Volume 19 — Ohio State Reports, New Series

<p>In making a contract for the shipment of live-stock at a specified rate, a railroad company, without any additional consideration, delivered to the shipper a “drover’s pass” entitling him to go with his stock, and to return on a passenger train. In the written agreement for transporting the stock the holder of the ticket was referred to as “ riding free to take charge of the stock.” On the pass was an endorsement that it was a “free ticket,” and that the holder assumed all risk of accident, and agreed that the company should not be liable under any circumstances, whether of negligence by the company’s agents or otherwise, for any injury to his person or property, and that he would not consider the company as common carriers, or liable as such. Held:</p> <p>1. That the pass and the agreement for transporting the stock constituted together a single contract, and that the holder, both while going with his stock and returning, was not a gratuitous, but a paying passenger.</p> <p>3. That the stipulation in the contract, exempting the company from liability for negligence, constituted no defence to an action brought by the shipper for personal injury caused by the negligence of the servants of the company in the management of its trains, such stipulation being,' against the policy of the law, and therefore void.</p>

<p>Error to the district court of Green county.</p> <p>This case involves a single question relating to the con-, struction of the last will of William E. Morris.</p> <p>Item first of the will directs that the “ debts ” of the testa tor and “all just charges” shall be paid out of his “estate.”</p> <p>By itrem fourth certain real estate is devised to trustees, to be held during the minority of testator’s daughter, with power to sell ; and the trustees are directed to “ take and receive the rents and profits” that should accrue during the continuance of their estate, and “ therewith make all necessary repairs, pay all taxes and otlier necessary charges and expenses to and about the same.”</p> <p>By item sixth the testator bequeathed to said trustees all his “ right to take tolls ” upon a certain turnpike road, and certain (worthless) stock which he owned in the road company, in trust that they should pay out of the tolls and dividends on the stock twenty-five dollars per month to the testator’s mother during her natural life, and pay the residue of the same to testator’s wife and daughter.</p> <p>The testator’s right to take these tolls was derived under a sale on execution against the company, made in pursuance of a statute enacted for that purpose. The right was unavailable unless the owner would keep up repairs upon the road, and the testator had for many years kept them up at his own expense, the company being hopelessly insolvent, if not extinct Soon after testator’s death the road was found to be so ruinous, that it became necessary to apply all the tolls for a time to repairs, and thus suffer the monthly payments due the mother to run in arrears. This she objected to, and claimed that the repairs were chargeable upon the estate generally, and not upon the tolls; while the trustee (one only having accepted the trust) claimed that the repairs, as well as a reasonable compensation to him for his services, were chargeable upon the tolls.</p> <p>The mother, who is plaintiff here, then filed her petition against the trustee, making the daughter and wife also parties, asking a construction of the will, that the necessary repairs be charged upon the estate, and that her twenty-five dollars per month be paid to her, irrespective of repairs or other charges.</p> <p>The common pleas held that the cost of repairs, including a reasonable compensation to the trustee, was chargeable upon the tolls, and decreed accordingly. The case was taken by appeal to the district court, where a similar judgment was rendered. And now the plaintiff seeks to reverse the latter judgment by her petition in error.</p>

The plaintiff brought his action in the court of common pleas of Hamilton county, seeking to recover from the defendant the damages arising from the casual destruction of his house (situated within the limits of said city) by fire; on the ground that the defendant had failed and neglected to provide the necessary cisterns and suitable engines foi extinguishing fires, in that quarter of city in which his said house was situated, and that certain officers and agents of the…

Joseph Curry, a bastard, died on March 20,1851, intestate and without issue, leaving Sarah Curry his widow, and seized of lands which he had acquired by purchase, and not by descent, devise, or deed of gift. After the birth of Joseph Gurry, his mother, Frances Ervin, married William Hawkins, and, before Joseph’s death, died, leaving legitimate sons and daughters by William Hawkins.

<p>Motion for leave to file petition in error, to reverse the judgment of the. superior court of Cincinnati.</p>

Section 5 of the act of May 3, 1852, “to regulate the election of-State and county officers” (S. & C. 533), provides “ That at all elections to be holden under this act, the polls shall be opened between the hours of six and ten in the morning, and closed at six in the afternoon of the same day.” At the general election for State and county officers held in Vinton county, on the second Tuesday of October, 1868, in each, of the townships of Clinton, Harrison, and Eichland,…

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

The original action was brought in 1857, by Kate «J. Boyd against David Sinton, in the superior court of Cincinnati, to recover an undivided seventh of a leasehold of certain houses and lots in Cincinnati. She claimed title from her grandfather, John Boyd, who held the premises under a lease for ninety-nine years, renewable forever. In July, 1832, John Boyd made his will, and died October 23, 1832.

The original action, in the court of common pleas of Seneca county, was brought by White, administrator de honis non of Wilson, against Moe, a former administrator of Wilson, upon Moe’s administration bond. The action was against Moe, and Gibson, one of his sureties. The other surety was not a party.

At the September term, 1869, the grand jury presented an indictment against Henry Lasure for stealing one five-dollar United States legal-tender note, three five-dollar National Bank notes, three ten-dollar National Bank notes, one one-dollar National Bank note, one one-dollar United States legal-tender note, — the property of Patrióle Pecknan. At that term William II.

The original action was brought in the superior court of Cincinnati, by McGraw, the defendant in error, against Thomas Mead, Eobert Lear, Eobert Barker, Charles Stone, Horace Dodge, John Woodruff, James Davis, Charles Colter, and Charles Black, plaintiffs in error, to recover of them $5130, which he alleged they had won from him at the game of faro. The petition contained nineteen counts, each alleging the loss of a specified sum, at a particular date, from.

Reserved in the district court. The plaintiff in error was plaintiff below. Judgment was rendered against him upon demnrrer to his original petition, and the only question involved is whether that petition sets forth a good cause of action.

Shadford Easton, on behalf of himself and others, filed a petition in the superior court of Cincinnati, on the 19th May, 1865, to restrain Roberts from laying a double-track street railroad, in Main street, between Fifth and Liberty streets, in Cincinnati; the plaintiffs being owners of property on the line of that street, between the points named.

Tire original action, out of which the present case arises, was brought in the court of common pleas of Montgomery county, by the… Held: that, notwithstanding the payment of the notes and mortgage by Walker to Sullivan, the subsequent assignment and delivery of the notes, in good faith, for a valuable consideration, without notice, and before maturity, to said several parties, was also an assignment of the mortgage as a security for the notes, and that the same…

Mandamus. These three cases are separate petitions for a mandamus to compel the trustees of the institution for the education of the blind to execute a contract for the carpenter and joiner’s work on the new building for the erection of which provision is made by the act of May 6, 1869 (66 O. L. 128).

Reserved in the district court. Henry S. Wetmore, the plaintiff below, filed his petition in the court of common pleas, from which it appears that the plaintiff, on the 4th day of August, 1864, at Cincinnati, purchased of and paid the defendant for three tickets, to wit: one for himself, one for his wife, and another for a third person in his company, to travel on a passenger train of cars of the defendant from Cincinnati to Columbus; that the plaintiff, having delivered his…

The plaintiff and defendant are the owners of adjacent lots, Nos. 51 and 53 Broadway, Cincinnati, on each of which is a four-story brick house. The house on-No. 51 covers the entire lot, the centre of its south wall being the dividing line between it and No. 53. Between this wall and the house upon No. 53 is an area or space-way, some four or five feet wide, extending part the length of the wall.

Eeeoe to the superior court of Montgomery county. On the 18th of December, 1866, Worman & Bosler brought their action against Weldy & Recker in the superior court of Montgomery county, to recover the amount of rent due on a lease of a store or grocery room, and to subject personal property to the payment thereof, which was claimed to be: held as security therefor. The case was tried upon the petition and answer, both of which were admitted to be true.

<p>Error to tbe court of common pleas of Portage county,Reserved in the district court.</p> <p>Tbe case, so far as regards tbe question decided, is sufficiently stated in tbe opinion of tbe court.</p>

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

'Reserved in the district court. Dunn, the plaintiff below, in his petition alleges: That on the 5th day of July, 1865, the defendant was a .corporation doing business within the State of Ohio, and was the owner and proprietor of a certain railway line running from Cleveland, in Cuyahoga county, Ohio, to Meadville, in the State of Pennsylvania, and was then and there, at the date aforesaid, and for a long time prior thereto had been and still is, a common carrier, for hire,…

Appeal. Reserved in tbe district court of Seneca county. This is an action to enjoin the commissioners of Seneca county from constructing a ditch, located and about to be constructed, over the lands of the plaintiffs and others. A temporary injunction was allowed by the probate judge, but upon the hearing in the common pleas the injunction was dissolved.

At the January term, 18Y0, of Yan Wert common pleas, the grand jury made a return in writing, signed by the prosecuting attorney, to the following effect: That an accusation was made to them that Benjamin Prescott, on February 8, 1869, in that county, unlawfully, wilfully, maliciously, and feloniously burnt and caused to be burnt a barn, the property of John Boals, of the value of three hundred dollars, contrary to the statute, etc.; and that, having examined the evidence,…

<p>Error to tbe district court of Wood county.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe court.</p>

The plaintiff in error was indicted in the court below for forgery. The indictment contains six counts.

<p>In case of a joint indictment against two or more persons for burglary, and one of them is being separately tried, it is competent for the prosecution to give evidence tending to prove that one of the accused not on trial, as well as the one on trial, was present and participating in the commission of the crime; and that, very shortly before the commission of the crime, the two were consorting with each other and secretly consulting: but,' such evidence having been given by the State, it is error in the court to exclude evidence offered by the accused on trial, tending to prove that the other was not, or could not have been, present and participating in the crime.</p>

Eeserved in the district court. The original case was an action brought by Pontius and Eichmond against the plaintiff in error, to recover $1,882 damages alleged to have been sustained by reason of th'e company’s failure to carry, and deliver according to contract, a quantity of apple butter delivered to the company, to be transported from Cincinnati to New York.

The original action was brought under the statute to enforce the collection of an assessment charged upon the property of the plaintiff in error, the defendant below, for the improvement of a street. It appears from the petition: That on the 16th of Juné, 1863, the board of city improvements of Cincinnati recommended to the council of the city the passage of an ordinance to grade Oehler street, from Freeman street (its beginning) to Gerard street (its terminus).

<p>Error to the court of common pleas of Muskingum county.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

Reserved in the district court. The plaintiff sued in the court below to recover damages for personal injury occasioned by tb.e bursting of a defective boiler, attached to one of defendant’s trains of cars, upon which the plaintiff was, at the time of the accident, being carried as a passenger, under a contract for carriage from Dunkirk, in the State of New York, to New York city, in the same State.

Reserved in the district court. The plaintiff in error was indicted in the court of common pleas of Lucas county for murder in the first degree. On the trial, it appeared that the deceased and the prisoner had been friends, and no difficulty was known to liave occurred between them. Evidence was given by the State tending to show that tbe deceased was possessed of money, the obtaining of which by the prisoner constituted the motive to the murder.

<p>1. Where it appears from the caption of an indictment, that the prosecution is carried on “in the name and by the authority of the State of Ohio,” it need not be again averred in the successive counts of the indictment ; and if the indictment contains more than one count, and a nolle prosequi is entered as to the first, the remaining counts of the indictment ■will not thereby be rendered defective for want of that averment, where it is contained in the caption.</p> <p>3. An indictment for keeping or exhibiting gaming devices cannot be sustained under the eighth section of the “ act for the prevention of gaming,” as amended April 10, 1868, without it is averred that such devices were kept or exhibited ‘ ‘ for gain; ” nor can such indictment he sustained under the second section of the “ act more effectually to prevent gambling,” as amended April 17, 1857, unless it is averred that the defendant kept or exhibited such devices “ to win or gain money or other property of value,” or that he aided, assisted, or permitted others to keep or exhibit them “ to win money or other property of value.”</p>

<p>1. Id. a prosecution for rape it is competent to impeach, the prosecutrix, who has been examined as a witness therein, by proving her reputation for truth to be bad at the time of examination; and it is error in the court to limit such evidence to her character as it existed at and before the time of the commission of the alleged crime.</p> <p>2. In such a prosecution evidence that the defendant’s brother made offers to compound the crime is not competent on the part of the State, unless in connection with evidence of authority to make the offer, or of some knowledge thereof by the defendant.</p>

<p>The 9th section of the act of April 30,1852, “ To provide for compensation to the owners of private property appropriated to the use of corporations” (S. & C. 311), is applicable to proceedings for appropriation and compensation instituted by the land-owner under the supplemental act of April 6, 1865 (S. & S. 114); and the proceedings in the probate court in such cases can be reviewed by the court of common pleas only when the petition in error is filed for that purpose within fifteen days from the rendition of the judgment in the probate court.</p>

Reserved in the district court. This was an action upon a policy of insurance, and the only question necessary to be considered is, whether the policy is void, for failure of the plaintiff to state in his written application therefor the fact that there was a subsisting mortgage upon the premises insured.

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

<p>Wiere an attaching creditor files the proper affidavit entitling him to am attachment, his failure to file the statutory undertaking for the indemnity of the defendant does not render the attachment absolutely void, but is a mere irregularity, of which the defendant in attachment alone can taka advantage.</p>

Eeserved in the district court. On the 15th of August, 1866, the Iron Eailroad Company filed its petition against the city of Ironton, in the court of common pleas of Lawrence county, stating in substance: That the plaintiff is an incorporated company under the act of March 7,1849, of the general assembly of Ohio, and by that act was authorized” to construct a railroad from the Ohio river, in Upper township, Lawrence county, Ohio, to the Bouth line of Jackson county, etc.;…

<p>1. Asylums for disabled volunteer soldiers of the United States are among the “needful buildings” for the erection of which the Government of the United States, through the medium of a corporation created by itself or otherwise, may purchase and hold territory, under the provisions of article 1, sec. 8, of the Constitution of the United States.</p> <p>: 2. When territory for such'purpose is so purchased by “ the consent of the legislature of the State in which the same shaE be,” the Government of the United States is invested, under the provisions of the same section, with exclusive jurisdiction over the same and its appurtenances, in all cases whatsoever.</p> <p>: 3. The inmates of such an asylum, resident within such territory, being within the exclusive jurisdiction of a government other than that of the State within whose boundaries such asylum or territory may be situate, are not residents of such State, within the meaning of article 5, sec. 1, ■ of the constitution of Ohio; and where the constitution of such State confers the elective franchise upon residents thereof alone, the inmates of such asylum, resident within such territory, are not entitled to vote at any election held within and under the laws of such State.</p> <p>*4. In the trial of a contested election for a county office, before a court of common pleas, the general rule of evidence, which requires the production of the'best evidence of which the case in its nature is susceptible, applies in respect to the contents of poll-books, tally-sheets, and the number and contents of ballots cast at an election, in cases where the .proiduction of the same is attainable.</p> <p>5. The vote of a man otherwise qualified, who is neither a lunatic nor an idiot, but whose faculties are simply greatly enfeebled by age, ought not to be rejected.</p>

<p>Error to tbe court of common pleas of Ricbland county. Reserved in tbe district court.</p> <p>Tbe questions in this case are raised by tbe pleadings m tbe original action.</p> <p>Tbe plaintiffs brought tbeir action in tbe court below to enforce a contract for tbe sale by them to Robert McComb of certain stock in tbe Columbus and Lake Erie Railroad Company, which bad been subscribed by tbe commissioners of Knox county, under tbe authority of an act passed February 26,1846.</p> <p>Tbeir petition was as follows:</p> <p>“Tbe said commissioners of Knox county, Ohio, plaintiffs, complain of tbe said William J. McComb and Joshua Davis, jr., executors of tbe last will and testament of Robert McComb, deceased, and say that tbe said commissioners were-on the 30th day of September, A.D. 1853, the lawful owners of one hundred shares of the stock of the Columbus and Lake Erie Railroad Company, and being such owners, they did, on the said 30th day of September, A.D. 1853, transfer the said stock to the said Robert McComb, then in full life, and the said Robert McComb, in consideration thereof, then promised the said plaintiffs, in writing, that he would pay them, the said commissioners, therefor, the sum of five thousand dollars, on or before the first day of June, A.D. 186T, with interest on said sum from and after the 1st day of October, A.D. 1853, the said interest to be payable annually, on the 1st day of October of each year. It was further provided by the said writing, that the said principal sum,.or any part thereof, might be paid at the office of the county treasurer of said Knox county, either in money, or in the bonds of said county, which had been issued by the said county in payment of its subscription for stock in said railroad company, such payment to be evidenced by the said treasurer’s receipt therefor; and it was further provided, that in like manner the interest to accrue on said sum should be paid to the said treasurer, at his office, either in money or by the application of the interest that had accrued upon the above-named bonds, issued by the said county. A copy of said writing and the indorseiment thereon is hereto attached, marked ‘A,’ and made a ¡part of this petition. ■ v</p> <p>“ Plaintiffs further say, that the said Robert McComb did -on the said 30th day of September, A.D. 1853, and at the time of said purchase of stock, and as a part consideration i therefor, execute and deliver to the said plaintiffs, a written -pledge and hypothecation ■ of said one hundred shares of i stock, to secure the payment of said sum of five thousand ■ dollars and its interest as aforesaid. A copy of said pledge is hereto attached, marked ‘ B,’ and made a part of this petition.</p> <p>“Plaintiffs further say, that the said Robert McComb did not in his lifetime, nor have his said executors since his death, .paid any sum whatever on said obligation, as principal or ¿interest, either in money or in the bonds of the said Knox county, ,or by tbe application of any interest that had accrued on the said county bonds.</p> <p>“ And plaintiffs further say, that there is now due to them, from the said defendants, as executors as aforesaid, for interest accrued on the said obligation, the sum of four thousand seven hundred and eighty-eight dollars, with interest on the same since the 1st day of October, A.D. 1865.</p> <p>“ Plaintiffs, on the 13th clay of December, A.D. 1865, presented to the said defendants, as executors as aforesaid, a true account of the aforesaid claim against the estate of the said Bobert McComb, deceased, duly authenticated, and demanded their indorsement thereon of its allowance as a valid claim against said estate, which indorsement and allowance the said executors refused to make, but on the contrary rejected the said claim.</p> <p>“ Plaintiffs ask judgment against the said defendants, as executors as aforesaid, for the sum of four thousand seven hundred and eighty-eight dollars, with interest on the same, since the 1st day of October, A.D. 1865.”</p> <p>COPT OK PAPER, MARKED “ A.”</p> <p>“In consideration of one hundred shares of the stock of the Columbus and Lake Erie Bail-road Company, transferred to him by the county commissioners of Knox county aforesaid, the sum of five thousand dollars, on or before the first day of June, A.D. 1867, with interest to be paid annually on the first day of October, from and after the first day of October, A.D. 1853, payment of which said principal sum or any part thereof may be made at the office of the county treasurer of said county, in money or in the bonds of said Knox county, issued in payment of said county subscription, for its stock in said railroad company, to be evidenced by said treasure'r’s receipt therefor, and in like manner the interest to accrue on this obligation shall be paid to said treasurer, at ids said office, in money, or by the application of interest accrued upon the bonds above named of the county.</p> <p>“ Given under my hand this 30th day of September, A.D, 1853.</p> <p>Bobert McComb.”</p> <p>Said writing is indorsed as follows:</p> <p>“ The payment of the money within named is secured by a pledge or hypothecation of the stock within named, to the said county commissioners, bearing even date herewith.”</p> <p>COPT OK PAPER, MARKED “ B.”</p> <p>“The undersigned, Robert McComb, being indebted to the county commissioners of Knox county, Ohio, in the sum of five thousand dollars, payable on or before the first day of June, A.D. one thousand eight hundred and sixty-seven, at the office of the county treasurer of said county, with interest thereon payable annually on the first day of October, A.D. 1853, as by the written undertaking to said county commissioners, bearing even date herewith, more fully appears, hereby pledge and hypothecate to said county commissioners of Knox county, Ohio, as a security for the payment of said indebtedness according to said undertaking, the same one hundred shares of the capital stock of the Columbus and Lake Erie Railroad Company, which were transferred to him by said commissioners, as the consideration for said indebtedness, the certificate of which stock bears even date herewith, and has written upon the same a memorandum of the fact of this pledge, and is numbered twenty-six. This pledge is made subject to the following terms and conditions:</p> <p>“First. Lf said indebtedness shall be well and truly paid, with the interest to accrue thereon according to the terms and conditions of said undertaking, this pledge is to be void.</p> <p>“ Second. H default be made in the payment of the principal sum of said indebtedness, or of any instalment of any interest to accrue thereon, for the period of fifty days after the same shall become due and payable according to the terms of said undertaking, the said commissioners are hereby fully authorized and empowered, at any time after thirty days’ notice of the time and place of sale, published in some newspaper of general circulation in said Knox county, to sell and dispose of said stock at public vendue, at the court house door in said county, for the best price to be had therefor in money. The proceeds, after paying necessary expenses, t® be applied in payment of tbe principal and interest of said indebtedness, and the residue, if any, to be paid over to him, or his assigns (subject to his pledge) of said stock. Provided, however, that he or his said assigns shall have the right, at any time before such sale is concluded, to redeem said stock from liability to be sold, by paying of the amount due of principal and interest according to said undertaking of said indebtedness, with all necessary expenses incurred with a view to such sale.</p> <p>“ And provided further, that in case of the death of the grantor of this pledge, no sale shall be had of said stock until after the expiration of eight months after the death of said grantor.</p> <p>“ Thvrd. If a consolidation shall be effected according to law of the said Columbus and Lake Erie Railroad Company and the Mansfield and Sandusky City Railroad Company, whereby the grantor of this pledge shall become entitled to stock in the new company, to be formed by such consolidation, said grantor, at the time of receiving said new stock, shall pledge the same to said county commissioners, subject to the same conditions annexed to this pledge, and thereupon this pledge shall become void.</p> <p>“Fourth. The grantor of this pledge, or his assigns thereof, shall have the right, at any time hereafter, to have this pledge cancelled and given up, upon substituting in lieu thereof any other security acceptable to the commissioners, and in case of a partial payment of the principal sum of said indebtedness, the grantor shall have the right to have a proportional part of the stock hereby pledged, or which may hereafter be pledged in the new company, released.</p> <p>“Robert McComb.</p> <p>“September 30th, 1853.”</p> <p>To this petition the defendants answered as follows:</p> <p>“The said defendants for answer to the petition of the said plaintiffs say, that by a special act of the general assembly of the State of Ohio, entitled ‘ An act to authorize the commissioners of Knox and other counties to take stock in a railroad, passed February 26, A.D. 1846,’ the plaintiffs were authorized on certain conditions, in said act specified, to become subscribers, to an amount not exceeding one hundred thousand dollars, to the capital stock of any railroad company, by whose road a direct communication should be opened through said county of Knox, and to or near its county seat; and in payment of the stock subscribed by them, they were further authorized by said act to issue bonds or obligations of said county, of equal amount,, payable to such company, to be negotiable, to bear interest at the rate of six per cent, per annum, payable annually at the treasury of the county, and to be redeemable at such times as they might deem expedient, but not over twenty years from date.</p> <p>“ The plaintiffs, by virtue of the powers conferred upon them by said act, subscribed one hundred thousand dollars to the capital stock of the Columbus and Lake Erie Railroad Company, and in payment thereof, in pursuance to the provisions of said act, issued the bonds of said county, five hundred of which were of the denomination of $100 each; and one thousand of which were of the denomination of $50 each a portion of each denomination being dated November 1, 1847, and the remainder March 1, 1848, and all of which were made payable June 1, 1867, with interest payable on the 1st of January of each successive year. A true copy of the body of all of said bonds, date, number, and amount excepted, is hereto attached, marked “ A,” and made a part of this answer.</p> <p>“ For the payment of the indebtedness of the county thus created, and the interest thereon, it was expressly provided among other things by said act, that the faith of the county^ and the net profits or dividends upon the stock so subscribed, should stand pledged to the holder of said bonds.</p> <p>“ The plaintiffs were also by said act specially authorized, in order to pay off such indebtedness, to sell and transfer, whenever they might deem the same expedient, any or all of the stock so subscribed or owned by said county; but it was expressly provided by said act, that no sale or transfer of the stock thus owned by the county should be of any force, except upon condition of its producing its full par value, and the actual extinguishment or cancellation of an equivalent amount of said obligations of said county, created under said act. Defendants further say, that the one hundred shares of stock in the petition mentioned were parcel of the stock so subscribed and paid -for by the plaintiffs as aforesaid, and the par value thereof on the said 30th day of September, A.D. 1853, was five thousand dollars in money. The alleged sale and transfer of said stock did not produce its full par value, nor did it extinguish or cancel an equivalent or any amount of the said obligations of said county created under said act. The only consideration of said sale and transfer of said stock was tl^e supposed obligation of said Robert McOomb, set forth in the petition, and the only consideration of the said supposed obligation of said McOomb was the said sale and transfer of said stock.</p> <p>“ Defendants further say, that at the time of the alleged sale and transfer of said stock to the said Robert McOomb, all the said bonds of said county, issued under the act aforesaid, amounted to one hundred thousand dollars as aforesaid, were outstanding and unpaid, and constituted a subsisting indebtedness against said county; and they further say, that the principal part of the same is still outstanding and unpaid, and a subsisting indebtedness against said county.</p> <p>“ Defendants fm’ther say, that the sale and transfer of said stock so made by the plaintiffs as aforesaid, was not only without legal authority and power on their part, but was illegal, and in violation of the said statute of the State of Ohio, and the same was wholly void, and conferred no valid right upon said McOomb to said stock. They also say that the supposed obligation and agreement of said McOomb, in the petition set forth, was without consideration and is null and void.”</p> <p>COPT OK BOND MARKED “ A.”</p> <p>The county of Knox, in the State of Ohio, doth acknowljdge to owe to the Columbus and Lake Erie Railroad Company or bearer, the sum of fifty dollars, to be paid at the treasurer’s office of said county; on the 1st day of June, 1867, with interest at the rate of six per centum per annum, on the successive first, days of January of each year, bn presentation to the treasurer of the respective interest warrants hereto attached. This bond, however, may be paid at any time hereafter, at the pleasure of -the commissioners of said county, at the treasurer’s office aforesaid, provided the said commissioners shall give three months’ notice thereof by publication in some newspaper to be printed in the town of Mount Vernon; in which case, if the said commissioners shall provide the necessary means of payment, and the holder neglect to present this bond for payment, and surrender the unpaid interest warrants, then the interest herein shall thenceforth cease to accrue. This bond is No. 657, of a series of one thousand bonds of this tenor and date, issued under the statute of Ohio, entitled “ An act to authorize the commissioners of Knox and other counties to take stock in a railroad, passed February 26th, 1846,” and the said county doth hereby pledge its faith, and the net profits and dividends of its stock in said railroad, to the holder of this bond, for the payment of this indebtedness and interest, and doth hereby obligate itself, that its officers shall carry into execution the fourth section of said statute, according to its true intent and meaning.</p> <p>“In witness whereof, the commissioners and auditor of said county have hereunto set their names and1 the seal of said county.</p> <p>“J. Withrow,</p> <p>[seal.] “ Robert Graham,</p> <p>“Wm. Babcock,</p> <p> Commissioners of Knox Cotmty. </p> <p>“M. M. Beam, AvKitor.</p> <p>u Ma/rehlst, 1848.”</p> <p>To this answer the plaintiffs demurred, on the ground that it did not contain sufficient facts to bar their action. This demurrer was overruled, and the plaintiffs excepted.</p> <p>Thereupon the plaintiffs replied as follows:</p> <p>“ First. • The said plaintiffs for reply to the answer of the said defendants say, that the said plaintiffs before the commencement of this suit, and on, to wit: the 28th day of May, A.D. 1866, were prepared with five thousand dollars of the bonds issued by the said county of Knox, in the manner set forth in the answer of the said defendants, which said' bonds were then outstanding and subsisting liabilities against the said county of Knox; and they further say, that they then presented the said bonds to the said defendants, and offered to cancel the same upon the said defendants paying to the said plaintiffs the amount then due to plaintiffs, upon the obligation of the said Robert McComb, deceased, set forth in the said petition, but the said defendants then refused to pay the same, or any part thereof.</p> <p>“ Second. The said plaintiffs for a second reply to the answer of the said defendants say, that they deny that the obligation of the said Robert McComb, set forth in their said petition, was given without consideration, or was or is null and void.”</p> <p>To each of these replies the defendants demurred, and their demurrers were sustained, and the plaintiffs excepted.</p> <p>Judgment was thereupon entered for the defendants.</p> <p>To reverse this judgment, a petition in error was filed in the district court.</p> <p>The errors assigned were:</p> <p>1. That the court of common pleas erred in overruling the demurrer to the amended answer.</p> <p>2. In sustaining the demurrer to the first reply.</p> <p>3. In sustaining the demurrer to the second reply.</p> <p>4. In giving judgment for the defendants.</p> <p>The district court reserved the case to this court for decision.</p>

<p>Error to the court of common pleas of Wood county. Reserved in the district court.</p> <p>On the 5 th of June, 1867, a petition was presented to the board of commissioners of Wood county for the establishment of a county road. Two of the petitioners, Jesse and John Eaton, gave bond as required by the statute. Viewers were appointed, who made their report at the September session of the commissioners, in favor of the establishment of the road, with their estimate of the damages occasioned thereby. The amount assessed in favor of Mary E. Junkins, who duly preferred her claim for damages by reason of the contemplated road, was fifty-seven dollars. Being dissatisfied with the report of the viewers, Samuel R. Junkins, the husband of Mary E., filed with the commissioners a petition for review, and gave bond as required by the statute. Accordingly a committee of review was appointed, consisting of five members, three of whom made report, at the December session of the commissioners, against the establishment of the road. This report was set aside by the board, for the reason that it does not appear from the report that more than three of the reviewers appointed met and acted under- the order of review. But the board granted leave to file a new petition for a review at any time before the meeting of the board in March, 1858. At tbe meeting in March, 1858, no petition for review having been filed, and the damages assessed by the viewers having been paid by the petitioners for the road, the board made their final order establishing the road, and issued their order to the trustees of the proper township to open the road thirty feet wide for one half mile, and forty feet wide the remaining half mile of the distance.</p> <p>To reverse the order of the commissioners establishing the road, Mary E. .Junkins, with Samuel E. her ñusband, filed in the court of common pleas their petition in error, making “the board of commissioners of "Wood county, Ohio” defendant, and assigning for error that the commissioners erred in setting aside the report of the majority of the reviewers, and in establishing the road after that report. It is also alleged, as matter of fact, that the two reviewers who did not sign the report met and acted with those who signed and made the report.</p> <p>The commissioners demurred to this petition on two grounds: 1. Eor defect of parties, and that the commissioners cordd not be legally made parties defendant: 2. That the facts stated in the petition are insufficient to warrant the judgment prayed for in the petition.</p> <p>The court of common pleas overruled the demurrer and reversed the order of the commissioners establishing the road, and rendered judgment against the commissioners for costs. Thereupon the board of commissioners filed a petition in error in the district court to reverse the common pleas, and assigned for error, that the court of common pleas erred in overruling the demurrer to the petition, and in rendering judgment against the commissioners. Under this assignment of error it is claimed that the court of common pleas had no jurisdiction of the case.</p>

<p>Motion for leave to file a petition in error to reverse tbe judgment of the superior court of Cincinnati.</p> <p>This case has heretofore been in this court on error, and is reported in 15 Ohio St. 149. At that time the judgment of the court below was reversed, and the case remanded for a new trial. On the last trial, the existence of the verbal agreement which formed the ground of reversal was negatived by the finding of the jury. The case is now presented on the question, which was left undecided at the former term, whether Miller & Co. have the right of set-off claimed, independent of the verbal agreement they set up.</p> <p>The firm of Ellis & Sturges, bankers doing business.in Cincinnati, having become insolvent, dissolved their copartnership. Ellis removed to Chicago, leaving the assets in the possession and control of Sturges, who proceeded to settle the affairs of the firm. At the time of their failure, Ellis & Sturges were indebted to Miller & Co., the defendants below, in the sum of $2100, and to Florer, the plaintiff below, in the sum of $2050, which was subsequently increased by $629.75, advanced by Florer to Sturges, to assist him in his efforts at settlement.</p> <p>On the 22d of November, 1856, Miller & Co. received from Sturges the note of Pickett, McMurdo & Co., part of the assets left with Stnrges, upon an agreement (called in the record paper A), of which the following is a copy:</p> <p>“ Cincinnati, Ohio, Nbv&rriber 22, 1856.</p> <p>“Received of W. Stnrges, note of Pickett, McMurdo & Co., for nineteen hundred and seventeen dollars and sixty . cents ($1,917.60), dated New Orleans, February 1,1855, and payable nine months from date, and when same is collected we are to credit Ellis & Sturges with five hundred dollars, and pay over balance to W. Sturges in cash.</p> <p>“Miller & Co.”</p> <p>In April, 1859, Sturges assigned this balance to Florer on his claim, by delivering to him the agreement with this indorsement thereon:</p> <p>“ Messrs. Miller & Co., please pay over to N. M. Elorer the balance of the within, after reserving the five hundred dollars mentioned therein.</p> <p>W. Sturges.”</p> <p>Elorer’s action below was to recever this balance.</p> <p>Miller & Co. received from Pickett, McMurdo & Co., in payment of' the note obtained from Sturges, the note of Belcher & Co. for a larger amount, they, Miller & Co., paying the difference in cash. This note of Belcher & Co., at the time of its receipt by Miller & Co., the evidence tended to show, was not worth in the market over seventy cents on the dollar; but it appears that they indorsed it without recourse to one of their creditors, who received it in payment of his demand at par.</p> <p>On the trial, Miller & Co. insisted on their right to apply the indebtedness from Ellis & Sturges to them by way of set-off against their liability on the agreement for the amount realized from the note of Pickett, McMurdo & Co. over and above the $500 which, by the terms of the agreement, they were to credit on such indebtedness.</p> <p>In this view they asked the following instructions to be given to the jury:</p> <p>1. “If at the time the note of Pickett, McMurdo & Co. wag received by the defendants, and at the time of settlement thereof by the defendants it was held by Sturges for Ellis & Sturges as the assets of Ellis & Sturges, then the defendants can set off their debt against Ellis & Sturges to the instrument sued upon in this action.”</p> <p>2. “ If at the time the note of Pickett, McMurdo & Co was received by the defendants, and the time of settlement thereof by the defendants, the firm of Ellis & Sturges had been dissolved and the assets given over to Sturges, who was to pay the debts, and he held this note of Pickett, McMurdo & Co. as a part of the assets of the firm, then the defendants can set off their debt against Ellis & Sturges to the instrument sued upon in this action.”</p> <p>These instructions were refused, and exception taken.</p> <p>In respect to the evidence offered, tending to prove the verbal agreement set up by the defendants, and which, if established, it has been held would require the set-off to be allowed, the defendants’ counsel asked the following instruction to be given to the jury:</p> <p>3. If the jury “believe that the note of Pickett, McMurdo & Co. was received by the defendants upon promises of payment of the indebtedness of Ellis & Sturges to the defendants, $1000 in November, and $500 out of the said note when collected, and the balance in the following spring, and the defendants relying upon these promises did not proceed to collect the same, because of such promises, and received the note under the same, then the paper A does not estop them from setting off this debt against Ellis & Sturges, even if these promises did not amov/nt to an agreement, provided the jury find the note was the property of Ellis & Sturges, or held by Sturges for their benefit, and the agreement A was for their benefit.”</p> <p>This instruction was also refused, and exception taken.</p> <p>The verdict and judgment were for Florer, the plaintiff below. That judgment was affirmed on error by the court in general term. Miller & Co. now ask leave to file a petition in error in this court, to reverse these judgments</p>

<p>• 1. In an indictment for burglary charging the crime to have been committed “ on the sixteenth day of March, in the year of our Lord one thousand eight hundred and sixty-nine, in the night season of the same day, to wit, about the hour of two o’clock at night,” the allegation as to tiine is sufficiently definite and certain.</p> <p>2. The fact that a party has been indicted, tried, and acquitted in one county, on a charge of burglary and larceny committed therein, is not a bar to an indictment against the same party, in another county, charging a burglary in the latter county.</p> <p>3. The facts that a building was burglariously entered, goods stolen therefrom, and the possession by the accused soon thereafter of the goods stolen, are competent evidence to go to the jury, and with other circumstances indicative of guilt, such as giving a false account, or refusing to give any account, of the manner in which, or the means by which, he came into possession of the stolen goods, may afford a strong presumption of fact of the guilt of the accused, and warrant the jury in finding him guilty of both the burglary and larceny. But the facts of burglary, of larceny, and of possession of the stolen goods soon thereafter by the accused, do not, alone, raise a presumption of law that he is guilty of ' both the burglary and larceny.</p>

<p>Error to the court of common pleas of Preble county. Reserved in the district court.</p> <p>The defendant in error was organized as a corporation, in January, 1852, under a law of this State, passed in 1849, for the purpose of constructing a turnpike road. The plaintiff in error was one of the subscribers to the stock of the company, and has fully paid up'his subscription; and the law under which the company organized imposed no individual liability upon the stockholders beyond the amount of their subscriptions.</p> <p>By the act of May 3d, 1852 (S. & C. 289), turnpike companies, who should accept the provisions of said act, were' authorized, when they found it necessary for the completion, of- their roads, or for the payment of indebtedness incurred" in their construction, to issue bonds for that purpose; and the stockholders of all companies accepting the act were declared to be individually liable, to the amount of their stock,, for the payment of bonds so issued for the completion of the-road.</p> <p>By the act of April 8th, 1856 (S. & O. 338), it is provided that in all cases where the stockholders of such companies are-individually liable for the debts of the company, the stockrholders may, if a majority of them so determine at a meeting called for that purpose, be assessed upon their stock, and compelled to pay to the company their pro rata of the indebtedness of the company, not exceeding the amount of their stock.</p> <p>In 1854, the company having partly constructed its road, and being largely in debt, and without means to complete the road, the board of directors accepted the provisions of said act of May 3d, 1852, and issued and sold its bonds for the necessary amount to complete the road.</p> <p>In October, 1856, the bonds having matured, and the company being without other means to pay them, in pursuance of the provisions of said act of April 8th, 1856, a meeting of the stockholders was called, and by a unanimous vote of those present, a general assessment was made upon the stockholders for the necessary amount to pay the bonds. The plaintiff in error was not present at the meeting, and did not participate in the proceedings, or give his assent thereto. He refused to pay his assessment; and to recover the same the company brought an action against him in the court of common pleas. In that court judgment was rendered in favor of the company for the amount of the assessment. To reverse that judgment, the present plaintiff filed his petition in error in the district court, and the same was therein reserved to this court for decision.</p> <p>There are numerous assignments of error, growing out of defences set up, and the pleadings and evidence in the case, ■which it is unnecessary to notice here, for the reason that 'this court disposes of the case upon a single question, to -.fully understand which it is only essential to set forth the ■facts above mentioned. These facts substantially appear in ithe original petition, and the question decided by this court ■is simply whether these facts make a case entitling the com■pany to recover.</p>

<p>Error to the superior court of Cincinnati.</p> <p>The case, so far as regards the points decided, is sufficiently stated in the opinion of the court.</p>

<p>B. and S., on sufficient consideration, made the following agreement and guaranty to and with M.:</p> <p>“ I hereby agree to cancel all incumbrances (if any) in six months from this date, on a certain piece of land containing one hundred and sixty acres, this day sold to George W. Manaban, situate in the county of Steuben, State of Indiana, James township, except taxes.”</p> <p>(Signed) “B.W. Breckenridge.’”</p> <p>“ I hereby guarantee that the above undertaking will be complied with.” (Signed) “ Isaac Smith."</p> <p>This agreement was subsequent to the sale and conveyance of the premises to M. An attachment had been previously levied, on the premises so sold, by creditors of B., and was at the time of the sale a subsisting lien thereon. B. denied the validity of his creditors’ claims, and took upon himself the defence of the pending suit in attachment in Indiana. Bailing in his defence, he permitted the land to be sold by order of court, for the satisfaction of the judgment 'in attachment, without notice to M., who resided in Ohio, and did not hear of the sale till several months thereafter.</p> <p>In an action by M. against S. on his guaranty, — Meld: That the measure of damages which the plaintiff was entitled to recover, under the circumstances, was the value of the land at the time title thereto was lost hy the plaintiff, and interest thereon till judgment.</p>

<p>Error to the court of common pleas of Stark county. Reserved in the district court.</p> <p>Henry B. Curtis, as administrator de bonis non, with the will annexed, of William Christmas, deceased, on January 13, 1866, filed a petition in the court of common pleas against the administrators of Arnold Lynch, deceased, stating, in substance, that on the 8th of December, 1842, Lynch was appointed and qualified as administrator of Christmas, and as such received large sums of money belonging to the estate of Christmas, and continued to act as such administrator until the 20th of December, 1856, when he died, without having filed any account, and without having fully administered the estate of Christmas. That the administrators of Lynch, duly appointed and qualified, entered upon the discharge of their duties on the 19th of January, 1857; and that- Curtis was duly appointed and qualified as administrator de honis non of Christmas. That, on May 14 1859, the administrators of Lynch filed in the probate court of Stark county his account as administrator of Christmas, to which account Curtis, as administrator de honis non of Christmas, filed exceptions; and that such proceedings were had on the account and exceptions, that, on February 5th, 1861, the probate court, on final hearing, found in the hands of-Lynch, at his death, after allowing and deducting all payments, credits, and compensation to which he was entitled, the sum of. $26,800.79, which sum the probate court found and adjudged to be due from the estate of Lynch to the estate of Christmas, and that such finding and judgment are irt full force, and remain of record in the probate court. That, on the 11th of April, 1865, the administrators of Lynch filed in the probate court an account, showing a large sum of money to be in their hands belonging to Lynch’s estate, but also representing and showing that the estate was probably insolvent. That, on May 8th, 1865, the probate court declared the estate probably insolvent, and ordered the administrators of Lynch to proceed according to law as commissioners to receive and examine the claims against the estate, and to give notice to its creditors of its insolvency by publication for six months. That on the 6th of October, 1865, and within the six months, the plaintiff, as administrator de honis non of Christmas, presented to the administrators of Lynch, as commissioners, a statement of the findings and adjudication of the probate court, duly certified, etc., and showing the amount found by that court to be due from Lynch’s estate to the estate of Christmas, as a valid claim against the estate of Lynch, and that his administrators took the claim Under consideration, and on November 17th, 1865, filed in the probate court their report, and a list of claims allowed by them, but that in the report they disallow the claim so presented by the plaintiff. A certified copy of such statement is attached to and made a part of the petition. That on the 2d of June, 186J, there was paid to the plaintiff, on the claim by one of the sureties on Lynch’s administration bond, the sum of $7500, and that there is still due the plaintiff as administrator of Christmas, from Lynch’s administrators, the sum of $27,310, for which he asks judgment against them, etc.</p> <p>' To this petition Lynch’s administrators demurred, -on’ the ground that it does not state facts sufficient to constitute a cause of action against them.</p> <p>The demurrer was sustained, and judgment entered for the defendants, and exception taken.</p> <p>To reverse the judgment the. plaintiff filed a petition in error in the district court, and the same was therein reserved to this court for decision.</p>

<p>1. The holder of a bill of exchange payable on a day certain is not bound to present the same for acceptance to the drawee; and a presentment for payment at the time and place at which it is made payable is a sufficient presentment to charge the drawer and indorsers.</p> <p>2. W. drew a bill of exchange at Cleveland, Ohio, addressed to G-. at his place of business in the city of New York, and payable on a day certan at the Ocean Bank in the last-named city. At maturity the bill was presented at the bank for payment, and duly protested for non-payment. The drawee was in funds at the maturity of the bill, and would have paid it had he been advised of its existence, but he subsequently became insolvent. Held: That it was the duty of the drawer to have given the drawee the requisite advice, and that the presentment was sufficient to charge the antecedent parties to the bill</p>

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

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

<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 court of common pleas of Williams county.</p> <p>The case is sufficiently stated in the opinion of the cour;.</p>

Reserved in the district court. Previous to the 13th of January, 1866, R. Lewis & Son, manufacturers of oil at Toledo, had placed in store with H. S. Walbridge & Co., the defendants, doing business as ware-housemen, fifty-seven barrels of oil. At the same time, they were indebted to the Second National Bank of Toledo, the plaintiff, in a large amount of money, and were seeking further loans, which were refused unless additional security was provided.

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

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

Appeal. Reserved in the district court of Lucas county. This is an action to compel the specific execution of three several contracts, made by Hicks with Campbell, for the sale by the former to the latter of three lots in the city of Toledo. The case came by appeal into the district court, where all the evidence was heard and embodied in the record, and the cause then reserved for decision here.

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

<p>1. A right of action accrues on each item of an account at the time of its proper date; therefore the statute of limitations then begins to run against it, and an action thereon will be barred in six years, unless it is taken out of the statute on some special ground.</p> <p>2. Under the fifth section of the act of 1831, for the limitation of actions, an item of an account will not be taken out of the statutory bar on the ground of an implied acknowledgment, or of a promise of payment, arising from a subsequent item in the account, unless the latter item is within six years of such former item, and within six years before the commencement of the action.</p> <p>3. Each item of an account, to which the limitation of actions prescribed in the code of 1853 is applicable, is barred in six years after the right of action accrued thereon, unless there has been a part payment of the account, or an acknowledgment of liability thereon, or a promise to pay the same, “in writing, signed by the party to be charged thereby,” within six years before the action is commenced.</p>

<p>Error to the court of common pleas of Lorain county. Reserved in the district court.</p> <p>On the 26th of November, 1866, Howk, plaintiff, filed in the court of common pleas his petition, stating: That, on or about the 20th day of March, 1854, he was the owner of certain United States and foreign gold and silver coin, of the value and amount of eight hundred and fifty dollars; that the same was in possession of and kept by the plaintiff in his dwelling-house at Wellington, Ohio; that the defendant, Minnick, in the night season, did unlawfully, feloniously, and with force and violence, against the will of the plaintiff, and without his knowledge, break and enter into said dwelling, and did then and there fraudulently take, steal, and carry away said coin, and convert the same to his own use, and, from that date to the present, fraudulently concealed such taking and concealing of the coin from the plaintiff; and that the defendant’s connection with the taking and conversion of the coin was fraudulently concealed from the plaintiff’s knowledge. That by reason of the premises the plaintiff has been damaged in, and there is due to the plaintiff from the defendant, the sum of one thousand and six hundred dollars, for which judgment is asked.</p> <p>The defendant demurred to the petition on two grounds : 1st. It does not state facts sufficient to constitute a cause of action; 2d. It appears from the face of the petition that the cause of action is barred by the statute of limitations.</p> <p>The demurrer was sustained, and the petition dismissed, and exception taken.</p> <p>The plaintiff then filed his petition in error in the district court, wherein the case was reserved to this court for decision.</p>

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

<p>Appeal. Reserved in the district court of Lake county.</p> <p>In August, 1866, the plaintiff, Holloway, filed his petition in the court of common pleas of Lake county, against Roxana Stuart, administratrix of the estate of Alvah Stuart, deceased, and Lyman Durand and wife, stating in substance: That on the 21st of October, 1854, Roxana Stuart and her husband Alvah Stuart, executed to the plaintiff a mortgage on a house and lot described, situate in Lake county, to secure the payment of Alvah Stuart’s bond for two hundred dollars, payable in the year 1855; that the mortgage was duly recorded in the office of the county recorder in November, 1854; that said Alvah Stuart died on the 26th of June, 1865, after the maturity of the bond, leaving due upon it and the mortgage one hundred and seven dollars and .accrued interest; that Roxana Stuart, as the administratrix of said Alvah, on the 1st of August, 1865, filed her petition in the court of common pleas of Lake county, stating that the personal estate was insufficient to pay the debts of her testator, and asking an order to sell the above-mentioned mortgaged premises, and that the order was granted, and the premises were sold in September, 1865, to Lyman Durand, for one thousand and one dollars, and that the sale was confirmed, purchase-money-paid, and deed executed in October, 1865 ; that the plaintiff, Holloway, was not made a party to the petition for the sale of the land, and had no notice of its pendency; that his mortgage was the first lien on the premises; that the sale was made and the money disposed of before he had any knowledge of the proceedings; that nc part of the purchase-money for the premises had been paid to him, but that the amount and interest mentioned remained unpaid; and that said Eoxana Stuart had become a resident of Michigan. The plaintiff thereupon prayed for a foreclosure, and for a sale of the mortgaged premises for the satisfaction of the mortgage debt.</p> <p>■ To this petition Eoxana Stuart failed to plead, answer, or demur; but the defendants Durand and wife demurred generally, on the ground that the facts stated in the petition do not entitle the plaintiff to relief as against them.</p> <p>The common pleas sustained this demurrer and dismissed the petition, and the plaintiff appealed to the district court; and that court reserved the case to this court for a decision of the question raised by the demurrer to the petition.</p>

<p>1. Under the act of Congress of July 29, 1850, “to provide for recording the conveyances of vessels,” etc., a bill of sale, or conveyance of a steamboat, registered according to the laws of the United States, is void as against an attaching creditor of the vendor, unless the biU of sale or conveyance be recorded in the office of the collector of customs where the boat is registered or enrolled, or unless such creditor, at the time of his attachment, have actual notice of the bill of sale or conveyance.</p> <p>2. In a suit by the vendee against such attaching creditor to recover posses■sion of the boat, where the bill of sale is not recorded, proof that the creditor had actual notice of the bill of sale or conveyance, at the time of the attachment, is indispensable to a recovery; constructivemotice merely is not sufficient.</p> <p>8. The act of Congress requiring bills of sale, conveyances, etc., of vessels of the United States to be recorded, is not unconstitutional. Whites Bank v. Bmitk, 7 Wallace, 646.</p>

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

<p>Appeal. Reserved in the district court of Warren county.</p> <p>David W. Baxter, who died in July, 1865, by his last will provided as follows:</p> <p>“Item 1.— I give and devise all my property to my beloved wife, Deborah Baxter, both real and personal, of every description, with full power to collect, by law or otherwise, all debts due me, and to adjust and pay all expenses resulting from my last sickness and demise, and all other just claims whatsoever. I also expressly desire that she shall have unlimited power in the possession of all property, real and personal, thus bequeathed to her; to sell, at public or private sale, on such terms as she may think best, or use in any manner she may deem proper, any or all of the property, real or personal; and deeds to purchasers to execute, acknowledge, and deliver in fee-simple.</p> <p>“ Item 2.— I do hereby devise, that, at the death of my beloved wife, the sum of two hundred dollars be placed in the hands of the Treasurer of ‘ Union Cemetery as a perpetual fund, to be by him placed at interest, the interest to be annually collected and expended in taking care of our graves.</p> <p>“ Item 3. — I do hereby devise and bequeath, at the death of my beloved wife, after all expenses resulting from her last sickness and demise, and expenses of tombstones and item second shall have been adjusted, all the property then remaining to the presbytery of Cincinnati; said principal to be placed by the said presbytery in a fund where it will be permanent, and the interest thereof to be annually collected and equally divided between the Boards of Foreign and Domestic Missions. ”</p> <p>The testator’s wife survived him, and took possession of the property, which consisted of some ten thousand dollars’ worth of real estate, and personal property to the amount of twenty-five hundred dollars. She possessed and used the entire property during her life, and died in less than one year after the decease of her husband, without making any election in court to take under the will, and without being cited to appear in court for that purpose.</p> <p>Neither the testator nor the widow left any children, but she left brothers and sisters, who are her heirs-at-law.</p> <p>The present action is brought by the administrator of David W. Baxter, against the administrator and heirs of the widow, and the Presbytery of Cincinnati and other beneficiaries named in items 2 and 3, for the purpose of obtaining a construction of the will, and directions from the court regarding the manner of its execution.</p> <p>On behalf of the administrator and heirs of the widow, it is claimed that by the provisions of the first item of the will she took an absolute fee, both in the real and personal estate, and that the devises over are void for uncertainty and repugnancy..</p> <p>On the part of the Presbytery of Cincinnati it is claimed that these devises are valid and effectual, (1) because by the terms of the will the widow only took a life estate; and (2), because, admitting she took a fee, she lost it by her failure to elect, and was therefore remitted to her right of dower, and to such portion of the personal estate as would have fallen to her in case her husband had died intestate.</p>

<p>1. The effect of an appeal under the statute, from a decree for alimony, is to reopen, for trial in the appellate court, all the issues of fact upon which the rights of the parties, in respect to alimony, depend, notwithstanding a divorce was granted in the court below, which remains unaffected by the appeal.</p> <p>2. A husband deserted Ms wife in this State, where both parties, up to the time of the desertion, were domiciled. To a petition filed by the wife for divorce and alimony, the husband appeared and answered, setting up a decree of divorce obtained by him in another State, in a proceeding in wMch there was no jurisdiction of the person of the wife except by constructive service, and of wMch proceeding she had no actual notice — Held: That the domicile of the wife remained unaffected by the desertion of the husband, and that the decree of divorce was no defence to her petition for alimony.</p>

<p>Error to the court of common pleas oi Columbiana ■ county. Reserved in the district court.</p> <p>On the 29th of January, 1862, Mary A. Todd filed" her ■petition in the court of common pleas of Columbiana county, •.against the Pittsburg, Fort Wayne and Chicago Railroad • Company, to recover the possession of two acres of land, more >or less, described, excepting therefrom a piece of land two hundred feet in length and one hundred feet in width out of the south-east corner, claiming that she was entitled to the (possession of the land, and that it was wrongfully detained •from her by the railroad company.</p> <p>The railroad company denied the alleged right of the plaintiff to the possession, of the premises in dispute, alleging, camong other things, in substance, that the company, when lo-eating its road, was induced by the plaintiff and her husband, then living, to abandon the contemplated route on the north side of the village of Columbiana, and locate and construct the road as it now runs on the south side of the village through the plaintiff?s lands, and to place the company’s depot thereon; the alleged inducement being that the plaintiff and her husband proposed to lay out an addition to the village, including the land in dispute, and to convey and dedicate such land to the Ohio and Pennsylvania Railroad Company (to whose rights the defendant succeeded) for depot grounds; and that the company accepted such proposal, and changed the route of its railroad as stated.</p> <p>The plaintiff by reply denied that she ever held out the inducements or induced the company as stated in the answer.</p> <p>A further statement of the allegations of the answer and reply is not necessary, as the cause was tried to the court in February, 1854, and the court found the facts, specially, in substance, as follows:</p> <p>On the 1st of April, 1849, Mary A. Todd, the plaintiff, was the owner, in fee-simple, of a farm near the village of Columbiana, and was then the wife of John Todd, and remained under coverture until his death, which occurred October 1st, 1854.</p> <p>The Ohio and Pennsylvania Railroad Company, a corporation organized under a charter granted by the legislature of the State of Ohio (passed February 24th, 1848; O. L. L., vol. 46, p. 261) to construct a railroad from any point in the eastern boundary line of the State of Ohio, within the county of Columbiana, to Mansfield, in the county of Rich-land, in that State ; and, by charter granted by the legislature of the State of Pensylvania, to continue said railroad from the eastern boundary line of Ohio to the city of Pitts-burg, in the State of Pennsylvania, proceeded to make a survey of the line of road, and at and near the village of Columbiana surveyed two experimental lines, one running south of the village of Columbiana, and over the lands of the plaintiff, and the other running north of the village. The company then proceeded to ascertain what terms it could make; with persons owning lands on each of the two routes as to the right of way for the road and depot grounds for a depot at the village of Columbiana. Offers of right of way and depot grounds were made on both the routes suxweyed.</p> <p>On the 26th of Octobex1, 1849, John Todd, the husband of the plaintiff, made a written proposition to the company, signed by himself, reciting that, in consideration of one dollar paid to him by the company, and of the benefits to accrue to his property by the construction of the railroad, he would grant to the company the light of way for its road over any of his laxxds, and particularly the lands on which he then resided, being the farm owned by his wife, and offered the company a piece of land one hundred feet wide and eight hundred feet long for depot pur-poses; and proposed that the company might immediately take possession of the land, and that he would execute any deed or other instrument of wilting to the coxnpany to perfect the xlghts proffered it, on request. This proposition was made for the_ purpose of inducing the railroad company to locate the line of its road on the southern route, and over the lands of the plaintiff, and to locate the depot on these lands.</p> <p>On the 23d of May, 1850, the plaintiff and her husband, by deed duly executed, conveyed to the company the right of way over these lands, but the deed does not embrace the depot grounds, or any part thereof, or in any manner refer thereto.</p> <p>On the 30th of October, 1850, the plaintiff and her husband executed and acknowledged a plat of lots, and caused the same to be recorded in the proper record book in Columbiana county. The plat is called the “ southern addition to the town of Columbiana by John Todd.” It is located on the north side of the Ohio and Pennsylvania Bail-road. The railroad is laid out on the plat, and along the nox’th side of the raili’oad, on the plat, is a piece of ground (of which neither the length nor the included area is stated), distinctly colored and defined, of an oblong shape, with these words upon it :• “ Depot of Ohio & Penna. B. B.” It contains, by actual suiwey, one acre and ninety-four hundredths of an acre, and is the identical two acres more or less described in the plaintiff’s petition, and is part of the plain tiff’s said farm.</p> <p>It was the intention pf the plaintiff and her husband to donate to the company depot grounds at the village of Columbiana, and the company entered upon and took possession of the parcel of ground marked “ Depot of Ohio & Penna. R. R.,” as stated above, and has ever since continued in possession, and has erected partly thereon a depot building at a cost of $400; the principal part of the building is, however, on the lands embraced in the deed for the right of way. The company has also constructed switches to some small extent upon the land in dispute. The company has not used for depot purposes, at any time, more than one third of the land in dispute, and the agent of the company has, on his own account, fenced up and farmed part thereof, but no evidence was offered that this was done by direction, authority, or license of the company.</p> <p>After the execution of the plat, a bill was printed and posted, containing at the head thereof a lithographic copy of the plat, including the depot ground, and below it the statement, signed by John Todd, that he would offer at public sale, on Wednesday, the 6th of November, 1850, at Columbiana, “ the above southern addition of town and out lots, situate upon the line of the Ohio and Pennsylvania Railroad Company,” referring to the heavy business in produce annually done, and that, with railroad facilities, it would be immensely increased, etc., and stating that the directors of the company had selected their site for a depot as shown on the plat, etc. This bill was printed and published by the plaintiff’s husband with her knowledge and consent, and on the day named therein there was a public sale of the lots on the plat according to the numbers thereon, with the plaintiff’s knowledge and consent. At the salet lot No. 63, immediately east of the parcel of ground marked “ Depot,” etc., was reserved by John Todd, he then intending to erect a warehouse thereon, and reserving the same for that purpose, by reason of its contiguity to the depot grounds, as marked on the plat, etc. At the public sale several lots were fold; and by reason of the location of the depot on the plat, the lots adjacent thereto sold for higher prices than they would otherwise have brought. Afterward lot marked 63, so reserved as a warehouse lot, was purchased by a third party for that purpose, and he paid therefor, to the plaintiff herself, an increased price by reason of its contiguity to the depot and its fitness for a railroad warehouse lot on that account; of all which the plaintiff was fully advised at the time, and the purchaser erected on the lot a railroad warehouse, at a cost of $6000, which would be greatly reduced in value by the depot. Upon other lots then and since sold by the plaintiff, upon the faith of the location of the railroad depot, at an increased price, a tavern and storehouse and other buildings, have been erected, which would be greatly reduced in value by the removal of the depot or by selling a part thereof, and thus interposing other buildings between the tavern, storehouse, etc., and the depot.</p> <p>The parcel of land marked on the plat “ Depot,” etc., contains more ground than is now absolutely necessary for a depot for the company, but at some future time all or nearly all the ground might be profitably employed for that purpose.</p> <p>During the lifetime of her husband, the plaintiff, in conjunction with him, properly executed deeds for the different lots on the plat sold from time to time, conveying them to the several purchasers in fee-simple, and since her husband’s death she executed deeds for lots sold, in due form. In these deeds, executed as well before as after her husband’s death, the plaintiff refers to the plat, and describes the lots sold by the numbers on the plat, and by the streets laid down thereon, and fully recognizes the plat. During the lifetime of the plaintiff’s husband, she never made any claim to any part of the premises in dispute; biit very soon after his death she called upon the president of the company, and then claimed that she never did or intended to donate to the company the whole of the land embraced in the parcel marked “ Depot,” etc., on the plat, but only intended to donate a part of it, now excepted in her petition. She has ever since claimed the other part.</p> <p>It is also found by the court, that, by virtue of the proceedings had under the laws of the States of Pennsylvania, Ohio, Indiana, and Illinois, the Ohio and Pennsylvania Railroad Company, and the Ohio and Indiana Railroad Company, and the Port Wayne and Chicago Railroad Company have become consolidated and merged into the Pittsburg, Port Wayne and Chicago Railroad Company, the defendant, and that, under and by virtue of those laws and proceedings, the defendant is entitled to all the rights of the Ohio and Pennsylvania Railroad Company in the premises, and succeeded that company in the ¡oossession of the land, and now claim, under the consolidation, the rights acquired therein by that company, and is in possession of the premises, and entitled to all the rights of that company therein.</p> <p>The only rights of the defendant are those existing under and by virtue of the facts stated. •</p> <p>Upon these facts, the court of common pleas held that the defendant was entitled to judgment; and it was so entered, and exception taken.</p> <p>To reverse this judgment the plaintiff filed a petition in error in the district court, and the same was therein reserved to this court for decision.</p>

Reserved in the district court. The pleadings in the original action were a petition and a general demurrer thereto. The petition, except the prayer for judgment for $100 and interest, is set out in full in the opinion of the court. The case was not argued on behalf of the defendant in error.

<p>Ebbob to the court of common pleas of Muskingum county. Reserved in the district court.</p> <p>The original action involved a question of title to land. The several parties claimed as heirs of Ella White, who died in October, 1864 •; and the question was, upon which of the parties does the statute of descents of April 17th, 1857 (S. & O. 501), which governs the case, cast the descent. The following are the facts:</p> <p>John White died intestate and seized of the land, in 1842. Whether it came to him as ancestral property, or by pinchase, does not appear. He left at his death Sarah White, his widow, and William H. White and James E. White, his only children and heirs-at-law; William and James being also children of said Sarah White. James E. White dieds a minor, unmarried and intestate, and William H. White thus became seized of the land. William TI. White died - in August, 1864, seized of the land, leaving Nancy Jane White, his widow, who still lives, and his daughter Ella, his only child and heir-at-law, Ella being also the daughter of said Nancy Jane. Ella White died in October, 1864, without issue, unmarried and intestate. Sarah, the widow of John White, intermarried with Andrew Ross; Mary Louisa Ross and Sylvester Ross were born issue of said marriage before the death of William H. White, and are now living. The land (subject to the dowers of Sarah Ross and Nancy Jane White, which have been assigned) is claimed by Thomas White and the other defendants, who are brothers and sisters, and children of brother and sisters, of John White; by Mary Louisa Ross and Sylvester Ross, children of Andrew Ross and Sarah Ross, mother of William H. White; and by Nancy Jane White, mother of Ella White and widow of William H. White.</p> <p>The court of common pleas held that, by the true construction of said act of 1857, the land descended, upon the death of Ella White, to Mary Louisa Ross and Sylvester Ross, the half-brother and half-sister of William H. White, and gave judgment accordingly. And now the plaintiffs in error, who are the brothers and sisters of John White, allege that the court erred in its construction of the statute, and should have adjudged the land to them, as the true heirs of Ella White, deceased.</p>

<p>Error to the court of common pleas of Union county. Reserved in the district court.</p> <p>At the May term, 1867, of the court of common pleas of Union county, the defendant in error obtained a judgment against the plaintiffs in error for $523.50. The judgment was obtained by confession under a warrant of attorney annexed to the note on which it was rendered. No process was issued against the defendants below, and they had no notice of the proceeding, until after the judgment was rendered.</p> <p>The note is made payable to Ricldey & Brother, or order. Following the note, and preceding the signatures of the makers, there is attached to the note a warrant of attorney, em • powering any attorney of any court of record to appear for the makers of the note in any court of record in the State of Ohio, and waive the issuing and service of process against them, and to “ confess judgment in favor of the legal holder” of the note against them, for the amount due thereon. To the note and warrant of attorney are attached the signatures and seals of the plaintiffs in error, defendants below.</p> <p>At the same term of the- court at which the judgment was rendered, the plaintiffs in error filed their motion to set the judgment aside, on the ground that the court had no jurisdiction of the defendants in the case. The court overruled the motion; and the defendants, now plaintiffs in error, excepted, and filed their petition in error in the district court, and assigned for error the overruling their motion.</p> <p>The case was reserved by that court for decision here.</p>

<p>1. The provision in section 96 of the code of criminal procedure, which declares that it shall he sufficient in any indictment where it is necessary ts allege an intent to defraud, to allege that the party accused did the act with intent to defraud, without alleging an intent to defraud any particular person, is not in conflict with section 10 of the bill of rights, which requires the accused, on demand, to be furnished with “the nature and cause of the accusation against him.”</p> <p>3. When, on a trial for forgery, a variance is alleged between the name to the forged instrument and the name appearing in the indictment, if the variance is plain, such instrument ought not to be allowed to go in evidence ; but if the forged name is uncertain, and susceptible of being read as agreeing with the name stated in the indictment, it is not error for the court to submit the question to the jury.</p>

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

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

<p>i. In a summary proceeding before the probate court, under the act of February 36, 1843 (S. & O. 618), on complaint of an administrator against a party suspected of embezzling, concealing, or conveying away the property or effects of the estate, the court has no constitutional power to render judgment against the party so charged, except for such property and effects as he, on his examination, admits himself guilty of having embezzled, concealed, or carried away; and to the extent that the statute professes to authorize a judgment in cases where there is a controversy between the parties, it is unconstitutional.</p> <p>3. On petition in error to reverse such judgment, the written examinations taken before the probate court are a legitimate part of the transcript or record of the proceeding, without any bill of exceptions setting them forth; and it is error in the court above to order such written examinations to be stricken from the record.</p>

<p>Error to the court of common pleas of Muskingum county. Reserved in the district court.</p> <p>The original ease was a proceeding by the plaintiff in the probate court to condemn a right of way for a railroad through the lands of the defendant.</p> <p>The statement filed in the probate court, October 30,1866, sets forth, that the plaintiff is a^ body corporate under the laws of the State, for the purpose of “ mining coal and other minerals; ” and that it finds it necessary to appropriate to its use certain lands of the defendant, for the purpose of a right of way for a railroad for the transportation of coal and other necessaries from the Cincinnati and Zanesville Railroad, to and from the lands of the plaintiff.</p> <p>The defendant was duly notified, and a jury was duly drawn and summoned to attend at the probate court on the 2d day of November, 1866.</p> <p>The defendant then appeared and filed a motion to dismiss the proceedings, on the ground that they were unauthorized by law. The motion was overruled by the court, and the defendant excepted.</p> <p>The jury, upon hearing, rendered a verdict, for right of way and damages, for the sum of seven hundred dollars, which amount, together with the costs of suit, plaintiff deposited in the court for the defendant.</p> <p>The defendant filed a motion for a new trial, for the rea son, among others, that the proceeding and verdict are irregular and illegal. This motion was overruled, and exception taken.</p> <p>A judgment was rendered in favor of the defendant for the sum of seven hundred dollars and costs; and it was adjudged by the court, “ that said corporation, £ The Miami Coal Company,’ plaintiff, hold the property in these proceedings mentioned, for the uses and purposes for which the same was appropriated.”</p> <p>On the hearing of the motion to dismiss the proceedings, the plaintiff gave in evidence their charter or declaration of incorporation, which is as follows: '</p> <p>“The undersigned citizens of Hamilton county, in the State of Ohio, associating themselves, together for the purpose of mining coal, ores, and other minerals, and carrying on the business usually connected therewith, and in addition thereto, to construct a railroad from any mine or mines, which said corporation may acquire, to the road of the Cincinnati and Zanesville Railroad Company, according to an act of the general assembly of the State of Ohio, passed April 8, 1856, entitled £ An act supplementai’y to the act entitled “ An act to provide for the creation and regulation of incorporated companies in the State of Ohio,” ’ passed May 1,1852 — do certify:</p> <p>“ 1st. That the name and style of said corporation shall be, £ The Miami Coal Company.’</p> <p>“ 2d. That the capital stock thereof shall be one hundred thousand dollars, divided into shares of $100 each.</p> <p>“ 3d. The business of mining shall be carried on at such places as the said corporation may acquire coal and other mineral lands; and the office and place of business of said corporation shall be in the city of Cincinnati.</p> <p>“ Dated, June 16, 1866.”</p> <p>[Signed, sealed, acknowledged, etc.]</p> <p>The defendant prosecuted his petition in error, in the court of common pleas, to reverse the judgment and proceedings; had in the probate court, and assigned for error, among other-things, that the probate court had no jurisdiction of the sabject-mattei*, that the court erred in overruling the motion to dismiss the proceedings and the motion for a new trial, and in rendering judgment for the plaintiff.</p> <p>The court of common pleas reversed the judgment of the pi’obate court, and to reverse the judgment of reversal the plaintiff filed in the district court a petition in error, and the same was reserved to this court for decision.</p>

<p>Error to the district court of Greene county.</p> <p>On the 23d February, 1867, Thompson filed his petition in the court of common pleas of Greene county, against Klein, to recover of him damages for unlawfully and violently assaulting and beating the plaintiff, etc., and for surgeon’s charges, etc. The issues joined by petition, answer, and reply were tried to a jury.</p> <p>The verdict and judgment being for the plaintiff Thompson, the defendant Klein filed his petition in error in the district court, where the judgment was affirmed; and to re.verse the judgment of affirmance Klein filed his petition in error in this court.</p> <p>The further facts of the case, so far as material, appear in the opinion of the court.</p>

At the October term, 1869, of the common pleas, Oviatt was indicted for, that he, on July 10th, 1869, in Summit county, “ One horse, the property of Harvey Baldwin, then and there being, unlawfully, wilfully, and maliciously did injure to the amount of seventy-five dollars, by then and there cutting from the neck of said !horse, as close to the skin as the same could be cut and sheared, his entire mane, excepting only the roots, and about one inch in length of said mane…

The incorporated village of Leesburg, with the territory thereto annexed for school purposes, constituted, under the general school law of March 14,1853 (S. & C. 1346), a separate school district. Its board of education, in accordance with the provisions of that act, under section 33, had divided it into two sub-districts.

At the September term, 1869, of the court of common ' pleas of Adams county, Hardy was put upon his trial on an indictment for murder in the first degree.

Henry W. Scott was convicted, in the police court of Cincinnati, on the 29th of July, 1869, of obtaining money by false pretences, and sentenced to pay a fine of $500, and on default of payment thereof was committed to the workhouse.

<p>The prosecution of the reputed father of a bastard child, under the bastardy act, does not abate by the death of the child pending the prosecution, but the case may proceed to judgment.</p>

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

<p>Motion for leave to file, a petition in error to reverse a judgment of the district court of Montgomery county, affirming the judgment of the court of coifimon pleas.</p>

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

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

<p>Motion for leave to file a petition in error to reverse a judgment of the district court of Washington county affirming the judgment of the court of common pleas.</p>

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

<p>[The following opinion was not prepared in time for insertion at the end of the majority opinion, ending ante, page 172.]</p>