Volume 14 — Ohio State Reports, New Series

<p>3.'where a pariy reoeives a note as collateral security for an existing debt, without any special agreement, he is bound to use ordinary care and diligence in collecting it, and is responsible for any' loss which may happen to the other party by reason of a want of such care and diligence.</p> <p>2. The rights and liabilities of the parties in such cases, are governed by the general law of agency, and not by the strict rules of commercial law, applicable to negotiable paper. And where there is a special agreement between the parties, its terms will control the general rule.</p> <p>3. Where a debtor assigns to his creditor, as collateral security, a negotiable promissory note of a third party, before maturity, and by the terms of the assignment waives demand and notice of nonpayment, such creditor, acting in good faith, is not bound to demand or insist upon payment of the security before its maturity, though he may know, at the time, that payment would be made, if insisted on.'</p>

<p>On a natural mill-stream there were three successive dams and mills. E., being the owner of the upper and lower mills only, dug and opened a race-way on his own land from the dam of his lower mill to the stream above the dam of the middle mill, belonging to another person, so as to tap the stream there, and partially to divert its waters from the middle mill. Subsequently he purchased the middle mill, and became the owner of the three mills, and of all the lands affected by them, their dams, races, and appurtenances, and continued to use said race-way as an actual appurtenance to the lower mill, until, by deeds of even date, he conveyed said mills, with their appurtenances, to his three sons; the upper mill to J. E., the middle mill to J., and the lower mill to W.</p> <p>In an action by the owner of the middle mill, grantee of J., against the owner of the lower mill, grantee of W., to recover damages for the continued partial diversion of the water from the middle mill by means of said race-way; held: that the grantees of E., and those holding under them respectively, each took, and was entitled to hold his mill with its appurtenances, as it actually existed in fact and in use at the time of the conveyances.from E. Morgan v. Mason, 20 Ohio Rep. 401, followed and approved.</p>

<p>"X. Where property easily removable (ex gra,, a stallion) is seized in execution, but left in the possession and use of the defendant, a delay for an unreasonable time, to offer said property for sale with the sanction and assent of the plaintiff, will have the effact of postponing such levy to one made upon.a junior execution.</p> <p>5. The question whether the delay, if any, was reasonable or unreasonable, depends on all, the circumstances surrounding the parties and the property seized in execution, and is, peculiarly, a question for the jury,under the instructions of the court.</p> <p>3. Where in such ease there is evidence fairly tending to prove such unreasonable delay, it is error for the court to foreclose inquiry, and withdraw the question from the jury by instructing them that such prior levy was valid and subsisting, at the time the lien of the junior execution attached.</p>

<p>X. A plaintiff, after an answer amounting to a counterclaim has been filed, can not dismiss the action.</p> <p>2. An answer, however unskillfully and inartifieially drawn, which contains the necessary facts to warrant affirmative relief to the defendant, will be treated as a counterclaim, and such relief awarded.</p> <p>3. After a case is reserved to this court upon issues joined and an agreed statement of facts, no change of the pleadings, making new issues and requiring further evidence, will be allowed, unless it is made clear that without it the rights of a party will be sacrificed, or plain injustice done.</p> <p>4. Where the answeristhatofachurch corporation, founded upon corporate action taken by a majority of its members, and by them expressly directed to be filed, an amendment stating a rescission of such action, adopted at an extra meeting convened without sufficient notice and by a small number of the members, will not be allowed.</p> <p>5. ^Resolutions adopted by such corporation, directing a sale of church property and an appropriation of the proceeds, must be taken as a whole, and no sale * will be allowed unless the appropriation of the proceeds is legal.</p> <p>6. It is the right of any member of the corporation to prevent, by injunction, a breach of trust by the majority.</p> <p>T. Such sale and appropriation may be lawfully ordered at the regular annual meeting of the corporation without special notice ; and, for this purpose, ad* journed sessions of such meeting are but a lawful prolongation of it.</p> <p>8. Where the right to vote “ upon all matters, touching the interests of the corporation,” is secured by the charter to “ each member,” a further provision giving to pew owners the privileges of membership, does not restrict the right of voting to them j but it belongs to every one admitted into the society by a majority of the members of the corporation.</p> <p>9. Where the relief sought is purely preventive, a court of equity will not continue or make perpetual an injunction, after the cause for which it was granted has been removed, and danger to the rights of the plaintiff no longer exists.</p> <p>10. A trustee in doubt as to his powers, has the right to apply to a court of equity to define them, and give judicial sanction to his acts *, but in such case,, the court will only define the trusts, and will not order a sale of property where no adverse right is asserted.</p> <p>11. Members who secede from a church organization, thereby forfeit all right to any part of the church property.</p> <p>12. Whether there has been a secession, within the meaning of this rule, is a mixed question of law and fact, to be decided upon the evidence with a view to all the circumstances, including the acts of the parties and the motives which have prompted such acts.</p> <p>13. A conditional separation of the members into two bodies, with the consent and approval of a majority, and founded upon a contemplated division of the church property — the members still continuing to exercise their rights in the-corporation — is not a secession.</p> <p>14. Where the charter of a church corporation gives the power, with the consent of a majority of its members, to dispose of the property “for the purpose of promoting the interests of their church,” and such majority decide that the interests of the church will be promoted by a division of the membership into two ecclesiastical bodies, and an equitable division of the church property, and for this purpose order a sale and division of such property : held, that such sale and division involved no violation of the charter, and no breach of trust.</p>

<p>Error to tbe district court of Greene county.</p> <p>The original action was brought by tbe plaintiff for damages fór tbe killing bis horse by the negligent running of tbe locomotive of tbe defendant. Tbe answer denied tbe alleged negligence.</p> <p>At tbe trial in tbe common pleas, tbe plaintiff offered evidence tending to prove his case, and among other things proved, that tbe horse having been turned into a pasture, “ through defect of fences, escaped therefrom into an adjoining field, through which the said railroad of the defendant ran and was located, and then wandered on to the track of said railroad, which was not fenced through said field on the west side, from which said horse approached, and got upon the same, and was then and there run against by a locomotive, and train of cars of the defendant, whereby three of his legs were cut off; and the defendant thereupon offered evidence, among other things, that said plaintiff, at the time said horse was injured as aforesaid, was in possession of said pasture and said field, as the tenant of Andrew J. Holland, ¥m. Mc.D. Holland, and George W. Holland, the owners thereof; that said Hollands,, who are infants, acquired the title to said field on the 13th day of May, A. D., 1858, by deed in fee, without exception or reservation, through divers mesne conveyances from Grafton Tan-quay; that said Tanquay with his wife, he being then the owner in fee simple of said field, by deed duly executed, on the 28th day of September, A. D., 1853, and duly recorded in the land records of said county, before said Hollands acquired title as aforesaid, for the consideration of one hundred and fifty dollars, sold and conveyed to the defendant, and its successors forever, the right of way for the railway of said defendant through said field, thirty-nine feet on the east, and twenty-seven feet on the west side of the center of the track of the railway of said defendant, as the same was then located and built; and that said Tanquay and wife for themselves, their heirs and assigns, thereby covenanted 'with said defendants and its successors, to build and forever keep up on each side of said right of way through said field, a good substantial board fence, such a fence as will be considered a lawful fence,, and that said defendant and its successors, should have the exclusive possession and control of said right of way, subject to-the right of said Tanquay, and his heirs and assigns, to pass and repass over the same in such way, and at such time as would not interfere with running of said railway by the trains of said company, and its successors.”</p> <p>“And thereupon the court said to and charged the jury,, that the said covenant of the said Tanquay and wife was a personal covenant merely, and did not bind the said plaintiff nor Ms lessors, and that the rights of the parties to this suit were not affected thereby. And the court thereupon further charged the jury, that if they believed said defendant or its ¡agents, by the exercise of ordinary care might have avoided •‘■■he injury to said horse, then the defendant was liable, and the jury should find for the plaintiff, notwithstanding said covenant.’’ The defendant excepted. The verdict and judgment in the common pleas was for the plaintiff, but on error this judgment was reversed in the district court. To reverse the judgment of the district court, the plaintiff filed a petition in error in tMs <*ourt.</p>

<p>1. An indictment under the 29th section of the crimes act, for selling and disposing of counterfeit hank notes, should sot forth truly and precisely all th parts of the alleged counterfeit notes which constitute the terms of their contract. But it is not necessary to the validity of the indictment, to set out the numbers, vignettes, mottoes, and devices, or the words and figures in the margin, which constitute no part of the contract of the instrument.</p> <p>2. But if the indictment contain allegations, descriptive of the identity of the bills charged to have been sold, such allegations, though unnecessary, can not be rejected as surplusage.</p> <p>3. Therefore, where the indictment describes the bills sold as numbered 175, and the proof relates only to bills numbered 1750, and 1758, the variance will be fatal.</p> <p>4. Proof tending to connect another party with the defendant as a pariiceps criminis, will not justify the introduction in evidonce of counterfeit bills found upon such other party fifty days after.the sale charged, though such bills be of the same manufacture with those proved to have been sold by the defendant ; there being no evidence of any intercourse or association between the defendant and such other party during the intervening time.</p> <p>3. Upon the trial of a criminal cause, a defendant may give evidence of his general good character; and such evidence may thereupon be rebutted or disproved by the prosecution; but it is not competent to rebut such evidence of good character by proof of a bad local reputation, limited to a community or neighborhood remote from the defendant’s residence, where he has never lived, and where he is not shown to be generally known or acquainted; nor by proof of reports relating to particular facts.</p>

<p>Ho civil action will lie against a supervisor of roads and highways, at the suit of an individual, to recover damages for an injury which he has sustained, in consequence of the neglect of the supervisor to keep a bridge within his district in repair. The only remedy for such neglect is a prosecution under the statute for the penalty it prescribes.</p>

<p>Error to tbe district court of Erie county.</p> <p>The original action was brought on the bond of Jennings, a constable, against him and his sureties. The condition of the bond was, that the constable “ should pay over all moneys that might come into his hands by virtue of his said office, and diligently and faithfully perform all the duties of said office.” The breach in substance was, that the constable, having in his hands a writ of replevin, sued out by Grersham Clark against Charles Jefferson, unlawfully took from the plaintiff Story, certain goods and chattels.</p> <p>Before bringing the present action, the plaintiff had brought an action against Jennings, the constable, for the trespass in taking his goods, and had recovered damages, which, on execution being issued, he had failed to collect, Jennings being insolvent.</p> <p>This action on the bond was then brought against the constable and his sureties, for his official misconduct, in taking, under the writ of replevin against Jefferson, goods the property of the plaintiff. (See 4 Ohio St. Rep. 418.)</p> <p>Upon the trial of the action in the district court on appeal, the plaintiff offered in evidence the record of the case of the plaintiff against Jennings, showing the recovery in the action of trespass. There was no proof that the other defendants, sureties of Jennings, had any notice of this action. Upon objection, the court rejected the evidence, and exception was taken.</p> <p>It appearing from the evidence that the goods described in the writ of replevin, had once been the goods of Jefferson, the defendant in replevin, but were claimed by plaintiff under a purchase from Jefferson, and at the time of their being taken by the constable were in the possession of the plaintiff, the court, among other matters, charged the jury : “ that if they found from the testimony that the defendant Jennings replevied the identical property which by his writ he was ordered to replevy, that then, and in that case, his writ was a justification to him for that purpose, and the plaintiff could not recover— although the jury should find that the property was the property of John Story, and not the property of Clark or Jefferson.”</p> <p>The verdict being for the defendant, judgment was rendered accordingly; and to reverse it, the plaintiff filed a petition in error in this court.</p>

<p>A purchase of real estate at a judicial sale, by one who, at the appraisement under which such sale was made, served as an appraiser, is not, under the provisions of section 441 of the code, strictly void, but is voidable only \ and will “ be considered fraudulent and void,” only on an interposition or proceeding by a party in interest directly for the purpose of avoiding such sale.</p>

<p>Error to the district court of Cuyahoga county.</p> <p>The original action was brought in the court of common pleas of Cuyahoga county, by Stetson against Walker, to recover the amount of two bills of exchange.</p> <p>The bills were drawn by Walker, at Cleveland, one on the 14th, and the other on the 15th of August, 1856, on John T. Gleason, No. 115 Chambers street, New York, payable to the order of Walker, at the Ocean Bank, in said city, three months after their respective dates, and were indorsed by Walker to-Stetson.</p> <p>The case went to the district court by appeal, and was therein tried to a jury, at the September term, 1860, and resulted in a verdict and judgment in favor of Stetson. To reverse that judgment, Walker filed his petition in error in this court, assigning for error the refusal of the court to charge as requested, and the charge as given.</p> <p>The substance of the evidence, the charge asked and refused, and the charge given, and the question thereby raised, appear in the opinion of the court.</p>

<p>1. Though admissions and declarations in pais may be strong evidence against the party making them, yet they will operate as an estoppel in favor only of those whose conduct, it may be fairly supposed, they were intended to influence. Strangers, casually hearing of such declarations, can not, by acting on them, preclude the party from showing the truth.</p> <p>2. A quantity of railroad iron was in the custody of forwarding agents, who-held the same for A., the latter being entitled to the possession thereof, under a conveyance from B., which was intended to operate as a security for the-payment of a debt due from B. to A. Through a mistake of facts, A. wrote to the agents instructing them to “ release the iron to B., as all interests had been settledand the agents thereupon notified B. that they held the iron for him. After this, but before the iron was actually delivered to B., a judgment creditor of B. caused an execution to be levied on a part of the iron, an cl soon afterward A., upon discovering his mistake, countermanded his instructions. Held: That under these circumstances, the ricchts of the creditor under his levy, w-ere no greater than those of B., his debtor at the time of the levy j and that the law will not permit a mere mistake of facts, to give an effect, in favor of the creditor, to the constructive possession of B., inconsistent with the rights of A. under the contract subsisting between tho parties.</p>

<p>The creditor of a person deceased, exhibited his claim against the estate of his debtor to the executors, for the distinct purpose, of having it allowed by the executors as a valid claim against the estate 5 and the executors thereupon distinctly refused to allow the claim, and told the creditor to consider it as rejected by them. Held:</p> <p>1. That such refusal by the executors was a rejection of the claim, within the meaning of section 90 of the “ act to provide for the settlement of the estates of deceased persons '' 1 S. & 0. Rev. Stat. 582), although no formal demand was made at the time that the executors should indorse their allowance upon said claim ,* and that the six months' limitation specified in said section, commenced to run from the date of such rejection.</p> <p>2. The last clause of section 90 of said act is not restrictive but in aid of the first, and creates a constructive refusal, for the benefit of the creditor, when the executor, upon such presentation, waives or evades definite action thereon.</p>

<p>Where a testator, by his will, devises a house and lot to his wife for life,, in lieu of dower, and also gives to her certain pecuniary legacies and specific articles of personalty) gives a pecuniary legacy to one of his sons; gives to an infant daughter the sum of fifteen hundred dollars, “ to be paid to her when she arrives at the agt> of majority; the interest thereon to be paid annually after” his “ decease, for her support and education until she arrives at the age of majority 5” and there being no other provision in the will for the daughter; and then devises all the residue of his estate, both real and personal,to his sons $ and the personal assets of the estate having proved to be insufficient to pay both debts and legacies: Held, That the payment of the daughter’s legacy was proper/y chargable upon the residuary real estate*</p>

<p>On the 16th of August, 1858, defendants entered into a recognizance in due form, before a justice of the peace, for the appearance of one R.., at the next term of the common pleas of the county, to answer a charge of crime. The recognizance, with a transcript of the proceedings, was regularly and in proper time returned by the justice to the common pleas, where, upon the same day, the recognizance was filed by the clerk and recorded at length in the record book of that court; but no “ memorandum thereof ” was by him ((entered in the minute book of the court.” At the ensuing term of the court, R. was regularly indicted for the crime, and failing to appear, the recognizance was forfeited, and an entry thereof made upon the journal. Upon these facts— held :</p> <p>'That a failure of the clerk to enter the memorandum of the recognizance in the minute book of the court, as provided in the act of March 12, 1853, “ relating to the entry and recording of recognizances in the court of common pleas u (2 S. & C. Stat. 1193), is not fatal to the right of recovery upon the recognizance — because:</p> <p>1. The memorandum provided for is merely a temporary substitute for .the full • record in the common pleas.</p> <p>2. The recognizance became a record of the common pleas by being recorded at length, by the clerk, in the record book of that court.</p>

<p>1. A magistrate before whom a deed is acknowledged, and who certifies that tha grantor “ acknowledged the same to be his voluntary act and deed," is not thereby precluded from testifying to the legal incapacity of the grantor at the time.</p> <p>2, A deed of gift executed and acknowledged by one having legal capacity to convey, can not be avoided at laxo, by proof that it was obtained by undue mfiuence. The only remedy in such case is in equity.</p>

<p>1. A joint will is unknown to the testamentary law of this state, and is inoon-* sistent with the policy of its legislation. And where a husband and wife,, each being the separate owner of property, join in the execution of an instrument in the form of a will, and treating the separate property of eaoh as a joint fund, bequeathed legacies and devised lands to divers persons, the same-can not be admitted to probate as the joint will of both parties, nor as the-separate will of either.</p> <p>2. Although some of the provisions contained in the body of such a will may be,, in form and effee»\ several; yet, inasmuch as the provisions of such a will partake of the nature of a compact, in which such provision is influenced by all the rest, all the provisions of the will must stand or fall together.</p> <p>3. In a proceeding under the statute to contest the validity of a will, it is error to render final judgment on demurrer to an answer. An issue must be made up, and tried by a jury, under proper instructions by the court.</p>

<p>JM. having a life estate in certain lots in the city of Cincinnati, leased them for terms which had not expired at the time of his death. In one of the leases, he covenanted with the lessee or his assignee to pay, at the expiration of the term, for certain buildings which the latter was authorized to erect upon the lot. Hold : That his executrix might lawfully settle and allow the necessary sum to cover the value of the buildings and the damages arising to the tenant, in the one case, and a reasonable sum to the remainder man for a confirmation of the lease in the other, and that such sums were properly chargeable to, and might be collected from, the estate, when it appeared that such arrangements were manifestly beneficial to the estate, and were entered into in good faith.</p>

<p>1. When a constable makes a levy by virtue of an execution in his hands, upon property which is afterward replevied by a person claiming title to the property, by purchase from the judgment debtor prior to the* levy, the plaintiff in replevin on executing an undertaking as required by law, acquires aright to the possession of the property, and all the interest in it which had been acquired by such constable by virtue of his levy; and this, notwithstanding it should be found that the alleged purchase by the plaintiff in replevin, was fraudulent and void as against creditors.</p> <p>2. Such right of possession and interest is paramount to any right to be acquired by a subsequent levy on the same property under an execution against the same judgment debtor.</p> <p>3. When such subsequent levy is made and the officer sells the property, such plaintiff in replevin may maintain an action of replevin against the purchaser.</p>

<p>1* The cases of Coe v. The Columbus, Piqua and Indiana Railroad Company, 10 Ohio St. Pep, 372, and Coe v. The Knox County Ranh, Ibid. 412, have settled, that a railroad company deriving its powers under the “ Act regulating railroad companies/* passed February 11, 1848, may effectually mortgage its property connected with the use of its franchise, whether real or personal, to be subsequently acquired; but that the existence of such a mortgage does not operate to exempt such property, in its nature personal, and while it remains in possession of the corporation, from being levied upon by judgment creditors of the company.</p> <p>2. A power inserted in a mortgage authorizing the mortgagee, upon default of payment, to take possession of the railroad and other property connected therewith, and use or sell the same, must be exerted upon all the property mortgaged; and does not authorize the mortgagee to detach portions thereof, either from the possession of the company, or an officer succeeding to its rights, by a valid levy thereon.</p> <p>3. The “right and proper” damages given by the statute to the defendant, in an action of replevin brought by the mortgagee against the officer, when it appears that the mortgage lien upon the property exceeds its value, is not the value of such property, or the amount of the execution levied upon it, but nominal merely.</p>

<p>Where a testator, at the time of his death, hold certain bonds, in personal trust, for the sole benefit of others, and was in no default as to the duties of his trust; and said bonds were afterward collected by his executor, with the knowledge and apparent acquiescence of the beneficiaries, and the proceeds-were not paid to the parties entitled thereto under the trust. Held: That the trust funds were not assets of the estate of the testator; and therefore, an action could not be maintained by one of the beneficiaries against the sureties in the executor’s bond, for a misappropriation of the trust funds so collected.</p>

<p>1. Beneficiaries under a conveyance of land (as contradistinguished from a conveyance of the mere equity of redemption, eo nomine) in trust for the benefit of creditors, are, under section thirty-five of the code of civil procedure, proper parties defendant to a proceeding by a prior mortgagee of the same land for foreclosure and sale of the mortgaged premises. And, being such defendants, they have a right to set up the defense of usury against such mortgage, although tho trustees under the conveyance in trust for the benefit of creditors, may have neglected or refused to do so.</p> <p>2. The doctrine that a party seeking affirmative relief in a court of equity against a usurious contract, either by way of original or cross-petition, must first do equity by tendering the amount due exclusive of the usury, does nob apply to a defendant acting strictly on the defensive.</p>

<p>1. The restriction upon amendments in seetion 137 of the code, that the proposed amendment u must not change substantially the claim or defense” does not refer to the/om of the remedy, but to the general identity of the transaction forming the cause of complaint. Therefore,</p> <p>2. Where the original petition demanded damages for a wrongful arrest, under an order issued by a justice of the peace, containing averments making a case of malicious prosecution, an amendment, striking out the averment of “ want of probable cause,” and alleging that the same arrest was made i( illegally and with force,” may be allowed, if it conform the pleading to the proof, upon such terms as may appear proper and just to the court.</p> <p>& Where a statute confers upon a court or magistrate the power to issue an order of arrest in a civil case, upon certain conditions, the statute, being in derogation of personal liberty, is to be strictly construed ; and a creditor availing himself of the remedy, must comply with all the conditions imposed by it.</p> <p>a. The clause in section 20 of the act regulating the jurisdiction, etc., of justices of the peace, requiring the affidavit for an order of arrest, to contain a statement of the facts claimed to justify the belief in the existence of tbe particular fraudulent act set forth, is one of the conditions precedent to the right to issue such order; and an order which is predicated on an affidavit which does not contain such statement, is void for want of legal authority in the justice to issue if, and an arrest under it is illegal.</p> <p>5. A statement of facts in the affidavit, which have a legal tendency to induce such belief, though such facts may be slight and inconclusive, will, nevertheless, sustain such order until it is reversed or set aside. The'issuing of an order under such circumstances is a mere error in judgment.</p>

<p>1. The testimony of experts, as to the handwriting of a disputed paper, by comparing it with other papers proved, by direct evidence on the trial, to have been written by the person claimed to be the writer of the disputed paper, although such experts have no previous knowledge of the handwriting of the party, is admissible.</p> <p>2. When a criminal statute is repealed, and there is no provision in the repealing statute, saving offenses or pending prosecutions under it, no conviction, after such repeal, can be legally had under such criminal statute.</p> <p>3. The act of March 21, 1863 (Ohio Laws, vol. 60, p. 20), to amend the act for the punishment of crimes, passed March 7, 1835 (S. & 0. Stat. 401), repeals the 18th and 19th sections of the last-named act.</p> <p>4. The second section of the act of April 8, 1856, concerning the enacting and repealing of statutes (S. & C. Stat. 60), does not extend to statutes for the punishment of crimes.</p> <p>5. A conviction for an offense committed on the 19th day of October, 1862, in violation of the said 19th section of the act for the punishment of crimes, could not be legally had after the said act of March 21, 3863, took effect.</p>

<p>On the trial of a party charged with crime, evidence of the declarations of a conspirator with the accused for the commission of such crime, when made in the absence of the accused, is not admissible against him to prove either the body of the crime, or the existence of the alleged conspiracy, unless they either so accompany the execution of the common criminal intent as to become a part of the rea gestee, or in themselves tend to further 'the execution* of the common criminal intent.</p>

<p>1, Where a witness in his examination in chief testifies to the existence of a-material fact, which, when established, is conclusive between the parties, questions which call upon the witness to reaffirm, qualify or deny his statement in chief as to the existence of such fact, are within the just limits of a cross-examination, and it is error to exclude them.</p> <p>2» An official return duly made upon process by a sworn officer, in relation to facts which it is his legal duty to state in it, is, as between the parties and privies to the suit and others whose rights are necessarily dependent upon it, conclusive of the facts stated therein, until vacated or set aside by due course of law ; but as to all other persons such return is prima facie evidence of such facts, and subject to be disproved whenever it is offered in evidence.</p> <p>3. But the privily spoken of must be such as would enable the person thus concluded, to maintain an action against the officer for a false return to such process. Hence, in an action by a vendee of personal property against an attaching creditor of his vendor and the officer serving the order, the vendee being no party to the suit in which the order was issued and the transfer of the property to him prior to the emanation of the order, the return to the order is only prima facie evidence of the facts stated in it, and subject to bo disproved by him, even though it should be claimed that the sale was fraudulent as to creditors.</p>

<p>1. Where the payee of a negotiable promissory note transfers the same, befor®. maturity, by indorsement, with a special guaranty of its collectibility by due process of law, a failure to demand payment of the makers at maturity, and to give notice of non-payment, will not discharge the guarantor from-liability. He is not entitled to notice, until the default occurs upon which his liability depends, unless the terms of the guaranty provide otherwise*.</p> <p>2. The assignee of the note, under such guaranty is bound, ordinarily, only to employ the usual process of law in endeavoring to enforce the collection j and is not chargable with negligence for failing to sue out an attachment, unless it appear that he knew, or in the use of proper diligence’ could have ascertained, such facts as would authorize extraordinary process*.</p>

<p>1. Lands acquired after the making of a will disposing of all the testator's' property, owned at his death, for specified purposes, will pass under its provisions.</p> <p>2. ^hen an instrument is open to two constructions — the one consistent and-the other repugnant to law, or the one will give effect to the whole instrument and the other will destroy a part — the former must always he adopted.</p> <p>3. The rule which destroys a remainder in personal property, when an absolute* power of disposition is given to the first taker, does not apply in any case where a total repugnancy between the remainder and the prior interest, does' not exist.</p> <p>4. A power of disposition reserved to the first "taker, in favor of particular objects, or for the accomplishment of particular purposes, does not create suchrepugnancy, although such objects or purposes may require an appropriation of the whole property; and a gift of what may remain unappropriated, if’ valid and legal.</p>

Civil Action. Reserved in tbe district court of Knox county. This action is upon a bond and mortgage given by tbe defendants to tbe plaintiffs, to indemnify tbe county of Knox against tbe payment of certain bonds issued by tbe plaintiffs, under tbe act of March 19, 1851, to tbe defendant, Amos Nichols, and by him delivered to tbe Springfield, Mt. Vernon and Pittsburg Railroad Company, in payment of bis subscription of $3000 to tbe capital stock of said company.

<p>3. The findings of a court or jury, on the trial of issues of fact made by the pleadings in an action,are not subject to review on error, except where it appears from the record that a motion for a new trial had been made on tho ground that the verdict, or finding of the court, is against evidence, and such motion has been overruled.</p> <p>2. In case of an executed contract of sale, by executors, of the property of their testator, the purchaser making no offer or attempt to rescind the contract, the purchaser, in an action by the executors, as such, for the recovery of the purchase money, can not avail himself of false and fraudulent representations, made by the executors at the time of the sale, in respect to its subject matter, either as a defense, or by way of recoupment, or counterclaim. His remedy, if any, is against the executors personally.</p>

Reserved in the district court. Jacob Kinney, the defendant in error, commenced an action for slander against William Rayner, the plaintiff in error, in the court of common pleas of Perry county, alleging in his petition that Rayner had spoken certain words of Kinney which imputed to him the crime of perjury. Rayner answered, not denying the speaking of the words, but, in justification, averring their truth. Kinney replied, denying the statements contained in the answer.

Error, to the court of common pleas of Fairfield county. Reserved in the district court. Motion to quash petition in error. Rainey and Julian, two of the defendants in error, .brought an action in the court of common pleas of Fairfield county, under the statute,against Harris, Jeffries and Smetters, maters, and Dildine, indorser of a promissory note. Smetters alone made defense.

<p>1. Whore an agreement, not within the purview of the statute of frauds, is in all other respects complete — and in the absence of any understanding between the parties that the same should not be complete until reduced to writing — the same will bind the parties, although it may have been understood between them that the agreement should afterward be formally reduced to writing and executed.</p> <p>2. An agreement may be complete, although by its terms the obligations and rights of the parties may be made to depend on the terms of a contract to be subsequently entered into between one of the parties to the agreement and a third party.</p>

Motion to set aside appraisement and sale of real estate, etc. Reserved in the district court of Lucas county. The case is stated in the opinion of the court.

Crvn action, for specific performance of an agreement to convey real estate. Reserved in the district court of Clermont county. The case is stated in the opinion of the court.

The defendant in error filed her petition in the superior court of Montgomery county, on the 19th of February, 1861, against John G. Lowe and Gates P. Thruston, executors of Horatio G. Phillips, deceased, stating that Horatio G. Phillips died on the 10th November, 1859, that she is his widow, and as such entitled to a sufficient allowance out of his estate, to ■support her for twelve months from'the time of his death, under the 45th and 46th sections of the administration…

On December 22,1863,' on tbe petition of the relator, An•.drew R. Ingerson, an alternative writ of mandamus was issued out of this court, directed to the defendant, Curtis Berry, jr., clerk of the court of common picas of Wyandot county.

<p>1. In an action for the recovery of real property, a former judgment or decree between the same parties or their privies, and in respect to the same lands, where such judgment or decree has the effect of a release only without warranty, can not estop the plain tiff from settiDg up anew and independent title acquired subsequent to ‘the rendition of the former judgment or decree.</p> <p>2. The “act relating to wills” (1 Curwen Stat. 689), provides that “no will shall be effectual to pass real or personal estate, unless it shall have been admitted to probate; ** and hence :</p> <p>Where, under proceedings and decree in chancery 'for that purpose, partition has been made of lands among co-heirs ; and afterward one of the heirs brings suit against the assignee of the others to recover a portion of the lands allotted to the latter by the decree of partition, the plaintiff in such suit wilt not be estopped by the decree in partition, from setting up a title as devisee under the will of the common ancestor admitted to probate subsequent to the decree in partition.</p>

Reserved in the district court. Christopher C. Bricker, the defendant in error, brought an ■.action in the court of common pleas, of Delaware county, against William Yining and others, the plaintiffs in error, to recover the amount due on a promissory note for $400, given by the plaintiffs in error to the defendant in error.

<p>1. The jurisdiction of courts of common pleas in actions of trespass to real estate, depends upon the amount of damages demanded and not the amount which may be recovered; so that plaintiff is entitled to a judgment though the recovery is for less than $100.</p> <p>2. The plaintiff, however, does not recover judgment for costs in such cases, but the judgment should, under section 552 of the code, be that each party pay the costs by him made. Norton v. Hart, 1 Ohio B*ep. 154, limited and. explained.</p>

<p>1. A conveyance made to defraud creditors is good between the parties, and can not be avoided by the grantor or his heirs, either at law or in equity; but subsequent acts done by the fraudulent grantee, in execution of the moral duty to restore the property, should be favorably considered in equity.</p> <p>2. Where in a deed, in the ordinary form of bargain, sale and release, and which purports only to convey to' the grantees “ all the estate, right, title', interest, claim and demand, both in law and equity,” of the grantors, “ of, in and to the said premises, and every part thereof,” containing no recital or other description whatever, of any particular interest owned or possessed by the grantors, or intended to be conveyed, a covenant is inserted, by which the grantors agree to “ warrant and forever defend the said premises against all persons claiming or to claim, by, from or under them, their heirs or assigns,” such covenant is only co-extensive with the grant, and binds only the vested interests of the grantors in the property at the time, and does not extend to an after-acquired title.</p> <p>3. Where several deeds of release are executed as parts of one and the same transaction, and to effect a single purpose, viz: a partition of real estate between heirs, tenants in common, they must be read and construed together, and their combined effect must settle the rights of the parties under them.</p> <p>4. Where B., in his life time had owned three separate tracts of land — one of which was conveyed to one of his children without consideration, and it was claimed that another was also conveyed to another child, but the deed was lost or destroyed — and a dispute arose after his death among his children — his other heirs claiming that no such deed ever existed for the last tract, and that the first was held in trust, and the dispute was compromised by an agreement to surrender all private interests in the three tracts to the</p> <p>. estate, and mutual releases were executed for the whole property, by which a division was effected: Held, that the child having a deed, and the éhild claiming to have one, after taking the benefit of a part of the remaining tract to which they would not have been entitled but for the compromise, were estopped to deny that the lands claimed by them were not subject to division as a part of the property of the estate; and that the compromise, in the absence of fraud or unfairness, was binding upon all the parties thereto, and would be executed in equity.</p> <p>5. No one is permitted to claim under, and, at the same time, adverse to a will. If the testator assumes to dispose of property belonging to the devisee or legatee, the latter accepting the benefit, must also make good the testator’s attempted disposition.</p>

<p>1. Where lands incumbered by various liens are sold in judicial proceedings at the suit of one of the lienholders, and on cross petitions of the different defendant lienholders, and are purchased at such judicial sale by a defendant lienholder, and the proceeds of sale are distributed among the several incumbrancers, by order of court, agreeably to their ascertained priorities ; such purchaser, though a party to the suit, is entitled to the protection which the policy of the statute affords to purchasers at judicial sales, upon the reversal of the judgment or decree under which the sale was made.</p> <p>2. In a decree ascertaining the amount and priorities of liens, whore statutory penalties consequent upon appeal, are allowed; such penalty, so allowed on a prior lien, is not entitled to preference, on distribution, over the amounts due on the subsequent liens.</p>

<p>1. The seizure of a watercraft, under the act to authorize proceedings against the same by name, and her subsequent delivery to the owner upon bond, and security given in accordance with the 5th section of that act, does not impair the capacity of the craft to incur the liabilities therein described, or those arising under the admiralty laws of the United States, in the course of her employment by the owner after such discharge.</p> <p>2. Upon such liabilities, and while so at large, she may be seized and sold by any other court of competent jurisdiction.</p> <p>3. A seizure and sale in a court of admiralty upon a libel filed for the recovery of seamen’s wages, earned after such discharge and pending the proceedings in the state court, vests a title in the purchaser superior to that acquired by a subsequent levy of final process, issuing upon a judgment recovered in the action, upon which the craft was originally seized.</p> <p>4. The cases of Keating v. Spink, 3 Ohio St. Rep. 105 ; Raymond v. "Whitney, 5 Ohio St. Rep. 201'; and Pugh v. Calloway, 10 Ohio St. Rep. 468, examined and approved, but distinguished from this case.</p>

Reserved in the district court. On the 29th January, and 18th June, 1835, Kelley and wife executed and delivered two mortgages on real estate, of those respective dates, to the Ohio Life Insurance and Trust Company, to secure the payment of two promissory notes for $5000 each, given, at the date of the mortgages, by Kelley to said company, payable to it, or order, 'on demand, with interest at seven per cent, per annum.

<p>1. The fourth section of the act of April 12, 1858, “to relieve district courts, and to give greater efficiency to the judicial system of the state ” (2 S. & 0., Stat. 1155), secures the right to except to the opinion of the court, in overruling a motion for a new trial, because the verdict of the jury or the finding' of the court is not sustained by the evidence; and the fifth section of that act,, regulating appeals, extends the same right to trials in the district court. Ialiam v. Fox, 7 Ohio St. Rep. 817, followed and approved.</p> <p>2. The right extends to all cases under the code, whether the facts are found by a jury or the court, or the relief sought is legal or equitable j but, a motion to set aside the finding, overruled by the court, and an exception taken to the decision of the court upon the motion, are indispensable prerequisites to the right to review the facts upon petition in error.</p> <p>•3. To entitle the party to such review, the bill of exceptions must show upon its face, that it contains all the evidence given upon the trial, and acted upon by the court below.</p> <p>4. The provisions of title 15, chapter 4 of the code of civil procedure, regulating “ proceedings by sureties,” neither abrogates nor affects the equitable principle which releases the surety, when, without his consent, the time of payment is extended by agreement between the creditor and the principal debtor.</p> <p>5. Any material alteration of the terms of the agreement to which the surety acceded, made by a valid agreement between the principal parties, without his consent, will work his entire discharge from all liability j but where the original obligation remains unchanged, and only his equitable rights or remedies have been invaded by the wrongful act or omission of the creditor, he will be relieved only to the extent of his actual injury.</p> <p>6. A valid contract between the creditor and one of the sureties to a contract, for an extension of time to the latter, does not discharge another surety from the entire debt; but'only from such part thereof as the first named surety would be bound to contribute to its payment.</p>

<p>1. If a witness, having stated the material facts in relation to a transaction, superadds an immaterial fact, the judgment will not be reversed for such cause, when it is apparent that suoh immaterial fact would not prejudice the rights of the party objecting to the testimony.</p> <p>2. Where, by virtue of proceedings and an order of sale in the probate court, a guardian sells, at public sale, and conveys the land of his ward, but, by mistake, such proceedings, order of sale and conveyance, do not embrace all the land that was intended by the guardian to be sold, and was supposed to he bought by the purchaser, a court of equity will not interfere, as against the minors, to correct such mistake, and to give to the purchaser the additional land intended to be sold, and supposed to be purchased, but which was not in fact sold or conveyed.</p>

<p>1. The usury laws of the State of New York extend only to the loan or for* bearance of money, and have no application to the sale of a promissory note for less than its par value.</p> <p>2. To entitle a holder of negotiable paper to the benefit of the rule which protects such a holder from the equities of third persons, it is not necessary that he should have paid the face of the paper.</p> <p>3. It seems, however, that he must have paid its fair and reasonable value.</p> <p>4. The transfer of a negotiable promissory note, secured by mortgage on real estate, to a bona fide indorsee, does not entitle the holder to foreclose the mortgage, when it appears that both note and mortgage were obtained by fraud.</p>

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

<p>“When lands have been purchased by one, and conveyed to him for the benefit of another, the deed of conveyance containing covenants of seizin, against incumbrances, and general warranty, which covenants are broken at the time-of the execution of the deed, j*nd the party for whom the purchase and conveyance were made, subsequently obtains a conveyance of the land from his agent^and trustee, such party may maintain an action in his own name, under the code, on the broken covenants, although such covenants did not pass to him by the mere conveyance of the land, or have not in terms been assigned to him.</p>

<p>1. Personal property has no fixed situs, but adheres to the person of the owner, and, upon his death, the succession to it is governed by the law of hii domicil.</p> <p>2. The final account of distribution made by an administrator, appointed upon the estate of a non-resident of this state, approved by the probate court, and ordered to be recorded, is no bar to an action brought to compel distribution according to the law of the decedent’s domicil, when the distribution actually made and approved, does not conform to such law.</p> <p>3. The 176th section of the act for the settlement of the estates of deceased persons (1 S. & C. 600), leaves it optional with the administrator whether he will file such an account of distribution or not ,* and its whole purpose is answered, in allowing him thus to perpetuate evidence of his payments, and make it conclusive, as against those to whom the payments were made, after being ordered to record without exception.</p>

<p>Error to the district court of Muskingum county.</p> <p>In a civil action pending in the court of common pleas of Muskingum county, an order was made, referring the cause to a master commissioner, to state an account between the parties, giving him authority to examine witnesses under oath.</p> <p>On July 16,1857, the master drew and signed a notice entitled of the cause pending in said court, under reference aforesaid, notifying the defendant that he would hear testimony in the cause, on the 1st day of the next September, at 9 o’clock, -A. m., and continuously thereafter, by adjournment, until all the testimony offered was taken. The notice does not state at what particular place the' testimony would be taken. On the day of its date, the notice was mailed by the master to the address of the defendant’s attorney, in a distant county in the state, and by him received in due course of mail. •;</p> <p>The hearing before the master was had at the time specified in the notice, but it does not appear that either the defendant or his attorney was present at the hearing. The plaintiff, hoAvever, was present, and offered D. as a witness, who, being first duly sworn by the master to testify the truth, the whole truth and nothing but the truth, reduced his own testimony to writing, and signed it, and the same, together with the master’s report, was- certified by the master to the common pleas, wherein the report was set aside, trial had and appeal taken.</p> <p>At the trial of the -cause in the district court, the witness being dead, the plaintiff offered in evidence the said written testimony of the witness taken before the master, but, on objection by the defendant, as to the admissibility of the written testimony, but not as to any defect of notice, or to the time and place of its being taken, the court excluded said testimony.</p>

<p>On the trial of an indictment for selling intoxicating liquor to a minor, without the written consent of his parent, etc., it is error to exclude proof offered hy defendant that the liquor was drawn and delivered to the minor in pursuance of an agreement between the parent and defendant on the previous day, fci its purchase and subsequent delivery to the minor.</p>

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

<p>1. Under section 116 of the act for the organization of cities, etc. (Swan's Rev* Stat. 985,) where part only of a street is improved, 1he .city council have power to assess the expense of making such improvement upon the lots or land abutting on the part of the street improved. The JV. I. R. R. v. Connelly (10 Ohio St. Rep. 159), followed.</p> <p>2. When in making such improvement, squares formed by the intersection of other streets, are crossed and improved, the oity council may, if the object of improving the squares is the improvement of such street, assess the whole expense upon the same property on which the other expenses of such improvement are assessed.</p>

<p>1. The 17th section of the act regulating the mode of administeriDg assignments, etc., passed April 6, 1859 (4 Curwen's Stat. 3352), applies to fraudulent conveyances made before as well as after the passage of the act.</p> <p>2. Hence, where an insolvent debtor made a fraudulent conveyance of his land on the 23d February, 1858, tnd a creditor obtained judgment in the next following October, and filed his petition to set aside the fraudulent conveyance, and to subject this land to the payment of his judgment, on the 18th day of May, 1859, such creditor obtained no priority over the other creditors of the insolvent debtor.</p>

<p>1. Where a promissory note is given to a woman, either before or during coverture, she retains her interest in it, as payee, until the assertion of her husband's marital rights.</p> <p>2. And where she sues upon such note, by her nest friend, during coverture, if no objection be raised by demurrer, or answer, to her capacity to sue alone, or to the non-joinder of her husband in the action, she may properly recover judgment.</p>

<p>Where P. and wife join in signing and sealing the blank form of a deed of conveyance, designed to be thereafter filled up, so as to convey a small piece of ground to a school district as a site for a schoolhouse, and said signing and sealing were attested by two witnesses, and acknowledged before, and certified by, a justice of the peace, according to the statute “ to provide for the proof, acknowledgment and recording of deeds/-* etc., and afterward P., without the knowledge or consent of his wife, filled up such blank deed so as to make the same, on its face, a mortgage on a large tract of land to H., to secure H. for a loan to P,, of four thousand dollars; and H. received the same in good faith, without notice of any defect or informality in the execution thereof, and the same, thus filled up, was duly recorded: Held (1), that P., and all subsequent judgment creditors and lienholders under him, were precluded by an estoppel in pais from denying the validity of said mortgage; and (2) that the wife of said P., not being a party to the intended fraud upon H., and not having joined with her husband in,the execution of an instrument for the conveyance or incumbrance of her right of dower in the premises ostensibly mortgaged to P., her inchoate right of dower remains unaffected by the mortgage.</p>

On the 10th of September, 1858, Aaron Fenstemaker, the defendant in error, held a mortgage on certain personal property of Charles Alspach, which had, by its terms, before that date, become absolute, entitling Fenstemaker to immediate possession. On that day, Jacob Carty, the plaintiff in error, caused an order of attachment to be issued, by a justice of the peace, •against Alspach, under which he caused said property to be seized, for a debt due to him from Alspach.

This case is but a continuation of the litigation between the same parties that were before this court at its December term, 1859, in the case of David Wilson v. John Stilwell. The present plaintiff had filed his petition in error to reverse a judgment against him for $1,760 16, in favor of Stilwell, in the superior court of Cincinnati. The judgment of the superior court was affirmed by this court.

<p>1. The bolding in Gass v. Billon (2 Ohio St. Rep. 607), that prior special acts of the general assembly, granting to certain municipal, and quasi municipal, corporations the power to subscribe stock and issue bonds in aid of railroad companies, in the construction of their roads, are not, by implication, repealed by the constitution of 1851, followed.</p> <p>2. The general act of May 3, 1852, {< to provide for the organization of cities and incorporated villages,” provides (sec. Ill), that this act shall take effect ffrom and after the fifteenth day of May next; yet, in view of all its provisions, and of the fact, as shown by the legislative journals, that the same was finally passed by the concurrent vote of the two louses, on the 28th day of April, 1852, although the same was not signed by the presiding officers of the two houses until the 3d day of May following, it is evident that the act, in the mind of the legislature, spoke from the 28th day of April, 1852, and took effect u from and after the fifteenth day of May next thereafter.</p> <p>8. The first section of that act repealing ((all laws ” then “ in force for the organization or government" of municipal corporations, did not operate to repeal the prior local and special acts, authorizing certain municipal corporations to subscribe stock in the Dayton and Michigan Railroad Company, and to issue bonds in payment of such subscriptions.</p> <p>4. Nor does the seventeenth section of said act (as amended), which-limits the power of taxation by the corporate authorities of cities and villages, for the purpose of paying tbe interest on tbeir public debt, to six mills on the dollar, operate to repeal so much of said prior local and special acts as'confer the power and impose the obligation to levy taxes, at a rate absolutely sufficient to pay the accruing interest on the bonds issued under said prior and special acts, although the same may exceed the rate of six mills on the dollar.</p> <p>5. It is an established rule in the construction of statutes, that a subsequent statute, treating a subject in general terms, and not expressly contradicting the provisions of a prior act, shall not be considered as intended to affect more particular and positive provisions of the prior act, unless it be absolutely necessary to do so in order to give its words any meaning.</p> <p>6. The general act of May 3, 1852, did not annihilate and re-create the preexisting municipal corporations of the state, but reorganized and continued them, leaving their corporate identity unaffected.</p> <p>7. The issuing of bonds in the name of “ the town of Perrysburg,” instead of in the name of “ the incorporated village of Perrysburg,” when the latter would have been its proper legal designation, is merely a misnomer, which does not affect the validity or obligation of such bonds.</p>

Reserved in the district court of Cuyahoga county. This action was instituted by the plaintiffs, to enforce th6 liens which they claim were secured to them by two mortgages upon certain chattel property, executed by the defendants, Munson & Spear, to secure certain indebtedness to them.

<p>3. A jury, charged with the trial of a capital case, after long deliberation unable to agree upon a verdict, may bo discharged by the court, and the accused held to a further trial, without any infringement of the constitutional • provision, that he shall not “be twice put in jeopardy for the same offense."’</p> <p>2. The power to do so, against his consent, only exists in cases of absolute necessity, and when the jury have considered the cause for such a length of time, as to leave no reasonable expectation, that they will be able to agree upon a verdict.</p> <p>3. To justify holding the accused to a further trial, after such discharge, the record must show, that an obstacle which the law will recognize as a necessity, did in faot exist, that it engaged the attention of the court, and that the order was based thereon, and was the result of consideration and decision j but it need not show all the facts and circumstances which influenced the decision, unless made part thereof by bill of exception.</p> <p>4. The power exercised by the court in such cases, is founded upon legal discretion, governed by known rules and fixed principles, and may be reviewed on error.</p>

In Chancery. Reserved in the district court of Trumbull county. The facts are sufficiently stated in the opinion of the court, in connection with previous reports of the case, as to other questions, in 19 Ohio Rep. 328, and 6 Ohio St. Rep. 13.

<p>Motion for a peremptory mandamus.</p> <p>The case is stated in the opinion of the court.</p>

On January 10, 1844, the legal title to certain parts of lots 211 and 212, in Dayton, and upon which a house was built, became vested in Horace Pease and Perry Pease “in trust for the only proper use, benefit and behoof of the said Mary P. Machir who is the equitable owner of said premises.” In March, June and July, 1859, under a contract with William Machir and said Mary P. his wife, and in pursuance of a special understanding and agreement with said Mary P. Machir,…

The original action was brought in said court of common pleas, February 11,1862, by the incorporated village of Cumminsville, organized for the special purpose of being a road district, and Frederick Dormann, Frank J. Eppel and John Russell, to restrain the Cincinnati and Spring Grove Avenue Street Railway Company, plaintiff in error, from constructing a railway track'on that part of the public highway, described in the petition, extending from Kirby street to Knowlton’s…

<p>1. Upon the hearing of a case in equity in which accounts of the defendant against the plaintiff are set up as a defepse, and also as a cause of action in favor of the defendant against the plaintiff, if a decree is rendered in favor of the defendant on such accounts, in the exercise of incidental equity jurisdiction — a notice of intention to appeal all parts of the principal case proper, is a sufficient notice of intention to appeal the whole case ; as the inseparable incident is included in the principal.</p> <p>2. Where, in a proper case, the court fixes the amount of the appeal bond, at a sum less than has been decrewl to be paid by the appellant to the appellee, and bond is given accordingly, the appeal can not, for that reason, be dismissed. by the appellate court.</p>

<p>F., in selling Ms brewery to H. & 33., conveyed the real estate by deed, therein describing the premises bj7 metes and bounds, the consideration stated being $16,000, and by bill of sale sold and transferred, among other articles, the property in controversy, for the consideration of $9,000, and received from H. & B. a real estate mortgage,-the description therein being the same as in the deed, to secure the unpaid purchase money. H. & B. subsequently executed chattel mortgages upon the property included in the bill of sale — Held:</p> <p>1. That the deed, bill of sale, and mortgage, having been executed at the same time, and parts of the same transaction, each should be held to have been designed by the parties to perform its appropriate office in consummating the sale.</p> <p>2. That as between F. and the mortgagees in the chattel mortgages, under tho agreement, as evidenced by said instruments, the property, included in the bill of sale, is to be regarded as personalty.</p> <p>?» Whether certain articles of personal property which were afterward added to the brewery by H. & B. could be removed without material injury to the freehold, or destroying their own qualities or value, was a question of fact, upon which tho evidence in the court below was conflicting; and no sufficient grounds are shown in the record for disturbing tho findings and judgment of that court.</p>

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

<p>1. Under the act of March. 21, 1850, to incorporate the Springfield and Mansfield Railroad Company (48 O. L. 294); and the act of March 25, 1851, “ to authorize special elections to decide the question of subscription to the Springfield and Mansfield Railroad by counties and townships ” (49 O. L, 548) ,* the trustees of Goshen township were authorized to submit the question of a subscription by said township to the capital stock of said company, to-the electors of the township, to be voted on at the time of the annual election in October, 1851; no steps having previously been taken by the commissioners of Champaign county to procure a vote of the electors of the county, on the' question of a county subscription.</p> <p>% The grant of power to the trustees to borrow money for the purpose of paying the amount subscribed, carried with it the necessary incidental power of executing and delivering such evidences of indebtedness, as are sanctioned by the known usages of business, in such cases ; and it was, therefore, competent for the trustees to issue the negotiable bonds of the township in payment for the stock subscribed, and it is no ground of objection that such bonds were delivered direct to the company, at par, by way. of making such payment.</p> <p>3. The bonds issued by the township were, by their terms, payable to the company or its assignees,‘and a stipulation was added reserving to the township the right to require the railroad company to take the stock so subscribed by the township, and to redeem the bonds so issued. Held : That this reservation was a contract between the township and the company alone, which could not affect the right of the bona fide assignee of the bonds, for value, to require payment of the bonds by the township.</p> <p>4. Acts of subsequent acquiescence and ratification will estop the township from objecting to the validity of the bonds, in the hands of an assignee for value, who has taken them on the faith of such acquiescence, on account of any irregularities attending their execution and issuing, short of such an absence of power, or such an illegality as would render them absolutely void; and notice of such irregularities on the part of the assignee will not defeat the estoppel.</p>

<p>Application for a peremptory mandamus, to compel township trustees to levy a tax to pay interest on township bonds.</p>

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