below, to reverse the judgment of the common pleas.</p> <p>The errors assigned were :</p> <p>1. That the facts set forth in the petition are not sufficient in law to maintain the action.</p> <p>2. That the court erred in overruling the motion of Clark for leave to file his answer setting up accord and satisfaction by Gibbs.</p> <p>3. That the court erred in admitting the evidence of the plaintiff to which the defendants objected.</p> <p>4. In overruling the motion for a new trial.</p> <p>The district court affirmed the judgment of the common pleas, and to reverse this judgment of affirmance the present petition in error was filed.</p>

John H. Ralston brought suit in the court of common pleas of Brown county, against Charles Oursler, sheriff of said county, to recover the possession of two bay horses, valued at $800, alleging in his petition that he had the x-ight of property and of present possession in and to said horses, and that defendant unjustly detained the same, and demanded judgment for said property and $50 damages for its detention. .

<p>An ordinance of an incorporated village provided, that persons keeping billiard tables, to be used by others, should be imprisoned for a term not exceeding thirty days: Held, that, although such an ordinance may have been authorized by section 35 of the municipal corporation act, as amended 5th April, 1856, yet, no corresponding change in the powers and jurisdiction of mayors of incorporated v'llages, so as to furnish the means of a trial by jury, having been made, a trial and sentence to imprisonment by the mayor, of a person charged with a violation of the ordinance, are illegal.</p>

Quo Warranto. Error to the district court of Butler county. On the 14th day of February, 1859, James Taylor (the ■defendant in error), Samuel Shaffer and James B. Thomas, constituted the board of directors of the infirmary of Butler county. On that day, this board, in pursuance of section 4, of “ an act to authorize the establishment of poor houses,” (3 Curwen’s Stat. 243), proceeded to appoint a superintendent of the county infirmary.

<p>1. Where a final judgment in a cause has been rendered by the court of common pleas, it is error for the same court to vacate such judgment at a subsequent term, on the motion of one of the parties, without notice to the other party or his attorney.</p> <p>2. Where the record is wholly silent in regard to such notice, and no waiver is shown by an appearance, no presumption of notice can be admitted to prevent the direct impeachment of the order vacating the prior judgment.</p>

<p>The words “foreign corporation,” as used in section 28, of the act of March 14, 1853, entitled “ an act of the jurisdiction and procedure before justices of the peace,” etc., do not include a corporation created by the laws of this state, and located therein.</p>

<p>1. A count in an indictment, which charges the burglarious breaking and entry of a store with intent to steal, and an actual larceny of the goods therein, is not demurrable for duplicity.</p> <p>2. On a general verdict of guilty upon such a count, the accused may be-sentenced. for the burglary, but not for the larceny ; and where the jury return a verdict of “ guilty of the burglary as charged,” the court may sentence the accused for that orime, although the verdict does not respond to the charge ■ of larceny made in the same count.</p> <p>3. If two or more persons confederate together to break open a store in the night season and steal the goods therein, and it is agreed between them, in order to facilitate the burglary and lessen the danger of detection, that one of them shall, on-the night agreed on, entice the owner to a house a mile distant from, the store and detain, him there, while the others break into the store and remove the goods, and the confederates perform their respective parts of the agreement, the person who thus enticed the owner away and detained him, was constructively presera, at the burglary , and may be indicted as a principal offender.</p> <p>4. A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony.</p>

<p>In Error. Reserved in the district court of Mahoning county.</p> <p>The plaintiffs filed a petition in the court of common pleas, vetting forth, that “ there will be due and owing to them from the defendant, Charles Howard, the sum of $2750 for iron ore sold and delivered by plaintiffs to said defendant under a verbal contract to sell and deliver the same to defendant, for which he agreed and promised to pay plaintiffs $2 75 per ton, $2 50 of which price, per ton, was agreed by defendant •to he paid to plaintiffs in pig iron on and after December 1, 1858, at the prices the same would net defendant in the month of November, 1858, after deducting the charges, etc., and twenty-five cents of said price to he paid in cash, as the ore was delivered, which has been done, and which amount is now due, amounting to the sum of $225, $75 of which has been paid, leaving a balance of $150 due as the cash part of said contract, and the sum of $2525, not yet due on said contract until the said first day of December, 1858. The plaintiffs therefore ask judgment for the sum of $2675, which will be due as aforesaid,” etc.</p> <p>Accompanying the petition was an affidavit for the purpose of obtaining an order of attachment, which’stated “ that the claim in the above action is founded upon a verbal contract for the sale and delivery by plaintiffs to defendant of about one thousand tons of iron ore at $2 75 per ton, that the same is a just claim, and that the plaintiffs are entitled to recover thereon the sum of $2675; that the same will become due as follows: $150 now due and the sum of $2625 will be due on the 1st day of December, 1858. Said affiant also says that said defendant has conveyed and disposed of his property, with the fraudulent intent to cheat and defraud his creditors, and to hinder and delay them in the collection of their debts, and has removed his property, or a material part thereof, with the intent and to the effect of cheating and defrauding his creditors, and of hindering and delaying them in the collection of their debts, and that the matters set forth in the petition are true.”</p> <p>Upon this petition and affidavit, a written application was made to a judge, asking for an order of attachment for the sum of $2675, and an attachment was ordered for “amount as prayed for.” The order having been executed by the sheriff on the property of the defendant, subsequently Tod & Eord, who had also obtained an order of attachment, moved the court to be made parties defendant'in the action, and also moved to discharge the attachment. The following grounds were assigned: 1. The allegations contained in said plaintiff’s petition and affidavit are insufficient in law to constitute the grounds of attachment. 2. No sufficient undertaking was executed and approved in the -clerk’s office previous to the issuing said attachment. 8. The order of the court was not sufficient in law .to authorize the issuing of an attachment, the claim being not due.</p> <p>The court ordered that Tod & Ford be made defendants, andón the hearing their motion, decided, that all the grounds, except the first, were not such us could avail Tod & Ford, but as to the first, the attachment would not be sustained for that part of the claim of the plaintiffs stated not to be due.</p> <p>To the order of the court allowing Tod & Ford to be made defendants in the action, and to the order discharging the attachment, the plaintiffs excepted. A petition in error to reverse the judgment was filed in the district court, and was there reserved for decision in this court.</p>

<p>One partner in an action against his copartner, after the dissolution of the firm, to recover a general balance claimed upon an unsettled partnership account between them, may have an order of attachment, as in other cases of civil actions for the recovery of money under section 191 of the code.</p>

<p>Error to tbe court of common pleas and district court of Lorain county.</p> <p>The cases are stated in the opinion of the court.</p>

<p>Error to the superior court of Franklin county.</p> <p>The original action, in the court below, was brought by the defendant in error, against the plaintiffs in error and three other persons, to-wit: J. R. Robinson, John G. Camp and J. Dille, who were all sued as late partners doing business under the firm name of J. R. Robinson & Co. Two causes of actipn were stated in the petition: 1. A promissory note executed and delivered by said firm of J. R. Robinson & Co. to the plaintiff below, for the sum of $2,849 13, dated October 24, 1857, and payable six months after date. 2. An account for goods sold and delivered, of which a copy was attached to the petition, -which shows the items of indebtedness to have accrued in the months of February and March, 1858, and that a balance of $348 was due thereon.'</p> <p>The plaintiffs in error, alone, answered, severally denying that they had been members of, or partners in, the said firm of J. R. Robinson & Co., and denying any indebtedness on account of the alleged causes of action.</p> <p>The issues thus made, were tried by a jury, who returned a general verdict, finding for the plaintiff below, and assessing the damages at $3467 15. By direction of the court, there was a farther and special finding of facts by the jury, by way of response to certain questions propounded to them. These questions, with the answers of the jury thereto, were as follows:</p> <p>1. “Was there, at the time the debt was contracted, such a firm doing business as J. R. Robinson & Co ? ” Answer, “ Yes.”</p> <p>2. “Were Reber and Kutz members of the firm, if it existed?” Answer, “No.”'</p> <p>3. “ If not members of the firm, then, did their acts, declarations, or mode of doing business, induce the plaintiff to believe them to be partners of Robinson & Co ? ” Answer, “Yes.”</p> <p>4. “Was there such a company (either a partnership or corporation), as the Ohio Cannel Oil Oo? If so, when was it organized, and who were its members ? ” Answer, “ There •was such a company organized June 10,1857, with the following members: J. R. Robinson, J. Dille, John Gr. Camp, John Reber, Daniel Kutz.”</p> <p>5. £i Was there such a change in their mode of doing business, as successors of J. R. Robinson & Co., as gave notice of the change?” Answer, “No.”</p> <p>The plaintiffs in error moved the court to set aside this verdict, and order a new trial for reasons on file, which are not stated in the record; which motion the court overruled, and entered judgment in favor of the plaintiff below, for the amount found-by the jury in the general verdict.</p> <p>To this action of the court the plaintiffs in error excepted, and thereupon gave notice of their demand for a second trial of the cause, and moved the court to fix the amount of the undertaking to be.entered into by them, in that behalf, according to the provisions of the statute. This motion was overruled by the court, and the plaintiff in error again excepted.</p> <p>The same parties then gave notice of their intention to appeal from the judgment of the court upon said motion for a second trial, and moved the court to fix the amount of their appeal bond, which the court refused to do, and they again excepted.</p> <p>. The plaintiffs in error now ask the reversal of the judgment of said superior court, because they say, the court erred:</p> <p>1. In refusing to set aside the verdict of the jury and award a new trial.</p> <p>2. In not entering judgment in favor of the plaintiffs in error, upon the special finding of the jury upon the issue joined between the parties.</p> <p>3. In giving judgment in favor of the defendant in error, upon the special and distinct finding of the jury, that the plaintiffs in error were not partners of J. R. Robinson & Co.</p> <p>4. In overruling their demand for a second trial under the provisions of the statute, and refusing to fix the amount of the undertaking in that behalf.</p> <p>5. In refusing to fix the amount of the appeal bond, under their notice of intention to appeal.</p>

The plaintiff Dehn commenced Ms action in the court of common pleas of Stark county, against Joseph -Heckman, as principal, and Hiram B. Wellman and Kent Jarvis, as his sureties, upon the official bond of said Heckman as justice of the peace, to recover damages for alleged official misconduct of Heckman within the condition of his bond.

On the 25th day of November, 1857, J. R. Jaffray & Sons, citizens and residents of the state of New York, commenced an action of assumpsit in the circuit court of the United States for the southern district of Ohio, against one Nicholas G. Curtis, a citizen and resident of said district, for the recovery of over five hundred dollars.

The plaintiff filed a petition in the court of common pleas, stating “that the defendant, on or about the 24th day of March, A.D. 1855, agreed to rent or lease to the plaintiff a dwelling-house, in the town of Cadiz, in Harrison county, Ohio, for the term of one year, from and after the first day of April, A.D. 1855; and the plaintiff says, that the defendant, on the 24th day of March, 1855, presented to him, the plaintiff, a written agreement or lease for said house for the…

<p>A right of action accrued in 1827 in favor of the plaintiffs, who were then infants, for the recovery of real estate then, and ever since, adversely held by defendant; and plaintiffs’ disability of infancy was removed in 1837 and 1839 — Held:</p> <p>That under the proviso of the eighth section of the act of February 18, 1831, “ for the limitation of actions,” the plaintiffs’ right of action was limited to ten years after disability removed. Bigelow v. Bigelow, 6 Ohio Rep. 96, and Hazlet v. Grilchfield, 7 Ohio Rep. 497, considered.</p>

<p>1. One who incites, or procures another to commit an assault, though not present at it3 commission, nor otherwise participating therein, may be indicted and punished as a principal.</p> <p>2. Where, upon the trial of an indictment for an assault with intent to murder, the prosecuting attorney, by leave of the court, and without the consent of the defendant, enters a nolle prosequi, so far as relates to the intent to murder, such entry of the nolle is equivalent to an abandonment of that part of the indictment which is no farther prosecuted, and operates, so far, as an acquittal of the defendant; but he may still, by the verdict of the jury, be convicted of the minor offense of an assault, in respect to which a nolle prosequi has not been entered.</p>

Patrick Easter, the plaintiff in error, brought an action in the court of common pleas of Franklin county, against Eliza Jane White, the defendant in error, stating in his petition, in substance, that he, at the request of the defendant in error, and upon her promise to indemnify him against any loss in so doing, became a surety for one McDonald in an undertaking in replevin; and that in an action against him, on such undertaking, he was subjected to damages which he had…

The defendant in error filed her petition against Nahum Ward, the ancestor of the plaintiilsin error, in the court of common pleas, for the assignment of dower in certain premises of which her late husband, John McIntosh, was seized as an estate of inheritance, during coverture. The said Nahum Ward answered : 1. Denying title in John McIntosh, except as to one undivided third part of the premises. And, 2.

<p>Error to tbe district court of Gallia county.</p> <p>The case is stated in the opinion of the court.</p>

<p>l.Inanactionbrought on an administrator’s bond, against the surviving obligors, and the administratrix of the estate of a deceased surety, the plainliff assumes, as to such administratrix, the character of a creditor of her intestate’s estate.</p> <p>S. When the ease does not fall within any of the exceptions provided for in the 98th section of the administration act, snch action can not be maintained ’ against the administratrix, until the expiration of eighteen months from the date of her administration bond.</p> <p>3. If the petition, in such case, does not show the lapse of time necessary to the maintenance of the action, it is defective, and may be demurred to by the administratrix, as not stating facts sufficient to constitute a cause of action against her.</p>

<p>On Habeas Corpus. Error to the probate judge of Huron 'County.</p> <p>Samuel Disinger was eighteen years of age’on the 16th day of July, 1861. On the 23d day of September, 1861, while residing with his father, David Disinger, in Seneca county, ■Ohio, Samuel, without the consent or knowledge of his father, volunteered his services as a soldier in, and was regularly enrolled as a member of, a company in the 55th regiment, Col. John C. Lee, of the Ohio volunteer militia, in the army of the United States, under the act of congress of July 22, 1861, “ to authorize the employment of volunteers,” etc. The recruiting officer by whom Samuel was accepted as a volunteer was duly commissioned and employed in the recruiting .service in said army, and in receiving him, “ complied with all the requisitions of the laws regulating the recruiting service.” Samuel voluntarily took the prescribed oath and remained in the regiment, submitting to its discipline; and on the 21st day of November, 1861, was regularly mustered into the service of the United States as a volunteer, by a captain of the regular army, and continued in the regiment under the control of its superior officers until December 6, 1861, and was in no otherwise restrained of his liberty than was consistent with the rules and articles of war. On this latter day, he' was ■brought before the probate judge of Huron county, in obe■dience to a writ of habeas corpus, issued upon the application and affidavit of David Disinger, the father of Samuel, and to. procure his discharge.</p> <p>The affidavit of the father stated the minority of the son,, his detention from the service and control of the father, and that he was unlawfully restrained of his liberty by the captain ■ of the company and the colonel of the regiment, and that the father had never given his consent that the son might volunteer, or in any way enter the army of the United States, or of this state.</p> <p>At the hearing on habeas corpus, Samuel stated to the probate judge, that, aside from the wishes of his parents, he was willing to remain in the military service,-which he had voluntarily entered, but that as his parents desired Ms discharge from the service, he deferred to their wishes, and asked to be discharged.</p> <p>Upon this state of facts the probate judge discharged Mm, holding his detention to be illegal. To this holding Colonel Lee excepted, and, on leave, filed a petition in error in this-court to reverse the judgment of the probate judge.</p>

<p>Error to the district court of Lorain county.</p> <p>The plaintiff in error, a body corporate under the laws of this state, filed a petition in the Lorain common pleas, in a suit appealed from the docket of a justice of the peace of said county, to recover damages for an unlawful and forcible breaking, by the defendant, of a toll-gate erected under its charter, and in the lawful possession of the plaintiff.</p> <p>.The defendant, relying upon section 58 of the corporation law of April 9, 1852 (1 S. & 0. Stat. 297), giving á remedy where plank and turnpike roads are out of repair, answered, in substance, that a short time previous to the time at which •the said pretended wrongs, etc., were done, to-wit, on the 7th day of November, 1857, the said plank road being out of repair and in an unsafe and dilapidated condition, between Elyria and Charleston, in said county, complaint in writing was made according to law, before H. S. Rockwood, a justice of the peace of said county. That said justice duly appointed two disinterested persons as inspectors, to examine into the truth of said complaint, as to the condition of said road between the points named, and that said committee, having given notice on the 10th day of said month to the agent or keeper .of said toll-gate, as the law requires, of the time and place of the view of said road, did on the 12fch day of said November, upon actual view of said road, find the complaint to be true, and thereupon, forthwith notified all the keepers of toll-gates between the points named, of the said proceeding and the result of the same pursuant to law; and also notified them, and each of them, not to demand, receive or collect tolls at said gates, until the road between the points named was duly repaired and put in good and lawful condition, as required by law. Defendant also averred, that after said complaint was made, up to and at the times said pretended wrongs are alleged to have been committed, said plank road was not repaired, nor put in good condition as the law requires, but on the contrary, remained and was out of repair and unsafe and dilapidated and under condemnation as aforesaid, and that, finding said obstruction in and across the said highway, and, desiring to pass along the same with a team, he used sufficient force to remove said obstruction, and no more, etc.</p> <p>To this answer the plaintiff demurred; and the court of common pleas sustained the demurrer; and the defendant failing to answer farther, the court rendered judgment against him for $1 50, and costs of suit.</p> <p>The judgment was reversed, upon a petition in error, in the district court, and the cause remanded to the court of common pleas for farther proceedings.</p> <p>The present petition in error is prosecuted to reverse the judgment of the district court.</p> <p>The errors assigned are:</p> <p>1. The district court erred in reversing the judgment of the court of common pleas.</p> <p>2. The district court erred in giving judgment for the defendant in error.</p>

<p>Error to the district court of Perry county.</p> <p>The original action was brought by Powers & Weightman in the court of common pleas of Perry county, against Otto H. Moeller and John N. Bumcratz.</p> <p>The petition of the plaintiffs stated “ that the defendant, Otto H. Moeller, of Somerset, in said Perry county, was desirous of purchasing goods of them, the said plaintiffs, of the city of Philadelphia, in the state of Pennsylvania, on a credit; and that the said defendant, John N. Bumcratz, in consideration of the premises, and of divers other good and valuable considerations by his writing obligatory sealed with his seal, signed and sealed also by the said Otto H. Moeller, a copy whereof is herewith exhibited and made a part of this petition, marked A., for himself, his heirs and assigns, did covenant and guarantee with the plaintiffs, that the said Otto H. Moeller should punctually and promptly pay all sums of money which should become due and payable to them on account of said purchases, whether in notes, acceptances or book accounts, or whether the obligation originally given therefor should have been changed, extended, renewed, or the amount thereof redrafted for; and that if the said Otto H. Moeller should neglect to pay the same, he, the said defendant, would, and his heirs and assigns should, pay the amount thereof on demand, with all costs and expenses, which the plaintiff should incur by reason of non-payment, the amount of said guarantee being, by the terms thereof, limited not to exceed twelve hundred dollars indebtedness, that might exist at any one time.” The petition then states the sales of goods made to Moeller in faith of the guarantee, and the indebtedness remaining unpaid, being an amount greater than that to which the guarantee was limited, and proceeds to state “ that the said Otto H. Moeller, did not pay the same, or any part thereof, but neglected so to do, and still neglects and refuses to pay the same to the plaintiffs, of all which several matters and things, the said defendant, John N. Bumcratz, afterward, on the 20th day of April, A. D. 1858, at Perry county aforesaid, had notice.” The petition then states a demand, upon the defendant, John N. Bumcratz, of the sum of twelve hundred dollars, and his refusal to pay the same. A judgment is asked against Moeller for the whole amount, and against Bumcratz for the sum of twelve hundred dollars.</p> <p>The obligation sued on is as follows:</p> <p>“Whereas, Otto H. Moeller, of Somerset, is desirous of purchasing goods of Powers & Weightman, of Philadelphia, Pennsylvania, on a credit; now, in consideration of the premises, and for divers other good and valuable considerations, the receipt of which is hereby acknowledged, I, John N. Burn cratz, of Perry county, Ohio, for myself, my heirs and assign's, do hereby covenant and guarantee with said Powers & Weight-man that the said vendee shall punctually and promptly pay all sums of money which shall become due and payable to them, on account of said purchases, whether in notes, acceptances or book accounts, or whether the obligations originally given therefor shall have been changed, extended, renewed, or the amount thereof redrafted for, and that if the said vendee shall neglect so to pay the same, I will, and my heirs and assigns shall, pay the amount thereof, oh. demand, with all costs and expenses which said vendors shall incur by reason ■of non-payment thereof. This guarantee is for an amount not exceeding twelve hundred dollars indebtedness, which may exist at any one time. In testimony whereof, witness our hands and seals, at Somerset, Perry county, Ohio, this 18th day of August, A.D. 1857. Otto H. Moeller [seal], John N. Bumcratz [seal].”</p> <p>To this petition the defendant, John N; Bumcratz, demurred, for a misjoinder of causes of action, for a misjoinder of parties defendant, and because the petition did not state facts sufficient to constitute a cause of action.</p> <p>The court of common pleas sustained the demurrer, and rendered a judgment against the plaintiffs.</p> <p>On error, that judgment was affirmed by the district court, and thereupon a petition in error was filed in this court.</p>

<p>]. In the absence of express contract and positive legislation, as between proprietors of adjoining lands, the law recognizes no correlative rights in respect to underground waters percolating, oozing or filtrating through the earth; hence, where a land owner digs a “ hole ” on his own land for purposes connected with the use of his own land, thereby cutting off or diverting underground waters which have always been accustomed to percolate.and ooze through his land to the laud of an adjoining proprietor, and there to form the source of a spring and rivulet, any damage thereby occasioned to such adjoining proprietor is damnum absque injuria.</p> <p>2. The act — to-wit, the ase of his own property — being lawful in itself, the motive with which the act was done is, in law, a matter of indifference.</p> <p>"Whether it would have made any difference in law if the “ hole ” had been dug from motives of unmixed malice, and was designed for no purpose of cither ornament or use — quere.</p> <p>3. In the absence of specific allegations, making a case of unmixed malice, such malice will not, on demurrer, be presumed.</p> <p>4. The doctrine of prescription, or 'presumption of grant from lapse of time, can have no application to a case of this kind.</p>

<p>1. The charge of a court to a jury, should always be founded on and applicable to the testimony ; and in giving a general rule, as applicable to the evidence, if there is evidence tending fairly to bring the case within an exception to-that rule, it is proper for the court, in connection with the rule itself, or in some other part of the charge, clearly to refer to the exception and the testimony tending to sustain it.</p> <p>2. Where, in an action for breach of promise to marry, the defendant, under an answer denying the promise, and to mitigate the damages, gave, in evidence, testimony fairly tending to prove that the plaintiff had been delivered of a bastard child, etc., it is error for the court to charge the jury, that his attempt to prove such matters, “ if he fail altogether in the proof, may be considered by them in aggravation of the damages,” without making any allusion to the tendency of the proof offered by the defendant, and without adding, in that connection, or in some other portion of the charge, by way of qualification, “ unless the same was made in good faith ” — or “ unless the defendant, at the time, believed, and had reason to believe, the charge to be true,” or woids of equivalent import. Where, from the whole record, the court is of opinion that the direction of the judge who tried the cause, though in terms correct, might still have been misunderstood by the jury, a new trial should be awarded.</p>

<p>.A testator, after giving by his will, to his eldest son, Matthew, twenty-five acres of land from off the farm on which he lived, uses the following language:</p> <p>Item Third. — “ I give and bequeath to my youngest daughter, Margaret Harper, the remaining part of my real property.”</p> <p>Item Fourth. — “ I give and bequeath unto my eldest daughter, Jane Harper, but since married, Jane Davis, if personally herself appearing, fifty dollars, to be paid by my eldest son, Matthew Harper, and my youngest daughter, Margaret Harper, according to the property given them in this my last will. It is also to be understood, that should my youngest daughter, Margaret Harper, die without any legitimate heirs, her part of my real estate shall fall to my eldest son, Matthew Harper.” Held,</p> <p>1. That the language of “ item third ” is sufficient, standing alone, to vest in Margaret a fee simple estate, and in its effect upon subsequent provisions of the will, is to be considered the same as if he had devised the residue of his real estate to Margaret, her heirs and assigns forever.</p> <p>'2. That the words ‘‘ legitimate heirs,” mean legitimate issue, and the whole clause, “ should my youngest daughter, Margaret Harper, die without any legitimate heirs,” refers to a definite, and notan indefinite failure of issue, and are to be construed as if the words living at the time of her death, had been added after the words “ legitimate heirs.” Parish v. Ferris, 6 Ohio St. Rep. 563, followed and approved.</p> <p>'3. That under items third and fourth taken together, Margaret took an estate in fee simple, subject, however, to be determined by the contingency of her dying without issue living at the time of her death, on the happening of which, the estate would pass over to Matthew, by way of executory devise.</p>

The original action was assumpsit brought by Wick & Morgan, in the court of common pleas of Erie county, accompanied by proceedings under the watercraft law. The precipe was filed, and the writ directing the seizure of the craft issued November 30, 1850.

<p>1. In an affidavit for an order of attachment, the statement of a cause for the order, made in the language of the statute, is sufficient.</p> <p>2. Such statement is not invalidated by adding thereto a statement of such particular facts as, upon a fair and reasonable construction, Would justify a belief in the truth of the general statement.</p>

<p>The filing a petition in error and the execution of an undertaking for stay of execution do not discharge interlocutory orders made for the preservation of property, or the protection of the interests of parties, during the pendency of the litigation, arid the jurisdiction to make any such orders during the pendency of the proceedings in error remains in the court below. The petition in error does not bring the whole cause before the appellate court, but only the order or judgment which is complained of, and leaves in the court below ali jurisdiction in the cause not inconsistent with the power to reverse, vacate or modify the final order or judgment in which error is alleged.</p>

<p>Error to the district court of Fairfield county.</p> <p>The original action was brought by the defendant in error, in the court of common pleas, to recover compensation for three months time, during which he was in attendance, ready and willing to perform and discharge his duties, according to the terms of a written contract between the parties, by which he was to be paid $150 per month for his services.</p> <p>A copy of the contract is attached to, and made part of his petition; from which, with the averments of the petition, it appears that the plaintiff, on the 18th day of December, 1856, contracted with the defendant, and covenanted to perform the duties of “ superintendent of the factory ” of the defendant, then in process of erection, for the manufacture of starch from indian corn and other articles; and to devote his whole and exclusive time, talents and skill to the interests of the company in the manufacture of starch from indian corn, etc., as he might have knowledge and skill in manufacturing, and as should be determined on by the. board of directors, for and during the term of three years, from and after the average time of getting into full operation in successful manufacture of starch from indian corn as aforesaid; which said average time should thereafter be agreed upon and fixed by the parties.</p> <p>That in consideration thereof, said company agree to declare and allow to the plaintiff, to be received on the first day of January of each year, during the term of his service as superintendent as aforesaid, and subject to certain provisions and limitations after specified, one equal half of the net profits of said business of manufacturing starch or other articles over and above twenty-five per cent, per annum of said business.</p> <p>That to arrive at said profits, the said contract stipulated : that there should be charged to the regular expense account ten per cent, on the gross cost of the building and machinery, to an extent equal to the daily consumption of six hundred bushels of corn, and ten per cent, on the cost of any new or additional buildings or machinery which might be added during said term not proper to be classed as current or ordinary repairs, as compensation to the company for depreciation in buildings and machinery; to ascertain the sum, which said ten per cent, would annually produce, the secretary should keep accurate accounts of the cost of buildings and machinery, up to the time when the establishment should be put into full and complete operation, and for all new buildings and machinery which might be put up thereafter. That the manufactured product on hand should be entered on the list of assets at the prime cost, estimating the value of the raw material at the then market value, and the unmanufactured stock on hand at its true cash value, for the purpose of ascertaining profits.</p> <p>That on declaring dividends of profits, the amount due to stockholders or the plaintiff as superintendent, to be passed to the credit of the party entitled, and be paid as soon as cir cumstances should permit in the opinion of the directors— the same to bear interest if not paid in thirty days.</p> <p>That the plaintiff also covenanted to act as, and to discharge the duties of, building superintendent, during the time of the erection and completion of the necessary buildings and the setting and putting up of the machinery therein. He was to have full power and control of all the operations in the erection of the buildings; the making, and putting up of said machinery; the supervision and adoption of all plans, and the management of the hands, until the whole- was completed and ready for the manufacture of starch, and until his services should commence as superintendent in the manufacture of starch, at the average time, and upon the terms of compensation as before provided; and the company covenanted to pay the plaintiff for his services as such building superintendent at the rate of $150 per month, commencing on the 1st day of September, 1856, and terminating as before provided.</p> <p>That the plaintiff should have the right and be entitled to draw on said company at the rate of $150 per month, commencing when his salary as building superintendent should have ceased, at such times and in such sums as should be proper, etc., to he charged to him in account, etc.</p> <p>• That the plaintiff covenanted to bring to the process of manufacturing starch, in said establishment, as superintendent thereof and while in the service of said company, the necessary knowledge, skill and service appertaining to a full, perfect and successful manufacture of starch, and that he was possessed of a full knowledge of the art and mystery appertaining to the chemical, as well as manual manufacture of starch from indian corn.</p> <p>That the plaintiff should have power, and it should be his duty, to select and employ competent operatives to prosecute said business and fix their compensation, subject to approval by the directors; also' have the entire charge of the factory after it should go into operation, and all operatives be under his direction, subject to discharge for cause, etc.</p> <p>That the plaintiff was in the discharge of the duties of' building superintendent when the contract was entered into and conducted and discharged all the duties of said post to the acceptance, and with the assent of the defendant to the 12th day of April, 1858, when the defendant wrongfully and forcibly ejected him from the building (erected as after stated), and was and still is prevented from discharging the duties of' said post, though then, and still ready to perform all and singular the matters required of him as superintendent as aforesaid.</p> <p>That as building superintendent he proceeded in the erection of the buildings, machinery and fixtures under said contract; but was forcibly ejected as aforesaid, and the same remain incompleted; and said factory has not been got or put into full operation in the manufacture of starch as aforesaid.</p> <p>That when the plaintiff was so ejected, and ever since, said factory has had furnished and provided within it, only partial and incomplete equipments and machinery, capable of the daily consumption of not exceeding three hundred bushels of corn; that when fully completed it will be equal to and have capacity for six hundred bushels daily.</p> <p>That while engaged in the active discharge of the duties of building superintendent, he honestly and faithfully discharged all the duties and covenants incumbent on him in that behalf, and brought to their discharge competent, .scientific and manual knowledge and practice.</p> <p>That during the months of June, July and August, 1858, he was in attendance, ready and willing, to discharge his duties as building superintendent, but was prevented by the defendant to his damage, $450.</p> <p>The petition avers non-payment of the monthly installments of $150, for June, July and August, and prays judgment for the same with interest.</p> <p>To this petition the defendant below answered, setting up by way of defense—</p> <p>1. That the plaintiff, as superintendent of said factory, proceeded with its erection, after said contract was entered into, till it was afterward, on the 7th of December, 1857, so far completed, as to be in readiness to commence manufacturing starch therein; that on that day said business of manufacturing was commenced under the superintendence of the plaintiff by authority of said contract, and was continued in said factory till the same was got into full operation in the successful manufacture of starch, and that the average time of so getting into full operation in the successful manufacture of starch, was on the 31st day of December, 1857, on which day the services of the plaintiff, pursuant to the stipulations of said contract, commenced as superintendent of the manufacture of starch, and that said business of the manufacture of starch was thereafter continued under the superintendence of the plaintiff till he was thereafter, for sufficient cause, and not unlawfully, as in the petition alleged, discharged, etc.</p> <p>2. That the plaintiff, according to the contract, was entrusted with the control and management of ordering, planning and erecting said factory; that although the same was proceeded with and got into full operation in the successful manufacture of starch at the days and times in the first part of the answer set forth, and the business of manufacturing carried on, as set forth in said first part, yet said factory was not by the plaintiff so planned, arranged, ordered, designed and contrived, as that, when completed in conformity with said plan and arrangement, it can or will be competent to manufacture six hundred bushels of corn into starch per day in the due and regular course of business within the true intent and meaning of said contract. Its capacity, if completed as begun, will not be more ‘than a greatly less quantity, to-wit, not more than four hundred and fifty or five hundred bushels of corn per day; which deficiency was and'is the result of design, ignorance or oversight of the plaintiff without the authority, request or consent of the defendant, and in breach of the duty of the plaintiff, as superintendent of building. By reason whereof the defendant lawfully did for this and other causes discharge the plaintiff from said employment. having first paid him in full for his services rendered therein. Therefore, the plaintiff has no right, etc.</p> <p>3. It is not true, as alleged in the petition, that the plaintiff conducted and discharged all of the duties of superintendent, according to said contract, to the acceptance of the- defendant to April 12, 1858; on the contrary, being engaged in the business of manufacturing starch, as above in first branch of defense set forth, to said 12th day of April, 1858, the day on which he was discharged, he failed and neglected to superintend and carry on said business with proper care and skill for the successful prosecution thereof, and for want of which a greatly less quantity of starch was produced from the quantity of corn manufactured than might and would have been, with such proper care and skill, amounting- to a great loss to the defendant in the quantity of starch produced, viz., 92,000 lbs. of the value of $3276 TV„; therefore, the plaintiff hath broken his covenant in said contract contained, and for that cause the defendant discharged the plaintiff out of said employment. And defendant insists that for the cause aforesaid, the plaintiff is liable to pay the defendant said sum of $3276 TyT damages sustained by his said breach of contract — and defendant prays judgment for the same.</p> <p>To the first and second defenses the plaintiff demurred, as not stating facts sufficient to constitute a defense. To the third defense the plaintiff replied:</p> <p>1. That on the 4th of June, 1858, plaintiff brought a suit before A. McVeigh, J. P., against the defendant on a cause of action other than that mentioned in the petition herein, but arising from and connected with the same writing stated in said petition. That the defendant filed before said justice a bill of particulars of a counterclaim for damages on the same agreements in the third ground of defense or counterclaim of the answer herein. That said action was afterward contested and tried by a jury, and a final judgment thereon rendered by the'justice; from which judgment an appeal was taken by the plaintiff to the common pleas, and the original bill of particulars of the plaintiff and of the defendant’s counterclaim were certified by''the justice into said court; as by the record, etc. That the parties are the same and the cause so appealed is still pending: Wherefore, plaintiff prays judgment, as in his petition, notwithstanding the matter of the third defense.</p> <p>2. For a further reply to said third defense, the plaintiff says he has not violated his covenants in said contract contained.</p> <p>To this reply of the plaintiff, the defendant demurred, and this demurrer having been overruled, the defendant replied :</p> <p>1. That said counterclaim and bill of particulars of defendant, pending.before said justice, were not exhibited before said justice in said action for the recovery by the defendant from the plaintiff of the amount of damages to which the defendant was entitled, but only for a part thereof equal in amount to the plaintiff’s demand ($300), before the justice, not exceeding the amount of the justice’s jurisdiction, reserving the right to recover the residue as might be lawful; and said bill of particulars exceeds the justice’s jurisdiction, $2976 88, which was not and is not asserted as a counterclaim in the case appealed from the justice.</p> <p>2. Said bill of particulars has not, since said appeal, been pleaded or asserted as a counterclaim in said action.</p> <p>To this reply of defendant, the plaintiff demurred.</p> <p>The demurrers of the plaintiff to the first and second defenses, and to the reply of the defendant in regard to the counterclaim, were all sustained by the court, and the defendant excepted.</p> <p>The case having been submitted to the court upon the issues of fact, the court found the facts of the first reply to the third answer or counterclaim to be true, and adjudged that said third answer or counterclaim be quashed and abated; and, with the assent of the plaintiff, found that there was due him from the defendant $450 — with interest, for which, with costs, judgment Was rendered.</p> <p>Upon petition in error, this judgment was affirmed by the district court; and the defendant below now seeks to reverse this judgment of affirmance.</p> <p>The assignment of error brings in question the several rulings of the court of common pleas upon the issues of law presented by the pleadings.</p>

Rice & Burnett brought an action before a justice of the ■peace against Alvah Evans, and obtained an order of attachment, and George W. Whitney was summoned as a garnishee. He appeared and answered, and his answer reduced to writing by the justice, he signed. An order was made by the the justice that he pay $24 into court, as the sum admitted to be due. Failing to do this, an action was brought against him by Rice & Burnett.

<p>Error to the district court of Hamilton county.</p> <p>The original action was assumpsit brought in the commercial court of Cincinnati, by McCullough, upon the common counts for work and labor done for Doolittle & Chamberlain, atrtheir request. Plea — the general issue.</p> <p>The cause was transferred from the commercial court of Cincinnati to the court of common pleas of Hamilton county, and was thence appealed to the district court by Doolittle & Chamberlain.</p> <p>Upon the trial in the district court, McCullough, the plaintiff, gave evidence tending to show that he did work for the defendants, in grading and excavating, upon a section of the Cincinnati, Hamilton and Dayton Railroad, near Cincinnati, which section the defendants had undertaken to construct for the railroad company ; that he did the work at the instance of the defendants, and that it was worth from eighteen to twenty cents per cubic yard, amounting to over two thousand dollars.</p> <p>The defendants gave evidence showing that they, as contractors, had undertaken in a special written contract with the railroad company to construct said section with other sections of the railroad; and that, at the instance of the plaintiff, they entered into a special written contract with him on the 12th day of April 1850, by which t'he plaintiff agreed to perform the work at the times and in the manner therein specified, and the defendants agreed to pay, and the plaintiff receive in full satisfaction therefor, the sum of eleven cents per cubic yard; to be estimated from time to time during the progress of the work by the engineers of the company as particularly specified in’ the contract, and that all of the work done by the plaintiff had been performed and measured and paid for under the contract and at the price named therein, and that the defendants had overpaid him some $300, on the 15th of November, 1850, when the plaintiff abandoned the work before he had half completed his job.</p> <p>McCullough, to rebut the proof so made by the defendants, gave evidence tending to show that one Bates, the agent of the defendants, had, with the knowledge and permission of the defendants, improperly interfered with, and produced discontent and dissatisfaction among the hands of the plaintiff, and induced them to leave the work, and so prevented the plaintiff from performing the job according to the terms of the contract, or in any other manner; and insisted that the defendants had thereby terminated the contract.</p> <p>Different witnesses testified to the value of the work done by the plaintiff, and differed somewhat in their estimates of its cost. The witnesses generally concurred in their estimate of what would be the cost of the unfinished work embraced in the plaintiff’s contract.</p> <p>S. S. L’Hommedieu, the president of the. railroad company, testified that he was acquainted with the work done by the-plaintiff for the defendants, and also with that part of the work included in his contract, but left unfinished by the plaintiff ; that he regarded the upper three feet of the grading done by the plaintiff, worth ten cents per cubic yard; that so-much of the grading remaining to be done, when the plaintiff ceased working, as contained hard-pan, was worth three times as much per yard as what had been done; that to take the job through, altogether, it was worth from twenty-five to thirty cents per cubic yard to do the work as required by the contract.</p> <p>The engineers who measured the work gave testimony to the same effect, and say the job was a very hard one for the plaintiff, at the contract price ; and there was no evidence to the contrary introduced by either party. The plaintiff claimed, and the defendants did not deny, and all the proof showed, that the work could not be done at the price stipulated in the contract, without loss to the plaintiff.</p> <p>It was insisted, on behalf of the plaintiff, that the contract was put an end to, on the part of the defendants, by the inter-meddling and improper talk and conduct of Bates, their general superintendent, with the workmen and hands of the plaintiff, whereby they were made dissatisfied and were induced „o quit work for him.</p> <p>Upon this point, the proof tended to show that the plaintiff, while prosecuting the job, became embarrassed and unable to pay his hands; that considerable excitement and discontent arose among them; that Bates, the agent of de • fondants, made a proposition to the plaintiff, if he could not go on with the job, to give up his contract to the defendants, and to sell to them his shanties, tools, etc., prepared along the line of the job, and in that way raise money to pay off his hands. The. plaintiff insisted that the hands were thereby made discontented, and induced to leave his employ; but this was denied by the defendants, and they also denied that they were responsible for what Bates said or did.</p> <p>The court instructed the jury as follows :</p> <p>“ If the jury believe that the contract was terminated by the defendants, against the consent of the plaintiff, the latter will not be confined to the contract price, but he may, in this action, recover what the work done is actually worth.” To this charge of the court the defendants excepted; and asked the court to charge the jury :</p> <p>“ 1. That, under no circumstances, can the plaintiff recover more than the actual value of the work shown to have been done.</p> <p>“ 2. That the terms and conditions of the contract are binding and obligatory upon the parties, and that, by the terms of the contract, before the plaintiff was entitled to demand pay for work done under the contract, from the defendants, he was bound to have his work estimated by the chief, or assistant engineer, and the estimate so made, if any was exhibited, is binding on the parties, provided that estimate was honestly made by the engineer.</p> <p>“ 3. That an estimate made by any person, not an engineer on the Cincinnati, Hamilton & Dayton Railroad, is not the evidence the parties agree to receive, and can not control the estimate made by the engineer whose estimate is required in the contract.</p> <p>“ 4. If they find that the work was done under the written contract, given in evidence by the defendants, then, even if the contract was mutually agreed to be abandoned, in the middle of November, 1850, the plaintiff can only recover for the actual amount of work done, at the contract price, up to that time, from which is to be deducted the amount of payments made.”</p> <p>All, except the first of these propositions, the court refused to give in charge to the jury; to which refusal the defendants excepted.</p> <p>The verdict was for the plaintiff for $755 35.</p> <p>The defendants thereupon filed their motion for, a new trial, on the following grounds :</p> <p>1. The verdict is contrary to evidence.</p> <p>2. The court erred in the instruction given to the jury; and in refusing to instruct the jury as requested by the defendants.</p> <p>The court overruled this motion and entered judgment on the verdict, and the defendants excepted, and to reverse that judgment filed a petition in error in this court, insisting that the district court erred:</p> <p>1. In its charge to the jury, and in refusing to charge as requested by the defendants.</p> <p>2. In overruling their motion for a'new trial.</p>

<p>Civil Action. Reserved in the district court of Cuyahoga county.</p> <p>The petition of the plaintiff states that it is a medical college located in Cleveland, and had a building adapted for its purposes, in that city, and was in successful operation ; that it was the duty of the defendant to preserve the peace and prevent riots in said city; that in violation of such duty, the defendant “ suffered and permitted to assemble in the streets of said city, and near to and around the college building of the plaintiff, a large number of evil-disposed persons, and suffered and permitted said persons so assembled, to conduct themselves in a riotous and disorderly manner,” and that said persons did threaten to destroy said building and its contents, and made efforts to do so, but were resisted and prevented by the faculty and students of the college.</p> <p>The petition further states, that the attempts thus to destroy the building and its contents being renewed, the mayor and other officers of the city commanded and required the officers and students to withdraw from the building and leave the officers of the city to protect the same; that the officers and students of rhe college were thus compelled to surrender the custody and control of the building to the officers of the city, and that after such surrender, the officers of the city “ negligently suffered and permitted the said riotous' persons, so then assembled, as aforesaid, to destroy, demolish and set fire to said college building, and to damage and destroy the library, apparatus, museum and other property of the plaintiff therein,” to the amount of five thousand dollars. Eor which amount a judgment is asked against the defendant.</p> <p>To this petition the defendant filed a demurrer, on the ground that the facts stated do not constitute a cause of action. This demurrer was sustained by the court of common pleas, and the case having been taken by appeal to the district court, the questions arising on the demurrer were reserved for decision in this court.</p>

<p>1. Under the statute of 1824 (2 Chase, 1306), a nuncupative will, made and proved in conformity (hereto, is sufficient to pass title to lands in this state. Gillis and wife v. Weller, 10 Ohio Rep. 462, followed.</p> <p>3 Parol proof of extrinsic circumstances, is always necessary, and, therefore, admissible, for the purpose of applying the verbal descriptions of a written instrument, to their appropriate subject. The description of the subject of a devise in a will maybe apparently plain, clear and unambiguous, and. yet the whole will when read in view of the circumstances surrounding the testator, at the time of making it, may clearly show such description to be, in part, false, and may, at the same time, sufficiently identify the premises intended to be devised.' In such eases the' maxim, “falsa demonstratio non nocet,” is applicable, and the false part of the description will be rejected, and effect be given to the devise, according to the clear intention of the testator.</p> <p>'3. Where the record shows that a party claiming title to lands under a nuncupative will, made on the day of the testator’s death, and duly proved and admitted to record, offered said will in evidence in support of his title, and was also permitted to show, by his evidence, that a devise in said will, in his favor, of all the lands of which the testator might die seized and possessed, in fraction twelve, township three, and range thirteen, in the Ohio Company’s purchase, was intended as a devise of the corresponding fraction, in township two, of the same range, and that the number of the township was, by mere mistake, called and written three, instead of two; but as the record does not set out the whole will, so offered in evidence, nor disclose the character of the proof objected to, otherwise than by stating its effect, a reviewing court will not hold that improper evidence was received. There is not enough disclosed to show error, and it will not be presumed.</p>

<p>i. Where an indictment for selling spiritous liquors to be drank wherp sold, avers that the sale was made at a particular place, by way of local description and not as mere venue, the proof must correspond with the allegation,</p> <p>tí. Where such indictment alleges the sale to have been made at the grocery of M., in the township of A., and the only proof is of a sale at the grocery of M., in the township of G., the variance between the allegation and the proof is fatal to the prosecution.</p>

<p>1. What amount of annoyance or inconvenience will constitute a nuisance, being a question'of degree, dependent on varying circumstances, can not be precisely defined.</p> <p>2. Where, in an action for a nuisance, the judge, in his charge to the jury, said, in substance, that the degree of comfort to which the plaintiff was entitled, was that ordinarily enjoyed by other persons in his neighborhood, otherwise similarly situated, and that acts of the defendant preventing this, would con- ■ stitute a nuisance : Held, that if intended to caution the jury to adopt the ordinarystandard of comfort and convenience — to regard the notions of comfort and convenience entertained by persons generally, of ordinary tastes and susceptibilities — the remarks might be correct; but that as they may have led the jury into a mere comparison of the situation of the plaintiff with that of his neighbors — into an inquiry, simply, whether any difference was perceptible, and from the real question, whether the consequences resulting from the acts of the defendant — the difference of enjoyment, if any were found to exist— constituted an actual damage, they were calculated to mislead the jury.</p>

<p>Error to the court of common pleas of Clermont county Reserved in the district court.</p> <p>The original petition, filed on the 29th of August, 1854, was by. the defendants, Harshman & Winters, against the defendants, Horatio Buchingham, Mark Buckingham, Raper, Cox & Co., and Brandreth, alleging that Harshman & Winters had obtained judgment in Miami common pleas against Mark Buckingham, Raper, Cox & Go., and Brandreth, and seeking to charge the same upon real and personal estate in Clermont .county, which were alleged in the petition to have been transferred by Mark Buckingham to Horatio, for the purpose of defrauding creditors.</p> <p>Summons issued, and was served upon the defendants above-mentioned. None appeared except the two Bucking-hams, who filed separate answers on the 30th of September, 1854, in which they denied all the allegations of the petition charging fraud. The answers were answers merely, seeking no affirmative relief by or in the nature of counterclaim or cross-petition.</p> <p>Such being the state of the record, leave was granted to the defendants Buckingham, on the 28th of October, 1854. to amend their answers, and make new parties within fifty days; also to the plaintiffs, Harshman & Winters, to amend their petition, and make new parties by the 8th of January, 1855.</p> <p>On the 17th of November, 1854, Horatio Buckingham filed an amended answer, suggesting that numerous persons, among whom were the plaintiffs in error, “ claim to have some interest in the subject matter of the suit, and he therefore prays that they be made parties defendants to said action.” On the same day, the defendant, Horatio Buckingham, caused summons to be issued against the persons so made parties, and among them the plaintiffs in error, in which they are notified, in the usual form, to appear and answer, by the 16th of December, to the petition of Harshman & Winters, or that such petition will be taken as true, and judgment rendered accordingly.</p> <p>Afterward, on the 2d of January, 1855, Harshman & Winters filed an amended petition, charging newly-discovered assets, and making Henry Debolt a party defendant, but not mentioning, nor in any manner impleading by any allegations, the new parties sought to be introduced on the motion of Horatio Buckingham.</p> <p>To this amended petition, Mark Buckingham and Henry Debolt filed answers on the 10th of February, 1855, but like the former answers, they demand no counter relief whatever.</p> <p>Upon these pleadings, a judgment was entered on the 19th of March, 1855, Avliich first finds the plaintiffs in error, with others, to be properly before the court, but that they had failed to answrnr the said original and amended petition, and thereupon proceeds to find that the conveyances by Mark Buckingham to Horatio, were not fraudulent, nor void as to the plaintiffs, Harshman & Winters, “ nor as to the defendants . herein, and that Horatio Buckingham does not hold the property in trust for the creditors of Mark,” etc., but subjecting certain funds in Debolt’s hands to pay Harshman & Winters’ judgment.</p> <p>The plaintiffs in error ask the reversal or vacation of this judgment, so far as they are concerned, on the ground that the court was not authorized, under the state of the pleadings; to determine any rights of-the defendants as among themselves.</p>

<p>The plaintiff filed her petition against the defendant, as heir and administrator, claiming dower as the widow of the intestate, in the lands of which he died seized. The answer set forth as a defense, a fair arid reasonable antenuptial contract, by which it was agreed, among other things, that the property, real and personal, of each, which was about equal, should be brought together, and enjoyed during coverture, and at the termination thereof the personal property should be separated, and divided between the survivor and the representatives of the intestate, and the survivor should hold his or her said property, real and personal, and should thereafter have no right or interest in the property of the intestate, by reason of said coverture ; that the contract had been performed by the parties thereto during coverture, and that since the decease of the intestate, the petitioner had claimed and received from his representatives her share of the property, and the benefit of all provisions of said contract in her favor. Held: That the foregoing facts, although not within section 2, or section 4, of the dower act of 1824, constitute a sufficient .tnswer, and a good equitable defense to the petition.</p>

<p>Error to the court of common pleas of Licking county. Reserved in the district court.</p> <p>On the 19th March, 1858, the plaintiff in error, on behalf of itself and such other creditors of the Licking county bank as might claim the benefits of the action, filed a petition in the court of common pleas of Licking county, stating, in substance, that at the August term, 1856, of said court, the plaintiff recovered a judgment against the Licking county bank, of over seven thousand dollars, and that the judgment is in full force. That the Licking county bank was and is a branch of the state bank of Ohio, organized under the act of February 24, 1845, “ to incorporate the state bank of Ohio and other banking companies.” That in 1852, said Licking county bank committed acts of insolvency, and that some time afterward, the board of control appointed the defendant a receiver, into whose hands went the remaining assets and property of said bank in trust for the uses and purposes declared in said act, viz : to convert the same into money to be applied — 1. To reimburse the board of control, and other branches of the state bank of Ohio, for advances for the redemption of the notes and bills of said Licking county bank, issued for circulation. 2. To pay and discharge the remaining liabilities of said bank. 3. To divide the residue among the stockholders of said bank. That among the assets of said bank, in the control of the' defendant, and belonging to said trust, were certain parcels of real estate particularly described, and also divers claims and demands due to the bank. That no part of said real estate has been sold by said receiver, or converted into money for the uses and purposes of the trust, and that the plaintiff is not advised what amount of the other assets belonging to the bank has been so converted, nor what disposition has been made of the moneys arising therefrom ; but that the defendant totally disregarding and neglecting his duties as trustee, purchased from the state bank of Ohio, for a nominal consideration, all its beneficial interest in the subject matters of said trust, and has received from said state bank a. deed of conveyance for the said real estate, and claims the same, as well as the other assets, in his own right, discharged from the claims of the other beneficiaries of the trust. Wherefore the plaintiff insists that the defendant is liable to account to the other creditors, and the stockholders of the Licking county bank, and, therefore, prays a discovery and account, and a surrender of all the property and assets, to some new receiver to be appointed by the court, to be administered for the benefit of the plaintiff and others, and for general relief.</p> <p>The defendant demurred to the petition, for that it does not state facts sufficient to constitute a cause of action, and entitle the plaintiff to the relief demanded.</p> <p>The court of common pleas sustained the demurrer, and rendered judgment accordingly, and the plaintiff to reverse that judgment, filed a petition in error in the district court, wherein the cause was reserved to this court for decision.</p>

<p>Error to the court of common pleas of Ashtabula county. Indictment for assault and battery.</p>

<p>In Error. Reserved in the district court of Greene county,</p>

<p>Mandamus. Reserved in the district court Of Wayne county.</p>

<p>Motion for leave to file a petition in error to reverse the judgment of the district court of Wyandot county.</p>

<p>Civil action. Reserved in the district court of Mahoning county.</p>

<p>Error to the district court of Adams county.</p>

<p>Error to the court of common pleas of Yinton county.</p> <p>The plaintiff in error was indicted, in the court below, under the first section of the “ act to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio,” for selling intoxicating liquors, to be drank at the place where sold.</p> <p>To this indictment he pleaded not guilty; and it is shown by the record, that upon the trial of this issue, the state having offered evidence, by a single witness, and to some extent merely circumstantial, tending to prove the defendant guilty of the fact charged, the defendant asked the court to charge the jury, “that they should be satisfied, beyond a reasonable doubt, of the' truth of each and every material allegation of the indictment, before finding a verdict of guilty against the defendant; and that if they entertained a reasonable doubt, as to the truth of any material allegation of the indictment, they should return a verdict of hot guilty.” Which instruction the court refused to give, but on the contrary charged the jury, “that if they found only a fair preponderance of. evidence in favor of all the material allegations of the indictment, they should find the defendant guilty.”</p> <p>The defendant having been found guilty, by the verdict of the jury, moved for a new trial, for the reason, among others, that the court erred in the instructions given to the jury, and in refusing to charge as requested. This motion was overruled, and the defendant sentenced to pay a fine of twenty-five dollars, and the costs of prosecution, and to be imprisoned for fifteen days, in the county jail.</p> <p>The refusal of the court to give the instructions asked, and the instructions given to the jury by the court, are now, among other things, assigned for error.</p>

<p>Error to the district court of Knox county.</p> <p>On the 15th day of October, 1839, Anthony Banning, of Mt. Vernon, then being of sound mind and memory, executed in due form of law, his last will and testament, and procured the same to be attested by two witnesses as required by the statute. On the 4th day o-f February, 1844, he departed this life without having revoked the will thus made by him. Shortly after the funeral solemnities had been performed, many of the relatives and friends of the deceased met at the place of his former residence, for the purpose of hearing the will formally read. It was produced by the widow from the place where it had been deposited for safe keeping, carefully inclosed and sealed in an envelope. After having been passed around the assembly, the seals were broken, and the will was read in the hearing of all present. It was then returned to the widow. Before the next morning, the will was -secretly abstracted from its place of deposit and was' purposely burned by one of the family.</p> <p>Soon afterward, application was made to the associate judges of the court of common pleas of Knox county, and letters of administration were issued on the estate of the deceased, to Daniel S. Norton, Joseph S. Davis, and James S. Banning.</p> <p>Subsequently, Anthony Banning,,jr., a son of the deceased, and one of the legatees and devisees under the will, commenced proceedings, under the statute, for the establishment ■and probate of the spoliated will; and, in July, 1854, the will was, by the order and judgment of the probate court of ■Knox county, after a protracted contest, established and admitted to probate.</p> <p>On the 22d day of September, 1854, the said James ■ S. ■Banning, Daniel S. Norton, and Sarah Norton, filed their ■petition in the court of common pleas of Knox county, against .Anthony Banning, jr., to contest the will thus established and admitted to probate; and, subsequently, by amended and supplemental petitions, a large number of other parties, interested in the estate, were made parties to the proceeding. An issue having been made up, whether the will, as established and admitted to probate, was the last will of Anthony Banning or not, and that issue having been tried and determined in the common pleas of Knox county, the case was appealed to the district court, where, at its June term, 1857,'the issue was again tried, to a struck jury, and a verdict had, and a judgment rendered, in favor of the will as established by the probate court.</p> <p>Thereupon the contestants moved the court for a new trial on the following grounds :</p> <p>1. The court erred in not assigning to the contestants the affirmative of the issue, the same being a proceeding by civil action under the code.</p> <p>2. The court erred in their instructions to the jury, as to the law of the case.</p> <p>3. The court erred in their rulings as to the law, in the progress of the case.</p> <p>4. The verdict is not sustained by the evidence, but is contrary thereto.</p> <p>5. The verdict is against the law as given by the court to the jury.</p> <p>The court overruled the motion for a new trial, and entered judgment on the verdict, and the contestants excepted, and filed a petition in error in this court to reverse said judgment; and insist that the district court erred :</p> <p>1. In not awarding to them the affirmative of the issue presented and tried.</p> <p>2. In allowing the witness, John Welsh, to detail conversations with defendant, Anthony Banning, not asked for by them, and to which they objected.</p> <p>3. In the first charge to the jury, in this, that they directed the jury that the prima facie case made by exhibiting the probated will, in a case of a spoliated will, like the present, was prima facie evidence of the contents thereof, and was' sufficient to outweigh a reasonable doubt in their minds, as to the truth of the allegation of the party to whom the court assigned the affirmative, asserting that this was the will of Anthony Banning, deceased. In that part of the charge devolving upon the contestants, the affirmative of the issue, while the court denied them the benefits of opening and closing the case to the jury.</p> <p>4. In the charge to the jury,, as to the seven acres purchased of Mr. Norton, after the execution of the will.</p> <p>5. In the charge to the jury, in regard to the land purchased, after the date of the will, from Peter Davis. This error is contained in that ambiguous charge in regard to ambiguous description, and was calculated to lead the jury entirely astray.</p> <p>6. In refusing to charge the jury, as requested by the contestants, and in modifying the charges requested, so as to create confusion and doubt in the minds of the jury upon propositions of law which were clear and distinct.</p> <p>7. In the instructions given by the court to the jury.</p> <p>8. In refusing to charge as requested by the contestants.</p> <p>9. In allowing the declarations of Anthony Banning, the testator, to be given in evidence to sustain the will.</p> <p>10. In overruling the motion for a new trial.</p> <p>The following is a copy of the will as established by the probate court:</p> <p>“ First. It is found by the court that said will gave to Mrs Norton, wife of D. S. Norton, four hundred dollars, to be paid in four annual payments, with interest.</p> <p>“ S'eeond. It gave to Mrs. Mary Caswell, four town lots in Mt. Vernon, two on High street, and two on Chestnut street, lying together and opposite to Anthony Banning, jr’s. Also a lot in Mt. Vernon, on Mulberry street, with a small brick house on it, between J. S. Davis’ lot, and the old Dr. Brook house and lot; also two thousand dollars of a debt due from James S. Banning, and a note on C. & E. Cooper.</p> <p>“ Third. It gave to Mrs. Elizabeth Bronson four lots in Mt. Vernon, two on High street and two on Chestnut street, lying west of Mrs. Caswell’s lots, and east of Walnut street, adjoining the same; and also two thousand dollars of the debt due from James.</p> <p>“ Fourth. It gave to Mrs. Rachel Raymond, four lots in Mt. Yernon, two fronting High street, and two fronting Chestnut street, lying together, and bounded on the east by Walnut street; also a farm on the old Mansfield road, five or six miles north of Mt. Yernon,--and now, and at the death of deceased, in possession of Mrs. Raymond.</p> <p>u Fifth. It gave to Priscilla Banning, the old homestead property, after the death of the wife of testator, which is bounded as follows: Commencing at the first alley west of Mulberry street, and lying north of said street, thence west along Chestnut to Walnut street, thence north along Walnut street to Sugar street, thence east along Sugar street to said before-mentioned alley, thence down said alley, south to' Chestnut street to the starting point; also the claim on Nicholas Spindler, and the Philip Cosner note, or notes on Philip Cosner.</p> <p>“ Sixth. It gave to James S. Banning the mill and mill property, then owned and in his possession, and discharged him of all interest on his debts to testator of $5000, and for two years after his death; also from all book accounts or other demands, except so much as might be necessary to offset the book accounts of said James against testator.</p> <p>“ Seventh. It gave to Jacob Banning’s heirs twelve hundred dollars to be divided equally among them as they arrive of age.</p> <p>“ Fighth. It gave to Mrs. Banning, wife of testator, the homestead or brick house and grounds as specified in the bequest to Priscilla, during her life; also the household property she might want, and also five hundred dollars ayear for life.</p> <p>. “ Ninth. It gave to Anthony Banning, jr., the Click farm, so called, situate in Clinton township, Knox county, Ohio, one mile and a half southwest of Mt. Yernon, together with a piece of land attached to said farm, and bought by testator of B. S. Norton, as an outlet to said farm. Said farm is bounded on the north by Owl creek, on the west by John Welsh and the widow Crotinger’s farms, on the south by the Joseph Davis farm, or a strip of land that lay between, and by the Peter Davis land in part, and on the east by the Peter Davis farm, and the road leading across the mill-pond, containing 155 acres or thereabouts. Also all the lots and land owned by testator at the date of said will, lying south of Vine street, and east of Nortpn street, in Mt. Vernon, leading to the bridge across the mill-pond, including what was called the old and new tanyard property, said new tanyard property bounded on the west by Norton street, on the north by Wood or Gambier street, and on the east by the two lots owned by old Mr. Banning, or the McCurdy property, running out to a narrow street, the first one west of Mulberry street, and south by the old tanyard property and the race and dam known as Woodbridge’s, now owned by the factory company. The old tanyard bounded on the north by the new tanyard property and the two lots owned previously by old Mr. Banning, on the east by the street running north and south, first west of Mulberry street, in Mt. Vernon, and south by the race above described, lying in a triangular form. Also two lots in Mt. Vernon, designated in said will as the barnyard lots; also the property known as the Jacob Banning property, commencing on the north side of High street, at the corner of the public square west of the court house, thence to Mulberry street, thence up Mulberry street to old Dr. Burr’s lot, thence to the public square, thence south to the corner of High street, excepting that portion sold to General Jones, crosswise of the lot some forty feet wide, next the pqblie square; and also one thousand dollars of the debt due from James S. Banning.</p> <p>“ Tenth. It appointed James S. Banning, Anthony Banning and William P..Burgess, executors of said will, and directed them to sell all his lots or other property not disposed of in said will, and the proceeds to be placed at the disposal of the wife of testator, to reimburse those whose property had been disposed of by said testator after making said will, and to be otherwise disposed of as she might deem proper, if she was the longest liver of the two.</p> <p>“ The witnesses to said will,</p> <p>William‘A. IIoey and Stephen Bishop.</p> <p>Signed, Anthony Banning, and dated Oct. 15, 1839.”</p> <p>On the overruling of a motion for a new trial, a bill of exceptions was taken to certain rulings made during the progress of the trial, embodying the charge of the court, as ■given to the jury on the trial, the charges to the jury, requested by the contestants, and either refused or modified by the court, to which exceptions were taken, and also all the evidence in the case; which, however, is too voluminous to be set. out fully in this report. The further statement of the case, so far as is necessary to an understanding of the points •made and determined, appears in the opinion of the court.</p>

<p>1. The board of public works had power to appropriate the bank of Swan creek, a navigable stream within the limits of this state, for the construction of a towpath, to be used in connection with the Wabash and Erie canal, for the navigation of boats.</p> <p>S¿. An act of appropriation by the board of public works, under the eighth section of the act of 1825 (2 Chase, 1475), is not required to be evidenced by any writing or record, and may be shown by parol evidence.</p>

It appears from the record that the plaintiff in error, at the June term, 1858, of the court óf common pleas of Sandusky county, was indicted under the 17th section of the £ The indictment, as found, contained three counts, and to which the plaintiff in error, on being-arraigned, pleaded not guilty.

<p>Error to the superior court of Franklin .county.</p> <p>On June 22, 1858, Samuel Webb’s administratrix brought a civil action in the superior court of Franklin county, against the Columbus and Xenia, and Little Miami Railroad Companies, jointly using-a railroad, extending between Columbus and Cincinnati, in this state. The action was brought under the act of March 25, 1851, “requiring compensation for causing death by wrongful act, neglect or default.” (2 S. & C. Stat. 1139.)</p> <p>The petition states the cause of action to be, in substance, this — that while Webb was in the service of the defendants, in the capacity of brakeman on one of their trains of cars, en route from Cincinnati to Columbus, on the 4th of July, 1858, as the train was nearing the Branch creek station, where it was to stop , he, at the usual signal of the engineer for that purpose, attempted to wind up one of the brakes on the cars, to check the speed of the train, and that in doing so the brake-chain parted, and the brake gave way, and he was thereby thrown between the cars and run over by the train, and so injured that he died the same day. That all this was the result of the carelessness of the defendants, in providing and using a defective and unsafe brake and chain, and in nowise attributable to any fault or want of care on the part of Webb.</p> <p>The defendants answer, setting up five separate defenses, amounting, in substance, to this — that Webb assumed the position of brakeman, well knowing its dangers; that the defendants provided for him the best safeguards against accident, in the management of brakes, that scientific knowledge on the subject afforded; that the brake and chain which gave way were perfect and sufficient, so far as human foresight and examination could determine; and that the parting of the chain was an unavoidable occurrence incident to the business, and against which no provision could be made other than that anticipated by the defendants, and that Webb’s injuries and death were not in any manner attributable to any want of care on their part, but were the result of his- own careless and reckless way of working his brake, in disregard of.the means at hand for his safety against accident and injury in the event of the brake giving way.</p> <p>At the April term, 1859, of the superior court, the cause was tried to a jury.</p> <p>Evidence was given, on the part of the plaintiff below, tending to show “ That deceased was, on the 4th day of July, AD. 1857, a brakeman in defendants’ employ, for hire, and had for a year or more, served defendants in that capacity. That on said 4th day of Juty, AD. 1857, he was brakeman upon baggage car No. 4, of defendants, at its rear end, next the first passenger car. That while winding up the brake in his charge, in obedience to tbe signal of the engineer (the speed being slackened upon approach to Branch creek station), the chain of said brake parted, and said Webb was thrown between the cars and killed. That at the time of the accident, said Webb was in the discharge of his duty, and worked his brake in his usual manner, and in the manner practiced by him upon approach to four stations previously, that day, after leaving Cincinnati, and that he had been working said brake in a manner quite common with brakemen.</p> <p>“ And the defendants gave evidence, tending to show: that the car upon which this accident happened, had been almost entirely rebuilt at the machine shop of defendants during the month of May, 1857, and was as good as new; that a new arid larger brake had been attached, but the old chain, which had been used some time, was retained, but that the chain was larger than most of those previously in use, and as large as those afterward adopted, and as then in use by railroad companies generally; also, that said chain was as large as could be used for the purpose. That when said car was rebuilt, the master machinist of defendants’ shop caused his foreman to try said chain, after the new rod was attached, in their usual way, by winding the chain up, until it came home to the wheels, using the necessary force to do so. That both of said men were skillful and competent mechanics, and that, after said test, the master machinist passed the car from the shop, as, in his judgment, road-worthy. That on said 4th day of July, A.D. 1857, before said car No. 4 left the railroad station, the inspector of cars, whose duty it was to inspect each car.before its departure, daily, examined this car with three men, in his usual manner, and in the manner and with the care customary and usual to railroad companies converging at the Little Miami depot at Cincinnati, Ohio, and caused one man to step upon the platform and apply the brakes until the bosses or cushions of the brake were brought home close. That the brakes were so brought home to the wheels, and that after the other men had examined the under parts of the car, and made the examinations usual in such cases, and such as said inspector regarded as ample, the inspector reported the said car all right.’ That said inspector had been a civil engineer and a practical carpenter, and had been employed by defendants, a few weeks previously to take charge of this special department of the inspection of cars, the evidence showing that, previous to said employ ment, this inspector had not been engaged in the inspection of cars, but had been engaged in car building.</p> <p>“ The plaintiff gave evidence tending to show, that the said test and inspection was not so made as to determine whether said chain and apparatus were of sufficient strength, or sound, or free from defects.</p> <p>“No evidence was given to show that any defect, whether latent or patent, existed at the time of said inspection, eithei in the- chain or its working apparatus, prior to the accident or afterward, except the fact that it broke; and, to all outward appearance, it appeared sound and perfect.</p> <p>“ The defendants also gave evidence tending to show that they purchased their brake-chains at houses of first repute; that the chains were manufactured at Pittsburg, by a house which stood high in credit as to the materials used in the manufacture of their chains; and that the chain in question was so purchased, and as good as chains generally in use for the purpose in question; but no chains are manufactured expressly for that purpose. That from latent defects and causes not discernible by the eye, or upon inspection, chains, apparently the best, do break, and that such accidents are inevitable and unavoidable.</p> <p>“ There was no evidence given of any other, or different test or inspection known, or in use by railroads, to determine the sufficiency of brake-chains, than that used by the defendants in the premises; and that extraordinary tests might lessen the tenacity and value of the chains.</p> <p>“The defendants also gave evidence tending to show, that the brakes could, by brakemen who are properly instructed, be pulled home without the brakeman being thrown from the car in consequence of the chain breaking; but that the deceased never was formally directed by the company, or its agents, as to the proper mode of braking the cars; and that no similar injury had happened to any brakeman previously, by the breaking of a chain, although two or three chains weekly were broken upon the cars which arrive at, or depart from, the railroad station of defendants at Cincinnati, said cars, freight and otherwise, being several hundred.</p> <p>“ The defendants also gave evidence tending to show, that brakemen often do so manage-the brakes, that if the chain should break, they would lose their equilibrium, and be in 'imminent danger of being thrown between the cars, instead ■>f back against the end of the cars behind the brake.</p> <p>“Whereupon, the court charged the jury:</p> <p>“ 1. That the railroad company is to be treated, in all respects, as if it were an individual; that as with a person, so the company must be supposed to be present at its shops, directing the work or doing the work itself. Therefore, when the workmen in the shop do a job, it must be taken as done under the immediate superintendence of the company, as if the company were a person. Erom this it follows, that when a car is sent out of the shop, to be used on the road, the company must send it out in as good and perfect a condition as ordinary care and reasonable diligence, by any known means, can make it; and if - it fails to be so, the company is liable for any injury sustained by reason of such failure; and, upon such failure, the jury must be satisfied that the company used all known means to make the car, or, in this case, the chain, as good, strong, and perfect, as it could be made; and for this purpose, if the company relied upon tests, they must apply such known tests as will prove it, beyond reasonable question; and if they rely on tests which do not sufficiently try it, that it is their own folly, and they must be held answerable for it; that no particular tests were required, but the defendants were bound to use the best known tests.</p> <p>“ 2. That it was not sufficient that the chain was made by a manufacturer of the first reputation, nor of the best quality of iron; this is all proper for them to show, and, perhaps, necessary to show; but it must be further shown, that the chain was manufactured in the best known manner.</p> <p>“ 3. That if the company rely upon-inspection, that inspection must be careful, vigilant, effectual, and must be as complete as known means of inspection could make it.</p> <p>“4. That if the company uses a chain that'will break, if that liability to break could have been avoided by the exercise of ordinary and reasonable diligence, in the nse of any known means in the manufacture of the material, tests, etc., the company was bound to avoid it;</p> <p>“ 5. That-.f, after all these known means were exhausted, to procure a perfect and safe chain, yet there be a latent defect, that ordinary and reasonable diligence, by the use of such known means, could not have guarded against, the company would not be liable for the breaking of the chain through such latent defect; but it is not sufficient, that the chain does not present the defect to the eye, but all known means, as elsewhere shown, must be resorted to to procure as perfect a chain as can he made.</p> <p>“ 6. That it is the duty of the railroad company to provide, not only the best known material, but the best known combination in the machinery. Therefore the company must provide the best possible machinery known, to work the brakes with safety, and to work and strain the chain with safety; and if, in this they failed, whereby the chain parted, the company is liable, although the chain itself may have been of the most perfect kind.</p> <p>“ 7. A subordinate servant is not bound by the negligence of servants who are his superiors, and is not bound to look to them alone for his damages in case of injury from such cause; but he has a right to look beyond them to their common principal. It follows that the brakeman is not bound to look alone to the foreman or others in the shop, but may look beyond them to the company for any negligence of such foreman or others in the shop.</p> <p>“ 8. The men in the car shop are no more engaged in a common business with those who run the cars upon the road, than if the car shop did not belong to the railroad company; but to another person of whom they purchased the cars. It is another branch of business not necessarily carried on by the railroad company itself. This applies in some measure to the inspector of cars. He is, in some manner, engaged in the common working of the road, with the brakeman; and, although the brakeman is, in one sense, not under the immediate control of the inspector, yet, he is so, in another sense The brakeman is employed on the road, and is bound to manage the brakes of the car he is on. This is. his contract. The inspector gives him, or passes on to the road, a car, as being safe to run; and it is his duty to work on it, unless he knows it to be defective, and so the inspector may be said to be the superior to the brakeman very much as the superintendent is. He gives him a car that he must work on, and, therefore, for any negligence on the part of the inspector, the defendant is liable.</p> <p>“ And thereupon the defendants’ counsel asked the court to instruct the jury:</p> <p>“ 1. That a brakeman who enters the employ of a railroad company, in consideration of the compensation to be paid him, takes upon himself the ordinary risks of the employment, and the railroad company is not liable to him for injuries through such risk incurred.</p> <p>“ Which instruction the court refused to give, but charged— that such an employee did not take upon himself those risks that an employer is bound to provide against, and herein, that Webb did not take upon himself the risk as to imperfections in the chain, or machinery which worked the chain, which might have been avoided by human foresight by using known means; nor the risk of the workmen in the shops doing, or .neglecting, their duties in putting in this chain and the machinery that worked it.-</p> <p>“ 2. That among the ordinary risks to which brakemen upon a railroad train are subjected, are the liabilities to negligence on the part of the machinists, inspectors and repairers, who have charge of the repairs of cars, and the brake, apparatus; and that for injury suffered through the negligence of said employees of the company, by a brakeman in their employ, the company is not responsible.</p> <p>“ Which instruction the court refused to. give.</p> <p>“ 3. That when a brakeman enters the employ of a railroad company in that capacity,- he does so, upon the presumption that accidents will happen, and when he is furnished with machinery of which he can judge as well as any, he assumes all the risks incident to the use of such machinery.</p> <p>“Which instruction the court refused to give, but did charge, that such brakeman, so furnished with said machinery, assumes all the ordinary risks, to the use of such machinery, but not those arising out of the negligence of the workmen in the car shops, as before explained.</p> <p>“ 4. That in proportion to the greater liability of the brakeman to have accident befall the machinery worked by him, the frequency of such accidents and the difficulty of providing against the same, so does he assume and take upon himself in like proportion, the risks incident thereto, and become responsible for a higher degree of care and diligence to prevent injury from said accidents, either to himself or others.</p> <p>“Which instruction the court refused, as asked, but did instruct the jury, that in such case, the said brakeman assumed and took upon himself in like proportion only, the usual risks incident thereto, and became in like manner responsible for a higher degree of care and diligence to prevent injury by accident to himself or others.</p> <p>“ 5. That if the company used reasonable care and diligence in the selection of workmen to make repairs and to be .employed in the regular service of the company for repairs, and if, nevertheless, one, or more of the workmen, so selected and employed, were guilty of negligence, whereby there was a defect in the chain connected with a brake, and a consequent injury to plaintiff’s intestate, the plaintiff can not recover, without proof of other and distinct negligence on the part of defendants.</p> <p>“ Which instruction the coui’t refused to give, but did charge — that if the jury find, that the railroad company employed inexperienced and incompetent men, either in the shop or as inspector of cars, this would be negligence on the part of the company, for which they would be liable; and so, if' they employ men in those capacities who are careless and negligent of their duties, it is equally a neglect and fault of the company who does act through its agents,for the foreman in the shop, and the inspector is rather an agent than a servant, and as such, whatever occurs in the line of their duty, on their parts, is a neglect of the company, and the company is liable for it.</p> <p>“ 6. That if the only negligence was that of an inspector of cars, selected with reasonable care and diligence by the company, the company is not liable.</p> <p>“ Which instruction the court refused to give, but charged as before said; and further, that in both the inquiry as to the diligence in procuring and using proper machinery, and in inspecting and testing it, the jury should take into consideration the nature of the business engaged in and the great liability to accidents — the importance to human life, both of passengers and employees, of due care and diligence in all these things. That what would be due and reasonable diligence in a buggy, would not be in a railroad car.</p> <p>“7. That if %, corporation should be held responsible that the cars when first used were safe and sufficient; yet, keeping the road and its cars in proper repair afterward, is the work of its servants' as much as any other part of the business of the corporation.</p> <p>“ Which instruction the court refused to give, but chai'ged that the obligation of the railroad to keep its cars in good condition, was continual, and the same with respect to its employees as toward passengers — to all alike; and for damage, by reason of such deficiency or failure to maintain their cars and machinery in good condition,. they were responsible, although the care of repairs, was, of necessity, intrusted to their employees or agents.</p> <p>“ 8. That, where, before the departure of a train, an inspector of cars, with competent assistants, examines the brake and its apparatus, trying the same in the manner usually done by said inspector; and this manner of inspection is the established mode adopted, by which the defendants prove the sufficiency of said brakes on the departure of their trains; the defendant has exercised that degree of care and diligence which is required of it; so that no liability will accrue in favor of a brakeman who is injured by accident to said machinery while he is afterward working the same.</p> <p>“ Which instruction the court declined to give, otherwise than embodied in previous instructions, and because said instruction was matter of evidence, to be considered by the jury, in determining whether due diligence was used by the defendants.</p> <p>“ 9. That, that ordinary care and diligence required of a railroad company, with respect to the brake apparatus of its cars, and in view of accidents to its brakemen who work on the same, do not require that said company shall assume any responsibility for the manufacture of the iron and the chains which go into said machinery, nor that they shall be submitted to extraordinary tests, but that the measure of such care and diligence is fully met when they use chains which, in the judgment of competent mechanics employed by the company to fit and inspect the same, are deemed sufficient for the uses to which said chains are subjected.</p> <p>“ Which instruction the court declined to give, for the reason specified in the last instruction.</p> <p>“ 10. That in the management of their road by the railroad company, in view of their relations toward the employees thereof, the ordinary and reasonable care and diligence required of the companies is, that care and oversight, which -is exercised by men of common judgment in the every-day affairs of life.</p> <p>“ Which instruction the court refused to give in the form asked for, but as embodied in instructions elsewhere given.</p> <p>“ 11. That a railroad company is not responsible to its employees for accidents resulting in bodily injury, where such ordinary and reasonable care and diligence has been exercised, but has failed to prevent such accident; neither for accidents resulting from a latent defect in machinery, or an unexpected casualty, where such defect could not be observed, or said casualty prevented by such ordinary care and diligence.</p> <p>“Which instruction the court declined to give as asked; but gave it with the qualification that ‘ the ordinary and reasonable care and diligence, and the terms latent defect,’ should be understood in the sense laid down, and modified by the court, in its other instructions upon these several points.</p> <p>“12. That where a railroad company employs for their brake apparatus, chains which, upon external view, appear sound, and which, when fitted, are satisfactorily proven by the application of the same kind of force to which, in their proper use, they will be subjected and regularly inspected by the inspector; and thereupon they are turned out of the shop and put to service, the company has used such diligence, that it is discharged from liability to a brakeman in its employ, who is injured by the breaking of the said chain while operated by him.</p> <p>“ Which instruction the court declined to give, on the ground, that the matter of instruction asked for, was within the control of the jury in determining the question of diligence.</p> <p>“ 13. That the rule of law which, with reference to injuries to passengers carried by railroad companies, holds said companies liable for such injuries, except when the defect could not have been avoided or discovered by a careful man, after a careful examination, and the exercise of a sound judgment, or where everything has been done, that human prudence could suggest, does not obtain or govern in a case when a brakeman of the company is injured, in discharge of his duty, by accident to machinery worked by him.</p> <p>“ Which instruction the court declined to give, but did instruct the jury that, in those respects, there was no difference in the liability of the railroad company, whether the person so injured was its employee, or a passenger.</p> <p>“ 14. That in an action by an employee of a railroad company for injury incurred in its service, it is not sufficient that he show that said injury was, in fact, incurred while upon defendants’ cars, and by accident to them, but the burden of proof is devolved upon the plaintiff to show, that said injury could not have been avoided by reasonable diligence on his part; and the accident happened through -the negligence of a fellow-servant, to whom he was directly accountable, and who exercised over him a rightful and constraining control.</p> <p>“Which instruction the court declined to give as asked for, but did instruct the jury that in an action by an employee ■of a railroad company for injury incurred in its service, it is sufficient for him to show that the injury was, in fact, incurred in its service, while in the line of his duty and engaged therein, -and by the breaking of some part of the machinery; and. the burden of proof is thrown upon defendants to show they are not in fault, or, that the plaintiff is in fault.”</p> <p>To these several refusals of the court to charge as requested by defendants below, and to charges as given, they ■excepted.</p> <p>The verdict was for the plaintiff for five thousand dollars.</p> <p>Thereupon the defendants moved the court for a new trial, but upon what grounds the record does not show. The court overruled this motion and entered judgment on the verdict, and the defendants excepted, and filed a petition in error in this court to. reverse said judgment, claiming, in substance, that the court below erred :</p> <p>1. In the instructions given to the jury.</p> <p>2. In refusing to instruct the jury as requested by the defendants.</p> <p>8. In overruling the motion for a new trial.</p>

<p>1. The bank of K., a banking institution of the state of Virginia, and authorized by its charter to buy, sell and negotiate bills of exchange, etc., acting by its cashier at C., in this state, loaned money on the discount of such bills, and among others, discounted a bill drawn by P., and others, upon L., in the city of New York, which bill was assigned by said bank, before its maturity to a third party, without notice, actual or constructive, of the manner in which the bill was acquired by the bank. After protest for nonpayment, the indorsee brought suit thereon against the drawers. Held: That such indorsee ma^ maintain an action upon said bill against the drawers, and that his right to do so is not affected by section 1 of the act of March 12, 1845 (1 S. & C. Stat. 152), “ to prohibit unauthorized banking,” etc.</p> <p>■2. The third answer alleged, that the bill was made payable at New York as a mere device on the part of the cashier, to secure the bank a greater profit than • could be realized if it had been made payable at the place where discounted, the cashier at the time well knowing, and haying good reason to believe, that the parties thereto would not be prepared, and did not intend, to pay the same at the place therein named, thereby securing to said bank, in excess of lawful interest, the premium of exchange, equal to three per cent., but did not allege any notice, actual or constructive, to such indorsee, of the above circumstances. Upon demurrer to answer, held : that the answer does not contain facts sufficient to constitute a defense to the action.</p> <p>3. The fourth answer, in avoidance of the statutory damages upon protested bills of exchange, alleged, that at the time said bill was discounted, it was not intended by the cashier and P., who negotiated the loan, that the bill should be paid by L., upon whom it was drawn, but failed to aver or show that the indorsee, when he acquired the bill, had any notice,' actual or constructive, of this intention or secret understanding of the parties to said bill. On demurrer, held: that the answer does not contain facts sufficient to constitute a defense to such statutory damages.</p>

<p>The vendor of goocfs on a credit, having shipped them, discovered that the vendee was insolvent, and replevied the goods from a constable who had taken them, under an order of attachment, as the property of the vendee, while on their transit. Held : that the vendor had a right to stop the goods in transitu. That the right to stoppage in transitu might be exercised, as well where the insolvency of the vendee existed at the time of sale as where it occurred afterward, there being no waiver of the right from knowledge of the insolvency, or otherwise; and that insolvency might be established by proof of inability to pay, and proof of some overt act of insolvency, such as a stoppage of payment, is not requisite.</p>

<p>Error to the district court of Ottawa county.</p> <p>Hiram Gilson brought an action, in the court of common pleas of Ottawa county, against William B. Lockwood and Gertrude Lockwood, upon the covenants of a deed.</p> <p>In his petition, Gilson stated, in substance, that William B. Lockwood and wife, and Gertrude Lockwood, on the 6th of December, 1850, in consideration of $626 66, executed and deliveréd to him a deed conveying to him, in fee simple, certain lands described in the deed (of which a copy is attached to the petition), with covenants on the part of said William B. and Gertrude, that they were lawfully seized of the premises, that the same were free and clear of all incumbrances, and that they would warrant and defend the premises against the lawful claims of all persons whomsoever.</p> <p>The petition further states, that said William B. and Gertrude were not, at the time of the execution and delivery of the deed, lawfully seized of the premises, but that one Frederick Bissell, was the owner and seized in fee, of one undivided half of the premises. That, relying upon his title under the deed, he, Hiram Gilson, sold and conveyed forty acres of the land to one Levi Gilson. That on the 20th of March, 1854, Bissell brought suit in the court of common pleas of Sandusky county, against him, said Hiram, and Levi Gilson, to recover a:q undivided half of the land, and that while this suit was pending in the common pleas, he, Hiram, notified said William B. Lockwood of the fact, and requested him to defend against Bissell’s claim, but that he neglected and refused so to do. That judgment went against Bissell in the common pleas, and that he appealed to the district court,- and that while the suit was pending there, he, Hiram, again notified William B. Lockwood of the fact, and again requested him to defend the suit, but that he again neglected and refused so to do. That the suit was finally decided, adjudging to Bissell one undivided half of the land, and that his portion be set off in severalty. 1 That after the recovery by Bissell, he, Hiram, was compelled to and did purchase Levi Gilson’s interest in the land, to avoid a suit upon the covenants in his deed to Levi. That afterward Bissell’s undivided half of the land was set off to him in severalty, and that he, Hiram, was thereby ousted and dispossessed of the west half of the land, to his damage of seven hundred dollars, for which he asks judgment, etc.</p> <p>Erom the copy of the deed attached to the petition, it appears that the grantors are named as “ Gertrude Lockwood, administratrix of S. M. Lockwood, W. B. Lockwood and Sarah Lockwood, wife of said W.'B. Lockwood,” and that they sign and seal the deed thus : “ Gertrude Lockwood, administratrix of S. M. Lockwood’s estate [seal], W. B. Lockwood [seal], Sarah Lockwood [seal].”</p> <p>The covenants in the deed are thus expressed: “ And the said Gertrude, W. B. Lockwood and Sarah Lockwood for themselves and heirs and assigns do hereby covenant with said Gilson, his heirs and assigns, that they are lawfully seized of the premises aforesaid; that the premises are free and clear from all incumbrances whatsoever; and that they will forever warrant and defend the same with the appurtenances, unto the said Hiram Gilson, his heirs and assigns, against the lawful claims of all persons whomsoever.”</p> <p>Gertrude Lockwood filed an answer to the petition:</p> <p>1. That several causes of action are improperly joined therein.</p> <p>2. That she did not sign and seal the deed in her individual capacity, but as administratrix of Samuel M. Lockwood, deceased, and that .she is not bound individually by any covenants or agreements in the deed. And that she is not in-, debted to Hiram Gilson in any sum whatever.</p> <p>3. That the supp< sed obligation was not executed by her for the consideration mentioned in the deed, nor for any other valid consideration.</p> <p>Hiram Gilson replied that Gertrude Lockwood did, for herself, execute and deliver the deed in the petition mentioned, as therein charged, and upon a good and sufficient consideration.</p> <p>William B. Lockwood neither answered nor demurred to the petition.</p> <p>The cause was submitted to the court of common jileas upon the petition, answer of Gertrude Lockwood and reply, and the court found “ that the defendants did make, execute and deliver to plaintiff, a deed for the lands and tenements in said petition described, with full covenants of warranty as charged in said petition, and that the plaintiff was evicted of one equal one half of said land, as charged in said petition, at the time, and in the manner in said petition described” and entered judgment against the defendants for $338 26 and costs, and Gertrude Lockwood excepted. And to reverse the judgment, filed her petition in error in the district court, assigning that the common pleas erred because—</p> <p>1. The facts stated in the petition of Gilson are not sufficient to maintain the action.</p> <p>2. The court did not dismiss the petition as prayed for in the answer thereto.</p> <p>3. In finding that she was bound in her individual capacity with William B. Lockwood.</p> <p>4. In giving judgment against her, instead of for her.</p> <p>The district court affirmed the judgment of the ■common pleas, and to reverse that judgment, as well as that of the common pleas, Gertrude Lockwood filed a petition in error in this court, assigning for error:</p> <p>1. The petition of Gilson does not state facts sufficient to constitute a cause of action.</p> <p>2. Said petition does not aver any breach óf the alleged covenants in the deed.</p> <p>3. She executed the deed as administratrix of Samuel M. Lockwood, and was bound by the covenants of the deed, if at all, as administratrix, and not otherwise.</p> <p>4. The deed was executed without 'consideration.</p>

<p>Error t) the court of common pleas of Ross county.</p> <p>Suit was brought in the court below, by the defendant in error, as administrator with the will annexed of Anthony Williams, deceased, to recover of the plaintiff in error, a balance claimed to be due on a promissory note, executed and delivered to the defendant in error, in his capacity of administrator.</p> <p>The defense set up by the original answer was threefold:</p> <p>First, a former recovery, upon the same cause of action, in a suit before a justice of the peace, tried by a jury, and in Avhich the plaintiff below obtained a verdict and judgment in his favor, from which he took an appeal to the court of common pleas, where his appeal was dismissed.</p> <p>In the second and third defenses it was averred, that the note sued upon was given in part payment for lands belonging to the estate of said Williams, deceased, which were sold by the plaintiff, as administrator, and of which the plaintiff, at the time, of sale, had promised to give immediate possession to the purchaser, and that defendant, upon his purchasing and receiving a deed for said lands, had been kept out of possession thereof, for a specified time, by a tenant lawfully holding the same; and incurred expense in recovering possession. This expense, together with the damage resulting from the failure to get immediate possession, the defendant sought to recoup, by way of counter-claim.</p> <p>To the first defense the plaintiff replied, denying that any judgment had been rendered on the note in the petition mentioned, or upon the verdict of the jury, as stated in the answer ; and also demurred to the several matters of counterclaim.</p> <p>These demurrers were sustained by the court; and the defendant excepted; and thereupon, by leave of the court, filed an amended answer, differing from the original answer only in averring that no judgment had been rendered upon the verdict, in the former action before the justice, and that the verdict had never been set aside, nor the said action dismissed, but was still pending before the said justice; and in stating the former grounds of counter-claim, as a partial failure of consideration.</p> <p>To this amended answer the plaintiff demurred, and his demurrer was sustained; to which the defendant excepted, and not answering further, judgment was rendered against the defendant, as upon default — to which exception was also taken.</p> <p>It is claimed that the court erred in rendering judgment against the defendant below, as upon default, without passing upon the issue presented by the first defense in the original answer, and in sustaining the demurrers to the second and third defenses of both answers, and to the first defense of the amended answer.</p>

<p>In an action by an indorsee upon a negotiable note, obtained before due, against tbe makers, the defendants setup by their answer, as a defense, that the note was held by the payee without consideration, and that he wrongfully .transferred it in fraud of the rights of the defendants, and that the plaintiff had full knowledge of the premises, when he received the note. Held,</p> <p>X That upon the defendants proving the want of consideration and fraudulent; transfer of the note as between themselves and the payee, it was incumbent upon the plaintiff to show that he received the note for a valid consideration.</p> <p>2. That the plaintiff having proved that he paid value for the note, and received it indorsed, and transferred to him, before due, an d in the usual course of trade, it was not incumbent upon him to prove that he received the same in ignorance of the rights of the defendant as against the payee.</p> <p>3. That upon proof by the plaintiff of so receiving the note before due in the usual course of business, for value, the proof so made by the defendants was thereby overcome, and the plaintiff’s presumptive right to recover restored, and that the burden of proof then shifted to the defendants, to show knowledge on the part of the plaintiff, of such want of consideration and fraud.</p>

<p>Error to the court of common pleas of Darke county. Reserved in the district court.</p> <p>In October, 1858, the plaintiff, Martin, instituted proceedings in replevin against Armstrong, the defendant, before one Daniel French, a justice of the peace of Darke county, for the recovery of a cow, alleged to be the property of the’ plaintiff, and wrongfully detained by the defendant, but asking no recovery in damages.</p> <p>The cow was seized under the order issued in the cause and delivered over to the plaintiff, he having executed an undertaking, under the statute, to the defendant in double the appraised value of the cow.</p> <p>The cause, upon the requisition of the defendant, was tried by a jury and a verdict rendered finding the right of property, etc., in the defendant and assessing his damages at $14 05.</p> <p>Judgment was rendered upon this verdict by the justice, and the cause appealed to the court of common pleas.</p> <p>At the December term, 1858, of the court of common pleas, the defendant by his counsel, moved to dismiss the appeal, for the reason, that said cause is not, under the statute, appealable ; it having been tried by a jury and neither party having claimed in his bill of particulars, a sum exceeding twenty dollars.</p> <p>This motion was sustained and the appeal dismissed by the court and the plaintiff excepted.</p> <p>To reverse the order dismissing the appeal, a petition in. error was filed in the district court and was therein reserved for decision here.</p>

<p>It appeared from the statement in the bill of exceptions, that the person who solemnized a marriage had no license or authority under the laws of the state. There was no other objection to the form of the marriage, and thereafter the parties cohabited as husband and wife. Held, that it was to be inferred from the statement that the parties openly and mutually consented to a contract of present marriage — then to become husband and wife, and thereafter cohabited as such, and that this constituted a legal marriage, and the man having then a wife living, might, on proof of such second marriage, be properly convicted of bigamy.</p>

<p>Where land was conveyed by absolute deed, but there was a collateral contract showing that it was intended as a security for a loan, and, the grantor dying insolvent before the loan became due, his administrators relinquished all claim to the land for the payment of debts and directed the grantee to take the land for the debt, which, from the circumstances, it appeared he did never afterward making any demand for the debt, and taking possession of the land, which in its then value did not exceed the amount of the debt. Held : that the heirs at law, being adults, although two of them were married women, making no claim for the redemption of the land, until after the lapse of twenty-seven years, were, under the circumstances, precluded by the adjustment of the claim made by the administrators, and by the lapse of time, from any relief in equity.</p>

The action was in debt, and issue was joined upon the plea of nil debet. Judgment was rendered in that court in favor of the plaintiff, which was subsequently affirmed, to the extent of the-penalty of the bond, upon writ of error, by the supreme court,, upon the circuit.

<p>When an assignment of property to a trustee is made by a debtor, in contemplation of insolvency, and in trust, with the design to prefer one or more creditors to the exclusion of others, and the instrument of assignment is delivered to the trustee and accepted by him, the same becomes operative without the assent or acceptance of creditors not named or provided for in the instrument; and whatever arrangement may subsequently be made or attempted by assignor and trustee, without the consent of such creditors, and with a view to render the assignment inoperative, the statute of March 14,1853, “ declaring the effect of assignments to trustees in contemplation of insolvency,” seizes upon the assignment, and causes it to “ enure to the benefit of all the creditors, in proportion to their respective demands.”</p>

Mandamus. The alternative writ of mandamus, the bonds, the payment of which it is sought to enforce, the parts of the acts of the general assembly, applicable to the action of the commissioners in issuing the bonds, and the 1st, 2d,‘3d and 8th parts of the .answer of the commissioners, are stated in the report of the case, in 11 Ohio St. Rep. 183 et seq., when it was heard on demurrer to those parts of the answer.

The Toledo Eire and Marine Insurance Company filed'its petition in the court of common pleas of Lucas county, against John S. Johnson and White’s Bank of Buffalo, to subject twenty shares of the capital stock of the company, standing in the name of John S. Johnson, to the payment of a bill of exchange, bearing date October 18, 1856, drawn by W. S. Johnson & Co., upon and accepted by John S Johnson, of Buffalo, for the payment of $1000 to the order of Ketcham, Berdan & Co.,…

<p>Where the co-obligors of F., in a promissory note made in New Mexico, and bearing ten per cent, interest, after a partial payment thereon, assume, in the absence of F., to renew the saíne for the balance still due thereon; and accordingly such co.-obligors, at Sante Fe, subscribe a new note, dated at Santa Fe, and stipulating for ten fer cent, interest ;• and F. afterward, in the state of Missouri, with full knowledge of all the circumstances, also signs the new note, he thereby ratifies the agreement made by his co-obligors, and the new note is to be regarded as made in New Mexico, and is governed by the laws of that territory, in respect to the rate of interest accruing thereon, and the legal effect'of the stipulation for interest embodied therein.</p>

<p>Information in the nature of quo warranto.</p>

The relator is treasurer of Franklin county. Ilis term of office commenced on the first Monday of September, 1860, and will continue to the first Monday of September, 1862. 2 S. & C. 1479, sec. 15. He is making the semi-annual settlement with the defendant, who is auditor of the county, required by the statute. 2 S. & C. 1477, sec. 8. Upon this settlement, it is the duty of the auditor to allow him the compensation to which he is entitled by law for his services as treasurer.

<p>Error to the district court of Hamilton county.</p>

<p>Motion for leave to file petition in error to reverse the judgment of the district court of Knox county.</p>

<p>Error to the court of common pleas of Champaign county. Reserved in the district court.</p>

<p>Error to the court of common pleas of Wyandot county. Reserved in the district court.</p>

<p>Error to the district court of Yinton county.</p>

<p>Error to the court of common pleas of Hamilton county.</p>

<p>Error to the district court of Erie county.</p>

<p>Error to the district court .of Ashland county.</p>

Reserved in the district court of Champaign county. The plaintiffs filed a petition, showing that under certain acts of the general assembly, and upon certain conditions prescribed in those acts, the trustees of Goshen Township were authorized to subscribe stock in the Springfield and Mansfield Railroad Company, the name of which was after ward changed to the Springfield, Mt. Yernon and Pittsburg Railroad Company.

Reserved in tbe district court of Warren county. • The amended petition of the plaintiff filed in the court of common pleas of Warren county, alleges that in March, 1857, John A. Corwin sold and conveyed to the defendant, Alex•ander Cowan, certain lands and tenements with their appurtenances, known as “ the Warren County Canal,” situated in the counties of Warren and Butler, in the state of Ohio; that :said Cowan executed and delivered to„.said John A. Corwin, his three…

The original petition states that Elizabeth Anderson, wife of Jordan Anderson, is in possession of, and seized of a perpetual leasehold estate, in the land along the north bank of the Whitewater canal (describing it), which is claimed by the county commissioners as a site for a county road.

<p>1. The interest of each partner in the tangible property of a firm, is liable to . seizure upon execution by his. separate creditor.</p> <p>2. Each partner holds his interest in the joint property subject to a trust for the partnership creditors and the claims of his several copartners, so that the beneficial interest of each, is his residuary share, after the partnership accounts are settled and the rights of the parties inter sese adjusted.</p> <p>3. The levy by such separate creditor, must be on an undivided interest in such property, equal to the debtor partner’s original share in the firm, but such creditor and the purchaser at the sale, acquire only the beneficial interest of the debtor partner therein.</p> <p>4 The separate creditor may, at anytime after such levy, and before a sale, file a petition against the other partners, for an account of the joint business and the ascertainment of the beneficial interest of his debtor in the articles levied on, and have such-interest subjected to the payment of his judgment.</p>