Volume 2 — Cincinnati Superior Court Reporter

<p>A composition between debtor and creditor releases the sheriff holding property by attachment.</p>

<p>In an action upon a debt contracted in Germany the plaintiff is entitled to a judgment for payment in gold, the presumption being that such was the contract.</p>

The suit was brought against Phillips, and while it was pending the parties agreed to arbitrate, and selected two men, giving them authority to select a third, to act with them as arbitrators, providing their award should be rendered in writing, and signed by any two of the arbitrators so chosen. The subject of reference was the determination of all damages, claims, and demands alleged in the petition.

<p>Where issues of fact, relating to accounts, have been referred by consent to a master, who has filed his report, and a motion is pending to confirm it, neither party has a right to a trial of the same issues to a jury afterward.</p>

<p>Where a five years lease was granted of a room in the Masonic Temple, with a provision that the premises should not be used for any purpose whereby “the risk from fire should be made more than ordinary or common,” the provision must be taken to have reference to the estimate of risks by insurers; and if the lessee assign his lease, and the assignee attempt to introduce a caloric engine, which does, by the conditions in policies of insurance, “ make the risk from fire more than ordinary or common,” the lessor is entitled to an injunction to restrain such assignee of the lease from such use of the premises.</p>

<p>A master had filed his report upon certain issues of fact, and reported also the testimony he had taken in the form of depositions, and his findings. On motion to confirm</p> <p>Seld, That the act of April 18, 1867, S. & S. 579, does not require the setting of the cause on the trial calendar, to be heard as other submitted causes, upon the evidence reported by the master, and such other testimony as the party may choose to offer; hut the hearing of the motion to confirm the report is the matter for determination.</p>

<p>In an action for money lost at gaming, the plaintiff joining the owner of the premises with those who conducted the game;</p> <p>Held, that the owner could not, merely as owner, be held liable in this form of proceeding jointly with those concerned in the game.</p> <p>Held, also, that the receipt of one hundred dollars, in full satisfaction of a claim for two thousand five hundred dollars, as money lost to defendants by gaming, was a good defense as an accord and satisfaction.</p>

<p>The paragraphs in a petition, on a policy of insurance, stating: 1. That another-person was the owner of the goods insured, and procured theinsur-anee; $. That the owner became indebted to the plaintiff and promised to insure for his benefit, and did so insure; 3. That he gave plaintiff a chattel mortgage on the goods; 4. That the goods were destroyed by fire- — -are not different counts in the petition, and need not be numbered as such, but are parts of one and the same count.</p> <p>Held, also, that the giving of a chattel mortgage was not a violation of the conditions in the policy against any assignment of the policy, without consent of the company.</p>

<p>It is not a test that evidence is cumulative, on a motion for a new trial by the defendant, on the ground of newly discovered evidence, that the affidavits in support of it do not go to some new ground of defense. If they bring to light some new and independent truth of a different character, although it tend to prove some proposition or ground of defense before insisted on, or if it tend to render clear and positive, that which was before equivocal and uncertain by the statement of new facts, it is not cumulative evidence.</p>

<p>In a suit by a stockholder of the Miami Exporting Company, to subject assets in the hands of a trustee of that company, the corporation, or those who represent it, are necessary parties.</p>

<p>Demurrer to interrogatories in a libel suit, asking tbe defendant to state whether or not he wrote and published the libel, overruled.</p> <p>Bui the defendant might claim the privilege of being excused from answering, on the ground that his answer would criminate himself.</p>

<p>A decree was entered in wbicb the plaintiff was allowed to redeem mortgaged premises within sixty days. The debt was not paid, and -order for sale was issued. On motion to extend the time for redemption thirty days, for reasons shown;</p> <p>Held, that it was in the discretion of the court to grant the motion according to the reasonableness of the case, it appearing that the defendants’ security was not imperiled thereby, and the law provides interest as the compensation for the delay.</p>

<p>Upon an application for an inj unction to prevent the laying a street-railroad track in the street upon which the plaintiff’s lot fronts, although it is necessary that the consent of a majority of the property-holders on the street should he obtained, yet it will not he presumed that the city council acted without such consent, if its proceedings purport to be predicated upon it. And where the application for the injunction had been made on the part of a minority of the owners of property on the street, and a restraining order allowed, the order was vacated, retaining the petition and leaving the parties to apply under the law for appropriating property for public use, or to have damages assessed by a jury, hut requiring the defendants to give security in $10,000 for any damages which might be sustained by laying the track.</p>

<p>In a petition in a suit upon a domestic j udgment, it is sufficient, by section 120 of the Code, to allege the rendition of the judgment, and that the amount claimed is due thereon to the plaintiff1. But that section does not apply to a petition founded upon a foreign judgment, and in declaring upon such a judgment, it is necessary to state th« lame facts which were required in a declaration before the Code, and to file a transcript.</p>

<p>Where a petition, not verified, has been filed and summons issued and served, and a motion has been granted to allow the plaintiff to verify, which he has done:</p> <p>Meld, that anew summons must be issued and served; and, on motion for that purpose only, the court will set aside the service of the old summons.</p>

<p>Where the defendant answers that another action is pending for the same cause, the answer can not be stricken out on motion though the former action has been dismissed. The answer may, however, be met by a reply that the former action has been discontinued and costs paid.</p>

<p>' In a suit for the price of a looking-glass, it appearing the plaintiff has possession of it by a replevin in which the defendant recovered a verdict only for its then value, the claim upon which verdict was rendered being previously assigned to the other defendants, and the petition containing a prayer that the verdict might be set off against the plaintiff’s claim:</p> <p>Held, that the verdict and an expected judgment thereon was a proper subject of set-off, and that the verdict was rendered subsequent to the assignment of unliquidated damages, did not alter the equity of the case.</p>

<p>When the oral testimony seems to be exactly balanced, the allegations of the answer being put in evidence for the plaintiff, and being insisted by him before the jury as furnishing the preponderance of the evidence in his favor, on a verdict for defendant and a motion for new trial:</p> <p>Meld, that the answer of itself did not authorize the court to say that the verdict was decidedly against the weight of the evidence.</p> <p>When the jury come out and ask instructions of the court, it is not error to give them further instructions of law correct in themselves in the absence of counsel, though no call of counsel at the court-house door is made. 1 Disney, 512, followed and approved.</p>

<p>On a motion to exclude numerous exhibits referred to and marked as exhibits, but not actually attached to the bill of exceptions.</p> <p>Held, that as the reference was sufficient to identify them as part of the bill, the motion should be overruled.</p>

<p>"Where the statute of limitations had "barred an action upon a note, amortgage securing the note may nevertheless he foreclosed at any time within twenty-one years from the time it was made.</p>

<p>Under the amendment (S. & S. 397) to section 17 of the act of April 6, 1859 (1 S. & C. 713), the court may appoint an assignee and proceed to bring the other creditors of the defendant in upon distribution, after decree, without the notice prescribed, finding that a conveyance of real estate was made to defraud creditors, and for sale, and sale made, to share therein pro rata.</p> <p>A creditor, who had knowledge of the pendency and progress of this proceeding, and did not make himself a party to it, can not, by an independent suit brought afterward, seeking to subject the same property, in which he has taken the necessary steps to bring in the other creditors, and in which the plaintiffs, or any other creditor, did not appear, but has no decree and offers no proof other than the findings in this action, ask that he be entitled to a priority which will give him all the proceeds of the sale, because he has complied with the statute.</p> <p>Semble, that a decree in his action would not authorize the relief he asks.</p>

This action was brought to enjoin the performance of a contract entered into between the city, through the trustees of the water-works, and Michael Burns, by which he was to furnish and deliver to the city water-works, at the site of the new reservoir in the Garden of Eden, 16,500 perches of stone of the kind and quality specified, at $2.18 per perch, and by which it was also agreed that Burns might quarry stone in the Garden of Eden grounds, at such points and localities…

<p>One of several co-sureties on a sheriff’s official bond, who has been compelled to pay a judgment recovered against him for the breach of duty by the sheriff, may maintain an action against the sheriff as principal for the whole amount paid by him, and against his co-sureties for a contribution in the same suit; and his petition is not demurrable on that account. He may, at his option, however, sue the sheriff and his co-sureties in separate actions.</p>

<p>A foreign administrator can not he compelled to appear in our courts, though he may do so voluntarily.</p>

<p>Garnishees answered, that they owed the defendant nothing and had no property belonging to him; but that defendant had held their note but had, as he alleged, transferred it to another person, which plaintiff disputes. On motion to make that other person a party :</p> <p>Held, that the action provided in section 218 of the Oode is the plaintiff’s remedy, when he is not satisfied with the answer of the garnishees.</p>

<p>Ahote secured by mortgage was made before the laws were passed making greenbacks a legal tender, but the note was renewed after the passage of said laws.</p> <p>Held, that the renewal of the paper recognized the legal currency of the United States, when the renewal took place, and that the renewed notes could be paid in legal tender notes, 'notwithstanding the decision of the United States Supreme Court in Hepworth v. Griswold, 8 Wall. 603.</p>

<p>In a suit against innkeepers, it is a sufficient allegation in the petition to state that the plaintiff as a guest was entertained by the defendants as innkeepers, to hold them to liability as such for a loss of goods.</p> <p>A gold watch, chain, and seal are parts of a traveler’s baggage, for the safety of which the innkeeper may be liable; and an allegation that they were stolen from the plaintiff’s bedroom, after a servant had entered to make a Are therein, by some one else entering by the unlocked door, without any fault of plaintiff, is a sufficient averment of no negligence on his part.</p>

<p>Where a preliminary injunction bad been allowed to prevent tbe removal of a party wall for tbe purpose of rebuilding, and it appearing that tbe wall was decayed and needed rebuilding, the injunction was dissolved, but the petition retained, in order that any damages caused by negligence in the removing and rebuilding might be recovered. A party wall which needs removal and rebuilding, on account of decay, may be removed and rebuilt by either party, whether the other party consent or not.</p>

<p>In an action for services not upon an express contract, the petition must contain an averment that the services were rendered to the defendant on his request.</p>

<p>It is not sufficient service of notice to take depositions, to leave a copy of it at the law office of one of defendant’s attorneys; and a motion to strike the deposition from the flies will be granted, though there has been delay unaccounted for in making it.</p>

This case was a suit in behalf of the plaintiff and other bondholders against the Pendleton Street Railroad Company to foreclose a mortgage to secure its bonds. A sale was made and the property purchased by Charles H. and John Kilgour, which was confirmed. The decree contained a provision that the bonds as paid should be filed in the case.

<p>A counter-claim must have a common origin with the claim in the petition, or have had some direct connection with the original transaction in the view of the parties at the time the contract was made.</p>

<p>An assessment, under the statute, authorizing the construction of sewers on property benefited by them, is in its nature a charge for a permanent addition to the freehold, and is to be paid by the owner of the fee, or the holder of a perpetual lease, but is not chargeable against an ordinary tenant for years, although his lease may contain the privilege of purchasing the fee at a specified price.</p>

The plaintiff is the wife of Hermon Arndt. Rosenbaum, to whom she intrusted for investment her money, amounting to $1,500. He invested it in a livery stable and took the title to himself, and then mortgaged it to the German Central Building Association for some $1,200; took the money, and ran away to California, abandoning his wife, the plaintiff.

<p>The commitment by the Probate Oourt, under the act of May 5, 1869 (O. L. vol. 66, p. 110), of the relator to the State Reform School at the White Sulphur Springs, is void when it appears that she was over sixteen years of age at the time of the commitment.</p> <p>Any power conferred on the trustees of the reform school to discharge an inmate, does not operate to restrict the jurisdiction of a court in habeas corpus to inquire into the cause of detention and to order a discharge in a proper case.</p>

<p>The fact that the defendant, a corporation of West Virginia, merely had an agent here to receive what was sent to him, and to remit back proceeds, would not constitute him a managing agent on whom process against the corporation could be served, and where the sheriff had returned a service on such an agent as service on the corporation, it will be set aside on motion.</p>

This is a motion by the plaintiff that the defendants be required to permit him to inspect and take copies of the mercantile books of the late firm of “ Nixon, Chatfield & Woods,” of which he was a member.

<p>To move to strike out a reply because it is a departure, aud to demur to it at tbe same time and on the same ground, is bad practice; and tbe court may strike the motion from the files. A demurrer is tbe proper method of reaching such an objection.</p> <p>A reply, showing that the plaintiff is a trustee, and has no right to main- • tain the action in the individual capacity in which he sues, is faulty as a departure, but he may amend.</p> <p>A note, given to settle a civil suit for moneys embezzled, can not be affected by a subsequent promise to the party not to prosecute hin* criminally for the offense.</p>

<p>In an action by tbc administrator of the decedent, against the owners of s steamboat, for the loss of his life, while on board as a passenger, by their negligence:</p> <p>Held, that although it must appear in the evidence, on the trial, that the accident occurred in Ohio, yet it need not be expressly so stated in the petition. The presumption is that the allegation relates to an occurrence as this states, unless the contrary appears:</p>

<p>In a contract for the sale and delivery of fifty thousand pounds of shoulders, at nine cents per pound, hy the defendant to the plaintiffs, option of delivery either in Cincinnati or Chicago, during four months, it was agreed that five hundred dollars was to, bo the limit of loss on either side, which the defendant deposited in bank to abide the result of the contract; and it was also understood by both parties that the defendant did not have the pork and that it was not to be delivered, the contract being a mere wager. On suit for breach of the alleged contract by defendant, for refusing to deliver the pork:</p> <p>Held, on demurrer to the answer setting up these facts, that it contained a good defense.</p>

<p>Section 100 of the municipal code, which requires the publication of ordinances in some newspaper of general circulation, does not preclude the publication of ordinances by other means, ip the discretion of the city council, and the court will not by injunction restrain that discretion, even though the ordinances should- be published in newspapers which have not a general circulation in the pity; provided, they are also published in some newspaper which has such general circulation.</p>

This was a trial before Taft, J., and a jury. The suit was brought for balance due on account of premiums.

<p>An error committed in tlie rendition of a judgment can not, when said judgment has become dormant, be corrected in a proceeding of revivor.</p>

<p>The defendant addressed to her agents the following note:</p> <p>“ To John A. Hunt & Co.: You are hereby notified to close the sale of my house and lot, on the north side of Longworth street, between Central avenue and John, in this city, for the price of $6,000. $1,500 Cash down and the balance in equal annual payments, with interest secured by mortgage; taxes to be paid by buyer; possession in thirty days.</p> <p>“Lydia Shattler.”</p> <p>To which note the plaintiff added:</p> <p>“ I agree to purchase the above described property at the price and terms of payment as therein stated, provided the title to the same prove good.</p> <p>“W. N. L OREIS.”</p> <p>“ Witness : M. Carpenter.”</p> <p>Held, that the said paper was an authorization to Hunt & Co. to close a Contract of sale previously agreed upon, and was a sufficient memorandum of said contract, within the statute of frauds, to bind the defendant.</p>

<p>In March, 1869, defendant was discharged in bankruptcy from all debts existing on the 17th of September, 1868. Subsequently, defendant received, by devise from his wife, land, upon which the plaintiff, a judgment creditor of the bankrupt, levied an execution, claiming that it was the property of the defendant before the bankruptcy, and had been fraudulently conveyed to his wife; but the defendant moved to set aside the levy.</p> <p>Held, that prima facie, the plaintiff had no right, and the motion must be granted.</p>

<p>In an action for a loss under a policy against death by accident, a statement made by deceased to his physician, upon which pie physician forms his opinion, and makes a prescription, is competent evidence to prove what was the actual cause of his illness and death, although the symptoms are such might be produced eithpr by di§ease or by the accident.</p>

<p>Under tile ten per cent, law, A. gave to B. his notes bearing ten per cent, interest, secured by mortgage on real estate. A. goes to O. and represents himself as the agent of B., the owner of the notes and mortgage which he (A.) had given to secure his indebtedness to B., and desires O. to purchase the claim or to procure a purchaser. On the assurance from A. that the notes were founded on a full valuable consideration, C, procured a purchaser — D.</p> <p>In an action by D. for foreclosure of the mortgage, A. avers that he negotiated the loan from the plaintiff at two per cent, per month; and gave the notes and mortgage which had been made by him to B. without consideration, as security:</p> <p>Held, that A., and all who are in privity with him, are estopped from pleading usury, or that the notes and mortgage were made without consideration.</p>

This case was reserved to General Term on a motion for a new trial. The suit was upon a policy of insurance. The loss happened on the 8th of April, 1868.

This is a petition in error tq reverse the judgment and proceedings in Special Session, It appears from, the bill of exceptions, which purports to embody all the testimony given at the trial, that the plaintiffs in error, Kraft, Hoffman & Co., who were defendants below, were wholesale clothing merchants, doing business in this city; and that the defendants in error, William Dulles & Co., who were plaintiffs below, were merchants, doing business in Philadelphia, having also…

<p>"Where a draft is discounted by a bank and passed to the credit of the drawer, and he is allowed to check against it, and does so, the bank is a holder for a valuable consideration.</p> <p>In such a case, though the drawer’s account is overdrawn, at the time of the discount and at the time of the maturity of the draft, the court will not inquire into the amount cheeked out, but the consideration once existing will be held good as to the whole note.</p> <p>Where the bank, in. West Virginia, is secured by a trust deed for all indebtedness, and the drawer is a bankrupt, and the trust property has been sold, under the order of the United States court in West Virginia, in bankruptcy, the acceptor is not entitled to a stay of execution upon the judgment and an order to the bank here to account to him for the proceeds, on account of equities existing between him and the drawer, of which the bank had no notice, at the time of the discount.</p>

<p>If an “admonition” was given, under section 269 of the chde, to a jury on its first separation, the failure to repeat such admonition on each subsequent separation, when not demanded by either party to the suit, is not a good ground for a new trial.</p>

<p>Under sections 117 and 122 of the code, a petition founded on a judgment rendered in another State must state the court in which the judgment was recovered, the term at which it was rendered, the parties and the sum recovered, and annex a copy of the transcript sued on.</p>

<p>A., trustee of the estate of L. O. Hopkins in bankruptcy, employed B. to defend, on behalf of the bankrupt estate, a certain case in the Kentucky courts. In a suit by B. against A. for fees :</p> <p>Held, that A. did not incur a primary personal liability, and that B. must first look to the estate for his fees.</p> <p>Section 14 of the bankrupt act is as follows:. “ Ho person shall be entitled to maintain an action against an assignee in bankruptcy for anything done by him as such assignee, without previously giving him twenty days’ notice of such action, specifying the cause thereof, to the end that such assignee may have an opportunity of tendering amends, should he see fit to do so.</p> <p>Held, that this section is not restricted only to cases in which the assignee has authority to bind the estate, but extends to 11 anything done by the assignee in the capacity of assignee.”</p> <p>Held, also, that a presentation of a bill for services to the assignee is not a sufficient notice under said section.</p>

<p>The plaintiff brings an action against A., B., and C., administrator of D., on a promissory note, made by the firm of A. & Co., which consisted of A., B., and D. The petition does not show that any one of the conditions required by section 96 of the act of 1840, to provide for the settlement of the estates of deceased persons, has been fulfilled.</p> <p>Held, on demurrer, that the action was improperly brought against C., administrator of D.</p>

In May, 1856, Charlotte Cushman and another, it is alleged in the petition, were the owners of a perpetual leasehold interest in the Spencer House, and then sold the same to Elisha Seymour, who executed to plaintiff his notes for part of the purchase money, and a mortgage on the premises to secure the same. Shortly afterward Seymour sold to the defendants the same premises, and conveyed to them by deed-poll, in the usual form, which they accepted.

On November 6, 1868, the city council of Cincinnati, on the petition of two-thirds of the property owners therefor, and the recommendation of tbe board of city improvements, passed an ordinance to grade and pave Oregon street from Observatory road, fifteen hundred and forty-seven feet southeastwardly, declaring the same necessary, and that the costs and expenses thereof be ascertained and assessed according to the provisions of the acts of the legislature and the ordinances…

<p>Where the petition states that the plaintiff is the owner, and entitled to the immediate possession of certain described premises, and a motion is made to make the petition more definite and certain by stating whether the title is by fee simple or by lease:</p> <p>Held,, that under section 558 of the code, it is not necessary to allege what estate the plaintiff has in the property, but it will be sufficient if he state that he has a real estate therein.</p>

<p>The plaintiffs bring suit against John Ryan & Co., contractors, Long & Eiedeldey, their sureties, and the city of Cincinnati, for injuries to horses, wagon, and harness, through the want of a proper guard for an excavation for a sewer. On demurrer:</p> <p>Held, that Long and Eiedeldey, the sureties, were improperly joined, and that the plaintiffs must elect between John Ryan & Co., the contractors, and the city, which party they intend to pursue.</p>

<p>The lien of a judgment rendered in the Superior Court of the city of Cincinnati extends without levy to lands of the judgment debtor lying within the county of Hamilton, but outside of the limits of said city.</p>

<p>A mortgage of a lease for more than three years, executed according to the provisions of th.e act of February 22, 1831, entitled an act to provide for the proof, acknowledgment, and recording of deeds and other instruments of writing (8. & O. 458), may be properly recorded under section 7 of said act, and it is not necessary to file said mortgage with the chattel mortgages in order to give notice to third parties.</p>

<p>Where a written contract was made between a firm and third persons, and one of the partners, without the knowledge or consent of the other members, fraudulently, as to them, afterward added to the agreement, signing'the firm name to the addition, that such third persons, they having no knowledge of the fraud, should have the privilege, at any time within three months after a change in the firm, in any way affecting their interests, to purchase the property on hand owned by the firm and resulting from the fulfillment of the original contract upon specified terms:</p> <p>Eeld, that such proposed contract is not invalid for want of consideration, nor void for want of power in the partner making it and signing the firm name thereto to bind the firm thereby.</p> <p>The period of “three months after dissolution,” in such case, is not three months after the firm actually dissolved, but three months after notice of dissolution was communicated to such third persons.</p> <p>Such privilege of purchase may be revoked at any time within the three months, if revoked before acceptance.</p> <p>Where there is not a preponderance of evidence that such proposition was so accepted before being withdrawn, a court will not grant a specific performance of the alleged agreement, but will, at most, give the parties a right to try the question of fact to a jury upon a claim for damages for breach of such contract.</p> <p>A prayer for general and alternative relief, in a pleading under the code, entitles the court to grant the party any redress he may be entitled to upon the pleadings and evidence; and such prayer may be added, or the prayer, contained in the pleading, changed at any stage of the cause without terms, and without causing any delay in the progress of the case. The code is directory in its provisions as to prayer for relief.</p> <p>A finding of the court, like the verdict of a jury, must respond to all the issues in the case, unless the finding on one issue concludes all others, and if such finding does not do so, no judgment should be rendered, and if rendered will be reversed, even though, as to the issues not passed upon, the court dismissed the cause without prejudice, the party affected thereby objecting to such dismissal.</p>

<p>Courts of justice take notice of all Ohio statutes, general, local, or special, and will therefore recognize a special law incorporating an institution, though such act of incorporation is not alleged in the petition.</p> <p>S. purchases from J. a controlling interest in the stock of the Eclectic Medical Institute, and as a part consideration, guarantees to him the position of professor in said institution. By the act of incorporation, however, a hoard of trustees has the exclusive power to appoint the professors.</p> <p>Held, that a contract to so use the stock as to compel the hoard of trustees to make a certain appointment to a professorship is illegal, and that no action for damages will lie for the breach thereof.</p>

<p>S. & Co., of Indiana, who were indebted to W. <& Co., in Cincinnati, for advances, shipped to W. & Co.- a car load of meat, retaining the receipt of the railroad company, hut mailing a letter to W. & Co., which was received before the goods arrived, containing an invoice of the goods sent, and containing this language: “We deliver you this load on our indebtedness; do the best you can.”</p> <p>Held, that the title to the goods vested in W. & Co., and that they could maintain replevin for the goods against an attaching creditor of S. & Co. ’</p>

<p>S. had, upon a lot of ground, a lease for years only, and there had erected a feed mill, containing steam machinery to operate the mill. He also carried on a feed store. All was insured against loss by fire. During the continuance of the risk, S. agreed, in writing, to exchange all the insured property with T. for lands of the latter, the parties to warrant their respective titles, and to give each other immediate possession, which possession was given. Next day S. discovered that there was a mortgage upon T.’s land for $4,200 and interest, upon which a suit to foreclose had been brought, and was pending. T. then agreed to pay off the mortgage, and the parties executed deeds, and deposited them with a third person, in escrow, until such mortgage lien should be paid by T. Afterward, S., without T.’s knowledge or consent, obtained T.’s deed from the custodian of it, and had it recorded, when he returned it to such custodian, who has ever since retained both deeds. Subsequently, the S. property, so insured, was destroyed by Are, and S. notified the insurer of the loss, when the latter advised him that it would not pay the same, because he did not own the property when it was destroyed. T., instead of paying off the mortgage on the land he let S. have, rebuilt the mill, and refurnished it as it was before. The T. land was afterward sold at judicial sale upon the mortgage, and S. purchased it, and the sale was confirmed to him. He subsequently sold the land to a stranger.</p> <p>Held, I. That S. had an insurable interest in the property he had delivered to T. , at the time of the loss, to the extent, at least, of the $4,200 mortgage, and could recover pro tanto upon his policy of insurance, he having insurance in other companies.</p> <p>2. The answer does not aver that T. rebuilt the property, and, as the evidence shows he did so after refusal to pay and after suit brought, the court can not consider the effect of such rebuilding upon the plaintiff's right. But if S. were to recover the property from T., he would have to pay for such improvements ; and a stranger may voluntarily donate to a party insured the amount of his loss, without thereby working a discharge of the insurer.</p> <p>3. The right to subrogation, in a proper case, can not be enforced until full payment of the liability, which gives rise to such right. Upon mere part payment, there is no right of subrogation as to such part.</p> <p>4. A refusal on the part of an insurer to pay a loss excuses the insured from making preliminary proof of his loss, as required by his policy.</p>

<p>The policy issued by the Buckeye State Insurance Company contained the clause, that' “a'transfer, or change of interest of the insured, either by sale or otherwise, without consent of the said company,” should avoid the policy.</p> <p>Held, that where Fuller sold to Munday the insured property for $75,000, retaining a lien for $50,000 of the purchase money, the interest of Fuller was “ transferred or changed,” within the meaning of the said clause, and that the policy was therefore void.</p>

<p>Certain personal property was seized for violation of the revenue laws of the United States, and declared forfeited to the United States. Six days after the decree of forfeiture, and before the sale of the property, the persons who owned the property at the time of the seizure executed a mortgage on the same.</p> <p>Held, that the mortgagee took no title.</p> <p>[After fully considering the testimony on this point, -the court gave judgment for the plaintiff for $2,500 and costs. — Eds.]</p>

<p>Where a time policy of insurance upon a steamboat, insuring her against the perils of navigation and loss by fire, contained these provisions: “With permission to navigate the Ohio and Mississippi rivers below Cairo, Illinois — coal oil clause waived,” followed by a clause among the special warranties containing the coal oil clause, stipulating as follows: “Warranted by the assured .... that the said vessel shall be run and navigated upon the aforesaid privileged waters, as is usual for boats of her class, in the usual prosecution of business,” and also containing other stipulations as to what things should but temporarily suspend the risk, deviation from the area of permitted waters not being among those mentioned; and where such insured boat, during the time covered by the policy, without the consent of the underwriter, made a voyage in safety upon another river than those specified as permitted, and was afterward, during the period of insurance, destroyed by fire, within the permitted waters:</p> <p>Held, that the policy amounted to a warranty that the boat should navigate none other than the permitted rivers, as well as that she would navigate them in the usual way for boats of her class, and in the usual prosecution of business; that such warranty was broken by the unauthorized'voyage on another river than those permitted, and that the insured can not recover for the boat’s subsequent loss by fire.</p> <p>Where, in the same case between the same parties, a question has been decided by this court, in General Term, and the cause is again brought before the court for determination, other questions being involved, the first decision will not be reviewed, but the parties left to seek their remedy in the Supreme Court, unless application has been regularly made and granted for a rehearing of the first decision, or unless the court shall request a re-argument of the matters formerly passed upon.</p>

<p>A summons issued from the Superior Court of Cincinnati to the sheriff of' Hamilton county can be properly served upon one of the defendants outside of the city limits and within the county, where another defendant, having a real and substantial interest in the action adverse to the plaintiff, is properly served within the city limits</p>

<p>In 1863, IT. died, appointing, by his will, his brother, A. IT., executor. Before the death of N., plaintiff had loaned him $767, and two years after his death the plaintiff loaned the executor, for the benefit of the estate, the further sum of $2,633, and such subsequent loan went to the benefit of the estate. In 1869, A. IT. resigned his executorship, and P. H. L. was appointed administrator de bonis non.</p> <p>Held, that suit was properly brought against P. H. L., the administrator de bonis non, for the money so loaned by the plaintiff, and that the estate of IT. was liable for such money.</p>

<p>If a third party, a stranger, write his name on the hack of a promissory note, for the purpose of becoming liable, before it is delivered to the payee, he is regarded, in law, as a maker, and to change this presumption he must prove that he signed upon a different understanding, understood by the payee, which proof may he by parol. The presumption, in Ohio, from the mere note itself, in such a case, wholly unexplained, is that such party signed as a guarantor.</p> <p>"When all the evidence is before the court, the pleadings will not he technically scanned, if amendable; hut the court will extract the real case from the whole record, and decide accordingly.</p>

<p>The testator Brown devised to Brooke three thousand dollars, to he paid after the death of Brown’s widow; Brooke dies before the widow:</p> <p>Held, that the legacy vested in the legatee, and was a charge upon the estate, and that upon the death of the widow it must he paid to Brooke’s executor.</p>

<p>Since the passage of the statute of May 7, 1869, 66 O. L. 325, sees. 14 and 6, unpaid notes, given to joint stock insurance companies incorporated under the act of April 11, 1856, 1 S. & C. 361, for unpaid subscription to capital stock, are taxable to such companies as “credits,” at their true value in money.</p> <p>Section 14 of that act is not retroactive within the prohibition of article 2, section 28, of the constitution.</p>

<p>O’Neil sold to Gaff a barge load-of coal, to be delivered at Lawrence-burg, and, by the custom of the trade, the purchaser was bound to hold and take care of the barge until called for by the owner. The barge was taken away by a third party, without opposition by the persons placed in charge, and was lost.</p> <p>Held, that Gaff was a bailee for hire, and liable for the loss of the barge.</p>

<p>Where a set-off alleged in an answer to a petition on a promissory note is denied by the plaintiff, and this denial compels the defendant to incur costs in procuring evidence to establish his claim:</p> <p>Held, that the costs incurred by the defendant are properly chargeable to the plaintiff, though he obtain judgment on the promissory note.</p>

<p>"When a clause in a bill of lading exempts a common carrier of goods from liability for their loss beyond a certain fixed amount, such clause does not protect the carrier against paying full value if the goods are lost by his neglect or breach of duty.- The contract is one, at most, against liability, as an insurer, for such losses as may happen from mistake or accident; and the fact that less is charged and paid for carriage, by reason of the insertion of such clause, will not change the rule.</p> <p>Express companies using, for conducting their business, the cars of a railroad company, are common carriers.</p> <p>Where a bill of exceptions merely states that there was evidence “ tending to prove certain facts,” the court can not infer that the evidence tended to prove any other fact.</p> <p>Proof of non-delivery or loss is prima facie evidence of negligence on the part of the common carrier, and it devolves on him to prove that the' loss occurred from some exception contained in the contract of carriage. Childs v. Little Miami Railroad Co., 1 Superior Court Reporter, 480, explained and qualified.</p>

<p>If, to a plaintiff s cause of action, the defendant plead a counter-claim or set-off, and the cause he tried to the court and submitted for decision, the defendant not having asked to dismiss his counter-claim or set off, it is error for the court, sua sponte, to dismiss such counter-claim or set-off without prejudice to the bringing of a new action upon it; and the plaintiff in such cause may avail himself of such error upon petition in error. But the action of the court dismissing the counter-claim or set-off, stated in the answer, will, in no way, affect the judgment rendered upon the causes of action set forth in the petition, whether they be for the one or the other party. Such judgment will he affirmed, and the cause remanded only to try the counter-claim or set-off.</p>

<p>If real property be levied upon, or ordered to be sold upon an order of sale issued from a’State court, and afterward, but before a sale, proceedings be begun, in the United States District Court, against the debtor, to have him declared a bankrupt, and he is duly declared a bankrupt, and an assignee be chosen and qualified, after the sale, but before its confirmation, the sale is authorized and legal, and will be confirmed, and the proceeds distributed according to law, by the State court, though the assignee makes himself a party in the State court, and resists such confirmation and distribution, he showing no special injury that will result to the bankrupt estate thereby.</p> <p>Before the assignee’s appointment the petitioning creditor in bankruptcy was a permissible party in such proceedings to confirm, and on his application was properly made such party. But his powers ceased when such assignee was appointed, and the latter could become the party in his stead, and adopt his answer and cross-petition and motion to set aside such sale.</p> <p>State courts are bound by, and will carry out the bankrupt law in every case before them governed by its provisions, in the same manner and to the same extent as a bankrupt court does, or as any State statute would be enforced.</p> <p>"Where it does not appear what evidence may have been offered before judgment to establish a valid mechanic’s lien, the court, on motion to confirm a sale of the land to satisfy the lien, will not inquire as to the evidence upon which the judgment, finding such lien, was rendered.</p>

<p>If it appears, from a bill of exceptions, that an exception to a charge of the court to a jury was properly taken at the time, and that such bill of exceptions was properly signed and sealed at the trial term, and if the judgment entry in the cause purports to have been entered at such term, and states the allowance of the bill of exceptions, a separate entry, which states that it (such last entry), was not made until during a subsequent term of the court; and iff entered nunc pro tuna, as of the trial term, reciting the history of the bill of exceptions and the judgment entry, and showing that they were in fact made up during such subsequent term, to the signing of which bill the opposite party objected, he not having consented to the continuance:</p> <p>Held, that such nunc pro tune entry can not invalidate the bill of exceptions. To have such effect, it should have been incorporated in the bill or in the entry stating the taking thereof.</p> <p>If a charge in writing, at the request of the parties, be given by the court to the jury, uto all of which charge” one party excepts, and he be not asked by the opposite party or the court to point out more specifically his exceptions, or the nature thereof, and such charge of the court be erroneous or calculated to mislead the jury upon a controlling question in the cause, the reviewing court, upon error, will regard such exception as sufficient, and reverse the judgment of the lower court, adverse to the party excepting.</p> <p>If, in an action for injury to the plaintiff's property, caused by th'e ordinary negligence of the defendant, it be claimed in defense that the plaintiffs own ordinary negligence contributed to the injury, and the court charge the jury correctly as to the standard of care required from each party, and the degree of negligence rendering them legally responsible, it yet further instructs': “Then you will next inquire whether the plaintiff was guilty of any negligence whatever, contributing to the injury. If you find that he was, then you will find a verdict for the defendant.” Such charge is erroneous, and calculated to mislead the jury upon a controlling question in the case, as it virtually requires extreme care on the part of the plaintiff. The rule in such | cases is, that any contributory negligence on a plaintiffs part, how- [' ever slight, arising from a failure to exercise ordinary care, under all | the circumstances, will bar his recovery.</p>

<p>Where a plaintiff had rendered services to the city as pound-master for dogs, without objection on the part of the mayor, who alone was authorized to employ him, and his services had been useful and were necessary, and such as the city had paid for before, they were deemed to be accepted by the city, and the law implied a contract to pay a reasonable compensation therefor.</p>

<p>Plaintiffs’ agents, D. W. & Co., sent merchandise to the defendant, accompanied with the following bill of lading:</p> <p>“Received, in good order, of Dinsmore, Wayne & Co., at the depot of the Cincinnati, Hamilton and Dayton and Dayton and Michigan Railroads, the articles marked or numbered as below, which are to be delivered in like good order, at Detroit, Michigan, to ~W. & R. Muller, or assigns, he or they paying freight for the same at the rate of forty-five cents per hundred pounds. Cincinnati, April 23,1866. Marks: W. & R. Muller, Detroit. Articles: Ten barrels liquor.” Defendant’s freight agent inserted the words, “ Toledo for,” between the words “ at ” and “ Detroit,” and sent it back to the consignees, who did not observe the alteration until after the loss of the1 property.</p> <p>Held, that this insertion was a rejection, on the part of the railroad company, of the proposition of shipment of D., "W. & Co., and the substitution of a counter-proposition to which D., "W. & Co. are presumed to have assented by not dissenting within a reasonable time.</p>

<p>“When a negotiable promissory note, secured by mortgage on real estate, is indorsed before due, for value, to an indorsee without notice of any equities existing against the payee in favor of the maker, and the mortgage is, at the same time, assigned to the indorsee of the note, the mortgage, in the hands of the latter, is subject to equities existing prior to such assignment in favor of the mortgagor against the mortgagee; and the indorsee of the note and mortgage can only enforce the mortgage for the amount equitably due to the mortgagee from the mortgagor, while he is entitled to a personal judgment against the maker of the note for the full amount thereof.</p> <p>Where, in such case, an action was brought to foreclose the mortgage only, and the court found the full amount of the note due> and ordered a foreclosure of the mortgage therefor, and, upon error, such judgment was modified by finding only the amount equitably due upon the mortgage and decreeing a foreclosure therefor, and when, after the cause had been remanded, the plaintiff, by leave of the court, filed a supplemental petition, asking for a personal judgment for the balance due upon the note, upon which supplemental petition the defendant took issue by answer, and upon which issue judgment was rendered against him, personally, for such balance, the judgment so rendered will not be reversed upon petition in error.</p>

<p>K. & Co., in St. Louis, purchased from M. & B. one hundred and two sacks of wheat for cash on delivery, thereby representing themselves as solvent, and consigned the same to H., D. & Co., at Cincinnati. When M. & B. demanded payment, they were informed that K. & Co. were insolvent. K. & Co. transferred the bill of lading to M. & B., who immediately directed H., D, & Co. to sell the wheat when it arrived at Cincinnati, and account to them. H., D. & Co. claimed to be bona fide purchasers from K. & Co., and refused to account to M. & B.</p> <p>Held, that the sale to K.. & Co. was fraudulent, and passed no title to the wheat, as between K. & Co. and M. & B., and that H., D. & Co., who had been notified in time, acquired no title.</p>

<p>Where suit is brought upon a promissory note against two persons, one of whom is a surety and known to be such by the payee and plaintiff at the time of receiving the note, and such surety does not deny the making of the note, but answers that for a sufficient consideration, without his consent, the plaintiff gave further time to the principal debtor in -which to pay, and the plaintiff replies that such further time was not given without the consent of the surety, but with his full knowledge and consent:</p> <p>Held, that such answer is new matter constituting a defense, and t^e burden of proof is upon the party se.ting it up to prove every material allegation contained in it, and a defendant must prove that he did not consent to such extension of time.</p>

<p>In an action to enforce a sewer assessment, either against the property, or personally against the owner, where the entire transaction has arisen since the passage of the municipal code of 1869, the municipal corporation, and not the beneficiary of the claim, must be the party plaintiff.</p> <p>The assignment, by the municipal corporation, of the claim to such beneficiary and directing payment to be made to him, does not empower the latter to maintain an action upon it in his name; nor can any assignee of such claim sue in his own name, but must use that of the municipality.</p>

<p>A national banking association was organized under the act of Congress of 1864. In its articles of association, it provided that the bank might make by-laws, “to prohibit, if the directors shall so determine, the transfer of stock owned by any stockholder who may be liable to it, either as principal debtor or otherwise, without the consent of the board.” It subsequently adopted a by-law, providing that “certificates of stock shall contain upon them notice of the provision, that no transfer of the stock shall be made without the consent of the board of directors by any stockholder indebted to it.” It then adopted another by-law, providing that certificates of stock, signed by the president and cashier, may be issued to stockholders, and the certificate shall state upon the face thereof that the stock is transferable only on the books of the bank; and when stock is transferred, the certificates thereof shall be returned to the bank and canceled, and new certificates issued.”</p> <p>It then issued certificates of stock, which did not state that they were not transferable by the holder while liable to the bank, hut which stated that they were “transferable only on the books of the bank, in person or by attorney, on the surrender of such certificates.” And, upon, the backs, thereof, were printed blank forms of assignment and power of attorney, under seal, for the holders to assign their stock.</p> <p>The cashier of such bank, who was also a director, became the owner of a certificate for fifty shares of its stock, each share being for one hundred dollars He signed his name to the blank form of assignment and power of attorney, and delivered the same to a business firm, of which he was a member, to raise money upon for the use of such firm. The firm hypothecated it and delivered it to bankers, who loaned money upon the faith of it, they having no knowledge of the owner’s liability to the bank, and no-notice of the requirements of its articles of association or by-laws. At the time of such pledging, the party to whom the certificate of stock was issued, was liable to his bank for a large sum of money. He afterward, being cashier and custodian of the bank’s transfer books, transferred such stock on the books to the president of the bank, individually, but really in trust to secure the bank for his liabilities to it. The certificate was not returned, it being in the hands of his pledgees, and the transfer was made on the books without the knowledge of any one except such cashier; but it was afterward ratified, the president-of the bank personally assumed all the liabilities of the cashier, and the bank thereupon transferred this stock to him upon its books, and has since paid him the dividends upon the same.</p> <p>The bankers to whom the stock had been pledged, not being repaid their loan in full, sued the pledgor, said cashier, and recovered a judgment against him for between $1,500 and $1,600, upon which they caused execution to issue; and, to make their money, let the sheriff levy on the stock in their hands, they delivering it to him for the purpose, when it was further levied upon on two other executions in favor of the debtor’s other general creditors. It was sold, like personal property, at sheriff’s sale, without the pledgor’s consent to either levy or sale, and another firm, knowing the terms upon which the pledgees held it, purchased it for $1,600, it being worth about par, which money they paid to the sheriff, who paid over to the original pledgees, who retained it in satisfaction of their debt, and, with their consent, the sheriff delivered the stock certificate, accompanied by a bill of sale, to the purchasers. They sold and delivered it to the plaintiff, who was one of their firm at the time of their purchase.</p> <p>The certificate of stock was duly presented, by the purchasers, to the bank, and a transfer on the books to them duly demanded and refused, on the grounds aforesaid, and because the same stood transferred to the president of the bank as the owner, in person, thereof. The bank, being located in another county than that in which the suit was brought, voluntarily entered its appearance to the action in the county where suit was brought.</p> <p>1. Held, that the act of Congress authorizing the organization of the bank and providing for its government, the articles of association, the rules and by-laws of the bank, and the act of issuing and fotm of the stock certificate must all be construed together; and while, in such cases, the bank’s equity and rights are superior to those of the mere general creditors or stockholders, a person who receives such certificate from the holder, so indorsed in blank, in the usual course of business, for value, and without actual notice of the owner’s liability to his bank, or of its rules and by-laws, acquires a right and property, in such stock, paramount to the equities of the hank, and, upon return of the certificate, may compel such hank to transfer such stock to him. Such stock is not negotiable paper, in the legal sense of the term, but the assignee’s right is derived from the fact that the bank itself has put it in the power of its stockholder to raise money upon it, and must bear the loss as between it and an innocent purchaser, or pledgee.</p> <p>2. In this case, this stock has never been transferred; the acts of the cashier and bank attempting to do so are void, the certificate of stock not having been returned as required by the rules of the bank, and that was notice to the bank of others’ rights in the stock.</p> <p>3. The owner of a certificate of stock, in the form of that in this case, may assign it and appoint an attorney in blank, though it be an instrument under seal.</p> <p>4. Such stock can not be levied upon and sold on execution, and such attempted levy and sale are void, without the levy and sale were assented to by the owner of the certificate.</p> <p>5. The holder of such stock in pledge, as collateral security for its owner’s debt, is an agent of the latter, which agency is coupled with an interest in the pledge, and, like a trustee, he must account to his cestui que trust for the surplus remaining after the satisfaction of his interest, which imposes upon him the duty of guarding the interests of all parties as far as possible. He can only sell with the consent of the pledgor or after due notice to him, and if he do so, he will he liable for the sacrifice of others’ interests.</p> <p>6. Upon the facts of this case, the bankers holding the pledge have, in equity, assigned their debt and pledge to the plaintiff, who stands in their stead.</p> <p>7. He can, therefore, not claim title to the entire stock, but only a lien upon it for $1,600, and interest upon that sum from the date of paying the money to the sheriff; therefore, he can not thus sacrifice $5,000 worth of stock for $1,600.</p> <p>8. Section 57 of the national banking act, authorizing suits to be brought against such banks, in state courts, only in the counties of their location, is a mere personal privilege, which they may waive, and if they enter their appearance to suits brought in other counties, they give to the state courts full jurisdiction over them.</p> <p>9. Where legal questions arise, dependent wholly upon the constitution of the United States or acts of Congress, and, in no way involving any state constitution or legislation, the decisions of the Supreme Court of the United States settling the construction of the same will be followed by the state courts, though they may have construed similar provisions in the constitution and statutes of their own states differently.</p>

<p>Theodore and John McGowan were manufacturers of pumps, under the name of “ McGowan Brothers.” John sold out all his interest in the business and assets of the firm to Theodore, including the old patterns, with the name “McGowan Brothers” on them, and Theodore was to assume the liabilities and succeed to the business of the firm, and associate with himself others if he chose. After the contract of sale was executed, there was inserted in the notice of dissolution a privilege to Theodore of using the old firm name, as to which there had been no previous negotiation. Theodore, with others, procured a certificate of incorporation, under the name “ The McGowan Brothers Pump and Machine Company,” and transferred to the said corporation all his rights and interest, as purchased from John.</p> <p>Feld, that John, who set up a similar business by himself, was entitled to an injunction to restrain the corporation from the use of “ McGowan Brothers” in its name, the use of the old firm name granted to Theodore, being in the nature of a revocable license. That the old name is not a trade-mark to be used by the corporation; and while it has the right to use the old patterns and sell the castings with the name “McGowan Brothers” on them, it can not hold out by the corporate name, that all the articles made by it are in part the product of the skill and labor of John, or that the corporation is in fact the old firm. That a well-founded apprehension of injury is sufficient to warrant an injunction, where the act, if completed, must give a ground of action.</p>

<p>A mutual life insurance company insured the life of a member, for a ¡ certain annual premium, to be paid at the beginning of each year, and if not so paid, the policy was to cease and determine, the insured to forfeit all moneys paid and all rights under such policy. The insured paid three annual premiums, hut gave his promissory note for the next year’s premium, the talcing of which the company assented to’ payable six months after date, bearing interest at a higher rate than the rules, etc., of the company provided for. The note provided: “ Being for premium on policy No. 25,187, and if not paid at maturity, said policy is to be void.” The note was not paid at maturity, nor did the company demand payment of the maker, on the day it became duo, but urged payment at other times. The maker was solvent. When the next year’s premium would have fallen due, by the terms of the policy, upon "a tender made of it.to the agent of the company, the latter refused to receive it, claiming that the risk had determined by reason of the non-payment of the note, and demanded back the receipt given for the previous year’s premium, but continued to hold the note. In'an action brought after, the death of the insured, to recover upon the policy:</p> <p>Held, that the payment of premiums in cash, as required by a policy of insurance, or by note, or, otherwise, taken in the manner the policy may prescribe, is a condition precedent to the continuance of the policy, and if not paid according to the required terms, such policy, ipso facto, ceases and determines, as the insured has the option whether he will continue to bo insured in such company, which can not compel him to do so, or recover a renewal premium, if he elects not to continue, the risk.</p> <p>JSut if the promissory note of the insured he accepted by the company, in payment of such premium, on terms other than those prescribed in the policy or rules," etc., of the company, but stating that it is given for such premium, and if not paid at maturity, such policy is to be void, the terms of payment become a 'condition subsequent, and the policy is only void at the optiou of the company, which can,' if it choose, recover the amount of the note after its maturity, the risk having attached.</p> <p>To work a forfeiture for the non-payment of such a promissory note, the company must demand payment of it on the day it becomes due, during the business hours of the d-iy, and if not paid, declare the policy forfeited, or void; but no such demand of payment of stipulated annual premiums, in the manner required by the terms of a policy of insurance, need be made.</p> <p>The practice of asking a long series of charges, which, if given by the court to the jury, would amount to a partial, one-sided argument' by the court of the party’s case, commented bn and condemned.</p>

<p>After suits brought on policies of life insurance, and after petitions filed by tho insurance companies for removal of the causes to the Circuit Court of the United States, under the act of Congress of 1867, the legislature of Ohio passed an act requiring life insurance companies, among other things, to file with the auditor of state waivers of all claim or right to remove any cause then or thereafter pending in any of the courts of the state, wherein any of said companies may be parties, to the courts of tho United States, which the defendants did.</p> <p>Held, that under tho act of Congress the petition for removal must be signed by the applicant in propria persona, and the bond required must be offered for acceptance when the application is made.</p> <p>That, the act of the legislature requiring such a waiver is not repugnant to the constitution and laws of the United States, or restrictive of the right of the companies to litigate in the federal courts.</p> <p>That, the State of Ohio may give its assent to the transaction of business within its territory by foreign corporations, on such térms and conditions as it pleases, if not repugnant to the constitution of the United States or restrictive of the right of litigation in the federal courts. Thai, it is as competent for these corporations to execute these waivers pursuant to this legislation, and they are as much bound by them as if they waived the right of removal in open court.</p> <p>That, the defendants are estopped from denying the propriety and validity of their waivers or of the legislation, because they were and still are doing business in Ohio by virtue of them, and are receiving benefits under them.</p>

<p>Under the provisions of sections 38 and 114 of the tax law, 2 S. & O. 1454, 1476, a county treasurer can not maintain a civil action against a delinquent tax-payor, but must pursue the remedy required by said section 38, and obtain a rule upon the tax debtor through and upon the notice prescribed theroin to be served upon such delinquent.</p>

<p>Where D. entered into a written contract with C. & J., as partners, J. signing the firm name in the absence and without the knowledge of C. , to sell and deliver to them, at a specified place, between the 10th and 20th days of June, 1865, from one hundred and fifty to three hundred head of smooth merchantable hogs, the exact number to be at D. ’s option, averaging two hundred and fifty pounds gross weight and upward — C. & J. to name the day of delivery between the 10th and 20th of June and give D. three days’ notice thereof, the price per hundred pounds gross weight to be $13; and D. gave notice in May that he would fill the contract with two hundred and sixty-two head of hogs, when C. denied his liability on the contract, and no notice was ever given D. of a day for delivery; and D. was ready and willing to comply with the terms of his contract on June 19, 1865, and did then, at the place of delivery, weigh two hundred and sixty-two head of hogs, which averaged 278 2-131 pounds per head, which O. & J. could have had by paying for them, but, not doing so, D. kept and sold them — such hogs being worth, at the time and place of delivery, only $7 per hundred pounds gross weight.</p> <p>1. Held, that the term “between” excluded both the 10th and 20th days of June, and that, upon the facts of the case, D. was required to be ready and willing to deliver on the 19th day of June; and that, under the contract, he had until that day to elect what number of hogs over one hundred and fifty to three hundred he would deliver.</p> <p>2. That no actual weighing, tendering, or setting apart by D. of such hogs, was necessary to enable him to maintain an action against the defendants for their breach of contract to purchase the hogs: to be ready and willing to deliver, at the place of delivery, is all that the law requires, and the measure of his damages is the difference between the contract price, reckoning two hundred and fifty pounds per hog, and the market price at the time and place of delivery. Quaere: If by weighing but not actually vesting property in the hogs in defendants, plaintiff could recover damages for what the hogs weighed, averaged over two hundrod and fifty pounds gross weight?</p> <p>3. If O. & J. were partners in the purchase of hogs, to be delivered in June of that year, J. had authority to bind O. by the above-mentioned contract, even if, as botween O. & J., it was a term of the copartnership that J. should contract for no hogs without O.’s consent, unless D.’ knew of such term when J. contracted with him for the firm.</p> <p>4. If, in such a case, the plaintiff makes out, by his evidence, a clear prima facie right of recovery, and the defendant a prima facie defense, and the oourt expressly, by mentioning the same, charges the jury that the plaintiff must satisfy them by proof of all the material facts of his case, and then charges them, in regard to weighing the plaintiff’s and defendant’s evidence, that, “if upon the whole evidence they should find a preponderance of it in favor of the plaintiff, their verdict would be for him,” such charge is not erroneous.</p>

<p>In a proceeding to recover an assessment' from a stockholder in an Ohio corporation on his statutory liability, to pay its debts, the petition did not contain a statement that the stockholder was such while .the debt for which judgment had been obtained against the corporation was incurred, and in the other pleadings in the cause it appeared that in fact ho was not such stockholder.</p> <p>Held, that it was error to render judgment by default against such stockholder for an assessment, inasmuch as the petition omitted a constitutive fact under the code, and no suoh fact could be presumed to have been proved, when no trial was had, and no proof exhibited.</p>

<p>If a bill of exceptions does not profess to set out the evidence, but merely states that there was evidence before the jury “tending to show ” that the obligor of a bond, “ at and about the timo ” he is alleged to have executed it, “was of diseased and unsound mind," yet fails to state that the evidence tended to prove that he was incompetent to execute such bond by reason of such diseased and unsound mind, the court, upon error, can not infer that the evidence went to the extent of tending to prove mental incapacity; and especially is this so if no such defense is set up in the pleadings, and a charge of the court in such case upon what insanity is, and what will or will not constitute a defense on that ground, is wholly immaterial.</p> <p>In a statute incorporating a college for the promotion of scientific and theological knowledge, such corporation was authorized to receive “ donations," but the act was silent as to subscriptions.</p> <p>Held, that where a party executed a bond, reciting that the same was in fulfillment of an undertaking, agreement, and subscription between the obligor and other persons and the college, to create for it an endowment fund, such bond is a “donation” within the meaning of the statute, and is enforcihle in law against the obligor.</p>

This case is reserved here on a demurrer to the petition by the city.

<p>Where lands were contracted to be conveyed for the purpose of promoting a gift enterprise, contrary to the statute, and $500 was paid on the land, and the balance was to bo paid in one thousand tickets and out of the proceeds of the sales of other tickets; and it appearing that the lands were one of the prizes in the gift enterprise, and that many of the tickets in the enterprise, which had been nearly all put out for sale> had been sold, when the grantees of the land abandoned the scheme, called in all the tickets, and refunded to holders the money they had paid, except about $25, rescinded the contract, and brought suit to recover back the $500 paid on the lands:</p> <p>Seld, that inasmuch as one of the considerations and all the purposes of the contract were illegal, the whole contract was void; and that having rescinded the contract, by which they prevented the illegal act from being done, the grantees had a right to recover back the money they had paid in part performance of an executory contract. They dis-affirmed the contract, and did what they could to repair the wrong-committed against the statute. The policy of the law is to grant the wrong-doer a locus in pmitentice, for the avowed purpose of repressing the mischief and advancing the remedy.</p> <p>That a claim that the grantors should keep the money paid, in consideration of their trouble and loss of opportunity to make a sale of the property, can not be considered.</p> <p>It is not error to allow evidence to go to the jury which does not contradict or vary the contract, but puts the court in the situation of the parties at the time it was made, to enable them to arrive at the intention of the parties, and to prevent the plaintiffs from obtaining the fruits of an illegal bargain.</p>

<p>Representations made to procure a policy of life insurance (which policy provides that it shall be void if such representations are untrue), that the insured is temperate as to the use of intoxicating liquors and has always been so, will avoid the policy and discharge the insurer, if at the time of procuring such insurance, the insured was addicted to periodical and habitual “ spreeing,” and the insurance company, its agents, and examining physician were all ignorant of such fact when the premium was accepted and the insurance effected — there being no premium received after knowledge of such fact came to the company.</p>

<p>M. & J. being trustees of H., a bankrupt, employed H. & H., attorneys at law, to perform eortain legal services for the benefit of the bankrupt’s estate, there being no special contract that H. & H.. should, look to the bankrupt’s estate for compensation. Held:</p> <p>1. That M. & J. were individually liable to H. & H. for such services.</p> <p>2. That the party employing an attorney or counsel to perform any service in his professional capacity, in the absence of a special agreement to the contrary, is personally responsible for any such services rendered.</p> <p>3. The general rule is, that the party employed looks to the employer for payment; and where a trustee employs an agent, in the execution of his trust, such agent must look to the person employing him, individually, for his payment, and can have no claim on the trust funds.</p>

<p>A daughter, on the day of coming of age, made a conveyance, for sufficient consideration, to her mother and stepfather, as a family adjustment of their respective rights in certain property, which was devised to the mother and daughter hy the father and husband, and on the improvement of which the stepfather had expended his own moneys; and it appearing that the settlement was fair and reasonable, and that there was an absence of fraud:</p> <p>Held, that the mere relations of the parties and other slight circumstances, though tending in some degree to show undue influence over the child, is not enough to authorize a court of equity to set aside the conveyance. Such transactions between parents and children will he regarded with favor, and the court will not minutely weigh the considerations on one side or the other.</p>

<p>If persons procure a special act of incorporation from the legislature of another state, and organize under such act, with no actual intent to evade or defraud the laws of Ohio, but for the purpose of holding property and doing business chiefly in Ohio, and keep an office and hold their annual meetings in the state creating such corporation, and all their business meetings, for convenience, in this state, the courts of this state will not treat such corporation as a mere copartnership, or joint stock company, or association of individuals, but recognize its acts and obligations as corporate.</p> <p>If one of the officers of such body loan money to it upon a promissory , note purporting to he made by it, by its president, he will be estopped from denying its corporate existence, and can not recover upon the same against the stockholders personally.</p> <p>And if, to obtain a loan of money, he pledges such note as collateral security, his lender knowing that the organization claims to be a corporation, and the individual stockholders were ignorant of such transactions, such last lender, or pledgee, stands in the shoes of his borrower and can not recover against the stockholders personally, because his borrower could not. Such paper is not the commercial paper of individuals taken in the usual course of business, without notice of the rights of the stockholders against personal liability upon the same.</p>

<p>Where a foreign administratrix brings suit in Ohio to assert a right, and after answer and counter-claim dismisses the petition and takes leave to answer the counter-claim, and does so, and proceeds to trial without objection, she "can not then be heard to object that the court has no jurisdiction to hear and determine the cause.</p> <p>H. covenanted to convey to a married woman, on or before August 4, 1868, certain lands in fee, upon the punctual .payment of $7,000 — $500 cash, which was paid; $330, on the 4th August, 1865 ; $360, on the 4th August, 1866; $390, on the 4th of August, 1867; and $5,420, August 4, 1868; and agreed, “if desired by W., I will cancel this agreement at any time prior to August 4, 1868, and refund whatever amount is paid, with interest.” W. failed to make the payment due August 4, 1867, and shortly afterward elected to rescind:</p> <p>Held, that this contract was mutually obligatory, though 'W. was a feme covert; and that though thero was default in the payment due in August, 1867, the exercise of the option to rescind the contract on the part of "W., in September, 1867, was within its terms, and authorized a recovery of moneys paid on it.</p> <p>Held, that, by the terms of the contract, the exercise of the option to rescind by W, without joining her husband, was a literal compliance with the contract. The right to exercise it was personal to her, and its exercise defeated any possible estate the husband might have had in the land.</p>

<p>Where the only error assigned is, that the verdict of a jury was against the evidence, the law, and the charge of the court, and the court below overruled a motion for a new trial based on such grounds, the evidence must have been clearly with the party seeking to reverse the judgment.</p> <p>Ordinarily, where personal property is sold and the possession* delivered to the purchaser upon condition that it is to remain the seller’s until paid for, a purchaser from such conditional buyer, for full value, in good faith, and without notice of the original vendor’s rights, acquires no title, as against the latter, unless such original vendor has done some act to induce such innocent third person to purchase other than delivering possession of the property conditionally sold to the conditional purchaser. The latter has no better right to sell and pass title than a mere bailee.</p>

<p>The canals of this state were authorized and constructed for the purposes of navigation, not to afford private persons water-power. The latter may be done where the former is not materially affected, but subject to the right of the state to withdraw the same at any time it may choose. And the state may abandon or relinquish its canals, or any part thereof, whenever, in the exercise of its uncontrollable discretion, it may deem it best for the public interest to do so.</p> <p>If the canal commissioners, or board of public works, having authority without special legislation so to do, have authorized the construction of a navigable water-way, connected with and supplied by the canal, but which, when constructed, forms no part of the canal, for the purpose of obtaining water-rents for the benefit of the canal fund, such board, without special legislation, may abandon and relinquish the same, or any part thereof, without the consent of persons whose property rights may be injured in value by the non-continuance of the same; and all public improvements theretofore forbidden, for the sole reason that they would destroy or injuriously affect navigation in such water-way, are no longer forbidden after navigation has been rendered impossible by the acts of such state authorities, and no injunction will be granted to restrain them.</p>

<p>This ease comes into this court upon a reservation of the questions of law and'fact arising upon the record and proofs.</p>

<p>If personal property, in lieu of homestead, less in value than $500, is levied upon on execution and assigned to the debtor, under section 3 of the act of April 9, 1869 (66 Ohio L. 50), he may, if a subsequent execution be levied upon' after-acquired personalty, to satisfy the same judgment, have set off to him enough in value of the latter to make up, with what is yet held by him of the former, $500 in yalue in all.</p>

<p>A will executed by husband and wife, in which all the property devised is that of the husband only, and in which the wife merely accepts the provisions of the will, is not the joint will of both, but the valid will of the husband.</p> <p>Where, in such will, the testator devises all his real and personal estate to his wife for life, and the remainder to his brothers and sisters and • their legal representatives, and dies, in 1859, leaving no children or their legal representatives, and his widow fails to elect within one year to take under the will, such widow, by virtue of the' laws of Ohio in force at the time of said testator’s death, was entitled to all his real estate for life, and to all his personal property absolutely.</p>

<p>All municipal corporations in Ohio derive their powers by delegation from the legislature, which has conferred upon them no authority to appropriate public moneys raised by taxation to the payment of expenses' for entertaining guests invited to and receiving their public hospitalities.</p> <p>Injunction is a proper remedy to restrain such unauthorized use of the public moneys.</p> <p>Courts have no power to restrain by injunction or otherwise, legislation by the council of a municipal corporation, but can restrain the carrying out or execution of illegal or unauthorized legislation; and where officers or members of council are appointed by the council to effect the objects of such legislation, such officers or members may be restrained from doing so as effectually as if they were private citizens or strangers.</p> <p>A city council has power to appropriate money for “incidentals ” without specifying the particular objects of expenditure; but no expenses can be incidental which are not authorized by law to be incurred, and which could be enjoined if specified in an appropriation to pay them.</p> <p>Whore such appropriations for “incidentals” are made monthly for the following current month, an unexpended balance need not be covered into the treasury to be again appropriated, but the same stands appropriated for such purpose, and the succeeding appropriation can be made less to the amount of such unexpended balance.</p>

<p>The plaintiffs were the owners of a large four-story brick building, fronting on Yine street, Cincinnati, and abutting eighty feet on the north line of Burke alley, which is ten feet wide. The foundations of plaintiffs’ building were about eleven feet in depth below the crown of the alley. The defendant, in the prosecution of the plan of sewerage, legally adopted many years after the erection of plaintiffs’ building, proposed to lay a pipe lateral, to the depth of twelve feet below the crown of the alley, and for that purpose was about to make the necessary excavation. The soil was loose sand and gravel, and plaintiffs sought an injunction on the ground that the construction of the sewer was contrary to law and against the right of plaintiffs'; that there was great danger of undermining the building, so that it would be greatly injured or broken down, besides endangering the lives of their employes in the building, who had threatened to quit work in case the excavation proceeded.</p> <p>On a showing by the defendant that the proposed sewer was an original improvement, and was reasonable and proper, and could be safely dona if carefully executed:</p> <p>Held, that on the facts proved, there was no sufficient reason to authorize ' the court to prevent the work from being constructed according to the plan, on the ground of apprehended danger to the building, and that the threat of the employes to leave the building, in case the work was prosecuted, presented no cause for granting the relief prayed for.</p> <p>That the plan of sewerage having been legally adopted, and being an original improvement, the private rights o.f lot-owners must be held to be subordinated to the public right to construct it; and where the defendant exercises due care, there is no ground of injunction.</p> <p>But, quaere, as it may be said that the plaintiffs acted prudently in the erection of their building with reference to this improvement, if damages nevertheless ensue by reason of constructing the sewer, though the work be done with due care, whether those damages may be recovered 7</p> <p>That the municipal code, which does not allow excavations deeper than nine feet, applies to adjoining lot-owners, and does not apply to municipal corporations in the improvement of streets and alleys.</p>

<p>An attachment was discharged by the general term of this court on error, and judgment was recovered of the sureties -on the attachment bond for all the damages accruing up to the final discharge of the attachment, and the sureties paid it.</p> <p>On demurrer to a petition filed by the sureties on the attachment bond, against the sureties on the bond in error, for contribution pro raía: Meld, That the two sets of sureties were not co-sureties, nor was there any right of subrogation or contribution, but that there existed the relation of principal and surety between the two sets of sureties, and the plaintiffs being the principal and having paid the damages, there was no liability on the defendants.</p>

<p>Where conditions are annexed to a policy of insurance, they will not be construed as amounting to warranties, unless the language employed in the policy referring to them, by fair and clear construction, makes them such. The language of the policy in such cases is to be taken most strongly against the insurer.</p> <p>Where such conditions, not being warranties,'require tbe assured to give notice to the insurer of any increased risk to the property insured "by the erection of buildings, or by the use or occupation of neighboring premises, or otherwise,” if the assured has no knowledge of such increase of risk, and could not have ascertained the same by the reasonable exercise of diligence, he can not be affected by such increased risk, or be bound, at his peril, to ascertain its existence, and notify the insurer thereof.</p> <p>If the object of requiring such notice be stated in the condition to be that the insurer may exercise, or not, an option reserved to him to cancel such policy, which he reserves the right to do at pleasure without assigning any reason therefor, and he obtains notice from other sources of such increased risk from such user of neighboring premises, that accomplishes the same purpose as if the insured had given such notice, and will excuse the insured from so doing. If the insurer does not thereupon elect to cancel such policy, but continues it, he will be liable for a loss afterward happening.</p> <p>A bill of exceptions, which does not set out the evidence, but merely that evidence was given “tending to prove” certain facts, can not be so construed as to authorize the court to assume that evidence was given “tending to prove” any other fact put in issue by the pleadings; and if any charges of the court as to the law are based wholly upon such other facts, they are to be taken by a reviewing court as mere abstract propositions, and whether correct or not, will not warrant the reversal of the judgment rendered in the case.</p>

<p>A receiver may be appointed, on the application of the plaintiff, after the filing of the petition and commencement of service by publication, where the defendant can not be found, and has no known place of residence within the jurisdiction, or no attorney upon whom to serve notice of the application, if the other circumstances of the case justify it.</p>

<p>Under what is known as the “Adair liquor law,” 67 Ohio L. 101,102, no civil action for damages against the seller of intoxicating liquors, or the lessor or owner of the premises, can be maintained by the wife, injured in her means of support by reason of the intoxication of her husband caused by such sales, unless the sales were unlawful.</p> <p>Whether knowingly suffering intoxicating liquors to be sold by a lessee in violation of law, upon the premises, on the part of the lessor or owner thereof, who has previously leased them for lawful purposes to such lessee, can amount to “ knowingly permitting” such illegal use of the premises or not, quaere ?</p> <p>The supplementary act of 1866, S. & S. 748, is, as its title imports, merely supplementary to the law of 1854, providing only for the punishment of middle-men or “go-betweens,” who purchase for or furnish to those to whom intoxicating liquors can not be lawfully sold, such liquors, and for which neither they nor the sellers would otherwise be liable, though, by the separate acts of. the two classes, the mischief intended to be prevented by the law of 1854 would be perpetrated.</p> <p>The “Adair law” of 1870, so far as it gives a right of civil action to the classes of injured persons named against those who unlawfully sell intoxicating liquors, has been held valid and constitutional by the Supreme Court in the case of Mulford v. Olewell, 21 Ohio St. 191; and no court inferior in jurisdiction to the Supreme Court has authority to hold otherwise, but is bound by such decision.</p>

<p>A compromise of a cause was entered into by the attorneys of the parties after judgment was pronounced, but of which the parties and their attorneys were ignorant. When they were apprised of the facts, the defendant refused to abide by the compromise, and was about to proceed to collect the judgment in his favor against the plaintiff. On motion for a restraining order;</p> <p>Held, a compromise made supposing the cause to be pending, and in ignorance or mistake of the fact of judgment having been rendered, furnished no ground for interference by injunction to restrain the collection of the judgment.</p> <p>That the attorneys of the parties had no power to negotiate away the judgment without consent of the parties themselves.</p>

<p>Motion to set aside an execution against R. H. Stevenson.</p>

<p>Joint-stock insurance companies incorporated under the act of April 11, 1856 (1 S. & O. 360), and April 13, 1865 (S. & S. 228), were not taxable on the notes made by subscribers alone to the capital stock of such companies, for the unpaid four-fifths of their subscriptions, payable only as called for, and in the absence of any such call, they not being “ credits ” within the meaning of our tax laws, but only possible “ credits.”</p> <p>They became taxable “at their true value in money,” under aiid by virtue of the statute of May 7,1869. 66 Ohio L, 325. But since this act, if any such company has dissolved and discontinued business, within a reasonable time after its passage, and has in no wise done business upon the faith or basis of such notes, and they are or have been in no manner required to meet or discharge any part of its business obligations, but have been canceled, such notes have not been subject to taxation at any time since May, 1869.</p> <p>To the extent that such company may have realized from such notes a pecuniary value or benefit, since May 7, 1869, they are taxable at their true value in money for such purposes, though such company m&y dissolve and cancel all such notes as remain in its hands, within five years from July 1, 1869.</p> <p>A determination of the rule since the passage of the act of 1873, not authorized by the facts Involved in this case.</p>

<p>The Superior Court of Cincinnati has no jurisdiction to restrain the assessment or collection of an illegal tax or assessment upon lands lying outside the limits of the city of Cincinnati.</p> <p>Where a suit was brought against the treasurer of the county, whose office is by law established in the city of Cincinnati, at the courthouse, to restrain him from collecting an illegal assessment for the improvement of a street in an incorporated village in the county, and the treasurer demurs to the petition on the ground of a want of jurisdiction in the court, and also because the same does not state facts sufficient to constitute a cause of action, claiming that injunction is n,ot an authorized remedy, and such, village is afterward, during the pendency of the demurrer, annexed to the city, and the defendant then appears in court, and argues and submits his demurrer upon both his alleged grounds, it is equivalent to his appearing to a new action brought after annexation, and the court acquires full jurisdiction.</p> <p>The collection of such illegal assessment by the county treasurer maybe restrained by injunction.</p>

<p>This is a petition in error to reverse a judgment rendered at Special Term.</p>

<p>Under amended section 17 of tbe insolvent debtors' act, passed February 12, 1863 (S. & S. 397), lands conveyed for tbe purpose of hindering, delaying and defrauding creditors, inure, in contemplation of law, to the equal benefit of all creditors; and any prior creditor, a simple-contract as well as judgment creditor, may, if the fraudulent grantor be in fact insolvent and have no property subject to execution, institute and maintain an action to set aside such conveyance, and then have the proceeds of such lands applied to the payment of debts, as provided in said amended section, the same as if such lands had been assigned for the benefit of creditors.</p> <p>An action can not be maintained to set aside such conveyance, and subject the lands conveyed by it, by any creditor who was such at the time of the conveyance, after the lapse of four years from the discovery of the fraud, the limitation being prescribed by section 15 of the statute of limitations. 2 S. & O. 949; S. & S. 541. And any creditor instituting an action after such period, must aver in his petition that ho discovered the fraud within such period of four years.</p> <p>If the fraudulent grantee be the debtor’s wife, and the land be purchased with the debtor’s means from a third party, to whom .notes are given for the purchase money, some of which are paid by the debtor before, and some within such period of four years, suit may be maintained to the extent of the latter within four years after payment, as they constitute a fraudulent gift of so much of the land by the debtor to his wife.</p>

<p>This case comes here upon a reservation of demurrers to certain answers and cross-petitions.</p>

<p>The plaintiff brought its action in the Superior Court of Cincinnati, upon the promissory note of the defendants. The defendants filed an answer and counter-claim, in which they denied any indebtedness, and set up that the note was a mere accommodation note, and had been received by the plaintiff without any consideration, and was now held by it in fraud of their rights, and asked that the plaintiff be required to deliver up the note to them to be canceled. The plaintiff then dismissed its action in the Superior Court, and commenced proceedings on the note in the Circuit Court of the United States, and afterward filed a roply to the answer and counter-claim, in which it asks judgment on the note “as in the petition.”</p> <p>Held, that the Superior Court had jurisdiction to try the issue made by the counter-claim and reply, and to decree the cancellation of the note.</p> <p>The Merchants’ National Bank of Cincinnati, as the agent of the Quebec Bank of Toronto, held for collection a gold draft, of which Geo. M. Bacon & Co., of Cincinnati, were the acceptors. This draft notbeing paid at maturity, Bacon & Co. gave their promissory note to the national bank as security for its payment. This note being about to fall due, Bacon & Oct. obtained from Weyand & Jung their accommodation note for the express purpose of taking up the gold draft. The national bank refused to discount this accommodation note, or to apply it in payment of the draft, or to give further time for payment, but received it as collateral security only for the pre-existing debt. The Quebec Bank of Toronto brought suit against Weyand & Jung on the note at its maturity.</p> <p>Meld, that, as the national bank, as the agent of the plaintiff, received the accommodation note without any consideration therefor, and as collateral security only for a pre-existing debt, it was received subject to any defense which Weyand & Jung might have to it against Bacon & Co.; and as Bacon & Co. gave Weyand & Jung no consideration for it, and as it was not used for the purpose for which it had been given to Bacon & Co., the plaintiff could not maintain its action on it against Weyand & Jung.</p>

<p>A judgment rendered by the Superior Court of Cincinnati is not a lien upon all the judgment debtor’s lands lying within the county of Hamilton, but only such as are within the city of Cincinnati. Goodman v. McGall, 2 Cin. Sup. Ct. Rep. 159, overruled.</p>

<p>If an employe of a banker, in the absence of the latter, violates the rules of the bank, by not demanding payment of the maker of a promissory note falling due and giving notice of dishonor to the indorser, so as prima facie to charge him, and such hanker insists upon holding the employe responsible for the amount of such note, and the latter acquiesces, takes possession of the paper with the banker’s consent, sues the indorser upon it in his own name, and the banker appears as a witness at the trial, and states such facts and makes no claim to the note, he will he estopped from claiming against the indorser that he is the owner of such note, and the employe may recover upon it as the owner and holder.</p> <p>Where a note is payable at no specified place, if the maker during the last business hour of the day on which it falls due, goes to the holder and ' advises him that he can not pay it, having no money, and asks for a few days’ indulgence which is granted, that will authorize a jury to find that there was a sufficient presentment for and demand of payment, though the holder wholly fails to make presentment and demand at the maker’s place of business; and, in such case an indorser can not insist that no proper presentment and demand were made.</p> <p>And if, in such case, the indorser accompany the maker to the holder and hears the agreement between them, and does not object thereto, ajury may find that he assented to it and to' his continued liability, and waived the requisite formal notice to him of the non-payment of the note by the maker upon presentment and demand, and the holder may, if such facts he found, recover against him as indorser.</p>

<p>If, by the terms of a contract, hogs are to be delivered to the buyer at a particular place, and are weighed for delivery at another, in the absence of the buyer, it is not error in the court to refuse to instruct the jury, that if the seller, previous to the day of delivery, stated to the purchaser that the latter was the place of delivery, and the purchaser remained silent, he thereby waived all objections to a delivery at the place fixed by the contract, and would be bound by a tender at the latter. Such evidence should go to the jury for the purpose of enabling them to find whether there had been such waiver or not.</p> <p>If the purchaser, in such case, knew the seller was mistaken as to the place of delivery fixed by the contract, and kept silent with the intention of misleading the seller as to the correct place of delivery, he will not be estopped, from insisting upon such term of the contract unless the jury find that the seller was misled thereby, especially if he claims that the latter was the place of delivery, and it is not found but that he would have tendered at such latter place, even if the purchaser had advised him fully of his claims in the premises.</p> <p>Ordinarily, a party will not be held to waive a material term of a contract unless he intends and consents to do so. And every party to a contract is bound, at his peril, to know and perform its terms if he would enforce it; and if the other party do no act, or is guilty of no conduct which ought to mislead a reasonably prudent man, he will not render himself liable by failing to set the other right, when he ascertains he is going wrong ; provided, he in no manner encourages him to proceed in such erroneous manner. But if the jury obviously fail to consider the evidence under a proper charge given by the court, their verdict will be set aside.</p>