Volume 16 — Ohio State Reports, New Series

<p>1. A note payable in bills of a particular bank, without reference to their value- or currency, is not commercial paper; and want of consideration is a good, defense to an action thereon by the indorsee against the maker.</p> <p>2. When a demurrer is erroneously decided against a party, and he afterward amends, setting up a different and repugnant case, abandoning the old oner the final judgment against him on the new case of defense, will not be reversed for such error.</p> <p>3. Judgment will not be reversed for alleged error in overruling exceptions to depositions, unless it appear, by bill of exceptions or otherwise, that the facts upon which the exceptions are predicated exist. The allegation in the exceptions is not itself sufficient.</p> <p>4. Before the passage of the act of May 1, 1862, the deposit of money to the amount fixed for the undertaking for a second trial-was not sufficient to-give the court jurisdiction.</p> <p>5. When such deposit was made in a bank certificate of deposit, and the clerk made and signed a memorandum or entry upon the journal of the fact that such deposit had been made, stating that he was to restore the money if the party should abide and perform the judgment and order of the court, and pay all moneys, damages, and costs awarded against him, consequent upon said second trial; otherwise, that the clerk was to apply the money to the payment of the same, and stating that the security was approved by the clerk: Held, that neither the certificate nor the journal entry is an undertaking, and that there was not such a proceeding as would justify the filing of a perfect undertaking, so as to give the court jurisdiction.</p>

<p>Error to tbe court of common pleas of Scioto-county. Beseryed: in the district court.</p> <p>The plaintiffs, on December 24,1859, filed their petition in the-court of common pleas, against the defendants, to recover the damages caused by certain trespasses committed upon the lands described in the petition.</p> <p>These lands, it was averred, had, prior to the year 1840, been selected by the secretary of the treasury of the United States for-the support of schools within the district of country known as French Grant, in the county of Scioto, in pursuance of the act of Congress, approved May 20,1826; and that, from the year 1840 until the year 1853, the lands were set apart and held by the legislature of the State of Ohio for the support of schools within the district of country named.</p> <p>The trespasses complained of were alleged to have been committed in the year 1840, and to have been continued from that time to July 1, 1853; and consisted of the unlawful entry upon the-lands by the defendants, and of their having cut, carried away, and converted to their own use, the timber growing upon about twenty aches of land; also, of their having dug up, and carried away and converted, a large quantity of iron ore. By these acts of trespass, it was averred, the lands had been greatly injured and depreciated, in value.</p> <p>The defendants filed a demurrer to the petition, which was sustained by the court, the petition dismissed, and judgment rendered against the plaintiffs for costs.</p> <p>To reverse this judgment the plaintiffs filed a petition in error in *the district court, and assigned for error that the court of common pleas held that the statute of limitations barred the action, and also sustained the demurrer. The case was reserved in the district court for. decision in this court.</p> <p>. The principal ground relied upon to sustain the demurrer is that,, upon the facts stated in the petition, the action was barred.</p>

<p>.In an action against a surety, on a township treasurer’s school bond, conditioned expressly for the faithful disbursement of school moneys, a judgment for defendant will not be reversed, where the pleadings and evidence show a default by the treasurer only as to “township funds," in general terms, without specifying that any part thereof was school money.</p>

<p>,1. The act of April 9, 1852, “to enable the trustees of colleges, academies, universities, and other institutions for the purpose of promoting education to become bodies corporate,” and the act of March 11, 1853, amendatory thereof, recognize a class of educational institutions, the property of which is held in trust, and is derived from “ donation, gift, devise, or gratuitous subscription;” and various provisions of those acts, by necessary implication, authorize such institutions to accept and receive voluntary subscriptions.</p> <p>2. Where such subscription is made in writing, and accepted, and liabilities are incurred on the faith of it, its collection can not be defeated on the ground of a supposed want of a valuable or legal consideration.</p>

<p>Where a testator, in his will, employs terms which, standing alone, may seem, simply to designate a class of persons as his legatees, but which, from a fair construction of the whole will, viewed in the light cast upon it by the circumstances surrounding the testator, it is apparent were used as substitutes for the names of the legatees, and to identify individual persons, such words will not be held to embrace an indefinite class of persons, but will baconfined to the individual persons designated. In Chancery. Reserved in the district court of Franklin county.. The case is stated in the opinion of the court.</p>

<p>Error to the court of common pleas of Greene county. Be-served in the district court.</p> <p>The original action was brought by the plaintiff, as clerk of Cedarville township, in Greene county, upon the official bond of Nesbitt, given by him as treasurer of the township, for the disbursement of school funds.</p> <p>*The bond was conditioned that the treasurer, Nesbitt, should “ pay over all money coming into his hands for school purposes, on the order of the board of education for said township.”</p> <p>The breach assigned was, that he had failed and refused to pay over, or account for, the sum of $1,080.72, of the township school funds which had come into his hands, and for which the board had drawn an order, in favor of his successor, after Nesbitt’s term of office had expired.</p> <p>The common pleas sustained a demurrer to this petition, and rendered judgment for defendants.</p> <p>s To reverse this judgment, a petition in error was filed in the district court, and reserved for decision here.</p>

<p>1. That the act of March 28, 1864, “to authorize the county commissioners, trustees of townships, and city councils to levy a tax for the payment of bounties to volunteei-s, and to refund subscriptions made for that purpose,” is not repugnant to the constitution, and is therefore valid.</p> <p>*2. When the trustees of a township are entitled to moneys collected by taxation under said act, and the treasurer refuses, upon presentation of the proper orders, to pay over the moneys, he may be compelled to do so by mandamus.</p>

<p>It is inadmissible, for the purpose of impeaching the credibility of a competent witness, to prove by other witnesses that such witness is not possessed of ordinary intelligence.</p>

<p>Where the judgment recited in a writ of execution, and for the satisfaction of which the writ purports to have been issued, is for an amount substantially greater than the actual judgment recovered in the case, the officer to whom such wrongful execution is directed is not liable to amercement for neglecting to return it on or before its proper return day.</p>

<p>1. A resolution of a city council, under section 32 of tile towns and cities act (2 S. & O. 150C), directing lot-owners “ to fill and drain their lots in such manner as shall be necessary to remove all stagnant water,” requires, by reasonable construction, not merely the removal of water then on the lots, but the work to be so done as to prevent the recurrence of stagnant water from the same causes.</p> <p>’2. The power of creating municipal corporations necessarily implies authority to confer upon them such police powers as may be necessary for their internal government, and the resolution referred to, being a reasonable sanitary measure for preserving the health of the inhabitants, is not in conflict with the constitution.</p> <p>*3. Such resolution must be reasonably certain in its requirements; but where the work to be done is clearly defined in general terms, the fact of leaving to the owner, who bears the expense, the choice of the means of accomplishing the required result, will not render the resolution invalid.</p> <p>4. Where, after default of the lot-owners, the work has been done under the authority of the city, it is no objection to the assessment that the expenses have not been paid, nor that the contractor agreed to receive a valid assessment in payment. Work done on the credit of the city is, in eifect, done at its expense.</p> <p>.5. The corporation can not, by devolving the risk and cost of collecting the assessment upon the contractor, increase the burden of the owner. He can only be assessed for the cash value of the work.</p>

The object of this proceeding in error is to reverse the judgment, of the district court in favor of Connolly, charging assessments on certain lots in the city of Toledo, for work done by him as contractor with the city, under resolutions of the city council for filling' and draining the lots so as to prevent water standing thereon.

<p>Error to the common pleas of Union county. Reserved in the • district court.</p> <p>On the 26th of February, 1863, the plaintiff, Orlando Wells, filed his petition, in the court of common pleas of Union county, against the defendant, Cook, as follows:</p> <p>“ The defendant, on or about the 1st day of November, A. d. 1861, sold to the plaintiff, as the agent of his brother, Osmond Wells, and for the said Osmond Wells, twenty-three head of *wether and three head of buck-sheep, the defendant well knowing at the time ■of said purchase that the said sheep were to be turned in with a large flock of sheep, owned at that time by the said Osmond Wells, of eleven hundred head—all of which said eleven hundred head of sheep, at the time of said purchase and turning in of the said twenty-three head of wether and and three head of buck-sheep, were sound and healthy, and free from any disease. The defendant, at the time of said purchase, wrongfully and fraudulently represented to plaintiff that said sheep purchased of him were sound and healthy, and free from any disease; whereas the said sheep, . although apparently sound and healthy, were not sound and healthy, as the defendant then well knew, and wrongfully and fraudulently •concealed the same from the plaintiff. The plaintiff afterward, on • or about the 1st day of December, purchased of his brother, Osmond Wells, all of the before-mentioned sheep, including those purchased of defendant, solely relying, as to the soundness of said sheep, upon his own knowledge of said eleven hundred, previous to the purchase of the twenty-three head of wethers and three head of bucks of the plaintiff, and relying solely upon the representations of the defendant as to the soundness of those purchased of him. The plaintiff avers that said sheep purchased of the defendant were, at the time of said purchase, unsound, and had a disease known as the ‘ foot-rot,’ which is contagious, and which was communicated to the rest of said flock by the turning in said ■sheep with the said eleven hundred head. And the plaintiff further !avers, that at the time of his said purchase from his brother, Osmond Wells, of said sheep, said disease had not made its appearance among said flock, so as to be noticed by plaintiff or his brother, they being at that time unacquainted with the nature of said disease, but that it has since broken out among said flock so as to render them almost entirely valueless. To the damage of the plaintiff four thousand dollars, for which he prays judgment.”</p> <p>To this petition the defendant demurred, on the ground that the same' does not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and thereupon gave judgment for the defendant. The plaintiff, to reverse *this judgment, filed his petition in error in the district court, alleging for error the sustaining of the demurrer to his petition in the court below, and the case was thence reserved for decision in this court.</p>

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

<p>1. Under the statute of 1824, (requiring a sheriff to give bond conditioned for the faithful discharge of his duties, also requiring him to execute all process directed to him by lawful authority, the duties, the discharge of which are intended to be secured by such bond, embrace the service of judicial process authorized by statute when issued, whether such statute was passed before or after the date of such bond.</p> <p>:2. The sheriff and his sureties are liable on his official bond, executed before the code took effect, for his neglect to pay over money made on attachment process in a proceeding on a claim before it was due, which was authorized by the code after the date of such bond.</p> <p>'3. An action on a sheriff’s official bond, for a breach occurring after the code took effect, is not barred by the limitation provided in the code until ten years after such breach.</p> <p>-4. Where such bond provides for the faithful discharge of the duties of the officer during Ms continuance in office, the expiration of his term of office will not relieve him and his sureties from liability on the bond for money made on legal process during such official term, although not demanded by the party entitled thereto, until after the expiration of such term.</p>

<p>1. Upon the trial of issues of fact, the general rule is that the burden of proof rests upon the person holding the affirmative; and this is so especially where, from the nature of the case, the facts alleged must be peculiarly within his own knowledge.</p> <p>2. The code of civil procedure does not authorize the same cause of action to be stated in different forms as so many distinct causes of action. It wholly abolishes this artificial mode of pleading. But if the petition contains a. full statement of the facts constituting the plaintiff’s cause of action, and this is improperly followed by another count, differing from the former only in being more general in its form, and less specific in its statement of facts,, and no objection is taken to the petition, the second count maybe regarded as mere surplusage.</p> <p>3. A transfer of property, made by a debtor upon a secret trust, is prima facie’ fraudulent as against creditors; and, as against them, the burden of proof is on the party claiming under it, to show adequacy of consideration and good faith in the transaction.</p> <p>4. The production and proof of a mere formal transfer of property by the-debtor is not enough to cast upon antecedent creditors the burden of showing a want of good faith or of adequate consideration.</p> <p>5. A motion for a new trial, based on the ground that counsel in the case were-led by a misapprehension of the law to abstain from offering evidence pertinent to the issues made therein, is addressed to the sound discretion of the court, under all the circumstances of the case, and its action thereon is not subject to review upon error.</p>

<p>Error to the court of common pleas of Morgan county. Reserved in the district court.</p> <p>The steamboat Jonas Powell, plying regularly between Zanesville, Ohio, and Parkersburg, Virginia, by her clerk, made the following contract, at the date therein named:</p> <p>“ The steamer Jonas Powell received for transportation, in good order, from S. Thompson, the following articles, which are to be delivered without delay, to consignees as per margin below. Freight to Philadelphia, 85 cts. per 100.</p> <p>“Dated at McConnellsville, April 19, 1861.</p> <p> “ Marks. Articles. </p> <p>“ S. Thompson, Phil. Care of Eplar & Cress.</p> <p>54 Bbls. Eggs. 3930 doz.</p> <p>Weight, 7020.</p> <p>. “ D. H. Mortley, Clerk."</p> <p>Thompson, the plaintiff below, claiming that the eggs were not delivered until they were spoiled from unnecessary lapse of time, filed his petition in the common pleas against the boat to recover damages for the loss consequent upon the delay in delivery, and caused the seizure of the boat under the water-craft law.</p> <p>*On behalf of the defendant an answer was filed, stating:</p> <p>That the defendant entered into the contract set forth in the bill of lading, a copy of which is annexed to the petition, and not otherwise. That the defendant did not undertake to carry the eggs in the boat to Philadelphia, but, as the plaintiff well knew, did undertake to carry them on the boat to Parkersburg, in the State of Virginia, and there place them in the care of the agent of the Baltimore and Ohio Railroad company to be by that company, with reasonable diligence, transported over the Northwestern Virginia Railroad, then in possession of the Baltimore and Ohio Railroad Company, and over the Baltimore and Ohio Railroad to Baltimore, in the State of Maryland; and thence through the city of Baltimore, by railroad, to the depot or southern terminus of the Philadelphia, Wilmington and Baltimore Railroad; and thence by the Philadelphia, Wilmington and Baltimore Railroad to Philadelphia, in the State of Pennsylvania, to which city the eggs were consigned. That the eggs were safely, securely, and without delay, on, and immediately after the 19th of April, conveyed by said steamboat to Parkersburg; and thence, safely, securely, and without delay, by the Baltimore and Ohio Railroad Company, over the Northwestern Virginia Railroad, and over the Baltimore and Ohio Railroad to tbe city of Baltimore. That, on the 19th of April, 1861, a state-of war existed between the United States of America and an organized band of armed rebels and traitors, enemies of the United States and its government, then investing the city of Washington, and threatening its capture and destruction. That on that day, for the purpose of preventing the passage of the troops of the United States to the city of Washington, there to be used for the defense* thereof, the said rebels and traitors, enemies of the United States,, tore up and destroyed the railroad track connecting the depot of the Baltimore and Ohio Bailroad with the depot of the Philadelphia, Wilmington and Baltimore Bailroad, and burnt and destroyed sundry of the bridges on the Philadelphia, Wilmington and Baltimore Bailroad, between Havre de Grace and Baltimore and thereby prevented the passage of freight through the city and over that part of the Philadelphia, Wilmington and ^Baltimore Bail-road lying south of the Susquehanna river and said town of Havre de Grace, leaving the Philadelphia, Wilmington and BaltimoreBailroad uninterrupted from the northern bank of the Susquehanna,, at the town of Perryville, opposite Havre de Grace, to Philadelphia.. That this part of the road was thereafter taken possession of by the-armies of the United States for the purpose of being exclusively used and occupied for the transit of troops and arms and munitions-of war of the United States. That upon the arrival of the eggs in Baltimore, whilst said railroads were thus interrupted, the agents-of the Baltimore and Ohio Bailroad applied to the officer of the-United States having command at Perryville, and also commanding-the Philadelphia, Wilmington and Baltimore Bailroad, for permission to send its Philadelphia bound freight, including the plaintiff’s-eggs, over the Philadelphia, Wilmington and Baltimore Bailroad from Perryville to .Philadelphia, which permission was refused;, and thereupon the eggs were sent by the only other usual and practicable route; that is to say, by sea, to Philadelphia, and delivered to-the consignee in Philadelphia, in as good order as such articles could, be, after that lapse of time. That no unreasonable delay occurred* in the forwarding and transportation of the eggs, nor was the defendant or its master, owners, or employes guilty of any carelessness or- negligence in that behalf.</p> <p>To this answer Thompson replied: That it was the agreement: between the plaintiff and the defendant that the eggs described in the plaintiff’s petition should be transported by the defendant to* Philadelphia, but the plaintiff'avers that it was not the agreement that they should be transported by way of Parkersburg, and thence -over any particular railroad route. That it was not the agreement that the eggs should be transported ‘ over the Northwestern Virginia Railroad, then in possession of the Baltimore and Ohio Railroad Company, and over the Baltimore and Ohio Railroad to Baltimore, in the State of Maryland; and thence, through the city of Baltimore, by railroad to the depot, or southern terminus of the Philadelphia, Wilmington and Baltimore Railroad; and thence, by said last-named road, to Philadelphia, the place to *whick 'the eggs were consigned. That it is not true that the eggs were .■safely, securely, and without delay, on and immediately after the 19th of April, conveyed by said steamboat to Parkersburg, and thence safely, securely, and without delay, by the Baltimore and Ohio Railroad Company, over the Northwestern Virginia Railroad, and over the Baltimore and Ohio Railroad to the city of Baltimore. That it is not true, as alleged in said answer, that on the 14th day of April, 1861, a state of war existed between the United States of America ■and an organized band of armed rebels and traitors, enemies to the United States and its government, and that such traitors were investing the capital of the country, and threatening its capture and destruction. That it is not true, as alleged in said answer, that any railroad bridges were torn up, burnt, or destroyed by armed traitors ■ on any route necessary to be employed by the defendant in transporting the eggs in pursuance of the contract between the parties. That the defendant was not hindered from the delivery of the eggs by reason of any act of an enemy or the enemies of the United .States. That it is not true that the defendant was hindered from the •delivery of the eggs by the act of Major-General Patterson, or any other person acting under and by virtue of any order of the president or government of the United States. That even after the arrival of the eggs at Baltimore, they were not sent speedily, safely, .and securely to Philadelphia, as averred in the answer; but that unreasonable delay did occur in the forwarding and transportation of the eggs, and that such delay was caused by the negligence of the masters, owners, and employes of said boat, the defendant, and from no other cause whatsoever.</p> <p>Upon the issues thus joined, the case was tried to a jury. Exception was taken by the defendant to the refusal of the court to charge the jury as requested, and to the charge given. The verdict being for the plaintiff, the defendant moved for a new trial, and in arrest of judgment. These motions were overruled and judgment entered.. To reverse the judgment a petition in error was filed in the district ■ court and reserved for decision in this court. The record sets out - in full all the evidence, and also the charge requested and the charge *given to the jury; but.as they are voluminous, it is not deemed necessary to state them at length. The points made in the record and determined here on error, appear in the opinion of the court.</p>

<p>1. Any defendant between whom and the plaintiff an issue of fact has been joined, which either party thereto has the right to have tried by a jury, has the right, under the statute, to a second trial.</p> <p>2. The perfecting his. right to such trial, by one of several defendants sued as-joint contractors, does not open for retrial the issues which have been found between the plaintiff and the other defendants who have not taken a second trial.</p> <p>3. If the defense set up by the party taking the second trial is several only, leaving a valid cause of action against the other defendants, the liability of those not taking a second trial, as fixed by the findings on the first trial, will remain unaffected by such second trial.</p> <p>4. But if the defense is joint in its nature, and goes to the validity of the cause of action, it will, to the extent it may bé established, inure to the benefit of the other defendants.</p> <p>3. All the parties to the action, whose interests may be affected by the results of' the second trial, remain before the court, quoad such interests, and such judgment may be rendered as the rights of the parties require.</p>

<p>Where one of several creditors, by falsely representing to the debtor that his other creditors are about to attach his property, induces the debtor to assign to him all his property, for the pretended security of his claim, but, in fact, to prevent such attachment, and upon a secret promise by the assignee to account for the property, and save the debtor harmless, no action can be maintained by the assignor upon the promise, or to recover damages for the fraud, although, at the time of the assignment, he was solvent, and intended ultimately to pay all his debts.</p>

<p>1. Where the whole or a part of the consideration of a bill of exchange is ille* gal, the whole bill is void.</p> <p>2. Where such bill is given for two distinct considerations, neither of which is unlawful, and one is valid, but the other is void at common law or by statute, as between the parties thereto, the bill will be held valid to the extent of the good consideration, and void as to the rest.</p> <p>3. The act of 1854, prohibiting, while in force, the circulation of foreign bank-bills of a denomination less than ten dollars, rendered void only such contracts as were given *for, or related directly to, such bank-bills; therefore, where a bill of exchange was given in renewal of several others, all of which were valid, except one that was rendered void by said act, such renewed bill was void to tbe extent only of tbe invalid consideration, and! good as to tbe balance.</p> <p>4. Where a judgment was rendered by warrant of attorney on such renewed bill, for the full amount thereof, and, on a proceeding to vacate such judg ment, under the provisions of the code, the amount of such void considera tion was remitted therefrom by leave of the court, such proceeding wai, properly dismissed without vacating the judgment.</p>

February 15, 1848, the legislature of the State of Indiana passed-“an act to incorporate the Junction Bailroad Company.” The-15th section of this act provides: “Said company may negotiate any loan or loans of money, and at any rate of interest deemed expedient, and the principal and-' interest of all debts so contracted shall be a lien, in their order, on, all the property and effects of the company, and the stock of eachcorporator; all of which, or any part thereof, may be…

On the 12th of March, 1860, the defendant, Simon Jackson, petitioned the trustees of Center township, in the county of Monroe, for the alteration of a township road. Thereupon such proceedings were had, pursuant to the statute, that the proposed alteration was established by the trustees. The plaintiff, Robert Jackson, appealed to the probate court. Á committee of view was appointed by the court, which reported in •favor of the proposed alteration of the road.

<p>1. If an express trust can be ingrafted, by parol evidence, upon a conveyance of real estate, absolute on its face, yet such trust can be established only by clear, certain, and conclusive evidence, in proof not only of the existence of the trust at the time of the conveyance, but also of its terms and conditions.</p> <p>2. As such a conveyance carries with it, prima facie, an absolute power of disposition, a sale and conveyance of the premises by the grantee will be held to be a breach of the conditions of the trust, only where the purposes of the trust are clearly shown to be inconsistent with the exercise of such a power.</p> <p>3. When the trust is for the payment of debts generally, with a special apiDropriation of an uncertain residue, the purchaser from the grantee takes the property discharged of the trust, and is not bound to see to the proper application of the purchase money.</p>

<p>In a proceeding, under the act of March 14, 1831, “ directing the mode of proceeding in chancery," seeking .to charge lands situate in the county in which the proceeding is pending, where it is alleged in the petition that a. part of the defendants thereto are non-residents of the state, and the court thereupon order the giving of notice to such defendants, by publication in the manner prescribed by said act; and such publication having been made- and proved, the court takes jurisdiction of the case and decrees a sale of the land sought to be charged; and a sale, in all respects regular, is accordingly made to a bona fide purchaser: Held, that the defendants on. whom no service of process was had, otherwise than by publication as aforesaid, will not be allowed, in a collateral proceeding, and for the purpose of invalidating the title acquired under the decree and sale, to draw in question the jurisdiction of the court rendering the decree, by proving that at the commencement and during all the time of the pendency of the proceeding they were, in fact, residents of the state.</p>

<p>1. A notice to contest an election need not set forth facts sufficient to constitute a good case for the contestor. The object of the requirement of the statute, that the “ points ” of contest shall be expressed in the notice, is to limit the evidence of the contestor, and to apprise the contestee of the general nature of the objections and evidence relied upon; and if any of the “points” are not stated with reasonable definiteness and certainty for these purposes, the remedy is by objecting to the evidence taken under them, and not by motion to dismiss the appeal.</p> <p>2. A regular and perfect “ tally-sheet” of an election held under the soldiers’ voting law, is, of itself, prima facie evidence, in such contest, of the votes therein indicated.</p> <p>3. When the judges or clerks of an election omit to sign the poll-books or tally-sheets, to fill up blanks in the caption, or to state the aggregate number of the voters, these and the like omissions and mistakes may be supplied and corrected upon the trial of a contest, by parol evidence, and the documents, when so corrected, and sustained by parol proof, are competent evidence of the results of the election.</p>

<p>1. Under the statute providing that where no time is named in an act for its going into operation, it shall take effect on the first day of May next thereafter, the taking effect of the repealing clause in a revising act, as well as the general provisions of such act, is postponed accordingly.</p> <p>'2. A widow who, in the lifetime of her husband, united with him in a mortgage upon lands of which he was seized in fee during coverture, has, in equity, a right to redeem; and a foreclosure in the lifetime of her husband, to which she was not a party, does not divest her of such right. McArthur v. Franklin, 15 Ohio, 485, approved and followed.</p> <p>3. The purchaser at a sale, in proceedings to foreclose against the husband alone, acquires the interests both of the husband and the mortgagee. As against the widow, the position of such purchaser is the same as if he derived title under a sale on execution, except that he also acquires the interest of the mortgagee. But when the mortgage debt is paid, his interest as mortgagee ceases, and the widow is entitled to have her dower assigned in the land.</p> <p>4. The purchaser having acquired and entered into possession under the title of both the mortgagor and mortgagee, is to be regarded as the mortgagor and mortgagee occupying the mortgaged premises in common, according to their respective interests. And regarding the price paid at the judicial sale as representing both interests, the purchaser should account for such a proportion of the net annual rents as the amount due on the mortgage at the time of the sale bears to the price at which the land was sold.</p> <p>5. In,ascertaining the annual rents, the enhanced value of the land from improvements other than ordinary repairs should be excluded. Taxes and ordinary repairs should be deducted in ascertaining the net rents.</p> <p>6. The plaintiff not having been a party to the foreclosure suit, is entitled to have the account taken in the same manner as if no decree had been rendered. Therefore, in ascertaining the amount due on the mortgage debt,, there should be no rest made at the time of the rendition of the decree.</p> <p>1. With the consent of the defendant, the plaintiff may redeem her dower by-paying her proportion of the mortgage debt. This would be such part of' one-third of the debt remaining unpaid as bears the same proportion to-the third part of such debt as the value of her life estate in one-third part of the land bears to the value of the unincumbered fee in the third last named.</p> <p>S. The value of the widow’s life estate, in such ease, is the present worth of an annuity for her life, equal to one-third of the interest of the mortgage debt, unpaid.</p>

<p>*Error to the court of common pleas of Cuyahoga county. Reserved in the district court.</p> <p>The case is stated in the opinion of the court.</p>

<p>Writ of error to the common pleas of Harrison county.</p>

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

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

<p>Writ op Error to the court of common pleas of Hamilton county..</p> <p>The facts are stated in the opinion of the court.</p>

<p>Civil action. Reserved in the district court of Cuyahoga county on conclusions of fact found by that court on the pleadings, exhibits, and evidence.</p> <p>The original action was brought by the city of Cleveland against the State Bank of Ohio, Christopher P. Wolcott, as receiver of the Bank of Akron, John W. McMillen, the Cleveland, Zanesville and Cincinnati Railroad Company, and the Cleveland, Painesville and Ashtabula Railroad Company, to perpetually enjoin all of the defendants, except the latter company, from transferring, or in any way disposing of, certificates for two thousand shares, of fifty dollars each, of stock in the Cleveland, Painesville and Ashtabula Railroad Company, or any interest, or pretended interest, in the same; and from procuring or demanding a transfer of the stock, or any part of the same, on the books of the Cleveland, Painesville and Ashtabula Railroad Company, from commissioners acting for the city of Cleveland, to either of them, or to any one; and to enjoin the •Cleveland, Painesville and Ashtabula Railroad Company from transferring the stock upon its books to the State Bank of Ohio, the said Wolcott as such receiver, the said Cleveland, Zanesville and Cincinnati Railroad Company, the said McMillen, or to any one named or designated, directly or indirectly, by them, or either •of them; and to obtain an order of court, upon a final hearing in the premises, that the Cleveland, Zanesville and Cincinnati Railroad Company, the • said Wolcott as such receiver, the said Mc-Millen, and the State Bank of Ohio, surrender up said certificates <of stock to the plaintiff, orto said commissioners in trust for it, and for *such other and farther relief in the premises as justice and good conscience may require.</p> <p>On February 13, 1851, the general assembly of Ohio passed •“an act to authorize the city of Cleveland to subscribe to the capital stock of the Cleveland, Fainesville and Ashtabula Railroad •Company ” (49 Ohio L. 502), empowering Melancthon Barnett, Hiram Y. Wilson, Arthur Hughes, Charles Hickox, and Oliver H. Ferry, and their successors, as commissioners, to subscribe, under the provisions of said act, in the name of the city of Cleveland, for shares in the capital stock of said railroad company, not exceeding, in the whole, one hundred thousand dollars, and for the ■purpose of paying the installments thereon to issue bonds, scrip, or other contracts, in proper form, in the name of, and binding the city of Cleveland, bearing interest, payable annually.</p> <p>The first section of the act further provides that “the shares of «took so subsei'ibed, and the avails arising from the sales thereof, •shall be held for the purpose of paying the principal of such bonds, scrip, or other contracts, and shall be subject to no other liability of the city whatever, so long as such bonds, scrip, or other •contracts shall remain unpaid.”</p> <p>The third section provides : “ The commissioners, in person or by proxy, or a majority of them, are hereby authorized to attend all meetings of the stockholders of said railroad company, and vote on the shares which may at any time be held by said city, for the choice of directors of said company, and on all questions which may be submitted to the vote of such stockholders ; and they are also authorized to receive all dividends and profits which may accrue on the bonds, scrip, or other evidences of indebtedness, which may be issuedby them in payment of said shares; to apjily any surplus of such dividends and profits in liquidation of such indebtedness, or any part thereof; or to invest the same to be so applied whenever opportunity may present, or to them may seem expedient; to exchange shares or any part thereof for the evidences of such indebtedness ; to sell said shares or any part thereof, at such time or times as to them may seem expedient; and to do whatsoever else may be necessary to secure and advance the interests of the city in the premises; provided, however, that said ^commissioners shall not sell any of said shares at less than the par value thereof, unless they shall be expressly authorized to accept a less price, by the vote of not less than two-thirds of all the members of the city council, and after at least ten days previous notice having been given, in writing, to said city council, and also by publication in. said city, that such authority will be asked for by said commissioners at some particular meeting of said city council, to be named-in said notice.”</p> <p>The district court found the following facts :</p> <p>1. The following is a copy of the caption and subscription made-by said commissioners for the two thousand shares of stock in the Cleveland, Painesville and Ashtabula Bailroad Company, viz :</p> <p>“ ¥e, the subscribers, severally agree with the Cleveland, Painesville and Ashtabula Bailroad Company, to take the number of shares of the capital stock of said company set oj^posite our respective names, each share being fifty dollars, and to pay therefor in such installments as the directors of said company may, in conformity with the charter, require; not, however, faster than ten per cent, of the amount subscribed every successive sixty days during the first six months ensuing the date hereof, and ten per cent, each successive thirty days thereafter, until the whole is paid. But this subscription shall not be binding upon us, or either of us, unless within three months from the date hereof there shall be. subscribed iu addition to subscriptions heretofore made by responsible-subscribers, inclusive of what may be subscribed on behalf of the city of Cleveland, stock to the amount of two hundred thousand dollars.</p> <p>“Dated Cleveland, January 20, 1851.</p> <p> </p> <p>On the 23d June, 1851, said railroad company issued a certificate of stock pursuant to said subscription, of which the following is a. copy, with blank for transfers thereon, viz :</p> <p>«•“SHARES ?50 EACH. UNITED STATES OF AMERICA. CAPITAL $1,500,000. [->89'</p> <p>STATE OE OHIO.</p> <p>CLEVELAND AND ERIE RAILROAD.</p> <p>Number of Certificate, Number of Shares,</p> <p>23. 2,000.</p> <p>^ “This certifies that the city of Cleveland is proprietor of two-"thousand shares in the capital stock of the Cleveland, Painesvillo S and Ashtabula Railroad Company, incorporated by the legislature ¡| of Ohio, February 18,1848. Stock transferable on the books of ■§ the company upon the surrender of this certificate.</p> <p>| “ Oeeice oe the Company, 1</p> <p>3 Cleveland, June 23,1851. j</p> <p>“ Alered Kelley, President.</p> <p>“Peleg P. Saneord, Secretary.”</p> <p>(Indorsed.)</p> <p>“ For value received, hereby sell, transfer, and assign to</p> <p>, the shares of stock within mentioned, and authorize to make the necessary transfer on the books of the company.</p> <p>“Dated, , 18 .”</p> <p>The certificate was delivered to and held by said commissioners from the time it was issued till the 15th day of May, 1854, when it ' was surrendered and canceled as indicated by the words, “ Canceled May 15, ’54,” written across the face of said copy, at the request of said commissioners, by the secretary; and said ten certificates above mentioned, numbered 1406 to 1415 inclusive, were issued at the request of said commissioners and delivered to them. Said stock has always stood on the stock-books of the company to-the credit of the “ City of Clevelandand no transfers thereof have ever been made on the books of the company by the commissioners.</p> <p>2. The contract, copied below, was reduced to writing, and the-signatures and seals of the parties subscribed and annexed thereto, as indicated by said copy, on the 2d of May, 1854, but the delivery thereof, or its effect as a contract, was suspended until it should be reported to the board of directors *of the Cleveland, Zanesville and Cincinnati Railroad Company, and be ratified by said board:</p> <p>“ This memorandum of an agreement made this second day of May, a. d. 1854, by and between Melanethon Barnett, Hiram Y.. Willson, Arthur Hughes, Charles Hiekox, and Oliver H. Perry,, commissioners appointed by an act of the general assembly of the-State of Ohio, passed February 13,1851, entitled ‘an act to authorize the city of Cleveland to subscribe to the capital stock of the Cleveland, Painesville and Ashtabula Railroad Company,’ in their capacity as such commissioners of the first part, and the Cleveland, Zanesville and Cincinnati Railroad Company of the second part, witnesses:</p> <p>“ That the party of the first part hereby agrees to sell to the party of the second part, capital stock of the Cleveland, Painesville .and Ashtabula Railroad Company, fully paid up, and now held by the party of the first part, in their capacity aforesaid, to the amount of one hundred thousand dollars, and to transfer the same to the party of the second part, reserving in such transfer to the party of the first part, the right to receive for the use of the city of Cleveland all dividends that shall 'be declared on said stock by the said Cleveland, Painesville and Ashtabula Railroad Company, and all profits to which the holder of such stock shall be entitled between the date hereof and the 1st day of May, a. b. 1859, and the right to subscribe for all new stock, that the holder of such 'stock shall be entitled to subscribe for during the term aforesaid, and in like manner reserving the exclusive right to represent said stock and to vote thereon at all elections and other meetings of said Cleveland, Painesville and Ashtabula Railroad Company during the like period for the sum of one hundred and twenty-five thousand dollars.</p> <p>“ And the party of the second part hereby agrees to purchase the said stock of said party of the first part, upon the terms above stated, and to pay said party of the first part therefor, the said sum of one hundred and twenty-five thousand dollars in manner following—that is to say, by the issue and delivery, to the party of the first part, of two thousand and five hundred shares, of fifty dollars each, of the full paid capital stock of said Cleveland, Zanesville and Cincinnati Railroad Company, the party of the second part reserving to itself the right to receive for its own benefit all dividends that shall be declared on the last-named stock, by the said Cleveland, Zanesville and Cincinnati Railroad Company, and all profits to which the holder of the same shall be entitled between the date hereof and the first day of May, a. b. 1859, and the right to subscribe for all new stock that the holder of such stock shall be entitled to subscribe for during the term aforesaid, and in like manner reserving the exclusive right to represent said stock, ■and to vote thereon at all elections and other meetings of said Cleveland, Zanesville and Cincinnati Railroad Company, during the period last aforesaid; and said party of the second part further agrees that the stock so by it transferred to the said party of the first part shall be worth in the market on said first day of May, a. b. 1859, and for thirty days thereafter, the full sum of one hundred and twenty-five thousand dollars; and it hereby agrees, that it will make up to the said party of the first part, or their successors or ■assigns, on demand, the amount that the value of said stock, or any part thereof, shall at any time within thirty days after said first day of May, A. d. 1859, fall below par; and for the purpose of securing the fulfillment of the above stipulation, the said party of the second part hereby further agrees that it will, upon the delivery hereof, execute and deliver to said party of the first part its income bonds-to the amount of one hundred and fifty thousand dollars, which bonds by the terms thereof shall be convertible at the pleasure of the holder thereof, at any time after the first day of May, A. d. 1859, into the stock of said company, payable on the said first day of May, A. D. 1859, to bear interest at the rate of seven per cent, per annum after maturity, if not then discharged, and to be held by the said party of the first part as collateral security for the fulfillment by the said party of the second part of this agreement, which hond or bonds, or so much or many thereof as shall be necessary, the said' party of the first part and their assigns are hereby authorized, upon the failure of the party of the second part to fulfill this agreement, to sell in the stock market of the city of New York, for the purpose *of realizing from such sale the difference between the market value and the par value of said stock so delivered to-said party of the first part as above provided, twenty days notice of the time and place of such sale having first been given to the said party of the second part.</p> <p>“And the party of the second part further agrees that the northerly terminus of its said road shall be in the city of Cleveland aforesaid, but it reserves the right to continue its track from any point in that portion of said road which has now been constructed, to said city of Cleveland, or to use the track of any other railroad for the purpose of connecting its road with said city, and it moreover agrees-that all the regular trains shall run to and from said city.</p> <p>“ Witness the hands and seals of said commissioners, and the signature of the president and seal of said company.</p> <p>“M. Barnett, -[Seal’</p> <p>“H. Y. Willson, ‘Seal</p> <p>(seal.) “Arthur Hughes, "Seal"</p> <p>“ Charles Hickox, [Sear</p> <p>“ O. H. Perry, [Seal*</p> <p>“ Commissioners of the City of Cleveland.</p> <p>“ Simon Perkins,</p> <p> “Pres’t C, Z. and C. B. B. Co.” </p> <p>(Indorsed.)</p> <p>“ The C., Z. and C. B. B. Co.,</p> <p>AND</p> <p>“ The Commissioners of the city of Cleveland fob THE O., P. AND A. B. B. Co.</p> <p>“Agreement to sell stock.”</p> <p>3. This contract, as written out, signed, and sealed, as aforesaid,, was reported to said board of directors of the Cleveland, Zanesville- and Cincinnati Railroad Company on the 13th of May, 1854, and was on that day in due form ratified and approved by said board, as appears by the record of the action of said board, a copy of which is as follows:</p> <p>“Akron, May 13, 1854.</p> <p>“Board met. Present—Messrs. Perkins, McMillen, Henry, Miller, and Day. The minutes of the meetings of April 1st and April Í5th wore read and approved. The committe appointed at the last meeting ‘ to negotiate for the transfer of railroad stock held by the city of Cleveland,’ etc., reported that on the second instant they con-eluded an arrangement *with the commissioners appointed by an act of the general assembly of the State of Ohio, passed 13th February, 1851, entitled ‘an act to authorize the city of Cleveland to subscribe to the capital stock of the Cleveland, Painesville and Ashtabula Raildroad Company,’ for the transfer to this company of one hundred thousand dollars of the capital stock of the said Cleveland, Painesville and Ashtabula Railroad Company, held by such commissioners, on the terms set forth in the original agreement of that date, signed by the said commissioners of the one part, and the president of this company of the other part, and which .agreement was laid before the board. Whereupon, the report was accepted, and it was</p> <p>“ Resolved, That the said agreement be and the same is hereby ratified and approved.</p> <p>“ Resolved, That a certificate in the usual form, dated May 2, 1854, for twenty-five hundred shares, of fifty dollars each, of the capital stock of this company, transferable only after the 1st day of May, 1859, be issued and delivered to the said commissioners.</p> <p>“jResolved, That the president execute, seal with the common seal, and deliver to the said commissioners, to be held by them for the purpose ‘of security specified in said agreement, the income bond or income bonds of this company, dated 2d May, 1854, for one hundred and fifty thousand dollars, payable to them or bearer, on the 1st day of May, 1859, at its principal office, and if not then paid, with interest after that time at the rate of seven per cent, per annum qntil paid, and that said bond or bonds, or any part thereof, be made convertible into the stock of the company, at its par value, at any time after the maturity and before the payment thereof, when and in such amounts as the holders shall elect.</p> <p>“ Resolved, That the president be and is hereby authorized, to do any and all acts that are or may be necessary to fulfill and and carry into effect the aforesaid agreement.</p> <p>“ The certificate of qualification of John Cary, as director, was received and placed on file.</p> <p>“Adjourned.”</p> <p>“ September 22, 1854.</p> <p>“ Board met. Present—Messrs. Perkins, Henry, McMillen, and Miller.</p> <p>*« Mesolved, That Messrs. Perkins, McMillen, and Miller be a committee to arrange for the liabilities of the company, maturing or to mature in New York or elsewhere, with authority to sell or hypothecate any of the securities of the company, or to pledge the income of the road for that purpose.</p> <p>“ Minutes of the last meeting were read and approved.</p> <p>“Adjourned.”</p> <p>“ April 22, 1859.</p> <p>“ Directors met. Present—Messrs. Cummins, Perkins, Henry, Enos, Ellsworth, and Bliss.</p> <p>“ On motion, it was</p> <p>“ Mesolved, That whereas, by reason of unforeseen contingencies, it has hitherto 'been impossible to accomplish the objects of the contract between this company and the commissioners of the city of Cleveland, for subscription......That said certifi-</p> <p>cate for $125,000 of stock of said company, and said income bond for $150,000, were issued and placed in the hands of the committee of said board appointed to perfect said contract, together with a copy of the resolutions aforesaid of said board; and on the 15th day of May, 1854, said committee presented to said commissioners the said resolutions of said board, and the said stock certificate and income bond; and said certificaté and bond were, on that day, delivered to and received by said commissioners under said contract; and at the same time said commissioners delivered to said committee, who received the same under said contract, ten certificates of two hundred shares, each of fifty dollars per share, of stock in said Cleveland, Paincsville and Ashtabula Railroad Company, numbered 1406 to 1415, both inclusive, severally bearing date the said 15th day of May, 1854; of one of which certificates the following is a copy, and also a copy of all of the others except the numbers, with the indorsements thereon, viz:</p> <p>“SHARES $50 EACH. UNITED STATES OP AMERICA. CAPITAL $1,500,000.</p> <p>STATE OP OHIO.</p> <p>CLEVELAND & ERIE RAILROAD.</p> <p>Number of Certificate, Number of Shares.</p> <p>1450. 200.</p> <p>“ This certifies that M. Barnett, H. Y. Willson, A. Hughes, O. H. Perry, and C. Hickox, commissioners, are proprietors of *two hundred shares in the capital stock of the Cleveland, Painesville and Ashtabula Railroad Company, incorporated by the legislature of Ohio, February 18, 1848. Stock transferable on the books of the company upon the surrender of the certificate, after the 1st day of May, a. d. 1859. William Case, President.</p> <p>“Geo. B. Ely, Secretary.</p> <p>“ Oeeige op the Company, Cleveland, May 15,1854.”</p> <p>The indorsement upon said copy of certificate is as follows, viz :</p> <p>“OORT OR CERTIFICATE.</p> <p>“Eor value received, hereby sell, transfer, and assign to-</p> <p>the shares of stock within mentioned, and authorize to make the necessary transfer on the books of the company after the first day of May, 1859.</p> <p>“Dated, , 18 . “M. Barnett,</p> <p>“H. Y. Willson, f‘A. Hughes,</p> <p>“ O. H. Perry,</p> <p>“Charles Hickox,</p> <p>“Commissioners.”</p> <p>Such certificates and the indorsements thereon, except the words- “ after the first day of May, a. d. 1859,” in both the body of the certificates and the indorsements, are in the form used by said railroad company for transfers of its stock, being printed blanks furnished by said company.</p> <p>On the 15th of May, 1854, the following entry was made by said commissioners upon the record of their proceedings, viz:</p> <p>“ 15th May, 1854. At a meeting at which all the members were present, for the purpose of consummating the agreement made on. the 2d inst., all the terms in ratification of said agreement were complied with by the transfer and delivery to each other, by both parties, of such railroad stocks and income bond as specified in said agreement.”</p> <p>4. Before the agreement of May 2, 1854, was entered into, and pending negotiations respecting the same, the following *proposition was submitted in behalf of the Cleveland, Zanesville and Cincinnati Railroad Company to said commissioners:</p> <p> “To the Commissioners of the City Subscription to the Cleveland, Painesville and Ashtabula Railroad Company: </p> <p>“ Gents :—In order to extend the C., Z. & C. R. R. Co. from Millers-burg to Zanesville, the undersigned, in behalf of said company, ask aid from your city, and propose that it be given in the following manner, viz: That you sell and transfer to the C., Z. & C. R. R. Co. your subscription to the C., P. & A. R. R. Co. of $100,000, and receive therefor $100,000 stock in the C., Z. & C. R. R. Co., and to save you from any loss, the C., Z. & C. R. R. Co. will execute to you their bond, guaranteeing to pay you a rate of interest thereon per annum equal to the dividends declared and paid by said C., P. & A.. E. E. Co. upon said stock, and payable in the same manner; and. also binding said company to said commissioners, at or before the expiration of five years, to resell to them $100,000 of the stock of said C., P. & A. E. E. Co. at its par value, at their option. The com missioners shall have the proxy to vote upon the stock of the O., P. & A. E. E. Co. sold as aforesaid, in all elections of the said C., P. & A. E. E. Co., and the C., Z. & C. E. E. Co. shall have the proxy to vote upon the stock of C., Z. & C. E. E. Co. in all elections of the latter company. The stock of the C., Z. & C. E. E. Co. issued to said commissioners, is not to draw interest or dividends during the arrangement.</p> <p>“ Simon Perkins,</p> <p>“ J. W. McMillen.</p> <p>“Akron, March 18,1854.”</p> <p>The subject-matter of this proposition was communicated by the commissioners to the city council of the city of Cleveland, and their advice in reference thereto requested by the commissioners; and upon consideration thereof, the city council, on the 21st of March,. 1854, unanimously adopted and communicated to the commissioners a resolution in the words following:</p> <p>“Resolved, That this council recommend and advise the *commissioners of the city’s shares of the stock in the Cleveland, Painesville and Ashtabula Eailroad Company, to make any disposition of said stock to the Cleveland, Zanesville and Cincinnati Eailroad Company which they may deem advisable to make, provided it i» not disposed of below par, and that the securities taken in payment or exchange secure the value of the stock disposed of, beyond a. reasonable doubt.”</p> <p>The proposition of the railroad company was afterward rejected by the commissioners; but the company, on the 15th day of April, 1854, by resolution of its board of directors, appointed Messrs. Perkins, McMillen, and Miller, three of the members of the board (who had previously been the negotiators with the commissioners-on the part of the company), a committee “ to negotiate for a transfer of railroad stock held by the city of Cleveland, to aid said company in the construction of their road to Zanesville and the committee renewed negotiations in behalf of the company with the commissioners, for the two thousand shares of stock of the Cleveland, Painesville and Ashtabula Eailroad Company • which negotiations resulted in the contract of May 2, 1854, above mentioned,, with the parol qualification of the same hereinafter found.</p> <p>On the hearing before the court of the cause, as first herein above stated, the plaintiff offered to give evidence by the testimony of ■witnesses in parol, to the effect that, in the negotiations between the committee and the commissioners, the former represented that •the company was desirous to procure the two thousand shares of stock for the sole purpose of using the same in raising money to enable it to construct that portion of its road which lies between Millersburg, in the county of Holmes, and Zanesville, in the county •of Muskingum, in the State of Ohio ; that the road of the company from Hudson to Millersburg was then substantially built, and its cost already provided for; that the company had received reliable assurance that available subscriptions to the amount of $400,000 could be obtained on the line of its road from Millersburg to Zanesville, provided $100,000 could be obtained in Cleveland, making in the aggregate $500,000, *whichthey alleged would be suf- , ficient to grade and bridge that portion of the road; after which, they expressed the opinion that the money to complete the road ■could easily be raised by mortgage on the road itself; that, by the ■construction of said portion of the road (the company making Cleveland its northern terminus), a railroad connection between Cleveland, .Zanesville, and Cincinnati would be secured, which would be of .great value to the city of Cleveland; and that if the stock, or any interest in the same, should be transferred by the commissioners to .the company, the same should be used for no other purpose what•ever by the company, than for the construction of its road from Millersburg to Zanesville; and that the same should not be used at all, unless such promised subscriptions along the line of the road .should first be secured; and that it was in fact the agreement of •the parties, in addition to the terms set forth in the contract of May 2d, that the stock should not be used by the company for any •other purpose than in the construction of its road between Millersiburg and Zanesville; and that the same should not be used at all unless such subscriptions, so promised along the line of the road, ■to the amount of $400,000, should first be secured ; and that with•out such stipulation the commissioners would not have concluded .any contract with the company for the transfer of the two thousand shares of stock; that the verbal agreement of the parties in respect to the limited use of the stock to be made by the company, being ,as above proposed to be proved by the plaintiff, a written draft of 4he contract was procured to be prepared under the direction of the commission ers, including a clause stipulating for sucb limited use of the stock; but that when the draft of the contract was submitted to the committee, with a view to its being executed, the committee objected to said clause, urging as a reason against its being included, that it would embarrass them in disposing of the stock to raise money upon it, as it might impose upon persons purchasing or advancing money upon it, the duty to see to the application of the money; that, influenced by this objection so urged by the committee against including said clause in the written evidence of the agreement, and by the solemn promises then ^verbally made, and personal assurance given by the committee that no other use should be made of the stock, the agreement was redrafted in writing, in the form in which it was executed as aforesaid; and that it would not have been so executed but in faith that the verbal stipulation so excluded from the written evidence of the agreement, would be executed in good faith. To the introduction and admission of which parol evidence (to prove the alleged additional terms of the agreement so by the parties intentionally excluded from the written evidence of the contract as alleged), the defendant, the State Bank of Ohio, by its counsel objected; but the court, reserving to said defendant the benefit of the objection, allowed and admitted the testimony to be given, subject to be overruled or excluded, if upon full consideration it shall be found to be inadmissible in law, for the purpose of adding such additional terms of the contract to the written evidence thereof by parol as aforesaid, or,for any other competent purpose.</p> <p>Whereupon, the evidence being given, the court found, subject to the objection reserved as aforesaid, that in fact it was verbally agreed between the committee and the commissioners as above mentioned, that the stock should not be disposed of or used by the company for any other purpose than in the construction of that part of the line of its road between Millersburg and Zanesville, nor be used at all unless such promised subscriptions along the line cf the road to the amount of 1400,000, should be first secured by the company.</p> <p>And the court further found, subject to the like condition, from parol testimony in like manner offered by the plaintiff, objected to by the defendant, and admitted under the like reservation by the court, that the commissioners, on the 15th of May, 1854, delivered the certificates to the committee so appointed by the company as above found, to negotiate for the same, to wit, to Simon Perkins,. John W. McMillen, and Horace A. Miller, such delivery being-made by the commissioners and received by Perkins, McMillen, and Miller, upon the express understanding that the certificates-should be used by the company for no other purpose than to raise the means of constructing that portion of the company’s road which 250] *lies between Millersburg and Zanesville, and that they should not be used at all unless the subcriptions so promised along the line of the road to the amount of $400,000 should first have been secured; and that for the fulfillment of which condition Perkins and McMillen gave to the commissioners their solemn personal assurance.</p> <p>6. The court did not find, as alleged and claimed in pleading on the part of the plaintiff, that the commissioners were induced to-execute the contract by reason of any fraudulent representations-made by McMillen, or any or all of the committee, for the fraudulent purpose of procuring the delivery, by the commissioners to the-company, of the stock under a contract so expressed in writing as to enable the company to divert the stock from the purpose for which alone the commissioners agreed to deliver the certificates to-the company.</p> <p>7. The court found that McMillen, at the time the certificates for the two thousand shares of stock in the Cleveland, Painesville and Ashtabula Railroad Company were delivered by the commissioners under the contract as aforesaid, was, .and from thence to the month of January, 1855, continued to be the treasurer and financial agent of the Cleveland, Zanesville and Cincinnati Railroad Company, and that the ten certificates for the two thousand shares of stock, im mediately upon the delivery thereof as aforesaid, passed into the hands of McMillen as the proper custodian thereof on behalf of the company, and were kept by him in the safe and vault of the Bank of Akron, at the time a portion of the advances of the money of the-bank by McMillen were being made as hereinafter stated; and that,, as financial agent of the railroad company, McMillen was authorized to negotiate the ordinary securities belonging to the company, and otherwise, by the use of the credit of the company, to raise funds for its use, and was in the habit of so doing, but had no* authority from the board of directors to dispose of the two thousand shares of stock for any purpose whatever. And the court further found that the board of directors of the railroad company, as such,. Rad not, nor had any of the members of said board other than McMillen, any knowledge prior to the 16th of October, 1854, that McMillen was advancing the money of the Bank of Akron to the use of *'the railroad company, or that McMillen was making or procuring advances of money in any way to the uses of the railroad company upon the faith o'f the stocks as a security for the repayment thereof, or as an indemnity against loss thereby; and "that none of said advances were made or procured to be made by McMillen in faith of the stocks, or on the strength or credit of the -same, at the time the advances were made or procured to be made, as a security for the repayment thereof, or as an indemnity against .loss thereby, as claimed in pleading on behalf of the defendants.</p> <p>8. The court found that whatever indebtedness existed at the dime of the hearing, on the part of the Cleveland, Zanesville and 'Cincinnati Railroad Company, to McMillen, as alleged and claimed ■by the defendants in pleading, if anything, was for advances by McMillen to the uses of the company, which were made by MeMillen, he being president of the Bank of Akron, unlawfully, and without authority of the bank, from the money and effects of the ■bank, and that McMillen first made known to the board of directors ■of the railroad company the fact of having so misapplied the funds -of the bank, on said 16th of October, 1854, on which day he communicated to the board that such was the fact, at the same time presenting to the board a memorandum, on a slip of paper, of the amount in gross, without any details of items or dates, and alleged ■that he had so made the advances for the use of the company, in faith of said stocks as security and indemnity therefor; and that, having thus exposed himself to-the danger of criminal prosecution for such misapplication of the funds of the bank, he solicited said board to make a formal pledge of the stock to him, as security for the indebtedness so incurred by the railroad company to him for ■said advances, and as an indemnity in that behalf against loss; that thereupon said board, on the day and year last above named, by a lawful quorum and majority for that purpose, passed the following resolutions:</p> <p>“Akron, October 16, 1854.</p> <p>“ Whereas, J. W. McMillen hath, on his sole responsibility, made, or procured to be made, advances of money to and for this company, at its request, to the amount of about one hundred ^and five thousand dollars, upon the strength and credit of the stock hereafter mentioned, in his hands as financial agent,, which advances are dne and unpaid;</p> <p>“ Resolved, That the said stock, being the stock of the Cleveland, Painosville and Ashtabula Railroad Company, and the certificates thereof, to wit, two thousand shares, of fifty dollars each, held by this company, be, and the same are hereby, sold, assigned, transferred, set over, and pledged to said McMillen and his assigns, to. secure, indemnify, and protect him for all advances so made, or procured to be made by him, or which may hereafter be made by him, but not exceeding in all the sum of one hundred and five thousand dollars; and the said J. W. McMillen and his assigns is and are hereby authorized and empowered to assign, transfer, sell, pledge,, hypothecate, or otherwise dispose of the said stock or certificates, or any part thereof, in such manner, on such terms and rates, and at such times, either for the purpose of repaying or of raising money ta repay the sum or sums so advanced, or procured to be advanced, or which may hereafter be advanced, by him, with interest, or for the purpose of paying or securing therewith any indebtedness or other liability, of whatever kind or nature, incurred by or resting on him, in making or procuring such advances, as he shall deem may be most effectual for his own security, indemnity, and protection.</p> <p>“ Resolved, That Milton W. Henry be authorized and required, in the name and on behalf of the company, to make, under the-corporate seal, or otherwise, all such assignments, transfers, powers, and deliveries as are or may be necessary to carry the first of the foregoing resolutions into full effect, and to vest in the said McMillen the full title and absolute control of the stock mentioned' therein, for the objects and purposes declared in the said resolution.”</p> <p>On the same day, the said Milton W. Henry, by authority of the resolutions, so far as they are competent to confer the same, in the name of the Cleveland, Zanesville and Cincinnati Railroad Company, and under the corporate seal, executed and delivered toMcMillen an assignment, pledge, or hypothecation of the two-thousand shares of stock in question in this case, of which the-following is a copy:</p> <p>*“ Whereas, The Cleveland, Zanesville and Cincinnati Railroad Company is indebted to John W. McMillen in about the-sum of one hundred and five thousand dollars, for advances made or procured to be made by him at its request: Now, therefore, in consideration thereof, and of the sum of one dollar to it in hand paid, the said, the Cleveland, Zanesville and Cincinnati Railroad. Company, hath sold, assigned, transferred, and set over, and doth, hei’eby sell, assign, transfer, and set over to the said John W. McMillen and his assigns, two thousand shares, of fifty dollars each, of the capital stock of the Cleveland, Painesville and Ashtabula Eailroad Company, and the certificates thereof, held and owned by this company, to secure, indemnify, and protect him for the advances so made or procured to be made by him, or which may hereafter be made by him, but not to exceed in all the said sum of one hundred and five thousand dollars ; and the said John "W. McMillen, and his assigns, is and are hereby authorized and empowered to sell, assign, transfer, ple'lge, hypothecate, or otherwise dispose of the said stock or certificates, or of any part thereof, in such manner, at such times, and on such terms and rates, either for the purpose of repaying or of raising money to repay the sum or sums of money so advanced as aforesaid or procured to be advanced, or which may hereafter be advanced by him, with interest, or for the purpose of paying of securing therewith, any indebtedness or other liability, of whatever kind or nature, incurred or to be incurred by, or resting on him, in making or procuring such advances, as he shall deem may be most effectual for his own security, indemnity, and protection.</p> <p>“ In testimony whereof, the said Cleveland, Zanesville and CinfcoKPOEATE) cinnati Eailroad Company hath caused its name and t seaii. \ eorporate seal to be hereto affixed, by Milton W. Henry, its special agent properly authorized for that pui’pose, this 16 thday of October, a. d. 1854.</p> <p>“ The Cleveland, Zanesville and Cincinnati Eailroad Company,</p> <p>“ By Milton W. Henry, Special Agent.”</p> <p>The court say that by this finding it is not intended to *con-elude the parties upon the question whether the charges made by McMillen to the railroad company, whether allowed to him by the company or not, were or were not proper charges against the company, and did or did not constitute, so far as the rights of the plaintiff herein are concerned, an indebtedness from the company to McMillen, it being the intention of the court to leave that question open for future determination.</p> <p>9. Afterward, to wit, on the 17th of October, 1854, John W. McMillen executed and delivered to the Bank of Akron an assignment in writing, of which the following is a copy:</p> <p>“For value received of the Bank of Akron, I do hereby sell, assign, transfer, and set over to the said, the Bank of Akron, all claims, debts, and demands due to me from the Cleveland, Zanesville and Cincinnati Eailroad Company, however originating, and all securities now held or which may hereafter be obtained by me for the same, and especially two thousand shares of the stock of the Cleveland, Painesville and Ashtabula Railroad Company, assigned and transferred to me, to be held by the said Bank of Akron as collateral security for all claims and indebtedness which it may have against me, with power to sell, pledge, or otherwise dispose of the same as it may think best, to pay such claims and indebtedness.</p> <p>“ Akron, October 17, 1854. . J. W. McMillen.”</p> <p>"With said instrument of assignment, McMillen delivered the ten stock certificates for two hundred shares each, herein above referred to.</p> <p>10. Afterward, to wit, on the 28th of October, 1854, the Cleveland, Zanesville and Cincinnati Railroad Company passed and entered upon the records of the board of directors of said company the following resolution :</p> <p>“ Akron, October 28, 1854.</p> <p>“ Resolved, That each and all of the resolutions adopted at the meeting of the board held on the 16th day of this month be, and the same are hereby rescinded.”</p> <p>11. The supplemental petition of the plaintiff, including the exhibits therewith filed, not being controverted, the ^ourt found the facts stated in said petition to be true. The supplemental petition states that, after the filing of the original ^petition, to wit, ■on May 2, 1859, the stock of the Cleveland, Zanesville and Cincinnati Railroad Company, amounting, at the par value thereof, to the sum of one hundred and .twenty-five thousand dollars, a ■certificate for which was received by said commissioners from said railroad company, as in the original petition stated, was not worth, in the market, said sum of one hundred and twenty-five thousand ■dollars; but, on the contrary, was then and there, in fact, of no value; and that, therefore, the commissioners caused a demand to be made on that day upon said railroad company, for the payment to said commissioners, for the use of the plaintiff, of the difference between the real value in the market of said last-named stock and the sum of one hundred and twenty-five thousand dollars, to wit, the sum of one hundred and twenty-five thousand dollars, which sum the said company then and there wholly failed to pay; and that, therefore, in consideration of the surrender to said railroad company, by said commissioners, of said certificate for stock in said company, and of the income bond of. said company, so received from it as collateral security by the commissioners, as in the orig■inal petition stated, the board of directors of said company passed the resolution of which the following is a copy:</p> <p>“ Office Cleveland, Zanesville and h</p> <p>“ Cincinnati Railroad Company, v</p> <p>“ Akron, May 2, 1859. )</p> <p>“ At a meeting of the board of directors of this company, hold this day, the following preamble and resolution were passed, viz:</p> <p>“ Whereas, by reason of unforeseen contingencies, it has hitherto been impossible to accomplish the object of the contract between this company and the commissioners of the city of Cleveland, for .subscription to the capital stock of the Cleveland, Painesville and Ashtabula Railroad Company, bearing date May 2, 1854, by the •construction of this company’s road from Millersburg to Zanesville, ..and there is no immediate prospect of securing the construction of the same; and whereas, the said contract was predicated upon the mutual understanding between the parties thereto that the stock *of the said Cleveland, Painesville and Ashtabula Railroad •Company, obtained thereby, should be appropriated exclusively to the construction of that portion of our road; and whereas, the stock by this company issued to said commissioners, under said contract, is greatly depreciated in value, and this company is utterly unable to fulfill its part of said contract by making up to said commissioners the difference between its actual value and the par value thereof, as required by said contract, as has been this day demanded of this ■company by said commissioners; and whereas, the income bond of this company, held by said commissioners, constitutes no adequate security to them for the deficiency in the value of said stock; therefore,</p> <p>“ Resolved, That Messrs. R. K. Enos and J. D. Cummins be a committee to negotiate with said commissioners, with full power to act for and on behalf of this company in the premises; and that said committee be and they are hereby authorized to retransfer said stock of the Cleveland, Painesville and Ashtabula Railroad Company, and to release all the right, title, and interest of this company therein to the said commissioners, for the benefit of the city ■of Cleveland, in such manner and on such terms and conditions as they shall deem advisable; and also to grant to said commissioners .and to said city full power and authority to assert any and all rights to said last-named stock, and the certificates therefor, which this ■company could itself assert against whomsoever may claim said stock, or the certificates for the same, or any interest therein.”</p> <p>The supplemental petition further states, that the Cleveland, .Zanesville and Cincinnati Railroad Company caused to be made to ■said commissioners the retransfer, for the benefit of the plaintiff, ■of the certificate of stock of the Cleveland, Painesville and Ashtabula Railroad Company, so delivered to the Cleveland, Zanesville and Cincinnati Railroad Company, and the return to the commissioners for the benefit of the plaintiff, of all the right, title, and interest of said Cleveland, Zanesville and Cincinnati Railroad Company in and to said stock, and the said certificates for the same; and authorized the plaintiff to assert any and all rights to the stock so retransferred,.</p> <p>and *the- certificates for the same, which the said Cleveland, Zanesville and Cincinnati Railroad Company could, but for such transfer and release, itself assert against whomsoever might claim the same or any interest therein. A copy of which transfer and release is as follows:</p> <p>“ By virtue of the authority conferred upon us by the foregoing resolution of the board of directors of the Cleveland, Zanesville and Cincinnati Railroad Company, passed this 2d day of May, 1859, and for a valuable consideration received by said company, to its full satisfaction, from the city of Cleveland, we the undersigned, in the name and on behalf of the said company, do hereby retransfer and assign to Melancthon Barnett, Hiram Y. "Willson, Arthur Hughes, Charles Hickox, and Oliver H. Perry, commissioners appointed by an act of the general asesmbly of the State of Ohio, passed February 13, 1851, entitled ‘ an act to authorize the city of Cleveland to subscribe to the capital stock of the Cleveland, Painesville and Ashtabula Railroad Company,’ for the benefit of said city, the certificates of the stock of said last-named company, heretofore delivered by said commissioners to said Cleveland, Zanesville and Cincinnati Railroad Company, and amounting to the sum of one hundred thousand dollars, and hereby release to said commissioners, for the benefit of said city, all the right, title, and interest of said Cleveland, Zanesville and Cincinnati Railroad Company in and to-said stock, and the said certificates for the same, and hereby authorize the said commissioners and said city, for whose benefit this-transfer is made, to assert any and all rights to said stock and the certificates for the same, which the said Cleveland, Zanesville and Cincinnati Railroad Company could, but for this transfer, itself assert against whomsover may claim said stock or the certificates for the same, or any interest therein, in conformity to the terms of said resolution of the Cleveland, Zanesville and Cincinnati Railroad Company, hereto annexed.</p> <p>“Akron, May 2, 1859.</p> <p>“ The Cleveland, Zanesville and Cincinnati Railroad Com-</p> <p>“By R. K. Enos, J. D. Cummins.”</p> <p>*12. On November 23, 1854, the Bank of Akron, being at the time the holder of the certificates for two thousand shares of' stock in manner aforesaid,' committed an act of insolvency by failing to redeem its circulating notes in the manner prescribed by its-charter, and thereupon, the bank being a branch of the State Bank of Ohio, by force of the statute in such case made and provided, all of the property, securities, claims, and effects of every description, including the claim against McMillen, with the stock as a security for the payment thereof, so far as the same legally passed to and-vested in the Bank of Akron by virtue of said assignments, passed, to and become vested in the defendant, the State Bank of Ohio,, and yet remain vested in it, including the dividends and profits accrued on said stock since May 1, 1859.</p> <p>13. As alleged in the answer of the State Bank of Ohio, a settlement and adjustment of the amount due to McMillen from the-Cleveland, Zanesville and Cincinnati Bailroad Company has been made since October 16, 1854, whereby it was ascertained that the-amount due from the company to McMillen, as of November 23,. 1854, is the sum of ninety-seven thousand five hundred and seventy-three dollars and eighty-eight cents, subject to be increased by-interest from the last-named date; which settlement the court do find is obligatory upon the parties thereto, but is not conclusive-as against the plaintiff, and is subject in behalf of the plaintiff to be corrected as may be lawful under the issue arising upon the amendment made to the reply of the plaintiff, and reserved for further consideration by the 'court, as above stated.</p> <p>14. That said Cleveland, Zanesville and Cincinnati Bailroad Company was incorporated and organized by the name of the “ Akron Branch of the Cleveland and Pittsburg Bailroad Company,” by a special act of the general assembly, entitled “ an act to amend an act entitled 1 an act to incorporate the Cleveland and Pittsburg Bailroad Company,’ passed February 19, 1851,” and afterward it® name was changed by a judicial proceeding, had in the court of common pleas of Summit county, pursuant to the statute in such cases made and*provided, to that of the “ Cleveland, Zanesville and Cincinnati Bailroad Company.”</p> <p>15. Said commissioners, in entering into the contract of May 2, 1854, acted with a view to what they were induced by the representations so made by said committee, in connection with their own views in the premises, to believe to be for the general benefit of the city of Cleveland, and not with a view to any benefit which •they supposed would be derived thereby to the fund which, by the terms of the act in question, has been committed to their manage■ment.</p> <p>16. The Cleveland, Zanesville and Cincinnati Railroad Company has never yet secured the said subscriptions so alleged to have been promised along the line of the contemplated extension of its road, .amounting to the sum of $400,000, or any portion of the same; but, •on the contrary, the company having already become insolvent, had, prior to said 16th of October, 1854, abandoned the purpose, at least for the time being, of so extending its road from Millersburg to Zanesville, and had declined to receive said subscriptions.</p> <p>17. The transfer of said certificates, as provided for in the resolutions of October 16,1854, was not designed by the parties thereto •to raise money for the purpose of constructing, nor to pay or secure the payment of liabilities incurred in the construction of that portion of said railroad company’s road which lies between Millers-burg and Zanesville, and was a direct violation of the terms and •conditions of the parol stipulations so entering into and forming a part of the contract of May 2, 1854, as above found.</p> <p>Upon the facts found in the district court, the case was reserved to this court for decision.</p>

Appeal. Eeserved in the district court of Hamilton county. Eobert C. Turpin died in December, 1847, intestate, leaving said Taylor S. Turpin, an infant, his only child and heir at law. The personal assets were insufficient to pay the debts of the estate, and the real estate consisted of an undivided interest in valuable lands situate near the city of Cincinnati, which were productive and rapidly rising in value.

*Error to the court of common pleas of Franklin county. Eeserved in the district court. John Eaab, administrator of the estate of Sebastian^ Eaab, deceased, was cited, by the widow and heirs of the decedent, to a settlement .of his account as such administrator; and, on the 28th day of January, 1862, he filed his final account in the probate court. To this account of the administrator, the widow and heirs filed exceptions, as follows: 1.

<p>1. A proceeding in error is not to b'e deemed commenced, within the meaning of section 523 of the code, upon the mere filing of a petition in error in the proper court.</p> <p>2. The 20th section of the code, which prescribes when an action shall be deemed commenced, furnishes the rule, which, by analogy at least, determines when proceedings in error are to be deemed commenced.</p>

<p>Error to the Superior Court of Cincinnati. •</p> <p>The case is stated in the opinion of the court.</p>

<p>Where a party depositing money in one bank to the credit of another bank, but without the knowledge of the latter, took a letter from the former baúl!; addressed to the latter, advising it of the deposit, and afterward delivered the letter to a third person, with his own name indorsed in blank thereon, for presentation to the bank to whose credit the deposit was made: Held—</p> <p>1. That, as between the depositor and the latter bank, in the absence of notice to the contrary, the bearer of the letter had authority to control the fund, and, for that purpose, to write a check or order over the blank signature.</p> <p>2. The fact that the bank held the note of the party making the deposit, then overdue, did not constitute a notice that the fund was to be applied on such note.</p>

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

<p>When one of the parties to a contract claims its rescission, on account of a default in the performance of its stipulations by the other, good faith requires that he should give notice of his claim or purpose to rescind, whenever his failure to do so would reasonably lead the defaulting party to incur trouble or expense in farther performance of the contract. If he willfully induce such further performance by his silence, when he ought to speak, or otherwise, he will be regarded as waiving such default, or as electing not to rescind for that cause; and will-not afterward be permitted, on account of a default thus waived, to exercise the rights incident to a rescission.</p>

<p>1. Where it appears that a juror, under examination in a criminal case touching his competency, has formed and expressed an opinion as to the guilt or innocence of the accused, founded on newspaper statements or reports, or rumors, or hearsay, and not upon conversation with witnesses of the transaction, or hearing them testify, the court, if satisfied from all the evidence disclosed on such examination that the juror will render an impartial verdict, is authorized to accept the juror. The act supplementary to an act directing the mode of trial in criminal' cases, passed March 3, 1860 (S. & C. Stat. 1197), is not repugnant to that-part of section 10, article 1 of the constitution of the state, which guarantees to the party accused an impartial jury.</p> <p>2. When a juror is challenged on the ground of his incompetency, or a motion, for a new trial is made on like ground, the opinion of the court overruling the challenge or the motion can not he reviewed by this court, unless the record shows, affirmatively, that it contains all the evidence submitted to' the court below on the question.</p>

<p>Where, upon the lands of B., there is a marshy basin, from which, in times of' high water, a portion of the water contained in the basin overflows its rim and naturally finds its way through a swale to and upon the lands of P., while the remaining portion of the water of the basin has no outlet, and is dissipated by evaporation, B. can not rightfully, by an artificial drain, conduct the water that has no natural outlet from the basin and along said swale, so as to cause them to flow upon the lands of P., to his damage.</p>

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

<p>Error, to the court of common pleas of Harrison county. Reserved in the district court.</p> <p>Suit was brought in the court below, by the defendant in error, as executor of Eliza H. Hatcher, deceased, against the plaintiff in error, as one of the makers of a promissory note, a copy of which, attached to the petition, reads as follows :</p> <p>*“ $500.00. Cadiz, Ohio, October 7, 1856.</p> <p>“ One year after date we, or either of us, promise to pay Eliza H.' Hatcher, or bearer, the sum of five hundred dollars, for value received. The above to be at ten per cent, interest paid, annually - Our hands and seals.</p> <p>(Signed,) .</p> <p>“Harvey Bradshaw,</p> <p>“Benjamin Uhrick,</p> <p>“William Patterson,</p> <p>seal.</p> <p>"seal."</p> <p>seal.T</p> <p>The suit was against Patterson alone, who answered, alleging that he signed the note as a surety only, at the instance of Bradshaw, the' principal; that this fact was well known to the payee; and that when said note was so signed by him, it purported to bear simple interest at the rate of ten per cent, per annum; that when'it was subsequently presented to the payee, by Bradshaw, who desired to borrow money thereon, she objected to receiving it in that form, and that it was, thereupon, in her presence and with her full knowledge and consent, but in the absence and without the knowledge or consent of the defendant, materially and fraudulently altered byinterlining the word “paid" between the words “interest” and “ annually,” so as to make the interest accruing thereon payable annually.</p> <p>The facts thus set up as a bar to the action were traversed by a reply, and the issue was tried by a jury, who returned a special verdict, as follows:</p> <p>“Yerdict for William Patterson. Hatcher, etc., v. Patterson. We, the jury in this case, being directed by the court to find a special' verdict upon the facts submitted to us, do find as follows: 1. That William Patterson, the defendant, was surety upon the note on which suit is brought. 2. That the word “paid” interlined in the note, was written after Patterson signed the same, and when Mrs. Hatcher received it. 3.- That Mrs. Hatcher knew, at the time of said interlineation, that it had been interlined after Patterson signed it, and that the same was made without his knowledge or consent. 4. That the jury are not informed, from the proof, who made the interlineation, but that it was made with her knowledge, .and without the consent of Patterson.”</p> <p>*Upon this special verdict the court held that the plaintiff below was entitled to judgment, and accordingly entered judgment .against the plaintiff in error for the amount appearing due on the note, with interest, and for costs of suit. To all which he excepted; and thereupon filed his petition in error in the district court, asking a reversal of the judgment on the ground, among others, that the •court of common pleas “ erred in rendering judgment on said verdict in favor of said executor, when said judgment ought to have been for said Patterson.” The case was reserved in the district •court for the decision of this court.</p>

<p>Error to the court of common picas of Fayette county. Reserved in the district court.</p> <p>These cases were originally united in the court of common pleas, but were subsequently divided and separately docketed by order of the court. The facts sot forth and relied upon in each are the same, and the cases only differ in their prayers for relief. The facts are as follows:</p> <p>Peter Carder, the late husband of the plaintiff, died testate, May '18, 1863. His last will contains the following devise:</p> <p>“ I give and bequeath to the county of Fayette, State of Ohio, the farm known as the Shira farm, and so much of the Haymaker farm as lays on the east side of the Dcvalon road, the center of the road to be the line; provided the county pays to my beloved wife, Catharine Carder, the sum of seven hundred dollars, yearly, so long ■as she shall live, and pay all expenses incurred in securing their right and title to the same: if the county fail to comply to the above conditions, I give and bequeath the same to my beloved wife, Catharine Carder, to have and to hold the same, to her and her executors, administrators, and assigns, forever.”</p> <p>The plaintiff was by the will appointed executrix, and she made probate of the will, and qualified as such executrix, on the 5th of Juno, 1863.</p> <p>The deceased left no children, and the plaintiff, in case of intestacy, would have been sole heir to the real estate devised.</p> <p>At the time of making probate, she was advised by the probate judge with respect to her rights as widow, and duly elected to take under the will. The judge advised her, that if she refused to take the provision made for her in the will, she would be entitled to her dower estate in all the real estate of which her husband died seized, and to one-half of the first *four hundred dollars of his personal estate, and one-third of the residue; but if she elected to take under the will, she would be entitled to the provision made for her therein, and would be deprived of her dower in the real estate, and of her said distributive share of the personal estate. But the judge did not inform her of her rights as heir, and she made her election in ignorance of the fact that she was such heir, and in the belief that, in case of intestacy, she would only be entitled to dower in the premises. The judge gave no advice, and she asked none, as to the validity of the will, or as to the validity or effect of the devise to the county.</p> <p>The plaintiff, upon being subsequentlyadvised-of her legal rights as heir at law, resigned her office of executrix, and, on the 6th of February, 1864, filed her original petition, setting forth the facts aforesaid, and alleging the incapacity of her said husband to make a will; that the said county of Fayette had accepted and claimed the land so devised, but failed to pay the expenses of the probate of the will, and that she had paid them out of the assets of the estate. But the petition does not allege that any request had been made by her upon the defendant to refund the money, or that the defendant knew of the existence of the will at the time of its probate.</p> <p>In case No. 148 the prayer of the petitioner is, that the probate and record of the will may be set aside, and her election to take under it canceled; that an inquiry may be had as to her husband’s capacity to make a will, and that said supposed will may be set aside and held for naught.</p> <p>In case No. 149 the prayer is, that her election may be set aside; that the said devise to the county of Fayette may be held and- declared void; and that if the devise shall be held valid, the land may be declared forfeited by failure of the county to pay said expenses of probate.</p> <p>After the separation of thb cases, the defendant interposed a general demurrer in each.</p> <p>On final hearing the common pleas sustained both demurrers, and dismissed the petitions with costs.</p> <p>The plaintiff filed a petition in error in each case in the district court, and both were reserved for decision here.</p> <p>After the filing of the original petitions, and before the hearing *in the common pleas, the legislature passed the act of March 31, 1864 (61 Ohio L. 165), entitled “an act to authorize the board of commissioners of Fayette county .to levy a special tax.” The first section of this act provides-that “the said acceptance of said devise (by the commissioners of the county) is hereby ratified and confirmed; but this section shall not be held or construed to effect (affect) the validity of said will or devise.” The remaining sections of the act provide for and authorize the transfer of county funds, and the levying of county taxes in Fayette county, to enable the commissioners to pay the yearly installments to the plaintiff, as required in the will.</p>

<p>■Where a corporation, without other authority than that granted by “ an act in relation to incorporated religious societies,” passed March 5,1836, engages in the business of banking, for the purpose of receiving on deposit, keeping, and circulating the money of others, such business comes within the prohibition of the first section of “ an act to prohibit unauthorized banking,” etc., passed March 12,1845; and a note discounted in the transaction of such business is illegal and void.</p>

<p>Error to the district court of Shelby county.</p> <p>The original action was instituted by the plaintiffs in error, in the court of common pleas, against Skillen and the other defendants as his sureties, on his official bond as sheriff of Shelby county, to recover for money and securities which he had received as sheriff, to which the plaintiffs were entitled, and for which he refused to account.</p> <p>The case was submitted to the court on the petition and an agreed statement, and, so far as material to the qu'stions raised in this court, the facts are substantially as follows :</p> <p>On the 10th of November, 1857, Skillen, having given bond in due form of law with his co-defendants as his sureties, and being in other respects qualified, entered upon his duties as sheriff, and continued in office until November 4, 1859, when he was succeeded by his duly qualified successor.</p> <p>On the 12th of October, 1857, John Saddler and wife, in right of the latter, commenced a suit in partition, in the court of common pleas of Shelby county, against the present plaintiffs as tenants in common, for the partition of certain lands situate in said county, and such proceedings were i*egularly had in the partition suit, that the court, on the 3d of December, 1857, ordered a sale of the premises of which partition was sought.</p> <p>The defendants in the suit in partition, during its pendency were, and at the time of the commencement of the present suit continued to be, non-residents of the county.</p> <p>*On the 18th of February, 1859, the sheriff, in pursuance of an order of sale to him directed, and having given due notice of the time and place of sale, sold the premises to one George Lead-man for seven hundred and one dollars, upon the following terms: one-third cash, one-third in one, and the residue in two years from the day of sale; the deferred payments to bear interest, and to be secured by mortgage on the premises.</p> <p>The sheriff’s report on the order of sale, bearing date of the day of sale, states that he had received four hundred and one dollars of the purchase money, being considerably over one-half of the price at which the land sold.</p> <p>On the 15th of March, 1859, the court having examined and approved the proceedings, confirmed the sale, ordered the sheriff to make to the purchaser a deed in fee simple for the premises, and, after paying the costs, to distribute the proceeds of sale to the several parties, according to their respective interests as defined by the order.</p> <p>On the 30th of April following, the sheriff executed and delivered to the purchaser a deed pf conveyance for the premises, and took from him notes payable to the parties, severally, for their respective shares of the three hundred dollars, the remainder of the purchase ■money not paid on the day of sale; also, a mortgage executed by the purchaser to the parties, on the premises, to secure the payment of the notes.</p> <p>Prior to the giving of the notes, viz., on the 15th of March, 1859, the purchaser had paid the sheriff, of the purchase money, one hundred and forty-one dollars, besides the four hundred and one dollars acknowedged in his report of the sale, of which no account was made in giving the notes.'</p> <p>After the sheriff’s term of office had expired, the plaintiffs demanded of him their notes, and their respective shares of the money. With this demand he neglected and refused to comply; the fact being that he had received, including the one hundred and forty-one dollars, full payment of the notes, and had surrendered them to the purchaser as satisfied. The receipt of the balance of the money and the surrender of the notes were after the official term of the sheriff had ceased.</p> <p>The defendants waived all objections to the plaintiffs uniting *in the suit, and it was admitted the defendant Skillen was insolvent.</p> <p>Upon this state of fact the plaintiffs claimed to recover their • share of the full amount of the purchase money.</p> <p>The defendants claimed to be liable only for the plaintiffs’ share of the one-third, required, by the terms of the sale, to be paid in cash at the time of sale.</p> <p>The court of common pleas being of opinion that .the plaintiffs were entitled to recover their proportion of the four hundred and one dollars, acknowledged by the sheriff to have been received, in his report on which the sale was confirmed, gave them judgment therefor.</p> <p>To reverse this judgment the plaintiffs filed a petition in error in the district court. The court affirmed the judgment, and they now seek, in this court, to have these judgments reversed.</p>

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

The Toledo and Wabash Railway Company is a corporation organized under the act to provide for the creation and regulation of incorporated companies in the State of Ohio, passed May 1,1852, and the acts amendatory thereof.

<p>Error to the Superior Court of Montgomery county.</p> <p>The case is stated in the opinion of the court.</p>

Reserved in the district court. The case below was a petition for partition. Wacbman, the demandant, claimed to be seized of a moiety of the premises in controversy, as tenant in common with Mrs. Byers, who owned the other moiety.

February 4, 1834, Virginia military entry No. 13,5,06, for 500 acres, was made in the names of the representatives of David Williams, on warrant 860, in Union county. January 11, 1847, this land was sold to John Cassil, by the treasurer of Union county, for the taxes of 1841 to 1846, both inclusive. February 27,1849, Cassil received from the auditor a taxed deed for the land. March, 1849, Cassil, by deed, conveyed the part of the land in-controversy to one Raymond.

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

<p>From Ashtabula county. Motion for leave to file petition in error.</p>

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

<p>1. The limitation of the liability of water-crafts to those “ of twenty tons burden and upward,” as provided in the first section of the “ act to provide for-the collection of claims against steamboats and other water-crafts,” does-not apply to steamboats, but to other water-crafts only.</p> <p>2. In an action against a steamboat by name, it is not necessary to allege in the-proceedings or petition that such steamboat is “of twenty tons burden and upward,” and it is error to arrest judgment upon a verdict against such, boat, because the petition contains no such averment.</p>

<p>1. A general assignment for the equal benefit of all the creditors, which is in due course of administration in the probate court, can not be invalidated in an action by the assignee for the recovery of property embraced in the assignment, on the ground that it was made and accepted with intent to defraud creditors.</p> <p>2. Nor where the property sought to be recovered in such action has been. seized in execution by part of the creditors, can a recovery be defeated on the ground that the assignor had fraudulently retained the possession of the property with the consent of the assignee. The remedy in such case of maladministration, is by proceedings in the probate court or by action, against the assignee.</p>

<p>Error to the district court of Cuyahoga county.</p> <p>*The original action was brought by White against Lewis, in the court of common pleas of Cuyahoga county, to recover damages for the non-fulfillment of a'contract of purchase, by Lewis of White, of certain premises situate in the city of Cleveland. The contract was made April 19, 1856.</p> <p>White agreed to make a deed of the premises to Lewis and send it to Mr. Stetson, of Cleveland, on the 21st of that month. Lewis paid to White, when the contract was made, $1,000 on the purchase money; and on his paying $2,000 more, and executing a bond and mortgage to White or his wife for $7,000, with interest, payable $1,000 annually, the deed, “ conveying a perfect title to the premises,” was to be delivered to him. The bond was to provide, that if Lewis was compelled to pay any liens on the property, he was to deduct the amount from the bond. The contract was written on the back of an outstanding lease of the premises to one Chapin. White’s interest in the lease was assigned to Lewis.</p> <p>The case went to the district court by appeal, and was therein tried to a jury, at the September term, 1860, on petition, answer1, reply, and testimony.</p> <p>It appears from the record that, previous to the execution of the contract on which the action was brought, and until July 17, 1856, there was an outstanding mortgage on the property to one Mellen for $3,500, and an admitted lien thereon.</p> <p>White introduced evidence tending to show that, in performance of the contract on his part, on April 25th and 26th, and again on May 8,1856, he offered, through Stetson, his agent, to deliver to Lewis a deed in due form for the premises.</p> <p>Lewis, on May 8,1856, offered to pay Stetson the $2,000, and execute the bond and mortgage, as required by the contract (but did not actually tender the money or bond or mortgage), on the delivery of a dood conveying to him a perfect title to the premisos, but declined to accept the deed then offered to him, because of the mortgage to Mellen, and declined to pay the $2,000, and execute the bond and mortgage for the $7,000; but on the same day mailed a letter at Cleveland, directed to White at New York city, where he then resided, *and which was duly received by him, to the effect that he, Lewis, by reason of White’s inability and neglect to convey to him a perfect title to the premises, abandoned the contract, and required the repayment of the $1,000 advanced on it, and other damages.</p> <p>In White’s reply to Lewis’ answer, he states that, having procured a release of the Mellen mortgage, he, on the 26 th day of July 1856, notified Lewis of it, and tendered him a deed for the premises, and requested the payment of the $2,000 and the execution of the bond and mortgage according to the contract, and that Lewis refused.</p> <p>The petition states that, on the execution of the original contract, Lewis took possession of the premises and continued in possession until September 1, 1856.</p> <p>In his answer, Lewis says that, relying upon the fulfillment of the contract by White, he made preparations to take possession of the premises, and paid a sub-tenant, under the lease to Chapin, sixty dollars for his right to remain in possession of the premises until the ensuing fall; and also incurred expense in getting plans drawn for the repair and improvement of the buildings, and in setting out shade-trees on the outside of the walk adjoining the lot. He denies that he took possession otherwise than this, or that he had any possession, or anything to do with the premises since May 8; 1856.</p> <p>After Lewis abandoned the premises and declared himself absolved from the contract, White sold the premises at auction, for $7,000, and brought suit for the difference, $3,000, giving credit for the $1,000 paid down.</p> <p>Lewis set up a counter-claim for the $1,000, and other damages.</p> <p>The testimony being closed, Lewis asked the court to charge the jury, among other things:</p> <p>1. That by reason of the subsequent sale and. conveyance of the premises by White to a third person, he had disabled himself to maintain a suit on the contract.</p> <p>2. That if, at the time a deed was called for by Lewis, on May 8, 1856, the mortgage to Mellen was a lien on the premises, and which was admitted to be so, White could not recover.</p> <p>*3. That by reason of such inability of White, to perform the contract on his paid, when so required by Lewis to perform, a tender of the §2,000, and the bond and mortgage required by the contract to be paid and executed, and delivered on the delivery of the deed, was unnecessary, and that Lewis had the right, therefore, to abandon the contract and recover back the money he had paid on it to White.</p> <p>The court charged the jury that if White, by selling the premises, had put it out of his power to fulfill the contract, and if this was the whole case, Lewis could recover back the §1,000 advanced and interest. That, by the terms of the contract, White was bound to send a deed to Cleveland, as agreed in the contract, and be in condition, whenever Lewis should call for it, to give him a deed conveying a perfect title—a title free from the incumbrance of the Mellen mortgage. That the mere existence of the incumbrance would not absolve Lewis from his contract, or authorize him to abandon it, but it was the duty of Lewis to offer to fulfill the contract on his part by offering to execute the bond and mortgage, and pay the §2,000. That it was not necessary when Lewis called on White’s agent for the deed, that he should tender cither the bond and mortgage, or the money, or that he should have even executed the papers, but that all that was necessary was, that Lewis should offer, in good faith, to perform on his part, in case he found the ihcumbrance removed, and that he was able and ready to do so. That, in such case, Lewis would have the right, if the incumbrance was not removed, to abandon the contract and recover of White the §1,000 and interest. But if the jury should find that Lewis did not make the offer in good faith, or was not able and willing to perform on his part, and did not, in good faith, intend to perform, and went there merely to make a show of performing, and demanded the deed merely for the purpose of getting rid of the contract, if White was not prepared to perform; and if the jury should find that White paid off said incumbrance, and that, after he had done so, he, on or about the 25th July, 1856, tendered the deed to Lewis conveying a perfect title, and Lewis refused to fulfill Lewis was thereby in default, and White would be entitled to a verdict for the difference between the contract *price and the actual value of the premises at the time of such tender, deducting from the difference the amount already paid on the contract.</p> <p>To this charge as given, and to the refusal of the court to charge . as requested, Lewis excepted.</p> <p>The verdict was for the plaintiff, White—damages ten cents.</p> <p>The defendant, Lewis, moved to set aside the verdict and for a new trial, on the grounds: 1. The verdict is not sustained by sufficient evidence ; 2. It is contrary to the charge of the court; 3. It should have been for the defendant instead of the plaintiff.</p> <p>This motion was overruled and judgment entered on the verdict, and defendant excepted.</p> <p>To reverse this judgment of the district court, Lewis filed his petition in error in this court.</p> <p>It is claimed -the district court erred in refusing to charge the jury, as requested by the counsel for Lewis, and in the charge as given.</p>

<p>Error to the court of common pleas of Montgomery county. Eeserved in the district court.</p> <p>This is a petition in error filed by David Shroyer, as the guardian of Harry Long, to reverse the judgment of the court *of common pleas affirming the judgment of the probate court of Montgomery county.</p> <p>The original petition, filed in the probate court March 22, 1861, by Shi’oyer, as guardian of Long, a mute, against Eichmond and ¡Staley, stated that said court, on May 12, 1857, appointed one John E. Coblentz as guardian of Long; that Coblentz, with Eichmond and Staley as his sureties, gave bond as guardian (the bond reciting his appointment as guardian for Long, a mute), and entered u|>on the trust; that Coblentz resigned the guardianship August 6, 1860, having in his hands, as shown by his final account, and found by the probate court, a balance of $1,607, which the court ordered him to pay over to his successor; that the court, on December 6, 1860, appointed the plaintiff, Shroyer, guardian of Long, and that he duly qualified as such, and became entitled to said balance found in the hands of Coblentz; that on March 13, 1861, he recovered judgment, in he probate court, against Coblentz, for the $1,607, and costs; that execution, issued on. the judgment, was returned “ no goods or chattels, lands or tenements,” etc.; that he demanded the amount of the judgment of the sureties, Eichmond and Staley, and they refused to pay; and that the judgment and costs remain unsatisfied; and asks that said sureties may be notified to show cause why they should not be made parties to the judgment, and why execution should not issue thereon against them, etc.</p> <p>The defendants were personally served with process, and answered the petition, in substance, as follows :</p> <p>1. That the plaintiff is not the duly appointed guardian of Long; that the probate court, in making the pretended appointment of the plaintiff as such guardian, did not find Long to b® a person, or to belong to any class of persons, over whom or whose estate that court had jurisdiction to appoint a guardian; and that the appointment was made without authority of law.</p> <p>2. That when the pretended appointment was made, Long was not a person, and did not belong to any class of persons, over whom or whose estate the probate court had jurisdiction or authority by law to appoint a guardian.</p> <p>3. That the pretended bond is invalid and not their bond, because *when the pretended appointment of Coblentz as guardian of Long was made, the probate court did not find Long to be a person, or to belong to any class of persons, over whom and whose estate the said court had jurisdiction to appoint a guardian, and that the appointment was made without authority of law.</p> <p>4. That when the pretended appointment of Coblentz as guardian of Long was made, Long was not a person, and did not belong to any class of persons, over whom or over whose estate the probate court had power to appoint a'guardian.</p> <p>The plaintiff demurred to this answer. The demurrer was overruled. He then replied, denying each and every allegation in the answer; and on his application the issues were tried to a jury.</p> <p>To maintain the issues on his part the plaintiff offered in evidence two journal entries made by the probate court.</p> <p>The first entry, made May 12, 1857, is as follows:</p> <p>“ In the matter of Harry Long (a mute). On application, the court appoint John R. Coblentz guardian of Harry Long, a mute, and said John R. Coblentz thereupon came into open court and accepted said appointment, and gave bond in the penal sum of three thousand dollars, with Jacob Richmond and Henry Staley as his security, approved by the court and conditioned according to law.”</p> <p>The other entry, made December 6,1860, is as follows:</p> <p>“ In the matter of the guardianship of Harry Long (a mute). This day came David Shroyer and made application to be appointed guardian of Harry Long (a mute), and the court being satisfied that said Harry Long is a mute, and that said mute is a. resident of this county; and the said David Shroyer having filed in this office a statement, duly verified, of the whole estate of said Harry Long, a mute, and the probable value thereof, it is, therefore, by the court ordered that said David Shroyer be and he is hereby appointed guardian of the person and estate of said Harry Long. And thereupon came the said David Shroyer in open court, and accepted said appointment, and took an oath that he would faithfully and honestly discharge the duties devolving upon him as such *guardian; and also gave and filed herein his bond, [458 ■in the penal sum of three thousand two hundred and fifty dollars, conditioned according to law, with John Shroyer as his security, which bond was approved by the court.”</p> <p>The plaintiff then rested, offering no further proof.</p> <p>To maintain the issues on their part, the defendants offered to prove to the jury, by parol testimony, that at the time of the appointment of Coblentz and Shroyer respectively, as guardians of Long, he was neither a minor, a lunatic, insane person, an idiot, nor a deaf and dumb person incapable of taking charge of his-affairs; and that there was no testimony offered before the court, at the time of making either of said appointments, to show that Long was a minor, lunatic, insane person, idiot, or deaf and dumb person incapable of taking charge of his affairs; and that he was-not brought before the court; and that there was no jury summoned by the court, nor inquest held by a jury, nor a jury sworn for that purpose, nor any testimony offered before a jury or the-judge, to show that he was a deaf and' dumb person incapable of taking charge of his affairs ; nor any verdict of a jury finding him to be such a person.</p> <p>The plaintiff objected to the admission of this testimony. The objection was overruled and the testimony admitted, and the plaintiff excepted.-</p> <p>The testimony being closed, the probate court charged the jury, in substance, among other things, that if Long was a deaf and dumb person, of full age, incapable of taking charge of his own affairs, then, before the court could appoint a guardian for him, it. was necessary for a jury of five freeholders to have found, by a. verdict, that he was such a person.</p> <p>The court further directed the jury to inquire into the regularity ■of the proceedings had in the probate court at and preceding the .appointment of the alleged guardians, and whether the court did ■what, under the instructions, was necessary to authorize it to make •the appointments; and directed the jury to consider the parol tes-timony which the defendants were permitted to offer upon that ^question.</p> <p>The plaintiff excepted to the charge of the court.</p> <p>*The verdict was in favor of the plaintiff upon the issues joined upon the second and fourth defenses set up in the answer, .and in favor of the defendants upon the issues joined upon the first ;and third defenses.</p> <p>The plaintiff moved to set aside the verdict and for a new trial,. .on the grounds (1) that the verdict was contrary to the weight of ■the evidence, and (2) against the law of the case. The court over,ruled this motion, and the plaintiff excepted.</p> <p>The defendants moved for judgment on the verdict, in their .favor. The court granted their motion, and the plaintiff excepted.</p> <p>Judgment was entered for tho defendants, and to reverse the •same, the plaintiff filed his petition in error in the common pleas, rinsisting that the probate court erred:</p> <p>1. In overruling his demurrer to the answer of defendants.</p> <p>2. In admitting the parol testimony to show that when Coblentz -was appointed guardian, no jury was called or inquest held, etc.</p> <p>3. In its charge to the jury.</p> <p>4. In overruling his motion for a new trial, and in giving judgment for defendants. *</p> <p>The common pleas affirmed the judgment of the probate court. 'To reverse the judgment of affirmance, a petition in error was filed in the district court, and was therein reserved for decision here.</p>

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

<p>Error to the district court of Madison county.</p> <p>The original petition was filed by the plaintiff below, now the defendant in error, to recover damages against the defendant below, for the breach of a contract in writing, of which the following is a ■copy:</p> <p>*“ March 22, 1861. Article of agreement made and entered into this day between Israel Pierce and Luther Johnson, both of Madison county, Ohio, witnesseth: That said Pierce has this day ■sold to the party of the second part, one hundred head of good merchantable fat hogs, to be as follows: Fifteen head of the hundred to weigh 200 lbs., and upward, gross, each; the remainder, say eighty-five head, to average 270 lbs. gross, and no hog to weigh less than 250 lbs. gross. Said hogs to be delivered either at S. Boberts' |or A. L. Byan’s scales, and weighed, any time from the first day of November, a. d. 1861, until the twentieth day of December, a. d. 1861—the time to be at Johnson’s option as regards the time of delivery; for which the said Johnson agrees to pay the said Pierce four dollars per hundred lbs. gross weight. Said hogs to be paid .for at the time of delivery.</p> <p>“I. Pierce,</p> <p>“Luther Johnson.”</p> <p>The plaintiff averred that he performed all the conditions of the -contract on his part, and, at the request of the defendant, was, on twenty-ninth day of November, a. d.- 1861, at the scales of S. Roberts, ready and willing then to deliver said hogs, and tendered the same to the defendant, but that the latter refused to accept and pay for them., The damages claimed, four .hundred and twelve dollars ,and ten cents. ■ .</p> <p>The defendant in his answer set up two defenses. The substance of the first, and which alone it is material to notice, was, “ That the plaintiff did noj; perform the conditions of said contract on his part to be performed, and was not, on the twenty-ninth of November, 1861, ready at the scales of S. Roberts, and willing to deliver the hogs specified in said contract, and did not tender the same; and said' defendant did not refuse to accept said hogs and pay for them pursuant to said agreement. But, on the contrary, the defendant was ready and willing to accept and pay for said hogs, and demanded the same from the plaintiff, in pursuance of said contract, who wholly neglected and refused to deliver them.”</p> <p>On the trial a bill of exceptions .was taken by the defendant, *from which it appears that the plaintiff, having given evidence tending to prove all the allegations in his petition, the defendant, to maintain the issue on his part, offered to give parol evidence to the jury tending to show that, at the date of the contact, that the defendant had sold to the plaintiff sixty-seven head of hogs, and the plaintiff had on hand, in addition, twenty-three hogs of his own, fifteen of them being small hogs, which the parties supposed might be made to weigh two hundred pounds each, by the time named for delivery in the contract; and that the plaintiff had the privilege of purchasing ten head of hogs to make up the one hundred head named in the contract, and that the hogs so described, were tho identical hogs covered by and named in the contract, and which the plaintiff, on that day, and by the written contract, sold to the defendant; and that the defendant, on the 23d of November, 1861, at the scales of Roberts, was ready and willing to receive and pay for said hundred head of hogs.</p> <p>This testimony-was objected to by the plaintiff, the objection sustained by the court, and the testimony excluded from the jury. To this ruling the defendant excepted.</p> <p>The testimony of the parties being closed, the defendant requested the court to instruct the jury, “ That by the terms of the written ' contract between the parties, the plaintiff was bound to tender to» the defendant on the said 29th day of November, 1861, hogs which he owned and had on hand at the day of the date of said contract.”'</p> <p>This instruction the court refused to give, but charged the jury, “ That by the terms of said written contract, the plaintiff might tender to the defendant any one hundred head of good merchantable-fat hogs which conformed to the contract in weight and quality, without any reference to those he had on hand at the date of the contract.”</p> <p>To the refusal to charge as asked, and to charge as given, the defendant excepted.</p> <p>The jury returned a verdict in favor of the plaintiff for three-hundred and seventy-six dollars and twenty-five cents, for which judgment was rendered in his favor against the defendant.</p> <p>*On the petition in error of the defendant below, this judgment was affirmed by the district court, and he now seeks in this court the reversal of said judgment.</p>

<p>"Where land is conveyed in fee, subject to the payment of annual rents by the grantee to the grantor, and the deed of conveyance reserves to the grantor the right to re-enter and avoid the conveyance upon default of payment, the grantor has a lien upon the premises for the rent, superior to that of a mortgagee of the grantee.</p>

<p>Error to the district court of Highland county.</p> <p>In January, 1864, William Limes, a resident citizen of Fayette county, Ohio, died leaving real and personal property in both Fayette and Highland counties, all of which he disposed of by will.</p> <p>Afterward, on January 26, 1864, John Irwin, a defendant in error, and the executor named in the will, produced and filed the same in the probate court of Highland county, and, subsequently, having taken proof of the will, that court admitted it to record, and issued to the executor, upon his giving the usual bond, letters testamentary, and appointed appraisers of the estate.</p> <p>The plaintiffs in error, heirs at law and devisees, excepted to this action of the probate court of Highland county, on the ground that that court had no jurisdiction to take the probate of the will, admit it to record and issue letters testamentary, inasmuch as the testator was, at his decease, a resident citizen of Fayette county, and possessed of real and personal property therein, disposed of by the will; and to reverse the orders of the probate court of Highland county, filed a petition in error in the court of common pleas.</p> <p>The common please reversed the orders of the probate court.</p> <p>To reverse this judgment of reversal and affirm the action of the probate court, the executor and others, present defendants in error, filed their petition in error in the district court.</p> <p>That court reversed the judgment of the common pleas, and affirmed the orders of the probate court.</p> <p>To reverse the judgment of the district court and the orders of the probate court, the present plaintiffs in error filed their petition in error in this court.</p>

<p>1. Where a negotiable note is indorsed in blank for the accommodation of the maker, the contract of the indorser is single and entire, and the holder of the note can not fill np the indorsement so as to make the note payable part to one person and part to another, without the consent of the parties to the note.</p> <p>2. Where the makers of a note so indorsed, delivered it to a party as security for their note of a less sum, between both of whom and a second party it was subsequently agreed that the note should also be held by the first party as security for a note of the makers to such second party, a judgment recovered against the indorsers, in a suit by such first party, for the amount due on his note, without including the amount due on that of the second party, merges the contract of indorsement, and such second party can not maintain an action thereon, against the indorsers, for the amount for which it was so held as security for him.</p>

<p>1. A deed made without consideration, and purporting to be a conveyance of real estate from a husband directly to his wife, is void, both at law and in equity.</p> <p>2. Such deed, though made with intent to defraud creditors, is not a “ transfer, conveyance, or assignment,” within the meaning of section 17 of the act of April, 1859, “ regulating the mode of administering assignments in trust for the benefit of creditors,” and, therefore, judgment creditors of the husband can not be prevented thereby from acquiring priorities of lien by the levy of executions upon the premises.</p>

<p>1. The presumption of the payment of a claim arising at common law, from the lapse of time, may be rebutted by proof that it remains due and unpaid, or by proof that the debtor, within the period required to raise such presumption, acknowledged such claim to be an existing liability.</p> <p>? Where a judgment is rendered in another state, upon a claim secured by a mortgage of the judgment debtor; and where, in a subsequent suit to foreclose the same, within fifteen years from the date of such claim, he consents to a decree ordering the sale of the mortgaged premises, and that the proceeds thereof may be applied to discharge the amount in the decree found to be due on the claim embraced in such judgment; such consent constitutes an “ acknowledgment of an existing liability” upon such judgment, within the meaning of the 5th section of the act of 1831, for the limitation of actions; and an action in this state, on such judgment, will not be barfed under that act, until the expiration of fifteen years from the date of such acknowledgment.</p>

<p>Error to tbe district court of Darke county.</p> <p>January 13,1857, Glidden, Murpbin & Co., recovered a judgment in tbe court of common pleas of Darke county, against John B. Taylor and Samuel D. Taylor, partners under the firm name of Taylor & Brother, for the sum of $556.75 and costs.</p> <p>January 21, 1862, the judgment being in force, execution was issued thereon, and returned unsatisfied for want of property whereon to levy.</p> <p>^March 14,1862, Glidden, Murphin & Co. filed their petition against John B. Taylor and Martha D. Taylor, his wife, and Samuel D. Taylor, in the court of common pleas, to subject to the payment of their claims a certain foundry and machine-shop premises, and a house and lot in Greenville, in Darke county—property purchased by John B. Taylor with his own money, but in his wife’s name, to whom he had fraudulently caused the legal title to be conveyed, with intent- to hinder and delay his creditors in the collection of their claims, as alleged in the petition.</p> <p>Allen & Meeker, claiming to have a lien on the property for a small amount, joined, as plaintiffs, with Glidden, Murphin & Co. Taylor and wife answered separately, denying the alleged fraud, and that he had any interest in the property, and averring in effect that the money paid on the same belonged to the wife.</p> <p>The case was appealed to the district court, and there tried in April, 1864.</p> <p>To maintain the issue on their part the plaintiffs called John B. Taylor as a witness, among others; and, as his testimony makes the most favorable case for his wife, the decision here, on error, is confined to the case thus made. His testimony shows, substantially, the following facts:</p> <p>John B. Taylor and Samuel D. Taylor, under the firm name of Taylor & Brother, carried on business as machinists in a certain foundry and machine-shop, hereinafter referred to, in the village of Greenville, in Darke county, previous and up to about the year 1854, when the firm became insolvent in consequence of one of its principal debtors—the Greenville and Miami Railroad Company— failing to make payment.</p> <p>At the time the firm suspended business it had on hand, at the foundry, a quantity of castings, car-wheels, tools, and other property, which the firm subsequently mortgaged to sundry of its creditors to secure about $800. Among the mortgages thus given was one to Winner & Erizell, to secure their claim of between $300 and $400; this mortgage being the first lien. The mortgaged property remained at the foundry somewhat neglected, and portions of *it were wasted and carried off from time to time, and other portions were sold by John B. Taylor for the support of his family, until the year 1857, when, at the request of Erizell, a member of the firm of Winner & Erizell, the two Taylors, John and Samuel, executed a power of attorney for the confession of a judgment in favor of Winner & Erizell upon their claim secured by mortgage on the property as stated. Judgment was accordingly taken against Taylor & Brother in the common pleas of Darke county, and execution issued thereon and levied on the mortgaged property, and the same was sold by the sheriff to W. A. Weston for $400. Immediately after bidding off the property, Weston told John B. Taylor that he might take it, as his agent, and dispose of the same to the best advantage, and pay him (Weston) the $400, and give the residue of the property to Martha D. Taylor, John B. Taylor’s wife.</p> <p>Portions of the property were disposed of by John B. Taylor, and, at the end of six months, of the proceeds, he refunded the $400 to Weston, and, by the time it was all disposed of, the additional sum of $1,200 was realized therefrom. Some part of the-$1,200 was consumed by John B. Taylor’s family, as he was in no> business for two or three years previous to the sale to Weston, and! also for about the same time thereafter.</p> <p>The property was not salable, and some of it could not be used except by the Greenville and Miami Railroad Company, and, in consequence of a compromise of a portion of a judgment John B. Taylor held against that company, he made an advantageous sale to it of $500 worth of the property.</p> <p>In the year 1859 or 1860, Taylor, as such agent, sold a part of the property to N. W. Aikens, who then owned the foundry and machine-shop, and the ground on which they stood, for about $450,. and took a note and moi;tgage on the foundry and machine-shop premises in favor of Weston, for the amount, and also for a prior debt-of some $200 which Aikens owed Weston.</p> <p>Subsequently, in April, 1860, John B. Taylor, acting for his wife,, purchased, in her name, the foundry and machine-shop premises' for about $300, subject to the liens thereon, ^amounting to about $1,000, and paid a part of the liens, to the amount of about $450, as follows: Weston, who resided in Dayton, on being notified by John B. Taylor of the purchase, and-at his request, gave credit, to that amount, on the note and mortgage Aikens had given him, and which was one of the liens on the property. The $300 more was paid to Aikens in bells and other articles manufactured at the-foundry, and in small notes received for articles sold at the foun-, dry during the period of about three months previous, when the-business was carried .on, under an arrangement made between Aikens and John B. Taylor, in the name of Aikens and Martha D„ Taylor, wife of John B. Taylor. The remainder of the purchase money, except about $300 paid the first winter out of the proceeds-of the business carried on in the name of Martha D. Taylor, to-whom Aikens had sold out his interest in the foundry, remained unpaid at the time of the trial.</p> <p>On the purchase of the foundry property in April, 1860, John B.- Taylor, as the agent and trustee of his wife, started business in the machine-shop, and thereafter, to the time of the trial, carried on the business of manufacturing sugar-cane mills and other kinds of machinery, and repairing machinery. The business was carried on in the name of his wife, and with her capital, acquired by" her as before stated.</p> <p>In the prosecution of the business, John B. Taylor, as agent and ttrustee of his wife-, had the entire management, superintendence, ¡and control of the same; he, being a skilled mechanic, worked at ithe business himself, employed hands, purchased stock, and directed sail things connected therewith. His own services were worth $2 .per day. His wife was never the owner of any property of any kind, and had no capital in the business or in the building in which it was conducted, except the profits or proceeds given her .by Weston.</p> <p>There was no formal agreement between Taylor and his wife, as ■.to his services or as to the disposition of the proceeds of the business. As her agent and trustee, he received the proceeds, supported ■himself and family therewith, spent what money he desired to, .and with the surplus, purchased, in the name of his wife, a dwelling-house and lot in Greenville for $2,580, in January, 1862, subject to an annuity of *$41, charged thereon in lieu of dower, in favor of the widow of Solomon Schlenker. He paid the first and ■second payments, of $1,000, each, of the purchase money. The '.third and last payment, amounting to about $1,000, remains unpaid.</p> <p>Out of the further proceeds of the business he improved these •premises to the extent of some $300, by placing in the lot a fountain, flower vases, and other ornaments and improvements, which ■were principally manufactured at'the shop in the prosecution of ■■the business.</p> <p>Out of the proceeds of the business he purchased, and at the time of trial held, a note for some $1,600, then worth $1,200 or 41,300.</p> <p>The entire accumulation of the business, since its commence■ment in 1860, amounted to six or seven thousand dollars above expenses, most of it after the year 1860; not more than $500 above =a living and expenses, was realized in that year.</p> <p>At the time of the purchase of the foundry property from Aikens it was not valuable, but had become so since. A short time before the purchase of Aikens it had been sold for less than he was to get.</p> <p>About the time the plaintiff’s attorney was endeavoring to levy ¿an' execution issued on their judgment, on the furniture of John B. Taylor, he executed to Weston a chattel mortgage on the furni-ture, to secure a debt of $175 he owed to Weston. The furniture was valuable.</p> <p>Taylor told his wife, in the commencement of the business, that he would do the best he could, support the family, spend what money he desired, and invest the residue for her benefit, in her name.</p> <p>The defendants offered no evidence.</p> <p>The district court found the equities of the case to be with Mrs. Taylor, and that she rightfully, and without fraud as to John B. Taylor’s creditors, was the holder and owner of the real estate mentioned, and therefore dismissed the petition.</p> <p>The plaintiffs moved for a new trial, on the grounds (1) that the court found and adjudged against the weight of the evidence, and (2) erred in dismissing the petition. This motion was overruled ■and exception taken.</p> <p>*To reverse the judgment of the district court the present petition in error was filed.</p>

<p>Error to tbe common pleas of Crawford county. Reserved' in the district court.</p> <p>The original case was an action upon the official bond of defendant, Orr, given by him as clerk of the court of common pleas, and. signed by the other defendants as his sureties.</p> <p>The bond was dated February 9,1852, and his term of office was-three years from and after that date. It is in the statutory form, payable to the State of Ohio, and conditioned that the clerk will perform the duties of the office, enter the decrees, etc., of the court, and “ truly and faithfully pay over all moneys that may be by him received in his official capacity.”</p> <p>The original petition was filed September 26, 1863. It avers the election of Orr, the execution of the bond, which it sets forth, and Orr’s continuance in office for the three years; and it then assigns for breach of the condition of the bond: “ That said-Thomas J. Orr, by virtue of *said office, from time to time during his said term of office, received into his hands divers sums of money, in all amounting to five hundred and five dollars and eighty-six cents, the same being costs on suits heard and determined in the-court of common pleas of Crawford county, Ohio, an exhibit of which suits and costs are hereto attached, marked ‘ B,’ and made-a part hereof; whereby it became and was the duty of said Thomas J. Orr, during his said term of office, to pay over said costs to the county treasurer, and the same were, and now are, payable, and ought to be paid into the treasury of said Crawford county; but the said Thomas J. Orr has hitherto refused and neglected, and still-does refuse and neglect, to pay over said costs, or any part thereof ■as he was and is bound to do, as aforesaid, although requested so to -do ; whereupon an action hath accrued,” etc.</p> <p>The exhibit appended to the petition contains a list of cases, both «civil and criminal, in which, during the three years of his term of ■office, the said aggregate sum of $505.86 costs had been received by the clerk, a part in each year, giving the dates and amounts of receipts in each case.</p> <p>To this petition the defendants demurred, alleging as grounds of «demurrer:</p> <p>1. “ That the plaintiffs have not the legal capacity to sue in this «action.”</p> <p>2. That the petition does not set forth sufficient facts to constitute .a cause of action.</p> <p>3. The cause of action is barred by the statute of limitations.</p> <p>The court of common pleas sustained the demurrer, and rendered</p> <p>judgment for costs against the plaintiffs. To reverse this judgment a petition in error was filed in the district court, wherein it «has been reserved for decision here.</p> <p>The error assigned is, that the court sustained the demurrer and .rendered judgment for the defendant.</p>

<p>1. A parol post-nuptial agreement between husband and wife, made in view of a voluntary separation, and fully executed on the part of the husband,, whereby, for a consideration which, in the light of all the circumstances of' the parties at the time the contract is made, is fair, reasonable, and just, the wife relinquishes all claim to a distributive share of the husband’s personal estate in case she survives him, will be upheld and enforced in equity; and the intervention between them of a trustee, is unnecessary.</p> <p>2. But it is an essential element of the foregoing proposition, that the terms-of the contract shall be fair, reasonable, and just to the wife, in view of all the circumstances of the parties at the time when it was made; and such, contract can be made available, in pleading, as a full defense to an action, by the wife for a distributive share of her deceased husband’s estate, only when accompanied by such averments as show it to have been fair, reasonable, and just to her.</p> <p>3. Where, by the terms of a post-nuptial contract between husband and wife,. made in contemplation of a separation of the parties, the husband agreed to pay the wife a gross sum of money in hand, in consideration of which-she agreed to relinquish all claim to a distributive share of his personal estate in case she survived him; and the stipulated sum was paid and received accordingly, and the parties ever afterward lived separate from each other; and, after the death of the husband, the wife brings an action for the recovery of a distributive share of his personal estate, under the statute: Held, that the facts above stated constitute, prima facie, a good defense, inequity, to the action as to the amount so received by the wife, under the-contract.</p>

<p>Error to the court of common pleas of Henry county. Beserved in the district court.</p> <p>*Suit was brought by defendant in error, in the court below, against the plaintiff in error, as the maker of a promissory note, dated September 1,1855, calling for $2,500, payable to one Cassius M. Eisk, or bearer, twelve months after date, with interest at the rate of ten per cent, per annum. The plaintiff in that action, by his petition, alleged that the note was, some time in the year 1856, indorsed and delivered by the payee to S. A. Bacon and George "W. Eisk, who afterward indorsed and delivered the same to him, and that he is now the owner and holder thereof. He admits that Durbin paid on the note June 9,1856, the sum of $650, and that he was credited with the further sum of $200, April 1, 1860, also with the sum of $100, November 1, 1860, on account of the rents of certain real estate. He avers that no further payments have been made; that a balance remained due thereon at the time of bringing suit, amounting, with the interest thereon, to $1,788 ; that the note has been lost since it came into his possession and he believes it to be destroyed ; and he asks judgment for said balance with interest at the rate of ten per cent.</p> <p>The defendant below answered, setting up, in substance, among other things, that he was entitled to credits on the note for two payments, one of $800 and the other of $1,332. That one Dennis Perkins had previously instituted a suit against both the parties to to this suit, and other defendants ; and that in that suit, the debt evidenced by the note now in suit was found to be a lien, preferable to that of other creditors, upon two tracts of land which are particularly described, and that under an order of sale made in that case, one of these tracts was sold for the sum of $800, and that the proceeds were applied on tho plaintiff’s said debt at the May term, 1860, of the court. That, pursuant to the same order of sale, the other tract was subsequently sold for $1,332, and the proceeds similarly applied by the court at its October term, 1860.</p> <p>To this answer the plaintiff replied, not denying the facts stated in the answer, but alleging, in substance, as follows : That at the time of making the note in suit, the defendant, to secure its payment, had executed a mortgage covering both the tracts of land described in the answer; that the Belmont *County Branch</p> <p>of the State Bank of Ohio held a prior mortgage upon the last described tract, upon which, .at the suit of the bank, a decree of foreclosure and sale had been obtained in the court below, on the 17th of May, 1859. That the suit of Dennis Perkins was subsequently instituted for the purpose of marshaling the liens upon the property of the defendant Durbin; .that the bank was not a party thereto,, and that by the decree rendered therein, no provision was made for the payment of the debt due to the bank; that the court found and decreed plaintiff’s debt to be the first lien upon the premises, and that he accordingly received the proceeds of the sale of the first tract, amounting to $S00; that he also bought the second tract at the subsequent sale in July, I860, for the sum of $1,340, both sales having been made -under the -decree in the Perkins case; that at the time of the latter purchase he was aware of the lien of the bank, but did not know that a deeree of foreclosure had been rendered thereon, and was informed and believed that his purchase under the Perkins decree would give him a good title to the premises. That the branch bank, in November, 1860, took out execution under its prior decree, and brought the said second tract to sale, and that the plaintiff, to protect himself, his improvements, and interests, firand it necessary to become the purchaser, and did accordingly purchase the same for $1,335. That by means of the premises, he lost all benefit of his first purchase of the same tract under the decree in the Perkins case, which did not therefore operate as a real satisfaction of his debt, nor diminish, the amount due him from the defendant Durbin. He therefore asks that the amount due him may be ascertained without deduction on account of his purchase of said second tract, and for judgment accordingly.</p> <p>To this reply the defendant demurred generally, and the court overruled the demurrer, and the defendant excepted.</p> <p>The cause was thereupon submitted to the court, and a judgment was rendered in favor of the plaintiff for $2,056.73, with interest at the rate of ten per cent, per annum.</p> <p>The defendant seeks to reverse this judgment, on the ground that the court erred in overruling his demurrer to the plaintiff’s reply.</p>

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

<p>*Error to tbe Superior Court of Cincinnati.</p> <p>Neilson & Churchill and Fry were accommodation indorsers of a bill of exchange for the benefit of the drawer, and Fry paid the full amount of a joint judgment afterward recovered thereon against the drawer and indorsers.</p> <p>M.ore than six years, and less than ten years after the payment, and without any notice thereof to Neilson & Churchill, an action was brought against them by Fry in the court below to recover $1,636.37, the amount of their ratable part of the judgment, on the ground that the parties were co-sureties of the drawer.</p> <p>The petition, after setting out the facts aforesaid, and alleging that the judgment had become dormant, prays that Fry may be subrogated to the rights of the judgment creditor, that the judgment may be considered as still subsisting and be revived, and that he may recover of said Neilson & Churchill their said proportionate part of the money so paid..</p> <p>To this action three defenses were set up by Neilson & Churchill. 1. That the parties were not in law cosureties; 2. The want of notice of the payment by Fry; and, 3. That the cause of action did not accrue within six years.</p> <p>The court below held these several defenses insufficient, and rendered a simple judgment that Fry recover of Neilson & Churchill the said sum of $1,636.37.</p> <p>On petition in error by Neilson & Churchill, this judgment was affirmed by the Superior Court in general term; and now a petition in error, to reverse both judgments, is filed by them in this court.</p>

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

<p>The payment of a dividend by the assignee of an insolvent debtor, is not such a park payment as will, under section 24 of the code, take the residue of the debt out of the statutory limitation as against such debtor.</p>

<p>An action was brought on a contract, by which the defendant agreed to make a lease, for the term of ten years, to the plaintiff, of certain lands, on which to plant and cultivate a peach-orchard. The breach consisted in the failure of the defendant to make the lease, and in his causing the plaintiff, within two years from his taking possession, to be evicted from the premises, but after the peach-trees were planted. On the trial the plaintiff was permitted to give evidence of the probable profits that might in future be realized from the orchard, judging by the number of crops and the prices of peaches in the county for the last ten or fifteen years: Held—</p> <p>1. The evidence as to the probable future profits was incompetent to be given in chief by the plaintiff, as furnishing a basis for the assessment of damages by die jury, such evidence being uncertain and speculative in its nature, and in a great degree conjectural.</p> <p>2. To the extent that the damages depended on the loss of the use of the property for the term, its market value at the time of the eviction, subject to the performance of the contract on the part of the plaintiff, furnished the standard for assessing the damages. If it had' no general market value, its value should be ascertained from witnesses whose skill and experience enabled them to testify directly to such value, in view of the hazards and chances of the business to which the land was to be devoted.</p> <p>3. Where a cause in which the parties are entitled to a jury trial is referred by the court, by consent of parties, to three referees, with an agreement that their decision shall be final, and the award is only signed by two of the referees, either party is entitled to a second trial, as in case of a verdict by a jury.</p>

<p>The defendant’s attempt to prove an alibi in a criminal case, is no admission of the body of the crime charged; nor does his failure to prove the alibi necessarily afford any presumption that he was present at the time and place when and where the crime is alleged to have been committed.</p>

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

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

<p>Error to the court of common picas of Jefferson county. Be-served in the district court.</p> <p>On the 9th day of May, 1860, the plaintiff filed, in the *court of common pleas for the county of Jefferson, his petition again'st the defendants, which is as follows :</p> <p>“ J oseph Medill, plaintiff, says, that there is due to him from J ames Collier, Edwin H. Collier, Frederick Collier, John A. Collier, Arnold H. Dohrman, Jno. S. Patterson, James O’Neal, Bobert Mears, Joseph-Means, William Stanton, William Elliott, Thomas Johnston, James Turnbull, Henry G-. Comingo, Charles O. Beatty, William Inglebright, Thomas S. Hening, Peter A. Dohrman, David W Steir, David McGowan, William Nash, Bernard Scullion, Ann Ward, William Waggoner, Jr., John T.. Leslie, Onias Clark, and John McGuire (surviving partners of Elizabeth Garrett and William McDonald); lately trading under the name and style of The Citizens’ Bank of Steubenville, defendants, the sum of one thousand dollars, with interest thereon, at the rate of five .per cent, per annum, from September 3,1859, until November 18,1859; and with interest thereon at the rate of six per cent, per annum, after November 18,1859, on a certain certificate of deposit dated September 3,1859, whereby the defendants, under said firm name of The Citizens’ Bank of Steubenville, by E. D. Collier, their agent and teller, acknowledged to have received from the plaintiff said sum of one thousand dollars, •and promised to pay the same, with interest thereon from date, at :the rate of five per cent, per annum, to the plaintiff’s order on demand, one and a half months after date, which period has long since •elapsed, yet the said defendants have hitherto neglected and refused to pay the same, or any part thereof, although payment thereof has been demanded, and still neglect and refuse to pay the same, or any part thereof.</p> <p>■ “Plaintiff files herewith a copy of said certificate of deposit marked (A), and made part of this petition.”</p> <p>Prayer for judgment for $1,000 and interest as above stated.</p> <p>There was a second cause -of action on another certificate for $1,644.64, included in the petition, but plaintiff dismissed as to that cause.</p> <p>*(A) [copy.]</p> <p>“ Citizens’ Bank or Steubenville,</p> <p>“ Steubenville, Ohio, September 3, 1859.</p> <p>' “Jos. Medill has deposited one thousand dolls, bankable funds, payable to his order on demand, one and one-half months after date, with interest at the rate of five por cent, per annum, to cease' at maturity.</p> <p>“E. D. Collier, Teller.”</p> <p>Defendants filed separate answers, in form following:</p> <p>“David McGowan, one of the defendants, comes, and for answer, says, that he is not indebted to the plaintiff, either individually, or jointly with the other defendants, or as partner with them under any name or style whatsoever.”</p> <p>At the June term, 1863, the case was tried to the court, which stated the facts found upon the evidence in substance as follows :</p> <p>The defendants, with others, executed a certificate in the words and figures following:</p> <p>“ The Citizens’ Bank oe Steubenville :</p> <p>“ To all whom it may concern: This is to certify, that the undersigned have associated themselves together for the purpose of organizing a banking company, to be established at Steubenville, Jefferson county, Ohio, and to be incorporated under the act entitled ‘ an act to authorize free banking,’ passed March 21,1851. And it is further certified, that we have agreed upon ‘ The Citizens’ Bank of Steubenville,’ as the name of the company by which it shall be known in its dealings; that the amount of the capital stock of said company shall be fifty thousand dollars, to be divided in one thousand shares; that the name and place of residence, and the number of shares held by each member of the company, will appear by reference to the signatures hereto attached; that the company was formed on the 20th day of October, and that said company has elected to carry on its operations as 1 The Citizens’ Bank of Steubenville.’</p> <p>“ Witness our hands and seals, at Steubenville, this 20th day of October, 1851.”</p> <p>*Each of the parties who signed the foregoing instrument duly acknowledged its execution before a notary public; and it was recorded in the recorder’s office for the county of Jefferson, on the 22d day of November, 1851.</p> <p>On the 29th day of November, 1851, the following certificate was signed by the governor, auditor of state, and secretary of state, and was by them furnished to the said Citizens’ Bank of Steubenville, under tbe great seal of the State of Ohio, and was duly recorded in the office of the secretary of state:</p> <p>“ Executive Oefice, Columbus, November 29,1851.</p> <p>“ It is hereby certified, that the Citizen’s Bank of Steubenville, located at Steubenville, in Jefferson county, Ohio, has complied with the several provisions of the first, 'second, third, and fourth sections of the act to authorize free banking-, passed March 21,1851.”</p> <p>On the 20th day of October, 1851, the defendants and others, the stockholders of said banking company, elected five directors, according to the provisions of the act of March 21, 1851, entitled “ an act to authorize free banking.” The directors so elected were duly qualified, and entered upon the duties of their office.</p> <p>Immediately thereafter, on the 18th of December, 1851, the company proceeded to transact banking business in Steubenville, Jefferson county, Ohio, under the name of The Citizens’ Bank of Steubenville, which business, so transacted, included loaning money, buying, selling, and discounting bills of exchange, receiving deposits, buying and selling gold and silver coin and bullion, and transacting all other business properly appertaining to banking, except the issuing of notes for circulation.</p> <p>State bonds to the amount of ten thousand dollars were left with the auditor of state soon after the 22d day of January, 1852, for the purpose of receiving notes for circulation to that amount.</p> <p>The president of the bank, in an interview with the then auditor of state, John Woods, as to the amount in bonds necessary to be deposited, was informed that the sixty per *centum was not necessary to be deposited; that this construction was made by the department, and that this was the practice in his office. And in the interview subsequently with Mr. Morgan, the same construction was given to the law; and, in fact, only twenty thousand dollars in notes had been prepared by the authorities of the state, and the refusal to deliver the circulating notes was wholly on the ground that the act was not in force by reason of the operation of the constitution of 1851.</p> <p>Auditor Woods’ term expired and auditor Morgan’s commenced January 12, 1852.</p> <p>The auditor of state refused to issue such notes for circulation to said company, and requested its officers to make application to the Supreme Court, then in session at Columbus, for a mandamus, in order that their right to demand notes for circulation might be determined; which they declined to do, and withdrew said bonds; and the banking company never, before or afterward, offered to deposit any other stock issued by the State of Ohio, or by the United States, or any other state, with the auditor of state of the State of Ohio.</p> <p>No election of directors was ever held after the first Monday of January, 1855. On the fourth day of May, 1857, William D. Nash and William Stanton were appointed directors, to fill vacancies, by the remaining directors.</p> <p>The last meeting of directors was held on the 24th day of August, 1857, and after that date the president and cashier passed upon paper that was offered for discount, without the concurrence of any director.</p> <p>No minute of proceedings of any of the officers of the bank was kept after the 25th day of April, 1859, except the proceedings of the stockholders’ meeting, held on the 4th day of October, 1859.</p> <p>Plaintiff, at and before the making of said deposit, had no information or belief as to the true character of said Citizens’ Bank of Steubenville. He believed the institution to be solvent, and relied upon it for his Security. He had heard and knew the fact that Colonel James Collier, a gentleman of reputed wealth, was president of the bank.</p> <p>The defendants never held themselves out to the plaintiff, *nor to any other persons, as partners ; and they acted in good faith, believing themselves to be incorporated ; and up to the time of the failure of the bank, all of the defendants, with the exception of Edwin D. Collier, believed the bank to be solvent.</p> <p>The certificate of deposit set forth in the plaintiff’s first cause of action, was given on the day of its date, and, together with another certificate of the same date, includes the principal and the interest that had accrued thereon, said principal being $2,594.81, and which had been deposited in said bank in the early part of April, 1859, bearing interest at the rate of four per cent, per annum.</p> <p>Said banking company commenced to receive deposits, agreeing at the time of making the deposit to pay interest thereon, on the 21st day of December, 1851, and continued to receive such deposits of money bearing interest, until the 28th day of September, 1859, and continued to transact banking business, as above found, until the 29th day of September, 1859, when it suspended payment, was insolvent, and made an assignment for the benefit of creditors.</p> <p>James Collier was the acting j>resident of. said banking company during the whole period in which it transacted business.</p> <p>Edwin D. Collier was acting as teller of said banking company during the same time.</p> <p>Joseph Means acted as a director of said banking company from its organization to the 24th day of August, 1857.</p> <p>William D. Nash and William Stanton acted as directors of said banking company from May 4, 1857, to August 24, 1857.</p> <p>William Elliott, William Waggoner, Jr., David McGowan, John A. Collier, and Robert Mears were stockholders in said banking .company from the time of its organization to the time when it stopped payment; and knew that banking business was transacted there by the cashier, teller, and clerk, for the benefit of the stockholders ; and had deposit accounts with said banking company; and knew that the cashier, teller, and clerk were in the habit of receiving deposits of money, and agreeing to pay interest thereon for a long time prior to April *1,1859, on behalf of said banking company, and that they continued to receive deposits of money, and agreed to pay interest thereon on behalf of said banking company, until within a few days before the failure of said banking company; and they acquiesced in the acts of the cashier, teller, and clerk; and the said James Collier, president, and Edwin D. Collier knew of, and were the parties, together with the cashier and clerk, who transacted the business of receiving such dejjosits on interest. None of said parties took any measures to prevent the receiving of such deposits on interest, or the transaction of such banking business. Said Edwin D. Collier, John A. Collier, William Elliott, William Nash, and William Waggoner, Jr., received semi-annual dividends from time to time, as stockholders in said company, the last in the months of May and June, 1859 ; and David McGowan received dividends from time to time, as such stockholder, the last on December 2, 1858.</p> <p>After the failure of said banking company, there was a meeting of stockholders called by the president, which met on the 4th day of October, 1859, and the following stockholders were present: Eunice Collier, E. D. Collier, James Collier, John A. Collier, Andrew Bustard, B. T. E. Dohrman, Margaret Dohrman, William Elliott, Wm. Inglebright, Robert Mears, Joseph Means, David McGowan, "William D. Nash, James O’Neal, Eezin Permar, William Stanton, D. W. Stier, Emanuel Thornpont, and Ann Ward, representing 803 shares of stock in the aggregate; and. the following resolution was passed:</p> <p>“ Resolved, That all the moneys, credits, and assets, together with the books, papers, and correspondence of the bank, be handed over and delivered to Geo. W. McCook, as attorney, to collect, adjust, and settle, and distribute and pay over proceeds to the creditors of the bank without preference.”</p> <p>James O’Neal, Henry G. Comingo, David W. Stier, Ann Ward, and Onias Clark died after the commencement of this action; and A. H. Dohrman, John S. Patterson, Thomas Johnson, James Turn-bull, Charles 0. Beatty, Thomas S. Hening, Peter A. Dohrman, Bernard Scullion, and George McGuire *were not the holders of any of the stock of said banking company when the plaintiff’s cause of action accrued.</p> <p>Judgment was thereupon rendered in favor of the defendants and against the plaintiff for costs.</p> <p>To reverse this judgment, a petition in error was filed in the district court, which was reserved for decision in this court.</p>

<p>1. The state has power to tax shares in the national banks located in Ohio, subject to the limitations that such tax shall not exceed the rate imposed upon other moneyed capital of individuals, nor that imposed upon shares in the state banks, as provided in the act of Congress of June 3, 1864.</p> <p>2. The shares in national banks thus to be taxed, are to be understood as the individual property or dioses of the stockholders, as contradistinguished from aliquot parts of the capital and property of the bank, and as such, may be taxed at their full value without deduction for the franchise, for real estate otherwise taxed, or for untaxable bonds owned by the bank.</p> <p>3. The necessary equivalent tax upon shares in state banks, need not be assessed directly upon shares therein, but maybe assessed upon the capital and property of the banks, provided only that it be a full equivalent. The limitation as to “other moneyed capital,” refers merely to the percentage of tax to be levied.</p> <p>*4. The act of April 4,1861 (58 Ohio L. 59), imposing a tax upon the capital, [6!5 profits, and time-deposits of the branch and independent banks of Ohio, imposes no tax upon the stockholders in said banks; and the tax so imposed upon the capital, is subject to a deduction for United States bonds, as well as for real estate owned by the banks; and the tax thus imposed is not, therefore, a full equivalent for the state tax so authorized upon shares in the national banks, and provided for in the Ohio act of April 2, 1865.</p> <p>5. Said branch and independent banks, having now no remaining corporate powers, except those necessary to closing their business, have ceased to be banks within the meaning of said act of Congress.</p> <p>6. Where such tax upon shares in national banks exceeds the rate of that imposed upon the banks of the state, its collection will only'be enjoined upon, payment of a sum which shall be a fair equivalent for the tax on the state banks.</p>