Volume 17 — Ohio State Reports, New Series

<p>1. In a proceeding by and before county commissioners, under the act of March 24,1859 (1 Curwen’s Stat. 3206), “ to provide for locating, establishing, and constructing, ditches, drains, and water-courses,” where there is a substantial misdescription of the proposed locality of the ditch in the published notice of the proceedings to non-resident landowners to be affected thereby; where the report of the surveyor or engineer is silent as to the “ availability” of, and “ necessity” for, the proposed ditch, and as to how “ adjoining lands are to be affected thereby;” and where the record of the proceedings shows no finding by the commissioners that the ditch is “ necessary, and that the same is demanded by, or will conduce to, the public health, convenience, or welfare;” these are each such defects and errors in the-proceedings as are fatal to their validity.</p> <p>2. But since the taking effect of the act of March 24, 1864 (61 Ohio L. 57), “ supplementary to the act to provide for the locating, establishing, and. constructing ditches, drains, and water-courses,” a court ought not, by reason of such defects and errors, to perpetually enjoin the collection of an assessment to pay for the making of a ditch, but ought to set aside the proceedings and orders of the commissioners, and allow the parties seeking such injunction to pursue the remedies authorized by said last-mentioned act.</p> <p>3. Said last-mentioned act is not in derogation of section 28 of article 2 of the constitution of Ohio, but is in conformity with the grant of legislative power conferred by it.</p> <p>*4. Where a legislative acts imply provides, in general terms, for notice ,by publication, of the pendency of a proceeding under it, to non-resident landowners who are to be affected by the proceeding, it is sufficient if such published notice be addressed to the “ non-resident owners of the following lands, to wit” (describing the lands).</p>

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

<p>Appeal. Reserved in the district court of Warren county.</p> <p>This is a civil action brought by the plaintiff to perpetually enjoin the defendants from cutting through the west bank of the Warren County canal, so as to cause the waters of Shaker creek to flow, as they did before the canal was constructed, through lands since purchased by the plaintiff.</p> <p>A provisional injunction was allowed by a judge of the common jileas.</p> <p>The case was taken to the district court by appeal, and therein reserved to this court upon the following findings of fact:</p> <p>The waters of Shaker creek originally .crossed the line of the Warren County canal opposite the mouth of the new channel cut for the creek by the Shaker Society, in 1825. This artificial channel was dug by the Shaker Society for the purpose of shortening the channel of the creek through their lands, on the east side of the line of the canal, and terminated a short distance east of the line of the canal. Near the termination of this artificial channel, the ground there being low, the water of the creek began to spread, having no distinct or well-defined channel, and, about twenty rods west of the line of the canal, united with the waters of Miller’s run, which came in from the south. The waters of these two streams, meeting in low ground covered with woods, spread out over some three or four hundred acres of land called Shaker Swamp, one or two hundred acres of which is now owned by the plaintiff and one William Thompson. Through this swamp, in which were logs and bodies of fallen trees, the water had no distinct channel for about three-quarters of a mile; but the outlet of the swamp was in a northwest direction from the point where Shaker creek entered the swamp, ^whence said waters continued to flow in a channel, in a northwest direction, through the lands of plaintiff and Thompson, into a stream forming one of the sources of Dick’s creek.</p> <p>About the year 1835, the Wai’ren County canal was constructed along the east line of the farm now owned by the plaintiff, having its west embankment on his land. The waters of Shaker creek were intercepted by this canal, into which it flowed from the east; and at this point, on the west embankment of the canal, a waste-weir was constructed by the state for the passage of the surplus water; but, eighteen months afterward, not answering the purpose intended in times of freshets, for want of sufficient fall, this waste-weir was removed by the state, to a point a mile and a quarter farther north, and thence the surplus water flowed into Dick’s creek. The waters of Shaker creek thenceforward flowed into and were mingled with the waters of the canal, and were discharged therefrom through said wasto-weir.</p> <p>About the year 1847 or 1848, a breach took place in the west bank of the canal near this waste-weir, which has never been repaired, nor since that time have any repairs been made on the canal by the state; but the canal has been, in fact, abandoned for purposes of navigation by the state, as one of its public works, and has not been navigated by boats or capable of ■ navigation since 1850. The waters of Shaker creek being prevented, by the west embankment of the canal, from flowing as they had been accustomed to flow before the construction of the canal, were, by reason of the breach in it, discharged through the broach, and flowed to and upon the lands of the defendants, and thereby, in times of freshets, their lands are overflowed to the extent of from one hundred to two hundred acres in all.</p> <p>When restrained by order of the court, the defendants were preparing to cut the west embankment of the abandoned canal, at the point where the waters of Shaker creek' originally crossed the same, and had received the authority of the board of public works therefor, under the act of April 29,1854. 52 Ohio L. 69.</p> <p>By such cutting, a large quantity of the lands of the plaintiff, which are now capable of cultivation, would be again *overflowed, as before the construction of the canal, unless such overflow bo prevented by cutting a channel three-quarters of a mile long through the plaintiff’s lands.</p> <p>The plaintiff purchased his farm in 1847, before the breach in the canal occurred, excepting fifty acres which he purchased in 1854.</p> <p>The defendant Naylor owned a portion of his land, affected by the present flow of Shaker creek through the breach in the canal bank, as early as 1828. The residue of Naylor’s lands, and the lands of the other defendants, were purchased by them, severally, between the years 1847 and 1854.</p>

Schnorr sued Hoagland before a justice of the peace of Holmes county. The case was continued from April 10 to April 21 1863, at 10 o’clock a. m., for trial.

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

<p>Motion for writ of error to the court of common pleas of Logan county.</p>

<p>Error to the court of common pleas of Hocking county. Reserved in the district court.</p> <p>This was an action brought in the court below to recover the possession of a tract of land, now lying in Hocking county, but formerly embraced within the limits of the county of Athens.</p> <p>The land in controversy was sold by the auditor of Athens county, in 1823, for delinquent taxes, penalties, etc., charged thereon in the years 1820, 1821, 1822, and 1823 ; and the plaintiff in error, who was also plaintiff below, claims title under said sale for taxes, and a deed of conveyance made pursuant thereto, in 1835, by the auditor of Athens county.</p> <p>It appears from the record that the cause was submitted to the court below, without the intervention of a jury, upon an issue as to the validity of the plaintiff’s said tax title — the parties mutually agreeing that if the auditor’s deed should be adjudged valid by the court, then the plaintiff should have judgment; otherwise judgment to be entered for the defendant.</p> <p>Upon the trial, the plaintiff offered in evidence the deed of the auditor, purporting to convey to him the premises in controversy. To the introduction of the deed in evidence, the defendant objected, but the court overruled the objection, and the deed was admitted in evidence; and thereupon the plaintiff rested his case.</p> <p>*The defendant, after excepting to the admission of the auditor’s deed in evidence, proceeded to offer sundry items of documentary evidence, and among them an abstract from the delinquent list of the year 1822, regularly certified, from the auditor’s office of Athens county. This abstract embraces the lands in controversy; shows the amount-of tax assessed thereon for 1822, and that the taxes thereon, for the years 1820 and 1821, were delinquent ; and exhibits also the commencement and close of the list) which purports to be verified by a certificate of the following tenor:</p> <p> .“State of Ohio, Athens County: </p> <p>“ I hereby certify that the foregoing is a correct list of lands returned, 1822, as delinquent, by me, to the county auditor. Given under my hand this 1st day of January, 1823.</p> <p>“ Calvary Morris, C. A. C.”</p> <p>Upon the evidence submitted by the parties, the court found the plaintiff’s tax title to be invalid, and rendered judgment for the defendant; to reverse which, the plaintiff filed his petition in the district court, where the case was reserved for the decision of this court.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>The plaintiff filed her petition on the 5th of February, 1858, in the Superior Court of Cincinnati, against Casper Hopple, stating that prior to the 14th of August, 1810, she was married to David L. Carney, who died in 1856. That during coverture with her he was seized of an estate of inheritance *in certain premises in Cincinnati, in which she is entitled to dower. And she asks that dower may be set off to her.</p> <p>The defendant filed an answer and cross-petition, stating that on the 14th of August, 1810, an indenture was made between David L. Carney and William Barr, whereby Carney, in consideration of 11,200, bargained and sold, and thereby intended and attempted to convey and confirm unto said Barr, his heirs and assigns forever, the premises described in the petition; and the said Carney therein covenanted and agreed that he and his heirs would warrant and defend the premises unto Bai'r, his heirs and assigns, against all persons claiming or to claim by, from, or under him, them, or any of them, or by, from, or under any other person or persons whomsoever.</p> <p>The testatum clause was as follows: “In witness whereof, the said David L. Carney and Sarah his wife, who hereby relinquishes her right of dower in said premises, have hereunto set their hands and seals the day and year first above written.”</p> <p>This indenture was signed and sealed by the plaintiff and her husband, but there was but one witness attesting their execution, the witness being James Kennedy, a.justice of the peace of Campbell county, in the State of Kentucky, before whom the deed was acknowledged. The acknowledgment is as follows :</p> <p> “ State of Kentucky, Campbell County, ss : </p> <p>“Before me, the undersigned, one of the justices of the peace> came personally David L. Carney, and Sally B. Carney, his wife» the within grantor, who acknowledged the within indenture to be their voluntary act and deed, for the use and purposes therein contained. In testimony whereof, I have hereunto set my hand and affixed my seal this 16th day of August, in the year 1810.</p> <p>Tseal.j “James Kennedy.”</p> <p>The answer and cross-petition avers that at the time of the execution and delivery of this indenture, Carney was seized of an estate in fee simple; that it was made in pursuance of % previous agreement between Barr and Carney, and the plaintiff, his wife, whereby they agreed, for the consideration stated, to convey their entire interest; that the consideration was paid, and the indenture was prepared for the purpose of completing the conveyance of the title and estato of the plaintiff as well as of her husband, and was signed, sealed, acknowledged, and delivered by them, and was accepted by Barr, who took possession in the full belief that it expressed the intention and effectuated the agreement between the parties.</p> <p>The defendant, who acquired the title and possession of Barr in 1827, asks to be relieved against the errors and omission in the indenture, and that the plaintiff might be enjoined from prosecuting her claim for dower.</p> <p>The plaintiff’s reply denies that she executed the deed, or that she acknowledged it, or agreed to convey her interest in the property.</p> <p>Casj>er Hopple having died, his heirs have been made parties defendant.</p> <p>On the trial the defendants offered in evidence, to sustain their defense and counter-claim, a deed from David L. Carney to William Barr, dated August 14,1810, for the premises described in the petition ; and gave evidence tending to prove that the deed was signed by the plaintiff and her husband, David L. Carney. The deed was admitted in evidence, subject to the exceptions of the plaintiff.</p> <p>The further proceedings on the trial, as shown by the bill of exceptions, were as follows:</p> <p>“It was admitted by the counsel for'the plaintiff and defendants, that said David L, Carney, at the date of said deed, was seized in fee simple of said premises, and he and plaintiff were husband and wife; and that David L. Carney died prior to the institution of this suit; and that defendants’ ancestor was in possession of said premises when this suit was instituted, having derived title by deed from William Barr.</p> <p>“ It was also admitted that James Kennedy, at the time.of taking the acknowledgment to said deed, was a justice of the peace in and for Campbell county, and that he is dead, *and that his signature thereto was genuine, and that at no time was a justice of the peace in Kentucky authorized to take acknowledgments of deeds.</p> <p>“ That was all the evidence offered in the case. And thereupon the plaintiff, by her counsel, asked the court to decide that said deed was not competent evidence to show that the plaintiff had released or agreed to release her dower right; and also to decide that said deed did not bar the claim of the plaintiff for her dower in the premises, as set forth in the pleadings, and did not authorize the court to render a judgment or decree requiring the plaintiff to make any other deed which should have the effect of transferring her right or title of dower in said premises. But the court refused to decide as requested, and did decide that said deed was admissible as evidence in the cause to sustain the counter-claim.”</p> <p>Thereupon the court found the issues for the defendants, and ordered the plaintiff to convey her interest to the defendants by a deed properly executed and acknowledged, and in default thereof that the judgment should operate as such conveyance; and that she be enjoined against setting up any claim to the premises in question.</p> <p>To the rulings and judgment of the court the plaintiff duly excepted, and now prosecutes this petition in error for their reversal.</p>

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

<p>Error to the Superior Court of Cincinnati.</p> <p>The president and trustees of the Medical College of Ohio, being seized in fee simple of certain real estate in the city of Cincinnati, described in the pleadings, issued their bonds for the purpose of raising money to erect a college-building thereon, and, to secure the payment of the bonds, executed four mortgages upon the real estate, which were duly recorded in the proper records in Hamilton county. The first was dated May 1,1851, and given to secure forty bonds for $500 each, payable May 1,1861, with interest at the rate of ten per cent, per annum. The second was dated November 1,1851, and given to secure forty bonds for $500 each, payable November 1, 1861, with interest at the same rate. The third was dated November 1,1852, and given to secure twenty bonds for $500 each, payable May 1, 1861, with interest at the same rate. The fourth was dated November 1, 1854, and given to secure twenty bonds for $300 each, payable November 1, 1859, with like rate of interest.</p> <p>The object of the original petition of Philip Zeigler, and of the cross-petitions of the Cincinnati Equitable Insurance Company and the other bondholders, was to have the foreclosed 17 and the mortgaged premises sold, under the order of the court, to-pay the bonds.</p> <p>*To the petition of the plaintiff the corporation filed its answer, and amended answer, admitting the issue of the bonds, and execution of the mortgages securing the same, and the liability thereby imposed, but denying the right of the bondholders to a judgment for the absolute sale of the corporate property, on the ground that prior to the act of March 21,1851, the corporation had no power or authority to borrow money or execute a mortgage, and only derived such power by virtue of said act.</p> <p>“ That by virtue of said act it was empowered to borrow money,, and to execute a mortgage on its real estate, to secure the payment thereof, under certain conditions and ^imitations therein named, among which are these, to wit: ‘Provided, that in the event of a mortgage of said property, the proceeds thereof be appropriated to the erection of a building on the lot on which the present building-is erected, in which shall be taught regular scientific medicine, as-contemplated in the various acts creating the Medical College; and provided further, that no sale of said property, by reason of said mortgage, or otherwise, shall impair the right of the state to the-medical attendance now by law provided and required for the Commercial Hospital and Lunatic Asylum at Cincinnati: provided, moreover, that the premises so authorized to be mortgaged shall ever be occupied and used for the purposes of a medical college, as-contemplated by the acts relating to the Medical College of Ohio; and the professors and faculty of medicine hereafter so using and occupying said premises, shall always furnish medical and surgical attendance at the Commercial Hospital and Lunatic Asylum of Cincinnati, as required by the acts relating to the Medical College and said Commercial Hospital and Lunatic Asylum.’</p> <p>“ That said real estate, mortgaged as aforesaid, is all the real estate then and now owned by said college. • • • That the money borrowed on said bonds and mortgages was expended in the erection of a very large and substantial building, which covers the entire lot described in said mortgages; that the lower story of said building is divided into six store-rooms, each 72 feet long by 14 feet wide; that on the second floor there are eight rooms, six in front, each 14 *feet wide by 19 feet long; the other two are each 14 feet wide by about 42 feet long; that on the third floor there are three front rooms, 14 feet wide by 19 feet long, and one other room; and that none of the rooms so described are necessary to the business of the said Medical College.</p> <p>“ That the building also contains the following rooms, which are necessary for the business of the college, and without which the college could not be continued in the building, viz.:</p> <p>“ 1. The lower lecture room.</p> <p>“ 2. The amphitheater, or upper lecture room.</p> <p>“ 3. Two small rooms back of the lower lecture room.</p> <p>“4. The library room.</p> <p>“5. The museum.</p> <p>“ 6. The dissecting room.</p> <p>“ 7. The room in the attic story used by the professor of anatomy surgery, and obstetrics.”</p> <p>The corporation, in its answer, then asks that the parts of the building so alleged to be necessary for its corporate uses, may be excepted from any decree of foreclosure and sale which may be entered in the cause, and that its rights thereto may be established and saved by the court.</p> <p>Answers and cross-petitions were filed on behalf of many persons, holders of said bonds, and the same relief asked for by them as by the plaintiff.</p> <p>To the answers of the Medical College, a demurrer was filed and sustained, and a decree rendered by the Superior Court, sitting in special term, .for the sale of the property covered by the mortgages, without reservation to the corporation of any part thereof.</p> <p>To this judgment the defendant excepted, and filed a petition in error, in the general term of said court, to reverse it. In the general term, the judgment rendered at the special term was affirmed, and the Medical College now brings this action to reverse such judgment.</p>

<p>Error to the district court of Carroll county.</p> <p>The original action was brought by the plaintiff in error against the defendant in error and one Samuel Mack. The plaintiff’s petition, in the common pleas, averred that said Moses Cairnes and Samuel Mack, on the 15th of March, 1853, executed and delivered to her an instrument in writing, of which the following is a copy:</p> <p>“ Know all men by these presents, that we, Moses Cams and Samuel Mack, do firmly bind ourselves, and heirs and *executors, administrators and assigns, unto Isabella Cams, wife of Michael Cams, deceased, in tbe sum of three hundred dollars, so as to secure unto her the sum of sixteen dollars and sixty-six cents and two-thirds of a cent, annually, from the fifteenth day of March, A. D. 1853, during her natural lifetime: it being my jiortion of annuities due her by me, the said Moses Cams first named, bequeathed to her by her said husband, Michael Cams, deceased. Now this contract is on this condition, which if the said Moses Cams do faithfully pay, or cause to be paid, the above-named sixteen dollars and sixty-six cents and two-thirds of a cent, annually, to the said Isabella Cams, or order, during- her natural life, then this is to cease at her decease; otherwise to be liable for the whole, with interest, if default be made any time after the fifteenth day of March, one thousand eight hundred fifty-four.</p> <p>“Moses Carns,</p> <p>“Attest: “ Samuel Mack.”</p> <p>“Thomas Knight.”</p> <p>The petition then alleged that defendantss failed to pay the installment due March 15, 1860, and demanded judgment for said sum of $300, less the prior installments which had been paid.</p> <p>The executor answered, insisting that no more than the $16.65 was due, and alleging that he had not paid the same because the plaintiff resided in Illinois, and had never demanded its payment.</p> <p>No answer was put in by Mack.</p> <p>The plaintiff demurred to the answer of the executor, and the court sustained the demurrer, rendering a judgment against the-defendants for $299.</p> <p>The executor filed a petition in the district court to reverse this judgment, but without making Mack a party thereto, and the judgment was accordingly reversed.</p> <p>No objection was taken in the district court for defect of parties and now a petition is filed here to reverse the judgment of the district court, the errors assigned being:</p> <p>1. That Mack was not made a party to the petition in error. *2. That the judgment of the common pleas should have been affirmed.</p>

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

<p>Where, under the first clause of' section 360 of the code of civil procedure, the plaintiff moves the court to compel the defendant to produce, at the trial, a writing claimed to be in his possession or power; and there is no admission, by the defendant, in his pleadings, of the .possession or control of such writing by him; and the defendant, by his affidavit submitted in response to the motion, denies alike the existence, and his possession and control of such writing — it is error for the court to assume to decide in faVor of the plaintiff, upon affidavits, the question of fact thus made, and thereupon to render judgment as by default against the defendant. On the coming in of the defendant’s affidavit aforesaid, the court ought to overrule the plaintiff’s motion, and leave him to the resources afforded by the ordinary rules of evidence.</p>

<p>Error to the Superior Court of Montgomery county.</p> <p>The original action was brought, in the court below, by the defendant in error as the holder, against the plaintiff in error as the drawer, of a draft or order of the following tenor:</p> <p>“ Dayton, O., June 1,1861.</p> <p>“ Dayton Branch, State Bank of Ohio, pay to cash or bearer one hundred dollars.</p> <p>“$100. W. W. Stewart.”</p> <p>*The petition of the plaintiff below designates this instrument as a bank-check; alleges that it was drawn by Stewart, and delivered to a firm doing business under the style of Davis & Cuppy, by whom it was transferred to the plaintiff for value; that he afterward presented it to the drawee for payment; that payment was refused because the drawer had no funds in the bank at the time of presentation; that the plaintiff thereafter, on the same day, presented it for payment to the defendant Stewart, giving him notice of its dishonor, and that he refused payment. He thereupon asks judgment for the amount of tho chock, with interest.</p> <p>Stewart, by answer, avers that said order was in fact drawn on the 1st day of May, 1861, and post-dated June 1,1861, to fix the time of its payment; that it was drawn without consideration, for the accommodation of the said Davis & Cuppy, who promised to provide for its payment at maturity; of all which the plaintiff had notice when it was transferred to him. He denies that it was presented to the bank for payment at its maturity, and also denies due notice of non-payment, and alleges that he had funds in the bank for its payment at maturity.</p> <p>The plaintiff below replied, traversing the averments of the answer as to the time when the check was drawn, and the alleged purpose for which it was post-dated, and denying notice of the other facts set up in the answer.</p> <p>Upon the issues thus joined, the court found for the plaintiff below, the intervention of a jury having been waived by the parties.</p> <p>Stewart, the defendant below, moved for a new trial,'for the reason that the finding of the court was not sustained by sufficient evidence, and was contrary to law.</p> <p>This motion was overruled, and Smith had judgment.</p> <p>A reversal of this judgment is now asked, on, the ground that the motion for a new trial should have been .granted, and for the supposed errors alleged in the motion.</p> <p>A bill of. exceptions was taken, upon the trial, embodying the evidence, which shows the following facts:</p> <p>The order in suit was drawn by Stewart about the 1st of May, 1861, and post-dated June 1,1861, without valuable *consideration, and for the accommodation of Davis & Cuppy, to enable them to raise money upon it by negotiating or pledging it as security; they promising Stewart that they would provide for its payment, when the time of its date should arrive. It was negotiated on the 8th of May, 1861, to Smith, as collateral security for $100 loaned by him at the time to Davis & Cuppy. There was an understanding that it was to be returned by Smith to Davis & Cuppy for payment; but it was received and held by Smith until after suit brought, in ignorance that Stewart was an accommodation drawer, and of the agreement for its payment by Davis & Cuppy.</p> <p>Smith presented it for payment, or redemption, to Davis & Cuppy about one month after its date, and, at their instance, agreed to retain it another month, upon their paying the interest due. A month thereafter he again presented it to the same parties, who failed to pay it. Davis & Cuppy failed in business August 27,1861. About a week thereafter Smith presented the order to the Dayton Branch Bank for payment, and upon its refusal to pay, demanded payment on the same day from Stewart.</p> <p>From the 1st day of May, 1861, till the 20th day of September following, Stewart had on deposit in said bank more than sufficient funds to pay the order, though he did not expect the check to be paid from these funds. The continued solvency of the bank was not drawn in question.</p>

Beserved in the district court. The original action was commenced in the court of common pleas of Knox county, by John McCormack, one of the ^-defendants in error, against Charles Cooper and a corporation known as The Five-Mile Furnace Company, and Bobert Wright and the seven other plaintiffs in error, who are stockholders in said corporation.

• The action below was brought January 17, 1863, by Price v. Calhoun, to recover possession of twenty-nine acres of land, part of a survey, the legal title to which was, before the 28th of December, 1850, vested in one Moncure. On that day an equitable claim, which had been set up by Price to the survey, was adjusted between him and Moncure, and they agreed to make an amicable partition, Moncure taking the southern and Price the northern part.

^Motion for mandamus. Reserved in the district court of Hamilton county. The case is stated in the opinion of the court.

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

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

Reserved in the district court. April 23, 1864, Umsted filed his petition in the court of common pleas of Seneca county, against Buskirk and fourteen other persons, stating in substance: That, October 21, 1862, he recovered a judgment against the American Central Railway Company, for the sum of $4,186.87 and $75.03 costs, on an order for $5,917.13, drawn by the company on its treasurer, July 1, 1859, payable to the order of Charles L. Johnson.

Appeal. Reserved in the district court of Logan county. This is a bill in chancery, filed in the common pleas of Logan county on the 30th of December, 1852. From the papers in the case, these facts appear: In October, 1841, Otho Johnson sold and conveyed to Jacob Keely the following lands: E. W. qr. of sec. 34, T. 3, R. 14. S. W. “ “ 35, “ 3, “ 14.

<p>Error to the Superior Court of Montgomery county.</p> <p>Miriam H. Anderton and James Anderton, her husband, brought their action, in the Superior Court of Montgomery county, against George W. Shoup, as trustee for Harriet Shoup, on the following instrument :</p> <p>“Dayton, August 11, 1861.</p> <p>“ Dayton branch, State Hank of Ohio, pay to J. B., or bearer, two hundred thirty dollars.</p> <p>“ |230. Samuel Shoup, Agent.”</p> <p>The various questions that arose in the progress of the ease, resulted, substantially, in one upon demurrer to the amended petition.</p> <p>It is averred in the petition that Samuel Shoup, and Harriet his wife, conveyed the property of the said Harriet to the defendant in trust, with authority to use the property in carrying on milling and other business for her benefit, and to employ an agent to assist in such business; that the defendant appointed Samuel Shoup such agent, who, in prosecuting the business, opened an account, in the name of the defendant, with the *bank named in said instrument, and was in the habit of checking out funds on such account, for the defendant, by checks signed with his own name as agent, with the knowledge and approval of the defendant; that, on the 29th day of July, 1861, he drew said “ draft or check ” and dated it August 11,1861, and delivered it to Davis & Cuppy, from whom the plaintiffs obtained it, for a valuable consideration, “ before it was due ;” that the defendant had no funds in said bank when the draft was drawn, nor did he, until after its maturity; and that payment was refused by the bank.</p> <p>The demurrer to the petition was sustained, and judgment was rendered for the defendant; and this petition in error is brought to reverse that judgment.</p>

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

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

^Appeal. Reserved in the district court of Hamilton county. On the 12th of May, 1853, the plaintiff, William Resor, contracted with the defendant, the Ohio and Mississippi Railroad Company, to-sell and convey to that company a perpetual leasehold interest in a tract of land, for the consideration of $8,000 of their capital stock. At this date the plaintiff had title only to an undivided moiety of the estate.

At tbe February term, 1867, of Greene county common pleas,, the plaintiff in error, was indicted for forgery. The indictment contains two counts; plea, not guilty. Trial had: verdict, guilty, as charged in the first count; and not guilty, as charged in the-second. *The first count charges, with date and venue, that Bynam falsely made and forged an order for the .payment of money, of the. tenor following: “ M. C. & Co. — Pay Binam $5.75.

Application to a judge at chambers to dissolve an injunction in a cause pending in the court of common pleas of Bichland county The case is sufficiently stated in the opinion.

<p>The provisions of section 27 of the act relating to lunatic asylums (S. & C. 815), in regard to the return of patients from the asylum to the county from which they were sent, apply only to patients having a settlement in the county, and do not require the return of non-residents sent from the county to the penitentiary, and thence transferred to the asylum.</p>

*John Rhea died testate, April 30, 1832. His will, duly probated, contained, among other provisions, the following: “ I give and bequeath to Joseph P. Wilson ” [one of the defendants in error] “ and his heirs, forever, one hundred acres of land, out of any part of the tract I now own, that my sister, Elizabeth Dick, may choose, to- be held by said Joseph P. Wilson and his-heirs, as hereinafter provided.

<p>Error to thq district court of Darke county.</p>

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

Ee.served in the district court. The original action was brought, in the court below, by the defendants in error, Wick Brothers & Co., as the indorsees *and holders of two negotiable promissory notes, to recover of the plaintiffs in error as the makers, and of W. & C. E. Porter as the indorsers thereof. These notes were for $1,000 each; were dated June 18, 1859, and were payable to the order of W. & C. E. Porter, three months after date, at the Iron City Bank, Pitts-burg, Pa.

Civil action. Reserved in the district court of Preble county. October 3, 1850, Christena Reed, of Preble county, being aged, unmarried, and childless, executed her last will and testament, in extremis, and died within a few hours thereafter. For many years previous to her death, the testatrix had resided in the family of her niece, Jane Foster, wife of Rev. Alexander M. Foster, and was much attached to her children. The items of the will read as follows: “ Firstly.

<p>Reserved in the district court of Logan county.</p> <p>The petition in this case is filed by Aquilla Jones and wife, and by James Hinton and wife, and states, in substance:</p> <p>That in the year 1826, or 1827, Benjamin Dawson, the ancestor of Mrs. Jones and Mrs. Hinton, died intestate, in Frederick county, Virginia, seized of the lands in the petition described.</p> <p>That in the year 1827, Ann Dawson, his widow, made a deed, in fee simple, to Robert MoOay for the same premises.</p> <p>That in 1832 McOay produced to the county court of Frederick county, Virginia, a paper writing, without date and without signature, purporting to be the last will of the said Benjamin Dawson, and proved by the oaths of two witnesses that the writing was all in the hand-writing of the supposed testator.</p> <p>That the paper writing, without being found by the court to be the last will of said Benjamin Dawson, “ was ordered to be recorded to have such effect as by law it is entitled to.”</p> <p>That in the year 1850 a certified copy of the record and ^probate of said alleged will was produced to the court of common pleas of Logan county, Ohio, and by that court admitted to record.</p> <p>That McCay conveyed the premises, which have by successive' conveyances become vested in part of the defendants named, who are in possession and claim title thereto.</p> <p>That Ann Dawson died before the probate of the alleged will.</p> <p>The heirs and legal representatives of Benjamin Dawson, and of Ann, his widow,, who are not plaintiffs, are made defendants, as well as the persons claiming title to the premises.</p> <p>It is averred in the petition that the plaintiffs, Caroline Jones, and Eliza Hinton, were, at the time the alleged will was probated, as claimed, in Virginia, and ever since have been, and still are, married women.</p> <p>The prayer of the petition is, that an.issue be made to try the validity of said pretended will; that it may be declared void, and the probate of the same canceled and held for naught; and that such other and further relief may be granted as may be equitable and proper.</p> <p>The following is a copy of the record and probate of the alleged will:</p> <p>“BENJAMIN DAWSON’S WILL.</p> <p>“Pleas before the court of common pleas within and for the county of Logan and State of Ohio.</p> <p>“At a court begun and held at the court-house in said county, on the 4th day of November, 1850. Be it remembered, that on the-25th day of November, of the term aforesaid, an authenticated, copy of the last will and testament of Benjamin Dawson, late of Frederick county, Virginia, was this day produced in court by Mr;. Casad; and it appearing to the satisfaction of the court that the-said will has been proved in said State of Virginia, according to-the laws of that state, and that the said will has relation to property within the said county of Logan, Ohio: therefore, on motion, it is ordered by the court, that the said authenticated copy be recorded in the records of wills for said county of Logan. *Said will is recorded in the words and figures following to wit:</p> <p>“ ‘I, Benjamin Dawson, of Frederick county, Virginia, being of sound and disposing mind, do make and ordain this to be my last will and testament.</p> <p>“ ‘ I give and bequeath to my dear wife, Ann, four hundred acres of land lying and being in the State of, Ohio, on Mill creek, in Logan county, being *a part of a tract of land that was surveyed for George McCredie, containing one thousand acres. And I do direct that my said wife shall have her choice of said tract, in the center thereof or at either corner, as she may choose, to her and her heirs forever.</p> <p>£!<I give and bequeath to my daughters, Lucinda Ann, Eliza Pope, Caroline Amanda, Harriet Claibourne, Sarah Catharine, and Maria Louisa, the residue of said tract of land, to be equally divided between them, or the survivor of them, according to quality, when they shall attain the age of twenty-one, or shall marry.’</p> <p>“At a court held for Frederick county, the 4th day of June, 1832, this paper, purporting to be the last will and testament of Benjamin Dawson, deceased, without date, and not subscribed by the testator, was produced to the court, and, there being no subscribing witnesses thereto, was proved to be altogether in the handwriting of the said Benjamin Dawson, by the affirmation of Jacob McKay, and the oath of Richard W. Barton, and was ordered to be recorded to have such effect as in law it is entitled to.</p> <p>“By the court,</p> <p>“T. A. Tidball, Clerk.”</p> <p> “ Virginia. </p> <p>“I, Thomas Allen Tidball, clerk of the county court of the-county of Frederick, do hereby certify that the foregoing is a true transcript from the records of the said county.</p> <p>“ In testimony whereof, 1 hereunto subscribe my name and affix the seal of the said court, the 19th day of February, 1849, and in the 73d year of the commonwealth.</p> <p>[seal.] “ T. A. Tidball.”</p> <p>“ Virginia.</p> <p>“ I, George Reed, a presiding justice of the county court *of the county of Frederick, do hereby certify that the foregoing attestation of Thomas Allen Tidball, the clerk of the said court, is in due form of law.</p> <p>“ Given under my hand and seal the 19th day of February, 1849</p> <p>[seal.] “ George Reed.”</p> <p>The defendants demurred to the petition, and the ease was reserved for the decision of this court.</p>

<p>1. Where a judgment is reversed, and the cause remanded for further proceedings, error will lie to reverse the judgment of reversal, while the cause is still pending in the court to which it has been so remanded.</p> <p>2. Where personal property has been seized' by the sheriff under writs of attachment, the sheriff and the attaching creditors can not, by virtue of their right under such proceeding, maintain a joint action to recover damages for its subsequent conversion or detention by a stranger.</p> <p>3. A verdict finding the right of possession in the defendants, and a judgment of the court, thereupon, that the property be returned to them, in an action of replevin in another state, is only prima facie evidence of property in the defendants, and may be rebutted by showing exclusive property in one of them.</p>

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

<p>1. A ruling or holding of an inferior court on an abstract legal proposition, not appearing by the record to be necessarily involved in the case, is not subject to review upon error.</p> <p>2. An answer, by way of defense, stating only such facts as constitute a bar neither to the whole nor to any part of the plaintiff's cause of action, may well be demurred to.</p>

Reserved in the district court. *The original action was brought, in the common pleas, by Devinney against the railway company, to recover damages for injuries sustained by him, while acting as brakesman on one of the company’s passenger trains going east, and which collided with one of its freight trains going west; the latter train being known as second section of number 11.

<p>Error to the common pleas of Butler county. Reserved in the district court.</p> <p>The original action was brought by the defendant in error against the plaintiff in error, upon four several promissory notes, of one of which the following is a copy:</p> <p>“$526.25. ' . New York, October 15, 1857.</p> <p>“Twelve months after date I promise to pay to the order of the Buckeye State Insurance Company of Cincinnati, five hundred and twenty-six 25-100 dollars, at the Bank of the State of Hew York, value received.</p> <p>“Edw’d K. Collins, Agent."</p> <p>The other three notes, except as to dates and amounts, are cf the same tenor.</p> <p>These notes were given for premiums on policies of insurance, procured by Collins from defendant in error, upon certain vessels of the New York and Liverpool Mail Steamship Company. The policies were taken in the name of ^Collins, and, although in fact he acted in the matter as agent for the ship company, neither his agency nor the name of his principal appears in the policies.</p> <p>The defense set up by Collins was, that defendant in error, at the time of executing the notes, had notice of his agency, and of the true ownership of the vessels, and that therefore the notes are in law the notes of the ship company, and he is not individually liable thereon to the payee.</p> <p>The defendant in error denied notice of the agency and ownership, and also insisted that Collins was liable, irrespective of the •question of notice.</p> <p>The cause was tried by the court, a jury being waived, and a bill of exceptions taken, embodying all the evidence. That evidence consists of the notes themselves, and of testimony on both .sides as to whether defendant in error had notice of Collins’ agency, and of the ownership of the vessels.</p> <p>The court found for defendant in error, and, after refusing a motion for a new trial, predicated upon the alleged ground that the finding was contrary to law and evidence, rendered judgment for the amount of the notes. To all which plaintiff in error excepted.</p> <p>The errors assigned are, that the court found for defendant in •error, and overruled the motion for a new trial.</p>

<p>The service of a summons on the return day is not void, but only voidable; and' if such service is, on motion of the defendant, set aside, the plaintiff may, under section 23 of the code, within the time therein limited, brine his ac~ tion anew, notwithstanding the time allowed for commencing the action may have expired between the time of instituting proceedings and the time- of setting aside the service.</p>

<p>Where the judges of the court of common pleas, under the act of April 12,1858, fixed the times for holding the courts of their district, and issued their order specifying that the several terms would commence at 10 o’clock a. m. on the day so fixed, which order was entered upon the journals of the courts, as required by said act; and where the journal of a court held under such order showed that the court convened on the day so fixed: Held—</p> <p>1. That under the provisions of said act, the record is conclusive evidence that the term of the court began at 10 o’clock a. m. on the day named in the order; and that it is not competent to prove that the court, in fact, opened at an hour later than that shown by the record.</p> <p>2. That the lien of a judgment, which under the statute began on the first day of the term, attached from 10 o’clock a. m. on the first day of the term of the court fixed pursuant to said act, although the court may not have convened until after noon on that day; and such judgment lien is prior to that of a mortgage delivered for record at 11 o’clock a. m. on the same day.</p>

<p>1. Upon the question whether slanderous words are actionable in themselves, as charging the plaintiff with crime, the general rule of the common law is, that where the charge, if true, would subject the plaintiff to an indictment for a- crime involving moral turpitude, or to an infamous punishment, the words are actionable per se; and otherwise not.</p> <p>2. One of two partners can not be guilty of burglary or larceny in respect to a house or goods of which the ownership and possession are in both partners. An entry of such house, and carrying away of such goods by one of the partners, would not subject him to a criminal prosecution, either at common law or by statute. Therefore, words charging a partner with such conduct are not actionable, without special damage.</p>

<p>1. Where an administrator has made settlement, believed by him to be final, of the estate of his intestate, and the personalty of the estate has been exhausted in the payment of debts, and of statutory allowances to the widow; and afterward an action is brought against the administrator on a liability contracted by the intestate, resulting, though contested in good faith, and with due diligence, in a judgment against the administrator, such judgment remaining unreversed and unsatisfied, is conclusive evidence of indebtedness against the estate, and can not be collaterally impeached for mere error.</p> <p>*2. In such case, the administrator is entitled to an order for the sale of so much of the real estate of which the intestate died seized, as may be-necessary to satisfy the judgment, although such real estate may have been' partitioned among the heirs of the intestate, and by them sold and conveyed, wholly or in part, to purchasers thereof.</p> <p>3. The debts of a decedent are a lien upon his real estate; and purchasers from his heirs take the same cum onere, and subject to the application of the maxim caveat emptor.</p>

<p>The implied liability of a surgeon, retained to treat a case professionally, ex tends no further, in the absence of a special agreement, than that he will indemnify his patient against any injurious consequences resulting from his want of the proper degree of skill, care, or diligence in the execution of his employment. And in an action against the surgeon'for malpractice, the plaintiff, if he shows no injury resulting from negligence, or want of due skill in the defendant, will not be entitled to recover nominal damages.</p>

<p>1. The finding of the court upon issues of fact, or a verdict of a jury, can- not be reviewed on error, when the record does not show that there was a motion for a new trial for the reason that such finding or verdict was against the law or evidence.</p> <p>2. A written assignment of a chose in action, unconditional on its face, in part execution of a contract not intended by the parties to be expressed in the assignment, is not conclusive evidence that the transfer was absolute, but the contract under which it was executed may be shown by other proof.</p> <p>3. A verbal agreement for the sale of lands, which has been fully performed on the part of the vendor, is not rendered void by the statute of frauds.</p> <p>4. When an answer of a guardian ad litem for an infant defendant does not, in express terms, deny the allegations in the petition as required by the code, but the record shows that it was regarded by the court as such denial, and that the plaintiff was required to prove such allegations: Held, that á judgment rendered against such defendant can not be reversed on error for want of such express denial.</p> <p>5. On petition in error to reverse a judgment of the district court affirming a judgment of the court of common pleas, this court is not bound to consider objections to the judgment of the common pleas that were not assigned for error in the district court.</p>

<p>Appeal. Reserved in the district court of Wood county.</p> <p>The plaintiff, by his petition, filed originally in the court of common pleas of Wood county, prays for a perpetual injunction restraining the defendant, as clerk of that court, from recording, in the journal of the court, the abstract of the vote in that county, upon the question of the removal of the county-seat from Perrysburg to Bowling Green, under the act of March 29,1866. 63 Ohio L. 58, 59.</p> <p>In his petition the plaintiff states, in substance:</p> <p>That he is a citizen and elector of the county, a resident and owner of real estate, and merchant, etc., in Perrysburg, and greatly interested in having the seat of justice remain there.</p> <p>*Thak the defendant is clerk of the court of common pleas of the county.</p> <p>That the electors of the county, at the general election held October 9,1866, voted on the question of the removal of the seat of justice of the county, from Perrysburg to Bowling Green, under the provisions of the act of March 29,1866, and that the defendant, as clerk, has in his hands an abstract purporting to show the number of votes so cast upon the question; and that he is about to record the abstract, in the journal of the court, whereby it will be made to appear that a majority of all the electors voting at said election cast their votes in favor of the removal of the county-seat. That the majority was not in favor of such removal, but against it. That plaintiff is informed by counsel and believes that the legal effect of such record will be conclusive to show and settle beyond further question, by evidence or otherwise, that such majority was in favor of such removal.</p> <p>That the general assembly have made no provision, either by general statute, or in said act, for contesting the validity of said election, and that he is entirely remediless, unless through the intervention of the court, and that without such intervention he will suffer great and irreparable injury and damage.</p> <p>That the poll-books returned by the judges of the election in showing a majority of the votes to be in favor of removal, are false- and fraudulent in the following respects :</p> <p>1. The judges of election returned, as cast “ for removal,” a number of ballots, to the extent of two hundred, upon which the word “removal ” only was indorsed.</p> <p>2. The judges returned, as cast “for removal,” a number of ballots, to the extent of three hundred, upon which the words “for removal” had been printed twice — -once at the bottom in large characters, and again surreptitiously interlined among the names of the candidates in the place of the designation of the office for which the candidate was running, the voters tearing off or erasing the words “for removal” at the bottom, intending to vote against removal, but were thus deceived and defrauded, and their votes should have been counted against removal.</p> <p>*3. The judges returned, as cast “for removal,” a number of ballots, to the extent of three hundred, upon which the words 11 for removal” had been fraudulently printed, in very fine type, among the names upon the state ticket, and that the electors were thereby deceived in voting such tickets, when they intended to vote against removal.</p> <p>4. The judges received, counted, and returned votes, to the number of three hundred, of persons not qualified to vote.</p> <p>That the whole majority appearing, even from these false and-fraudulent returns of the judges, in favor of the removal of the-county-seat, is only two hundred and seventy-eight. That a large majority of the valid votes is against removal. That the plaintiff has no means of legally showing or judicially establishing the facts, and has no other resort but this application for an injunction.</p> <p>That the frauds mentioned were perpetrated by persons unknown to the plaintiff, but who, he is informed and believes, were interested in the removal; that he believes the votes against removal were fairly and honestly cast; that the opponents of removal neither attempted any fraud themselves, nor permitted any fraud or illegal voting at the election ; that the plaintiff does not believe any fraud was practiced or illegal voting done by or with the connivance of the opponents of removal.</p> <p>That, as plaintiff is informed and believes, the said act of the. general assembly is unconstitutional and void.</p> <p>That there is, in fact, no such’town in Wood county as Bowling.. Green; that the only place of that name in the county is an incorporated village, and that there is no law authorizing the removal of the county-seat to such village, or authorizing any vote on such question.</p> <p>The plaintiff, therefore, prays for an injunction as stated.</p> <p>To this petition the defendant demurred.</p> <p>The court of common pleas sustained the demurrer and dismissed the plaintiff’s petition.</p> <p>The plaintiff, by appeal, took the case to the district court, where, upon an equal division of opinion, it was reserved for decision here.</p>

*Error to the district court of Trumbull county. November 6,1862, McEwen filed his petition against Alexander Fuller, in the court of common pleas, to recover the balance due on & note executed May 18,1854, by Davis Fuller, at Youngstown, •Ohio, for $195.42, at ninety days, to the order of James McEwen & ■Co., at the Mahoning County Bank, indorsed with a. payment of «100, May 3, 1855.

<p>On an indictment for larceny, laying the value of the property at four hundred and eighty dollars, a general verdict of guilty implies a finding that the-value of the property stolen, at least equals thirty-five dollars, and an express finding in the verdict "of such value in not necessary.</p> <p>The opinion in Barton v. The State, 18 Ohio, 221, qualified.</p>

<p>1. To invalidate a will for fraud or undue influence, it must appear that the fraud or influence complained of, had some effect “ upon the testator, in producing the very act of making his will.”</p> <p>'2. A will can not be impeached for undue influence, unless the influence under which it is made, imposes some “restraint” upon the testator in the disposition of his property, in accordance with his own independent wishes and judgment.</p> <p>3. A will produced by influences springing from an unlawful relation between the testator and legatee, is not for that reason void, unless such influences were exerted in restraint of the will of the testator.</p> <p>4. Where/ on the contest of a will, the court was requested to charge the jury that if a man knowingly marries and cohabits with the wife of another, and by the influence of such marriage and cohabitation procures a will from her in his favor, the will is void for illegal influence: Held that, unless the influence mentioned placed the testratrix under some restraint! it was not such illegal influence as would invalidate her will; and, as such restraint can not necessarily be implied from the facts assumed, it was not error to refuse to charge as requested; and whether such restraint existed was properly left to be determined by the jury, under the instruction that if it did, the will was void.</p>

<p>1. The assignees of a judgment, which had been improperly paid to the creditor after notice of the assignment, filed a bill in chancery against the debtor and creditor, to have the satisfaction of the judgment which they had caused to be entered upon the record, vacated. In the bill they alleged the insolvency of the debtor, and prayed for, and at the hearing obtained, a decree vacating the entry of satisfaction, and ordering the creditor to pay and deliver over to them the money and chosessopaid to him by the debtor, and that the avails thereof should be applied upon the judgment. Held, that the asgignees did not thereby affirm the payment so made to the creditor, and that they are entitled to execution for the balance due on the judgment, after so applying the amount realized bjr them. '</p> <p>2. The assignee of a judgment, transferred to him to secure a debt due from the judgment creditor, could maintain a bill in chancery under the old practice act, to subject dioses and rights of the judgment debtor to the payment of the judgment, without first reducing to judgment the claim so se' cured. And it is no defense to such a bill to show that the claim so secured has become barred by limitation.</p> <p>3. An erroneous decree in chancery, where the court has jurisdiction, is binding between the parties until reversed.</p> <p>4. Where only part of a record is given in evidence, that part of it which relates to process and appearance being by agreement of parties withheld, the court will presume that all parties who are named as such in the petition and decree were properly before the court.'</p> <p>6. Where a judgment has become dormant during the pendency of a provisional injunction against execution thereon, the court will, on final dissolution of the injunction, order execution to issue for the balance equitably due.</p>

<p>1. In an action brought by two plaintiffs for the recovery of a personal judgment, on an alleged indebtedness of the defendant to the plaintiffs jointly, the fact that the cause of action is not joint but several in its character, constitutes a good defense.</p> <p>2. Where such defect appears on the face of the petition, it may be demurred to, as not stating facts sufficient to constitute a cause of action; but the right to make such defense by answer, is not waived by a failure so to demur.</p> <p>3. Written contracts may always be read in the light of surrounding circumstances. The intention of the parties to a contract so unskillfully drawn as to be obscure or doubtful, may be rendered reasonably certain by proof of extrinsic facts. Where the record does not disclose all the evidence of this character offered in the court below, a construction given to such instrument which is not clearly inconsistent with its terms, will not be held erroneous by a reviewing court.</p>

<p>Where a party, claiming and representing himself to be, under letters patent granted by the United States, invested with the exclusive right to make and sell a certain machine within a given territory, enters into a contract with another party purporting to grant to the latter the exclusive right to manufacture and sell such machine within said territory, in consideration whereof the latter agreés to pay the former a specified patent fee for each machine which he shall manufacture and sell; and after a number of such machines have been manufactured and sold, a promissory note is executed by the latter to the former for the amount of fees accrued: Heldn-</p> <p>1. In an action on such note by the payee against the maker, an answer simply averring, in substance, that certain third parties named claimed that the manufacture and sale of said machine by the maker of the note was an infringement of prior patented rights to them, is no defense to the action, and bad on general demurrer.</p> <p>2. A paper, certified under the hand and official seal of the commissioner of patents to be “ a true copy from the record of that office, of the specifications in the matter of the letters patent granted EL G., March 21, 1854,” unaccompanied by a duly authenticated copy of the letters patent referred to, is not of itself competent evidence either of the existence, or of the contents of any letters patent.</p> <p>5. Where a party, claiming to be the owner of a patent right for a machine, licenses another to make and sell such machine within a certain territory, and in consideration of such license the latter agrees to pay the former a given sum by way of royalty on each machine by him manufactured and sold; and a large number of machines being manufactured, a part of which are sold and a part remain on hand, the parties enter into a compromise agreement, whereby the licensee executes to the licensor his promissory note for the amount due under the former contract for the machines sold, but largely reducing the royalty payable for the machines remaining on hand, and those to be thereafter made; and this, after the enjoyment of every privilege which the license purports to grant, undisturbed by owners of conflicting patents or otherwise, and after ample time and opportunity for testing the machine: Held, that in an action by the payee against the maker of the note, the latter is estopped to deny a consideration for said note, either on the ground of the inutility of or the want of novelty in said machine.</p>

<p>Appeal. Reserved in the district court of Muskingum county.</p> <p>John Mclntire, the original proprietor of the town (now city) of Zanesville, died in August, 1815. By his last will, *which was executed in March, 1815, he directed that, upon certain contingencies — which soon thereafter happened — the greater part of his estate should- be invested in the stock of the Zanesville Canal and Manufacturing Company. In the event of said investment being made, the will farther provides as follows :</p> <p>“ And I direct that the president and directors of said company are annually forever to appropriate all the profits, rents, and issues of my stock as aforesaid, and all of my estate, of whatever kind the same may be, for the use and support of a poor-school, which they are to establish in the town of Zanesville, for the use of the poor children in said town; the children, who are the objects of the institution, to be fixed upon by the president and directors of said company.”</p> <p>At the date of the will said Zanesville Canal and Manufacturing Company were unincorporated; but soon after the death of the testator they were duly incorporated and authorized to accept and execute the trust; and their corporate existence has been made perpetual for that purpose by a subsequent act of the legislature.</p> <p>Upon the happening of the contingencies upon which dejoended this devise, the Zanesville Canal and Manufacturing Company accepted the trust, erected a school building in the city of Zanesville, and supported therein a “poor-school” until about the year 1856, when, owing to the flourishing condition of the public free schools of the city, and the repugnance of parents and children toward a distinctive “ poor-school,” the said Zanesville Canal and Manufacturing Company placed the building under the control of the city board of education; which board conducted schools therein in the same manner as if it were a ward school, the Zanesville Canal and Manufacturing Company paying the expenses of said school.</p> <p>In 1865, the said Zanesville Canal and Manufacturing Company assumed the expense of maintaining another of the ward schools of the city.</p> <p>The annual income of this fund amounts to some twelve thousand dollars, and the greater part of it is now being thus applied in aid of the public schools of the city, irrespective *of the pecuniary condition of the children who attend them.</p> <p>Since the death of the testator, several additions have been made to the town of Zanesville. Some of these additions are included in present corporate limits of the city and some are not. Of the latter description is a village, on the west side of the Muskingum river, called “ West Zanesville,” in which lots were laid out by the testator, and denominated by him on the plat as “ lots in Zanesville.” The incorporated town, in 1815, was situate entirely on the east side of the river.</p> <p>A part of the fund so donated is still uninvested, and stock in the Zanesville Canal and Manufacturing Company can not now be purchased, and, if so purchased, would be of little or no value.</p> <p>There are in the city many children of poor parents who can not, or do not, avail themselves of their right to attend the public schools of the city, on account of their want of books, of proper clothing, or of time, or from other such causes, notwithstanding the schools are free to all alike.</p> <p>The present case is a petition filed by the Zanesville Canal and Manufacturing Company, and the administrators with the will annexed of said estate, asking the court for directions and advice as to the manner of investing the remaining part of the fund, as to the extent and limits of the “ town of Zanesville ” within the meaning of said will, and as to the proper manner of executing the trust within those limits.</p> <p>The city of Zanesville answers, claiming that the present application of the fund, in aid of the free schools of the city, shall be continued.</p> <p>Since the filing of the petition, a voluntary association denominated the “ Muskingum Children’s Home Association,” has been made a party defendant, and filed an answer in the cause. The object of this association is “ to secure proper care, culture, and homes for children in the city and vicinity of Zanesville, who, by misfortune or vice, are left in destitute circumstances, without the comforts or culture of home, church, or school.” It is located at Zanesville, and has already received from the trustee some part of the Mclntire *fund to aid it, from time to time, in its charitable enterprise; and the asssociation asks that the trustee may be advised or directed to appropriate at least a part of the trust fund permanently for that use.</p>

<p>Error to the district court of Warren county.</p> <p>This action was originally brought in the court of common pleas of Warren county, for the purpose of determining • the succession to certain lands lying in that county, of which one Mary Margaret Clayton, who had previously died intestate, was seized at the time of her death.</p> <p>The facts of the case, as found by the court below and agreed to by counsel, are as follows:</p> <p>Thomas Clayton, being the owner in fee simple, by purchase, of the lands described in the petition, died intestate, in the year 1849, seized thereof, leaving, by his wife Margaret Clayton (formerly Drake), who had died previously, an only child, named Lewis, who was his sole heir at law, to whom said lands descended, and who became seized of and held the same, during his lifetime, and until the year 1851, when he died intestate, leaving the defendant Christina Clayton his widow, and the said Mary Margaret Clayton, his only child and sole heir at law, and leaving no brother or sister either of the whole or half blood, and no representative of any such brother or sister.</p> <p>Upon the death of said Lewis, the said Mary Margaret, as his sole heir, succeeded to, became seized of, and held said lands, until the month of March, 1856, when she died intestate, at a tender age, having had no issue, and leaving no husband, no brother or sister either of the whole or half blood, and no representative of any such brother or sister.</p> <p>The said Thomas Clayton, in his lifetime, had two brothers, John and Joseph Clayton. John died in the year 1842; and Joseph died in December, 1855. Each of these brothers left children, and legal representatives of deceased children, who are the plaintiffs in this action.</p> <p>At the time of the death of the said Mary Margaret Clayton,, there were living, Joseph Drake, John Drake, Samuel Drake, Isaac L. Drake, Isabella Evans, Priscilla Yincent, and Elizabeth Applegate; who were the brothers and sisters of the *said Margaret Clayton, wife of the said Thomas Clayton, and paternal grandmother of the said Mary Margaret. Said brothers and sisters of the said grandmother, Margaret Clayton, upon the death of said Mary Margaret, intestate, took possession of said lands, as-her next of kin, of the blood of her father, Lewis Clayton, from whom the lands descended to her; and under proceedings in partition by them, as such next of kin, all their title to said lands became vested in the defendant, John Drake, subject to the dower of the said Christina, widow of said Lewis, which, in the same proceedings in partition, was duly set off and assigned .to her. Said John Drake has ever since been, and still is in possession, claiming title under the sale made in partition.</p> <p>The plaintiffs, by their petition, seek to recover possession of the premises, claiming the same as next of kin to the intestate Mary Margaret Clayton, of the blood of Thomas Clayton, the last purchaser from whom the estate came to the intestate ; or if the court should hold that the lands descended to the next of kin to the said Mary Margaret, of the bl'ood of Lewis Clayton, then that they are entitled to two-ninths of the estate, as the legal representatives of John and Joseph Clayton, the brothers of said Thomas Clayton, and who would, if living, stand related to the intestate, Mary Margaret, in an equal degree of consanguinity with the parties under whom the defendant, John Drake, claims title.</p> <p>The defendant, John Drake, by answer and cross-petition, denies the title of the plaintiffs, and asks to have his title quieted against the plaintiffs’ claim.</p> <p>■ The court of common pleas gave judgment for the defendant, Drake, dismissing the petition as to such of the plaintiffs as were minors, and quieting defendant’s title, as against the claims set up by the adult plaintiffs.</p> <p>Upon petition in error in the district court, this judgment was affirmed; and the plaintiffs now ask the reversal of both these judgments.</p>

<p>1. Where land is devised to a tenant for life, with direction that at his death it be sold, and the proceeds divided among his children, the children may elect at his death to take the land itself, or to have it sold for their benefit.</p> <p>2. The right or estate of such children does Hot accrue until the death of the tenant for life, although his estate may be determined during his lifetime. *3. The statute of limitations does not begin to run against the children, in such case, till after the death of the tenant for life, and no possession prior to his death will bar or affect their right or estate.</p> <p>4. A proceeding to contest a will, under the act of February 11,1824, binds only the parties to such proceeding; and, therefore, although such parties, as between themselves, are estopped from sotting up said will, when it has been once set aside by such proceeding, yet, as to all other persons in interest, it is to be regarded as a still subsisting will, and their rights stand wholly unaffected by the proceeding.</p> <p>G. It is error in the court to proceed by mere decree, and without the intervention of a jury, to set aside the will in such case.</p>

<p>Appeal. Reserved in the district court of Harrison county.</p> <p>*On the 29th November, 1860, the defendant Beyer made his note at thirty days, and mortgage to Robert Caldwell, for $1,000. Caldwell immediately assigned the note to the plaintiff, Bradford,, to secure him for certain liabilities that he had assumed for Caldwell, and to hold for the security of Baker & Wright, and Joseph Coles, other creditors of Caldwell.</p> <p>Afterward, on January 4, 1861, Caldwell assigned the remainder of the note to Price & Eowley, on claims against him on which they had issued orders of attachment.</p> <p>The plaintiff brought suit, February 9, 1861, against Beyer, to subject the mortgaged premises to the payment of the amount due him, and to the other parties for whom he held the note and mortgage in trust.</p> <p>The defendants Price & Eowley, with others, were made parties. They answered, setting up their claim to recover against Beyer, and prayed that the mortgaged premises might be subjected to the payment of their claim.</p> <p>Beyer answered that the consideration for the note had failed j that it was given for goods sold to him by Caldwell to defraud his creditors, by whom the goods were seized and entirely lost to him.</p> <p>The plaintiff recovered the amount due to him, and judgment was rendered for Beyer against Price & Eowley, who appealed to the district court. The case was reserved for decision here, upon the following facts found by that court, viz:</p> <p>November 29, 1860, Caldwell, a merchant, sold to Beyer his stock of goods for the purpose of defrauding his creditors, and took therefor 320 acres of western land and Beyer’s note, payable in thirty days, for $1,000, on which this suit was brought. Beyer, at the the time of the sale, knew of the fraudulent intention of Caldwell. The land was furnished by Thomas Goodwin, who was also aware of said fraudulent intention.</p> <p>The goods,were taken by Beyer and Goodwin, who commenced retailing them. Caldwell immediately assigned the note to Bradford, who was also aware of the fraud when he received the note, in security for the claims mentioned in the petition.</p> <p>^December 5,1860, Price & Eowley, at the suggestion of Beyer, sued out an attachment against Caldwell, and garnisheed Bradford and Beyer. At that time Price & Eowley knew that the sale was fraudulent.</p> <p>December 9, Beyer sold the goods on hand to Goodwin.</p> <p>December 17, other creditors of Caldwell attached the goods in the possession of Goodwin.</p> <p>December 26, Price & Rowley, by a second writ of attachment, levied on the goods.</p> <p>On the same day, Beyer and Goodwin entered into an agreement, by which Goodwin released Beyer from paying the western land; and Beyer released Goodwin from the payment of all demands, upon the condition that Goodwin should pay him $2,800, if he should recover of the sheriff for the goods so taken in attachment, for which Goodwin agreed to prosecute with vigor to the fullest extent of the law. Goodwin immediately brought suit against the sheriff, but failed to recover, and no part of the $2,800 was paid to Beyer.</p> <p>January 4,1861, Caldwell assigned the note in suit to Price & Rowley, subject to Bradford’s claim.</p> <p>The goods were sold under the proceedings in attachment, and the proceeds were distributed to the creditors of Caldwell, of which Price & Rowley received $150. There is still due them $1,200.</p> <p>The balance of the note, after deducting the amount of Bradford’s . judgment (which was $232.70), remains unpaid, and on September 21, 1865, amounted to $1,040.</p>

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

Appeal. Reserved in the district court of Belmont county. William Dunn, who died in 1858, by his last will devised to each of his children, Thomas, Samuel, Caldwell, William, and Jane, a specific tract of land, and to his son Robert the proceeds or rents of a one hundred-acre tract, for his life support. The tract so devised to Caldwell, and part of that devised to William, were incumbered with a mortgage for $1,500, executed by the testator to a third person.

The original action was instituted in the court of common pleas of Guernsey county, by the defendants in error, against the plaintiffs in error, Harrison Secrest and Jacob Secrest, upon an undertaking, of which the following is a copy: “ The State of Ohio, Guernsey county. Court of common pleas of said county.

Ee•served in tbe district court. Edward Pbinney owned a store and stock of goods at Sbaron, Medina county, Obio, and on September 24, 1859, obtained an inrance on tbem for one year, in tbe Manhattan Insurance Company, for $2,000, and in tbe Humboldt Insurance Company for tbe same sum.

<p>Error to the court of common pleas of Clermont county. Reserved in the district court.</p> <p>The original action was brought in the court of common pleas by the plaintiffs in error, who are the children and legal heirs of the body of James Pollock, deceased, to recover the possession of certain real estate, of which they claim to be seized in fee simple, :and of which they allege that the defendant unlawfully holds the possession.</p> <p>The defendant, by answer, denies the title of plaintiffs, and sets ■up title in himself.</p> <p>Upon these issues the cause was submitted to the court, a jury being waived, and the plaintiffs offered in evidence a deed from .John Pollock, Sen. (the common source of title), to James Pollock, the father of plaintiffs, dated March 30,1831, conveying theTands in dispute “to the said James Pollock, the heirs of his body, and ■assigns forever.”</p> <p>Counsel also submitted to the court an agreed statement of facts as follows:</p> <p>“First. That James Pollock died in 1855 or 1856, leaving the plaintiffs, his children and legal heirs of his body.</p> <p>“ Second. That the property in controversy in this suit is the identical property described in the deed from John Pollock, Sen., to James Pollock, dated March 30, 1831.</p> <p>*“ Third. That James Pollock sold, by deed of general warranty, to Emanuel Hawn, the property in controversy on the 1st day of December, 1836. Book of Deeds, M 2, page 442.</p> <p>“ Fourth. That Emanuel Hawn conveyeed, by general warranty •deed, said premises, on the 28th day of November, 1839, to John N. Gatch. Book T 2, page 27.</p> <p>“Fifth. That said John N. Gatch conveyed to the defendant the premises, by deed of general warranty, on the 1st day of October, 1841. Book of Deeds V 2, page 155.</p> <p>“ Sixth. That E. Hawn went into possession of said premises on the day of the execution and delivery of his deed, and that he, Gatch, and Speidel have been in the actual possession thereof since that date.</p> <p>“Seventh. And that the consideration expressed in the deed from Pollock to Hawn, from Hawn to Gatch, and from Gatch to Speidel were valuable considerations. And that James Pollock died, leaving assets descending to the plaintiffs, his heirs.”</p> <p>No further evidence was offered by either of the parties.</p> <p>The court found for the defendant, and, after overruling the mo* tion of the plaintiffs for a new trial, rendered a judgment in favor of the defendant.</p> <p>To reverse this judgment the plaintiffs filed their petition in error in the district court, and the case was reserved in that court for the judgment and decision of this court.</p>

<p>1. In a case in equity, under the code, as well as in a case which before the code would have been an action at law, before this court can review the finding in the court below on conflicting evidence, it is indispensable that a motion for a new trial,, on the ground that such finding is against, or not sustained by, the evidence, should have been made and overruled.</p> <p>*2. Where, on error, the record shows no such motion, but contains a bill of exceptions embodying all the evidence, and it appears that on the trial evidence was given which, standing alone, warranted the finding, the judgment can not be reversed for error in law on the ground that, considering all the evidence, the finding is against the weight of evidence. To reverse on such ground would not be reviewing the judgment of the court below on a question of law, but on the credibility and weight of the testimony.</p> <p>3. In the absence of statutory provision, error in law, for want of proof, only arises where there is no evidence fairly tending to establish one or more facts, the existence of which is essential to the recovery.</p>

At the April term, 1866, of Montgomery common pleas, the-plaintiff in error was indicted for bigamy.

The original action was brought by defendant in error, in the Superior Court of Cincinnati in special term, to recover of plaintiffs in error $23,695, which he alleged they had won from him at the game of faro. The petition contained twenty-four counts, each alleging the loss of a specified sum, at a particular date, or between two specified dates, aggregating the sum of $23,695> aforesaid. The answer denied every allegation of the petition.

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

Exceptions to report of referee. Reserved in the district court of Darke county. The case is sufficiently stated in the opinion of the court.

Civil action. Reserved in the district court of Butler county.

<p>Where one has contributed part of the purchase money of land the legal title to which has been conveyed to another who furnished the remainder of the purchase money, equity will not recognize an implied trust as resulting to any extent in favor of the former, unless the amount contributed by him be a definitely ascertainable aliquot part of the total purchase money.</p>

The plaintiff in error was tried upon an indictment containing two counts — one for rape, and the other for assault with intent to commit a rape. He was acquitted of the former and convicted of the latter, and thereupon sentenced to the penitentiary.

Reserved in the district court. The plaintiff in error was indicted under the 4th section of the crimes act (1 S. & C. 404), for having carnal knowledge of his daughter, Fanny Moore, forcibly and against her will. The indictment also contained counts charging the crime to be incest, and assault with intent to commit a rape.

Petition for partition, and to quiet title. Reserved in the district court of Stark county. On the 13th of February, 1864, the plaintiffs, Oren Freeman and ■his wife, Mary, filed their petition in the court of common pleas for the county of Stark, claiming title to one-half a described tract of •land, and alleged that the remaining half was owned by the defendant, Henry Allen, her brother.

Re- ■ served in the district court. On January 23,1864, Leverett G. King filed his amended petition against the Painesville and Hudson Railroad Company, in the court of common pleas of Cuyahoga county, stating: 1.

Information in the nature of a quo warranto. Eeserved in the •district court of Knox county. The case is stated in the opinion of the court.

' On March 1, 1863, Uriah J. Favorite, an infant, by his nest ■Mend, filed in the court of common pleas of Miami county his petition against John H. Morrison, William K. Cromer, Robert Morrison, and Jacob Rohrer as administrator of Levi N Booher, deceased, stating, in substance: That on the 5th of November, 1852, the probate court of Miami ■county appointed John H. Morrison guardian of John *S. Favorite, Thomas S. Favorite, Martha J. Favorite, Harriet A. Favorite, and Uriah…

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

The original action in the common pleas was one in which the parties were entitled to a second trial, and not to an appeal. When judgment was rendered, the plaintiff in error gave notice of his intention to take an appeal, which appeal he afterward perfected; but he did not enter upon the journal any notice of demand for a second trial.

March 30, 1866, Mary E. Eeed filed in the court of common pleas of Summit county, a petition against Austin T. Eeed for alimony. At the May term, 1867, the case was tried, and the petition dismissed. The case was taken to the district court by appeal; and, at the September term of that court, the plaintiff in error filed a motion to dismiss the case, for want of jurisdiction, in the district court.

On the 16th of January, 1864, Frederick Worth, the defendant in error, filed a petition, in the court of common pleas of Williams county, against Philip Worth, Catharine Worth, and Jacob Geiger. Service was made upon Geiger only, who demurred to the petition. At the May term, 1864, the demurrer was sustained, and the petition dismissed.

Reserved in the district court. The original action was brought in the court of common pleas of Lucas county by Davis, the defendant in error, to recover of the plaintiffs in error possession of… Held: when the journal was signed, by the associate judges; and the-journal was signed by the senior associate or presiding judge,, in the absence of other *proof, it would be presumed that the court was then constituted and held without the president judge. 2.

The plaintiff in error was indicted on the 15th of March, 1867, for the murder of Adam Rose. The indictment contained two counts, both for murder in the first degree, under the first section of the crimes act.

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

<p>Motion of defendants to dismiss appeal. Reserved in tbe district court of Adams county.</p>

Reserved in the district court. The original petition was filed by the executors of Isaac Rainier, deceased, against his devisees and legatees, on the *third day of June, 1864, in the court of common pleas of Pickaway county, to obtain a construction of the will of said deceased. The will is dated September 8,1860, to which a codicil is added, dated December 4,1861. The testator died March 25,1863; and-his will was admitted to probate April 29,1863, and is as follows: “1.

155), “ to provide for the payment of local bounties pledged to volunteers under the calls of the president for volunteers, issued July 2 and August 4,1862.” The first section of the act provides that the boards of county commissioners in the several counties of the state, wherein was adopted the system of paying bounty, in addition to the government bounty, to volunteers under said calls from the president, and such bounty was pledged to volunteers entering the service of…

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

<p>In a civil action, evidence to prove fraud, which does not amount to a criminal offense, need not be such as to exclude all reasonable doubt.</p>

<p>1. In an indictment for larceny, it is sufficient to describe United States treas ury notes, as “ promissory notes of the United States given for the payment of money,” adding their denomination and value.</p> <p>2. In such an indictment it is not a misdescription of the notes of national banks to denominate them “ national bank-notes, commonly called national currency notes, being obligatory promissory notes of the national currency issue, given for the payment of money.”</p> <p>3. It is prima facie evidence of the genuineness of such notes that they pass currently in the community as genuine.</p> <p>4. It is not error in the court to refuse to give its opinion upon the weight of testimony, or to refuse to exclude from the jury evidence tending to prove the issue, but which is insufficient of itself for that purpose.</p> <p>5. When oral evidence of the contents of an instrument has been received, without objection, it is not error in the court to refuse to exclude such evidence after the cause has been argued to the jury.</p> <p>6. Where a question put to a witness is rejected by the court as incompetent, in order to make the rejection a ground of error, it must appear what was-proposed to be proven, and that it was something, the rejection whereof would be prejudicial to the plaintiff in error. G-andolfo v. State, 11 Ohio St. 114, and Hollister & Smith v. Resnor, 9 Ib. 1, followed.</p>

Reserved in the district court. The proceeding in the common pleas was an action brought by 'Calvin Wright against John Richardson, James Grace, William D. Fulton, James Porter, Isaac Fowler, Hixon Hunt, A. E. Osborn, Michael Fitzgerald, and Nathaniel Skinner.

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

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

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

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

<p>1. An injunction may be allowed restraining the removal and sale on execution, of portions of the mortgaged property of a railroad company, on the application of the mortgagees, when the whole of the property mortgaged is admitted to be inadequate security for the payment of the mortgage debts.</p>

The plaintiff below, defendant in error, in her petition, sets out the following deed as “ executed and acknowledged according to the ■laws of Kentucky,” by her father to her husband, since deceased: “ This indenture, made and entered into this 28th day of September, 1850, between Robert Jones of Cynthiana, Kentucky, of the one part, and McCalla Thompson of said Cynthiana, Harrison county, Kentucky, of the second part, witnesseth: That, whereas the said Thompson has…

<p>Motion for leave to file petition in error to reverse the judgment of the district court of Greene county.</p> <p>The original action was brought by Collins against the plaintiffs in error, in the common pleas of Greene county, for rejecting his vote at an election theretofore held in a ward of the city of Xeniá, ■where the plaintiffs in error were judges of election.</p> <p>In his petition, Collins alleges, that he is a person having a “ visible admixture of African blood,” but a large preponderance of white blood; and that at the time he offered to vote, and his ballot was so rejected, the fact that he had a large preponderance of white blood was well known to said judges, and plainly apparent, and was proved to their satisfaction. The petition also alleges the other necessary qualifications of Collins, as a legal voter at said election, but it does not aver that the judges in rejecting his ballot acted “corruptly or in bad faith.”</p> <p>The defendants (plaintiffs in error) interposed an answer containing eight several grounds of defense, as follows :</p> <p>1. They admit that Collins, at the time he offered to vote, was a male citizen of the United States, and of the State of Ohio; that he was over twenty-one years of age; that he was a person having a “visible admixture of African blood,” with a preponderance of white blood; and that the fact, that he had much more of white than African blood, was at the time of his offering to vote plainly apparent, and was proved to *their satisfaction. But they allege that Collins, having been challenged by them on the ground of the said visible admixture of his blood, agreeably to the provisions of the aet'of April 16, 1868 (65 Ohio L. 97), did not by the kind of proof required in said act, and in the manner therein prescribed, show that he was such white male citizen, and that they, therefore, deny the fact.</p> <p>2. That Collins, when so challenged and required to answer the questions propounded to him agreeably to the provisions of said act, among other things, answered that his parents lived together as husband and wife, but refused to answer whether they were married.</p> <p>3. That when asked one of the questions specified in said act, to wit: “ In the community in which you liv.e, are you classified and received as a white or colored person, and do you associate with white or colored persons?” Collins answered as follows: “I know of no established and well-defined classification of persons as to color and shades of color, and am, therefore, unable to say how I am classified. I associate with persons white and persons black, when agreeable to all parties.” And that Collins failed and refused further or more fully to answer said questions.</p> <p>4. That Collins, having been required to produce witnesses to testify to his qualifications as a voter, as required in said act, produced his father, who, upon being sworn, refused to answer whether he and the mother of said Collins were married, although he answered that they lived together as husband and wife.</p> <p>5 and 6. That Collins called two other witnesses, when so required, one of whom refused to answer some of the questions prescribed for such witnesses by the act, and the other of whom refused to answer any of them.</p> <p>7. That Collins having been also challenged by said judges under the provisions of the act of April 17,1868 (65 Ohio L. 100), on the ground that he had come into the city of Xenia to attend, and was •,hen attending, a university there, as a student, and having been «worn and questioned as required by said act, answered as follows: L That he was not a qualified elector at the time he commenced attending said university; *2. That he came there to attend 3aid university; 3. That his parents did not, at the time he came there, reside in said ward; 4. That his parents had subsequently removed to, and were then in said ward, but he did not know whether they intended to make it their home; 5. That he, the defendant in •error, had no other place of residence than said ward; 6. That he did not think it was his intention to make said ward his permanent residence, but did not know how long he should remain there, and had, as yet, no place selected or in view to go to. And therefore the respondents averred that, “ although said Collins had resided in said ward more than thirty days next preceding said election,” yet under the provisions of said act of April 17, 1868, he was not entitled to vote.</p> <p>8. That Collins refused, when tendered to him agreeably to the said act of April 16, 1868, to take the final oath or affirmation prescribed in the 5th section thereof.</p> <p>To this answer Collins demurred generally, denying that either or all of said several grounds of defense constituted a bar' to his .action.</p> <p>The demurrer was overruled in the common pleas, and judgment thereupon entered for defendants. To reverse this judgment, Collins prosecuted his petition in error in the district court of Greene county, where, the judgment of the common pleas was reversed; and now, to reverse this judgment of the district court, leave is asked to file a petition in error here.</p>