Volume 15 — Ohio State Reports, New Series

<p>1. On the trial of an issue, ordered according to the statute, in a suit to contest the validity of a will, the contestees, having offered in evidence the alleged will, together with the order of the court admitting the same to probate, rested their case, without offering any other evidence. The contestant ¿hereupon, having concluded his testimony impeaching the validity of the will, the contestees proposed to introduce general evidence sustaining the will, to the introduction of which the contestantobjected. The court overruled the objoction and admitted the evidence. — Held, that the ruling was right.</p> <p>2. B , one of the subscribing witnesses, had died before the trial, and his testimony, taken at the probate of the will was read in evidence. The contestors then offered in evidence declarations of B. respecting the capacity of the alleged testator to make a will at the time the one in question purported to have been made, for the purpose of impeaching his testimony.— Held, that before such statements can be given in evidence to impeach a witness, he must be interrogated as to the same $ and the fact that the opportunity for such examination has been cut off by the death of the witness, does not form an exception to the general rule. The want of such examination goes to the competency of the evidence; and where the witness has had no opportunity of explaining the supposed declarations, nor the party to be affected thereby, of examining him in reference thereto, this mode of impeach • ment can not be resorted to.</p> <p>3. The opinion of a witness, as to the sanity of a testator, must relate to the time of his examination; and upon the direct examination his opinion at a period anterior can not be called for; nor can he be asked his opinion as tc the capacity of the testator to make a will. Such inquiry involves a matter of law; also assumes that the witness knows the degree of capacity required to perform the act in issue.</p>

<p>1, In a suit brought by A. against the administrators of B., in which the question in issue is whether B. holds possession of personal property as the bailee or as the vendee of A., the declaration of B. that he was the owner, is not admissible in evidence in favor of the administrator, although said declaration was made while B. was in possession of the property, and was accompanied by the act of offering to sell the same.</p> <p>2. Where an administrator has seen and examined a claim against the estate he represents, and is subsequently requested to allow it, which he refuses to do, such claim being present in the pocket of its owner, and the administrator so told, a formal presentation of the claim is not necessary, but may be presumed to be waived.</p>

<p>L A railroad company authorized to change the location of its track, on account of “ difficulty of construction ” and other causes, may do so at any time before the construction of its road is completed at the point where the change is made. Moorehead v. The Little Miami B. B. Co,} 17 Ohio Rep. 340, followed and approved.</p> <p>2, Corporate existence, and the right to exercise the power of eminent domain, can only he derived from legislative enactment; and before a company can demand a judgment of condemnation, it must show that both have been conferred upon it by a valid law, and that it has substantially complied with the conditions which the law has annexed to the exercise of the power.</p> <p>8. The charter of the Marietta and Cincinnati Railroad Company, did not authorize it to mortgage .or sell its corporate franchise to he a corporation; and a judicial sale upon mortgages executed by it, would not invest the purchasers with any corporate capacity whatever.</p> <p>3„ A “special act” of the general assembly undertaking to give such an effect to the sale, and authorizing the purchasers to reorganize, create a new stock, and elect another board of directors, is, in substance and legal effect, an attempt to create a corporation and confer corporate powers by a special act; and is in conflict with the first and second sections of the thirteenth article of the constitution of the state.</p>

Tbe original action was brought in the court of common pleas of Jackson county by the defendants in error, against the plaintiffs in error, as the makers of a promissory note of which the following is a copy: “ $950.00. Jaclcson, Ohio, Nov. 26, 1858. “ Four months after date; we promise to pay to the order .of Kinney & Lodwick nine hundred and fifty dollars, value received, with interest at ten per cent, after due.

<p>1. Section 173 of the code of civil procedure, which provides, that u any person causing another to be committed to jail under the provisions of this chapter [chapter 1, title 8], shall be liable, in the first instance, for the jail fees, and shall, if required by the jailor, pay such fees weekly in advance,” etc., has no application to a ease of imprisonment of a defendant by order of the court, after conviction under the bastardy act.</p> <p>2. In an action on the case (or under the code), against a sheriff for the escape of a prisoner in custody under final process, it is competent for the defendant to give in evidence, in mitigation of damages, the fact that the prisoner, at the time of escape, was either insolvent, or wholly destitute of property j and this, whether the escape were voluntary or negligent.</p>

<p>1. White one who first makes a malicious assault upon another, continues in the conflict which ensues, he can not justify taking the life of his adversary, however necessary it may be to save his own, or to whatever extremity he may be reduced,</p> <p>2. But when he has succeeded in wholly withdrawing from the conflict, and, in good faith, has retreated to a'place of apparent security, his right of self-defense is fully restored, and if pursued by his antagonist and there attacked in a manner to endanger his life, he is justified in taking life if it becomes inevitable to save life.</p> <p>8, The testimony of a witness, clearly shown to have committed perjury in on,e material point of his evidence, must be wholly rejected, and can not be relied upon for any purpose whatever. Falsus in uno, falsus in omnibus.</p>

This petition in error is prosecuted to reverse a judgment of the district court of Jackson county, perpetually enjoining the plaintiffs in error, from collecting of the defendants in error, a judgment rendered in the court of common pleas of Pike county, in their favor against John J. Hoffman as prin • cipal debtor and the defendants in error as his sureties.

<p>Where county commissioners, acting ostensibly under the provisions of the act of March 24, 1859, “to provide for locating, establishing, and constructing ditches, drains, and watercourses,” have established and constructed a ditch, and,to pay for the same, have levied an assessment on the lands of persons benefited thereby: Held, that where a party on whose lands such ditch has been, wholly or in part, constructed, has stood by and failed to resort to any remedy, legal or equitable, until after the ditch was made, a court of equity will not interfere by injunction to prevent the collection of such assessments, even if it be assumed that the proceedings of the commissioners have so far failed to conform to the provisions of said statute as to render them wholly illegal and void in law.</p>

Reserved in the district court. On December 23,1859, the plaintiff in error, the Niagara County Bank, situated at Loekport, in the State of New York, filed a petition in the court of common pleas of Lucas county, Ohio, in the usual form, against William Baker and George Walbridge as indorsers of six several promissory notes for $2500 each, made by Williams & Brother, of Chicago, Illinois, dated February 16,1857, payable respectively at Chicago, with interest from date, at…

<p>Error to the district court of Hamilton county.</p> <p>John H. Mears and others, the plaintiffs in error, originally commenced their action in the court of common pleas of Hamilton county, to contest the validity of what purported to be the last will of John Mears, deceased.</p> <p>The case was appealed to the district court of the county, and there tried by a jury on the following issue, viz: “ Is the paper writing produced, and referred to in the pleadings, purporting to be such, in truth and in fact the valid last will and testament of John Mears, deceased.’5 A verdict was rendered sustaining the will. During the progress of the trial exceptions were taken, by the contestants, to the rulings of the court in admitting the will and order of probate to be read in evidence, in rejecting evidence offered by the plaintiffs, in refusing various instructions asked by them, and to the charge as given by the court to the jury. A motion was made for a new trial on the ground of the alleged errors in said rulings, which motion was overruled and exception taken. A bill of exceptions was signed, embodying the exceptions, a copy of the will, so much of the evidence as was thought necessary to show the relevancy of the instructions asked for and refused, all the evidence upon two questions of fact, the instructions requested, and the charge as given to the jury.</p> <p>John Mears, the testator, died possessed of a large estate. By his said supposed will, he first makes large bequests and devises to his wife, the validity of which are not questioned. He then directs the bulk of the residue of his estate to be divided into five equal parts, one of which he devises, in fee, to his son Daniel H. Mears, and the other four to trustees for the benefit of his three other surviving children, and the representatives of a deceased child, upon trust, which are claimed to be void as creating a perpetuity not allowed by oúr law.</p> <p>The counsel for the contestants Requested the court to give the following several instructions to the jury:—</p> <p>1. “ A will, to be valid, must not violate the act to restrain the entailment of estates.</p> <p>2. “The trusts in the paper purporting to be the will of John Mears, are contrary to the act to restrain the entailment of estates, and void, and the jury may find the whole will void, if they believe that these trusts constituted the main design and object of the testator in making the will.</p> <p>3. “ If the will can not have the operation which John Mears intended, in consequence of Ms mistaking the legal effect of the terms used, the jury may, for this reason, find, if they believe such to be the fact, that the paper writing is not the will of John Mears.</p> <p>4. “If a person benefited by a will, himself writes it, or procures it to be written, this circumstance forms a just ground of suspicion, and calls upon the jury to be vigilant and jealous, and requires clear and satisfactory proof that the instrument contains the real intention of the testator.</p> <p>5. “If the will be unequal,if John Mears executed it when weak in mind and body, at the house of Daniel H. Mears, who was largely benefited by it; if the provisions of the will were misrepresented to the other children of the deceased, and were not in harmony with the expressed intentions of the testator, then the ordinary presumptions flowing from the act of formal execution, do not obtain; the burden of proof is then thrown upon the party seeking to establish the testamentary act, of proving that precautions were taken, and explanations had to secure the testator the full and free action of his impaired faculties, and the order of proof is reversed, and it should be shown affirmatively that no imposition was practiced.</p> <p>6. “If the jury believe that Daniel H. Mears might have exercised dominion over John Mears, and Daniel H. gained any advantage, it is to be presumed, until the contrary be proved, that undue influence was exercised.</p> <p>7. “ A party can retain nothing which he has gained, where, in consequence of confidence reposed, he had it in his power to sacrifice, in a secret manner, and for his own advantage, interests which he wras bound to protect; and the jury may consider this principle, if there be any evidence in the case to which it is applied.</p> <p>8. “ That where evidence is clear, showing that a testator during his life, always expressed a determination to make an equal distribution of Ms property among his children, and the will in question was made under suspicious circumstances, and while under control or subject to the influence of a principal devisee, the law requires those who propound the will to prove a clear capacity in the testator, a full understanding of the terms of the will, and that he was under no improper influence or delusion.</p> <p>9. “That a testator must not only have capacity, but he must not, at the time of making his will, be laboring under a delusion, as to any subject, which may affect his judgment in making his will; that if the jury believe, that, at the time, he was under the belief his son John H. Mears had been guilty of burning the property of his father, that he was a drunkard and a gambler, when in truth, and in fact, he was not guilty of such burning, was not a drunkard or gambler, and he, the testator was under a complete delusion on these subjects; and if he had not been laboring under delusion, he would not have made this will; then the will was not duly executed.</p> <p>10. “ That the trusts declared in the will created a perpetuity beyond the period allowed by. our law; that the trusts being void in part, are totally void, and if the testator was not aware of this the will is void.”</p> <p>The court refused to give these instructions, or any of them, in the words requested, but charged the jury as set forth in the bill of exceptions, and stated in the opinion of the court, so far as is necessary to an understanding of the points decided:</p> <p>It is claimed by plaintiffs in error that the district court erred:—</p> <p>1. In excluding evidence offered by plaintiffs and admitting evidence offered by defendants.</p> <p>2. In refusing to charge the jury as asked by plaintiffs.</p> <p>8. In the charge, as given to the jury.</p> <p>4, In overruling plaintiffs’ motion for a new trial. '</p>

<p>A., having lands, and certain real estate in Cincinnati, known as his “ town property,” by bis will, gave his personal estate to his wife; “also,” declared his “wish and desire” that all his real estate be equally divided between his eight children named. By the subsequent provisions, he divided said lands into three parcels of different specified values, giving one to each of his three sons, limiting their right of possession to the times they respectively arrived at age. The town property he directed to be rented, his children to have their proportion of the rents as they severally arrived at age — till then his wife to have them. After her death the town property to be sold, the proceeds, including the amounts given the sons in land, and the advancements charged to his sons-in-law, to be equally divided “among his then living children or their heirs.” Held :</p> <p>1. That, the clause expressing tho “ wish and desire” of the testator was dispositive in its nature, and gave a vested interest to all the children.</p> <p>2. That the specific devises to the sons were the execution, in part, of the division which the distribution of the proceeds of the town property was to com- . píete.</p> <p>3. The words “or their heirs” were designed to provide for the case of such children as might die before the final distribution — not a new class of beneficiaries. “ Heirs ” is used as a word of limitation, and those only can claim under it who derive title through a deceased child.</p>

<p>A specific mode of contesting elections in this state, having been provided by statute, according to the requirement of the constitution, that mode alone can be resorted to, in exclusion of the common law mode of inquiry by proceedings in quo warranto* The statute which gives this special remedy, and prescribes the mode of its exercise, binds the state as well as individuals.</p>

<p>1. Under the provisions of the act of congress, of July 1, 1862, “to provide internal revenue,” etc. (12 U. S. Statutes at Large, 432), a revenue stamp is not necessary to the validity of a “ notice of appeal ” in a proceeding by an elector to contest an election under the statutes of this state “ to regulate the election of state and county officers” (3 Curwen’s Stat. 1920); and an order of the court of common pleas dismissing such proceeding for want of a stamp is erroneous.</p> <p>2. The tenth section of the schedule of the constitution of 1851, which provides “ that all officers shall continue in office until their successors shall be chosen and qualified,” was not intended as a permanent provision of the constitution, and, as such, applicable to officers chosen under that constitution, but was limited, in its application, to officers chosen or appointed under the old constitution and whose terms of office did not expire until after the taking effect of the new constitution.</p> <p>3. The term of office of a judge elected to fill a vacancy, is limited to the unexpired portion of the regular term m which such vacancy occurs; and a commission assuming to confer official authority for a longer term, is, as to the excess, inoperative. Constitution, Art. 4, sec. 13.</p> <p>4. Though the neglect of a sheriff, by proclamation, to give notice of an election, may be competent evidence, in connection with other circumstances, to prove fraud or conspiracy on the ground of which an election is contested, such neglect is not conclusive of the invalidity of an election.</p> <p>5. On a judgment of ouster, in quo wa'^anto, against an incumbent of an office, this court will riot proceed to adjudge in favor of another claimant, whose election is then in process of regular contest.</p>

On the first clay of April, 1859, Alden Allen executed and delivered to Richard Shackelton his promissory note in the sum of four hundred dollars payable twelve months from date, and on the fifth day of April, 1859, Alden Allen and Olive Allen, his wife, executed their mortgage to Shackelton upon certain real estate in Knox county, to secure the payment of the note.

<p>1. Where M., a creditor of an insolvent firm, receives from S., one of its members, a note, and gives to S. an obligation to apply part of the proceeds, when collected, on the firm debt and pay the balance to S. in cash — Held: In a suit by an assignee of the obligation, that M. is not estopped from proving, under a claim of setoff, that the note belonged to the firm, and that when the obligation was given there subsisted a valid parol agreement to extend the time of payment of the balance of the firm debt upon which default had occurred bo* fore the assignment; and that if the alleged facts be established the setoff should be allowed.</p> <p>2. Under the code the right of setoff exists against the persons who are the equitable owners of the demand in suit.</p>

<p>The plaintiff in error, defendant below, was put on trial for a penitentiary . offense. After a jury had been impanneled and sworn, a juror arose in open court, and stated that be had been one of the grand jurors by whom the indictment had been found. Pertinent inquiries had been openly made upon this subject by counsel for the state, before the jury was sworn, to which the juror had failed to respond. The defendant's counsel, thereupon, in answer to an inquiry by tbe court, objected to proceeding in the trial with the jury then impanneled, at the same time declining to waive any of the defendant's rights. The jury was thereupon discharged by the court, and another jury was impanneled in the usual mode, and the trial proceeded, the defendant objecting thereto. Held—</p> <p>That the discharge of the jury first impanneled was the necessary result of sustaining the objection interposed by the defendant himself, and so did not take place without his consent, but was an act done at his own instance, and would not therefore operate as an acquittal, nor bar a further prosecution.</p>

Civil action. — Reserved in the district court of Ross county. The plaintiff filed his petition, May 22,1858, in the court ■of common pleas, to enjoin the execution of a judgment in -ejectment recovered by the defendant, Perrill, against the ■plaintiff, in the district court of Ross county, for the lands in «■controversy, and to obtain other equitable relief.

The original action was brought by Leach against Church as administrator of Tuenis A. Kagy, and one Aaron A. Kagy his surviving partner, to recover a balance claimed to be due to Leach for feeding and fattening certain stock hogs of the late firm of A. A. & T. A. Kagy (the said decedent and said survivor having constituted the firm), under a contract between Leach and the firm.

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

<p>Error to the superior court of Cincinnati.</p>

Error, to the court of common pleas of Van Wert county.— Reserved in the district court.

Reserved in the district court. On July 26, 1858, Miller & Church obtained a judgment against Hallanan, the plaintiff in error, before a justice of the peace for $25.07. An execution was issued on this judgment, May 81,1859, and placed in the hands of Sage, a constable. Crow, the defendant in error, was indebted to Hallanan in the sum of $20.50 on an account for medical services.

<p>1. Where the record shows that the court below misdirected the jury or admitted illegal testimony, as to a point material to the issue, it is not necessary, in order to reverse the judgment, to show that the jury were in fact influenced thereby. Such influence will be presumed.</p> <p>2. Where the brick are furnished and laid up under contract, by the tkousandj a local custom to estimate the number by measurement of the walls, upon a uniform rule based on the average size of brick, and making slight additions for extra work and wastage, at points and places where they occur, is not an unreasonable custom.</p> <p>8. When such contract is in writing, parol evidence of the custom does not contradict it, and may be given on the trial, although the custom is not specially pleaded.</p> <p>4. It is not error in such case, to instruct the jury, that if they find such custom to have been certain, uniform, and generally acquiesced in, in the city where the parties resided, and where they made the contract, they may interpret the contract in the light of the custom, although the custom was of only seven years standing, and although the plaintiff had not actual notice of its existence.</p>

Reserved in the district court of Trumbull county, on a motion for a new trial.

<p>1. Under sections 212 and 213 of the code, an undertaking for the discharge of an attachment in a civil action, may be executed, in vacation, in the presence of the sheriff, while the order of attachment remains in his hands, either before or after a levy upon property under the writ.</p> <p>2. Where the surety in such undertaking, after his liability becomes fixed by judgment against his principal, unites with him in the execution of an undertaking for a suspersedeas, and an additional surety being required in the latter undertaking is procured by the principal with the assent of the first surety, no right of contribution arises in such case in favor of the first surety against the second. They are not co-sureties standinginequali jure.</p>

<p>1. The act of April 7, 1854, “concerning suits on the bond of executors and administrators”.(4 Curwen’s Stat. 2571), is not in conflict with the provision of article 2, section 28 of the constitution, which declares that “ the general assembly shall have no power to pass retroactive laws.”</p> <p>§. A statute purely remedial in its operation on pre-existing rights, obligations duties and interests, is not within the mischiefs against which that clause of the constitution was intended to guard, and is not, therefore, within a just construction of its terms.</p>

<p>1. A petition charging the defendant with a wrongful act, committed while he was in the employment of another, without alleging that the act was done within the scope of his employment, is not demurrable on the ground of respondeat superior.</p> <p>2. An answer denying that the defendant committed such act, and alleging that it was committed by a third person, is merely a denial, and requires no reply.</p> <p>3. The refusal of a new trial, where no reasons for the new trial are alleged in the motion therefor, can not be assigned for error. Westfall v. Dungan et ah, 14 Ohio St. Rep. 276, affirmed.</p> <p>4. The petition charged defendant with flooding the plaintiff’s cellar by obstructing the street, and the answer denied the charge. On the trial, evidence, admitted without objection, showed that the flooding was occasioned by defendant’s wrongful o%>ening of the side xoalh, making a channel through which the water was forced into the cellar by obstructions placed in the street by others. Held: That it was.not error for the court, although no amendment of the petition was asked or made, to find upon this evidence for the plaintiff, and to render judgment accordingly. Such proceeding is in conformity to sections 131,132 of the code.</p>

<p>1. Where, upon the loan of money, separate notes are taken, one for the sum loaned, and another for the amount of interest to accrue thereon, or, where a single note is taken for the amount of both principal and interest, payable at a future day, and the notes, in either case, contain no stipulation as to a special rate of interest, though the loan was, in fact, made under the ten per cent, law of 1850, at the rate of ten per cent, per annum, yet interest can only be collected, on such notes, after maturity, at the rate of six per cent.</p> <p>2. Where payments of interest are made upon such notes after maturity, at the rate of ten per cent., such payments will, if made prior to the repeal of the ten per cent, law, be allowed to stand as payments of interest only $ but, if made subsequent to'the repeal of said law, the excess of the payments over six per cent, will be credited to the account of principal.</p>

<p>Where a subscription was made for a given number of shares of stock in a railroad company, payable at such times, and in such installments, as the directors may prescribe, provided the road is “ permanently located” on a given route, and that a “ freight house and depot be built” at a point named. — Held,</p> <p>1. That on the permanent location of the road, in accordance with the terms proposed, the subscription became absolute.</p> <p>2. That the provision in relation to the erection of the buildings, was a stipulation merely, and its performance was not a condition precedent to the right to collect the amount of the subscription.</p> <p>3. The giving, by a subscriber, of his note for the balance of his subscription, and taking, therefor, from the company, a receipt stipulating that, when paid, the amount of the note should be applied on his stock, was prima facie, a waiver of conditions precedent.</p> <p>4. After the requisite amount of stock has been subscribed to authorize the stockholders to elect directors, it is not indispensable to an election that the notice for it should be given by the persons named in the certificate of incorporation. The validity of the acts of the directors can not be questioned, collaterally, on the grounds of irregularity in giving the notice.</p> <p>5. Section six of the act for the creation and regulation of incorporated companies (1 S. & C. Stat. 276), does not prescribe the form of making subscriptions, nor does the want of a stipulation for the payment of five dollars on each share of stock, render the subscription invalid.</p> <p>6. Whore a defendant, by way of defense to a note, pleads, in general terms,, that it is wholly without consideration and void, and the plaintiff, without requiring a statement of the facts on which the defense is based, joins issue,, any evidence is admissible, on the trial, which tends to impeach or sustain the consideration.</p>

<p>Error to the court of common pleas of Hamilton county. Reserved in the district court.</p> <p>The defendants in error are residuary legatees under the will of John Walker, deceased, described in the will as the children of his brothers William and James and his sister Ann. They brought an action in the common pleas against the plaintiffs in error, who were’ the sureties of Thomas Webb, one of the executors of the will, upon the official bond. The bond was in the penal sum of two hundred thousand dollars, dated June 28, 1853, and its condition was as follows :</p> <p>“ Whereas, John Walker, late of said county of Hamilton, deceased, made his last will and testament which has been duly proven and admitted to record by the probate court, in and for the said county, on the 25th day of June, a. d. 1853; and, whereas the said Thomas Webb is appointed one of the executors and is in said will named: Now the condition of this obligation is such that if the said Thomas Webb shall pay all the debts and legacies of the said John Walker, testator, according to law and the will of said deceased, and shall administer according to law and to the will of the testator, all his goods, chattels, rights and credits, and proceeds of all his real estate, that may be sold for the payment of his debts or legacies which shall at any time come to the possession of the executor or to the possession of any other person for him, and shall render upon oath, a just and true account of his administration within eighteen months and at any other times, when required by the court or the law, then this obligation to be void; otherwise to remain in full force and virtue.”</p> <p>The testator died in , 1853. Ey his will he gave his widow one third of his real estate during her life, and gave to her and to two other persons named, specific pecuniary legacies, which he directed his executors to pay “ as soon as convenient after his decease.” He also gave the use of a house for seven years to another party, and directed that twelve dollars per month should be paid to her during said seven years. The remaining provisions of the will, and the only parts of it which need be fully set out here, are . as follows:</p> <p>“ fourth. I direct that my brewery be carried on under the direction and superintendence of my executors, for the benefit of my estate, for the term of seven years after the date of my decease; and for this purpose I authorize my executors to employ competent persons, at proper salaries, to carry on the same, and at the expiration of said seven years, I give and devise my said brewery property and the- proceeds thereof, together with the machinery and fixtures, and stock at that, time on hand, to the children of my brother William Walker, my brother James Walker, and my sister Ann, share and share alike; and in case of the death of any of my said brothers’ or sister’s children leaving children, the children of such deceased child to have the share of the parent. The children of Dan Walker, deceased, son of my brother William Walker, to have one share or the share said Dan would have if living. To have and to hold the said property to said children their heirs and assigns forever.</p> <p>“ Sixth. All the rest and residue of my estate I give, devise, and bequeath to the said children of my said brother William Walker, and my brother James Walker, and my sister Ann, to them their heirs and assigns forever, and the children of the said Dan Walker, deceased, son of my said brother, to have the share said Dan would, if living, take; and in case of the death of any of such children leaving children, the children of such deceased to take the share the parent would have taken; to have and to hold the same to the said children their heirs and assigns forever.</p> <p>“ Seventh. I hereby authorize my executors to carry out and confirm any arrangement, and contracts made by me in the manner I could do if acting myself, and to collect and continue loans as may be convenient (but not to make new loans) of money already loaned on mortgage, provided the same shall all be collected and settled within the period of seven years after my decease.</p> <p>“Mghth. Sums of money received by my executors from my estate which will be for distribution to the children of my brothers and sister as above provided, to be divided and distributed when in sufficient sums for distribution and division.”</p> <p>The petition of the defendants in error, after setting out the bond, and the fact that they are the residuary legatees and beneficiaries, named and provided for in the fourth, sixth, and eighth items of the will, charges: That Webb, and his co-executor, Charles Stewart, carried on the brewery for the term of seven years, agreeably to the provisions of the will, and that they received large sums of money, as profits therefrom, to be administered upon agreeably to the will, as assets of the estate; that on the 20th June, 1860, the said term expired, and the plaintiffs" became entitled to said property, funds and business; and thereupon said executors commenced an action in the superior court of Cincinnati against these plaintiffs, for the settlement of said trust and of such part of the assets of said estate as were embraced in and by said brewery property, and the machinery, fixtures, stock, moneys and other rights and claims appertaining to the same and the business thereof, so conducted and carried on by said executors; and such proceedings were therein had, that upon a full and final settlement of the account of Thomas Webb, as one of said executors for and in respect of said assets, there was found to be in his hands separately, on June 20, 1860, by the consideration of said court, the sum of $9576.32 of the moneys, assets of said brewery and estate, which he was adjudged to pay to these plaintiffs, with interest from June 20, 1860, on which execution against said Webb was issued and returned no goods or lands whereon to levy. That afterward, on September 25, 1861, said Webb not having paid the same, it was ordered by the probate court, upon due notice, that said Webb, as executor aforesaid, should, on demand, settle and pay over to the plaintiffs the said sum with interest; or in default thereof, the plaintiffs were authorized to put said bond in suit; and that said Webb, having been since requested, has refused to pay said sum, for which judgment is demanded.</p> <p>A demurrer was filed to this pétition, and was overruled by the court.</p> <p>The plaintiffs in error then answered:</p> <p>1st. That they had no notice of the alleged proceedings in the superior court, or of the alleged order of the probata court.</p> <p>2d. That said Thomas Webb had fully complied with the condition of his bond, by fully administering the assets of the estate; alleging that the money due from Webb to the defendants in error, and for which they recovered the judgment in the superior court, was not assets of the estate, but was the profits and proceeds of said brewery concern, received by said Webb as trustee for defendants in error, and not as executor, and that they are not liable therefor upon their said bond as his sureties.</p> <p>To so much of this answer as denies notice of said proceedings and order, a demurrer was filed, and was sustained by the court, and exception taken. The other allegations of the answer were denied by a reply.</p> <p>On the trial, it was shown and admitted, that the executors had fully administered all the assets of the estate, except the amount for which the judgment aforesaid was recovered in the superior court. That soon after the death of the testator, the executors took possession of the brewery, and that they carried it on for the said term of seven years, at the end of that time delivering it, with its appurtenances and materials then on hand, to the defendants in error. That at the commencement of its operation, they set apart $41,000 of the moneys of the estate, as a capital with which to operate the brewery, leaving ample assets in money with which to pay the specific pecuniary legacies, which were all paid shortly after the testator’s decease. That the estate was credited with this $41,000, and afterward charged with the moneys realized from the brewery, as they came to hand. Eor the first eight months the accounts of the estate, and of the brewery, were kept together ; but after that time, the accounts of the brewery were kept in a separate book. The $41,000 was all repaid to the estate, and from $50,000 to $75,000 clear profits in addition. These profits were paid over as they accrued, with the residue of the other assets, to the defendants in error. The sum of $9576.82, recovered against Webb in the superior court, and for which this action was brought, was for overcharges made by him, for his salary and services in conducting the brewery business, and retained in his hands at the several times of making dividends and distribution. The executors have fully paid over to the defendants in error all that is due to them as residuary legatees, except this sum of $9576.32 in the hands of Webb, which never was, in fact, credited to the estate on the books, but was put down as part of the current expenses of carrying on the business of the brewery. The money of the estate, and that arising from the brewery, were kept in the same bank, and an account of it kept in the same bank-book, in the name of the executors; and in rendering their account to the probate court, they charged themselves with the profits of the brewery, as part of the assets of the estate.</p> <p>The common pleas, on submission, found for the plaintiffs below, and, after overruling a motion of the defendants below for a new trial on the ground that the finding was against the evidence and the law, entered judgment thereon. To all which the defendants below excepted, and to reverse the judgment, filed their petition in error in the district court, alleging that the common pleas erred:</p> <p>1. In sustaining the demurrer to the answer.</p> <p>2. In finding for the plaintiffs below.</p> <p>3. In overruling the motion for a new trial.</p> <p>The case was reserved in the district court to this court for decision.</p>

<p>1. A tenancy, for a single year, of a house, stable, and parcel of land — the ten- • ant not claiming the same as a homestead — is not an ownership of a homestead within the meaning of the homestead act, so as to deprive the holder of the benefit of the exemption from execution, under the provisions of that act, of personal property not exceeding three hundred dollars in value in addition to articles of property specially exempt.</p> <p>2. Where a husband, not being the owner of a homestead, and without the consent of his wife, executes a chattel mortgage on all his personal property, the'same not exceeding three hundred dollars in value ; and the mortgagee, after condition broken, causes such property to be seized in execution under a judgment recovered for the debt which the mortgage was given to secure— this is such a disposing of, and parting with, the property by the husband, that the wife may, under the act of April 17, 1857, e< securing to married women such personal property as may be exempt from execution,” etc., maintain an action for the recovery of the specific property from the officer holding the same in execution.</p>

<p>G. sold land to A. and gave a bond for a conveyance upon payment of the purchase money. A. thereupon, sold, in like manner, a portion of the premises to B., and afterward sold the residue, at the same time, to two several purchasers, giving a title bond to each. Subsequently, A. received a conveyance of the whole*premises from G., and, at the same time, to secure a balance of purchase money owing by him, executed a mortgage upon that part of the premises only which had been sold to one of the last two purchasers. The purchaser of the mortgaged premises was, at the time, indebted on his purchase in a sum greater than the mortgage debt. The mortgage having been duly recorded, the purchasers of the unincumbered portions of the land, subsequently completed their payments, and received conveyances from A. Several years afterward, the purchaser of the mortgaged premises, without actual notice of the mortgage, completed his payment, and received a like conveyance from A. Upon suit brought to foreclose the mortgage, Held:</p> <p>That the grantee of the mortgaged premises held the same subject to the full incumbrance of the mortgage, and that no vendor's lien existed in the case which would render the residue of the lands, or any part of them, liable to contribute to the discharge of the mortgage debt.</p>

<p>The seizure of a watercraft, under the act authorizing proceedings against the same by name, subsequently discharged and delivered to the owner upon boiid, in accordance with the fifth section of that act, does not create a lien paramount to the title of a purchaser of a part of such craft of an underwriter, where such craft had been abandoned to such underwriter under an insurance effected, and a wreck occurring after such discharge.</p>

<p>1. Upon petition in error, the district court may order the court of common pleas to send up a perfect transcript of its record, but it has no power, in such a case, to order an amendment of the record itself.</p> <p>2. A promise by the principal debtor to pay usurious interest, is a sufficient consideration to support an agreement by the creditor to give further time, and operates a discharge of the surety in the note given for the original loan.</p>

<p>Error to the court of common pleas of Wood county. Reserved in the district court.</p> <p>The defendants in error, D. A. Avery and Thomas D. Avery, executed two promissory notes payable to the order of A. T. Jefferson, who indorsed the notes, before due, to one Squire Barrett, who purchased for a valuable consideration, and, it is claimed, without notice of any defense. Afterward, before the notes matured, Barrett indorsed them, for a valuable consideration, to Bassett, the plaintiff in error, who brought suit upon each note as it matured. The two suits, by consent of parties, were consolidated in the common pleas.</p> <p>The defendants answered, that the notes were obtained without consideration and by fraud; of which, it is averred, both Barrett and the plaintiff had notice, at the time of receiving the notes.</p> <p>The reply denies the allegations of the answer, and sets up, that both the plaintiff and Barrett purchased the notes, in good faith, for a valuable consideration, in the ordinary course of business, before they became due, and without notice of any fraud or failure of consideration.</p> <p>It appears, from the bill of exceptions taken on the trial, that Barrett, being a witness for the plaintiff, testified that before he purchased the notes of Jefferson, he, being sick, sent his neighbor, Samuel Starr, to the defendants to “ ascertain whether every thing was right concerning the notes, as he did not wish to- buy a lawsuit or have any trouble,” and that after Starr’s return from the defendants, he, Barrett, “ believing that every thing was all right,” bought the notes in good faith, before due, and for a full and adequate consideration.</p> <p>The information that Starr gave Barrett, as the result of his inquiries of the defendants, was all that Barrett knew in regard to the notes. The plaintiff offered to prove that the information Starr brought to Barrett, as the result of his inquiries, was that the defendants “ assured him, among other things, that the notes were all right, and would be promptly paid by defendants.” The court refused to permit proof of this information, given by Starr to Barrett, to go to the jury; and plaintiff excepted.</p> <p>But the court allowed one of the defendants, to testify, among other things, that they told Starr, in answer to his inquiries about the notes, that Jefferson had obtained them by fraud. The witness also testified that Starr said he came to see him because he talked of buying the notes. To this testimony, as to what defendants told Starr, the plaintiff objected, unless it was shown that Starr communicated the same to Barrett before he purchased the notes. The court overruled the objection, and the plaintiff excepted.</p> <p>The plaintiff, among other things, asked the court to charge the jury in substance: That if they should find, from the testimony, that Barrett, the assignor of the plaintiff, previous to purchasing the notes of the original payee, had, as a measure of precaution for his own safety sent Starr, a disinterested neighbor, a credible man as he believed, and one in whom he placed confidence, to the defendants, with directions only to make inquiry of them, whether the notes were all right, and would be paid promptly, and Starr did go and make such inquiry of the defendants; and if Starr was then told by the defendants that the notes were fraudulently obtained by Jefferson, yet, that this information so given by the defendants to Starr, would not be notice to Barrett, unless Starr communicated it to Barrett; and, notwithstanding such communication by defendants to Starr, if Barrett afterward purchased the notes, without any other notice of the fraud or defense, than such communication to Starr, which was not reported to Barrett, before they were due, in good faith, and without suspicion of any fraud or failure of consideration, that Barrett could hold and transfer the note to the plaintiff, divested of any such defense that might have existed between Jefferson and the defendants.</p> <p>The court refused thus to charge the jury, but did charge, in substance, that if they found that Barrett sent Starr to the defendants to get information for Barrett, as to the validity of the Trotes, and the defendants knew that to be the purpose of the visit, Barrett would be bound by any information given by the defendants to Starr, whether Starr communicated the same to Barrett or not.</p> <p>The verdict was for the defendants, and the plaintiff filed a motion for a new trial, assigning among other grounds, the rulings excepted to as above stated. This motion was overruled, and judgment entered on the verdict.</p> <p>To reverse this judgment, the plaintiff filed a petition in error in the district court, and it was therein reserved tc this court for decision.</p>

<p>1. Where the lands of a. debtor are levied on in execution issued for the satisfaction of a judgment rendered by the court of common pleas, the lien created by such levy is not vacated by the subsequent appeal of the case, by the judgment debtor, to the district court.</p> <p>2. Where several judgment creditors invoke the equity jurisdiction of the court, in the assertion of rights arising from their legal liens upon the real estate of their debtor, the priorities of such legal liens will attach to, and control their respective rights, in equity.</p>

On the 5th of January, 1865, Wright, the defendant in error, plaintiff below, filed his petition in the court of common pleas of Hocking county against Houston and Cline, the plaintiffs in error, defendants below, stating: That the plaintiff is a white male citizen of Falls township, Hocking county, Ohio, and that, during all the time between March 31st and August 15,1864, inclusive, he was a resident of that township, and was over eighteen and under forty-five years of age.

<p>E. made Ms will June 12,1830, devising all Ms property to his wife, and died, without issue, on the 7th of July following, seized of lands. The will was admitted to prohate October 7, 1830; and on the 4th of December following, the widow of E. was delivered of a son, the child of E. Held :</p> <p>1. That, at the time of executing such will, the testator had no child in ease, within the meaning of the fifth section of the act of 1824, relating to wills.</p> <p>2. That the probate of the will is not impugned by the subsequent birth of the child; but that event, by virtue of the statute, avoids the will.</p> <p>3. That, therefore, an action against the devisee by such child, or those in his right, to recover the possession of such real estate, may be maintained without directly impeaching the will by contest, as provided by statute.</p>

Reserved in the district court. On May 14, 1861, the Ashtabula and New Lisbon Railroad Company filed a petition, against Azariah Smith, in the court of common pleas of Ashtabula county, which states : 1st. That the plaintiff, at the time the defendant became a subscriber to the capital stock of the plaintiff as hereinafter set forth, to-wit: on the 1st day of June, 1853, was, and still is, an incorporated company, created by and under the laws of the State of Ohio, duly…

<p>1. Where an order confirming a sale made by the sheriff to a plaintiff in execution, is reversed, on error, after the execution of the sheriff's deed, and before any legal conveyance by the purchaser, the title, if any, acquired by the sheriff's deed, is divested by the order of reversal.</p> <p>2. The wife of such purchaser, receiving from him a deed to herself for the premises, after the execution of the sheriff's deed and before the reversal, in consideration of her choses and moneys previously reduced to his possession, with the intention to convey said premises to her in compensation therefor, but without any contract binding him so to do, can not, in equity, compel a conveyance of the legal title by the defendant in execution.</p> <p>3. Parties to proceedings in partition acquire no new title thereby ; and where they are made such by publication, and without actual notice, they are not estopped thereby from setting up their legal title.</p>

<p>Error to the district court of Ross county.</p> <p>The defendant in error brought an action of replevin to recover of. the plaintiff in error the produce of a field of wheat, and damages for its unlawful detention.</p> <p>The parties, by their pleadings, made an issue as to the ownership of the wheat. Upon the trial of this issue, evidence was offered tending to show, that in and prior to the montn of October, 1860, the farm upon which the wheat in controversy was raised, was owned and occupied by Storts, the plaintiff below; that on the 6th of October, 1860, said farm was sold at judicial sale, pursuant to an order of court regularly made in a proceeding for the foreclosure of a mortgage executed by said Storts upon the premises; that said sale was regularly confirmed by the proper court on the 25th December, 1860, and pursuant to its order the premises were conveyed to the purchaser by the sheriff, December 27,1860; and that the purchaser soon afterward conveyed to Parker, the defendant below. That the wheat in controversy was sowed by the plaintiff below, after the sale of the premises by the sheriff, but before the confirmation of the sale by the court. There was no evidence tending to prove that the purchaser of the premises ever assented to, or, in any way, acquiesced in the sowing of the wheat by Storts. As to Storts having been expressly notified by the purchaser after the sale not to seed the premises, conflicting- evidence was offered.</p> <p>The evidence being closed, the court charged the jury, “ that the mere fact that said wheat was sowed after the day of the sale of said premises at said sheriff’s sale would not deprive the plaintiff of the right to remove said crop, and that if there was nothing else in the case, the jury should find for the plaintiff; that the time when said sale would be confirmed being uncertain, tbe plaintiff had a right to sow, and if he had a right to sow, he had a right to reap ; but that if the jury were satisfied that the wheat was sowed after the date of said sale, and that the purchaser, before any of said wheat was sown, notified said Storts not to sow said wheat, then they should find for the defendant.” To this charge the defendant excepted.</p> <p>The verdict being for the plaintiff, the defendant moved to set it aside, on the grounds that it was against the law, and that the court erred in its charge to the jury. This motion was overruled, and judgment entered, and exception taken.</p> <p>The district court on error affirmed the judgment of the common pleas. To reverse the judgment of affirmance, and also the original judgment, a petition in error was filed in this court.</p>

<p>1. "Where-, at the time of the partition of an estate between 'co-devisees, one Of them had an inchoate right of dower in premises set off by the partition to another $ and, subsequently to the partition, the inchoate right of dower became perfect by the death of her husband, she will not, in equity, be held' estopped to claim her dower against her co-partitioners.</p> <p>2. In such a case equity will, while sustaining the claim to dower, decree and' enforce a contribution by all the parties to the partition, to make good to the co-devisees, in whose share the dower is assigned, their equal share in the common estate remaining after the assignment of dower.</p>

<p>1. A judgment of a court of this state is not a specialty, within the meaning of that term, as used in the third clause of the first section of the “ act for the limitation of actions,” passed February 18,1831.</p> <p>2. Although such a judgment is a good ground of action, its rendition is not the accruing of a cause of action#within the meaning of said section.</p> <p>3. Therefore said act of limitation does not apply to an action founded upon a judgment of a court of this state.</p> <p>á. The opinion in the case of Stoclcwell v. Coleman (10 Ohio St. *Rep. 33), is limited, so-far as it conflicts with the above holdings.</p>

<p>Error to the superior court of Cincinnati.</p> <p>'This was an action originally brought in the superior court of-Cincinnati for a balance claimed to be due upon a certain promissory note executed by James B. Ricords to the order of Nicholas Longworth, being for the purchase money of a certain lot of ground in the city of Cincinnati, sold and conveyed by Longworth to Ricords; and to' foreclose a mortgage given upon the same premises to secure the payment of the ¡note. The note was-as follows:</p> <p>“Cincinnati, July 24,1840.</p> <p>“Eor value received, I promise to pay N. Longworth, or order, one thousand dollars, with interest yearly till paid, and payable as follows: in two, three, four, five, six, seven, eight, nine, and ten years, equal installments, with interest yearly, as aforesaid: being the contract price of a lot. But if each and every payment is made punctually as due, or before due, or within ten days after each is due, as an inducement to punctuality, two hundred dollars of the amount will be released, and eight hundred dollars and its yearly interest accepted in full payment, but not otherwise.</p> <p>“ James B. Ricords.”</p> <p>The defeasance in the mortgage was conditioned also upon the payment of certain other notes therein designated, but nothing was alleged in the petition to be then unpaid, except the balance due upon the foregoing note, and which was claimed to be three hundred and ninety dollars, with interest from November 24, 1851.</p> <p>On September 8, 1841, Ricords sold and conveyed the lot, with the mortgage incumbrance upon it, to William Askren, who assumed the payment of the note given to Mr. Longworth for the purchase money, at which time nothing had been paid on account either of principal or interest.</p> <p>On January 24,1842, Askren commenced making payments on account of the note, and at that date, made a payment, and received from plaintiffs’ testator a receipt, of which the following is a copy:</p> <p>“Rec’d forty-nine dollars forty-four cents of Wm. Askren, the year’s interest due on Jas. B. Ricords’ mortgage the 24th July last, and int. on same to this date as follows:</p> <p>“Year’s interest,................................... $48 00</p> <p>“In. on same,....................................... 144</p> <p>$49 44</p> <p>“N. Longworth.”</p> <p>After this date, Askren made sundry payments; but by none of them did he bring himself within the terms of the contract as to time and amount. Before the ten years from the date of the note had expired, however, he'had paid in the aggregate the full amount of eight hundred dollars with annual interest. He accordingly pleaded payment, and claimed that by the terms of the note, or contract, any excess over eight hundred dollars and interest, was in the nature of a penalty, and prayed the court so to decree, and that the note and mortgage might be surrendered up to him and canceled.</p> <p>Upon the hearing at special term, the court rendered a decree in favor of the defendant, finding “ that the equity of the case is with the defendants; that the note described in the plaintiffs petition secured by the mortgage therein described, has been paid in full by the defendant, William Askren, on the 12th day of October, A. D., 1849, and that said mortgage ought to be canceled by the plaintiff.”</p> <p>A motion for a new trial was thereupon made by the plaintiff, and afterward reserved for the decision of all the judges in general term, and the cause coming on upon the reservation, the motion was overruled and the judgment and finding at special term affirmed, and thereupon a final judgment and entry was made in general term, to reverse which this petition in error is prosecuted.</p>

<p>1. The provisions of the fifth section of the act of congress, of March 3, 1863, for the removal,to the United States circuit court, of suits instituted in the state courts for acts done under the authority of the president of the United States, during the rebellion, is constitutional and valid.</p> <p>2. The act of accepting surety, and suspending jurisdiction by the state court in such suits, is an act which, if refused, may be compelled by mandamus; and this court has power to issue the writ.</p> <p>3. Where such suits are brought against co-trespassers, it is not necessary that all the defendants should join in the petition for removal.</p>

<p>1. Where a composition agreement is made in good faith, between a debtor in embarrassed circumstances and his creditors, whereby the debtor is to pay a certain sum in hand-to be distributed pro ruta among his creditors, and to give his promissory notes on time for the balance of the first fifty per cent, of his entire indebtedness, and the creditors are, on the payment of the stipulated sum in hand and also of the notes given in pursuance of the agreement, to release to the debtor the remaining fifty per cent, of the original indebtedness, such agreement is valid and binding in law.</p> <p>2. Where, after the making of such a composition agreement, the payment and distribution of the money to he paid in hand, and the giving by the debtor of the notes on time, in pursuance of the agreement, the debtor voluntarily, and on his own suggestion, executes to one of bis creditors who is a party to the composition agreement, other notes for the remaining fifty per cent, of the original indebtedness to him, and which, by their terms will become due before any of the composition notes, such notes so given for the remaining fifty per cent, of original indebtedness are without consideration, and, as between the original parties to them, void; they being in fraud of the rights of other oomposition creditors.</p> <p>3. Where, in error, it is apparent from the record that the judgment of the court below was right, technical errors intervening on the trial, will not avail to disturb the judgment.</p>

On July 22,1856, Geyer brought an action, in the superior court of Cincinnati, against Gill, for money had and received and further averred in his petition that, from the 6th of December, 1843, to the 24th of March, 1856, the parties carried on the cabinet-making business in Cincinnati, as partners, under the name of the plaintiff, Geyer, who advanced the capital and was entitled to two thirds of the profits of the business; that the defendant, Gill, contributed his labor…

, incurred in furnishing temporary relief to an insane pauper having a legal settlement in said city. Toledo is a city of the second class, and its limits are identical with those of the former township of Port Lawrence, which has become merged in the city. On motion of defendant, the court dismissed the plaintiff’s petition, for want of jurisdiction; holding that the suit should have been brought in Lucas county.

The defendant in error, Caldwell, was the owner of a military bounty land warrant, No. 31,694, for 160 acres, issued to him by the government of the United States, under the act of congress of February 11, 1847; and, shortly after he received the same, it was fraudulently obtained from him, and replaced by a spurious or forged warrant, which, for a long time, he supposed genuine.

The original action was brought in the common pleas, by the plaintiff in error, against the defendant in error, to recover possession of eighty acres of land. Both parties claimed title under Nicholas Snyder, the devisee of his father, Nicholas Snyder, deceased. The devise to Nicholas is in the following words: “ 3.

On October 10,1861, John Hoffman filed his petition in the probate court of Lucas county, and procured to be issued thereon, a writ of habeas corpus by the judge of that court, for the bodies of three minor children, Catherine E. Hoffman, aged twelve years (of imbecile mind), Agnes Hoffman, aged ten, and Jane Hoffman, aged eight years.

Mandamus to compel township trustees to levy a tax to pay interest on township undertakings. The Columbus, Piqua and Indiana Railroad Company was incorporated by the act of February 28, 1849 (47 O. L. 155-6). That act provides as follows : “Sec. .4.

The facts, as they appear in the record, are substantially as follows: On the 9th of July, 1857, Earley & Ketcham, parties of the first part, executed a mortgage to the plaintiffs, parties of the second part, by which “ the said parties of the first part for and in consideration of the sum of $1231.51, to them in hand paid by the said parties of the second part ... do grant, bargain, and sell unto the said parties of the second part, all and singular the goods and chattels…

<p>Error to tne court of common pleas of Hamilton county.</p> <p>The case is stated in the opinion of the court.</p>

<p>Reserved in the district court of Ross county.</p> <p>The case is stated in the opinion of the court.</p>

<p>Salaries of officers of incorporated cities, due and unpaid, may be subjected by judgment creditors of such officers to the payment of their judgments, under the provisions of section 458 of the code of civil procedure.</p>

<p>1. When a judgment is reversed and the cause remanded for further proceedings, aDd the plaintiff in the court below then voluntarily becomes non suit he is not estopped from bringing a new action.</p> <p>2. The unauthorized addition of the words “ without relief from valuation or appraisement laws" by an agent intrusted with the filling up and negotiation of a blank bill of exchange, will not render it invalid, there being a complete bill of exchange without them.</p>

Petition in error. Reserved in the district court of Stark county.

Reserved in the district court. The record shows, that Anderson was elected sheriff of Ross county at the October election, 1854; and that, afterward, on November 28, 1854, he gave bond to the State of Ohio, .in $12,000, with Hough, Carson, and Amberg as sureties, com ditioned for the faithful discharge of his duties; which bond was, the same day, received, approved, and accepted by the board of county commissioners, in behalf of the state.

It appears that the present plaintiff was sued before a justice of the peace by C. D. Williams, and that on her appeal the case was taken to the court of common pleas, where Williams, the plaintiff, being a non-resident, was ruled to give security for costs, in one hundred dollars, which he did with Mark S. Sibley as surety.

<p>Application for a peremptory writ of mandamus.</p>

<p>1* A widow, who, in the lifetime of her husband, united with him in a mortgige of lands, of which he was seized in fee, has, in equity, after his death, a right to redeem.</p> <p>2. A foreclosure, during the lifetime of the husband, by suit in chancery, to which the wife is not a party, does not bar her equity of redemption.</p> <p>8. Process against, and service thereof on, the husband alone does not effect her appearance.</p>

<p>1. Where the defendant has offered, under the statute, to confess a judgment for a specific amount, in an action before a justice of the peace, which offer is rejected by the plaintiff, and, on appeal to the court of common pleas, the plaintiff recovers less than was offered, judgment should be rendered against him for defendants cost, accruing after such offer.</p> <p>2. In such case, the plaintiff is not entitled to judgment for the amount so offered by the defendant; nor, is the amount of recovery to be affected by such offer.</p> <p>3. To justify the reversal of a judgment, where the error complained of is the rejection of evidence, its materiality must affirmatively appear upon the face of the record.</p>

<p>1. It is the settled law of this state, that where a person who is not a party, writes his name, in blank, on the back of a promissory note, at the time of its execution and delivery, the prima fade presumption is, that he is a maker of the note, and he may, accordingly, be treated as a surety.</p> <p>2. This ordinary presumption may, however, be rebutted, by parol evidence of a different intention and agreement of the parties; to which, when proved, a controlling effect will be given.</p> <p>3. Where the design of such indorsement, in blank, is to give to the payees additional security for the payment of the note, parol evidence tending to limit the liability of such indorser, will be construed, if possible, so as not to defeat the general intention.</p> <p>4. Therefore, where A., as a security, on behalf of the maker, to the payees of the note, at the time of its execution writes his name on the back thereof, having previously-refused to become a joint maker, and having stated that he" would assume only the obligations of an indorser; he will be regarded, at least, as a conditional guarantor; and his liability to the holder of the note, like that of an indorser to an indorsee, will be fixed by demand and notice.</p> <p>§. If, in such a case, the holder of the note, subsequently, and without authority, writes over the name of A. a guaranty of payment and waiver of demand and notice, A. will not thereby be discharged from the obligations of his contract. The unauthorized portion of such writing may, at any time be canceled; or it will be disregarded, and the actual contract will be enforced.</p>

<p>1. Mortgages of railroad companies, executed under statutory provisions authorizing them to pledge their “ entire roads, franchises, fixtures and equipments, with the income and resources thereof, together with the capital stock,” and declaring that such mortgages shall be “a good and substantial lien, as well upon the personal as real property of the company,” where they contain apt language to that effect, attach to and cover future acquisitions of property for the use§ of the road.</p> <p>2. The casfc-off articles, fragments, and old materials, once forming parfc of the road, or used in its operation, still continue under fehe mortgage, if a proper and judicious management of the road requires that they should he re-cast or exchanged for new articles, for the uses of the road.</p> <p>3. Where the amo'unfc of such mortgages exceeds the entire value of the mortgaged property, only nominal damages can be recovered against the sheriff, for refusing to levy upon and sell the property on executions against the company.</p>

<p>Error to the court of common pleas of Logan county.</p> <p>The case is stated in the opinion of the court.</p>

The original action was brought by the plaintiffs in error, against the defendants in error, in the court of common pleas, to recover the possession of certain real estate, being parts of farm lots, Nos. 40 and 41, in Wellington township, in Lorain county, Ohio. All the parties claimed title through Amos Adams, deceased — the jolaintiffs in error, under his will — the defendants in error by descent from him to his widow, Electa Adams, and by devise from her.

Reserved in the district court. The material allegations in the petition filed in the court of common pleas, by Lewis Duckwall, are, that D. W. Duck-wall, on the twenty-first day of December, 1860, recovered a judgment for one hundred and eighty-four dollars, against David Kinzer, before a justice of the peace of Brown county; that an execution was issued thereon, and, on the twenty-third day of the same month, was levied on eleven stacks of hay, as the property of Kinzer,…

In February, 1856, the defendant Wick, in an action against Borges and others, obtained an interlocutory order for the sale of certain mortgaged premises, by a special master. The master was appointed merely for the execution of that order, and for no specified length of time; and he took no oath of. office and gave no bond. The master caused the land to be regularly appraised and advertised, and in June, 1856, sold the same for $3010 to the plaintiff Mayer.

<p>1. The enactment of the thirteenth section of the act of congress of July 7, 1838, “to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam” (5 U. S. Stat. at Large, 306), which provides, “that in all suits and actions against proprietors of steamboats, for injuries arising to person or property from the bursting of the boiler of any steamboat, or the collapse of a flue, or other injurious escape of ■steam, the fact of such bursting, collapse, or injurious escape of steam, shall be taken as full prima facie evidence, sufficient to charge the dofendant, or those in his employment, with negligence, until he shall show that no negligence has been committed by him or those in his employment,” is within the powers granted to congress by the constitution of the United States, to regulate commerce with foreign nations, and among the several states ; and the provisions of said thirteenth section are obligatory, in oases coming within their purview, on the courts of this state as well as the courts of tho United States.</p> <p>2. Said section of the act of congress applies as well to actions brought under the act of the general assembly of this state, of March 25, 1851 (Curwen's Stat. 1673), “requiring compensation for causing death by wrongful act, neglect, or default,” as in other actions for negligence.</p> <p>3* In an action in which said thirteenth section of the act of congress applies, and the only matter in issue in the pleadings is the question of negligence, it is error for the court to charge the jury, “ that it was for the plaintiff to make out his case by a preponderance of testimony in his favor.</p>

<p>3. Where the record shows a special finding of facts by the court to which the case was tried, and the overruling of a motion to set aside such finding,filed by the party for whom final judgment was rendered on the facts so found, such judgment being erroneous, it was proper for the reviewing court, after reversing it, to remand the case for a new trial; and such order will not be reversed on error by the supreme court.</p> <p>2. When goods, specified in a marine policy made with reference to a particular trade or line of steamers, are carried on deck, in accordance with an established usage of such trade or line, and are jettisoned on the voyage, the loss is covered by the policy, and the underwriter is liable thereon.</p>

Henry Lehman and John K. McBride, at the general election, held for state and county .officers, on the second Tuesday of October, 1863, being residents and qualified electors of the county of Wayne, were severally candidates for the office of probate judge, within and for said county.