Volume 18 — Ohio State Reports, New Series

2] *On the 17th day of October, 1863, the plaintiff, McCrory, brought an action, in the court of common pleas of Wood county against James J. Parks, Jairus Curtis, and Michael Hays.

<p>1. The act of May 1, 1862, “prescribing the fees of county auditors,” is neither in conflict with section 20, nor with section 26 of article 2 of the constitution.</p> <p>'2. Upon a proper construction of section 3, the effect of the act was to provide that county auditors in office at the time of its passage, should thereafter be compensated according to the rule prescribed by the act of February 7, 1861 (58 Ohio L. 7), and that those coming into office afterward should be compensated by the new rule prescribed by that act.</p> <p>3. The order of the county commissioners, on which, by the act of 18G2, the compensation of the auditor is to be paid, is a written order, the original, or an authenticated copy, of which will constitute the warrant and voucher of the treasurer for the money paid.</p> <p>4. The amount due the auditor for his official services is not a claim against the county for which he is authorized to draw his own warrant, under section 13 of the act of April 4, 1859 (S. & 0. Stat. 98); and th'e obtaining of money from the treasury as compensation to which he is not entitled, upon Ms own warrant, constitutes a misfeasance, for wMch to the extent the money obtained exceeds the amount due, Ms bond affords a remedy; and the fact that there had been a verbal allowance by the commissioners will be no defense.</p> <p>A Erroneous instruction to the jury, which the record shows could not havo prejudiced the party, is no ground for reversal.</p>

*Error to the court of common pleas of Clark county. Re- [2fr served in the district court. On May 8, 1860, Richard D. Harrison, Richard Rodgers, Robert Rodgers, and others, instituted an action in the court of common, pleas of Clark county against the Springfield, Mount Yernon and Pittsburg Railroad Company, William Dunbar, the present plain tiff in error, and numerous other parties, alleged to be subscribers to-the stock of said company.

Eeserved in the district court. The original case was an action by defendants in error against McKinzie, for money had and received for their use. They allege that one Wilson was indebted to them severally in the aggregate 39] amount of $812.70, and that one Galligher *being indebted to Wilson in a muck larger sum, McKinzie, as agent for these defendants, agreed to and did procure from Wilson an assignment to them, for their security, of the debt due from Galligher.

<p>1. A gift of money, made and executed to a married woman living with her ' husband, prior to the taking effect of the act of April 3, 1861, “ concerning the rights and liabilities of married women” (58 Ohio L. 54), is controlled by the rules of the common law; and if such executed gift be general and unqualified, the money so given vests, eo instanii, in the husband.</p> <p>2. It is otherwise, however, where, by any instrument conveying or evidencing such gift, or by an unequivocal declaration of the donor accompanying the making of such gift, it is made clearly manifest that it was the intention of the donor that the gift should be to the separate use of the wife, free from • the control of her husband.</p>

<p>Writ of error to the court of common pleas of Defiance county. The plaintiff in error was regularly indicted, tried, and convicted of the crime of incest with his daughter, at the April term of the court of common pleas of Defiance county, in the year 1857. The sentence and judgment of the court thereupon, as shown by the record, was as follows: “ It is therefore ^considered by the [47 court that he, the said Charles Williams, be imprisoned in the penitentiary of this state and kept at hard labor for a further term of ten years, to commence at the expiration of the sentence aforesaid, and that he pay the costs of this prosecution, taxed at 42.58-100 dollars.”</p> <p>The principal errors assigned are, in substance, that this judgment of the court is vague, indefinite, and uncertain ; and that the term of imprisonment therein stated is made to commence at a future period and not immediately. Eor these alleged errors, the plaintiff here asks for a reversal of the judgment.</p>

Error. Reserved in tbe district court of Delaware county. On the 2d day of January, 1863, the plaintiffs filed their petition in the court of common pleas for Delaware county, against Hiram Gr. Andrews and Joshua Judy, in which they averred that on the 28th day of January, 1857, Hiram G-.

One question in this case was decided at the last term, and the decision is reported in 17 Ohio St. 649... The case was continued as sfco the other questions. For convenience, the statement of the case made in that report of it is, in part, now repeated, and a supplemental statement is here given, to show the questions in the case decided at the present term.

The original action, commenced in the common pleas, February 22,1868, by Welker, was to recover of Potter and wife, and numerous other defendants, an assessment made by the city council of Toledo, for grading a portion of Jefferson +street, under an [86 ordinance passed by the council, June 4,1867. The defendants were owners of lots abutting on the street. None of them answered but Potter and.wife. The case wont to the district court by appeal.

Writ of error to the court of common pleas of Ross county. The plaintiff in error was tried in the court below, at the January term, 1869, on an indictment for burglary, in breaking and entering in the night season “ a certain store-house ” of one Lewis A. Phillips, with intent to steal, etc. He was found guilty by the-verdict of the jury, and a motion for a new trial having been overruled, was sentenced by the court to imprisonment in the penitentiary for one year.

*Er.b.or to the court of common pleas of Hamilton county. [95 Reserved in the district court. October 9, 1864, Hatch filed in the common pleas his petition, ■.stating in substance: ■ 1. That he was, on the 22d of April, 1863, had been previously, -and has ever since continued to be, seized of a certain tract of land, situated in the township of Delhi, Hamilton county [described], containing about seventy-five acres, in the actual occupancy of the plaintiff.

The action in which the judgment sought to be reversed was rendered came into the district court by appeal. The facts of the case are specially found by the court, and are as follows : In 1863, the plaintiff, John B. Rostetter, in whom was vested the naked legal title of land which in equity belonged to his wife, at her request, bargained and sold the same to the defendant, William G. Grant, who was ignorant of the wife’s right therein.

Deserved. in the district court. In September, 1856, one George A. Howe brought a civil action in the court of common pleas of Cuyahoga county, against one-William E. Cornwall, seeking to recover the value of a certain-draft or bill of exchange drawn by one Byers, which, as he averred, had been received for him by Cornwall, while in his employment, and which Cornwall had fraudulently converted to his own use.

Be-served in the district court. The original action was brought November 16,1864, in the court nf common pleas of Hamilton county, by James Goodin and Samnel H. Goodin against Jason Evans and Briggs Swift, for the recovery of certain real estate, situate at the northwest corner of Court and Main streets, in the city of Cincinnati; and also for the rents and profits of said property while wrongfully held by defendants.

Be-served in the district court. The Cincinnati and Whitewater Canal Company was incorporated; in 1837, under a local act of that date (55 Ohio L. 393), and soon thereafter constructed its canal from Cincinnati to the Indiana state-line, near Harrison. *The Indianapolis and Cincinnati Eailroad Company was [170' subsequently chartered under the laws of Indiana, and constructed its road from Indianapolis to a point at or near the said western-terminus of the canal.

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

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

The judgment sought to be reversed was rendered in a cause which came to the district court by appeal. It was originally an action, brought by the present plaintiffs against the defendant, Peter B. Bailey, a contractor upon their road, to recover back from him, or to have him account for, alleged overpayment or advance made to him as such contractor during the progress of his work upon the road.

<p>l'lie incorporated village of Tan Wert was laid out in 1835, and the proprietors, by plat duly acknowledged and recorded, dedicated two specified lots therein “for school purposes, and on which to erect school-houses.” By reason of the subsequent construction and continued operation of a railroad, and the location of a depot in connection therewith, in close proximity to these lots, they were rendered unsuitable to be used as sites for school-houses, and their use for that purpose became dangerous. A petition was filed by the board of education of the incorporated village, praying, for the reason aforesaid, that the court of common pleas might order the lots to be sold, and the proceeds of sale to be applied to the purchase of suitable school-house sites, or to the erection of school-houses on suitable grounds to be procured by the board. Upon demurrer to the petition: Held—</p> <p>1. That the dedication was for a specific use, and conferred no power of alienation so as to extinguish the use.</p> <p>2. That if the use created by the dedication were abandoned, or should become impossible of execution, the premises would revert to the dedicators or their representatives, and that, without their consent, they could not be divested of their contingent right of reversion by an absolute alienation.</p> <p>3. The principle upon which a trust may, under certain circumstances be, executed cypres is not applicable to such a case.</p>

Reserved in the district court. *The defendants in error, David Hoard and others, on the [228 12th of January, 1866, filed their petition in the court of common pleas of Medina county, against William Shaw, one of the plaintiffs in error, for the recovery of the possession of one hundred acres of land, and for the sum of two hundred dollars damages.

*In the year 1863, John M. Allen, being the owner of cer- [235 tain real estate, conveyed the same to John Allen, and afterward, in the year 1864, married Polly A. Allen, whom he left as his ■widow at his decease in May, 1866. On July 30,1866, the appraisers of John M. Allen’s estate set off for a year’s support of this widow and her child the sum of' three hundred dollars.

The “ act for the inspection of gas-meters,” ote., passed April 6, I860 (S. & S. 158), provides for the appointment, by the governor, with the advice and consent of the senate, of “ an inspector of gas-meters and illuminating gas.” Section 2 of the act as amended March 9, 1867 (S. & S. 160), provides that the inspector shall hold his office for the term of two years and until the appointment of his successor, but may be removed by the governor and senate at their pleasure;…

Reserved-in the district court. Elizabeth F. Denny brought an action in the court of common-pleas of Vinton county, against Nye, Benner & Co. (otherwise-called the Eagle Furnace Company), to recover the possession of section 32, township 9, range 16, within the Ohio Company’s purchase, containing six hundred and forty acres, and for the use of the land. On the trial, it was admitted: 1.

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

QUO WARRANTO. At tlie December term, A. d. 1867, the following information, in-the nature of a quo warranto, was filed in this court: “William H. West, attorney-general of the State of Ohio, who sues for the said state in this behalf, comes here before the judges of the Supreme Court of the said state on the--day of December, in the year eighteen hundred and sixty-seven, at the December term thereof, and, for the said State of Ohio, gives the said court here to-understand…

The city council of Cleveland, having established a new street, over the lands of Wick, and having regularly condemned and paid him a full compensation for his land so taken, assessed' a tax upon all lands fronting oh the street, including other lands of Wick, to-reimburse the expenditure so made. The tax remaining unpaid, it was placed upon the county duplicate for collection, but not till one-year after the time prescribed .-by statute.

Reserved in the district court. On the 18th of March, 1865, the defendants in error filed their petition in the court of common pleas of Hamilton county, praying-a judgment for the recovery of the possession of specific real property. The petition contains two causes of action. 1.

Reserved in the district court. The original action was brought by the plaintiff to recover of the defendants the value of an overcoat and articles in the pockets thereof, alleged to have been lost from the hotel of the defendants while the plaintiff was a guest therein. The petition contains the ■ordinary averments to charge upon the innkeepers a liability for the loss of the goods of their guest.

On the 24th of January, 1861, David Lloyd, then in full life, commenced an action in the court of common pleas of Knox county against the Knox County Bank of Mount Vernon, in which. be demanded judgment against the bank for the sum of $278.69, ¿as money had and received by the defendant for the use of the ¡plaintiff, with interest from October 1, 1855. '354] *For cause of action, the plaintiff alleges that on the 24th day of September, 1855, the defendant procured a judgment…

<p>Error to the common jileas of Lucas county.</p> <p>The ease is sufficiently stated in the opinion of the court.</p>

In September, 1867, Spears sued Armstrong before a justice of the peace of Brown county, and, on October 22, 1867, recovered a judgment for $265.75, and $5.90 costs of suit. Armstrong appealed to the common pleas. November 27,1867, Spears filed his petition in the common pleas, claiming $259.78, with interest from May 31, 1867.

Appeal. Reserved in the district court of Ross county. Solomon W. Bush owned eighty-eight acres of land in Ross county in the year 1859 and subsequently, until it was sold by the sheriff, in the year 1866, as hereinafter stated.

Morton sued on note and mortgage executed by Outland. The defendant, Outland, answered that the note in suit was one of several given by him in July, 1866, as purchaser at partition sale, in proceedings instituted by Morton for the premises described in the petition, and that the plaintiff, Morton, was then in possession of the premises; that on August 6, 1866, after receiving a deed from the sheriff, he (Outland) demanded possession of Morton, which he refused to give, and…

The relators represent that they were the “lowest responsible bidders ” for a specified portion of the public printing, at the letting thereof by defendants on the 28th of July, 1868, accompanying their bid with sufficient sureties, agreeable to law, and to the satisfaction of the commissioners, but that, by mere mistake in the mode of computation, the commissioners erroneously held and adjudged one Webb to be the lowest bidder; and afterward, on the 6th day of August, 1868,…

Error, to the court of common pleas of Montgomery county. At the December term, 1866, of the court of common pleas of Montgomery county, an indictment was presented against Joseph-391] *Lesslie, containing three counts, each charging him with murder in the first degree, in causing the death of Mary Miranda Caylor, by means of a pistol-shot.

The Columbia and New Richmond Turnpike and Bridge Company was incorporated by the general assembly of the State of Ohio, by special act, passed February 21, 1849. David Gibson is named in the act as one of the eoiporators, but without his knowledge or consent. The object of the corporation, as its name imports, was the construction of a turnpike from Columbia, in Hamilton county, to New Richmond, in Clermont county, a distance of ■about seventeen miles.

Be--served in the district court. Mary Snyder, the defendant in error, a child six years old, was .run over and seriously injured by a gravel train of the Bellefontaine and Indiana Bailroad Company. She brought her action .against the company, charging that the accident occurred through the negligence of its employes.

<p>Motion for leave to file petition in error to reverse the judgment -of the Superior Court of Cincinnati.</p>

<p>In order to exclude evidence of confessions by the defendant in a criminal'' case, it is not enough to show that they were made to an officer having him in custody, and were induced by a false assurance that an accomplice had given information of the crime, if it also appears that nothing was said or done calculated to induce a hope of advantage from confession, or fear of harm from its refusal.</p>

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

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

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

<p>A tax duplicate is not a record, within the meaning of section 22 of the crimes act'of March Y, 1835, as amended by act of March 24, 1865, defining the crime of forgery. S. & S. 264.</p>

Abpeal. Reserved in the district court of Mahoning county. *The facts are sufficiently stated in the opinion of the court. [428‘

<p>1. A person summoned as a juror for the trial of a criminal case, was challenged for cause by the defendant, and the challenge was overruled; whereupon he was peremptorily challenged on behalf of the state, and excluded from the panel. Held, that the overruling of the defendant’s challenge could not have prejudiced him, and is therefore no sufficient ground for reversal of the judgment.</p> <p>2. Where there are several counts in an indictment, it is no valid ground of objection that they differ in stating the time of the commission of the crime or offense charged; nor is a verdict inconsistent which finds the defendant guilty under several counts in which the time is differently stated.</p> <p>3. A verdict will not be set aside as inconsistent, or uncertain, because it find» differently as to counts in which there is no material difference.</p> <p>4. Where, on the trial of a capital case, a witness attending court under a subpena, on behalf of the state, departs without leave, after the trial has commenced, it is competent for the court to suspend the progress of the trial for the purpose of enforcing, by attachment, the attendance of such witness. The time proper to be allowed for that purpose must be determined by the sound discretion of the court, in view of all the circumstances of the case. Where there is no reason to believe that the defendant has been thereby prejudiced or deprived of a fair trial, a delay'thus’ allowed by the court, from time to time, to the extent of three days, will! not necessarily invalidate the verdict subsequently rendered against the-defendant, nor require the court to set the same aside.</p>

The plaintiff in error, who was the plaintiff below, brought his action to recover of the defendant a balance which he alleged to, be due on a contract -in writing, entered into between the parties on the 7th day of April, 1855, for grading and otherwise improving certain streets, in pursuance of an ordinance of the city, duly passed for that purpose. ♦Prior to the making of the agreement, and as part of the [448 ■ordinance directing the improvement, the city council…

^Motion for leave to file petition in error to reverse the judg- [453 ment of the district court of Lucas county. By the act of February 21, 1866 (63 Ohio L. 22, sec. 2), assessments for the improvement of streets, etc., are limited to a maximum of fifty per cent, on the valuation of the respective lots- and lands assessed.

<p>1. Where the words of a statute are plain, explicit, and unequivocal, a court is; not warranted in departing from their obvious meaning, although from considerations arising outside of the language of the statute, it may be convinced that the legislature intended to enact something different from what it did in fact enact. :</p> <p>2. Under the provision of section 455 of the code of civil procedure, as it stood prior to the amendment thereof of March 20, 1861 (S. & S. 565), a sheriff failing to execute or to return an execution within the time prescribed by the statute, could not legally be amerced by motion in the court of the county from which it issued, except on notice of such motion served fifteen days prior to the commencement of the term at which such motion-was made.</p>

<p>The grantor in a deed owning a quarter-section of land, in tbe premises: of the deed conveyed to the grantee a specified part thereof, containing two- and a half acres; also ‘‘containing the Colvin mills, and the water privileges thereto belonging, which extends up the creek on the balance of said' section, for the purpose of building mills below said Colvin mills, and damming up said creek.” At the conclusion of the deed, a clause was inserted, stating that “ it is understood ” the grantee “ is not to build any dam on said creek that runs through said land above said Colvin mills, but the-right to back up the water from dams below the Colvin mills as far as said” grantee “ may see proper.” Held, that the deed does not convey an unlimited right to overflow said quarter-section, but the right only to back up-the water to the upper line of the quarter-section, from dams below said mills, as far as the grantee may see proper to build them.</p>

<p>1. The employment of agents to negotiate contracts with the government is not necessarily illegal or against public policy.</p> <p>2. Where the contract so made by an agent is in excess of his authority, the principal can not adopt it in part without adopting it in whole; and if he adopt it as to the eontraetee, he adopts it also as to the agent.</p> <p>3. Where the principal asks and obtains as a “favor” and “indulgence” from the government a modification of such unauthorized contract, and then executes, with sureties, a written contract with the government in the modified form, he will be held, prima fade, to have adopted the unauthorized contract, with a modification, and not to have rejected it, and entered into a new contract.</p>

<p>1. In a prosecution under the code of criminal procedure, a judgment will not he reversed, for error in overruling a motion for a new trial, on the ground that the verdict is not sustained by sufficient evidence, unless the record shows affirmatively that all the evidence is set forth in the bill of exceptions.</p> <p>2. The provision of the 164th section of the code of criminal procedure, that “in the trial of felonies the jury shall not be permitted to separate after being sworn, until discharged by the court,” is mandatory; and it is error to overrule a motion for a new trial by the defendant, on the ground that the jury were permitted to separate, where it appears that the jury were permitted to separate after they were sworn in the trial of a felony, and were permitted to mingle with the community without the supervision of the proper officer; even though such separation was allowed by the court, with the consent of the defendant.</p>

<p>In the course of an ordinary matter of business, H. made and delivered to B. a promissory note, without the stamp required by law. Shortly afterward, B. sent to H. a letter as/ollows:</p> <p>“ 'Washington County, December 2, 1865.</p> <p>“ Mr. D. H. Hall — Dear Sir: Upon examining the excise law, I find that note you made me require stamp, and that you are liable to fine of two hundred dollars for not stamping it. Y ou will please call immediately and make satisfaction, and save yourself trouble. Yours, with respect,</p> <p>“W. H. Brabham.”</p> <p>Seld, that this was not the sending of a letter containing threats of injury, “ or with the intent and for the purpose of extorting money or other valuable thing,” within the purview of the 23d section of the act of March 8, 1831, for the punishment of certain offenses therein named” (S. &C. 430); and the fact that at a subsequent interview between the parties threats were orally made which did result, wrongfully or rightfully, in extorting a valuable thing, does not alter the case.</p>

Abpeal. Reserved in the district court of Jackson county. The action is brought upon a mortgage made in 1854, by Solomon and James Isaminger, to plaintiff’s testator, Hamilton, upon 3-32 parts of certain real estate which had been conveyed to the Isamingers and others in common, the grantees being at the time copartners in a joint stock company for the manufacture of iron, to secure a private debt of the mortgagors.

Harter brought an action in the Superior Court of Montgomery county against Morris, to recover damages for alleged negligence on the part of Morris, an attorney, in a matter of professional business intrusted to him by Harter.

' This case is very voluminous. The record contains over seven* hundred pages, the charge of the court covers fifty-six pages, and-there are twenty-four assignments of. error. The original case was an indictment found at the April term, 1867, of the court of common pleas of Coshocton county, charging* Samuel Ketchum, the treasurer of the county, with embezzlement,, and the plaintiff in error, James M. Brown, with advising, aiding,, and participating in the act.

<p>Error to the Superior Court of Cincinnati</p> <p>*The case is sufficiently stated in the opinion of the court. [516</p>

On the 15th of September, 1865, Eli Long filed his petition in the 'Superior Court of Cincinnati against the steamboat General Buell, by name, stating': That on the 5th of that month he, with his wife, ' took passage, at the city of Louisville, Kentucky, upon the boat for the city of Cincinnati, Ohio, and paid the usual fare for himself and wife; that the boat was then a common carrier of passengers for hire between those two cities; that he then delivered to the boat, on…

<p>Where a person makes a false return of his personal property for taxation and dies before complaint is made to the auditor, the latter is authorized and required by section 34 of the tax law of 1859 (S. & 0.1452), and section 1 of the supplementary act of 1861 (S. & S. 759), to proceed, on notice to the executor, to ascertain the true amount of such person’s property, and add thereto fifty per centum of the amount so ascertained, and enter the whole sum upon the duplicate for taxation.</p>

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

The plaintiff was married to John A. Smiley after the taking effect of the act of April 3, 1861 (S. & S. 389), which provides that the “rights in action,” etc., of any married woman, belonging to her at her marriage, shall “be and remain her separate property, and under her sole control.” At the time of her marriage the husband was indebted to her for personal services, and upon his death she brought an action against his administrator to recover the debt.

The action in the common pleas was brought by the plaintiff in- • error, on the oficial bond of Baker as a justice of the peace.

<p>1. Where two parties each hold a lien on the same premises, and each of them seeks the enforcement of his lien by a distinct and independent proceeding, and the party holding the inferior lien first obtains a sale of the premises, the proceeds of which sale are in the hands of the court, it is good practice, and in accordance with the policy of the law, to permit the party holding the superior and preferable lien to come in and be made a party to the proceeding of the one holding the inferior lien, and to order a distribution of the proceeds of the sale in accordance with the rights and priorities of the parties respectively.</p> <p>3. B. being the owner of a lot of land, mortgaged the same to the State of Ohio to secure a loan to him from the fund commissioners of the surplus revenue; and this was a lien upon the lot, prior and paramount to all others. Afterward, B. conveyed the lot, thus incumbered, to P., by a deed absolute on its face, but in fact intended partly as a security for a debt owing by B. to P., and partly in secret trust for the use of B., and to defraud his creditors. Thereupon W. & 0. obtained a judgment against B., and then-filed a creditor’s bill against B. and P., to set aside said conveyance, to sell the lot, and appropriate the proceeds to the payment of their judgment. Pending this proceeding by W. & 0., the State of Ohio obtains a decree of foreclosure and sale under its mortgage, and the lot is accordingly sold under that decree, and regulax-ly purchased by and conveyed to P., who thereupon mortgages the lot to S. & T., as security for a loan then in good faith made by them to him. M'eld, 1. The mortgage of S. & T. constituted the superior and preferable lien upon the lot; and when it was sold under a decree in favor of W. & 0., S. & T. were entitled to be first paid out of the proceeds; 2. For any lien acquired upon the lot by W. & 0., by virtue of their creditor’s bill, they were remitted to any surplus which might remain after satisfying the mortgage of S. & T.</p> <p>3. The pendency of the proceeding of W. & 0. to set aside the conveyance by B. to P., did not constitute a Us pendens as against S. & T.</p>

<p>Three railroad companies, of which one owned and operated a road extending from Cleveland to Columbus, and the other two owned and operated roads extending from Columbus to Cincinnati, made running arrangements by which the same cars and trains might pass over the whole line from Cleveland to Cincinnati. Afterward, the three companies, by joint contract, granted to A, for a limited term, the exclusive right to run sleeping-cars over their roads, “ for the purpose of accommodating passengers traveling on said roads, which said cars may be run each way, every night, over the line of said roads between Cleveland and Cincinnati, in connection with the night passenger express through trains between said cities.” Held, that the exclusive right thus granted to A, is limited to the through transportation upon both sections of the line, and does not prevent the companies owning the southern section of the line from furnishing and running other sleeping-cars, for the accommodation- of passengers carried over their section only, and not over any part of the northern section.</p>

<p>1. The general power conferred upon cities to establish and regulate markets and market-places, is a continuing power; and its exercise at one period by establishing a market-place and erecting a market-house in a particular locality, will not prevent the city council from removing such building, or abandoning such locality for market purposes.</p> <p>2. An order for such removal or abandonment by the city, in the reasonable exercise of the discretion vested in it by law, constitutes no ground for taxpayers, as such, to prevent by injunction the execution of such order.</p> <p>3. Whore a municipal corporation acquired real estate by absolute title in fee, the fact that the property was purchased for the purpose of establishing a marlcet-spaee, and of erecting thereon a market-house, and the further fact that the property was accordingly so used, will not make it trust property to be used only for market purposes.</p> <p>4. In establishing and maintaining a market on the property, the corporal,ion was only exercising its proprietary rights therein, and such use of the property, though it may have continued for forty years, will not constitute a dedication of the land to the public for market purposes.</p>